PLEASE READ THESE TERMS AND CONDITIONS OF USE CAREFULLY. BY CLICKING "ACCEPTED AND AGREED TO," CUSTOMER AGREES TO THESE TERMS AND CONDITIONS.
EACH PARTY ACKNOWLEDGES THAT IT HAS READ THIS AGREEMENT, UNDERSTANDS IT, AND AGREES TO BE BOUND BY ITS TERMS, AND THAT THE PERSON EXECUTING ON BEHALF OF EACH HAS BEEN AUTHORIZED TO DO SO.
1. Definitions. The following capitalized terms shall have the following meanings whenever used in this Agreement.
1.1 "Customer Data" refers to data in electronic form input or collected through the Service by or from Customer, including without limitation by Customer's Users and TestTakers.
1.2 "Employee" refers to any personnel within Customer's organization, including full-time employees, part-time employees, interns, volunteers, and independent contractors.
1.3 "Free Trial" refers to no-charge use of the Service for purchase consideration only. Free Trials do not include use of the Service with actual job applicants.
1.4 "Order" refers to Customer's order for the Service (a) submitted via the Service online ordering system, email from Customer, fax from Customer, or otherwise, and (b) accepted by Provider, as recorded by the Service's computer systems.
1.5 "Service" shall mean Provider's web-based pre-employment testing subscription service which includes HireSelect® (Provider's web-based pre-employment testing service) and Provider's customer service and technical support. The Service includes such features as are set forth on Provider's website https://www.criteriacorp.com, as Provider may change such features from time to time, in its sole discretion.
1.6 "TestMaker Tests" and "TestMaker Content" shall mean any and all content that is uploaded to the TestMaker section of the Service by or for Customer for use as Customer-created tests or surveys.
1.7 "TestTaker" means an individual, not an Employee, who uses the Service to take tests at Customer's direction or request.1.8 "User" shall mean any individual, Employee, or other agent who uses the Service on Customer's behalf. Any individual or entity who is, or plans to become, a competitor to Provider, is prohibited from using the Service as that would be a violation of Section 4.9 (Technology Restrictions) in addition to the Criteria Corp Acceptable Use Policy (https://www.criteriacorp.com/aup.htm).
1.9 "Test(s) " shall mean all Provider's provided tests, assessments, and surveys administered through the Service with the exception of TestMaker Tests and TestMaker Content.
1.10 "Test Response Data" or "TRD" shall mean all TestTaker's responses to Tests.
1.11 "Optional Data" or "OD" shall mean TestTaker's voluntary provision of certain demographic data.
1.12 "Personally Identifiable Information" or "PII" shall mean information provided by a TestTaker that can be used to identify, contact, or distinguish the TestTaker. Name and email are examples of PII.
2. Service in General. Provider shall provide the Service to Customer according to Provider's then-current standard policies and procedures.
2.1 Free Trials. Customer is limited to a single Free Trial, and Free Trials are limited to twenty tests, such tests not to be used with job applicants or candidates. Customer shall not (a) exceed the limits in the preceding sentence or (b) use Free Trials to screen any new Employee, job applicant, or candidate. Provider may discontinue a Free Trial, and access thereto, at any time and for any reason.
2.2 Use of Information. (a) Provider shall use PII and TRD to create score reports and other analyses for Customer's use. (b) Provider shall use TRD and OD for item analysis and to further refine and validate normative data. (c) With the exception of PII, which may only be used by Provider in accordance with Section 7.3 below, Provider shall have the right to use, distribute, publicize, sell, and otherwise exploit TRD as well as OD (in aggregate anonymized form only). (d) Notwithstanding any of the foregoing, Customer will have the choice at any time to opt out of granting Provider the right to share Customer's job opportunities by changing the settings in Customer's online account or by notifying Provider in writing pursuant to the procedures in Section 5.1 that such information is Customer Confidential Information.
2.3 Data Management. Provider shall use reasonable commercial efforts to retain all Customer Data. Notwithstanding the foregoing, (a) Provider shall have no liability for erased or otherwise lost Customer Data, including for any damages resulting directly or indirectly from such loss; and (b) Provider may permanently erase Customer Data if Customer's account is delinquent or suspended for 30 days or more, or terminated.
2.4 Communications. Customer shall make certain that both the "Bill To" and "Ordered By" e-mail contact information provided to the Service are accurate because the Service sends automated invoices and dunning emails using this contact information.
2.5 Service Purposes & Capabilities. Customer recognizes and agrees that: (a) the Service is for business use and not for consumers; and (b) the Service is not intended to store or use protected health information, as defined by the Health Insurance Portability and Accountability Act of 1996 and its enabling regulations and related laws ("HIPAA"), and the Service is not HIPAA compliant.
3. Pricing & Payment. Customer shall pay Provider the applicable fees set forth in the Order. All payments shall be paid in full, in U.S. dollars, without any deductions, of any kind, whatsoever. Customer will pay any and all applicable levies, customs and duties, or taxes imposed by any governmental authority pertaining to the Order. In the event that Customer is prohibited by applicable law from making payments hereunder free of taxes, VAT, deductions or withholdings or whether such taxes are charged by Provider, then Customer will pay such additional amounts to Provider as may be necessary in order that the actual amount received after deduction or withholding (and after payment of any taxes, additional taxes or other charges payable as a consequence of the payment of such additional amount) will equal the amount that would have been received by Provider if such tax, VAT, deduction or withholding were not required.
3.1 Start of Fees. At any time before, during, or after the Free Trial period, upon acceptance of customer's order (creating the Order) the Provider may invoice Customer for fees.
3.2 Information Accuracy. Customer recognizes and agrees that: (a) the Service is priced using algorithms that estimate usage based upon tests used, positions hiring, and Customer Employee count; and (b) such Employee count may only exclude independent contractors if the Service will not be used to test, screen, hire, or otherwise address independent contractors. Customer shall provide Provider with complete and accurate information regarding its number of Employees, as well as complete and accurate billing and contact information. Because the Service is designed as an unlimited testing service, in the event that Customer's testing administrations substantially exceeds usage expectations for its service level pricing tier, Provider shall have the right to suspend Customer's account.
3.3 No Refunds/Cancellations. The Order is non-cancellable, and neither prepaid fees nor any other fees are refundable under any circumstances.
3.4 Reinstatement Fees. Provider may charge a $100 fee to reinstate suspended or terminated Service account, in addition to Provider's other rights and remedies.
3.5 Credit Cards. Provider represents that it uses a third-party payment gateway processor for its credit card processing and that such third party has asserted that it is compliant with the Payment Card Industry Data Security Standard (PCI DSS). Provider is not required to store Customer's credit card numbers. If Customer attempts to pay with a credit card and payment is declined or there is an account balance due, Provider may have the credit card processor charge the card again.
3.6 Acquisition or Merger. In the event of an acquisition, merger, capital injection, investment, or other factor that substantially changes Customer's employee count by more than 10% but is not a result of normal hiring, Provider shall have the option to change Customer's subscription fee mid-subscription term.
4. Customer's Responsibilities & Restrictions.
4.1 Users. Customer is responsible and liable for Users' use of the Service, including without limitation any User conduct that would violate the AUP (as defined in Section 8.1) or the requirements of this Agreement applicable to Customer.
4.2 Content Rights. Customer shall not reproduce, distribute, or disclose to third parties any tests or test answers provided through the Service. Customer acknowledges and agrees that tests and other content in the Service are protected by copyright and other laws and are Provider's trade secrets and Confidential Information (as defined below in Section 5.1) and that unauthorized distribution, disclosure, or other use would reduce or destroy their validity, usefulness, and value and cause Provider substantial damage, including but not limited to harm to Provider's reputation.
4.3 Hiring Practices. Customer acknowledges and agrees that:
(a) test scores should be only one element of a comprehensive applicant evaluation process; (b) Customer should become familiar with the Uniform Guidelines on Employee Selection Procedures ("UGESP") issued by the U.S. Equal Employment Opportunity Commission ("EEOC") to help avoid cultural bias and unfair discrimination and to make certain that only job-related selection techniques will be used in hiring job applicants; (c) use of tests for evaluation of applicant honesty or integrity is unlawful or restricted in some jurisdictions and Customer shall not use honesty or integrity testing where prohibited or forbidden by applicable law; (d) Customer, not Provider, is responsible for making reasonable testing accommodations for Users as required by applicable law, including, without limitation, the Americans with Disabilities Act of 1990 and any relevant EEOC regulations and if it is unable to do so it will promptly notify Provider in writing at Criteria Corporation, 750 N. San Vicente Blvd., Suite 1500 E. Tower, West Hollywood, CA 90069, Attn: Chief Operating Officer or via email to Help[at]Criteriacorp.com, Subject: Accommodations Request; (e)Customer recognizes and agrees that: (i) Provider is not involved in any communications between Customer and TestTakers regarding TestTakers' employment with Company or any other related topic and Provider has no role in determining, or control over, the legality, quality, or propriety of Customer's hiring practices; (ii) the Service does not contain psychological or medical tests and are not intended to be used as such and (iii) the subject-matter of Subsection 4.3(e); (i) above is solely in Customer's control and Customer is solely responsible and liable for such subject-matter; (f) Customer, not Provider, is responsible for rules relating to unions and if Customer is a government entity, compliance with special laws related to government entities; and (g) PROVIDER SHALL HAVE NO RESPONSIBILITY OR LIABILITY FOR CLAIMS OR LOSSES ARISING OUT OF OR RELATED TO CUSTOMER'S HIRING PRACTICES, INCLUDING WITHOUT LIMITATION CUSTOMER'S BREACH OF THIS SECTION 4.3.
4.4 Data Accuracy. Customer assumes sole responsibility for the accuracy of data uploaded to the Service by Users, and Provider shall have no responsibility or liability for the accuracy of such data.
4.5 Unauthorized Access. Customer shall take reasonable steps to prevent unauthorized access to the Service, including without limitation by protecting its log-in passwords and other information. The steps required in the preceding sentence shall be no less extensive than Customer takes to protect its accounts and other information of similar sensitivity. Customer shall notify Provider immediately of any known or suspected unauthorized use of or access to the Service and shall use best efforts to stop said breach or access.
4.6 Employment and Recruiting Agencies. Customer shall not use the Service to facilitate hiring or retention of Employees by any person or entity other than Customer itself for its own internal needs, unless it has clearly identified itself to Provider as an employment agency and has Provider's prior written consent. "Employment Agency" refers to a recruiting firm, recruiting or employment consultant, employment agency, or other person or entity in the business of assisting with recruiting or hiring. Customer (a) recognizes and agrees that Provider uses a different subscription pricing model for Employment Agencies, (b) shall notify Provider of any and all increases in its internal staff as well as any mergers or acquisitions with or by other Employment Agencies, and (c) acknowledges and agrees that, due to the nature of the business of Employment Agencies and the variability in its existing and future client's needs, testing expectations are imprecise; therefore Provider reserves the right to adjust an Employment Agency's pricing or limit its testing during a Service subscription term.
4.7 TestMaker Content. Customer represents and warrants that TestMaker Content will not contain material subject to other third party proprietary rights, including without limitation copyrights, unless Customer has first obtained all necessary legal permission(s) for use with the Service. Customer shall notify Provider in writing of all third-party content and of any claims made against or relating to TestMaker Content or its use.
4.8 PII. (a)Customer acknowledges and agrees that Customer Data may contain information about identified or identifiable natural persons ("personally identifiable information" or "PII"). When collecting or uploading any PII, Customer shall abide by all applicable privacy and data protection laws. Customer is responsible for determining the Service's suitability for use with data regulated by the Gramm-Leach-Bliley Act, HIPAA, and other privacy-related law and regulations, and Provider is not responsible or liable for any incorrect determination. (b) Provider shall maintain reasonable administrative, physical, and technical safeguards designed to protect any PII uploaded by the Customer to the Service or collected by Provider on Customer's behalf ("Customer PII"). Those safeguards will include measures for preventing unauthorized access, use, modification, deletion and disclosure of Customer PII by Provider's personnel. Before sharing Customer PII with any of Provider's third-party service providers, Provider shall ensure that the third party maintains, at a minimum, reasonable data practices for maintaining the confidentiality and security of Customer PII and preventing unauthorized access. In the event Provider has a reasonable, good faith belief that an unauthorized party has accessed Customer PII, Provider will promptly notify Customer and will use reasonable efforts to cooperate with Customer's investigation of the incident. If such incident triggers any third-party notice requirements, Customer (not the Provider) shall be solely responsible for the timing, content, cost and method of any such notice and compliance with applicable laws. Customer (not Provider) bears sole responsibility for adequate security, protection and backup of Customer Data when in Customer's or its representatives' or agents' possession or control. Provider is not responsible, and Customer is fully responsible, for what Customer's Users do with Customer PII. (c) Without prejudice to the generality of the foregoing, if Customer is established in the European Economic Area, or any of the Customer Data contains the personal data of individuals in the European Economic Area, to the extent that Provider acts as a processor in respect of that Customer Data, Provider will process any such personal data in accordance with the Data Protection Addendum (https://www.criteriacorp.com/dpa.htm), which will be supplemental to the Agreement. For the purposes of this Section, the terms "processor", "process" and "personal data" have the meanings given to them in Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data.
4.9 Technology Restrictions. Customer, and its Users, shall not: (a) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make the Service or its content available to any third party without Provider's express written consent; (b) modify or make derivative works based upon the Service or its content; (c) share non-public Service features or content with any third party; or access the Service in order to build a competitive product or service, to build a product using similar ideas, features, functions or graphics, or to copy any ideas, features, functions, graphics, or source code of the Service; (d) reverse engineer, decompile, disassemble or otherwise attempt to derive the source code, techniques, processes, algorithms, know-how or other information from the Service, including but not limited to the binary code portions of the Service (collectively, "Reverse Engineering") or permit, encourage, or induce the foregoing; (e) use the Service to send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or that violates third party privacy rights; or (f) interfere with or disrupt the integrity or performance of the Service or the data contained therein.
4.10 Risks Related to TestTakers. Customer recognizes and agrees that: (a) Provider has no control over or the truth or accuracy of information provided by TestTakers through the Service, TestTakers' integrity in completing tests provided through the Service or otherwise, or TestTakers' ability to perform any job responsibility; and (b) doing business and communicating through the Service and via the Internet in general involves inherent risks, including without limitation risks of physical harm, harassment, and defamation, as well as hacking and other malicious use of computers. Without limiting the generality of the foregoing, Provider makes no representation regarding any of the subject-matter of the preceding sentence, and Customer assumes all risks related to such subject-matter.
5. Confidential Information.
5.1 Confidential Information Defined. "Confidential Information" is: (a) the tests, related testing materials, and other content provided through the Service; (b) any pricing or non-standard terms that Provider has offered; (c) business and marketing plans, technology and technical information, product plans and designs, and business processes; and (d) any other information Provider provides to Customer and either marks "Confidential" or and orally designates as "Confidential." Customer's "Confidential Information" refers to (e) Customer's non-public hiring plans. Customer may propose additional Confidential Information by providing a non-confidential written summary thereof, and such information will be Customer's Confidential Information if Provider accepts in writing such proposed disclosure. Except as set forth in Subsection 5.1(e) above, Customer information disclosed without a summary and acceptance pursuant to the preceding sentence is not Customer's Confidential Information. Notwithstanding the foregoing, Confidential Information does not include information: (i) in the receiving party's ("Recipient's") possession at the time of original disclosure, without obligation of confidentiality; (ii) independently developed by Recipient without use of or reference to the disclosing party's ("Discloser's") Confidential information; or (iii) that becomes known publicly, before or after disclosure, other than as a result of Recipient's improper action or inaction.
5.2 Nondisclosure Obligations. Recipient shall not use Discloser's Confidential Information for any purpose other than to facilitate use and provision of the Service as provided herein. Except as specifically authorized in writing in advance by Discloser and as set forth in the next sentence, Recipient shall not disclose Discloser's Confidential Information to any third party and shall take precautions to prevent unauthorized release, consistent with the precautions it takes to prevent release of its own confidential information of similar nature, but not less than reasonable precautions. Recipient may disclose Discloser's Confidential Information to its Employees who need to know in order to facilitate the purpose of disclosure, provided each such Employee is subject to a reasonable nondisclosure agreement with Recipient. However, Recipient may disclose Discloser's Confidential Information as required by applicable law or by proper legal or government authority, provided it gives Discloser advanced written notice reasonably sufficient to obtain a protective order or otherwise to contest such required disclosure and reasonably cooperates in any such effort. Recipient shall promptly notify Discloser in writing of any known misuse or misappropriation of Discloser's Confidential Information. Upon termination of this Agreement or upon Discloser's written request, Recipient shall return Discloser's Confidential Information and certify, in writing, the destruction of any copies thereof.
5.3 Applicant Tracking Systems and other Integrations. In the event that Customer requests integration of the Service with an Applicant Tracking System or other system used by Customer ("ATS"), Customer acknowledges and agrees that Confidential Information may be shared with such ATS and that Provider has no control over use of any Confidential Information by such ATS.
6. SLA / Service Level Agreement.
6.1 Service Level. The "Service Obligation" means that the Service will be operational and available to Customer at least ninety-nine and one-half percent (99.5%) of business hours (6:00 a.m. - 5:00 p.m. Pacific time zone, "Business Hours") during any calendar month (subject to the provisions of this Article 6). If Provider does not meet the Service Obligation during any calendar month, Provider shall extend the Term (as defined in Section 12.1) in an amount equal to the period during which Provider did not meet the Service Obligation (the "Service Interruption"), plus an additional five (5) days, without additional charge (collectively, the "Extension"). The Extension will apply only if Customer notifies Provider within forty-eight (48) hours of such Service Interruption by email to "accounting at criteriacorp.com" (or to such other address as Provider may designate), with the email subject being "HireSelect Service Interruption." The additional five (5) days will apply to no more than one (1) Extension per calendar month.
6.2 Sole Remedy. This Article 6 provides Customer's sole and exclusive remedy for any failure of the Service to perform as expected or required, even if such remedy fails of its essential purpose. The Extension may not be exchanged for refunds or other monetary amounts.
6.3 Maintenance. Provider shall exercise reasonable efforts to schedule Service upgrades and routine maintenance (collectively, "Maintenance") outside of Business Hours. Neither Maintenance nor events beyond Provider's reasonable control will count toward Service Interruptions or breaches of Provider's obligations, and neither will authorize an Extension or other remedy. (As used in the preceding sentence, "forces beyond Provider's reasonable control" include, without limitation, Force Majeure as defined in Section 13.5 below, failures of Internet backbone providers, and acts or omissions of third parties that are not Provider's vendors or agents.) Provider shall notify Customer of Maintenance as early as commercially reasonable via a posting on the Service.
7. Content & IP.
7.1 Provider Content. Customer recognizes, acknowledges, and agrees that: (a) all content on the Service, including but not limited to tests and test items, are the property of Provider or its licensors and are protected by copyright, trademark, trade secret, and other intellectual property laws, provided the foregoing does not apply to Customer Data, TestMaker Tests, or TestMaker Content; and (b) Customer does not acquire any right, title, or interest in or to any such content.
7.2 Customer Content. Provider is hereby authorized to use TestMaker Tests and TestMaker Content to provide the Service to Customer.
7.4 Aggregate & Anonymized Data. Notwithstanding any terms to the contrary in this Agreement, Provider may use, reproduce, sell, publicize, or otherwise exploit in any way and in its sole discretion, Customer Data with the following removed: PII and the names and addresses of Customer and its Users.
7.5 Ownership of the Service. (a) Subject to all applicable laws and regulations, Customers, whose accounts are in good standing, shall have the right to view, download, and retain TestTaker results and score reports provided to it by the Service. (b) Provider retains all right, title, and interest in and to the Service, TRD, and OD, including, without limitation, all software used to provide the Service and all logos and trademarks reproduced through the Service (other than Customer's logos as applicable). (c) This Agreement does not grant Customer any intellectual property rights in or to the Service or any of its components. (d) Without limiting the generality of the foregoing, this Agreement does not grant Customer a software or trademark license.
8. Online Policies.
8.1 AUP. Customer shall comply with Provider's acceptable use policy currently posted at https://www.criteriacorp.com/aup.htm (the "AUP"). In the event of Customer's material breach of the AUP, including without limitation copyright infringement and Users' violations, Provider may suspend or terminate Customer's access to the Service, in addition to such other remedies as Provider may have. Neither this Agreement nor the AUP requires that Provider take any action against Customer or any User or other third party for violating the AUP, but Provider is free to take any such action it sees fit.
9. Representations & Warranties.
9.1 From Customer. Customer represents and warrants that: (a) it has accurately identified itself, it has not provided any inaccurate information about itself to or through the Service, and it will update all such information to maintain accuracy; (b) it is a corporation, the sole proprietorship of an individual eighteen (18) years or older, or another entity authorized to do business pursuant to applicable law; (c) it will use the Service for business purposes and not for personal, family, household or other consumer purposes; (d) it has the full right and authority to enter into, execute, and perform its obligations under this Agreement; (e) no pending or threatened claim or litigation known to it would have a material adverse impact on its ability to perform as required by this Agreement; (f) it owns or has obtained all necessary licenses, rights, consents, and permissions to use all TestMaker Content; (g) its use of the Service is in compliance with all applicable laws and regulations, including without limitation, federal, state and local employment and anti-discrimination laws; (h) the TestMaker Content does not and shall not include any Protected Health Information, as defined by HIPAA; and (i) it shall comply with all applicable laws if it seeks and/or obtains a consumer report, investigative consumer report, or other background report on any User, and Customer recognizes and agrees that Provider is not a consumer reporting agency, and to the limited extent Provider may assist it to obtain any such report, Provider does so only as its agent and not for any purpose of Provider..
9.2 As Is. Customer understands and expressly agrees that neither Provider nor the Service provides any professional or employment-related advice and that Customer bears all risks associated with using or relying on content provided or data collected through the service. THE SERVICE IS PROVIDED "AS IS," AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, PROVIDER, ITS AFFILIATES, LICENSORS, THIRD-PARTY CONTENT OR SERVICE PROVIDERS, DISTRIBUTORS, DEALERS, AND SUPPLIERS (COLLECTIVELY "SUPPLIERS") DISCLAIM ALL GUARANTEES AND WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, REGARDING THE SERVICE AND RELATED MATERIALS, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, TITLE, MERCHANTABILITY, OR NON-INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS, OR ANY WARRANTY ARISING FROM STATUTE, COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE.
9.3 Additional Disclaimers. WITHOUT LIMITING THE GENERALITY OF THE PROVISIONS OF SECTION 9.2 ABOVE: (a) PROVIDER DOES NOT WARRANT OR GUARANTEE THE ACCURACY, RELIABILITY, COMPLETENESS, USEFULNESS, OR QUALITY OF ANY CONTENT IN THE SERVICE; (b) PROVIDER DOES NOT WARRANT THAT THE SERVICE IS SECURE, FREE FROM BUGS, VIRUSES, INTERRUPTION, ERRORS, THEFT OR DESTRUCTION OR THAT THE SERVICE WILL MEET CUSTOMER'S REQUIREMENTS; (c) PROVIDER IS NOT RESPONSIBLE OR LIABLE FOR CUSTOMER'S MISUSE OR UNAUTHORIZED USE OF THE SERVICE; (d) PROVIDER IS NOT LIABLE OR RESPONSIBLE FOR ANY CONTENT POSTED ON OR LINKED FROM THE SERVICE; (e) IN THE EVENT THAT, AT CUSTOMERS REQUEST, THE SERVICE SHALL HAVE BEEN SUCCESSFULLY INTEGRATED WITH AN APPLICANT TRACKING SYSTEM OR ANY OTHER THIRD-PARTY OR PROPRIETARY SYSTEM ("ATS"), PROVIDER SHALL NOT BE LIABLE FOR ANY FAILURES OR PROBLEMS CAUSED BY, OR BELIEVED TO BE CAUSED BY, SAID ATS OR RESULTING FROM CHANGES WITHIN SAID ATS; AND (f) CUSTOMER EXPRESSLY UNDERSTANDS AND AGREES THAT IT BEARS ALL RISKS ASSOCIATED WITH USING OR RELYING ON CONTENT PROVIDED THROUGH THE SERVICE.
10.1 Customer's Indemnifications. Customer shall defend, indemnify, and hold harmless Provider (including its officers, directors, Employees, agents, contractors, representatives, suppliers, subsidiaries, parents, affiliated companies, and insurers) from any Indemnified Claim. An "Indemnified Claim" is a third-party claim, suit, or proceeding arising out or related to Customer's alleged or actual use of, misuse of, or failure to use the Service. Indemnified Claims include, without limitation: (a) claims by Users or TestTakers, including without limitation claims alleging wrongful termination, discrimination in hiring, violation of any rights relating to Customer-initiated background checks that include without limitation any claims under the federal Fair Credit Reporting Act and any similar state and local laws, or other wrongdoing related to employment; (b) claims alleging breach of Customer's obligations under Section 4.3; (c) claims alleging that TestMaker Tests, TestMaker Content, or other Customer-provided materials used with the Service infringe or violate intellectual property or privacy rights or defame or libel any person or entity; (d) claims alleging failures of the Service, including failures of the Service Obligation (as defined in Section 6.1), security breaches, and faults in the Service leading to the release or exposure of PII or other private data (whether such data belongs to Customer, to a User, or to other third parties); (e) claims arising from Provider's alleged or actual negligence; and (f) failure by the Customer to comply with any applicable laws.
10.2 Provider's Indemnifications. Provider shall defend, indemnify, and hold harmless Customer from any third-party claim, suit, or proceeding arising out of, related to, or alleging infringement of any U.S. patent, copyright, or trade secret by the Service.
10.3 Litigation. The indemnifying party's ("Indemnitor's") obligations pursuant to this Section 10: (a) include retention and payment of attorneys and payment of court costs, as well as settlement at Indemnitor's expense and payment of judgments; and (b) are excused to the extent that indemnified party's ("Indemnified Party's") or its Affiliates' failure to provide prompt notice of the Indemnified Claim or to reasonably cooperate materially prejudices the defense. Indemnitor will control the defense of any Indemnified Claim, including appeals, negotiations, and any settlement or compromise thereof; provided Indemnified Party will have the right, not to be exercised unreasonably, to reject any settlement or compromise that requires that it admit wrongdoing or liability or subjects it to any ongoing affirmative obligations. ("Affiliates" refers to a party's officers, directors, employees, agents, contractors, representatives, suppliers, subsidiaries, parents, affiliated companies, and insurers.)
11. Limitation of Liability. PROVIDER SHALL NOT BE HELD RESPONSIBLE OR LIABLE FOR ANY OF THE FOLLOWING ARISING OUT OF OR RELATED TO THIS AGREEMENT: (a) INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES; OR (b) DAMAGES OF ANY KIND IN EXCESS OF THE FEES PAID BY CUSTOMER FOR THE SERVICE DURING THE 12-MONTH PERIOD PRECEDING THE INJURY GIVING RISE TO THE CLAIM. THE LIABILITIES LIMITED BY THE PRECEDING SENTENCE APPLY: (i) TO LIABILITY FOR NEGLIGENCE; (ii) REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT PRODUCT LIABILITY, OR OTHERWISE; (iii) EVEN IF PROVIDER IS ADVISED IN ADVANCE OF THE POSSIBILITY OF THE DAMAGES IN QUESTION AND EVEN IF SUCH DAMAGES WERE FORESEEABLE; AND (iv) EVEN IF CUSTOMER'S REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE. If applicable law limits the application of the provisions of this Article 11, Provider's liability will be limited to the maximum extent permissible. For the avoidance of doubt, Provider's liability limits and other rights set forth in this Article 11 apply likewise to Provider's affiliates, licensors, suppliers, advertisers, agents, sponsors, directors, officers, employees, consultants, and other representatives.
12. Term & Termination.
12.1 Term. The term of this Agreement (the "Term") shall commence on the Effective Date and (unless terminated earlier as provided below) continue until the end of the Service subscription term identified on the Order. Unless specified differently elsewhere, the Term will renew only if the parties so agree in writing or if Customer renews the Service subscription term through the renewal process available online through the Service and Provider accepts such renewal through the same process.
12.2 Termination for Cause. Either party may terminate this Agreement for the other's material breach on 30 days' written notice, unless the other party cures such breach before the effective date of termination.
12.3 Effects of Termination. The following provisions will survive termination or expiration of this Agreement: (a) obligation of Customer to pay for Service as provided herein; (b) Sections and Articles 2.2, 2.3(a), 2.3(b), 4.1, 4.2, 4.3, 4.4, 4.8, 4.9, 5, 7.1, 7.3(b), 7.4, 7.5, 8.2, 9, 10, 11. and 13.9 of this Agreement; and (c) any other provision that must survive to fulfill its essential purpose.
13.1 Notices. Provider may send notices pursuant to this Agreement to Customer's email contact points provided by Customer, and such notices will be deemed received twenty-four hours after they are sent. Customer may send notices pursuant to this Agreement to Chief Operating Officer, Criteria Corp, 750 North San Vicente Blvd. Suite 1500 East Tower, West Hollywood, CA 90069, and such notices will be deemed received seventy-two hours after they are sent.
13.3 Independent Contractors. The parties are independent contractors and will so represent themselves in all regards. Neither party is the agent of the other, and neither may bind the other in any way.
13.4 Injunctions. Each party agrees that breach of the provisions of Sections 4.2 or 4.9 above would cause the injured irreparable injury for which monetary relief would not provide adequate compensation, and that in addition to any other remedies available, the injured will be entitled to preliminary, temporary, and permanent injunctive relief against such breach or threatened breach, without the necessity of proving actual damages or posting bond or other security.
13.5 Force Majeure. To the extent caused by hurricane, earthquake, other natural disaster or act of God, terrorism, war, labor unrest, general failure of the Internet or of communications systems, or other forces beyond the performing party's reasonable control (collectively, "Force Majeure"), no delay, failure, or default, other than Customer's failure to make payments when due, will constitute a breach of this Agreement. The time for performance shall be extended for a period equal to the duration of the Force Majeure event. The performing party shall use reasonable efforts to minimize the delays, to notify the other party promptly, and to inform the other party of its plans to resume performance.
13.6 Assignment & Successors. Neither party may assign this Agreement, except to the surviving party in a merger of that party into another entity or in the acquisition of all or substantially all the assets of the assigning party. Except as set forth in the preceding sentence, this Agreement shall be binding upon and inure to the benefit of the parties' respective successors and assigns. Customer shall provide prompt written notice to Provider, clearly detailing the full billing and service contact information and an accurate Employee headcount for its successors and assigns.
13.7 Class Action Waiver. To the extent permitted under the applicable law, Customer and Provider agree that each may bring claims against the other only in Customer's or Provider's individual capacity and not as a plaintiff or class member in any purported class action or representative action. Unless both Customer and Provider agree, no judge or arbitrator may consolidate more than one person's claims or otherwise preside over any form of a representative or class action proceeding.
13.8 Choice of Law & Jurisdiction. This Agreement shall be governed solely by the internal laws of the State of California without reference to any principle of conflicts of law that would apply the substantive laws of another jurisdiction to the parties' rights or duties. The parties consent to the personal and exclusive jurisdiction of the federal and state courts of Los Angeles, California.
13.10 Notwithstanding anything else in this Agreement, including Section 5, Provider shall have the right to include Customer's name on its published customer list, unless Customer shall specifically request in writing that Provider not do so.