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HomeMy WebLinkAboutContractAGREEMENT FOR INTERVIEW NOW SOFTWARE (SOFTWARE AS A SERVICES AGREEMENT) THIS AGREEMENT, dated for reference purposes only as November 14,2022, is by and between the City of Renton (the “City”), a Washington municipal corporation, and Interview Now Inc. (“Vendor”), a Corporation in Alameda, CA. The City and the Vendor are referred to collectively in this Agreement as the “Parties.” Once fully executed by the Parties, this Agreement is effective as of the last date signed by both parties. 1. Scope of Work: Vendor agrees to provide Interview Now software and services as specified in Exhibit A – Annual product subscription, which is attached and incorporated herein and may hereinafter be referred to as the “Work.” Vendor shall provide the Work consistent with the requirements of the Master Subscription Agreement as set forth in Exhibit B. 2. Changes in Scope of Work: The City, without invalidating this Agreement, may order changes to the Workconsisting of additions, deletions or modifications.Any such changes to the Work shall be ordered by the City in writing and the Compensation shall be equitably adjusted consistent with the rates mutually agreed by the Parties. 3.Time of Performance:Vendor shall commence performance of the Agreement within 14 days of the Agreement’s execution. 4. Compensation: A. Amount. The amount of the Agreement is made up of two parts, “One-Time Costs” which apply to Phase 1 of the Work, and “Recurring Costs” which apply to Phase 2 of the Work. x One-Time Costs. The amount of the One Time Costs for this Agreement shall not exceed $8,000.00 including applicable state and local sales taxes. Costs shall be paid based upon Work actually performed according to the rate(s) or amounts specified in Exhibit A – Annual product subscription. x Recurring Costs. The amount of the Recurring Costs shall be $6,500.00, plus any applicable state and local sales taxes. Recurring Costs are to be billed annually at an amount not to exceed an increase of 3% year over year unless otherwise agreed by both Parties.              CAG-22-370 PAGE 2 OF 18 B. Method of Payment. Vendor shall submit an invoice to the City, including a description of the work and charges, once a year. The vendor shall submit an invoice in advance of the Work and all fees are prepaid in advance for one year. Payment shall be made by the City within thirty (30) calendar days after receipt and approval by the appropriate City representative of the voucher or invoice. If the Vendor’s performance does not meet the requirements of this Agreement, the Vendor will correct or modify its performance to comply with the Agreement. The City may withhold payment for Work that does not meet the requirements of this Agreement. C. Effect of Payment. Payment for any part of the Work shall not constitute a waiver by the City of any remedies it may have against the Vendor for failure of the Vendor to perform the Work or for any breach of this Agreement by the Vendor. D. Non-Appropriation of Funds. If sufficient funds are not appropriated or allocated for payment under this Agreement for any future fiscal period, the City shall not be obligated to make payments for Work or amounts incurred after the end of the current fiscal period, and this Agreement will terminate upon the completion of all remaining Work for which funds are allocated. No penalty or expense shall accrue to the City in the event this provision applies. 5. Termination: A. The City reserves the right to terminate this Agreement at any time, with or without cause by giving ten (10) calendar days’ notice to the Vendor in writing. In the event of such termination or suspension, all finished or unfinished documents, data, studies, worksheets, models and reports, or other material prepared by the Vendor pursuant to this Agreement shall be submitted to the City, if any are required as part of the Work. B. In the event this Agreement is terminated by the City, the Vendor shall be entitled to payment for all hours worked to the effective date of termination, less all payments previously made. If the Agreement is terminated by the City after partial performance of Work for which the agreed compensation is a fixed fee, the City shall pay the Vendor an equitable share of the fixed fee. This provision shall not prevent the City from seeking any legal remedies it may have for the violation or nonperformance of any of the provisions of this Agreement and such charges due to the City shall be deducted from the final payment due the Vendor. No payment shall be made by the City for any expenses incurred or work done following the effective date of termination unless authorized in advance in writing by the City. 6. Warranties And Right To Use Work Product: Vendor represents and warrants that Vendor will perform all Work identified in this Agreement in a professional and workmanlike manner and in accordance with all reasonable and professional standards               PAGE 3 OF 18 and laws. Compliance with professional standards includes, as applicable, performing the Work in compliance with applicable City standards or guidelines (e.g. design criteria and Standard Plans for Road, Bridge and Municipal Construction). Professional engineers shall certify engineering plans, specifications, plats, and reports, as applicable, pursuant to RCW 18.43.070. Vendor further represents and warrants that all final work product created for and delivered to the City pursuant to this Agreement shall be the original work of the Vendor and free from any intellectual property encumbrance which would restrict the City from using the work product.Vendorgrants to the City a non-exclusive, perpetual right and license to use, reproduce, distribute, adapt, modify, and display all final work product produced pursuant to this Agreement. The City’s or other’s adaptation, modification or use of the final work products other than for the purposes of this Agreement shall be without liability to the Vendor. The provisions of this section shall survive the expiration or termination of this Agreement. 7. Record Maintenance: The Vendor shall maintain accounts and records, which properly reflect all direct and indirect costs expended and Work provided in the performance of this Agreement and retain such records for as long as may be required by applicable Washington State records retention laws, but in any event no less than sixyears after the termination of this Agreement. The Vendor agrees to provide access to and copies of any records related to this Agreement as required by the City to audit expenditures and charges and/or to comply with the Washington State Public Records Act (Chapter 42.56 RCW). The provisions of this section shall survive the expiration or termination of this Agreement. 8. Public Records Compliance: To the full extent the City determines necessary to comply with the Washington State Public Records Act, Vendor shall make a due diligent search of all records in its possession or controlrelating to this Agreement and the Work, including, but not limited to, e-mail, correspondence, notes, saved telephone messages, recordings, photos, or drawings and provide them to the City for production. In the event Vendor believes said records need to be protected from disclosure, it may, at Vendor’s own expense, seek judicial protection. Vendor shall indemnify, defend, and hold harmless the City for all costs, including attorneys’ fees, attendant to any claim or litigation related to a Public Records Act request for which Vendor has responsive records and for which Vendor has withheld records or information contained therein, or not provided them to the City in a timely manner. Vendor shall produce for distribution any and all records responsive to the Public Records Act request in a timely manner, unless those records are protected by court order. The provisions of this section shall survive the expiration or termination of this Agreement. 9. Independent Contractor Relationship: A. The Vendor is retained by the City only for the purposes and to the extent set forth in this Agreement. The nature of the relationship between the Vendor and the City               PAGE 4 OF 18 during the period of the Work shall be that of an independent contractor, not employee. The Vendor, not the City, shall have the power to control and direct the details, manner or means of Work. Specifically, but not by means of limitation, the Vendor shall have no obligation to work any particular hours or particular schedule, unless otherwise indicated in the Scope of Work or where scheduling of attendance or performance is mutually arranged due to the nature of the Work. Vendor shall retain the right to designate the means of performing the Work covered by this agreement, and the Vendor shall be entitled to employ other workers at such compensation and such other conditions as it may deem proper, provided, however, that any contract so made by the Vendor is to be paid by it alone, and that employing such workers, it is acting individually and not as an agent for the City. B. The City shall not be responsible for withholding or otherwise deducting federal income tax or Social Security or contributing to the State Industrial Insurance Program, or otherwise assuming the duties of an employer with respect to Vendor or any employee of the Vendor. C. If the Vendor is a sole proprietorship or if this Agreement is with an individual, the Vendoragrees to notify the City and complete any required form if the Vendorretired under a State of Washington retirement system and agrees to indemnify any losses the City may sustain through the Vendor’s failure to do so. 10. Hold Harmless: The Vendor agrees to release, indemnify, defend, and hold harmless the City, elected officials, employees, officers, representatives, and volunteers from any and all claims, demands, actions, suits, causes of action, arbitrations, mediations, proceedings, judgments, awards, injuries, damages, liabilities, taxes, losses, fines, fees, penalties, expenses, attorney’s or attorneys’ fees, costs, and/or litigation expenses to or by any and all persons or entities, arising from, resulting from, or related to the negligent acts, errors or omissions of the Vendor in its performance of this Agreement or a breach of this Agreement by Vendor, except for that portion of the claims caused by the City’s sole negligence. Should a court of competent jurisdiction determine that this agreement is subject to RCW 4.24.115, (Validity of agreement to indemnify against liability for negligence relative to construction, alteration, improvement, etc., of structure or improvement attached to real estate…) then, in the event of liability for damages arising out of bodily injury to persons or damages to property caused by or resulting from the concurrent negligence of the Vendor and the City, its officers, officials, employees and volunteers, Vendor’s liability shall be only to the extent of Vendor’s negligence. It is further specifically and expressly understood that the indemnification provided in this Agreement constitute Vendor’s waiver of immunity under the Industrial Insurance               PAGE 5 OF 18 Act, RCW Title 51, solely for the purposes of this indemnification. The Parties have mutually negotiated and agreed to this waiver. The provisions of this section shall survive the expiration or termination of this Agreement. 11. Gifts and Conflicts: The City’s Code of Ethics and Washington State law prohibit City employees from soliciting, accepting, or receiving any gift, gratuity or favor from any person, firm or corporation involved in a contract or transaction. To ensure compliance with the City’s Code of Ethics and state law, the Vendor shall not give a gift of any kind to City employees or officials. Vendor also confirms that Vendor does not have a business interest or a close family relationship with any City officer or employee who was, is, or will be involved in selecting the Vendor, negotiating or administering this Agreement, or evaluating the Vendor’s performance of the Work. 12. City of Renton Business License: The Vendor shall obtain a City of Renton Business License prior to performing any Work and maintain the business license in good standing throughout the term of this agreement with the City. Information regarding acquiring a city business license can be found at: http://www.rentonwa.gov/cms/One.aspx?portalId=7922741&pageId=9824882 Information regarding State business licensing requirements can be found at: http://dor.wa.gov/doing-business/register-my-business 13. Insurance: Vendor shall secure and maintain: A. Commercial general liability insurance in the minimum amounts of $1,000,000 for each occurrence/$2,000,000 aggregate for the Term of this Agreement. B. In the event that Work delivered pursuant to this Agreement either directly or indirectly involve or require Professional Services, Professional Liability, Errors and Omissions coverage shall be provided with minimum limits of $1,000,000 per occurrence. "Professional Services", for the purpose of this section, shall mean any Work provided by a licensed professional or Work that requires a professional standard of care. C. Workers’ compensation coverage, as required by the Industrial Insurance laws of the State of Washington, shall also be secured. D. Commercial Automobile Liability for owned, leased, hired or non-owned, leased, hired or non-owned, with minimum limits of $1,000,000 per occurrence combined single limit, if there will be any use of Vendor’s vehicles on the City’s Premises by or on behalf of the City, beyond normal commutes.               PAGE 6 OF 18 E. Vendorshall name the City as an Additional Insured on its commercial general liability policy on a non-contributory primary basis. The City’s insurance policies shall not be a source for payment of any Vendor liability, nor shall the maintenance of any insurance required by this Agreement be construed to limit the liability of Vendor to the coverage provided by such insurance or otherwise limit the City’s recourse to any remedy available at law or in equity. F. Subject to the City’s review and acceptance, a certificate of insurance showing the proper endorsements, shall be delivered to the City before performing the Work. G. Vendor shall provide the City with written notice of any policy cancellation, within two (2) business days of their receipt of such notice. 14. Delays: Vendor is not responsible for delays caused by factors beyond the Vendor’s reasonable control. When such delays beyond the Vendor’s reasonablecontroloccur, the City agrees the Vendor is not responsible for damages, nor shall the Vendor be deemed to be in default of the Agreement. 15. Successors and Assigns: Neither the City nor the Vendor shall assign, transfer or encumber any rights, duties or interests accruing from this Agreement without the written consent of the other. 16. Notices: Any notice required under this Agreement will be in writing, addressed to the appropriate party at the address which appears below (as modified in writing from time to time by such party), and given personally, by registered or certified mail, return receipt requested, by nationally recognized overnight courier service. Time period for notices shall be deemed to have commenced upon the date of receipt. Email and telephone may be used for purposes of administering the Agreement but should not be used to give any formal notice required by the Agreement. CITY OF RENTON Caden Nguyen 1055 South Grady Way Renton, WA 98057 Phone: (425) 430-6885 Email: cnguyen@rentonwa.gov Email: CityClerk@rentonwa.gov VENDOR Robert Cate -CEO P.O. Box 210537 San Francisco, CA, 94121 Phone: (510) 205-9204 Email: Rob@interviewnow.io 17. Discrimination Prohibited: Except to the extent permitted by a bona fide occupational qualification, the Vendor agrees as follows:               PAGE 7 OF 18 A. Vendor, and Vendor’s agents, employees, representatives, and volunteers with regard to the Work performed or to be performed under this Agreement, shall not discriminate on the basis of race, color, sex, religion, nationality, creed, marital status, sexual orientation or preference, age (except minimum age and retirement provisions), honorably discharged veteran or military status, or the presence of any sensory, mental or physical handicap, unless based upon a bona fide occupational qualification in relationship to hiring and employment, in employment or application for employment, the administration of the delivery of Work or any other benefits under this Agreement, or procurement of materials or supplies. B. The Vendor will take affirmative action to insure that applicants are employed and that employees are treated during employment without regard to their race, creed, color, national origin, sex, age, sexual orientation, physical, sensory or mental handicaps, or marital status. Such action shall include, but not be limited to the following employment, upgrading, demotion or transfer, recruitment or recruitment advertising, layoff or termination, rates of pay or other forms of compensation and selection for training. C. If the Vendor fails to comply with any of this Agreement’s non-discrimination provisions, the City shall have the right, at its option, to cancel the Agreement in whole or in part. D. The Vendor is responsible to be aware of and in compliance with all federal, state and local laws and regulations that may affect the satisfactory completion of the project, which includes but is not limited to fair labor laws, worker's compensation, and Title VI of the Federal Civil Rights Act of 1964, and will comply with City of Renton Council Resolution Number 4085. 18. Miscellaneous:The parties hereby acknowledge: A. The City is not responsible to train or provide training for Vendor. B. Vendor will not be reimbursed for job related expenses except to the extent specifically agreed within the attached exhibits. C. Vendor shall furnish all tools and/or materials necessary to perform the Work except to the extent specifically agreed within the attached exhibits. D. In the event special training, licensing, or certification is required for Vendor to provide Work he/she will acquire or maintain such at his/her own expense and, if Vendoremploys, sub-contracts, or otherwise assigns the responsibility to perform the Work, said employee/sub-contractor/assignee will acquire and or maintain such training, licensing, or certification.               PAGE 8 OF 18 E. This is a non-exclusive agreement and Vendoris free to provide his/her Workto other entities, so long as there is no interruption or interference with the provision of Work called for in this Agreement. F. Vendor is responsible for his/her own insurance, including, but not limited to health insurance. G. Vendor is responsible for his/her own Worker’s Compensation coverage as well as that for any persons employed by the Vendor. 19. Other Provisions: A. Approval Authority. Each individual executing this Agreement on behalf of the City and Vendor represents and warrants that such individuals are duly authorized to execute and deliver this Agreement on behalf of the City or Vendor. B. General Administration and Management. The City’s project manager is Caden Nguyen, Sr. Systems Analyst, cnguyen@rentonwa.gov. In providing Work, Vendor shall coordinate with the City’s contract manager or his/her designee. C. Amendment and Modification. This Agreement may be amended only by an instrument in writing, duly executed by both Parties. D. Conflicts. In the event of any inconsistencies between Vendor proposals and this Agreement, the terms of this Agreement shall prevail. Any exhibits/attachments to this Agreement are incorporated by reference only to the extent of the purpose for which they are referenced within this Agreement. To the extent a Vendor prepared exhibit conflicts with the terms in the body of this Agreement or contains terms that are extraneous to the purpose for which it is referenced, the terms in the body of this Agreement shall prevail and the extraneous terms shall not be incorporated herein. E. Governing Law. This Agreement shall be made in and shall be governed by and interpreted in accordance with the laws of the State of Washington and the City of Renton. Vendor and all of the Vendor’s employees shall perform the Work in accordance with all applicable federal, state, county and city laws, codes and ordinances. F. Joint Drafting Effort. This Agreement shall be considered for all purposes as prepared by the joint efforts of the Parties and shall not be construed against one party or the other as a result of the preparation, substitution, submission or other event of negotiation, drafting or execution.               PAGE 9 OF 18 G. Jurisdiction and Venue. Any lawsuit or legal action brought by any party to enforce or interpret this Agreement or any of its terms or covenants shall be brought in the King County Superior Court for the State of Washington at the Maleng Regional Justice Center in Kent, King County, Washington, or its replacement or successor. Vendor hereby expressly consents to the personal and exclusive jurisdiction and venue of such court even if Vendor is a foreign corporation not registered with the State of Washington. H. Severability. A court of competent jurisdiction’s determination that any provision or part of this Agreement is illegal or unenforceable shall not cancel or invalidate the remainder of this Agreement, which shall remain in full force and effect. I. Sole and Entire Agreement. This Agreement contains the entire agreement of the Parties and any representations or understandings, whether oral or written, not incorporated are excluded. J. Time is of the Essence. Time is of the essence of this Agreement and each and all of its provisions in which performance is a factor. Adherence to completion dates set forth in the description of the Work is essential to the Vendor’s performance of this Agreement. K. Third-Party Beneficiaries. Nothing in this Agreement is intended to, nor shall be construed to give any rights or benefits in the Agreement to anyone other than the Parties, and all duties and responsibilities undertaken pursuant to this Agreement will be for the sole and exclusive benefit of the Parties and no one else. L. Binding Effect. The Parties each bind themselves, their partners, successors, assigns, and legal representatives to the other party to this Agreement, and to the partners, successors, assigns, and legal representatives of such other party with respect to all covenants of the Agreement. M. Waivers. All waivers shall be in writing and signed by the waiving party. Either party’s failure to enforce any provision of this Agreement shall not be a waiver and shall not prevent either the City or Vendorfrom enforcing that provision or any other provision of this Agreement in the future. Waiver of breach of any provision of this Agreement shall not be deemed to be a waiver of any prior or subsequent breach unless it is expressly waived in writing. N. Counterparts. The Parties may execute this Agreement in any number of counterparts, each of which shall constitute an original, and all of which will together constitute this one Agreement.               PAGE 10 OF 18 IN WITNESS WHEREOF, the Parties have voluntarily entered into this Agreement as of the date last signed by the Parties below. CITY OF RENTON By:_____________________________ CONSULTANT By:____________________________ Kristi Rowland Deputy Chief Administrative Officer Robert Cate CEO _____________________________ Date _____________________________ Date Attest _____________________________ Jason A. Seth City Clerk Approved as to Legal Form By: __________________________ Shane Moloney City Attorney IT-Contract Template 6/17/2021 Clb 10-7-22 (2224)                     ------------------------- (approved by Cheryl Beyer via email on 11/15/2022) PAGE 11 OF 18 EXHIBIT A Annual Product Subscription Payment for InterviewNow is on a yearly basis. Products include Capture, Pre-Screening, and Communication. 1. One Time Implementation Setup Fees: $500 a) Implementation and system setup b) One hour of onboarding/training session over video conference c) Participants receive a series of emails involving small hands-on training tasks 2. Recurring Annual Fees After Go Live Date: $6,500 Yearly subscription for the products: a)Capture includes a Candidate Dashboard and Management tools, an automated FAQ center where candidates can have questions answered using A.I, and advertisement tracking. b)Pre-Screening includes qualifying and disqualifying questions sent usingA.I. that will help save your recruiter’s time. In addition, it includes live call handoff and scheduled callbacks. c)Communication includes unlimited two-way communication and unlimited mass messaging. These features can be combined with our grouping/status features, to send mass messages to candidates in different stages of the hiring process. INCLUDES x Phone Number: One (1) 10-digits local phone number and keyword x User Accounts: One (1) administrator and Ten (10) sub accounts x Customer Success Manager & Video Tutorials x Campaign Materials: 500 Flyers, 1500 Business Cards, 50 Magnetic Decals INTERVIEW NOW © 2020               PAGE 12 OF 18 EXHIBIT B Master Subscription Agreement THIS MASTER SUBSCRIPTION AGREEMENT (THE “MSA”) GOVERNS LICENSEE’S USE OF INTERVIEW NOW INC.’S SOFTWARE AND SERVICES. 1.SCOPE OF AGREEMENT This MSA governs Interview Now’s provision of Interview Now Services, as defined herein detailing the Interview Now Services purchased. 2.DEFINITIONS “Affiliate”means any entity which is directly or indirectly controlling, controlled by, or under common control with a party to this Agreement. For the avoidance of doubt, any software subscription Fees due under this Agreement are based on Licensee’s business locations and services purchased. “Interview Now Account”means Licensee’s password-restricted account by which it may access and use the Software. “Interview Now Services”means the Software provisioned to Licensee pursuant to the Agreement. “Internal Use”means use of the Interview Now Services for Licensee’s and/or Licensee’s Affiliates’ general business use, solely for the benefit of Licensee and/or Licensee Affiliates. “Licensee Data”means any material that is entered into the Interview Now Account by Licensee, Licensee’s employees or contractors, or any third parties acting on behalf of or at the direction of Licensee (including, for the avoidance of doubt, Licensee’s job candidates). “Quote”software or deliverables as well as the quantity, unit price, and total price. All Quotes and Purchase Orders shall be governed by this MSA and no other terms or conditions shall apply.               PAGE 13 OF 18 “Purchase Order”means Licensee’s Purchase Order which shall be issued by Licensee signifying Licensee’s order of the Interview Now Services contained in an Interview Now Quote or itemized in the Purchase Order. The MSA shall govern the terms and conditions of the issued Purchase Order and no other terms or conditions shall apply. “Professional Services”means services provided by Interview Now other than the Software to enable or optimize Licensee’s use of the Software, which may include without limitation data migration, implementation, ongoing support, custom development, and individualized training. “Personal Data”means information that identifies a person, such as a name or online identifier, that is uploaded into the Software by Licensee or by third parties acting on Licensee’s behalf, including job candidates. “Software” means Interview Now’s proprietary mobile recruiting and interviewing SaaS products, which shall be accessed by Licensee via the internet and will include any updates made generally available at no additional charge to similarly situated Interview Now customers. 3.PROPRIETARY RIGHTS (a)License to Software. Subject to the terms and conditions of the Agreement, Interview Now grants to Licensee a non-exclusive, non-transferable, non-sublicensable, worldwide license to access and use the licensed Software, as provided by Interview Now, for Internal Use during the Term in the manner contemplated by the Parties and this MSA. (b)Restrictions on Use of Software. Licensee will comply with all applicable laws, rules and regulations in connection with Licensee’s use of the Software. Licensee will not, and will not permit any third party to: (i) copy, modify, translate, or create derivative works of the Software; (ii) reverse engineer, decompile, disassemble or otherwise attempt to reconstruct, identify or discover any source code, underlying ideas, underlying user interface techniques, or algorithms of the Software; (iii) lend, lease, offer for sale, sell or otherwise use the Software for the benefit of third parties; (iv) circumvent or attempt to circumvent any technological protective measures put in place to prevent or restrict access to the Software, including without limitation other accounts, computer systems or networks connected to the Software; or (v) use or view the Software for the purposes of developing, directly or indirectly, a product or service competitive to the Software.               PAGE 14 OF 18 Interview Now Ownership of Interview Now Services.Except for the rights granted in Section 3(a) above, Interview Now retains all right, title and interest, including all intellectual property rights, in and to the Interview Now Services. Licensee acknowledges that the Interview Now Services include Interview Now’s valuable trade secrets and improper use or disclosure may cause Interview Now irreparable harm. Accordingly, Licensee agrees to use the Interview Now Services solely as authorized in this Agreement. Licensee further acknowledges that the license granted pursuant to this Agreement is not a sale and does not transfer to Licensee title or ownership of the Software or a copy of the Software, but only a right of limited use. ALL RIGHTS NOT EXPRESSLY GRANTED HEREUNDER ARE RESERVED TO INTERVIEW NOW. (c)Licensee Data. Subject to the terms and conditions of this Agreement, Licensee grants to Interview Now a limited, non-transferable (except pursuant to Section 11(a) below), worldwide license to use the Licensee Data for the purpose of providing the Interview Now Services; specifically, to store, process, display, use and generally make the Licensee Data available through the Internet and the Interview Now Account in order to provide the Interview Now Services in accordance with this Agreement. Licensee acknowledges that Licensee Data will be stored and processed in the United States. Licensee represents and warrants that: (i) it either owns the Licensee Data or is otherwise permitted to grant the license set forth in this Section 3(d); (ii) the posting and use of Licensee Data on or through the Software does not violate the privacy rights, publicity rights, copyrights, contract rights, intellectual property rights, or any other rights of any person; and (iii) the posting of Licensee Data on the Software does not result in a breach of contract between Licensee and any third party. (d)Aggregated Anonymous Data. Licensee agrees that Interview Now may calculate aggregate, anonymized statistics about its customers’ use of the Software that are non- personally identifiable with respect to Licensee and/or any individual and use those statistics (but not the underlying data) for purposes of Interview Now’s own sales, marketing, business development, product enhancement, or customer service initiatives. Notwithstanding the foregoing, Interview Now shall ensure that the statistics will not constitute Personal Data and will not include any Personal Data. (e)Provision of Purchased Services. Interview Now will (i) make the Interview Now Services available to License pursuant to this Agreement, and the applicable Order Forms and Purchase Order, (ii) provide applicable Interview Now standard support for the Interview Now Services to Licensee at no additional charge, and/or upgraded support if purchased, (iii) use commercially reasonable efforts to make the online Interview Now Services available 24 hours a day, 7 days a week, except for: (a) planned downtime (of which Interview Now shall give advance electronic notice), and (b) any unavailability caused by circumstances beyond Interview Now’s reasonable control,including, for example, an act of God, act of               PAGE 15 OF 18 government, flood, fire, earthquake, civil unrest, act of terror, strike or other labor problem (other than one involving Interview Now employees), Internet service provider failure or delay, Non-Interview Now Application, or denial of service attack, and (x) provide the Interview Now Services in accordance with laws and government regulations applicable to Interview Now’s provision of its Interview Now Services to its Licensees generally (i.e., without regard for Licensee’s particular use of the Services), and subject to Licensee’s use of the Interview Now Services in accordance with this Agreement, the Documentation and the applicable Order Form. 4.USE OF THE INTERVIEW NOW SERVICES a)Interview Now’s Responsibilities.Interview Now will provide the Interview Now Services only in accordance with applicable laws and government regulations. Interview Now will perform any Professional Services provisioned under the Agreement in a professional and workmanlike manner consistent with industry standards. Interview Now will maintain appropriate administrative, technical and physical safeguards to protect the security, confidentiality and integrity of Licensee Data. (b) Licensee Responsibilities. Licensee will (i) be responsible for its and its Affiliates and personnel’s compliance with this Agreement, (ii) use commercially reasonable efforts to prevent unauthorized access to or use of the Software, and notify Interview Now immediately of any such unauthorized access and/or use of which Licensee becomes aware, and (iii) use the Software only in accordance with this Agreement and all applicable laws and government regulations. Licensee will not (t) make the Software available to any third party (except for any third parties acting on behalf of Licensee or at Licensee’s request, such as recruiting agencies), (u) sell, resell, rent or lease the Software, (v) knowingly use the Software to store or transmit material that infringes the intellectual property rights or other proprietary rights of any third party or violates third-party privacy rights, (x) knowingly use the Software to transmit malicious code, (y) attempt to gain unauthorized access on the Software or its related systems or networks, or (z) interfere with or disrupt the integrity or performance of the Software or any third-party data contained therein. 5.FEES AND PAYMENT (a)Fees. Addressed in PSA (b)Payment Terms. Addressed in PSA (c)Overdue Charges. Addressed in PSA               PAGE 16 OF 18 (d)Taxes. Addressed in PSA 6.CONFIDENTIAL INFORMATION (a)Definition of Confidential Information. As used herein, “Confidential Information” means all confidential information disclosed by a Party (“Disclosing Party “) to the other Party (“Receiving Party “), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Without limitation, Licensee’s Confidential Information will include Licensee Data; Interview Now’s Confidential Information will include the Services; and Confidential Information of each Party will include business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such Party. However, Confidential Information will not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party. (b)Protection of Confidential Information. The Receiving Party will use the same degree of care to protect the Disclosing Party’s Confidential Information that it uses to protect the confidentiality of its own Confidential Information of like kind (but in no event less than reasonable care). The Receiving Party agrees (i) not to use any Confidential Information of the Disclosing Party for any purpose outside the scope of the Agreement, and (ii) except as otherwise authorized by the Disclosing Party in writing, to limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees, contractors and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein. (c)Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, 7.TERM AND TERMINATION (a)Term of Agreement. Addressed in PSA (b)Term of Subscriptions. The initial term of each subscription to Interview Now Services will be described in the applicable Quote (the “Initial Term”). Except as otherwise described in a Quote, subscriptions for each Interview Now Service Licensee will have option to renew               PAGE 17 OF 18 this Agreement for additional one-year terms of twelve (12) months (each, a “Renewal Term”) each upon receipt and acceptance of a renewal quote. (c)Termination for Default. Addressed in PSA (d)Termination for Convenience. Addressed in PSA (f)Effect of Termination. (g)Data. Upon expiration or termination of this Agreement for any reason and Interview Now Interview Now shall provide an export file of all Licensee Data stored in the Interview Now Account (in a reasonably usable digital format) to Licensee, if Licensee requests this within thirty (30) business days of such expiration or termination (h)Survival. Addressed in PSA 8.REPRESENTATIONS AND REPRESENTATIVES. Addressed in PSA 9.WARRANTY DISCLAIMER THE SERVICES ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND, AND INTERVIEW NOW MAKES NO PROMISES, REPRESENTATIONS OR WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE SERVICES, INCLUDING THEIR CONDITION, CONFORMITY TO ANY REPRESENTATION OR DESCRIPTION. INTERVIEW NOW SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE AND ALL OTHER IMPLIED OR STATUTORY WARRANTIES, AS WELL AS ANY LOCAL JURISDICTIONAL ANALOGUES TO THE ABOVE. INTERVIEW NOW DOES NOT WARRANT THAT THE SERVICES WILL BE ERROR-FREE OR THAT THE SERVICES WILL WORK WITHOUT INTERRUPTIONS. 10.LIMITATION OF LIABILITY Addressed in PSA 11.INDEMNIFICATION in addition to the Paragraph 10 of the PSA (a)Interview Now will indemnify, defend and hold Licensee harmless from any third-party claim, action, suit or proceeding made or brought against Licensee alleging that Licensee’s use of the Software in accordance with the Agreement infringes such third party’s intellectual property rights (an “Infringement Claim”). In the event of an Infringement Claim, Interview Now may, at its sole option and expense: (i) procure for Licensee the right to               PAGE 18 OF 18 continue use of the Software or the infringing part thereof; or (ii) modify or amend the Software or infringing part thereof, or replace the Software or infringing part thereof with other software having substantially the same or better capabilities; or, (iii) if neither of the foregoing is commercially practicable, terminate the Agreement and repay to Licensee a pro-rata portion, if any, of any prepaid but unused Fees. Interview Now will have no liability for an Infringement Claim if the actual or alleged infringement results from (w) Licensee’s breach of the Agreement, (x) Licensee’s modification, alteration or addition made to the Software or any use thereof, including any combination of the Software with other materials not provided or authorized by Interview Now, (y) Licensee’s failure to use any corrections or modifications made available by Interview Now that would not result in any material loss of functionality, or (z) use of the Software in a manner or in connection with a product or data not contemplated by this Agreement. Interview Now also disclaims any liability for settlements entered into by Licensee or costs incurred by Licensee in relation to an Infringement Claim that are not pre- approved by Interview Now in writing. (b)Licensee will indemnify, defend and hold Interview Now harmless from (i) any third-party claim, action, suit or proceeding arising out of or resulting from Interview Now’s use of any Licensee Data, as it was provided to Interview Now, in accordance with this Agreement; and (ii) any fines or penalties that may arise as a result of Licensee’s breach of the export restrictions set forth in Section 12(c). (c)Each Party’s indemnity obligations are subject to the following: (i) the indemnified Party will promptly notify the indemnifying Party in writing of the applicable claim; (ii) the indemnifying Party will have sole control of the defense and all related settlement negotiations with respect to the claim (provided that the indemnifying Party may not settle or defend any claim unless it unconditionally releases the indemnified Party of all liability); and (iii) the indemnified Party will reasonably cooperate to the extent necessary for the defense of such claim. (d)Addressed in PSA 12.MISCELLANEOUS (a)Assignment. Neither Party may assign the Agreement or any rights or obligations hereunder, directly or indirectly, by operation of law or otherwise, without the prior written consent of the other Party; provided, however, that either Party may assign the Agreement to a parent, affiliate, subsidiary, or successor to its business, if any, resulting from a merger, acquisition, or other change in control. Subject to the foregoing, the Agreement will inure to the benefit of and be binding upon the Parties and their respective successors and permitted assigns. Any attempted assignment in violation of this Section 12(a) will be null and void.