PROFESSIONAL SERVICE AGREEMENT between Chequed.com, Inc. and Client
This Service Agreement (“Agreement“) is entered into by and between Client and Chequed.com, Inc., (“Chequed”) a New York company with its principal place of business at 513 Broadway, Saratoga Springs, New York 12866 as a component of the specific Letter Agreement as executed between Chequed and Client.
For and in consideration of the mutual promises contained herein and other good and valuable consideration, the parties do hereby agree as follows:
SOFTWARE License. Subject to the terms and conditions set forth herein, Chequed grants Client a limited, nonexclusive, nontransferable right and license during the term of this Agreement to access and use and to allow its employees and employment candidates to access and use Chequed’s Internet Websites and applications thereon located at www.chequed.com, www.fitability.com and other websites operated by Chequed. The Internet Websites, the Chequed Predictive Employee Performance™ suite of online assessment modules which include; Assessments, Reference Checks, Reports, and other related products and any software thereof (the “Software”) are protected under copyright, trade secret and other intellectual property laws. Client may not sublicense, reproduce, distribute, market, sell, transfer, disclose, translate, modify, disassemble, or reverse engineer the Software or its documentation or create derivative works based on any portion of the Software or its documentation, or obtain possession of any source code or other technical material relating to the Software. Client shall not remove, alter, or obscure any copyright notice(s) or proprietary legend(s) contained in the Software or any reports or other materials provided to Client hereunder. Chequed and its suppliers reserve all rights not expressly granted in this Agreement.
Passwords. Chequed will issue to Client, its employees and its employment candidates certain passwords and user identification numbers. Client agrees not to disclose such passwords and user identification numbers issued to Client, its employees and its employment candidates to any third party.
CODE OF ETHICS. Client agrees to adhere to the following principles of conduct (“Code of Ethics”), which will survive the duration of this Agreement and shall remain in effect with regard to all the Chequed Software furnished to the Client. Client also agrees to accept full responsibility for the conduct of its employees, agents, contractors, or other entities operating in conjunction with or on Client’s behalf as it pertains to the Software and the Code of Ethics. Client shall indemnify and hold Chequed harmless from liability, damages and expense for any claim or matter deriving from (a) non-compliance with the Code of Ethics by Client, its employees, agents, or contractors or (b) Client’s violation of any third party rights of privacy or violations of any law or regulation, whether national, state or local.
- The Software, the reports thereof, and their interpretations will not be used as the sole or principal cause for not hiring, transferring, or promoting a candidate for hire, transfer or promotion since the Software and reports thereof are designed to complement other sound selection and hiring practices and;
- The Software and the reports thereof will be treated as confidential material, and as such, individuals’ Chequed reports will not be further analyzed, interpreted, discussed or revealed except with the individual who is the subject of the report and/or with other Client employees on a “need to know” basis. Client accepts full responsibility for the confidentiality of reports and interpretations retrieved by the Client via any means including retrieval via Internet, electronic mail or fax, and;
- Client is responsible for determining and reviewing its own job requirements, qualifications, selection procedures, and employment decisions to ensure job-relevance, consistency with business necessity and compliance with all statutes or regulations, rules, rulings, decisions, or requirements of law.
CONFIDENTIALITY. Chequed will keep all of Client’s candidate information confidential and will not disclose, sell, rent or distribute such information to any third parties. Chequed retains an ownership right of such data and may use the information on an anonymous basis for analysis, research and development.
INDEMNITY. Chequed will indemnify and hold Client harmless for any claim or for any adverse judgment on any claim and for the cost of the defense of any claim brought against it based solely on the validity or legality of a Chequed Assessment or other report, provided (a) Client has strictly followed the Code of Ethics above, (b) Client has notified Chequed within five (5) working days of learning of any legal claim or action against it involving the Chequed system and (c) the defense of such claim or action is conducted by Chequed. It is specifically agreed that Chequed has the exclusive right to enter and defend against any such claim.
DISCLAIMER; LIMITS OF LIABILITY.
A. CHEQUED MAKES NO WARRANTY OR REPRESENATON THAT THE CHEQUED SOFTWARE OR SEVICES WILL BE UNINTERRUPTED OR ERROR-FREE. IN ADDITION TO THE FOREGOING, NEITHER CHEQUED NOR ITS SUPPLIERS MAKES ANY WARRANTIES AND SPECIFICALLY DISCLAIMS ALL WARRANTIES AND CONDITIONS, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE RELATING TO THE ASSESSMENT SERVICES OR TO ANY OTHER SERVICES OR PRODUCTS PROVIDED HEREUNDER.
B. TO THE EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL EITHER PARTY OR THEIR SUPPLIERS BE LIABLE FOR INCIDENTAL, CONSEQUENTIAL OR OTHER INDIRECT DAMAGES ARISING OUT OF OR RELATING IN ANY MANNER TO THIS AGREEMENT UNDER ANY CAUSE OF ACTION, EVEN IF THE PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL CHEQUED NOR ANY OF ITS SUPPLIERS OR THEIR OFFICERS, DIRECTORS, EMPLOYEES OR AGENTS, BE LIABLE TO CUSTOMER FOR ANY LOSS OR INJURY ARISING OUT OF OR RELATING TO THIS AGREEMENT REGARDLESS OF THE FORM OF CLAIM OR ACTION, IN AN AMOUNT THAT EXCEEDS THE TOTAL FEES PAID BY CUSTOMER TO CHEQUED.
FEES AND PAYMENT. Client agrees to pay for all fees and services outlined in the Letter Agreement executed by Client. Accounts are due when billed. Payments over 30 days late are subject to a late charge of 1½% of the unpaid amount per month. Any additional services provided that are not listed on Letter Agreement will be charged at a mutually agreed upon rate. Unless otherwise stipulated in the terms and duration of the Letter Agreement, prices are subject to change with thirty days advance notice to Client. Client agrees to pay any and all costs of collection, including attorney’s fees, in the event of action for non-payment. All Travel and Expenses incurred by Chequed in the performance of this agreement (i.e. onsite training, client meetings, etc.) will be billed at Chequed direct cost. All Travel and Expenses will require client approval prior to expenditure on the part of Chequed.
TERM AND TERMINATION. This Agreement shall take effect on the Effective Date of the Letter Agreement and shall remain in effect for the Term of the Letter Agreement. Then after the initial Term of the Letter Agreement, this Agreement shall continue for consecutive twelve-month Renewal Terms unless either Party provides written notice to the other Party at least sixty (60) days prior to the end of the Initial Term or a Renewal Term.
SUSPENSION OR TERMINATION OF ACCESS. If Client breaches any of the Terms or conditions of this Agreement, Chequed may, at its sole discretion, (a) suspend Client’s access to the Chequed Software or (b) terminate Client’s access to the Chequed Software, thereby terminating this Agreement. Whether or not a breach results in suspension or termination depends on several factors, including but not limited to the severity of the breach, the potential harm to other users or to Chequed, and whether or not the breach is repeated or cured. If Chequed suspends or terminates Client’s right to access or use the Chequed Software, then Chequed shall, within 24 hours, provide notice to Client of such action. Suspension of Client’s access does not relieve Client from any payment obligations hereunder.
MISCELLANEOUS. This Agreement shall be governed by and construed in accordance with the laws of the State of New York without regard to its rules governing conflicts of law. The Parties agree that the exclusive venue for all actions and arbitrations relating in any manner to this Agreement shall only be in a federal or state court of competent jurisdiction located in Saratoga County, New York, U.S.A. If any provision of this Agreement is for any reason held unenforceable or invalid, then this Agreement shall be construed as if such provision were not contained in this Agreement. No action arising out of this Agreement may be brought by Client more than two years after the date the cause of action has accrued. Client may not assign this Agreement or any of its rights or obligations without the prior written consent of Chequed, and any such attempted assignment will be void. Subject to the foregoing, this Agreement shall inure to the benefit of and be binding upon the permitted successors, legal representatives and assigns of the parties hereto. Notwithstanding anything else set forth herein to the contrary, the relationship between Client and Chequed is an independent contractor relationship only, and nothing herein shall be construed to create a partnership, joint venture, franchise, employment, or any other agency relationship between the parties. If any provision hereof is declared invalid by a court of competent jurisdiction, such provision shall be ineffective only to the extent of such invalidity, so that the remainder of that provision and all remaining provisions of this Agreement will continue in full force and effect. The parties agree that this Agreement is the complete and exclusive statement of the Agreement between Chequed and Client, which supercedes any proposal or prior agreement, oral or written, and any other communications between Chequed and Client relating to the subject matter of this Agreement.