PLEASE READ THIS SUBSCRIPTION AGREEMENT CAREFULLY. BY SIGNING AN ORDER FORM REFERENCING THIS SUBSCRIPTION AGREEMENT, CLICKING ON THE “I AGREE” BUTTON, OR USING PRODUCTS OR SERVICES DESCRIBED IN THE SUBSCRIPTION AGREEMENT, YOU ARE ACCEPTING AND AGREEING TO BE LEGALLY BOUND BY THE TERMS AND CONDITIONS IN THIS SUBSCRIPTION AGREEMENT.
iCIMS, Inc. (“iCIMS”) and the subscriber identified in the applicable Order Form (“Subscriber”) enter into and agree to be bound by this Subscription Agreement (the “Agreement”).
The capitalised terms below shall have the following meanings for purposes of this Agreement:
1.1 “Affiliate” of a Party means an entity that directly or indirectly controls, is controlled by, or is under common control with that Party, in each case through majority voting power.
1.2 “Candidate” means any person who directly or indirectly enters into the Subscription, a job application or other information related to a job or job opportunity with Subscriber or its Affiliate.
1.3 “Data Security & Privacy Statement” means the Data Security & Privacy Statement that may be accessed through https://www.icims.co.uk/gc.
1.4 “Documentation” means the product functionality descriptions and release notes that may be accessed at https://care.icims.com/s/.
1.5 “iCIMS Content” means the forms, content samples, and other support and informational materials provided by iCIMS for use in connection with the Subscription, as may be modified from time to time by iCIMS.
1.6 “Order Form” means an order form signed by Subscriber and iCIMS and expressly designated as an “Order Form,” including the first Order Form and any renewal or other Order Form.
1.7 “Party” means iCIMS or Subscriber.
1.8 “Subscription” means the iCIMS-hosted software components set forth in an Order Form.
1.9 “Subscriber Data” as used in this Agreement means the electronic data and files entered, imported, uploaded or transferred into the Subscription by Subscriber, its Affiliate, a User, or a Candidate, excluding any iCIMS Content.
1.10 “Support & Maintenance Policy” means the Support & Maintenance Policy that may be accessed at https://www.icims.co.uk/gc.
1.11 “User” means Subscriber’s or its Affiliate’s employee, contractor or agent authorised by Subscriber or its Affiliate to use the Subscription.
2. SUBSCRIPTION AND OTHER PRODUCTS AND SERVICES
2.1 Subscription and iCIMS Content. Subject to the terms and conditions set forth in this Agreement, Subscriber may use the Subscription solely for Subscriber’s and its Affiliate’s own pre-employment and employment purposes, and use the Documentation and iCIMS Content solely to support use of the Subscription under this Agreement. Subscriber may allow its Affiliates and Users to use the Subscription, Documentation and iCIMS Content subject to the same terms and conditions of this Agreement as are applicable to use by Subscriber. Subscriber shall remain fully responsible and liable for the acts and omissions of its Affiliates and Users.
2.2 iCIMS Services. iCIMS shall host, support and maintain the Subscription in accordance with the Support & Maintenance Policy. Updates as defined in the Support & Maintenance Policy are deemed part of the Subscription. iCIMS also shall deliver the implementation, training, consulting and other services set forth in an applicable Order Form.
2.3 Third-Party Products and Services. iCIMS may enable or allow access to products, services and web sites provided by other persons or entities, including the products and services available through iCIMS’ UNIFi Marketplace and other third-party web sites, products and services (each, a “Third-Party Product”). Subscriber is solely responsible for entering into and 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 regarding any Third-Party Product. iCIMS shall have no obligation or liability relating to any Third-Party Product. Except as expressly set forth in an addendum to this Agreement, iCIMS’ sole responsibility for any connector or other link or connection to a Third-Party Product identified in an Order Form is to make the Subscription available to receive and send data between the Subscription and the Third-Party Product in accordance with the Documentation, subject to the usage and other limitations set forth in an Order Form, the Documentation, or an addendum to this Agreement.
2.4 Additional Terms. Certain components of the Subscription or other products or services set forth in an Order Form may be subject to additional terms and conditions as stated in such Order Form or an addendum to the Agreement. The additional terms and conditions set forth in an Order Form or addendum are deemed subject to and incorporated into this Agreement, including those executed prior to the Term (as defined below) of this Agreement, except as otherwise set forth in such Order Form or addendum.
3. SUBSCRIBER RESPONSIBILITIES
3.1 Equipment and Resources. Subscriber is solely responsible for any travel, accommodations, computer equipment, telecommunications, and expenses required for Subscriber or its Users to access or use the Subscription.
3.2 Configuration and Use. Subscriber may not allow any person or entity to use or access the Subscription or iCIMS Content except its Affiliates, Users, and Candidates. Use of the Subscription and iCIMS Content under this Agreement is limited to authorised Users only, and other limitations set forth in the applicable Order Form or Documentation. Subscriber and its Affiliates, and Users shall comply with iCIMS’ Acceptable Use Policy that may be accessed at https://www.icims.co.uk/gc, and shall not authorise its Candidates to violate the Acceptable Use Policy. Subscriber is solely responsible for any configuration of the Subscription and any electronic forms, materials, communications, content and processes selected by Subscriber or its Affiliate or User for use in or in connection with the Subscription. Subscriber is solely responsible for any use of the Subscription by Subscriber or its Affiliate or User, including any recruiting, hiring or employment-related process, action or decision, and shall ensure that any process, action or decision does not violate any law or regulation. Subject to iCIMS’ compliance with Section 3 of this Agreement, Subscriber is solely responsible for and shall ensure that use or disclosure of any Subscriber Data in accordance with this Agreement complies with applicable laws and regulations, including any required notices or consents.
3.3 Certification. Upon reasonable belief that Subscriber has violated this Agreement, with prior written notice from iCIMS, Subscriber shall provide to iCIMS or its representatives access to any information reasonably necessary for iCIMS to verify Subscriber’s compliance with the applicable provisions of this Agreement.
4. SUBSCRIBER DATA
4.1 Data Protection. 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 may update the Data Security & Privacy Statement from time to time in accordance with Section 13.7, provided however, iCIMS shall not make changes to the Data Security & Privacy Statement that materially diminish the protections for Subscriber Data set forth therein. iCIMS in its discretion also may maintain supplemental or additional safeguards.
4.2 Data Use and Disclosure. iCIMS and its Affiliates may use Subscriber Data only for the purpose of providing the Subscription and related services under this Agreement or as otherwise set forth in this Agreement. iCIMS may disclose Subscriber Data to its contractor under a written agreement requiring the contractor to use and disclose the Subscriber Data only for the purposes permitted under this Agreement, and subject to the Data Security & Privacy Statement. iCIMS also may disclose Subscriber Data to Subscriber’s and its Affiliate’s contractors, providers of Third-Party Products, and other third parties, only for purposes of providing the Subscription or as otherwise directed or permitted by Subscriber or its Affiliate or User. Notwithstanding anything to the contrary in this Agreement:
(a) iCIMS may use and disclose Subscriber Data as reasonably necessary to comply with applicable laws and regulations, cooperate with law enforcement agencies, or attempt to prevent or respond to illegal conduct, fraud, abuse, or a threat to the security or integrity of systems or data including the Subscription or Subscriber Data.
(b) iCIMS may derive or create benchmarking, transactional, or performance information, and other forms of statistics or analytics on an aggregated basis that may not reasonably be used on its own to distinguish or trace the identity of a Subscriber or its Affiliate, User, or Candidate (collectively, “Analytics”). iCIMS shall maintain policies and procedures, which may include de-identification, aggregation or other steps, reasonably necessary to prevent Analytics from including information that may be used on its own to distinguish or trace the identity of a Subscriber or its Affiliate, User, or Candidate.
(c) Nothing in this Agreement prohibits iCIMS from using Subscriber Data or the same or similar information that: (i) is or becomes publicly available except through violation of this Agreement by iCIMS; (ii) is or was received by iCIMS from a third party that to iCIMS’ knowledge is not under a confidentiality obligation with respect to the Subscriber Data; or (iii) is or was previously known to or independently developed by iCIMS without use of the Subscriber Data.
4.3 Data Access and Storage. During the Subscription Period set forth in an applicable Order Form, Subscriber may access and download the Subscriber Data in accordance with the Documentation, and iCIMS will provide backups of Subscriber Data if requested and as further agreed by the Parties in writing, including payment of fees for data backups. Backups will be transferred to a secure ftp site or Subscriber hosted ftp site in .csv format, as determined by iCIMS, or in such other manner as is agreed by the Parties. In addition, upon written request by Subscriber no more than ten (10) days following the expiration or termination of this Agreement and payment of all outstanding amounts due under the Agreement, iCIMS shall promptly deliver a copy of the Subscriber Data in a file to an iCIMS secure ftp site or Subscriber-hosted ftp site in .csv format, as determined by iCIMS. iCIMS shall dispose of the Subscriber Data in accordance with the Data Security & Privacy Statement.
4.4 General Data Protection Regulation. The following provision shall be effective as of the effective date of Regulation (EU) 2016/679 of the European Parliament and of the European Council of 27 April 2016 (the “GDPR”):
With respect to the Subscription, iCIMS shall comply with all obligations applicable to it under the GDPR as a Data Processor (as defined in the GDPR), and, further, upon request from Subscriber, shall make reasonable efforts to assist Subscriber in determining how the Subscription may be used in compliance with the applicable obligations of Subscriber under the GDPR as a Data Controller (as defined in the GDPR). Nothing in the foregoing, however, shall be deemed to make iCIMS responsible for Subscriber’s compliance with its obligations under the GDPR as a Data Controller, or liable with respect to Subscriber’s failure to comply with any of those obligations.
5.1 Fees and Expenses. Upon signing an Order Form, Subscriber shall pay the total one-time fees set forth in such Order Form. Unless otherwise set forth in the applicable Order Form, iCIMS will invoice recurring fees in advance, on an annual basis, payable within thirty (30) days of delivery of an invoice. Except as otherwise provided herein, all fees paid under this Agreement are non-refundable.
5.2 Taxes. Subscriber shall be solely responsible for paying any sales, value-added, business use or other similar taxes relating to the Subscription or any other product or service provided by iCIMS, exclusive of iCIMS’ income taxes. The fees listed in an Order Form are exclusive of taxes, and iCIMS shall have the right to invoice taxes together with or separately from the fees payable by Subscriber.
5.3 Purchase Orders. Any terms or conditions in any purchase order or other document issued by Subscriber are void and of no force or effect as between Subscriber and iCIMS. Issuance of a purchase order or other document is not a condition of Subscriber’s payment obligations.
5.4 Overdue Payments. iCIMS may charge Subscriber overdue payment charges on the unpaid balance from the original due date at the rate of the lesser of one and one-half percent (1.5%) per month or the maximum interest charge allowed by law, and may suspend access and use of the Subscription by Subscriber and its Affiliates and Users.
5.5 Invoice Disputes. Any invoice must be disputed prior to when it is due. If within that period Subscriber delivers written notice disputing an invoiced amount and describing the basis for dispute with reasonable particularity, the Parties shall make a good faith effort to confer and resolve the dispute within thirty (30) days of delivery of Subscriber’s notice. If Subscriber has paid all undisputed amounts, and engages in good faith negotiations, iCIMS’ rights under this Agreement to assess overdue payment charges, suspend access to the Subscription, and terminate the Agreement for material breach based on non-payment of the disputed payment, shall be suspended during that thirty (30) day period.
6. TERM AND TERMINATION
6.1 Subscription Period. The Subscription Period under each Order Form begins on the Subscription Start Date (as defined in the applicable Order Form) and ends upon the expiration of the Subscription Period as set forth in the applicable Order Form. Except as otherwise specified in an Order Form, upon expiration of the Subscription Period under an Order Form, Subscriber’s right to access and use the Subscription pursuant to that Order Form expires. iCIMS may require the Subscription Period under any subsequent Order Form to end on the same date as the Subscription Period under the first Order Form (or subsequent renewal), so that all Subscription Periods share the same expiration date, and in such event iCIMS will prorate the fees for the Subscription Period of each Order Form accordingly.
6.2 Term. The term of this Agreement (the “Term”) commences on the last date of signature of the first Order Form and shall remain in effect until the Subscription Periods on all Order Forms have expired or the date of termination of this Agreement under its terms, whichever is earlier.
6.3 Termination for Cause.
(a) Either Party (the “Non-Breaching Party”) may terminate this Agreement upon written notice to the other Party (the “Breaching Party”) if the Breaching Party does not cure its material breach of the Agreement within thirty (30) days of written notice from the Non-Breaching Party stating its intent to terminate and describing the breach with reasonable particularity. Nonpayment by Subscriber of any amount within thirty (30) days of the due date constitutes material breach, subject to the overdue payment resolution procedures set forth in Section 5 above. Reference to the unpaid amount and invoice constitutes sufficiently reasonable particularity for the notice of breach.
(b) iCIMS may terminate this Agreement upon written notice in the event of filing of a petition in bankruptcy of Subscriber, or commencement of a receivership or similar proceeding based on the insolvency of Subscriber.
(c) Termination by iCIMS for material breach will not relieve Subscriber of its obligation to pay all fees that would have otherwise been due had the Agreement not been terminated for breach, and all such fees shall become immediately due.
6.4 Effect of Termination. Upon termination or expiration of this Agreement, all rights and licenses granted by a Party under the Agreement immediately terminate, and Subscriber and its Affiliates and Users shall immediately cease use of the Subscription and iCIMS Content. Termination by either Party will not relieve Subscriber of any obligation to pay fees due for periods prior to termination. iCIMS may provide post-termination or expiration assistance services as further agreed by the Parties in writing, including the fees payable for such assistance. Notwithstanding this Section 6.4, iCIMS may continue to use the Subscriber IP and Subscriber Marks (as defined below) to satisfy its post-termination or expiration obligations or as otherwise set forth in this Agreement or the Data Security & Privacy Statement. Sections 6.4, 8.1, 8.2, 10, 11 and the provisions of Section 13 that by their terms naturally survive shall survive expiration or termination of the Agreement. The Receiving Party’s obligations under Section 7 of this Agreement with respect to Confidential Information received during the Term shall survive: (i) with respect to Confidential Information that constitutes a trade secret of the Disclosing Party, as long as that Confidential Information remains a trade secret; and (ii) with respect to all other Confidential Information, for a period of five (5) years after the expiration or termination of the Agreement.
7. CONFIDENTIAL INFORMATION
7.1 Confidential Information Defined. “Confidential Information” as used in this Agreement means any information that during the Term is disclosed by or on behalf of a Party or its Affiliate (the “Disclosing Party”) to the other Party or its Affiliate (the “Receiving Party”) and at the time of disclosure: (i) is designated in writing as confidential or proprietary; (ii) is designated orally as confidential or proprietary, and embodied by the Disclosing Party in written or other tangible form, including meeting minutes, memos, diagrams, flow charts, and software; or (iii) should reasonably be understood by the Receiving Party to be confidential to the Disclosing Party under the circumstances. Notwithstanding the absence of any designation of confidentiality, the Parties agree that: (a) any Order Form, non-public Documentation, iCIMS Content, specifications regarding the Subscription or its functionality, and Analytics are the Confidential Information of iCIMS; and (b) without limiting any of the rights in Section 4.2, any Subscriber Data is the Confidential Information of Subscriber, subject to the exceptions in Section 7.3 below.
7.2 Obligations. Except as approved by the Disclosing Party in writing, the Receiving Party shall not: (i) use the Confidential Information of the Disclosing Party except to perform or exercise its rights and obligations under this Agreement; or (ii) disclose the Confidential Information of the Disclosing Party to any third party except to the Receiving Party’s Affiliates, contractors, agents, or corporate directors or officers (each, a “Representative”) who are under a duty in substance and effect to use and disclose the Confidential Information only as permitted under this Agreement. The Receiving Party shall be responsible for any use by its Representative of the Confidential Information it discloses to its Representative. Upon termination of the Agreement, each Party shall cease use of, and within thirty (30) days of termination shall destroy or return, all Confidential Information of the other Party, except that: (a) iCIMS may retain Confidential Information of Subscriber as needed to comply with any post-expiration or termination obligation under this Agreement; (b) each Party may retain Confidential Information as required to comply with its obligations under applicable laws or regulations; and (c) Confidential Information may be stored on secured backup media that are destroyed no more than twelve (12) months after the month in which the Agreement terminates or expires.
7.3 Exceptions. Confidential Information does not included any: (i) information which is or becomes publicly available except through any act or omission of the Receiving Party in violation of a duty to the Disclosing Party; (ii) information received by the Receiving Party from a third party that to the Receiving Party’s knowledge is not under a confidentiality obligation with respect to the Confidential Information; or (iii) information previously known to or independently developed by the Receiving Party without use of the Disclosing Party’s Confidential Information. The Receiving Party may disclose Confidential Information in accordance with a subpoena, judicial or other governmental order, or requirement of any law, regulation or the rules of any applicable stock exchange, provided that where legally permissible the Receiving Party must give the Disclosing Party reasonable written notice prior to such disclosure so that the Disclosing Party may, at Disclosing Party’s sole expense, take appropriate action to seek a protective order or injunction and seek confidential treatment for the disclosed Confidential Information.
8. INTELLECTUAL PROPERTY
8.1 iCIMS IP Ownership. As used in this Agreement, “Intellectual Property Right” means any patent application, patent, copyright, moral right, database right, trademark right, trade secret or other intellectual property or proprietary right recognised or enforceable under any U.S., foreign or international law, rule, or regulation. iCIMS retains ownership of and reserves all Intellectual Property Rights in or related to the Subscription, iCIMS Content or Analytics (collectively, “iCIMS IP”). iCIMS does not convey to Subscriber or its Affiliate or User any Intellectual Property Right in any iCIMS IP except for the non-exclusive right to use the Subscription and iCIMS Content as set forth in this Agreement. Subscriber agrees further that iCIMS is free to use and incorporate into iCIMS IP any comment, feedback, review or other input provided by Subscriber or its Affiliate, User, or Candidate, and that such use or incorporation does not create or give rise to any Intellectual Property Right of Subscriber or its Affiliate or User in iCIMS IP.
8.2 Subscriber IP Ownership. Subscriber retains ownership of and reserves all Intellectual Property Rights in or related to the Subscriber Data or any other materials, communications or content that Subscriber or its Affiliate or User supplies for use in connection with the Subscription (collectively, “Subscriber IP”). Subscriber does not convey to iCIMS any Intellectual Property Right in any Subscriber IP, except as set forth in this Agreement.
8.3 Subscriber IP License. Subscriber grants iCIMS a non-exclusive, non-sublicensable right during the Term to use, copy, create derivative works of and display the Subscriber IP to perform its obligations under or as otherwise set forth in this Agreement.
8.4 Subscriber Marks. Subscriber grants iCIMS a non-exclusive, non-sublicensable right, during the Term, to use any Subscriber trademark, service mark or tradename contained in the Subscriber IP or designated by Subscriber for use in the Subscription (the “Subscriber Marks”), to perform under this Agreement, and to identify Subscriber in iCIMS’ customer lists and other marketing and promotional materials and communications referencing Subscriber as a customer of iCIMS. iCIMS shall comply with Subscriber’s written guidelines for trademark usage provided reasonably in advance.
9. WARRANTIES AND LIMITATIONS
9.1 Warranty. iCIMS warrants that during the Term the Subscription will perform materially in accordance with the Documentation. iCIMS’ warranty does not apply to any: (i) Third-Party Product; (ii) use of the Subscription not in accordance with the Documentation, iCIMS’ published policies or this Agreement; or (iii) failure of Subscriber or its Affiliate or User to follow reasonable support or maintenance instructions provided by iCIMS (each of (i), (ii), and (iii) above, an “Excluded Condition”). iCIMS’ sole liability and obligation for breach of warranty will be to use commercially reasonable efforts to promptly repair or replace the Subscription to correct the breach, and the sole remedy of Subscriber is that it may terminate this Agreement upon written notice and receive a refund of any pre-paid but unused amounts if the breach extends for sixty (60) consecutive days or for any one-hundred and twenty (120) days in any three-hundred and sixty (360) day period.
9.2 Limitations. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 9, ICIMS DOES NOT MAKE AND EXPRESSLY DISCLAIMS ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, ARISING AT COMMON LAW, OR OTHERWISE RELATED TO THE SUBJECT MATTER OF THIS AGREEMENT, INCLUDING THE SUBSCRIPTION, ICIMS CONTENT AND ANY SERVICES PROVIDED UNDER THE AGREEMENT. WITHOUT WAIVING THE GENERALITY OF THE FOREGOING, ICIMS DOES NOT MAKE AND EXPRESSLY DISCLAIMS ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, DATA OR SYSTEM INTEGRITY, AVAILABILITY, TIMELINESS, COMPLETENESS, NON-INFRINGEMENT, OR THAT THE SUBSCRIPTION WILL PERFORM WITHOUT INTERRUPTION OR ERROR FREE, AND ANY WARRANTY REGARDING SUBSCRIBER’S USE OF THE SUBSCRIPTION, DATA OR INFORMATION ACCESSIBLE THEREFROM, ANY DECISION MADE USING THE SUBSCRIPTION, UNAUTHORIZED ACCESS TO THE SUBSCRIPTION, OR SUBSCRIBER’S USE OF ANY EQUIPMENT OR SOFTWARE IN CONNECTION WITH THE SUBSCRIPTION. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, ICIMS MAY MAKE CHANGES TO THE SUBSCRIPTION FROM TIME TO TIME, OR THE CORRESPONDING DOCUMENTATION, AND THOSE CHANGES SHALL NOT BE DEEMED TO GIVE RISE TO BREACH OF WARRANTY OR LIABILITY OF ICIMS.
10.1 iCIMS Indemnification. iCIMS shall defend Subscriber and its Affiliates, officers, directors, shareholders and agents (each, a “Subscriber Indemnitee”) from and against any third-party claim, demand, lawsuit or legal action: (i) alleging that the iCIMS IP infringes or violates an Intellectual Property Right of a third party; (ii) arising from iCIMS‘ failure to perform under Section 1 (Data Protection) or 4.2 (Data Use and Disclosure) above; or (iii) arising from iCIMS‘ violation of its obligations under this Agreement with respect to Confidential Information (each of (i), (ii) and (iii), an “iCIMS Indemnified Claim”), and indemnify each Subscriber Indemnitee against any damages, attorneys’ fees, or other costs awarded against it in connection with an iCIMS Indemnified Claim. iCIMS’ obligations under this Section 10.1 do not apply to any Excluded Condition.
10.2 Subscriber Indemnification. Subscriber shall defend iCIMS and its Affiliates, officers, directors, shareholders and agents (each, an “iCIMS Indemnitee”) from and against any third-party claim, demand, lawsuit or legal action: (i) alleging that Subscriber IP or Subscriber Marks infringe or violate an Intellectual Property Right of a third party; (ii) arising from any matter for which Subscriber is responsible under Section 3 (Subscriber Responsibilities) above; or (iii) arising from violation by Subscriber of its obligations under this Agreement with respect to Confidential Information (each of (i), (ii) and (iii), a “Subscriber Indemnified Claim”), and indemnify each iCIMS Indemnitee against any damages, attorneys’ fees, or other costs awarded against it in connection with a Subscriber Indemnified Claim.
10.3 Indemnification Conditions.
(a) As a condition of any Party’s duty to defend or indemnify under this Section 10, the person or entity seeking defense or indemnification must: (i) give the defending and indemnifying Party prompt written notice of the applicable claim, demand, or legal action; (ii) allow the defending and indemnifying Party sole control of the defense and settlement; and (iii) reasonably cooperate in the defense and settlement at the defending and indemnifying Party’s reasonable cost, except that the indemnified person or entity will not be required to make any settlement payment unless the defending and indemnifying Party agrees to include that payment as an indemnified expense.
(b) In the event of any claim, demand, legal action, or notice alleging infringement of iCIMS IP, iCIMS may either: (i) replace or modify the iCIMS IP in whole or in part in a manner that does not materially degrade the Subscription; (ii) obtain a license or other grant necessary to continue to provide the iCIMS IP in accordance with the Agreement, or (iii) terminate the Agreement upon written notice to Subscriber. In such event, iCIMS’ sole liability will be its obligations under Section 10.1 above and a refund to Subscriber of any pre-paid but unused fees.
11. LIMITATIONS OF LIABILITY
11.1 IN NO EVENT WILL ICIMS OR ITS AFFILIATES HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT OR ITS SUBJECT MATTER, WHETHER UNDER ANY THEORY OF CONTRACT, NEGLIGENCE, INTENTIONAL OR UNINTENTIONAL TORT, OR ANY OTHER LEGAL THEORY, FOR: LOST REVENUE, LOST PROFITS, LOST DAMAGES, LOSS OF DATA, LOSS OF USE, ANY CLAIM OR ACTION OF ANY THIRD PARTY (EXCEPT UNDER SECTION 10 (INDEMNIFICATION) OF THIS AGREEMENT), OR ANY INCIDENTAL, INDIRECT, CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES, WHETHER OR NOT ICIMS OR ITS AFFILIATE MAY HAVE ANTICIPATED OR BEEN ADVISED OF SUCH DAMAGES.
11.2 THE TOTAL CUMULATIVE LIABILITY OF ICIMS AND ITS AFFILIATES AND REPRESENTATIVES ARISING OUT OF OR RELATED TO THIS AGREEMENT OR ITS SUBJECT MATTER, WHETHER UNDER CONTRACT, TORT OR ANY OTHER LEGAL THEORY, SHALL NOT EXCEED, IN THE AGGREGATE, THE AMOUNT OF FEES PAID BY SUBSCRIBER IN THE TWENTY-FOUR (24) MONTHS PRIOR TO WHEN THE FIRST OF ANY SUCH LIABILITIES AROSE. IN NO EVENT WILL ICIMS BE LIABLE FOR ANY DAMAGES FOR BREACH OF CONTRACT UNDER THIS AGREEMENT UNLESS SUBSCRIBER FIRST PROVIDED TO ICIMS THIRTY (30) DAYS’ PRIOR WRITTEN NOTICE AND AN OPPORTUNITY FOR ICIMS TO CURE THE BREACH WITHIN THOSE THIRTY (30) DAYS.
11.3 TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE LIMITATIONS IN THIS SECTION 11 SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE.
12.1 During the Term, iCIMS shall maintain the following insurance: worker’s compensation insurance, as applicable; combined single limit automobile liability insurance of at least One Million U.S. Pounds (US$1,000,000); commercial general liability insurance of at least One Million U.S. Pounds (US$1,000,000) per occurrence and Two Million U.S. Pounds (US$2,000,000) in annual aggregate; excess/umbrella liability insurance of at least Seven Million U.S. Pounds (US$7,000,000) in annual aggregate; and technology errors & omissions insurance, including cybersecurity liability, of at least Twenty Million U.S. Pounds (US$20,000,000) per claim and in annual aggregate. iCIMS shall deliver a certificate of insurance evidencing the coverages set forth above no more than thirty (30) days after written request by Subscriber. Neither the requirement to maintain, nor failure to maintain, the specified insurance policies shall relieve iCIMS of its responsibility for its defense or indemnity obligations under Section 10 above or liability for breach of this Agreement.
13. GENERAL TERMS
13.1 Headings. The descriptive headings in this Agreement are for convenience only and are not intended to be part of, or to affect the interpretation of, this Agreement.
13.2 Relationship of the Parties. Both Parties agree that they are independent entities and that nothing in this Agreement creates a partnership, joint venture, fiduciary, agency, or affiliate relationship between the Parties. Each Party is solely responsible for the supervision, management, direction and payment of compensation and benefits to its own personnel.
13.3 Force Majeure. No Party will be deemed in default of this Agreement to the extent that performance of its obligations or attempts to cure any breach are materially delayed or prevented by reason of any event that is beyond the reasonable control of that Party and could not reasonably have been foreseen and protected against by that Party, including any act of nature (including fire, earthquake or natural disaster) or act of government (such as war, terrorism or embargo), provided that the non-performing Party must give the other Party prompt written notice of the event. In the event the delay or nonperformance by iCIMS as described in this Section 3 continues for a period of forty-five (45) consecutive days, Subscriber may elect to terminate this Agreement by written notice no more than thirty (30) days’ after the end of the forty-five (45) day period, and receive a refund of any pre-paid fees for unused portions of the remaining Subscription Period. This Section 13.3 does not apply to payment obligations.
13.4 Notices. Notices required under this Agreement to be in writing must be made by, and notice is deemed to have been duly given when, sent by confirmed email or deposited with an overnight courier with a reliable system for tracking delivery. iCIMS shall deliver any written notice and invoice to the email address listed as the “Bill To Contact” in the most recent Order Form. Subscriber shall deliver any written notice to: firstname.lastname@example.org or iCIMS, Inc., Attn: General Counsel, 101 Crawfords Corner Road, Suite 3-100, Holmdel, New Jersey 07733, USA. Either Party may from time to time change the address for written notices by giving the other Party prior written notice of the change.
13.5 Assignment. Neither Party may assign any of its rights or obligations under this Agreement without prior written consent from the other Party, provided that a Party may assign this Agreement to an Affiliate or successor in interest by merger, acquisition of all stock or of substantially all assets, or reorganisation. Any purported assignment in violation of this paragraph is void and constitutes a material breach of this Agreement. In the event of a permitted assignment, the assigning Party shall provide written notice of the assignment to the other Party. This Agreement inures to the benefit of and is binding on each of the Parties, their successors, permitted assigns, and legal representatives.
13.6 Size and Scale. Subscriber shall give iCIMS written notice of any merger, acquisition (whether of stock or assets), formation of any joint venture or partnership, reorganisation, or other transaction that materially increases the size or scale of Subscriber’s or its Affiliate’s use of the Subscription (collectively, a “Corporate Transaction”). In the event of any Corporate Transaction, or other material increase in Subscriber’s or its Affiliate’s size or scale of use, iCIMS may, by written notice, request that the fees under this Agreement be increased commensurate with the increase in size and scale, and if a written agreement increasing the fees is not entered into by the Parties within forty-five (45) days of delivery of that notice, then iCIMS may terminate this Agreement effective upon sixty (60) days’ prior written notice.
13.7 Documentation and Policy Changes. iCIMS may make changes to the Documentation or any policy referenced in this Agreement, or the hyperlink or other means of access to the Documentation or 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. iCIMS provides a mechanism which may be accessed on https://www.icims.co.uk/gc/ for Subscriber to subscribe to receive email notice of any changes to the policies and procedures listed on https://www.icims.co.uk/gc/. If Subscriber believes that any change creates a materially new obligation of Subscriber, materially degrades the applicable policy, or materially diminishes the Subscription taken as a whole (each, a “Material Adverse Change”), then Subscriber may, within thirty (30) days of iCIMS sending the email notification, object to such Material Adverse Change by delivering written notice to iCIMS. Any objection notice must set forth the basis of the objection with reasonable particularity. In the event of such an objection, the Material Adverse Change will not be deemed effective as to Subscriber for thirty (30) days, and iCIMS and Subscriber shall work together reasonably, and in good faith, to resolve the objection. If within that thirty (30) day period the objection is not resolved and Subscriber delivers a further written notice of objection within ten (10) days of the end of such period, then the Material Adverse Change shall remain ineffective as to Subscriber and iCIMS shall have ten (10) days from iCIMS’ receipt of such further written notice in which to notify Subscriber that the Material Adverse Change will not apply to Subscriber for the remainder of the Term. If iCIMS does not provide such notice within ten (10) days, then Subscriber may terminate this Agreement for convenience if it provides iCIMS with written notice of termination within ten (10) days, with the effective date of such termination to be no later than thirty (30) days from the date of the termination notice.
13.8 Third-Party Beneficiaries. No other person has any rights, interest, or claims hereunder or is entitled to any benefits under or on account of this Agreement as a third-party beneficiary or otherwise.
13.9 Subpoenas. Subscriber shall reimburse iCIMS for its reasonable costs (including but not limited to attorneys’ fees) incurred in connection with any response to a subpoena, judicial or other governmental order, or requirement of any law or regulation requesting or requiring the disclosure of any Subscriber Data.
13.10 Law and Forum. This Agreement is governed by, and will be construed in accordance with, the laws of England and Wales without regard to its conflict of law provisions, the United Nations Convention on Contracts for the International Sale of Goods, or the Uniform Computer Information Transactions Act. Any lawsuit related to this Agreement or its subject matter will be heard only in the courts located in London, England and the Parties hereby submit to the personal jurisdiction of and venue in those courts.
13.11 Rules of Interpretation. It is the intention of the Parties that if a court of competent jurisdiction determines that any provision of this Agreement is unenforceable, the remaining provisions of the Agreement will remain in full force and effect. In the event of any conflict between this Agreement and an Order Form, statement of work, addendum or exhibit, the Agreement will be given precedence, except as expressly set forth in the applicable Order Form, statement of work, addendum or exhibit. Unless explicitly specified to the contrary, the word “including” wherever used herein means “including, but not limited to”.
13.12 Entire Agreement; Amendment; and Waiver. No Order Form, statement of work or addendum to this Agreement is binding on the Parties unless agreed by both Parties in writing. Each binding Order Form, statement of work, and addendum is incorporated into and made part of this Agreement. This Agreement supersedes all prior discussions, statements, representations, and agreements, oral or written, between the Parties relating to the subject matter of the Agreement, and constitutes the entire agreement between the Parties relating to its subject matter. This Agreement may be amended, modified, or supplemented only by a written document signed by an authorised representative of each Party. The failure of either Party, at any time, to enforce any right or remedy available to it under this Agreement or otherwise with respect to any breach or failure by the other Party does not constitute a waiver of such right or remedy with respect to any other breach or failure by the other Party.
13.13 Counterparts. This Agreement may be executed by 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 Agreement.
UK Subscription Agreement 02NOVEMBER2020