Terms and Conditions

MYHRFACTOR SELF-SERVICE ADVERTISING TERMS AND CONDITIONS

Myhrfactor , Inc. (“Myhrfactor ”) provides advertising services (“Services”) to you (“you” or “Advertiser”) subject to the following Myhrfactor Self-Serve Advertising Terms and Conditions (the “Agreement”). You are deemed to agree to all terms, conditions, and notices contained or referenced in this Agreement by: (a) submitting Online Orders to Myhrfactor via the Platform; (b) affirmatively accepting this Agreement during the registration process in the Platform; and/or (c) otherwise accessing or using the Services or any portion thereof. If you do not agree to all of the terms in this Agreement, you may not use the Services, and you must immediately cease using them. You and Myhrfactor may hereinafter also be referred to individually as “Party” and collectively as the “Parties.”

Myhrfactor reserves the right, at its discretion, to update or revise this Agreement from time to time without notice to you. Please check this Agreement periodically for changes. You can review the most current version of this Agreement at any time at http://www.Myhrfactor.com. Your continued use of the Services following the posting of any changes to this Agreement constitutes acceptance of any such changes. In addition, when using particular services or features of the Services, you shall be subject to any policies, guidelines or rules applicable to such services which may be posted from time to time. All such guidelines or rules are hereby incorporated by reference into this Agreement.
For adequate consideration, the sufficiency of which is hereby acknowledged, the Parties hereby agree as follows:

  1. DEFINITIONS

As used herein, each of the following terms shall have the meanings attributed to them as follows:

  1. “Affiliate” means, with respect to a Party, any entity that, directly or indirectly, controls, is controlled by, or is under common control with such Party; and “control” means the direct or indirect possession of the power to direct or cause the direction of the management and policies of another entity, whether through the ownership of voting securities, by contract or otherwise.
  2. “Agency” means an advertising agency that is submitting Job Listings on behalf of a third-party client.
  3. “Application Information” means any information submitted by a User applying for a job listed in a Job Listing.
  4. “Campaign Data” means the following aggregate and statistical data that Myhrfactor makes available via the Platform and that relates to Advertiser’s use of the Platform and the performance of Job Listing campaigns through the Distribution Channel(s): number of Clicks, number of applicants and such other information as Myhrfactor makes available from time to time.
  5. “Click” means any click by a User on a link in a Job Listing delivered in the Delivery Channel(s).
  6. “Confidential Information” means all technical, business, financial and other information of Party that derives economic value, actual or potential, from not being generally known to others, including, without limitation, any technical or non-technical data, designs, methods, techniques, drawings, processes, products, inventions, improvements, methods or plans of operation, research and development, marketing plans, business plans and financial information of such Party. The Confidential Information of Myhrfactor includes, without limitation, the Myhrfactor Property (except those portions of the Myhrfactor Site(s) that are made publicly available by Myhrfactor or with Myhrfactor’s prior written consent). The fees set forth in any Online Order, without limitation, are the Confidential Information of Myhrfactor .
  7. “Delivery Channel” means: (a) the Myhrfactor Site(s); and (b) any websites or online applications that are the subject of an Online Order and are not owned, operated, or controlled by Myhrfactor , but on which Myhrfactor has a contractual right to serve Job Listings.
  8. “Fee” has the meaning set forth in Section 4.1.
  9. “Intellectual Property Rights” means any patent rights, copyright, trade secret rights, trademark rights (including rights in trade names, trade dress, service marks, URLs or other source of business identifiers), rights in industrial property and industrial designs, moral rights, rights or authorship and attribution, and all other intellectual property or proprietary rights arising under the laws of any jurisdiction worldwide, including all rights or causes of action for infringement or misappropriation of any of the foregoing, and all rights in any registrations, applications, renewals, extensions, continuations, continuations-in-part, divisions or reissues for any of the foregoing.
  10. “Job Listings” means all job listings and other advertising content supplied by Advertiser, pursuant to an Online Order, for display through the Delivery Channel(s). Job Listings include any associated artwork, copy and audiovisual materials.
  11. “Online Order” means a written order, in the form of a Job Listing or Job Listings submitted electronically by Advertiser via the Platform, that is governed by this Agreement and that specifies the parameters under which Myhrfactor will deliver the Job Listings in the Delivery Channel(s).
  12. “Package” has the meaning set forth in Section 4.2.
  13. “Platform” means the proprietary online application, accessible via a Myhrfactor Site, through which Advertiser may manage Advertiser’s account, as further provided in Section 2.5.
  14. “Restricted Content” means any content or terms that: (a) violate applicable laws or regulations or promote or are related to fraudulent, deceptive, misleading or illegal activities (illegal drugs, phishing, terrorism, criminal activities, contests, pyramid schemes or chain letters); (b) promote or are related to alcohol, tobacco, gambling or weapons; (c) are related to pornographic or obscene material; (d) are related to excessively graphic or explicit violence; (e) are defamatory, inappropriate or profane; (f) infringe of violate the Intellectual Property Rights or rights of privacy or publicity of any third party; (g) are disparaging to Myhrfactor or third party operators of the Delivery Channel(s); (h) are discriminatory or constitute “hate speech”, whether directed at an individual or a group, and whether based upon the race, sex, creed, national origin, religious affiliation, sexual orientation or language of such individual or group; (i) promote or contain viruses, worms, corrupted files, cracks or other materials that are intended to or may damage or render inoperable software, hardware or security measures of Myhrfactor , any User, or any other third party; (j) contain advertising functionality that is intrusive, deceptive or contrary to generally accepted industry standards; (k) constitute unsolicited commercial email or online communications (i.e., “spam”) that violate Myhrfactor’s bulk email policies; or (l) are otherwise designated by Myhrfactor as unacceptable content from time to time.
  15. “Myhrfactor Site(s)” means the websites that are the subject of an Online Order and are owned, operated, or controlled by Myhrfactor .
  16. “Myhrfactor Property” means the Myhrfactor Site(s), Campaign Data, Platform, User Information, Confidential Information, any other content and technology that Myhrfactor provides or makes available to Advertiser for purposes of utilizing the services provided hereunder, and any and all look and feel, improvements, updates, modifications, translations, copies, compilations and derivative works related to any of the foregoing.
  17. “Term” means the period commencing on your acceptance of this Agreement pursuant to the first paragraph above and continuing until any termination of this Agreement in accordance with its terms.
  18. “User” means a human end user that accesses the Job Listings in the Delivery Channel(s).
  19. “User Information” means any information collected from Users, including without limitation any Application Information, and collected regarding user behavior on the Delivery Channel(s).
  20. RESPONSIBILITIES OF THE PARTIES
  21. Online Orders. Advertiser will have the ability to submit Online Orders via the Platform. Each Online Order will specify: (a) the type(s) and amount(s) of Job Listings purchased; (b) the price(s) for such Job Listings; (c) the start and end dates of each Job Listing campaign; and (d) such other parameters as Myhrfactor makes available via the Platform. The terms and conditions of this Agreement shall govern all Online Orders. Neither Party is obligated to enter into any Online Order, and all Online Orders a subject to acceptance by each Party. Myhrfactor reserves the right to refuse any Online Order in its sole discretion. Online Orders will be deemed accepted by Myhrfactor when it displays the first Job Listing impression under such Online Order. Modifications to Online Orders will not be binding unless Myhrfactor commences delivering Job Listing impressions in accordance with the modified Online Order. In the event of any inconsistency between any Online Order and this Agreement, this Agreement shall control to the extent of the inconsistency.
  22. Provision of Job Listings by Advertiser. Advertiser will provide the Job Listings to Myhrfactor in mutually agreed formats for distribution in the Delivery Channel(s). Advertiser agrees only to provide Job Listings that adhere to Myhrfactor’s then-current standard advertising and technical guidelines that Myhrfactor provides or makes available to Advertiser, including without limitation the Myhrfactor Job Posting Guidelines available at http://support.Myhrfactor -What-are-the-quality-guidelines-for-posting-a-job- and the Myhrfactor Feed Inclusion Guidelines available at http://support.Myhrfactor -What-are-your-quality-guidelines-for-feed-inclusion-, and Myhrfactor reserves the right to reject any non-conforming Job Listings. Advertiser shall not provide to Myhrfactor any Job Listings that contain or link to Restricted Content, and Myhrfactor reserves the right to reject any Job Listings that contain or link to Restricted Content.
  23. Display of Job Listings. Myhrfactor will use commercially reasonable efforts to distribute Job Listings in the Delivery Channel(s) in accordance with the Online Orders. Unless otherwise expressly provided in an Online Order, Myhrfactor will cause each Job Listing to be displayed in the selected Delivery Channel(s) for a period of thirty (30) days, after which such Job Listing will expire and will no longer be displayed. Notwithstanding anything to the contrary in this Agreement: (a) Myhrfactor’s display of Job Listings in accordance with the schedule set forth in any Online Order is contingent upon timely delivery of Job Listings by Advertiser; (b) the positioning of Job Listings on any Delivery Channel(s) is at the sole discretion of Myhrfactor ; (c) all Job Listing campaigns through the Delivery Channel(s) are pre-emptible and all placement is “run of schedule”; (d) due to the nature of the Delivery Channel(s) and Job Listings, Myhrfactor is not able to comply with any editorial adjacency guidelines of Advertiser; and (e) Myhrfactor will not be required to offer any “makegoods”, adjustments or refunds due to the placement or position in which a Job Listing has been displayed. Myhrfactor reserves the right to, and in its sole discretion may, at any time, review, reject or modify any Job Listing, or remove any Job Listing that does not comply: (i) with the requirements of this Agreement; (ii) applicable laws or regulations; or (iii) any policy of Myhrfactor or any third party relating to the Delivery Channel(s). Myhrfactor shall use commercially reasonable efforts to give Advertiser reasonable notice of any such decision and shall not be liable for any such decision. If any Job Listing is rejected, modified or removed by Myhrfactor , the Advertiser may contact Myhrfactor at http://support.Myhrfactor to appeal the decision, provided that Myhrfactor will have the right to make any final determination regarding the display of such Job Listing. Myhrfactor and/or the third-party operators of any Distribution Channel(s) may redesign the Delivery Channel(s) at any time in their sole discretion.
  24. Advertiser will have the right to cancel the display of any Job Listing (i.e., close the Job Listing) at any time during the thirty-day duration of the Job Listing through the cancellation feature available in the Platform. In addition, Myhrfactor will have the right to cancel the display of any Job Listing at any time, without notice, in the event that: (a) such Job Listing contains or links to Restricted Content, fails to meet or adhere to Myhrfactor’s then-current standard advertising and technical guidelines, in violation of Section 2.2, or violates any other requirement or restriction set forth in this Agreement; or (b) Advertiser is otherwise in violation of any provision of this Agreement. Upon receipt of any such cancellation, the Platform shall promptly cease displaying the Job Listing in the Delivery Channel(s). In the event of any such cancellation, Advertiser will not be entitled to a refund of any portion of the Fee paid for such Job Listing.
  25. Myhrfactor will establish and host a Platform account for Advertiser, through which Advertiser may submit and manage Online Orders (including re-posting or editing Job Listings), access and view current Campaign Data and Application Information , view transaction history and available credits purchased in Packages, and submit and update other account information. Such account is associated with a username and password, and Advertiser agrees to keep Advertiser’s account information confidential and not to share it with any third party (except for Advertiser’s Affiliates). Advertiser is fully responsible for all activities that occur under Advertiser’s account. When Advertiser registers for a Platform account, Advertiser’s registration information and other data will be collected and transmitted to the United States and/or other countries, using any technology infrastructure, for processing, use and storage by Myhrfactor , its Affiliates, and/or their respective agents in connection with providing the Services to Advertiser, or as otherwise described in Myhrfactor’s Privacy Policy, and Advertiser hereby consents to such collection, transfer, disclosure, storage and use.
  26. Maintenance; Support. Myhrfactor will use commercially reasonable efforts to keep the Platform operational on a continuous basis during the Term, exclusive of downtime necessary for scheduled and emergency maintenance. Myhrfactor will provide reasonable customer support to Advertiser during Myhrfactor’s normal business hours with respect to use of the Platform and Job Listing campaigns. Advertiser will direct all communications regarding Job Listings and/or the Delivery Channel(s) to Myhrfactor, even if the Job Listings are placed on a Delivery Channel that is a third party website.
  27. Agency Relationship. If Advertiser is an Agency, Advertiser is entering this Agreement and performing all obligations hereunder as an agent on behalf of its client principal. Advertiser will make available to Myhrfactor upon request written confirmation of the relationship between Advertiser and its client. The parties acknowledge that Advertiser’s performance of its obligations will involve collaboration with, and the assistance of, its client, and Advertiser will ensure that its client provides all performance and assistance necessary for Advertiser to satisfy all of Advertiser’s obligations hereunder.
  28. PROPRIETARY RIGHTS AND LICENSES
  29. Advertiser Property. As between Advertiser and Myhrfactor , except for the limited license granted herein, Advertiser retains all right, title and interest in and to, and Myhrfactor obtains no rights of any kind in, the Job Listings and all associated Intellectual Property Rights, but excluding any Myhrfactor Property.
  30. License to Myhrfactor . Subject to the terms and conditions of this Agreement, Advertiser hereby grants Myhrfactor a worldwide, non-exclusive, non-transferable (except as expressly permitted under this Agreement), royalty-free license: (a) during the term of any Online Order, to receive, obtain, use, reproduce, store, reformat, promote and market the Job Listings, and to transmit, distribute and publicly display the Job Listings to Users via the Delivery Channel(s); and (b) on a perpetual basis, to store any Job Listings displayed in any Delivery Channel for archival purposes. Myhrfactor may permit its agents any third-party operators of the Delivery Channel(s) to exercise the foregoing rights. All rights not expressly granted to Myhrfactor are reserved by Advertiser and its licensors.
  31. Myhrfactor Property. As between Advertiser and Myhrfactor , except for the limited license granted herein, Myhrfactor retains all right, title and interest in and to, and Advertiser obtain no rights of any kind in, the Myhrfactor Property and all associated Intellectual Property Rights, excluding the Job Listings. Under no circumstances shall Myhrfactor’s use or display of the Job Listings in conjunction with the Delivery Channel(s) constitute or result in a derivative work, compilation or joint work, and Advertiser shall not make any such claim.
  32. License to Advertiser. Subject to the terms and conditions of this Agreement, Myhrfactor hereby grants Advertiser a worldwide, non-exclusive, non-transferable (except as expressly permitted under this Agreement), royalty-free license, during the term of any Online Order, to access the Platform via the Internet and use the Platform for the sole purpose of submitting and managing Online Orders (including re-posting or editing Job Listings), accessing and viewing current Campaign Data and Application Information, viewing transaction history, and submitting and updating other account information. If Advertiser is an Agency, then it may permit its relevant third-party clients to exercise the foregoing rights, provided that Agency shall be responsible for any breach of this Section 3 caused by any such client. All rights not expressly granted to Advertiser are reserved by Myhrfactor and its licensors.
  33. License Restrictions. Except as expressly authorized under this Agreement, Advertiser shall not: (a) reverse engineer, disassemble, reconstruct, decompile, or create derivative works of the Myhrfactor Property; (b) store, copy, modify, transmit, or distribute any portion of the Myhrfactor Property; or (c) rent, lease, or provide access to the Myhrfactor Property on a service bureau basis. Advertiser will use the Myhrfactor Property solely for authorized and legal purposes in compliance with any applicable laws, regulations and other requirements issued by any government. Without limiting the generality of the foregoing, Advertiser shall not transfer, distribute or disclose any Campaign Data and/or Application Information to any third party or foreign jurisdiction without the prior written consent of Myhrfactor , and Advertiser shall use all Campaign Data and/or Application Information solely for Advertiser’s internal business purposes.
  34. PAYMENTS OBLIGATIONS
  35. Advertiser shall pay the fees set forth in the applicable Online Order (“Fees”). Myhrfactor reserves the right to modify the Fees applicable to any new or renewal Online Order in its sole discretion.
  36. Advertiser will have the ability to purchase a package of credits for multiple Job Listing postings at a set price, which will reflect a discount off the price per individual Job Listing (“Packages”). Each credit will correspond to the posting of one (1) Job Listing for a period of thirty (30) days. Advertiser will be charged the total price of a selected Package in advance. Advertiser will use Package credits to post Job Listings by submitting Online Orders through Advertiser’s account on the Platform.
  37. Advertiser shall remit Fees in accordance with the payment terms set forth in the applicable Online Order. All Fees shall be billed, and all payments made, in the currency determined and specified by Myhrfactor. Advertiser shall pre-pay the full amount of Fees stated in the Online Order to fund Advertiser’s account, and Advertiser authorizes Myhrfactor to debit Fees from such account in accordance with the terms of the Online Order. Advertiser must use any individual Job Listing credits, or credits in a Package, within twelve (12) months from the date of purchase, and any credits that remain unused after twelve (12) months will expire. Myhrfactor will have no obligation to refund or re-credit any Fees prepaid for any expired credits, and any refunds or credit with respect to such unused Fees are, to the fullest extent permitted by applicable law, at the sole discretion of Myhrfactor . In the event Advertiser elects to re-post any Job Listing, Advertiser will be required to purchase another credit for such Job Listing or use an available Package credit.
  38. Advertiser shall bear all local, state and federal sales, use, gross receipts, excise, import or export, value added or similar taxes, duties, fees, assessments, levies, non-resident withholding, goods and services tax, or other similar government charges (“Taxes”), if any, legally imposed in connection with the Fees hereunder; provided, however, that Advertiser shall not be responsible for franchise taxes applicable to Myhrfactor or taxes on Myhrfactor’s net income, profits, business assets, or ad valorem personal property.
  39. Disputes Regarding Fees. If Advertiser disputes any charge under this Agreement, Advertiser must notify Myhrfactor in writing and by calling (312) 254-5003 within sixty (60) days of any such charge; failure to so notify Myhrfactor shall result in the waiver by Advertiser of any claim relating to any such disputed charge. The Parties shall address any disputes with respect to Fees in accordance with Section 10.7.
  40. CONFIDENTIALITY; PRIVACY
  41. Confidentiality Obligations. Advertiser may be granted access to Confidential Information of Myhrfactor during the Term. Advertiser shall: (a) strictly preserve and protect the confidentiality of Myhrfactor’s Confidential Information and not disclose such Confidential Information to any third party other than Advertiser’s employees, subcontractors and agents who have a need to receive such Confidential Information and who are subject to nondisclosure obligations as protective as those set forth herein; and (b) refrain from using the Confidential Information of Myhrfactor except as contemplated in this Agreement. Advertiser shall use no less care to prevent unauthorized disclosure or use of the Confidential Information of Myhrfactor than Advertiser uses to maintain the confidentiality of its own non-public information, and in no event less than a reasonable degree of care. Notwithstanding the foregoing, Advertiser shall have no obligation with respect to information that Advertiser can demonstrate: (i) is or becomes publicly available through no act or omission of Advertiser; (ii) is lawfully obtained from a third party without restrictions on disclosure; (iii) is independently developed by Advertiser without access to such information; or (iv) was rightfully in possession of, or known to, Advertiser without any obligation of confidentiality prior to receiving it from Myhrfactor . Furthermore, Advertiser may disclose the Confidential Information of Myhrfactor if Advertiser becomes legally compelled to disclose such Confidential Information (whether by judicial or administrative order or applicable law, rule or regulation), provided that Advertiser so compelled shall use commercially reasonable efforts to avoid such disclosure and to provide Myhrfactor with prompt notice thereof so that Myhrfactor may seek a protective order or other appropriate remedy to prevent such disclosure. Advertiser acknowledges that the unauthorized disclosure or use of the Confidential Information of Myhrfactor may cause irreparable harm to Myhrfactor, which harm cannot be compensated by damages alone. Therefore, in addition to all other rights and remedies at law and in equity, Myhrfactor may seek an injunction to prevent a violation of the obligations of confidentiality.
    • (a) The Parties shall each comply with all applicable privacy laws, regulations, and other requirements made or issued by any government relating to the protection of personal or personally identifiable information of all third parties, and Advertiser shall take any actions, as directed by Myhrfactor , that are necessary for Myhrfactor to maintain such legal compliance. Each Party shall post and adhere to a privacy policy that complies with all applicable laws, regulations, and generally accepted industry standards at all times during the Term, and that adequately discloses such Party’s collection, use and disclosure of User Information described in this Agreement. Advertiser shall not, and shall not engage or authorize any third party to, collect any User Information from any Delivery Channel.
    • (b)Communications with Advertiser. Myhrfactor has the right to communicate with and provide notices to Advertiser in the manner deemed appropriate by Myhrfactor for the performance of its obligations hereunder, including via phone, email, Platform service notice or physical mail. Such communications and notices may include information about applicable fees and charges, transactional information and other information concerning or related to the Platform and Job Listings. By using the Platform and/or submitting Job Listings to Myhrfactor , Advertiser consents to receiving any such communications and notices from Myhrfactor and agrees that any such communications will satisfy any legal notice requirements, including that such communications be in writing. Notices from Myhrfactor shall be considered to have been given at the time they are sent.
  1. REPRESENTATIONS AND WARRANTIES
  1. Mutual Representations and Warranties. Each Party represents and warrants during the Term that: (a) it has the full corporate right, power and authority to enter into this Agreement and to perform its obligations hereunder; (b) the performance of its obligations hereunder comply with all applicable laws, rules and regulations (including privacy, export control and obscenity laws); (c) this Agreement will constitute a legal, valid and binding obligation of such Party, enforceable against it in accordance with its terms; (d) the performance of this Agreement will not violate any agreement to which it is a party or by which it is otherwise bound; and (e) any software or code provided or made available by such Party in connection with this Agreement does not and will not contain any viruses, trap doors, hidden sequences, hot keys, time bombs or other malicious code.
  2. Additional Representations and Warranties of Advertiser. Advertiser further represents and warrants during the Term that: (a) it has all consents, approvals, licenses, and permissions necessary for it to perform all of its obligations under this Agreement and to grant the licenses granted herein; (b) Advertiser holds all necessary rights and permissions to advertise the jobs included in the Job Listings and Advertiser’s website; and (c) the Job Listings (including any search terms purchased or used by Advertiser in connection with the Job Listings), and all claims, statements, content, products and services contained or referenced therein or in any site to which the Job Listings link: (i) do not violate any law or regulation or infringe or misappropriate any Intellectual Property Rights of any third party; (ii) do not breach any duty toward or rights of any person or entity including rights of publicity or privacy, and have not otherwise resulted in, and will not result in, any consumer fraud, product liability, tort, breach of contract, injury, damage or harm of any kind to any person or entity; and (iii) do not contain any Restricted Content.
  3. Additional Agency Representations and Warranties. If Advertiser is an Agency, Advertiser further represents and warrants during the Term that it has all consents, approvals, licenses, authority and permissions necessary for it to act as an agent on behalf of its third-party client hereunder, to bind such client to this Agreement, to perform all of Advertiser’s obligations under this Agreement, and to grant the licenses granted herein.
  4. Warranty Disclaimer. EXCEPT AS EXPRESSLY SET FORTH HEREIN, NEITHER PARTY NOR ITS AFFILIATES OR LICENSORS MAKES ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR ARISING BY USAGE OF TRADE, COURSE OF DEALING, OR COURSE OF PERFORMANCE, AND EACH PARTY HEREBY DISCLAIMS THE SAME. MYHRFACTOR DOES NOT REPRESENT OR WARRANT THAT ANY TECHNOLOGY, CONTENT OR OTHER MATERIALS PROVIDED BY IT ARE FREE OF ERRORS, DEFECTS OR INACCURACIES, OR THAT THEY WILL BE ACCESSIBLE WITHOUT INTERRUPTION. IN ADDITION, MYHRFACTOR MAKES NO REPRESENTATION, WARRANTY OR GUARANTEE WITH RESPECT TO TRAFFIC, USAGE, CLICK-THROUGH RATES, CONVERSIONS, THE LEVEL OF IMPRESSIONS OF JOB LISTINGS OR CLICKS ON ANY JOB LISTINGS, THE RANKING OR PLACEMENT OF JOB LISTINGS WITHIN THE SEARCH RESULTS ON ANY DELIVERY CHANNEL, OR ANY OTHER RESULTS OF ANY ADVERTISING CAMPAIGN.
  5. INDEMNIFICATION
  6. Advertiser Indemnification. Except to the extent that Myhrfactor is obligated to indemnify Advertiser pursuant to Section 7.2, Advertiser, at its own expense, will indemnify, defend and hold harmless Myhrfactor , its Affiliates and their respective officers, directors, employees, representatives and agents (each a “Myhrfactor Indemnitee”) from and against any claim, demand, action, class action, investigation or other proceeding, including but not limited to all damages, losses, liabilities, judgments, costs and expenses (including reasonable attorneys’ fees) arising therefrom (each a “Claim”), brought by any third party against a Myhrfactor Indemnitee to the extent that such Claim is based on, or arises out of: (a) a breach, or potential breach, of any of Advertiser’s obligations, representations or warranties under this Agreement; (b) any jobs, products or services offered, sold or licensed through the Job Listings or Advertiser’s website; or (c) any alleged or actual fraud, gross negligence or willful misconduct of Advertiser or its agents. THIS SECTION 7.1 STATES MYHRFACTOR’S SOLE AND EXCLUSIVE REMEDY AND THE SOLE OBLIGATION OF ADVERTISER AND ITS AFFILIATES AND LICENSORS FOR ANY ALLEGED INFRINGEMENT OF ANY INTELLECTUAL PROPERTY OR PROPRIETARY RIGHT CAUSED BY THE JOB LISTINGS.
  7. Indemnification Procedures. The obligations of Advertiser under this Agreement to defend, indemnify and hold harmless the Myhrfactor Indemnitees shall be subject to the following: (a) the Myhrfactor Indemnitee shall provide Advertiser with prompt notice of the claim giving rise to such obligation; provided, however, that any failure or delay in giving such notice shall only relieve Advertiser of its obligation to defend, indemnify and hold the Myhrfactor Indemnitee harmless to the extent it reasonably demonstrates that its defense or settlement of the claim or suit was adversely affected thereby; (b) Advertiser shall have sole control of the defense and of all negotiations for settlement of such claim or suit; provided, however, that Advertiser shall not settle any claim unless such settlement completely and forever releases the Myhrfactor Indemnitee from all liability with respect to such claim or unless the Myhrfactor Indemnitee consents to such settlement in writing (which consent shall not be unreasonably withheld); and (c) the Myhrfactor Indemnitee shall cooperate with Advertiser in the defense or settlement of any such claim or suit; provided, however, that the Myhrfactor Indemnitee shall be reimbursed for all reasonable out-of-pocket expenses incurred in providing any cooperation requested by Advertiser. Subject to clause (b) above, the Myhrfactor Indemnitee may participate in the defense of any claim or suit in which the Myhrfactor Indemnitee is involved at its own expense.
  8. LIMITATION OF LIABILITY

NEITHER MYHRFACTOR NOR ITS LICENSORS OR AFFILIATES SHALL BE LIABLE TO ADVERTISER OR ANY THIRD PARTY UNDER THIS AGREEMENT, IN CONTRACT OR IN TORT, OR UNDER ANY OTHER LEGAL THEORY (INCLUDING STRICT LIABILITY), FOR ANY INDIRECT, PUNITIVE, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR SIMILAR DAMAGES, INCLUDING LOST PROFITS OR REVENUES, EVEN IF ADVERTISER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH CLAIM.; IN NO EVENT SHALL THE AGGREGATE LIABILITY OF MYHRFACTOR OR ITS AFFILIATES OR LICENSORS UNDER THIS AGREEMENT EXCEED THE TOTAL AMOUNT OF FEES PAID OR PAYABLE BY ADVERTISER DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY.

  1. TERMINATION
  2. Termination for Convenience. Either Party may terminate this Agreement and/or any outstanding Online Orders for convenience at any time upon thirty (30) days prior written notice to the other Party.
  3. Effect of Expiration or Termination. Upon the expiration or termination of this Agreement for any reason: (a) all licenses granted hereunder will immediately terminate; (b) Advertiser will cease providing Job Listings hereunder and cease all use of the Platform; (c) Myhrfactor will promptly cease displaying any Job Listings in the Distribution Channels; (d) within ten (10) days after the date of expiration or termination, each Party will either return to the other Party or destroy all copies of the Confidential Information of the other Party; (e) Advertiser shall promptly pay to Myhrfactor all Fees that are accrued and payable as of the date of such expiration or termination; and (f) Sections 1, 3.1, 3.2(b), 3.3, 3.4(b), 3.5, 4.5, 5, 6.4, 7, 8, 9.2 and 10 shall survive. In the event that Advertiser exercises its right to terminate this Agreement or any outstanding Online Order or Job Listing for convenience pursuant to Sections 2.4 or 9.1, Myhrfactor will have no obligation to refund the amount of any unused Fees. Neither Party will be liable for exercising any termination right in accordance with this Agreement. Except as expressly provided, expiration or termination of this Agreement shall not release either Party from any liability or obligation that had already accrued as of the effective date of expiration or termination, and the expiration or termination shall not constitute a waiver or release of, or otherwise be deemed to prejudice or adversely affect, any rights, remedies or claims, whether for damages, injunctive relief, or otherwise, which a Party may have hereunder at law, in equity or otherwise or which may arise out of or in connection with such termination.
  4. Additional Remedies for Breach. In the event that Advertiser materially breaches any provision of this Agreement, in addition to any other remedies available to Myhrfactor, Myhrfactor may suspend: (a) the display of Job Listings in the Delivery Channel(s); or (b) the ability of the Advertiser Site(s) to access the Platform or submit Job Listings.
  5. MISCELLANEOUS
  6. Compliance with Laws. Each Party shall comply with all applicable laws, rules and regulations in the performance of this Agreement.
  7. Myhrfactor will have the right to include the Advertiser Site(s) and associated logo(s) in a list of Myhrfactor’s advertisers published in presentation materials, marketing literature and on the Myhrfactor Site(s), subject to Myhrfactor’s  compliance with any reasonable trademark usage guidelines that may be furnished by Advertiser. Except as provided above, neither Party may use or refer to the name of the other Party or any trademark or service mark of such other Party in any marketing, advertising, press release, or other public announcement without the prior written consent of the other Party, which shall not be withheld, delayed or conditioned unreasonably.
  8. Force Majeure. Neither Party shall be liable to the other for any default or delay in the performance of any of its obligations under this Agreement if such default or delay is caused, directly or indirectly, by any cause beyond such Party’s reasonable control.
  9. Advertiser may not assign this Agreement or any of its rights or obligations hereunder without the prior written consent of Myhrfactor , which consent will not be unreasonably withheld or delayed. This Agreement shall be binding on, and shall inure to the benefit of, the authorized successors and assigns of the Parties. Any attempt by Advertiser to assign other than in accordance with this provision shall be null and void.
  10. Any notice required or permitted to be given by Myhrfactor under this Agreement shall be delivered as provided in Section 5.2(b). Any notice required or permitted to be given by Publisher under this Agreement shall be in writing and shall be personally delivered, sent by a reputable overnight courier service (e.g., Federal Express), or sent by first class mail (certified or registered) to the following address: Myhrfactor , Inc., Atten: CFO, 370 San Aleso Ave., Suite 200, Sunnyvale, CA 94085. Notices from Publisher shall be considered to have been given at the time of actual delivery in person, one (1) business day after deposit with an overnight courier service, or five (5) business days after deposit in the mail.
  11. Independent Contractors; Non-Exclusive Relationship. The Parties acknowledge that the relationship of Myhrfactor and Advertiser is that of independent contractors and that nothing contained in this Agreement shall be construed to place Myhrfactor and Advertiser in the relationship of principal and agent, master and servant, partners or joint venturers. It is expressly understood and agreed that this Agreement does not grant Advertiser an exclusive privilege to receive any or all products or services of the type described in this Agreement.
  12. Dispute Resolution. If any dispute arises under this Agreement, each Party shall submit the dispute for resolution by a level of employee or officer with decision-making authority. If the dispute cannot be resolved in thirty (30) days, any Party may pursue all available remedies at law or in equity.
  13. Choice of Law; Jurisdiction and Venue. This Agreement shall be governed by the laws of the State of California, without regard to its conflict of law rules. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. Any claims or litigation arising under this Agreement will be brought by the Parties solely in state and federal courts located in Santa Clara County, CA.
  14. Attorneys’ Fees. If any action at law or in equity is necessary to enforce the terms of this Agreement, the prevailing Party shall be entitled to reimbursement from the other Party for its expenses and reasonable attorneys’ fees associated with the action, in addition to any other relief to which such prevailing Party may be entitled.
  15. Entire Agreement. This Agreement, together with any Online Orders, embodies the entire agreement between the Parties with respect to the subject matter hereof and thereof, and supersedes all prior agreements and understandings between the Parties relating to the subject matter hereof and thereof.
  16. Amendment; Waiver. Myhrfactor may amend this Agreement as provided in the second paragraph of this Agreement. No amendment of any provision of this Agreement by Publisher shall be effective unless set forth in a writing signed by a representative of Myhrfactor and Advertiser, and then only to the extent specifically set forth therein. No course of dealing on the part of any Party, nor any failure or delay by either Party with respect to exercising any of its rights, powers or privileges under this Agreement or law shall operate as a waiver thereof. No waiver by either Party of any condition or the breach of any provision of this Agreement in any one or more instances shall be deemed a further or continuing waiver of the same or any other condition or provision.
  17. If any term of this Agreement or part hereof not essential to the commercial purpose of this Agreement shall be held to be illegal, invalid or unenforceable, it is the intention of the Parties that the remaining terms hereof or part hereof shall constitute their agreement with respect to the subject matter hereof and thereof and all such remaining terms, or parts thereof, shall remain in full force and effect. To the extent legally permissible, any illegal, invalid or unenforceable provision of this Agreement shall be replaced by a valid provision which will implement the commercial purpose of the illegal, invalid or unenforceable provision.
  18. The headings contained in this Agreement are for convenience of reference only and are not intended to have any substantive significance in interpreting this Agreement.

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