1. ORDERING AND PROVISION OF THE SERVICE
2. Fees. Customer will pay all fees specified in the ordering document. Except as otherwise specified herein or in an ordering document, (i) fees are based on subscriptions purchased and not actual usage, (ii) payment obligations are noncancelable and fees paid are non-refundable, except as otherwise stated in this ToU, and (iii) quantities purchased cannot be decreased during the relevant subscription term. The per-unit pricing during any renewal term may be increased upon notice of different pricing at least 60 days prior to the applicable renewal term.
3. Payment. Customer will pay all fees with credit card, ACH or wire, or other method reasonably acceptable to Canvas. Customer is solely responsible for providing Canvas accurate and complete billing and contact information and for notifying Canvas of any changes to such information. If Customer provides credit card information to Canvas, Customer authorizes Canvas or its agent to charge such credit card for all services listed in the ordering document for the initial subscription term and any renewal subscription term(s). Payment is due upon receipt of an invoice from Canvas.
4. Suspension of Service and Acceleration. If any amount owing by Customer under this or any other agreement for Services is 30 or more days overdue, Canvas may, without limiting its other rights and remedies, accelerate Customer’s unpaid fee obligations under such agreements so that all such obligations become immediately due and payable, and suspend the Services until such amounts are paid in full. Canvas will give Customer at least 10 days’ prior notice that Customer’s account is overdue before suspending Services to Customer.
5. Overdue Charges. If any amount owing by Customer under this or any other Agreement for Services is 30 or more days overdue, then without limiting Canvas’s other rights or remedies under this Agreement, those charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower.
6. Taxes. Customer will pay or reimburse Canvas for all federal, state, and local taxes, including sales, use, gross receipts, VAT, GST, or similar transaction taxes imposed on Customer’s purchase of the Service, unless Customer provides Canvas with a valid tax exemption certificate. All taxes payable by Customer will be separately stated on an invoice and exclusive of the fees. Customer will have no liability for taxes that are statutorily imposed on Canvas which are measured by Canvas’s net or gross income.
1. Use of the Service. Only Customer-designated employees and contractors (each, a “Customer User”) are authorized to use the Service. Customer will use the Service solely for Customer’s internal use and will not provide access to the Service to any third party, except as otherwise permitted in the Agreement. Customer will notify Canvas immediately upon learning of any unauthorized use of the Service or any other breach of security relating to the Service. Customer (a) will designate in writing one (1) Customer User for each seat it purchases; (b) will promptly provide to and maintain with Canvas accurate contact information for each Customer User; and (c) will not, and will not permit a Customer User to, share a Customer User’s access to the Service with any other individual, whether a Customer employee or third party. In the event a Customer User ceases employment, takes any type of leave or vacation, or transfers work function, Customer may, upon prior written notice to Canvas, transfer the Customer User’s seat to a different Customer User. Canvas reserves the right to limit the number of transfers of each seat. Canvas may, in its sole discretion, change, modify, upgrade or discontinue any aspect or feature of the Service in whole or in part. Customer will be responsible for its Customer User’s compliance with this Agreement.
Customer and Customer Users may not (i) copy or reproduce profile or other data by automated means (including crawlers, plugins, or other scraping mechanisms), (ii) rent, lease, loan, trade, sell, or re-sell access to the Service or any related information or data, (iii) override any security feature of the Service, (iv) use the Service to harass, abuse, or harm others or store or transmit infringing, unlawful or tortious material or material in violation of third-party privacy rights, (v) use the Service to violate intellectual property rights of others, including patents, trademarks, trade secrets, copyrights, or other proprietary rights, (vi) modify, copy, or create derivative works based on a Service or any part, feature, function or user interface thereof, (vii) copy content except as permitted herein or in an ordering document, (viii) frame or mirror any part of any Service or content, other than framing on Customer’s own intranets or otherwise for Customer’s own internal business purposes, or (ix) disassemble, reverse engineer, or decompile a Service or content, or access it to (1) build a competitive product or service, (2) build a product or service using similar ideas, features, functions or graphics of the Service, (3) copy any ideas, features, functions or graphics of the Service or (4) determine whether the Services are within the scope of any patent. Customer shall only use the Service in a manner that complies with any and all applicable laws in the jurisdictions in which Customer uses the Service.
2. User Contacts. The Service allows Customer Users to upload email addresses and other information (“User Content”). By uploading User Content, Customer and Customer Users allow (i) Canvas to use that User Content to operate and improve the Service and (ii) other Canvas users to view and share the User Content.
3. License to Canvas. By using the Service, Customer and Customer Users, grant to Canvas a royalty-free, non-transferable (except pursuant to section 9 below) license to use content and data uploaded to the Service for the purpose of providing the Services. Customer represents and warrants that: (i) it owns the content or data posted by it on or through the Services or otherwise has the right to grant the license set forth in this Section 2.c; (ii) the posting and use of content or data on or through the Services does not violate the privacy rights, publicity rights, copyrights, contract rights, intellectual property rights, or any other rights of any person; and (iii) the posting of content or data on the Services does not result in a breach of contract between Customer and any third party.
4. Intellectual Property Rights and Ownership. No right, title or interest in any intellectual property right transfers to the other party, except for the limited rights stated in the Agreement. Customer is not obligated to provide Canvas or its affiliates with any suggestions, enhancement requests, or other feedback about the Service or related technology. However, if Customer does provide any feedback to Canvas, Canvas may use and modify it without any restriction or payment.
5. End User License. The Canvas mobile application and website (the “Software”) may be downloaded and/or used in connection with the use of the Service. Upon downloading and/or using the Software, and during the term of this Agreement, Canvas grants Customer a non-exclusive, non-transferable license to use the Software for recruiting purposes subject to the terms of the ToU. Title, ownership and all rights (including without limitation intellectual property rights) in and to the Software shall remain with Canvas. Customer may not create derivative works of the Software, use the Software for any purpose other than as described herein, reproduce the Software in a manner inconsistent with this provision or the ToU, sell, assign, license, disclose, distribute or otherwise transfer or make available the Software or any copies of the Software in any form to third parties, alter, translate, decompile, reverse assemble or reverse engineer the Software, or attempt to do any of the foregoing, or remove or alter any proprietary notices or marks on the Software, except to the extent any such prohibition is not permitted by applicable law.
The Software is provided with restricted rights. Use, duplication, or disclosure by the U.S. Government is subject to the restrictions as set forth in subparagraph (c)(1)(iii) of DFARS 252.227-7013 (The Rights in Technical Data and Computer Software)or subparagraphs (c)(1) and (2) of 48 CFR 52.227-19 (the Commercial Computer Software - Restricted Rights), as applicable.
6. Handling of Personal Data. If Customer uploads or otherwise provides Canvas with Personal Data (defined below) in connection with its use of the Service (“Customer Personal Data”), then Canvas, in providing the Service, processes Customer Personal Data on behalf of Customer. Customer is the controller of Customer Personal Data and Canvas will process Customer Personal Data (i) in accordance with applicable Data Protection Laws (defined in section 2.F); (ii) in compliance with the written instructions received from Customer including, as applicable, sub-processing as necessary; and (iii) only for the purpose of providing, supporting and improving the Service, using appropriate technical and organizational security measures. “Personal Data” means information about an individual that (a) can be used to identify, contact or locate a specific individual; (b) can be combined with other information that is linked to a specific individual to identify, contact or locate a specific individual; or (c) is defined as “personal data” or “personal information” by applicable laws or regulations relating to the collection, use, storage or disclosure of information about an identifiable individual.
7. Compliance with Laws. The parties will comply with all applicable international, federal, state, provincial and local laws relating to (a) corruption practice, bribery, and acts contrary to the public administration including the US Foreign Corrupt Practices Act of 1977, 15 U.S.C.
§ 78dd-1, et seq.; (b) discrimination against employees or job applicants based on race, color, religion, sex, national origin, veteran status or disability. and (c) the privacy, confidentiality, security and protection of Personal Data including, if applicable, the EU General Data Protection Regulation (“GDPR”) as amended and as implemented in the various European Economic Area countries or any similar and applicable legislation enacted outside of the European Economic Area and security breach notification laws (“Data Protection Laws”).
3. CONFIDENTIAL INFORMATION
1. Definition. “Confidential Information” means any information disclosed by one party (the "Disclosing Party") to the other party (the “Receiving Party”) under the Agreement that (a) if tangible, is clearly marked as “Confidential” or with a similar designation; (b) if intangible, is identified as “Confidential” by the Disclosing Party at time of disclosure and confirmed in writing to the Receiving Party as being Confidential Information; or (c) from the relevant circumstances should reasonably be known by the Receiving Party to be confidential (e.g. pricing, non-public Personal Data, etc.).
2.Exclusions. Confidential Information does not include any portion of the information that the Receiving Party can prove (a) was rightfully known to the Receiving Party before receipt from the Disclosing Party; (b) was generally known to the public on the Effective Date; (c) becomes generally known to the public after the Effective Date, through no fault of the Receiving Party; (d) was received by the Receiving Party from a third party without any confidentiality obligation; or (e) was independently developed by the Receiving Party without breach of this section 3.
3. Limited Use and Non-Disclosure. The Receiving Party will (a) use Confidential Information solely to fulfill its obligations under the Agreement; (b) protect Confidential Information using the same degree of care it uses to protect its own confidential information of a like nature, but in no event less than a reasonable degree of care; (c) not disclose Confidential Information to any third party except (1) to affiliates or employees, consultants, and agents who (i) have a need to know it in order to carry out their obligations under the Agreement, and (ii) are under written confidentiality and non-use obligations at least as restrictive as those stated in this ToU or (2) as required by law; and (d) not modify, reverse engineer, decompile, create other works from, or disassemble any Confidential Information, to the extent applicable, unless authorized in writing by the Disclosing Party.
4. TERM AND TERMINATION
1. Term. This ToU is effective on the date the first ordering document is executed by Customer and Canvas (“Effective Date”) and remains in effect until terminated.
2. Term of Purchased Subscriptions. The term of each subscription shall be as specified in the applicable ordering document. Except as otherwise specified in an ordering document, subscriptions will automatically renew for additional periods equal in length to the expiring subscription term unless either party provides notice of non-renewal at least 30 days prior to commencement of the next renewal term.
3. Termination and Suspension. Either party may terminate this ToU or an ordering document if the other party materially breaches the Agreement and fails to cure the breach within 30 days after receiving written notice of the breach. Canvas may suspend Customer’s access to the Service if Customer is in breach of the Agreement and the suspension will continue for as long as reasonably necessary for Customer to remedy the breach. If all ordering documents under this ToU have expired or been terminated, then either party may terminate this ToU for convenience by providing written notice to the other party.
4. Effect of Termination. Upon expiration or termination of this Agreement for any reason, the rights, licenses and access to the Service granted to Customer under this Agreement will immediately terminate. Termination of this ToU or an ordering document will not relieve Customer from its obligation to pay Canvas any fees stated in an ordering document. If Customer terminates this ToU or an ordering document because of Canvas’s uncured material breach, Canvas will refund a pro-rata share of any pre-paid fees under the applicable ordering document. Customer will notify Customer Users that their access to the Service has terminated. Termination of an ordering document does not terminate this ToU; however, termination of this ToU will result in the immediate termination of all ordering documents. The provisions of this ToU that by their nature extend beyond the termination of this ToU will survive termination of this ToU.
5. NO WARRANTY. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON- INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. CONTENT AND BETA SERVICES ARE PROVIDED “AS IS,” EXCLUSIVE OF ANY WARRANTY WHATSOEVER. EACH PARTY DISCLAIMS ALL LIABILITY AND INDEMNIFICATION OBLIGATIONS FOR ANY HARM OR DAMAGES CAUSED BY ANY THIRD-PARTY HOSTING PROVIDERS.
5. THIRD-PARTY INDEMNIFICATION
1. Indemnification. Canvas will defend and indemnify Customer from and against any third party claim to the extent resulting from or alleged to have resulted from the Service’s infringement of such third party’s intellectual property right. Customer will defend and indemnify Canvas from and against any third party claim to the extent resulting from or alleged to have resulted from the infringement of such third party’s intellectual property right by any content, data or other information uploaded onto Canvas’s system or otherwise provided by Customer.
2. Indemnification Procedures. Each party will notify the other in writing of any third-party claim. The indemnifying party will (a) control the defense of the claim; and (b) obtain the other party’s prior written approval of the indemnifying party’s settlement or compromise of a claim. The indemnified party will (x) not unreasonably withhold or delay its approval of the request for settlement or compromise; and (y) assist and cooperate in the defense as reasonably requested by the indemnifying party at the indemnifying party’s expense.
6. LIMITATION OF LIABILITY
1. Damages Waiver. To the fullest extent permitted by law, neither party, including its respective affiliates, will be liable to the other in connection with the Agreement for lost profits or lost business opportunities, loss of data, or any indirect, incidental, consequential, special or punitive damages.
2. Liability Cap. Neither party, including its respective affiliates, will be liable to the other in connection with the Agreement for an amount that exceeds the total fees paid or payable by Customer to Canvas during the 12-month period before the event giving rise to the liability. Subject to section 6.c.(b), Canvas will not be liable for any unauthorized third-party access to Customer’s content, data, programs, information, network, or systems.
3. Exclusions. The limitations of liability stated in sections 6.a and 6.b do not apply to (a) a party’s liability for fraud, gross negligence or intentional misconduct; (b) a party’s indemnification obligations under section 5; or (c) violation of the other party’s intellectual property.
7. REPRESENTATIONS AND WARRANTIES.
Each party represents and warrants to the other party that: (a) it is duly organized, validly existing and in good standing as a corporation or other entity as represented herein under the laws and regulations of its jurisdiction of incorporation, organization or chartering; (b) it has the right, power and authority to enter this Agreement and to grant the rights and licenses granted hereunder and to perform all of its obligations hereunder; (c) the execution of any ordering document incorporating this ToU by its representative whose signature is set forth therein has been duly authorized by all necessary corporate or organizational action of the party; (d) when any ordering document incorporating this ToU is executed and delivered by both parties, this ToU will constitute the legal, valid and binding obligation of such party, enforceable against such party in accordance with its terms; and (e) it will abide by all applicable federal, state and local laws and regulations with respect to online activities, use of end user data and the products and services offered by each party in connection with this Agreement.
8. GOVERNING LAW.
The Agreement is governed by the laws of the State of New York and any action or proceeding related to the Agreement will be brought in a federal court in the Southern District of New York. Each party irrevocably submits to the jurisdiction and venue of the applicable courts. The prevailing party in any litigation may seek to recover its legal fees and costs.