e-Business Hosting Agreement - International Business Machines Corp. and Recruitsoft Inc.
e-BUSINESS HOSTING AGREEMENT
This e-business Hosting Agreement ("Agreement") between International Business
Machines Corporation ("IBM") and RECRUITSOFT, INC. ("Customer"), sets forth the
terms and conditions under which IBM will provide web hosting and related
services ("Services") to Customer. The Agreement includes the terms and
conditions and the documents referenced herein ("Base Terms"), e-business
hosting services order forms accepted by IBM ("Order Forms"), and applicable
attachments referenced in Exhibit A of such Order Forms ("Attachments")
including Attachments for Services options selected by Customer ("Service Option
Attachments"). In the event of a conflict between the Base Terms and an
Attachment or an Order Form, the Base Terms will prevail, except where an
Attachment, Order Form, or a provision contained therein expressly states that
it will prevail over the Base Terms.
1.0 DEFINITIONS
a. "Acceptable Use Policy" means the Acceptable Use Policy for IBM e-business
Services, located on the Internet at
www.ibm.com/services/e-business/aup.html, as of the Effective Date, and any
subsequent modification in accordance with Section 12.2 below.
b. "Affiliates" means entities that control, are controlled by, or are under
common control with a party to this Agreement.
c. "Base Components" means the hardware and software that IBM makes available,
if any, as specified in Order Forms and associated Service Option
Attachments.
d. "Content" means information, software, and data that Customer provides,
including, without limitation, any hypertext markup language files,
scripts, programs, recordings, sound, music, graphics, images, applets or
servlets that Customer or its Subcontractors or Services Recipients create,
install, upload or transfer in or through the e-business Hosting
Environment and/or Customer Components.
e. "Content Administrator" means an employee or Subcontractor of Customer who
is authorized by Customer to install, upload and/or maintain Content using
a User Identification.
f. "Customer Components" means the hardware, software and other products, data
and Content that Customer provides, including those specified in Service
Option Attachments.
g. e-business Hosting Environment' means the Base Components and the IBM
provided Internet access bandwidth, collectively.
h. "IBM e-business Hosting Center" means a facility used by IBM to provide
Services.
i. "Internet" means the public worldwide network of TCP/IP-based networks.
j. "Materials" means literary or other works of authorship (such as programs,
program listings, programming tools, documentation, reports, drawings and
similar works) that IBM may deliver to Customer as part of Services.
"Materials" does not include licensed program products available under
their own license agreements or Base Components.
k. "Required Consents" means any consents or approvals required to give IBM
and its Subcontractors the right or license to access, use and/or modify in
electronic form and in other forms, including derivative works, the
Customer Components, without infringing the ownership or intellectual
property rights of the providers, licensors, or owners of such Customer
Components.
l. "Service Option Ready Date" means the date that IBM has notified Customer
that IBM has completed the implementation activities specified in an
applicable Service Option Attachment.
m. "Services Recipients" means any entities or individuals receiving or using
the Services, or the results or products of the Services.
n. "Service Option Attachment Start Date" means the day after the date of the
last signature on an Order Form authorizing the Services under an
applicable Service Option Attachment.
o. "Subcontractor" means a contractor, vendor, agent, or consultant selected
and retained by IBM or Customer, respectively.
p. TCP/IP" means Transmission Control Protocol/Internet Protocol.
q. "User Identification" or "ID" means a string of characters that uniquely
identifies a Content Administrator.
2.0 IBM SERVICES RESPONSIBILITIES
IBM will perform the Services described in applicable Attachments.
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3.0 TERM AND TERMINATION
3.1 TERM
This Agreement will be effective beginning on 12:01 a.m., Eastern Time, on the
day after the date of last signature to these Base Terms ("Effective Date") and
ending on the expiration and/or termination of all Service Option Attachments,
unless the Agreement is terminated earlier in accordance with the terms herein.
The term of each Service Option Attachment is as specified on the applicable
Order Form.
3.2 RENEWAL
Each Service Option Attachment will renew for an additional one (1) year term
upon the mutual agreement of Customer and IBM. The Customer must provide IBM
written notice of its desire to renew. Such notice must be received by IBM at
least thirty (30) days prior to the expiration of the then current term for the
applicable Service Option Attachment.
3.3 TERMINATION FOR CAUSE
Customer or IBM may terminate this Agreement for material breach of this
Agreement by the other upon written notice containing the specific nature and
dates of the material breach. The breaching party will have thirty (30) days
from receipt of notice to cure such breach, except for nonpayment by Customer,
which must be cured within five (5) days from receipt of notice. If such breach
has not been timely cured, then the non-breaching party may immediately
terminate this Agreement upon written notice. In the event that Customer
disputes, in good faith, any amount in an invoice, Customer shall notify IBM in
writing of the amount of and basis for such dispute in writing within fifteen
(15) business days of receipt of invoice. Customer shall pay all undisputed
amounts in accordance with the payment terms in this Agreement and may withhold
payment of the disputed amount for a reasonable time during which the parties
shall resolve such dispute.
3.4 TERMINATION FOR CONVENIENCE
Customer may terminate this Agreement (including all Service Option Attachments)
or any Service Option Attachment (with the exception of any Service Option
Attachment that is a prerequisite for the provision of Services under a
non-terminated Service Option Attachment) for convenience by:
a. providing at least one month's prior written notice to IBM; and
b. paying as an early termination charge for each Service Option Attachment to
be terminated, the amount specified in such Service Option Attachment or,
if no amount is specified, an amount equal to one months' charges of the
applicable monthly recurring charge of such Service Option Attachment. Such
termination charges only apply upon early termination of an initial term of
any Service Option Attachment and do not apply to any renewal term.
3.5 EFFECT OF TERMINATION
Upon the date of termination for either cause or convenience, all Customer
payment obligations accrued hereunder through the date of termination will
become due and payable. The termination of selected Service Option Attachments
will not affect Customer's obligation to pay charges under other Service Option
Attachments.
4.0 CHARGES AND PAYMENT
4.1 CHARGES
Charges for applicable Services will be specified in Service Option Attachments
and Order Forms. Charges can be specified as one-time, installment, recurring,
or usage. IBM will invoice such Charges when they begin or are due as set forth
in Service Option Attachments.
4.2 PAYMENT
IBM invoices will specify the amount due. Notwithstanding the terms on an
invoice, payment is due and payable thirty (30) days after your receipt of an
invoice from IBM. Customer agrees to pay accordingly, including any late payment
fees. Payment will be made in United States dollars.
4.3 TAXES
Customer will pay or provide appropriate exemption documentation for all taxes,
duties, levies, and any other fees (except for taxes based upon IBM's net
income) related to the Services imposed by any governmental authorities. Charges
specified herein (including in an Order Form) are exclusive of any such taxes,
duties, levies or fees.
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5.0 WARRANTIES AND DISCLAIMERS
5.1 IBM REPRESENTATIONS AND WARRANTIES IBM REPRESENTS AND WARRANTS THAT:
a. it will perform the Services using commercially reasonable care and skill
and in accordance with the applicable Service Option Attachments; and
b. it has the requisite corporate power and authority to execute, deliver and
perform its obligations under this Agreement.
5.2 EXCLUSIVITY OF WARRANTIES
THE WARRANTIES IN SECTION 5.1 ARE THE EXCLUSIVE WARRANTIES FROM IBM. THEY
REPLACE ALL OTHER WARRANTIES, INCLUDING, WITHOUT LIMITATION, THE IMPLIED
WARRANTIES OF MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE.
5.3 SECURITY
a. Customer acknowledges that IBM offers numerous security options, specified
in Service Option Attachments. It is the Customer's responsibility to
select, on an Order Form, the set of security options that it determines
meet Customer's needs. IBM will implement such selected security options as
specified in the applicable Service Option Attachment.
b. Customer acknowledges that IBM does not control the transfer of data over
telecommunications facilities, including the Internet. IBM does not warrant
secure operation of the Services or that it will be able to prevent third
party disruptions of the e-business Hosting Environment or Customer
Components.
c. Customer agrees that IBM shall have no liability for any provision of
security-related services or advice that IBM may voluntarily provide
outside the scope of selected Service Option Attachments.
5.4 OTHER DISCLAIMERS
a. IBM does not warrant uninterrupted or error-free operation of any Service
or that IBM will correct all defects.
b. IBM does not make any representation or warranty with respect to Customer's
responsibilities set forth in Section 10.5.
c. IBM provides Materials, non-IBM products, and non-IBM services WITHOUT
WARRANTIES OF ANY KIND. However, non-IBM manufacturers, suppliers, or
publishers may provide their own warranties to you.
6.0 CONFIDENTIALITY
Most information exchanged between the parties is non-confidential. Exchange of
confidential information by the parties will be governed by the terms and
conditions of a separate written Agreement for Exchange of Confidential Exchange
("AECI") executed between the parties in June 2003. With respect to any
confidential information contained in or traveling through the e-business
Hosting Environment or Customer Components, as is contemplated herein, the
provisions of Sections 5, 8, and 9 herein will prevail to the extent of any
inconsistent provisions in the confidentiality agreement.
7.0 INDEMNIFICATION
7.1 INDEMNIFICATION BY IBM
If a third party claims that Materials or Base Components IBM provides to
Customer infringe that party's patent, copyright, trademark, trade secret,
service mark, or mask work right, IBM will defend the Customer and its
employees, officers, and directors against that claim at IBM's expense and pay
all costs, damages, and reasonable attorneys' fees that a court finally awards
(or which IBM agrees in any final settlement), provided that Customer:
a. promptly notifies IBM in writing of the claim; and
b. allows IBM to control, and cooperates with IBM in, the defense and any
related settlement negotiations. If such a claim is made or appears likely
to be made, Customer agrees to permit IBM to enable Customer to continue to
use the Materials or Base Components, or to modify them, or replace them
with non-infringing Materials or Base Components that are at least
functionally equivalent. If IBM determines that none of these alternatives
is reasonably available, Customer agrees to return the Materials or Base
Components (if in Customer's possession) to IBM on IBM's written request.
IBM will give Customer a credit equal to the amount Customer paid IBM for
the applicable Materials or for use of the applicable Base Components up to
a maximum of twelve (12) months of applicable charges. This is IBM's entire
obligation to Customer with regard to any claim of infringement.
Notwithstanding the foregoing, IBM is not responsible for third party
claims to the extent that the infringement is the result of:
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1. anything Customer provides which is incorporated into the Materials;
2. Customer's modification of the Materials;
3. the combination, operation, or use of the Materials with any product,
data, or apparatus that IBM did not provide; or
4. non-IBM hardware, software, or data, including those that may be in
the Base Components.
7.2 INDEMNIFICATION BY CUSTOMER
a. Customer will defend IBM and its Affiliates and their employees, officers,
and directors, at Customer's expense, and pay all costs, damages, and
reasonable attorneys' fees that a court finally awards (or which Customer
agrees in any final settlement) for any third party claim:
1. that Content or Customer's use of the Services violates Customer's
obligation in Sections 10.2 (b) and 10.4 (b);
2. that Customer Components infringe that party's patent, copyright,
trademark, trade secret, service mark, or mask work right; or
3. that is brought by a Services Recipient and is related, directly or
indirectly, to the Services (excluding claims to the extent they are
the responsibility of IBM under Section 7.1, above); or
4. arising out of or related to a mechanics' lien Customer is required to
cancel and discharge pursuant to this Agreement.
b. For indemnification under this Section 7.2, IBM will:
1. promptly notify Customer in writing of the claim; and
2. allow Customer to control, and will cooperate with Customer in, the
defense and any related settlement negotiations.
8.0 LIMITATION OF IBM'S LIABILITY
Circumstances may arise where, because of a default on IBM's part or other
liability, Customer is entitled to recover damages from IBM. Regardless of the
basis on which Customer is entitled to claim damages from IBM (including
fundamental breach, negligence, misrepresentation, or other contract or tort
claim), IBM is liable for no more than:
a. indemnification payments as provided in Section 7.1;
b. damages for bodily injury (including death) and damage to real property and
tangible personal property;
c. any damages associated with IBM's infringement or violation of the patent,
copyright, trademark, trade secret, service mark, or mask work right rights
of Customer; and
d. the amount of any other actual direct damages, up to the greater of
$100,000 or the charges paid by Customer to IBM for the Services in the
twelve (12) months immediately preceding the accrual of the first claim
related to the Services. The foregoing limit also applies to any of IBM's
Affiliates and Subcontractors. It is the cumulative maximum for which IBM
and its Affiliates and Subcontractors are collectively responsible. Under
no circumstances is IBM, its Affiliates or its Subcontractors liable for
any of the following:
1. third party claims against Customer for damages (other than those
expressly provided in Subsections 8.0(a) and 8.0(b)); or
2. loss of, or damage to, Customer's or any other entity's records or
data.
8.0 (B) CUSTOMER'S LIABILITY
Circumstances may arise where, because of a default on Customer's part or other
liability, IBM is entitled to recover damages from Customer. Regardless of the
basis on which IBM is entitled to claim damages from Customer (including
fundamental breach, negligence, misrepresentation, or other contract or tort
claim), Customer is liable for no more than:
a. any amounts owing to IBM under this Agreement (including amounts owing for
Services rendered or services that would have been rendered under this
Agreement but for Customer's breach of this Agreement);
b. indemnification obligations of Customer as provided in Section 7.2;
c. damages for bodily injury (including death) and damage to real property and
tangible personal property;
d. any damages associated with Customer's infringement or violation of the
patent, or copyright, trademark, trade secret, service mark, or mask work
rights of IBM or its Affiliates; and
e. the amount of any other actual direct damages up to the greater of
US$100,000 or the charges paid by Customer to IBM for the Services in the
twelve (12) months immediately preceding the accrual of the first claim
related to the Services.
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The foregoing limit also applies to any of Customer's Affiliates. This Section
8.0(B) is the cumulative maximum for which Customer and its Affiliates are
collectively responsible. Under no circumstances is Customer or its Affiliates
liable for any of the following:
(i) third party claims against IBM for damages (other than those expressly
provided in clauses (b) and (c) of this subparagraph (B); or
(ii) loss of, or damage to, IBM's records or data.
9.0 DISCLAIMER OF CONSEQUENTIAL DAMAGES
Except for damages for which the Customer is liable as set forth in Section
8.0(B)(d), in no event will either party be liable to the other for special,
incidental, or indirect damages or for any consequential damages (including lost
profits or savings), even if they are informed of the possibility; provided that
this Section 9 does not apply to Customer's failure to pay any amounts owing to
IBM under this Agreement (including amounts owing for Services that would have
been rendered but for Customer's breach of this Agreement).
10.0 OTHER CUSTOMER OBLIGATIONS
10.1 SERVICES SUPPORT
Customer will comply with its responsibilities to support the Services as
specified in applicable Attachments. Such obligations are to be performed at no
charge to IBM.
10.2 REPRESENTATIONS AND WARRANTIES
Customer represents and warrants that:
a. it has the requisite corporate power and authority to execute, deliver and
perform its obligations under this Agreement; Customer has no contractual
or other obligation that (i) restricts or prohibits Customer's execution or
performance of this Agreement, or (ii) Customer will breach in connection
with the execution or performance of this Agreement; and
b. its use of the Services and all Content will comply with the Acceptable Use
Policy.
10.3 SUSPECTED VIOLATIONS
IBM reserves the right to investigate potential violations of the
representations and warranties in Subsection 10.2(b). If IBM reasonably
determines that a breach of any such warranty has occurred, then IBM may, in its
sole discretion:
a. restrict Customer's access to the Services;
b. remove or require removal of any offending Content;
c. terminate this Agreement for cause; and/or
d. exercise other rights and remedies, at law or in equity.
Before undertaking the activities in Subsection 10.3(a), 10.3 (b) or 10.3(c),
IBM will provide Customer with ten (10) days advance written notice to cure such
material breach, containing a reasonably detailed description of the specific
nature of the breach, unless IBM is required by law to act sooner and/or without
notice. Nonetheless, if IBM reasonably determines that an emergency exists, IBM
will provide Customer with twenty-four (24) hours notice to cure such material
breach and both parties shall work together in good faith to cure such material
breach. After receipt of such notice to cure such material breach, if such
breach is not cured during the ten (10) day cure period or, if an emergency, the
twenty-four (24) period, then IBM may, in its sole discretion immediately take
any or all of the actions in Subsection 10.3(a), 10.3(b) or 10.3(c). IBM will
attempt to notify Customer by any reasonable practical means under the
circumstances, such as, without limitation, by telephone or e-mail.
Customer will promptly notify IBM of any event or circumstance related to this
Agreement, Customer's use of the Services, or Content of which Customer becomes
aware that could lead to a claim or demand against IBM and Customer will provide
all relevant information relating to such event or circumstance to IBM at IBM's
request.
10.4 CUSTOMER COMPONENTS
a. Customer (or its Affiliates or third parties) retains all right, title, and
interest or license in and to the Customer Components.
b. Customer hereby grants to IBM, its Affiliates and Subcontractors all rights
and licenses to, or agrees to promptly obtain and keep in effect Required
Consents for all Customer Components, necessary for IBM to perform all of
its obligations as set forth in this Agreement. Upon request, Customer will
provide to IBM evidence of any such rights, licenses, or Required Consents.
IBM will be relieved of its obligations to the extent that they are
affected by Customer's failure to promptly obtain and provide to IBM any
such rights, licenses, or Required Consents. IBM will adhere to reasonable
terms and conditions pertaining to Customer Components as notified in
writing to IBM.
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c. IBM agrees not to remove or alter any copyright or other proprietary notice
on or in any Customer Component without Customer's consent.
10.5 CAPACITY PLANNING
Customer acknowledges it is its responsibility to determine whether the
Services, e-business Hosting Environment, Customer Components and their
combination will meet Customer's capacity, performance, or scalability needs.
Customer is responsible for planning for and requesting changes to the
e-business Hosting Environment, including any additional capacity required to
support anticipated peaks in demand that may significantly increase Web site
hits, transaction volumes, or otherwise increase system resource utilization.
10.6 CONTENT
Customer is solely responsible for:
a. all Content including, without limitation, its selection, creation, design,
licensing, installation, accuracy, maintenance, testing, backup and
support;
b. all copyright, patent and trademark clearances in all applicable
jurisdictions and usage agreements for any and all Content;
c. the selection of controls on the access and use of Content; and
d. the selection, management and use of any public and private keys and
digital certificates it may use with the Services.
11.0 OTHER LICENSE AND RIGHTS
11.1 LICENSE FOR BASE COMPONENTS
a. IBM (or its Affiliates or subcontractors) retains all right, title, and
interest in Base Components.
b. IBM grants Customer a nonexclusive, nontransferable, revocable license to
access and use the Base Components solely in connection with the Services
as provided under this Agreement. Customer agrees not to download or
otherwise copy, reverse assemble, reverse compile, decompile, or otherwise
translate the software portions of the Base Components, other than to make
one copy for backup purposes.
c. If IBM provides as a Base Component a Microsoft Corporation product, the
terms and conditions of the Microsoft Customer License Terms will also
apply for such products. Such Terms are located on the Internet at
http://www-3.ibm.com/services/e-business/hosting/microsoftlicense.html.
d. Customer agrees not to remove or alter any copyright or other proprietary
notice on or in any Base Component without IBM's consent.
11.2 NO SALE OR LEASE OF GOODS
As between Customer and IBM, IBM retains all right, title and interest in the
Base Components. No goods are sold or leased by IBM under this Agreement. If
Customer desires to purchase or lease goods from IBM, such purchase or lease
will be governed by a separate mutually acceptable written agreement between
Customer and IBM or an IBM Affiliate.
11.3 NO LEASE OF REAL PROPERTY
This Agreement is a services agreement and not a lease of any real property.
12.0 CHANGES
12.1 SERVICES
IBM, in its reasonable discretion, may change the prices, terms and conditions
of applicable Attachments, upon at least ninety (90) days prior notice to
Customer. Such changes are not retroactive and will apply on the effective date
of a new order or renewal unless such change was the result of:
a. law, regulation, or similar governmental action;
b. a ruling by a court of competent jurisdiction; or
c. changes in the method of service delivery that affect similar IBM
e-business hosting customers.
Changes as a result of a, b, or c above will be effective on the date IBM
specified in the notice. Any changes in price as a result of a, b or c above
will apply on the effective date of a new order or renewal.
12.2 ACCEPTABLE USE POLICY
IBM, in its reasonable discretion, may modify the Acceptable Use Policy upon
thirty (30) days' notice to Customer. Except when such modification is required
by law, regulation, or similar governmental action, or a ruling by a court of
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competent jurisdiction, Customer may terminate this Agreement (or the affected
Service Option Attachments) without the payment of termination charges if such
modification has an adverse effect on the Customer's use of the Services and
Customer gives IBM notice within ninety (90) days of the effective date of the
modification.
12.3 AMENDMENTS
Except for changes pursuant to Sections 12.1 and 12.2, this Agreement may be
amended only by a writing signed by authorized representatives of both parties.
13.0 GENERAL
13.1 HEADINGS
The headings of the various sections of this Agreement have been inserted for
convenience only and shall not affect the interpretation of this Agreement.
13.2 SURVIVAL
Any of these terms and conditions which by their nature extend beyond the
Agreement termination or expiration remain in effect until fulfilled, including,
without limitation, Sections 3.5, 4, 5, 6, 7, 8, 9, 10.2, 10.3, 10.6, 11.2,
11.3, and 13, and apply to both Customer's and IBM's respective successors and
assignees.
13.3 CHOICE OF LAW
This Agreement will be governed by the substantive laws of the State of New
York, without regard for its conflict of laws provisions.
13.4 WAIVER OF JURY TRIAL
The parties waive any right to a jury trial in any proceeding arising out of or
related to this Agreement.
13.5 SEVERABILITY
If any provision of this Agreement shall be held by a court of competent
jurisdiction to be invalid, illegal, or unenforceable, the validity, legality,
and enforceability of the remaining provisions of this Agreement shall in no way
be affected or impaired thereby, so long as the remaining provisions of this
Agreement still express the original intent of the parties. If the original
intent of the parties can not be preserved, this Agreement shall either be
renegotiated or terminated.
13.6 PUBLICITY AND TRADEMARKS
Neither party grants the other the right to use its or any of its Affiliates'
trademarks, trade names, or other designations in any promotion, publication, or
Web site without prior written consent. Except as may be required by law or as
may be required by IBM to perform the Services, neither party may disclose to
any third party the terms and conditions of this Agreement, without prior
written consent.
13.7 NO THIRD-PARTY BENEFICIARIES
Except as expressly provided in Section 7, this Agreement does not create any
intended third party beneficiary rights.
13.8 PERSONNEL
Each party is responsible for the supervision, direction, and control of its
respective personnel. IBM reserves the right to determine the assignment of its
personnel. IBM may subcontract portions of the Services to Subcontractors and
Affiliates selected by IBM.
13.9 NO AGENCY
This Agreement does not create an agency, joint venture, or partnership between
the parties.
13.10 ASSIGNMENT
Neither party may assign this Agreement, in whole or in part, without the prior
written consent of the other. Any attempt to do so is void. Neither party will
unreasonably withhold such consent. The assignment of this Agreement, in whole
or in part, to any Affiliates in the United States or to a successor
organization by merger or acquisition does not require the consent of the other.
IBM is also permitted to assign its rights to payments under this Agreement
without obtaining Customer's consent. It is not considered an assignment for IBM
to divest a portion of its business in a manner that similarly affects all of
its customers.
13.11 NO RESALE
Customer shall not resell the Services, in whole or in part. This does not
prevent Customer from making its hosted Content, application and/or data base
services available to Customer's end users via the internet for a monetary fee.
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13.12 RISK OF LOSS
Risk of loss for all Base Components shall at all times remain with IBM. Risk of
loss for all Customer Components shall at all times remain with Customer.
13.13 FORCE MAJEURE
Except for payment obligations hereunder, neither party is responsible to
fulfill its obligations to the extent due to similar events beyond its
reasonable control, including, but not limited to: terrorism, act(s) of war,
natural disasters; government, political, or other regulatory actions or court
orders; strikes or labor disputes; acts of civil disobedience.
13.14 ACTIONS PERIOD
Neither party will bring a legal action related to this Agreement more than two
years after the cause of action accrued.
13.15 WAIVER
The failure of one party to insist upon strict adherence to any term of this
Agreement on any occasion shall not be considered a waiver, nor shall it deprive
that party of the right to insist later on adherence thereto. Any waiver must be
in writing and signed by an authorized representative of the waiving party.
13.16 FREEDOM OF ACTION
Each party is free to enter into similar agreements with others.
13.17 LIMITATION OF LICENSES
Each of us grants only the licenses or rights expressly specified herein. No
other licenses or rights (including licenses or rights under patents) are
granted, either directly, by implication, estoppel, or otherwise.
13.18 DATA PROTECTION
Customer agrees to allow IBM and its Affiliates to store and use Customer's
contact information, including names, phone numbers, and e-mail addresses,
anywhere they do business. Such information will be processed and used in
connection with our business relationship, and may be provided to contractors,
Business Partners (certain organizations who have signed agreements with IBM to
promote, market, and support certain products and services), and assignees of
IBM and Affiliates for uses consistent with their collective business
activities, including communicating with Customer (for example, for processing
orders, for promotions, and for marketing research). For personal information
processed by IBM on Customer's behalf as part of the Services, IBM will act in
accordance with Customer's instructions by following such processing and
security obligations as are contained in this Agreement. Customer also confirms
that Customer is solely responsible for ensuring that any processing and
security obligations comply with applicable data protection laws. Customer's
contact information shall not be considered personal information processed on
Customer's behalf.
13.19 GEOGRAPHIC SCOPE
Although it is possible that Services Recipients outside of the United States of
America may access Customer's Web site, IBM's delivery of the Services will only
occur within the United States of America, and IBM's obligations hereunder are
valid only in the United States of America.
13.20 NOTICES
Any notices required or permitted hereunder will be effective upon receipt and
will be personally delivered; mailed via the postal service; or sent by reliable
overnight courier. Except for notices under Section 10.3, all notices will be in
writing and addressed to the applicable party's designated representative at the
address specified in this Agreement. Except as to notices permitted or required
under Sections 3 or 7, the parties agree that electronic mail messages sent
between them using security procedures sufficient to reasonably authenticate
them will be deemed writings. In addition, IBM may provide notice under Section
12.2 by a posting to the Web site identified in Section 1.0 (a).
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Customer and IBM agree that this Agreement, including these Base Terms and
applicable Attachments and Order Forms, is the complete agreement between the
parties relating to the subject matter hereof. This Agreement replaces and
supersedes any other prior or contemporaneous agreements or communications
between the parties related to the subject matter hereof.
Agreed and Accepted:
RECRUITSOFT, INC. INTERNATIONAL BUSINESS MACHINES
CORPORATION
By: /s/ Jean Lavigueur By: /s/ Justin Golden
------------------------------------- ---------------------------
Customer Authorized Signature Authorized Signature
Jean Lavigueur 6/30/2003 Justin J. Golden 6/30/03
----------------------------------------- -------------------------------
Name (type or print) Date Name (type or print) Date
CFO Sales Manager
----------------------------------------- -------------------------------
Title Title
Customer number: Agreement number:
Customer address:
Recruitsoft, Inc.
182 Second Street
San Francisco, CA 94105
Engagement number:
IBM contract representative:
IBM Services identifier: USFV5
After signing, please return a copy of this Agreement to the following address:
IBM Global Services, Harborview Plaza, 3031 North Rocky Point Drive West, Tampa,
FL 33607 Attention: Order Fulfillment Services