This Representative Agreement (this “Agreement”) sets forth the terms and conditions under which Hireku, Inc. (“Jazz”) permits the Representative to (i) direct customers to buy subscriptions from Jazz through a co-branded website and/or assist customers with the buying process, (ii) access information on Jazz websites, (iii) use the Jazz logos and Documentation, and (iv) obtain Jazz technical training, all for use solely under the terms of this Agreement.
REPRESENTATIVE UNDERSTANDS AND AGREES THAT BY SUBMITTING A JAZZ CHANNEL PROGRAM APPLICATION FORM AND AGREEING TO THE TERMS OF THIS AGREEMENT, REPRESENTATIVE ACCEPTS ALL THE OBLIGATIONS AND CONDITIONS OF THE LATEST VERSION OF THIS AGREEMENT SET FORTH ON THIS WEBPAGE, OR SUCH OTHER SUCCESSOR WEBPAGE THAT JAZZ MAY DESIGNATE FROM TIME TO TIME.
Unless defined elsewhere in this Agreement, all capitalized terms used in this Agreement have the meanings set forth in the section below entitled “Definitions.”
1. APPOINTMENT OF REPRESENTATIVE
1.1. General. Jazz hereby appoints Representative on a non-exclusive basis to demonstrate, promote and market subscriptions to the Jazz Platform to prospective customers. The foregoing appointment is subject to Jazz’s receipt and approval of Representative’s completed Jazz Channel Program Application Form to act as an authorized sales representative who can refer Opportunities to purchase subscriptions to the Jazz Platform from Jazz.
2. OBLIGATIONS OF THE REPRESENTATIVE
2.1. Prices and Quotes. Representative agrees that it will quote to customers and potential customers the prices and license terms for the Jazz Platform that are provided by Jazz. Representative also agrees that it will not alter or change such prices or license terms unless otherwise authorized in advance by Jazz in writing. Subscription prices and terms quoted by Jazz are subject to change by Jazz at any time.
2.2. Terms of Service for Resales. In those cases where Representative is directing customers to purchase subscriptions of the Jazz Platform directly from Jazz (i.e., referrals), Representative agrees that it will quote to customers and potential customers the prices and license terms for the Jazz Platform that are provided by Jazz. Representative also agrees that it will not alter or change such prices or license terms unless otherwise authorized in advance by Jazz in writing. Subscription prices and terms quoted by Jazz are subject to change by Jazz at any time.
2.3. Training. Representative shall cause its appropriate employees to participate in such technical, sales and service training with respect to the Jazz Platform as is reasonably requested by Jazz from time to time, including training relating to product market fit, demonstrations, marketing collateral and training relating to the Jazz Partner Portal.
2.4. Conduct of Business. Representative shall use good faith and reasonable efforts to market, promote and resell (as applicable) subscriptions to the Jazz Platform. Representative shall not take any action that disparages, insults or offends or is harmful to the name, image or reputation of Jazz or the Jazz Platform. Representative shall not make any false or misleading representations concerning Jazz or the Jazz Platform, or make any representations concerning the Jazz Platform’s specifications, features, capabilities and applicable warranties which are not consistent with or are in addition to those set forth in the latest Terms of Service, product descriptions or promotional materials made available by Jazz to Representative.
2.5. Compliance with Applicable Laws. In undertaking any activity under this Agreement, Representative shall comply with any and all laws, rules and regulations applicable to its performance of its obligations under this Agreement. Without limiting the foregoing, Representative hereby agrees to comply with all export laws and regulations of the U.S. Department of Commerce and all other U.S. agencies and authorities and not to export or re- export the Jazz Platform in violation of such laws or regulations, or without all required licenses and authorizations.
3. RESTRICTIONS APPLICABLE TO THE REPRESENTATIVE
3.1. General. Unless Representative has been authorized by Jazz to resell subscriptions to the Jazz Platform, Representative shall not have any right hereunder to distribute the Jazz Platform to any third parties, including existing or prospective customers of the Representative, and all such activities shall be undertaken solely by Jazz or its authorized designees. Under no circumstances may Representative appoint any sub-distributors, resellers or dealers for the Jazz Platform or otherwise purport to grant any rights to market, distribute, co-promote or sell the Jazz Platform, except with Jazz’s prior written consent.
3.2. Restrictions on Use and Access. Representative shall not itself, and shall not authorize or permit any End User or any of Representative’s employees, agents or representatives, or any other third party, to:
(a) modify, translate, reverse engineer, de-compile, disassemble, create derivative works of or otherwise seek access to the source code of the Jazz Platform or Jazz Materials;
(b) access or use the Jazz Platform or Jazz Materials to infringe on, violate, dilute or misappropriate the intellectual property rights of any third party or any rights of publicity or privacy;
(c) access or use the Jazz Platform or Jazz Materials to violate any law, statute, ordinance or regulation (including but not limited to the laws and regulations governing export/import control, unfair competition, anti-discrimination and/or false advertising;
(d) access or use the Jazz Platform to introduce or propagate any unauthorized data, malware, viruses, worms, Trojan horses, spyware, worms, other malicious or harmful code; or
(e) remove from the Jazz Platform or Jazz Materials any language, notice or designation indicating the proprietary rights or trademarks of Jazz.
Any unauthorized work developed by Representative, any of its employees, agents or representatives or an End User in contravention of clause (a) above, and all intellectual property rights embodied therein, shall be the sole and exclusive property of Jazz and Representative hereby assigns all rights in them to Jazz (and waives all moral rights in them).
4. PAYMENTS AND COMMISSIONS
4.1. Resold Subscriptions. Representative shall pay directly to Jazz the periodic subscription fees for each subscription to use the Jazz Platform purchased by Representative which is intended for re-sale to Representative’s end-user customer. The periodic subscription fees are payable on a per-unique-customer basis, and shall be paid pursuant to the subscription fee schedule set forth on the Partner Portal.
4.2. Commissionable Referrals.
(a) Commission Rate. Jazz will pay Representative a commission for each Commissionable Referral based on the commission rate then applicable to the Representative (as set forth on the Jazz Partner Portal). Representative will only be entitled to fees or payments by Jazz with respect to Commissionable Referrals as expressly provided in this Agreement.
(b) Multiple referrals. In the event that two or more authorized representatives of Jazz, for any reason, claim a Commissionable Referral for the same Opportunity, Jazz reserves the right to award the Commissionable Referral to one of the representatives or to divide the fee for the Commissionable Referral among the representatives in such proportions as Jazz determines to be equitable. Jazz’s decision shall be final and binding on all parties involved.
(c) Payment Terms. Unless otherwise agreed by the Parties, commissions with respect to any particular Commissionable Referral shall be deemed earned and payable at the end of the calendar month following the calendar month in which the payment is received (e.g., a commission for a subscription by an Opportunity effective August 20 will be paid on September 30).
5. TECHNICAL ASSISTANCE
5.1. Technical Assistance to Representative. Jazz shall provide Representative with a reasonable amount of training and technical services needed to assist Representative in promoting, supporting and reselling subscriptions to (as applicable) the Jazz Platform. Jazz may from time to time provide Representative with Documentation, marketing, sales and other promotional materials regarding the Jazz Platform and such other materials as Jazz deems advisable to provide Representative to assist Representative to accomplish the purposes of this Agreement (“Jazz Materials”).
5.2. End User Support. End Users shall have access to Jazz’s standard levels of support as applicable depending on the End User’s subscription level, including via telephone, email and the Jazz website. Representative shall promptly respond to all requests for support, questions regarding the operation of the Jazz Platform, and other queries regarding the Jazz Platform that Representative’s customers may submit to the Representative from time to time. If the Representative is unable to fulfill any particular request directly, Representative agrees to promptly direct such requests to Jazz.
6. OWNERSHIP AND INTELLECTUAL PROPERTY RIGHTS
6.1. Ownership of Jazz Platform. As between the Parties, all right, title, and interest (including intellectual property rights) in and to the Jazz Platform (including all Updates, modifications, improvements and enhancements thereto) and the Jazz Materials and the Trademarks (as defined below) shall at all times remain with Jazz. If and to the extent Representative acquires any ownership interest in or to any technology or intellectual property rights in or related to the Jazz Platform or the Jazz Materials, Representative hereby assigns all such interests and rights to Jazz. All rights not expressly granted under this Agreement are reserved to Jazz.
6.2. End User Data. Representative shall not use or share any data or information submitted by an End User via use of the Jazz Platform in a manner that breaches the Terms of Service or Jazz’s privacy policies, including as set forth at www.jazz.co/privacy-policy (or such other successor webpages that Jazz may designate from time to time). Representative shall promptly notify Jazz of any breach of the security measures required to be put in place by law or this Agreement, and shall not do anything by commission or omission that places Jazz in breach of its obligations under any data protection regulation.
6.3. Feedback. If Representative elects to communicate to Jazz suggestions for improvements to the Jazz Platform (“Feedback”), Jazz shall be entitled to use the Feedback without restriction. Representative hereby grants to Jazz a royalty-free, worldwide, irrevocable, perpetual, sublicensable, transferable license to use or incorporate in any manner whatsoever, including into the Jazz Platform, any Feedback.
6.4. Trademark License. Subject to the terms and conditions of this Agreement, Jazz hereby grants to Representative a limited, non-exclusive, non-transferable license (without the right to sublicense) during the term of this Agreement to use the trademarks, service marks, trade names and logos relating to the Jazz Platform (the “Trademarks”) but solely in connection with Representative’s demonstration, marketing and promotion of the Jazz Platform in accordance with this Agreement. Upon Jazz’s request from time to time, Representative shall provide Jazz with samples of each use or proposed use of any Trademarks. Representative agrees that all goodwill generated in connection with such use shall inure to Jazz’s benefit.
6.5. Publicity. Representative hereby grants Jazz a limited, non-exclusive, worldwide right and license to use Representative’s name, trademarks and logos on Jazz’s website and in Jazz marketing materials.
7. TERM AND TERMINATION
7.1. Term. This Agreement shall begin on the Effective Date and, unless earlier terminated in accordance with this Agreement, shall remain in place for a period of one year from the Effective Date (the “Initial Term”), unless sooner terminated in accordance with this Section 7. Thereafter, this agreement shall automatically renew for additional periods of one year each (each such term a “Renewal Term” and together with the Initial Term, the “Term”), unless a written notice (letter or electronic mail) requesting non-renewal (“Non-Renewal Notice”) is submitted by either Party to the other Party not less than 30 calendar days prior to the expiration of the then- applicable Initial Term or Renewal Term.
7.2. Termination for Convenience. Each of Jazz and Representative shall have the right to terminate this Agreement for any reason or no reason, upon thirty (30) days’ written notice to the other Party.
7.3. Termination for Breach. Upon any material breach of this Agreement that is not cured during a thirty (30) day period following written notice thereof from the non-breaching Party to the other Party, the non-breaching Party may, without prejudice to any of its other rights and remedies, terminate this Agreement immediately upon written notice to the breaching Party.
7.4. Effect of Termination. Upon the effective date of any expiration or termination of this Agreement, regardless of cause, (i) all of Representative’s rights to access the Jazz Platform shall immediately and automatically cease (unless and to the extent otherwise agreed by Jazz in writing), and (ii) all licenses and rights to use, demonstrate, market and promote the Jazz Platform granted by Jazz to Representative under this Agreement shall terminate. Notwithstanding any provision herein to the contrary, the provisions of Sections 3.2, 4 (for any accrued commissions or new commissions that may accrue after expiration or termination), 6.1, 6.2, 6.3, this 7.4, and 8 through 11 shall survive the termination or expiration of this Agreement, regardless of cause.
8.1. Jazz Indemnity.
(a) Jazz shall, at its sole cost and expense, defend Representative against any and all claims brought by a third party against Representative alleging that the Jazz Platform infringes any valid U.S. issued patent, or any trademark, copyright, or trade secret of such third party, and Jazz agrees to indemnify Representative and hold it harmless from and against any Losses finally awarded against Representative by a court of competent jurisdiction that may result from any such third party claim. In order for Representative to be entitled to the provisions of this Section 8.1(a), Representative shall promptly provide written notice thereof to Jazz, including a copy of any document relating thereto, not later than five (5) business days after receiving any such claim. Representative shall provide Jazz, at Jazz’s sole expense, with any and all assistance, information and documentation required by Jazz in its investigation, defense, settlement or release of any such action or proceeding, including execution of any document or filing reasonably related thereto.
(b) Jazz shall have no liability or obligation to indemnify for any Losses arising from: (i) use of any version other than the latest commercially available version of the Jazz Platform made available to Representative; (ii) modification of the Jazz Platform by Representative or any third party; (iii) the combination or use of the Jazz Platform furnished hereunder with materials or services not furnished by Jazz; or (iv) any modifications to the Jazz Platform developed with specifications or instructions from Representative (collectively, items (i) through (iv) shall be referred to as the “Excluded Activities”).
(c) In the event the Jazz Platform is held to, or Jazz believes is likely to be held to, infringe or misappropriate any third party intellectual property, Jazz shall have the right at its sole option and expense to: (i) substitute or modify the Jazz Platform so that it is non-infringing, while retaining substantially equivalent features and functionality; (ii) obtain for Representative a right to continue offering the Jazz Platform; or (iii) if neither (i) or (ii) are reasonably practicable as determined by Jazz, terminate this Agreement as to the infringing portion of the Jazz Platform.
(d) JAZZ’S OBLIGATIONS IN THIS SECTION 8.1 SHALL BE ITS SOLE AND EXCLUSIVE LIABILITY TO REPRESENTATIVE, AND REPRESENTATIVE’S SOLE AND EXCLUSIVE REMEDY, WITH RESPECT TO ANY CLAIM OF INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS INVOLVING THE JAZZ PLATFORM.
8.2. Representative Indemnity. Representative shall indemnify, defend and hold Jazz, its officers, directors, employees, shareholders and agents (“Jazz Indemnified Parties”) harmless from and against any and all Losses incurred or suffered by a Jazz Indemnified Party as the result of (a) any acts, omissions or breaches of this Agreement or any other agreements or commitments by Representative, (b) any representation or warranty made by Representative regarding the Jazz Platform that was not specifically authorized under this Agreement or in writing by Jazz or (c) any of the Excluded Activities. Jazz shall provide Representative, at Representative’s sole expense, with any and all assistance, information and documentation required by Representative in its investigation, defense, settlement or release of any such action or proceeding, including execution of any document or filing reasonably related thereto. Representative shall not enter into any settlement or other final resolution that imposes any liability on any Jazz Indemnified Party without Jazz’s prior written consent.
9. WARRANTIES; LIMITATIONS ON LIABILITY
9.1. Mutual Warranties. Each Party hereby represents and warrants that: (a) it has all requisite power and authority to execute this Agreement and to perform its obligations hereunder; (b) the execution, delivery, and performance of this Agreement shall not conflict with its charter or bylaws, or any agreement, order, or judgment by which it is bound; and (c) it has obtained all necessary permits and consents for the performance of its obligations hereunder.
9.2. DISCLAIMERS. EXCEPT AS SET FORTH IN SECTION 9.1 ABOVE, THE JAZZ PLATFORM, THE JAZZ MATERIALS, THE JAZZ PARTNER PORTAL, WEBSITE AND ANY OTHER PRODUCTS, MATERIALS OR SERVICES PROVIDED BY JAZZ ARE PROVIDED “AS IS,” AND JAZZ DISCLAIMS ANY AND ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, WITH REGARD THERETO, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY (INCLUDING MERCHANTABILITY OF COMPUTER PROGRAMS), FITNESS FOR A PARTICULAR PURPOSE, INFORMATIONAL CONTENT, NON-INFRINGEMENT AND SYSTEM INTEGRATION. JAZZ FURTHER DISCLAIMS ANY WARRANTY THAT THE JAZZ PLATFORM WILL MEET REPRESENTATIVE’S OR ANY END USER’S REQUIREMENTS, WILL OPERATE IN ALL THE COMBINATIONS WHICH MAY BE SELECTED FOR USE BY REPRESENTATIVE OR ANY END USER, OR THAT THE OPERATION OF THE JAZZ PLATFORM WILL BE ERROR FREE OR UNINTERRUPTED OR THAT ALL ERRORS WILL BE CORRECTED OR REPAIRED.
9.3. End User Warranties. Except for the limited warranties granted by Jazz to End Users in the Terms of Service, Jazz makes no warranties, representations or commitments to End Users regarding the Jazz Platform, and Representative shall not make any other warranty, representation or commitment to End Users on behalf of Jazz, and in such case Representative shall be solely responsible for any such warranties, representations or commitments to End Users.
9.4. LIMITATIONS OF LIABILITY. IN NO EVENT WILL JAZZ BE LIABLE FOR SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL, RELIANCE OR EXEMPLARY DAMAGES OR FOR ANY LOSS OF PROFITS, LOSS OF DATA OR LOSS OF USE DAMAGES, EVEN IF JAZZ HAS BEEN ADVISED OF THE POSSIBILITY OF THE SAME. THE MAXIMUM LIABILITY OF JAZZ ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR OTHERWISE, SHALL NOT EXCEED THE TOTAL AMOUNT OF COMMISSIONS OR OTHER FEES PAID BY JAZZ TO REPRESENTATIVE DURING THE IMMEDIATELY PRECEDING TWELVE-MONTH PERIOD. The foregoing limitations shall apply even if a remedy set forth herein is found to have failed of its essential purpose.
10.1. Entire Agreement. This Agreement, including all schedules attached hereto, constitutes the complete and entire agreement between the Parties regarding the subject matter hereof, and shall merge and supersede all prior proposals, representations, discussions, commitments and communications between the Parties, oral or written, regarding such subject matter. No terms, provisions or conditions of any purchase order, acknowledgement or other business form that Representative may use in connection with this Agreement will have any effect on the rights, duties or obligations of the Parties, or otherwise modify, this Agreement, regardless of any failure of Jazz to object to such terms, provisions or conditions.
10.2. Governing Law; Dispute Resolution. This Agreement shall be governed by and construed in accordance with the internal laws of the Commonwealth of Massachusetts, without regard to principles of choice of law or conflicts of law. The Parties expressly reject any application to this Agreement of the United Nations Convention on Contracts for the International Sale of Goods. The Parties hereby undertake to use good faith efforts to settle all disputes arising out of or in connection with this Agreement. Failing settlement, all disputes arising out of or relating to this Agreement, or the breach, termination or validity thereof, shall be adjudicated in the state and federal courts having jurisdiction over disputes arising in Boston, Massachusetts and each Party hereby agrees to consent to the personal jurisdiction of such courts. Representative may not bring any suit or action against Jazz for any reason whatsoever more than one year after the cause of action accrued.
10.3. Amendments and Modifications. This Agreement may not be changed or modified except in written addendum approved and executed by authorized representatives of each Party.
10.4. Relationship Of The Parties. Each Party acknowledges and agrees that it is, and shall at all times during the Term be deemed, an independent contractor of the other Party. Neither Party shall have any authority to assume, represent, bind or otherwise create any obligation, express or implied, on behalf of the other Party. Because Representative is an independent contractor, Jazz will not withhold or make payments for social security, make unemployment insurance or disability insurance contributions, or obtain workers’ compensation insurance on Representative’s behalf or provide Representative any benefits that would be equivalent to benefits that Jazz provides its employees. Representative agrees to accept exclusive liability for complying with all applicable local, state and federal laws governing self-employed individuals, including obligations such as payment of taxes, social security, disability and other contributions applicable to Representative’s jurisdiction based on fees paid to Representative, under this Agreement.
10.5. Assignment. Jazz may freely assign this Agreement upon written notice to Representative. Neither this Agreement nor any rights under this Agreement may be assigned, delegated, sublicensed, pledged or otherwise transferred by Representative, in whole or in part, whether de facto, voluntarily, by operation of law, or otherwise, without the prior written consent of Jazz, and any purported assignment without such consent shall be void ab initio.
10.6. Binding Effect. The terms of this Agreement shall be binding upon and shall inure to the benefit of the Parties and to their respective successors and permitted assigns.
10.7. Severability. If any part of this Agreement shall be declared by a court of competent jurisdiction to be invalid, illegal or unenforceable, such declaration shall not affect the validity of any of the remaining provisions, which shall remain in full force and effect as if this Agreement had been executed without including therein any such part or parts that were declared invalid.
10.8. Notice and Communication. Any notice required or permitted to be sent under this Agreement shall be sent to the Representative at the address set forth on the first page of this Agreement, or at such other address as either Party may provide in writing hereunder, by prepaid registered mail, by overnight courier or by personal delivery. All such notices shall be deemed to have been received upon the date actually received, as indicated by a signed receipt or other delivery document.
10.9. Injunctive Relief. Representative agrees that certain breaches of this Agreement by it may result in irreparable harm to Jazz, the extent of which would be difficult and/or impracticable to assess, and where money damages would not be an adequate remedy for that breach, including without limitation infringement of Jazz’s intellectual property rights in the Jazz Platform, exceeding the scope of license grant and breach of confidentiality obligations. Accordingly, Jazz shall be entitled to seek any and all remedies available at law or in equity, including, without limitation, injunctive relief or specific performance.
Unless defined elsewhere in this Agreement, the following terms used in this Agreement shall have the following meanings:
“Commissionable Referral” means an Opportunity approved by Jazz for the purchase a subscription to the Jazz Platform directly by an End User.
“Documentation” means text and/or graphical documentation, whether in electronic or printed format, provided by Jazz to Representative that describes the features, functions and operation of the Jazz Platform.
“End User” means each Representative customer and customer employee who has consented to the Terms of Service and has been authorized by Jazz to use the Jazz Platform.
“Jazz Partner Portal” means the dedicated Representative dashboard available at https://app.jazz.co/app/v2/partner (or such other successor webpages that Jazz may designate from time to time) which is accessible with Representative’s account login credentials.
“Jazz Platform” means the Jazz recruiting solutions software and services that are hosted from servers controlled by Jazz, including any and all Updates thereto.
“Jazz Channel Program Application Form” means an online application located at https://www.jazzhr.com/partners/ (or such other successor webpages that Jazz may designate from time to time).
“Losses” means any and all losses, liabilities, damages, costs, fines, assessments, expenses and other payments, including reasonable attorneys’ fees and court costs arising from a third party claim.
“Opportunities” (and each an “Opportunity”) means third party customers who are referred to purchase subscriptions to the Jazz Platform through a sub-domain of the Website that is co-branded with the names and logos of both Representative and Jazz (the “Sub-domain”). A third party will only constitute an “Opportunity” for purposes of this Agreement if such third party purchases a subscription to the Jazz Platform within sixty (60) days after visiting the Sub-domain for the first time.
“Parties” means Jazz and the Representative.
“Terms of Service” means the terms of service agreement between Jazz and End Users pursuant to which End Users may access and use the services provided under the Jazz Platform, and located at www.jazz.co/terms-of- service (or such other successor webpages that Jazz may designate from time to time).
“Updates” means any and all enhancements, improvements, upgrades, repairs, bug fixes, corrections, patches, new versions and new releases of and to the Jazz Platform during the Term.
“Website” means the site available at www.jazz.co and any successor site, and any other website owned, operated, licensed or controlled by Jazz.