PLEASE READ THIS DEVELOPER AGREEMENT CAREFULLY. BY CLICKING ON THE "I AGREE" BUTTON, AND/OR EXECUTING AN ORDER FORM INCORPORATING THIS AGREEMENT, YOU ARE ACCEPTING THE TERMS AND CONDITIONS OF AND AGREEING TO BE BOUND BY THIS AGREEMENT.
iCIMS, Inc. (“iCIMS”) and the partner (“Partner”) set forth on the order form (“Order Form”) submitted by Partner (each a “Party” and collectively the “Parties”) enter into this DEVELOPER AGREEMENT, including all Order Forms and exhibits incorporated herein by reference between the parties, (“Agreement”) for the Term.
In consideration of the obligations, covenants, and agreements set forth below and other valuable consideration the sufficiency of which is hereby acknowledged, the Parties have entered into the Agreement effective as of the last date of signature in the initial Order Form signed by Partner hereunder (“Effective Date”). The Technical Annex, and the Fee Schedule, and the Program Guide, each available at www.icims.com/partner/gc (collectively, the “Additional Documentation”), are incorporated into this Agreement by reference and together herewith constitute the entire understanding of the Parties with respect to the subject matter hereof.
1.1.“Confidential Information” shall mean certain non-public information of the disclosing party or of third parties that is designated as confidential or proprietary and that derives independent value from not being generally known to the public (“Confidential Information”). Confidential Information shall not include: (i) information previously known to or independently developed by the receiving party without reference to Confidential Information, (ii) information which is or becomes publicly known through no act or omission of the receiving party, or (iii) information received from a third party under no confidentiality obligation with respect to the Confidential Information.
1.2 “Include” and variations thereof shall mean “include without limitation” and “including without limitation.”
1.3 “Intellectual Property Rights” shall mean any and all right, title, and interest, including patent applications, patents, copyrights, moral rights, database rights, trademarks, service marks, or trade secrets, and any and all other intellectual property or proprietary rights recognized or enforceable under the intellectual property rights of any country in the world.
1.4 “iCIMS’ Marketplace” shall mean the hosted marketplace management platform iCIMS’ may make available to its partners.
1.5.“iCIMS Materials” shall mean business partner logos, marketing materials, technical materials regarding the iCIMS Subscription, training materials, and other information of iCIMS or of third parties including Confidential Information.
1.6 “iCIMS Property” shall mean, collectively, iCIMS Subscription, iCIMS Software, iCIMS Materials, and the Confidential Information of iCIMS, as well as all materials created by iCIMS, including but not limited to documentation, designs, and/or specifications with respect to any integration, any other proprietary materials, data or information of iCIMS or its subsidiaries.
1.7 “iCIMS Subscription” shall mean the provision of services by iCIMS to an iCIMS subscriber pursuant to a subscription agreement between them, including the provision of the iCIMS Software.
1.8 “iCIMS Software” shall mean the proprietary software included in the iCIMS Subscription including the iCIMS Web Services.
1.9 “iCIMS Web Services” shall mean the ability for iCIMS Subscription to integrate with Partner Software through certain batch files, API’s or web services.
1.1 “Integration” shall mean an integration between iCIMS Subscription and Partner Services via iCIMS Web Services and Partner Web Services as described in the Technical Annex.
1.11 “Losses” shall mean all losses, liabilities, damages and claims, and all related costs and expenses (including reasonable legal fees and disbursements and costs of investigation, litigation, settlement, judgment, interest and penalties).
1.12.“Partner Materials” shall mean business partner logos, marketing materials, technical materials, training materials, and other information of Partner or of third parties including Confidential Information.
1.13 “Partner Property” shall mean, collectively, Partner Services, Partner Software, Partner Materials, and the Confidential Information of Partner, as well as all materials created by Partner, including but not limited to documentation, designs, and/or specifications with respect to any integration, any other proprietary materials, data or information of Partner or its subsidiaries.
1.14 “Partner Services” shall mean the provision of services by Partner to an iCIMS subscriber pursuant to separate agreement between them, including the provision of the Partner Software.
1.15 “Partner Software” shall mean the proprietary software included in the Partner Services including the Partner Web Services.
1.16.“Partner Web Services” shall mean the ability for Partner Services to integrate with iCIMS Subscription through certain batch files, API’s or web services.
1.17.“Subscriber Data” shall mean the electronic data or information submitted by iCIMS's subscribers to the iCIMS Subscription or to the Partner Services, as the case may be.
2. INTEGRATION Arrangement
2.1 Relationship. This Agreement is non-exclusive and either Party may enter into similar relationships with other third parties. Further, each party may, subject to all Intellectual Property and Confidential Information restrictions set forth herein, develop, market, and sell products that compete with the other Party.
2.2 Obligation. Partner agrees to develop the Integration as described in the Technical Annex, as may be updated from iCIMS from time to time.
2.3 Marketing & Promotional Expenses. Each Party will each bear responsibility for the cost of their respective promotional and marketing activities other than as provided for in the Tiers and Categories Schedule under any Master Partner Agreement between the Parties or unless otherwise mutually agreed upon in writing.
2.4 iCIMS Marks. During the Term, Partner is entitled to marketing benefits and resources made available by iCIMS based on the then-current Program Guide. Partner will obtain iCIMS’s written consent for any use of iCIMS Materials used as marketing and promotional materials in connection with this Agreement other than as provided for in the then current Program Guide. iCIMS shall have the right to object to and thereby prohibit the use of its Materials on or in any materials at any time in its sole discretion. For clarity, Partner agrees and acknowledges that other than as explicitly provided herein or otherwise in writing between the parties, Partner obtains no right to promote Partner or the Integration as representing any endorsement or approval by iCIMS of the Integration or the Partner’s services due to having entered into this Agreement or otherwise.
2.5 Partner Marks. During the Term, Partner agrees that iCIMS may refer to Partner as an integration partner of iCIMS and hereby grants iCIMS the right to use Partner’s trademarks, tradenames, and logos in connection with the marketing and promotion of the Integration, iCIMS, iCIMS Subscription or part thereof. iCIMS may also use the experience of Partner and any integrated subscribers and/or users in marketing materials, including whitepapers, case studies, brochures and webcasts.
2.6 Service Level Obligations. Partner represents and warrants the Partner Services will meet or exceed any service level obligations provided for in its agreement with an iCIMS subscriber, and in any case, as between Partner and any iCIMS subscriber, no less than those applicable to iCIMS under iCIMS’ Support & Maintenance Policy available at icims.com/gc
3. OWNERSHIP AND INTELLECTUAL PROPERTY
3.1 Confidential Information. Each Party acknowledges that during the performance of this Agreement it will have access to Confidential Information. Receiving Party agrees to maintain, and shall cause its subscribers, users, employees, agents and subcontractors (as applicable) to maintain the confidentiality of the Confidential Information. Receiving Party shall take commercially reasonable security precautions, at least as great as the precautions it takes to protect its own confidential information, to protect Confidential Information.
3.2 Limited Grant-Back. Subject to the terms and conditions of this Agreement, each Party hereby grants to the other Party a revocable, non-exclusive, non-transferable, non-sublicensable right and license to use the Party’s Materials solely for use by the other Party’s employees and consultants to: (i) develop, maintain, and support the Integration, and (ii) become knowledgeable about the other Party’s Web Services, including in order to assist mutual subscribers. Any rights not expressly granted by the Party to the other Party are reserved by the Party, and all implied licenses are disclaimed.
3.3 Limited Use & Non-Disclosure. Receiving Party shall use the Confidential Information solely in connection with this Agreement. Receiving Party shall not disclose, directly or indirectly, any Confidential Information to third parties except to Receiving Party’s and its affiliates’ officers, directors, employees, consultants, and agents on a need-to-know basis, provided such parties have executed appropriate written agreements sufficient to enable it to comply with all the provisions of this Agreement. Receiving Party may also disclose Confidential Information in accordance with judicial or other governmental order, provided Receiving Party shall give Disclosing Party reasonable notice prior to such disclosure and shall comply with any applicable protective order or equivalent.
3.4 Ownership. Partner or its licensors own all right, title, and interest to Partner’s Property, and iCIMS or its licensors own all right, title, and interest to iCIMS’s Property.
3.5 Security. Within sixty (60) days following the Effective Date and annually upon request thereafter, iCIMS shall have the option to perform a security assessment of the Partner. This review may include the completion of a security questionnaire, providing proof of completion of successful third party audits such as SOC1 (SSAE-16)/SOC2 (or industry-standard successor audit), and any associated policy and process documents. Should iCIMS determine in its sole discretion that Partner’s security processes impose a significant security risk to iCIMS or iCIMS's subscribers, iCIMS may suspend Partner’s access to iCIMS’s systems (and, for any Partner participating in iCIMS’ Marketplace, iCIMS may further remove all Partner-related content from iCIMS’ Marketplace) until any security findings have been remediated to iCIMS’s satisfaction.
3.6 Data Privacy. Partner shall notify all of Partner’s applicable subscribers that their Subscriber Data will be transmitted outside Partner Services, where applicable. Partner is responsible for the privacy, security or integrity of the Integration. Partner represents and warrants that to the extent the Partner Services stores, processes or transmits Subscriber Data, neither Partner nor Partner Services will, without appropriate prior subscriber consent or except to the extent required by applicable law, (1) modify the content of Subscriber Data in a manner that adversely affects the integrity of that Subscriber Data, (2) disclose Subscriber Data to any third party, or (3) use Subscriber Data for any purpose other than providing application functionality to users of the Integration and/or Partner Services. Additionally, Partner agrees that any storing, processing, or transmission of Subscriber Data by Partner will be in compliance with all laws, rules and regulations related to data privacy, including, without limitation, Regulation (EU) 2016/679 of the European Parliament and of the European Council of 27 April 2016 (the “GDPR”), and that any agreement that Partner executes with an iCIMS subscriber shall contain all provisions required by the GDPR.
3.7 Security Breaches. If Partner knows or has reason to believe that any unauthorized access to or disclosure of iCIMS’s Confidential Information has occurred the Partner shall use commercially reasonable efforts to immediately notify iCIMS (within no more than six (6) hours) of such unauthorized access or disclosure. The Partner shall provide the proposed next steps to resolve the breach as well as taking the necessary steps to resolve or address the matter. Partner shall provide iCIMS the final root cause analysis and resolution within one (1) week of resolution.
3.8 Restrictions. Any rights not expressly granted by a Party are reserved by such Party, and all implied licenses are disclaimed. Each Party shall not exceed the scope of the licenses granted. Each Party shall not reverse engineer, decompile, translate, adapt or disassemble, or in any way attempt to reconstruct or discover any source code of any Confidential Information (including the Services or Subscription) by any means whatsoever. Each Party shall not remove any proprietary trademark or copyright markings incorporated in, marked on or affixed to any Confidential Information by the other Party or its licensors. Each Party agrees to notify the other Party immediately of any unauthorized use of any Confidential Information it becomes aware of.
4.1 Fees. Partner shall pay fees as set forth on the Fee Schedule. iCIMS may update the Fee Schedule from time to time, upon written notice to Partner. If such update to the Fee Schedule is not objected to by Partner within fifteen (15) days of such notice, such updates shall be effective (i) in the case of any annual fee described therein, on the next renewal of this Agreement, (ii) in the case of any per integrated subscriber fee described therein, upon such integrated subscriber renewing its corresponding contract with iCIMS, and (iii) otherwise as described at the time of such written notice of update to the Fee Schedule. If within fifteen (15) days of Partner’s receipt of such written notice of update to the Fee Schedule, Partner provides iCIMS with written notice of objection to such update, (i) such update shall not be effective as to Partner, (ii) each Party’s obligation to support any integration for any integrated subscriber and any corresponding per integrated subscriber fee obligations under this Agreement shall expire with each applicable integrated subscriber’s corresponding then current subscription period with iCIMS, and (iii) this Agreement shall terminate upon the expiration of the final integrated subscriber’s then current subscription period with iCIMS, and any applicable annual fee hereunder shall be pro-rated correspondingly.
5. WARRANTIES & COVENANTS
5.1 Standards and Purpose. Partner represents and warrants that its performance of this Agreement shall (i) be provided without material defect in material or workmanship, and consistent with or exceeding generally accepted industry practices and procedures, and (ii) be provided or performed through the use of reasonable care and in a timely, professional and workmanlike manner.
5.2 Compliance With Laws. Partner represents and warrants that its performance of this Agreement shall comply with all state, federal, and international laws and regulations applicable to Partner.
5.4 Ownership and Non-Infringement. Partner represents and warrants that (i) its performance of this Agreement does not and will not infringe or violate any Intellectual Property Rights of third parties, (ii) Partner is the sole and exclusive owner of all Partner Property used in the performance of this Agreement, and (iii) Partner has all rights necessary to grant the iCIMS the rights set forth in this Agreement.
5.5 No Virus. Partner represents and warrants that it will use commercially available software to attempt to detect and prevent any Partner Property from containing any time bomb, worm, virus, lock, drop-dead device, or other similar component of software or electronically stored information that is intended in any manner to (i) damage, destroy, alter, or adversely affect the operation of software, hardware or a service in connection with which any of the Partner Property are used, or (ii) reveal, damage, or alter any iCIMS Property, or any technology of iCIMS’ subscribers.
5.6 Non-Interference. During the Term and for a period of no less than three (3) years thereafter, Partner agrees that, without the prior written consent of iCIMS, it will not, directly or indirectly on its own behalf or as a partner, affiliate, officer, director, stockholder, principal, owner, employee, agent or consultant of any other person or entity: (a) interfere with the business of iCIMS by suggesting to, inducing or persuading any subscriber or supplier to discontinue his or its business relationship with iCIMS; (b) take any action or make any statements that are intended or should reasonably be expected to discredit, demean, or have a material adverse effect on the business of iCIMS; and (c) solicit, hire, induce, persuade, or aid or cooperate with others in soliciting, hiring, inducing or persuading any employee of iCIMS to leave the employ of iCIMS.
5.7 Disclaimer. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, NEITHER PARTY MAKES ANY OTHER REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, NON-INFRINGEMENT, OR INTERFERENCE. IF ANY OF THE EXCLUSIONS SET FORTH IN THIS SECTION IS DETERMINED BY A COURT OF COMPETENT JURISDICTION TO BE UNENFORCEABLE, THEN ALL IMPLIED WARRANTIES AND CONDITIONS SHALL BE LIMITED IN DURATION FOR A PERIOD OF THIRTY (30) DAYS AFTER THE EFFECTIVE DATE, AND NO WARRANTIES OR CONDITIONS SHALL APPLY AFTER THAT PERIOD.
6.1 Indemnity. Partner agrees to indemnify, defend and hold harmless iCIMS, its affiliates and their officers, directors, employees, agents, successors, and assigns, from any Losses related to, arising from, or in connection with any third party claim related to, arising from, or in connection with (i) the actual or alleged breach by Partner of any representation, warranty, obligation, or covenant set forth in this Agreement, (ii) the Integration and/or Partner Software infringing a third party’s Intellectual Property Rights, and/or (iii) Partner's performance of this Agreement.
6.2 No Consequential Damages. Neither party shall be liable to the other for special, indirect, incidental, consequential, or punitive damages or for any form of damages (even if advised of the possibility thereof) other than direct damages arising out of or in connection with this Agreement or the subject matter hereof. Each Party’s total cumulative liability for any and all claims arising out of or in connection with this Agreement shall not exceed, in the aggregate, the greater of Ten Thousand Dollars ($10,000) or the amounts paid or payable to iCIMS under this Agreement. Notwithstanding the foregoing, the limitations of liability in this Agreement shall not apply to limit either Partner’s indemnification obligations under this Agreement or Partner’s payment obligations pursuant to Article 4.
7. TERM AND TERMINATION
7.1 Term. Unless earlier cancelled or terminated as set forth in Section 7.2 or Section 7.3, this Agreement shall commence on the Effective Date and shall remain in full force and effect for a period of one (1) year from the July 1 immediately following the Effective Date (the “Initial Term”) and shall automatically renew for successive one (1) year terms, unless either Party provides to the other Party written notice of its intention to terminate at least ninety (90) days prior to the expiration of the then-current term (each a “Renewal Period” and including the Initial Term, the “Term”). In the event of an expiration or termination of this Agreement other than for Partner’s breach or pursuant to Section 4.1, the Parties agree to support the integration for at least one hundred eighty (180) days following the effective date of such termination, and, at iCIMS’ election, iCIMS may require Partner to support the integration until the expiration of the final integrated subscriber’s then current subscription period with iCIMS.
7.2 Termination for Cause. Either Party may terminate this Agreement on thirty (30) days' prior written notice if the other Party (i) has committed a material breach of this Agreement and has failed, after notice thereof, to cure such material breach within such notice period, or (ii) to the extent allowable by law, should become insolvent, file a voluntary petition in bankruptcy, be adjudicated a bankrupt, have a receiver appointed for the operation of its business, or make a material liquidation of assets. iCIMS may terminate this Agreement immediately upon breach of Article 3 (Ownership & Intellectual Property).
7.3 Survival of Provisions. The Parties acknowledge and agree that the provisions that by their nature survive shall survive termination or expiration of this Agreement. Upon expiration or termination of this Agreement (and any further support obligation pursuant Section 7.1 hereof) for any reason, each Party shall immediately return to the other Party or destroy (at the other Party’s option) any property belonging to the other Party that is in its possession or control (including Confidential Information), and all rights granted to either Party hereunder immediately shall cease to exist. Further, both Parties agree to promptly refrain thereafter from using any Materials of the other Party and take all appropriate steps to remove and cancel its listing in websites, directories, public records or elsewhere, which state or indicate that it is an authorized partner of the other Party.
8.1 Equitable Relief. Each Party acknowledges and agrees that violation of Article 3 (Ownership & Intellectual Property) may cause the other Party irreparable injury not compensable by money damages alone for which the non-breaching Party will not have an adequate remedy at law. Accordingly, the non-breaching Party may seek injunctive or other equitable relief (without posting a bond) to enforce such provisions or to prevent or curtail any breach thereof, threatened or actual. The foregoing shall be in addition to and without prejudice to or limitation on any other rights either Party may have under this Agreement, at law or in equity.
8.2 Assignment. Neither party may assign any of its rights or obligations under this Agreement (in whole or in part) without prior written permission from the other party, provided that a party may assign this Agreement to an affiliate or successor in interest by merger, acquisition or reorganization. Any purported assignment in violation of this paragraph shall be void and constitute a material breach of this Agreement. In the event of a permitted assignment, the assigning party shall provide written notice to the other party. The Agreement shall bind and inure to the benefit of the Parties and their successors and permitted assigns.
8.3 Arbitration. The Parties shall promptly negotiate in good faith to resolve all disputes arising hereunder. Except for the equitable relief provided for in Section 8.1 or any dispute related to Article 3, in the event that a dispute cannot be resolved within thirty (30) days of written notice thereof, such dispute shall, at either Party’s request, be submitted to binding arbitration before a single arbitrator experienced in the software solution and professional services industry administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules then in effect. Any such arbitration proceeding shall be held in Matawan, New Jersey and proceed under the Expedited Procedures of such rules, irrespective of the amount in dispute. The notice of arbitration shall specifically describe the dispute to be submitted to arbitration. The written decision of the arbitrator so appointed shall be conclusive and binding on the Parties and enforceable by a court of competent jurisdiction. The expenses of the arbitration shall be borne equally by the Parties, provided, that each Party shall pay for and bear the cost of its own experts, evidence and legal counsel. The arbitrator shall be empowered to award to the prevailing Party, if any, such Party’s cost and expenses, including the cost and expenses referred to in the preceding sentence. The Agreement shall be governed by the laws of the State of New Jersey, without regard to its choice of law rules or the United Nations Convention on Contracts for the International Sale of Goods. The Parties consent to the exclusive personal jurisdiction and venue of competent state or federal courts residing in the State of New Jersey.
8.4 Additional Documentation. iCIMS may update any Additional Documentation incorporated by reference herein from time to time, provided iCIMS shall provide Partner with commercially reasonable notice (which for purposes of this Section 8.4 may include notice by email) regarding any change that creates an obligation upon Partner or constitutes a material degradation to such Additional Documentation. No such change will be effective as to Partner until thirty (30) days following such notice. If within thirty (30) days of Partner’s receipt of notice thereof, Partner provides iCIMS with written notice of any objection to any such update, such update will not be effective until Partner and iCIMS have reached an agreement with respect to such update. In the event an agreement is not reached within sixty (60) days from Partner’s objection to such notice regarding the update, such update will not go into effect with respect to Partner, and iCIMS may terminate this Agreement for convenience upon thirty (30) days written notice to Partner.
8.5 Counterparts. The Agreement may be executed by facsimile and in one or more counterparts, each of which shall be deemed to be an original, but all of which will together constitute one and the same Agreement. Any and all previous agreements and understandings between the Parties regarding the subject matter hereof, whether written or oral, are superseded by the Agreement. The headings in the Agreement are solely for convenience and in the event of an ambiguity or question of intent or interpretation arises, the Agreement shall be construed as drafted in English without regard to any translations, and as if drafted jointly by the Parties and no presumption or burden of proof shall arise favoring or disfavoring any Party by virtue of the authorship of any provisions of the Agreement. If any provision in an Order Form conflicts with the terms of the Agreement, the terms of the Agreement will control, unless the provision specifically refers to and expressly overrides the conflicting terms of the Agreement.
8.6 Entire Agreement; Waiver; Amendments. This Agreement supersedes in full all prior discussions and agreements (oral or written) between the parties relating to the subject matter herein, and constitutes the entire agreement between the parties relating thereto, and may be modified or supplemented only by a written document signed by an authorized 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.
8.7 Relationship of Parties. Both Parties agree that they are independent entities. Nothing in the Agreement shall be construed to create an employment, partnership, joint venture, or agency relationship between the Parties. Each Party is responsible for the supervision, management and direction of its own employees. Each Party is responsible for the payment of compensation to its employees and for any injury to them occurring in the course of their employment and neither Party shall be responsible for the supervision, management and direction of the employees of the other Party. Unless mutually agreed upon by the Parties in writing, each Party shall be responsible for all of its costs and expenses incurred in the performance of its obligations under this Agreement.
8.8 Judicial Modifications. THE PARTIES INTEND THAT THE AGREEMENT IS VALID AND SHALL BE ENFORCED AS WRITTEN. In the event any provision of the Agreement that for any reason is held to be invalid, illegal or unenforceable in any respect, it shall be enforced, modified, or replaced by another equivalent provision to the extent necessary to render it valid, legal and enforceable under the circumstances and to the extent consistent with applicable law, while reflecting as closely as possible the original intent of the Parties as expressed or implied therein. If, however, such enforcement, modification or replacement is not permissible under applicable law, then it shall be severed from the Agreement. The invalidity, illegality or unenforceability of the provision, or the enforcement, modification, replacement or severance thereof (as the case may be), shall not affect the validity, legality or enforceability of the other provisions of the Agreement, which shall remain in full force and effect.
8.9 Notices. All notices, requests and demands, other than invoices and routine communications under the Agreement, shall be in writing and shall be deemed to have been duly given when delivered, or when transmitted by confirmed facsimile or email (with a copy made available by another means specified in this Section), or one (1) business day after being given to an overnight courier with a reliable system for tracking delivery, or five (5) business days after the day of certified mail, return receipt requested, postage prepaid. Any notice required to be delivered under this Agreement shall be delivered via email, in the case of Subscriber, to the email or office address listed in the most recent Order Form, and in the case of iCIMS, to firstname.lastname@example.org or iCIMS, Inc., Attn: General Counsel, 90 Matawan Road, 5th Floor, Matawan, NJ 07747, U.S.A. Either Party may from time to time change the individual(s) to receive notices under this Section and its address for notification purposes by giving the other prior written notice as provided in this Section of the new individual(s) and address and the date upon which the change will become effective.
8.10Parties Represented by Counsel. The parties represent and state that they are represented by counsel and have been fully informed and have knowledge of the terms, conditions, and effects of this Agreement. The parties further represent and state that no promise or inducement has been made except as is set forth in this Agreement. This Agreement shall be deemed to have been drafted jointly and approved by all parties and their respective counsel. Any ambiguity or uncertainty shall not be construed for or against any party based upon any attribution of drafting to any party.
Developer Agreement 01JULY2018