END USER LICENSE AGREEMENT

 

 

          THIS END USER LICENSE AGREEMENT is made effective as of the date you register to the system by and between TalentKeepers, Inc., a Florida corporation, having a place of business at 280 West Canton Ave., Suite 100, Winter Park, Florida 32789. 

 

ATTENTION:  This is a license, not a sale.  This End User License Agreement and all applicable addendums define what the End User may do with the online services and software provided by TalentKeepers®.  This Agreement sets forth the terms and conditions under which TalentKeepers offers such services and this contains limitations on warranties and/or remedies. 

 

1.0     Definitions

 

          1.1     "Confidential Information" means all non-public confidential and proprietary business, financial, and technical information supplied by one party hereunder (the "Disclosing Party") to the other party (the "Receiving Party"), provided that such information is marked as "Confidential" or "Proprietary" if disclosed in tangible form, or, if disclosed orally, is identified as "Confidential" at the time of disclosure and confirmed in writing within thirty (30) days.

 

          1.2     "Developed Software Code" means any software code developed by TalentKeepers™ or any other software code used by TalentKeepers™ in an underlying software platform.

 

          1.3     "Documentation" means that standard documentation provided by TalentKeepers™ to its customers and their permitted users in connection with their use of the Software and/or Services, including, but not limited to, program procedures and descriptions (but excluding descriptions of Source Code and build procedures for Executable Code), procedures for permitted maintenance and modification, testing data and similar written material relating to the design, structure and implementation of the Software and Services, as well as help files and User documentation to allow individual Users to use the Software and Services.

 

          1.4     "Service" or "Services" means the online functionality of TalentKeepers™ Web Based Applications in combination with the Software and End User content, as accessed through the Service Pages.

         

          1.5     "Service Pages" means all internet pages of the Service (including, without limitation, any screens associated with the Service or emails or other communications sent to End Users or others by operation of the Service).

 

          1.6     "Software" means any Software or program code provided by TalentKeepers™ or any other software code used by TalentKeepers™, any updates and upgrades thereto, and any related Documentation for such Software.  

 

          1.7     "Use" means the utilization, public display, public performance, and digital performance of the Service (including the End User Content) or access to the Web Based Applications in accordance with this Agreement. 

 

1.8     "Users" means employees of End User who are individual users of the Software and/or Services who use the Services and TalentKeepers™ Web Based Applications and the Service Pages in connection with this Agreement.

 

          1.9     "Web Based Applications" means the “RetentionWorksä” system as described on Schedule 1.9 on page 10.

 

 

2.0     Terms of Use

 

          2.1     License Grant.  Subject to the restrictions in this Agreement and contingent upon payment of applicable fees, TalentKeepers grants to End User a nonexclusive, nontransferable, non-sub licensable, one year annual subscription license to use the Services, Web Based Applications and any applicable Software associated with the Web Based Applications including in the purchase agreement. 

 

          2.2     Customer Support and Service.  TalentKeepers hereby grants to End User a nonexclusive, nontransferable, non-sub licensable, worldwide license to Use the Services and Web Based Applications by accessing the Service Pages through the internet strictly in accordance with the terms and conditions of this Agreement.  During normal business hours, End User shall have access via e-mail and/or voicemail to TalentKeepers™ customer support to assist the End User with the Service and the Service Pages.  TalentKeepers reserves the right to place time limits and costs associated with the amount of customer support TalentKeepers™ shall provide. 

 

          2.3     End User Data.  All End User Data collected by TalentKeepers from End User shall be owned by the End User, but TalentKeepers™ shall have the right to use all data gathered through its various services for the purpose of research and reporting.  TalentKeepers™ agrees not to publish End User specific information identified as the End User’s data without prior written authorization from the End User.  However, TalentKeepers™ shall be able to publish End User’s data as part of research results as long as the End User’s name is not associated with the results.  All individuals, companies and organizations associated with End User shall remain confidential and will not be made public in any form or by any means except as stated above.

 

3.0     License Restrictions

 

          3.1     License Restrictions.  End User must limit Use of the Service and access to the Service Pages to the number of Users for whom End User has paid the required license fees.  Subject to the restrictions contained in this Agreement, the End User may use the Service on an unlimited number of computers and servers, and such computers and servers may be linked electronically and capable of sharing the Use of the Services. 

 

          NOTWITHSTANDING the above, End User agrees not to do, or permit any third party to:

 

1.       Use the Services or access the Service Pages, except as described in this Agreement.

          2.       Copy any software or the Documentation.

          3.       Translate the Software or the Documentation.

4.       Merge the Software with another program or modify the Software or the Documentation.  Modification, customization or alteration, including the creation of derivative works, of any of TalentKeepers™ products, including but not limited to the Web Based Applications, the Services, the Software and the Service Pages, without the involvement of and prior written approval of TalentKeepers™, is strictly prohibited. 

5.       Reverse engineer, disassemble, decompile, or make any attempt to discover the Developed Software Code or source code of the Software except as otherwise specifically permitted under applicable law.

6.       Sublicense, rent, or lease any portion of this Software or the Services.

7.       Use the Software or the Services or access the Service Pages for any purposes other than as set forth in this Agreement.

 

 

4.0     Ownership

 

4.1     Trade Secrets Ownership.  TalentKeepers™ holds the technology used in the Services as a trade secret and End User shall maintain any information learned about that technology as a trade secret and shall not disclose such information or permit such information to be disclosed by any person or entity; however this sentence shall not restrict End User in training its employees in the ordinary use of the Services.  The Services, including but not limited to the Software and its source codes and other intellectual property, of TalentKeepers™ are protected by the United States and International Copyright Laws and International Treaty Provisions. 

 

          4.2     TalentKeepers™ Ownership.  TalentKeepers™ retains all right, title and interest in the Services and the Service Pages, the Documentation and intellectual property rights to the foregoing (including any and all modifications or add-ons, whether or not made in conjunction with the Agreement), which is and shall remain TalentKeepers™ sole and exclusive property.  The Services, Service Pages, the Web Based Applications, the Software and other intellectual property of TalentKeepers™ are protected by the United States and International Copyright Laws and International Treaty Provisions.  TalentKeepers™ reserves all rights not expressly granted to End User in this Agreement, and the licenses granted to End User herein shall in no event be construed as conferring a license to, or rights in, any TalentKeepers™ copyright or patent.  TalentKeepers™ agrees that it will not assert any of its rights under such patents against End User or its employees based upon proper exercise by End User of the licenses granted to End User in this Agreement. TalentKeepers™ reserves all rights not expressly granted to End User in this Agreement. 

 

 

5.0     Limited Warranty

 

          5.1     Services.  During the term of this Agreement, the Services will perform substantially in accordance with its associated Documentation.  If End User reports a failure of the Services to perform substantially in accordance with its associated Documentation during the term, End User's sole and exclusive remedy for breach of this warranty shall be that TalentKeepers™ will either provide End User with a workaround or make the Services conform to such Documentation, or in TalentKeepers™ sole discretion, will refund the prorated license fee for which End User paid for the nonconforming services.  This warranty is void if failure of the Services is due to modification, abuse, misapplication or accident.

 

          5.2     Customer Support.  TalentKeepers™ warrants that the customer support will be performed in a professional, workmanlike and skillful manner.  If End User reports a breach of this warranty during the term of this Agreement, End User's sole and exclusive remedy shall be to require TalentKeepers™ to re-perform the defective customer support.

 

          5.3     No Warranty for Third Party Products.  TalentKeepers™ does not warrant third party products provided hereunder.  Any third party warranty shall, to the extent permissible, be passed through to End User.

 

          5.4     Disclaimer of Warranty.  TalentKeepers™ disclaims on behalf of itself and its suppliers, all express, implied or statutory warranties related to the Software and Services, except as set forth in this Article including, but not limited to, the implied warranties of merchantability, fitness or a particular purpose, title and non-infringement. 

 

 

 

 

6.0     Indemnity

 

          6.1     TalentKeepers™ Indemnity.  TalentKeepers™ shall defend, indemnify and hold End User harmless from and will defend against any third party claims that the Service (a) infringes any copyright, (b) misappropriates any trade secret, (c) infringes any U.S. patent, (d) is deceptive, defamatory, obscene, pornographic, or unlawful, or (e) contains any viruses, worms, or other malicious computer programming codes intended by TalentKeepers™ to damage a User's system or data; provided, End User (a) gives TalentKeepers™ prompt notice of any actual or threatened claim of such infringement or misappropriation, (b) gives control of the defense of such claims to TalentKeepers™ and (c) cooperates fully, at TalentKeepers™ expense, with TalentKeepers™ and its counsel in the defense or settlement of such claims.  TalentKeepers™ obligation shall not extend to a claim based on any alleged infringement arising from (i) additions, changes or modifications to the Software or Services by or on behalf of End User, (ii) any incorporation of the Software or Services or any component thereof into any other product or process, (iii) any use by End User or its Users of any Software or Services subsequent to availability to End User of a non-infringing Update, Upgrade or otherwise superseding version of such Software or Services, or (iv) use of the Software or Services other than as permitted by this Agreement.

 

          6.2     End User Indemnity.  End User shall defend, indemnify and hold TalentKeepers™ harmless from and will defend against any third party claims, arising from or in connection with the End User Content, including, but not limited to, claims that the End User Content (a) infringes any copyright or trademark, (b) misappropriates any trade secret or (c) infringes any U.S. patent, (d) is deceptive, defamatory, obscene, pornographic or unlawful, or (e) contains any viruses, worms or other malicious computer programming codes intended by End User to damage a user's system or data; provided, that TalentKeepers™ (i) gives End User prompt notice of any actual or threatened claim of such infringement or misappropriation, (ii) gives control of the defense of such claims to End User, and (iii) cooperates fully, at End User's expense, with End User and its counsel in the defense or settlement of such claims. 

 

7.0     Limited Liability

 

          7.1     Limited Liability.  In no event shall TalentKeepers™ be liable for any consequential, incidental, or special damages whatsoever (including without limitation, damages for loss of profits, business interruption, loss of formation, or other pecuniary loss).  TalentKeepers™ aggregate cumulative liability, whether in contract or tort otherwise, will not exceed the amount of fees payable to TalentKeepers™ hereunder.

 

 

 

 

8.0     Confidential Information

 

          8.1     Protection of Confidential Information.  Each party acknowledges that it may have access to proprietary or confidential information related to the other party's technology, products, and/or the business, business practices or marketing plans of the other party.  Each party shall protect the proprietary or confidential information of the other party in the same manner as it would protect its own proprietary or confidential information, and shall not use proprietary or confidential information of the other party for its own benefit or the benefit of any other person or entity, except as may be specifically permitted hereunder.

 

          8.2     Exceptions to Confidential Treatment.  The foregoing obligations of confidentiality and non-use shall not apply to any confidential or proprietary information of one party which:

 

          8.2.1  was known by the other party prior to its disclosure by the disclosing party as demonstrated by written records in existence prior to said disclosure (whether prior or subsequent to the date of this Agreement) and not obtained or derived, directly or indirectly, from such party or its affiliates, or if so obtained or derived, was lawfully obtained or derived and is not held subject to any confidentiality or non-use obligations;

 

          8.2.2  is or becomes publicly available other than through any act or default of a party that has an obligation of confidentiality and on-use with respect to such information;

 

          8.2.3  is obtained or derived subsequent to the date of this Agreement from a third party, which, to the knowledge of the party acquiring such information, is lawfully in possession of such information and does not hold such information subject to any confidentiality or non-use obligations;

 

          8.2.4  is required to be disclosed by one of the parties pursuant to applicable law, or under a government or court order; provided, however, that (a) the obligations of confidentiality and non-use shall continue to the fullest extent not in conflict with such law or order, and (b) if and when a party is required to disclose such confidential or proprietary information pursuant to any such law or order, such party shall promptly notify the other party and use reasonable best efforts to obtain a protective order or take such other actions as shall prevent or limit, to the fullest extent possible, public access to, or disclosure of, such confidential or proprietary information.

 

 

9.0     Marketing and Promotion

 

          9.1     Marketing and Promotion.  End User shall have the right to market and promote TalentKeepers™ and "RetentionWorksä" within its organization, divisions and subsidiaries through any means, both electronic and print, for the purpose of encouraging program participation and involvement.  Use of TalentKeepers™ marks (i.e., trademarks), designs, product names, images, models and other copyrighted materials must be approved by TalentKeepers™ prior to use.  TalentKeepers™ shall have the right to list End User as a customer on its website and in similar marketing and promotional materials, both digital and print. 

 

10.0   Term and Termination

 

          10.1   Term.  The term of this Agreement shall commence upon the effective date and continue for a period of one year.  End User shall have the option to renew on an annual basis at a price set by TalentKeepers™ thereafter unless terminated by TalentKeepers™. 

 

          10.2   Termination.  TalentKeepers™ may terminate this Agreement, in whole or in part, and the licenses granted hereunder, effective immediately upon written notice to End User, at the end of any one year term or if End User breaches any material provision of this License and does not cure such breach within ten (10) days after receiving written notice thereof from TalentKeepers™.  End User may terminate this Agreement, in whole or in part, and the licenses granted hereunder, effective immediately upon written notice to TalentKeepers™, if TalentKeepers™ breaches any material provision of this Agreement and does cure such breach within forty-five (45) days after receiving written notice thereof from End User. 

 

          10.3   Effect of Termination.  Upon termination by either party for any reason, any amounts owed to either party under this Agreement before such termination will be due and payable within thirty (30) days, all licenses granted hereunder shall immediately cease and End User must promptly discontinue all use of the Software or Services, destroy all copies of any Software in its possession and certify in writing to TalentKeepers™ that it has complied with the above. 

 

 

11.0   Audit

 

11.1   Audit.  TalentKeepers™ may, from time to time, request from End User, and End User shall promptly give access to TalentKeepers™, an opportunity to audit the number of Users using the Software or the Services or accessing the Service Pages.  In the event TalentKeepers™ detects users for which subscription fees have not been paid, End User shall pay any additional subscription fees as necessary to be in conformance with this Agreement retroactive to the effective date (or the most recent annual renewal of this Agreement, as applicable).

 

 

 

12.0   Miscellaneous

 

          12.1   General.  TalentKeepers™ may subcontract its duties to a third party; provided, that TalentKeepers™ remains responsible for the third party's actions.  This Agreement is governed and interpreted in accordance with the laws of the State of Florida, excluding its conflict of law rules.    The United Nations Convention on Contracts for the International Sale of Goods is expressly disclaimed.  This Agreement may not be assigned by either party without the other's prior written consent, and any such attempted assignment shall be void and of no effect; except, however, that either party may assign this Agreement to any successor by merger, consolidation or sale of all or substantially all of its assets without the consent of the other party so long as (a) the assigning party gives written notice to the non-assigning party of such assignment and (b) any such assignment by End User is not to a direct competitor of TalentKeepers™.  This Agreement will be binding upon the successors and permitted assigns of the parties and the name of a party appearing herein will be deemed to include the names of such party's successor's and permitted assigns to the extent necessary to carry out the intent of this Agreement. 

 

          12.2   Injunctive Relief.  Each party acknowledges that the other party will have no adequate remedy at law if such party breaches any provision concerning confidential information, and that the non-breaching party shall have the right, in addition to any other rights it may have, to obtain, in any court of competent jurisdiction, injunctive relief to restrain any such breach or threatened breach.

 

       12.3   Attorneys' Fees and Venue.  If any litigation occurs between the parties with respect to this Agreement, the prevailing party or parties shall be entitled to receive reimbursement of the reasonable attorneys' fees, expert fees, and court costs incurred by such party or parties in the litigation.  Each party hereto consents to the personal jurisdiction and venue of the federal and state courts with jurisdiction in Orange County, Florida, for a resolution of all disputes arising out of the construction, interpretation, or enforcement of any term or provision of this Agreement, and each party hereby waives the claim or defense that such courts constitute an inconvenient forum. 

 

          12.4   Severability.  Any provision of this Agreement which is invalid, illegal or unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective to the extent of such invalidity, illegality or unenforceability, without affecting in any way the remaining provisions hereof in such jurisdiction or rendering that or any other provision of this Agreement invalid, illegal or unenforceable in any other jurisdiction.  If any provision of this Agreement shall be declared so broad as to be invalid or unenforceable, such provision shall be interpreted to be only so broad as is necessary for it to be valid or enforceable. 

 

          12.5   Survival.  The terms and conditions contained in this Agreement that by their sense and context are intended to survive the termination of this Agreement, including, but not limited to, indemnities and limitations of liability, shall survive termination.

 

          12.6   Waiver.  No waiver of any rights under this Agreement or default hereunder will be valid or effective unless in writing signed by the party against whom enforcement of such waiver is sought.  Any waiver by either party of a breach of any provision of this Agreement or default hereunder shall not operate as or be construed to be a waiver of any other breach of such provision or of any breach of any other provision of this Agreement or any other default hereunder.  The failure of either party to insist upon strict adherence to any term of this Agreement on one or more occasions shall not be considered a waiver or to deprive such party of the right thereafter to insist upon strict adherence to that term or any other term of this Agreement.

 

          12.7   Counterparts.  This Agreement may be executed by the parties hereto in separate counterparts, each of which when so executed shall be deemed to be an original and all of which when taken together shall constitute one and the same document.

 

          12.8   No Joint Venture.  Nothing contained in this Agreement shall be construed to place the parties in the relationship of partners or joint venturers, or principal and agent or employer and employee, and no party shall have the power to obligate or bind the other party in any manner whatsoever.

 

          12.9   Headings.  The headings included in this Agreement are for the convenience of the parties only and shall not affect the construction or interpretation of this Agreement.

 

12.10    Amendments.  This Agreement may be modified, amended, superseded or terminated only by a writing duly signed by authorized representatives of both parties.