ADVANCED COMMUNICATION SUITE ADDENDUM
Subscriber has ordered products or services from iCIMS, Inc. (“iCIMS”) under one or more Order Forms signed by iCIMS and Subscriber (each an “Order Form”). Each Order Form is subject to and governed by the Subscription Agreement entered into by iCIMS and Subscriber (the “Subscription Agreement”). Certain of the products or services ordered by Subscriber are Advanced Communication Services (as defined below). Subscriber and iCIMS hereby enter into this Advanced Communications Suite Addendum (the “ACS Addendum”) to the Subscription Agreement for the purpose of incorporating certain terms and conditions into the Subscription Agreement solely with respect to the Advanced Communication Services, as follows:
1. EFFECT OF ACS ADDENDUM. Solely with respect to any Advanced Communication Service identified in an Order Form, this ACS Addendum is incorporated into and made part of the Subscription Agreement. Except as applicable to the Advanced Communication Service, this ACS Addendum does not modify or amend the Subscription Agreement. Subscriber acknowledges and agrees that this ACS Addendum may be updated from time to time as iCIMS develops new advanced communication oriented product(s) for the iCIMS Advanced Communication Suite, and that any new terms and/or conditions that relate to such new products shall be applicable to Subscriber, to the extent Subscriber purchases new Advanced Communication Services.
2. DEFINITIONS. The capitalised terms defined in the Subscription Agreement shall have the same meanings in this ACS Addendum, except as set forth expressly in this ACS Addendum. Notwithstanding anything to the contrary in the Subscription Agreement, the capitalised terms below shall have the following meanings solely as applicable to the Advanced Communication Service:
2.1 “Advanced Communication Service” means any TextRecruit, TextApply, JobChat or ARI product or service identified by those terms in an Order Form, and any other product or service that an Order Form identifies as being governed by the ACS Addendum.
2.2 “Agreement” means the Subscription Agreement as modified by this ACS Addendum in accordance with Section 1 of this ACS Addendum.
2.3 “Documentation” means any written Advanced Communication Service product specifications and training materials provided by iCIMS to Subscriber.
2.4 “Implementation Service” means the Implementation Services related to an Advanced Communication Service identified in an Order Form.
2.5 “Message Recipient” means any person who, by means of the Advanced Communication Service, receives a message from Subscriber or sends a message to Subscriber (whether such messages are by text or other form).
2.6 “Subscriber Data” means the messages, contact information and other electronic data and files entered, imported, uploaded or transferred into the Advanced Communication Service by Subscriber, its Affiliate, a User or a Message Recipient.
2.7 “Subscription” means the specific Advanced Communication Service and Implementation Service set forth in an Order Form.
2.8 “User” means Subscriber’s employee, contractor or agent authorized by Subscriber to use the Advanced Communication Service.
2.9 To the extent the following terms are defined in the Subscription Agreement:
(a) “Application” and “Programme” each mean the Advanced Communication Service and software embedded therein, together with the Documentation.
(b) “Information Service” means the hosting and provision of the Application.
(c) “Services” means the Information Service and the Implementation Services.
3. ORDER FORMS. Subscriber may permit access to the Advanced Communication Service only by the maximum number of Users set forth in the Order Form. Each User will be assigned a unique user identification name and password (“User ID”) for access to and use of the Advanced Communication Service. User IDs may not be shared or used by more than one User at a time. Use of the Advanced Communication Service is limited to the number of contacts, messages and other categories set forth in the Order Form. iCIMS may impose controls intended to enforce those limitations and may charge Subscriber for any excess use at iCIMS’ then current rates.
4. THIRD-PARTY PRODUCTS AND SERVICES. iCIMS may enable or allow access to products, services, communication channels, and web sites provided by other persons or entities (each, a “Third-Party Product”) to be used with the Subscription. Subscriber is solely responsible for entering into and/or complying with any contractual agreement or other terms and conditions that are required by the provider of any Third-Party Product. iCIMS does not make any representation or warranty regarding or endorsing any Third-Party Product. Except in the case where iCIMS has agreed to provide first-tier support for Third-Party Products to Subscribers, such support is the only obligation iCIMS or its Affiliates shall have with respect to that Third-Party Product, and iCIMS shall have no other obligation or liability relating to any Third-Party Product.
5. SUBSCRIBER RESPONSIBILITIES. In addition to its other responsibilities set forth in the Subscription Agreement, Subscriber agrees as follows:
5.1 Use. Subscriber is solely responsible for any use of the Advanced Communication Service by Subscriber or its User, including any message or other communication sent or received, any recruiting, hiring or employment-related process, action or decision, and any Subscriber Data entered into the Advanced Communication Service, and shall ensure that any message, communication, process, action or decision does not violate any law or regulation. Without waiving the generality of the foregoing, Subscriber agrees as follows:
(a) Subscriber must comply with all laws and regulations governing communications to or from Message Recipients, including the U.S. CAN-SPAM Act, U.S. Telephone Consumer Protection Act (“TCPA”), Canadian Anti-Spam Legislation, S.C. 2010, c. 23, and any other applicable federal, state, local or foreign laws.
(b) Subscriber shall provide all notices and obtain all consents and approvals required to communicate with a Message Recipient. Subscriber may not use the Advanced Communication Service to send unsolicited text messages or other messages (sometimes called “spam”). Subscriber shall ensure that use of the Advanced Communication Service does not generate a number of spam-related or other complaints in excess of industry norms, as determined in iCIMS’ good faith judgment. Subscriber and its Users may not import, access or use any contact lists for which all consents and permissions required by law or regulation have not been obtained, and Subscriber is solely responsible for any importation of, access to, or use of such lists.
(c) Subscriber shall not, and shall not permit any User to: (a) use the Advanced Communication Service to harvest, collect, gather or assemble information or data regarding any job candidate or other person without his or her consent; (b) impersonate any other person or entity, or communicate in any deceptive manner; (c) access or copy any data or information of a job candidate or other person without his or her consent; (d) knowingly interfere with or disrupt the integrity or performance of the Advanced Communication Service or the data contained therein; (e) harass or interfere with another subscriber’s use and enjoyment of the Advanced Communication Service; (f) knowingly interfere in any manner with the operation of the Advanced Communication Service, or the hardware and network used to operate the Advanced Communication Service; (g) or send any message that is slanderous, libelous, defamatory, obscene or offensive.
(d) Both during and after the Term, Subscriber shall maintain a list of and comply with any request by a Recipient or any other person or entity not to receive communications from Subscriber (an “Unsubscribe Request”). iCIMS will make a reasonable effort to identify Unsubscribe Requests from text or SMS Message Recipients, block messages by means of the Advanced Communication Suite Service from Subscriber to those Message Recipients, and communicate those Unsubscribe Requests periodically to Subscriber; provided nothing in the foregoing shall be deemed to relieve Subscriber from its sole responsibility for complying with all Unsubscribe Requests. Further, Subscriber shall ensure that no commercial messages or communications are delivered in violation of any law or regulation.
5.2 Compliance Measures. iCIMS may implement technical or other measures in its discretion to limit or prevent any use of the Advanced Communication Service in violation of Subscriber’s responsibilities under this Section 5 as determined in iCIMS’ good faith judgment.
5.3 Indemnification. In addition to any indemnification obligation set forth in the Subscription Agreement, Subscriber shall defend iCIMS and its direct and indirect parents, subsidiaries and affiliates, and their respective officers, directors, shareholders and agents (each, an “iCIMS Indemnitee”) from and against any third party claim, demand, lawsuit or legal action arising from any matter (i) related to its use of a Third-Party Product with the Subscription, and (ii) for which Subscriber is responsible under this Section 5 (a “Subscriber Indemnified Claim”), and indemnify each iCIMS Indemnitee against any damages, attorneys’ fees, and other costs or expenses awarded against it or incurred by it in connection with a Subscriber Indemnified Claim. This Section 5.3 shall survive the expiration or termination of the Agreement.
6. SUBSCRIBER DATA.
6.1 Data Protection. Notwithstanding anything to the contrary in the Subscription Agreement: iCIMS shall maintain administrative, physical and technical safeguards intended to protect the security, privacy and integrity of Subscriber Data as set forth in the Data Security & Privacy Statement. iCIMS in its discretion also may maintain supplemental or additional safeguards.
6.2 Data Access and Storage. Notwithstanding anything to the contrary in the Subscription Agreement:
(a) The long-term storage and hosting of data with respect to the Advanced Communication Service shall be in the United States; and
(b) During the Subscription Period for the Advanced Communication Service as set forth in an applicable Order Form, Subscriber may access and download the Subscriber Data in the manner provided by the Advanced Communication Service. iCIMS is not required to maintain any Subscriber Data after the applicable Subscription Period. iCIMS shall dispose of the Subscriber Data in accordance with the Data Security & Privacy Statement.
7. WARRANTIES AND LIMITATIONS. As applicable to the Advanced Communication Service, any warranty provided by iCIMS under the Subscription Agreement shall be limited to use of the Advanced Communication Service in accordance with the Documentation and the specific terms set forth in this ACS Addendum, including Section 5 above. ALL WARRANTY EXCLUSIONS, DAMAGE THEORY EXCLUSIONS, AND LIABILITY LIMITATIONS SET FORTH IN THE SUBSCRIPTION AGREEMENT APPLY FULLY TO THE ADVANCED COMMUNICATION SERVICE AND ANY MATTER RELATED THERETO OR ARISING UNDER THIS ACS ADDENDUM.
8. CONFIDENTIAL INFORMATION. The Documentation is deemed part of the Confidential Information of iCIMS as defined in the Agreement.
9. GENERAL TERMS.
9.1 iCIMS Subsidiaries and Affiliates. Subscriber acknowledges and agrees that the Advanced Communication Service may be provided directly by iCIMS, or on behalf of iCIMS by iCIMS’ subsidiary or affiliate, and iCIMS may delegate or subcontract its rights and obligations to that entity in whole or in part; provided that such subcontracting or delegation shall not relieve iCIMS of its obligations or liabilities under this Agreement.
9.2 Documentation and Policy Changes. iCIMS may make changes to the Documentation or any policy referenced in this ACS Addendum, or the hyperlink or other means of access to the Documentation or any policy, except that iCIMS may not make changes to the Data Security & Privacy Statement that materially diminish the protections for Subscriber Data set forth in the policy.
9.3 Counterparts. This ACS Addendum may be executed by reference in an applicable Order Form, or facsimile or other electronic means, and in one or more counterparts, each of which is deemed to be an original but all of which together constitute one and the same ACS Addendum.
Advanced Communication Suite Addendum 30SEPTEMBER2020