3. YOUR CONDUCT
(a) You are solely responsible for ensuring that You are in compliance with all obligations related to Your use of the Services. Your responsibilities under these Terms shall not be mitigated, diminished or transferred to JazzHR if, in the context of providing the Services, JazzHR assists with the use of Your computing systems.
(b) You agree to provide JazzHR with accurate and complete Account information. You agree to keep Your password and Your Account details secret, and not to share them with anyone else and to provide for appropriate safeguards to protect the confidentiality of Your Account information and access credentials. If Your Account information changes, You must update Your Account details promptly.
If You purchase the Services through a legal entity such as Your business, or through an authorized partner, other users may have been designated to access, control, and manage Your Account and Your User Data. In no event will JazzHR be liable for any loss of User Data or other claims to the extent such loss or claims are caused by Your noncompliance with these Terms, or any unauthorized access to Your Account caused by actions or inactions outside of JazzHR’s control.
(c) You represent and warrant that (i) You either own or otherwise possess, and have obtained, all rights, approvals, licenses, consents and permissions as are necessary to perform Your obligations hereunder, exercise Your rights hereunder and to grant the licenses granted by You under this Agreement, (ii) the User Data and Your use through the Services, as enabled by You, directly or indirectly, does not, and shall not, infringe, violate or misappropriate any third party’s rights, (iii) You shall comply with all applicable laws, regulations and industry standards, including any data protection, privacy and security laws, (iv) You will give all required notices and appropriate disclosures to all data subjects regarding Your (and any third parties acting on your behalf, such as JazzHR) use, processing and transfer of any personal data (as defined under applicable law), and (v) You will obtain all necessary rights and valid consents from the data subjects to permit use, processing and transfer of personal data by JazzHR for the purposes of its fulfilling its obligations under this Agreement or as may be required by applicable law (including any opt-in consents required under European data protection law).
(d) You agree that, with respect to certain functionality included in the Services that allows You to formulate questions to applicants accessing the Services, You are responsible for all such content or use of those questions or the applicant responses and JazzHR disclaims all liability therefor. Further, to the extent permitted by applicable law, You agree that JazzHR may collect data in an automated manner and make automated decisions, including using machine learning algorithms, about individual users of the Services in order to provide or optimize the JazzHR Services offered and/or delivered, for security or analytics purposes, and for any other lawful purpose; provided, that, You are responsible for obtaining all consents required to allow for such automated decision making.
(e) You must notify privacy@JazzHR.com immediately if You believe there has been unauthorized access to Your Account. JazzHR will notify You in the event You or your User Data have been impacted by a data breach.
3.2. Your Indemnification.
You shall indemnify and hold harmless JazzHR, and its officers, directors, employees, agents, shareholders, affiliates, subsidiaries, suppliers, and licensors, from and against any and all damages, fines, penalties, assessments, liabilities, losses, costs, and expenses (including, but not limited to, attorneys’ fees, expert fees, and out-of-pocket expenses) in connection with Your use of the Services, Your violation of these Terms, any violation of the rights of any other person or entity by You, including, but not limited to, any intellectual property rights, failure to take adequate privacy and security safeguards to protect User Data or access credentials, any misuse or fraudulent use of credit cards, any claims that the Services or any part thereof were used or exported or otherwise shipped or transported by You in violation of applicable laws, rules, and regulations, including, but not limited to, any claim that Your User Data is illegal. You agree not to settle or resolve any such claim in a manner that imposes any fault, liability or obligation on JazzHR without the advance written approval of JazzHR.
3.3 JazzHR Indemnification.
Subject to this Agreement, JazzHR shall: (i) defend You (and if applicable, Your officers, directors and employees) against any third party suit, claim, or demand (each a “Claim”) that alleges the Services used in accordance with this Agreement and the applicable Order infringe any issued patent, copyright, trademark or misappropriation of any trade secret of, such third party; and (ii) pay any court-ordered award of damages or settlement amount to the extent arising from such Claims. Notwithstanding the foregoing, if JazzHR reasonably believes that Your use of Services is likely to be enjoined by reason of any Claims, then JazzHR may, at its expense and in its sole discretion: (i) procure for You the right to continue using the Services; (ii) replace the same with other products of substantially equivalent functions and efficiency that are not subject to any known Claims of infringement; or (iii) modify the Services so that there is no longer any infringement, provided that such modification does not materially and adversely affect the functional capabilities of the Services as set out herein or in the applicable Order. If (i), (ii), and (iii) above are not available on commercially reasonable terms in JazzHR’s judgment, JazzHR may terminate the affected Services and refund to You the Subscription Fees paid by You covering the remaining portion of the applicable Subscription Period for the affected Services after the date of termination. The foregoing indemnification obligation of JazzHR shall not apply: (1) if the Services are modified by any party other than JazzHR, but solely to the extent the alleged infringement is related to such modification; (2) the Services are combined with other non-JazzHR products, applications, or processes not authorized in writing by JazzHR, but solely to the extent the alleged infringement is related to such combination; (3) to the extent the Claim arises in connection with any unauthorized use of the Services, or use that is not in compliance with all applicable laws; (4) to any third party products, processes or materials that are not provided by JazzHR; or (5) to any Claims arising as a result of the content of the User Data. THIS SECTION SETS FORTH JAZZ HR’S SOLE LIABILITY AND YOUR SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY CLAIM OF INTELLECTUAL PROPERTY INFRINGEMENT.
3.4. Acceptable Use.
JazzHR may, immediately cancel Your subscription, disable Your Account and cease providing the Services to You, if You or any Authorized User (or you allow any third party to): (a) harm, disrupt, or otherwise engage in activity that diminishes JazzHR’s brand, Services, computer systems, hardware, or network, (b) misrepresent Your identity, impersonate any person or attempt to gain access to or illegally track any account, computers, or networks related to the Services, without authorization, (c) manipulate a Service in any manner not specified by JazzHR, (d) interfere with any then-current JazzHR policy with respect to appropriate use of the Services, as determined by JazzHR, (e) store, back up, or distribute any illegal or unauthorized files or data, or material protected by intellectual property rights of a third party, unless You own or have appropriate rights to such material, (f) store, back up, or distribute material that contains viruses, Trojan horses, worms, corrupted files, or any material that may damage the operation of the Services or another person’s device, hardware, data, or property, (g) engage in conduct that would otherwise give rise to civil liability, or that constitutes or encourages conduct that could constitute a criminal offense, under any applicable law or regulation, (h) directly or indirectly reverse engineer, decompile, disassemble, modify, reproduce or create derivative works of, frame, mirror, republish, reverse compile, disassemble, download, transmit or distribute, in any form or media or by any means, the Services, (i) merge the Services with other products, software or services, (j) alter or modify any disabling mechanism, (k) willfully render any part of the Services unusable, (l) assign, rent, loan, or otherwise transfer the Services, (m) remove or alter any proprietary notices (e.g., copyright, trademark notices, legends, etc.) received in the provision of the Services, or (n) breach any material provision of these Terms.
3.5. License to User Data.
In general, as between You and JazzHR, You own Your User Data. However, to provide the Services, JazzHR must make copies of User Data to store and transmit User Data at Your direction. For such usage in connection with the Services, You grant JazzHR a non-exclusive, perpetual, worldwide, royalty-free, freely-transferable right to copy, cache, publish, display, perform, distribute, translate and store User Data, and to allow others to do so as JazzHR’s agents solely for the purpose of providing Services and any other activities expressly agreed to by You.