Last modified: December 1, 2014
2. Website and Data Services
BirdDogHR has and will retain sole control over the operation, provision, maintenance and management of the Services and BirdDogHR Materials. This includes the: (i) BirdDogHR Systems; (ii) locations where any of the Services are performed; (iii) selection, deployment, modification and replacement of the software used to provide Services; and (iv) performance of Service maintenance, upgrades, corrections and repairs.
Customer has and will retain sole control over the operation, maintenance and management of, and all access to and use of, the Customer Systems, and sole responsibility for all access to and use of the Services and BirdDogHR Materials by any person by or through the Customer Systems or any other means controlled by Customer or any Authorized User, including any: (i) information, instructions or materials provided by Customer to its Authorized Users; (ii) results obtained from any use of the Services or BirdDogHR Materials; and (iii) conclusions, decisions or actions based on that use. BirdDogHR is not responsible for (i) obtaining and maintaining any Customer equipment or any ancillary services needed to connect to, access or otherwise use the Service; (ii) paying third-party access charges (e.g., kiosk, ISP, telecommunications) incurred while using the Service; and (iii) ensuring that the Customer Equipment and any ancillary services are compatible with the Service and comply with all configuration requirements set forth in the documentation.
BirdDogHR may provide software updates and new releases to the Service, including correction of "bugs," certain improvements to existing functionality, and new features at no additional charge to its customers who are current in payment of subscription fees. The Subscription to the Service does not include the right to receive updates that are designated by BirdDogHR as new products, modules or options for which BirdDogHR charges a separate fee. BirdDogHR, at its sole discretion, may determine the time that any upgrade, reissue or new software release will be made generally available to existing Customers.
Suspension or Termination of Services
3. Authorization and Restrictions
Reservation of Rights
Nothing in this Agreement grants any right, title or interest in or to (including any license under) any intellectual property rights in or relating to, the Services, BirdDogHR Materials or third party materials, whether expressly, by implication, estoppel or otherwise. All right, title and interest in and to the Services, the BirdDogHR Materials and the third party materials are and will remain with BirdDogHR and the respective rights holders in the third party materials.
Other Service Providers
As part of the Services, BirdDogHR may disclose applicant, employee, contractor, or user information such as job postings to third parties. BirdDogHR has no liability or responsibility for the content or accuracy of any information communicated from these third parties, even if BirdDogHR incorporates that information into the Services.
Authorization Limitations and Restrictions
- copy, modify or create derivative works or improvements of the Services or BirdDogHR Materials;
- rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make available any Services or BirdDogHR Materials to any person, including on or in connection with the internet or any time-sharing, service bureau, software as a service, cloud or other technology or service;
- reverse engineer, disassemble, decompile, decode, adapt or otherwise attempt to derive or gain access to the source code of the Services or BirdDogHR Materials, in whole or in part;
- bypass or breach any security device or protection used by the Services or BirdDogHR Materials or access or use the Services or BirdDogHR Materials other than by an Authorized User through the use of his or her own then valid access credentials;
- input, upload, transmit or otherwise provide to or through the Services or BirdDogHR Systems, any information or materials that are unlawful or injurious, or contain, transmit or activate any harmful code;
- damage, destroy, disrupt, disable, impair, interfere with or otherwise impede or harm in any manner the Services, BirdDogHR Systems or BirdDogHR's provision of services to any third party, in whole or in part;
- remove, delete, alter or obscure any trademarks, specifications, documentation, warranties or disclaimers, or any copyright, trademark, patent or other intellectual property or proprietary rights notices from any Services or BirdDogHR Materials, including any copy;
- access or use the Services or BirdDogHR Materials in any manner or for any purpose that infringes, misappropriates or otherwise violates any intellectual property right or other right of any third party including by any unauthorized access to, misappropriation, use, alteration, destruction or disclosure of the data of any other BirdDogHR customer, or that violates any applicable Law;
- access or use the Services or BirdDogHR Materials for purposes of competitive analysis of the Services or BirdDogHR Materials, the development, provision or use of a competing software service or product or any other purpose that is to the BirdDogHR's detriment or commercial disadvantage; or
- otherwise access or use the Services or BirdDogHR Materials beyond the scope of the authorization granted under this section.
4. Customer Obligations
Customer Systems and Cooperation
Customer must provide all cooperation and assistance as BirdDogHR may reasonably request to enable BirdDogHR to exercise its rights and perform its obligations under and in connection with this Agreement.
Password Use and Security
Customer must treat its username, password, and related information as confidential, and must not disclose it to any other person or entity. Customer also acknowledges that the account is personal and agrees not to provide any other person with access to this Website or portions of it using Customer’s user name, password or other security information. Customer agrees to notify BirdDogHR immediately of any unauthorized access to or use of the user name or password or any other breach of security. Customer also agrees to ensure that you exit from the account at the end of each session. Customer should use particular caution when accessing your account from a public or shared computer so that others are not able to view or record your password or other personal information.
Effect of Customer Failure or Delay
Corrective Action and Notice
Customer is solely responsible for reviewing all Customer Data and shall ensure that no Customer Data constitutes or contains any prohibited data described in this section. Customer acknowledges that the Services are not designed with security and access management for processing the following categories of information: (a) data that is classified and or used on the U.S. Munitions list, including software and technical data; (b) articles, services and related technical data designated as defense articles or defense services; (c) ITAR (International Traffic in Arms Regulations) related data; (d) data protected by HIPAA or comparable privacy laws; (e) data protected by the Gramm-Leach-Bliley act. Customer shall not, and shall not permit any Authorized User or other person to, provide any of this prohibited data to, or process any of this prohibited data through, the Services, the BirdDogHR Systems or any BirdDogHR Personnel.
These content standards apply to any and all Customer Data. All Customer Data must, in its entirety, comply with all applicable federal, state, local and international laws and regulations. Without limiting the foregoing, it must not:
- Contain any material which is defamatory, obscene, indecent, abusive, offensive, harassing, violent, hateful, inflammatory or otherwise objectionable.
- Promote sexually explicit or pornographic material, violence, or discrimination based on race, sex, religion, nationality, disability, sexual orientation or age.
- Infringe any patent, trademark, trade secret, copyright or other intellectual property or other rights of any other person.
- Be likely to deceive any person.
- Promote any illegal activity, or advocate, promote or assist any unlawful act.
- Cause annoyance, inconvenience or needless anxiety or be likely to upset, embarrass, alarm or annoy any other person.
- Impersonate any person, or misrepresent Customer’s identity or affiliation with any person or organization.
- Involve commercial activities or sales, such as contests, sweepstakes and other sales promotions, barter or advertising.
- Give the impression that they emanate from or are endorsed by us or any other person or entity, if this is not the case.
Customer Control and Responsibility
Customer has and will retain sole responsibility for: (a) all Customer Data, including its content and use; (b) all information, instructions and materials provided by or on behalf of Customer or any Authorized User in connection with the Services; (c) Customer's Systems; (d) the security and use of Customer's and its Authorized Users' access credentials; and (e) all access to and use of the Services and BirdDogHR Materials directly or indirectly by or through the Customer Systems or its or its Authorized Users' access credentials, with or without Customer’s knowledge or consent, including all results obtained from, and all conclusions, decisions and actions based on, such access or use.
Access and Security
Customer shall employ all physical, administrative and technical controls, screening and security procedures and other safeguards necessary to: (a) securely administer the distribution and use of all access credentials and protect against any unauthorized access to or use of the Services; and (b) control the content and use of Customer Data, including the uploading or other provision of Customer Data for processing by the Services.
Customer must promptly pay BirdDogHR all fees and expenses provided for in its Customer agreement.
- In any way that violates any applicable federal, state, local or international law or regulation (including, without limitation, any laws regarding the export of data or software to and from the US or other countries, or any laws regarding employment, privacy, or data security).
- For the purpose of exploiting, harming or attempting to exploit or harm minors in any way by exposing them to inappropriate content, asking for personally identifiable information or otherwise.
- To transmit, or procure the sending of, any advertising or promotional material, including any "junk mail", "chain letter" or "spam" or any other similar solicitation.
- To impersonate or attempt to impersonate the BirdDogHR, a BirdDogHR employee, another user or any other person or entity (including, without limitation, by using e-mail addresses or screen names associated with any of the foregoing).
- To engage in any other conduct that restricts or inhibits anyone's use or enjoyment of the Website, or which, as determined by us, may harm the BirdDogHR or users of the Website or expose them to liability.
Additionally, Customer agrees not to:
- Use the Website in any manner that could disable, overburden, damage, or impair the site or interfere with any other party's use of the Website, including their ability to engage in real time activities through the Website.
- Use any robot, spider or other automatic device, process or means to access the Website for any purpose, including monitoring or copying any of the material on the Website.
- Use any manual process to monitor or copy any of the material on the Website or for any other unauthorized purpose without our prior written consent.
- Use any device, software or routine that interferes with the proper working of the Website.
- Introduce any viruses, trojan horses, worms, logic bombs or other material which is malicious or technologically harmful.
- Attempt to gain unauthorized access to, interfere with, damage or disrupt any parts of the Website, the server on which the Website is stored, or any server, computer or database connected to the Website.
- Attack the Website via a denial-of-service attack or a distributed denial-of-service attack. Otherwise attempt to interfere with the proper working of the Website.
5. Intellectual Property Rights
Services and BirdDogHR Materials
All right, title and interest in and to the Services and BirdDogHR Materials, including all intellectual property rights, are and will remain with BirdDogHR and the respective rights holders in the third-party materials. Customer has no right, license or authorization with respect to any of the Services or BirdDogHR Materials (including third-party materials) except as expressly set forth in writing signed by both parties. All other rights in and to the Services and BirdDogHR Materials (including third-party materials) are expressly reserved by BirdDogHR and the respective third-party licensors. In furtherance of this, Customer unconditionally and irrevocably grants to BirdDogHR an assignment of all right, title and interest in and to the Resultant Data, including all intellectual property rights relating from them.
All Customer Data is owned exclusively by the Customer. BirdDogHR may access Customer’s user accounts, including Customer Data, solely to deliver services, respond to technical problems, or at the Customer’s request. Customer retains all copyright, trademark and other intellectual property rights in Customer Data.
Consent to Use Customer Data
Customer irrevocably grants all rights and permissions in or relating to Customer Data: (a) to BirdDogHR and its subcontractors as are necessary or useful to perform the Services; and (b) to BirdDogHR as are necessary or useful to enforce this Agreement and exercise its rights and perform its obligations.
BirdDogHR has a royalty-free, worldwide, perpetual license to use or incorporate into the Service any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Customer or its Authorized Users relating to the operation of the Service.
A party may terminate the customer agreement only if the other party materially breaches the customer agreement and fails to cure the breach within 30 days after receiving specific written notice of the breach from the other party.
Customer’s rights to use the Services and BirdDogHR Materials ends when the term of its customer agreement expires or terminates. Customer must immediately stop using the Services and BirdDogHR Materials. BirdDogHR may retain and use copies of Customer Data for archival and administrative purposes.
Warranties & Limitation of Liability
ALL SERVICES AND BIRDDOGHR MATERIALS ARE PROVIDED "AS IS" AND BIRDDOGHR DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHER, AND BIRDDOGHR SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE OR TRADE PRACTICE. BIRDDOGHR MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES OR BIRDDOGHR MATERIALS, OR ANY PRODUCTS OR RESULTS OF THEIR USE, WILL MEET CUSTOMER'S OR ANY OTHER PERSON'S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE OR ERROR FREE. ALL THIRD-PARTY MATERIALS ARE PROVIDED "AS IS" AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY THIRD PARTY MATERIALS IS STRICTLY BETWEEN CUSTOMER AND THE THIRD-PARTY OWNER OR DISTRIBUTOR OF THE THIRD-PARTY MATERIALS.
NO CONSEQUENTIAL OR INDIRECT DAMAGES. IN NO EVENT IS BIRDDOGHR OR ANY OF ITS REPRESENTATIVES LIABLE UNDER THIS AGREEMENT TO CUSTOMER OR ANY THIRD PARTY FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES, INCLUDING ANY DAMAGES FOR BUSINESS INTERRUPTION, LOSS OF USE, DATA, REVENUE OR PROFIT, WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT BIRDDOGHR WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
IN NO EVENT DOES BIRDDOGHR’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT (INCLUDING ALL INDEMNIFICATION OR COSTS OF DEFENSE REQUIRED BELOW), WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE SUBSCRIPTION FEES PAID TO BIRDDOGHR PURSUANT TO THIS AGREEMENT IN THE 12 MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM. THE FOREGOING LIMITATIONS APPLY EVEN IF THE CUSTOMER’S REMEDIES UNDER THIS AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE.
Subject to the limitation of liability above, BirdDogHR shall indemnify, defend and hold harmless Customer from and against any and all losses incurred by the Customer (including reasonable attorneys’ fees) arising out of or relating to any claim, suit, action or proceeding by a third party (other than an affiliate of Customer) to the extent that the losses arise directly from a Customer's use of the Services (excluding Customer Data and third party materials) in compliance with this Agreement infringes a U.S. Intellectual Property Right. This obligation does not apply to any losses arising out of or relating to any:
- access to or use of the Services or BirdDogHR Materials in combination with any hardware, system, software, network or other materials or service not provided or authorized in writing by BirdDogHR;
- modification of the Services or BirdDogHR Materials other than: (i) by or on behalf of BirdDogHR; or (ii) with BirdDogHR's written approval in accordance with BirdDogHR's written specification;
- failure to timely implement any modifications, upgrades, replacements or enhancements made available to Customer by or on behalf of BirdDogHR.
Customer shall indemnify, defend and hold harmless BirdDogHR and its officers, directors, employees, agents, successors and assigns (each, a "BirdDogHR Indemnitee") from and against any and all losses incurred by the BirdDogHR Indemnitee (including reasonable attorneys’ fees) in connection with any action by a third party (other than an affiliate of a BirdDogHR Indemnitee) that arises out of or relates to any:
- Customer Data, including any processing of Customer Data by or on behalf of BirdDogHR in accordance with this Agreement;
- any other materials or information (including any documents, data, specifications, software, content or technology) provided by or on behalf of Customer or any Authorized User, including BirdDogHR's compliance with any specifications or directions provided by or on behalf of Customer or any Authorized User to the extent prepared without any contribution by BirdDogHR;
- allegation of facts that, if true, would constitute Customer's breach of any of its representations, warranties, covenants or obligations under this Agreement;
- negligence or more culpable act or omission (including recklessness or willful misconduct) by Customer, any Authorized User, or any third party on behalf of Customer or any Authorized User, in connection with this Agreement; or
- Customer’s use or misuse of confidential information relating to the Services or the allegation that Customer violated any federal, state, or local law or regulation, including those relating to employment and civil rights.
Limitation on Time to File Claims
No Breach or Default
Relationship of the Parties
No Third-Party Beneficiaries
No waiver by BirdDogHR of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by BirdDogHR. No failure to exercise, or delay in exercising, any rights, remedy, power or privilege arising from the customer agreement operates or may be construed as a waiver. No single or partial exercise of any right, remedy, power or privilege precludes any other or further exercise or the exercise of any other right, remedy, power or privilege.
Governing Law; Submission to Jurisdiction
“Customer Data” means, other than Resultant Data, information, data and other content, in any form or medium, which is collected, downloaded or otherwise received, directly or indirectly from Customer or an Authorized User by or through the Services (or from a third party based on Customer or an Authorized User’s acts). Customer Data includes information regarding specific job applicants, employees, contractors, or others authorized to use the service, including associated administrative and reporting information for those users, reports, and any information Customer uses to make decisions based on the website.
“Customer Systems” means the Customer's information technology infrastructure, including computers, software, hardware, databases, electronic systems (including database management systems) and networks, whether operated directly by Customer or through the use of third-party services.
“BirdDogHR Materials” means the Service software, specifications, documentation and BirdDogHR Systems and any and all other information, data, documents, materials, works and other content, devices, methods, processes, hardware, software and other technologies and inventions, including any deliverables, technical or functional descriptions, requirements, plans or reports, that are provided or used by us or any subcontractor in connection with the Services or otherwise comprise or relate to the Services or BirdDogHR Systems. For the avoidance of doubt: BirdDogHR Materials includes Resultant Data and any information, data or other content derived from BirdDogHR’s monitoring of Customer’s access to or use of the Services, but does not include Customer Data.
“BirdDogHR Systems” means the information technology infrastructure used by or on behalf of BirdDogHR in performing the Services, including all computers, software, hardware, databases, electronic systems (including database management systems) and networks, whether operated directly by BirdDogHR or through the use of third-party services.
“Resultant Data” means information, data and other content that is derived by or through the Services from processing Customer Data and is sufficiently different from the Customer Data that the Customer Data cannot be reverse engineered or otherwise identified from the inspection, analysis or further Processing of such information, data or content.
“Services” means the services you select in your Customer agreement.