SeatMatch Terms and Conditions
SeatMatch Terms and Conditions
These SeatMatch Terms and Conditions together with the corresponding Services Order Form (collectively, the “Agreement”) is between SeatMatch and Client. Capitalized terms used in these Terms and Conditions and not otherwise defined herein shall have the same meaning as set forth in the Services Order Form.
SeatMatch IS WILLING TO PROVIDE THE SERVICES, INCLUDING LICENSING THE PLATFORM, TO CLIENT ONLY UPON THE CONDITION THAT CLIENT ACCEPTS ALL OF THESE TERMS AND CONDITIONS. BEFORE SIGNING THE SERVICES ORDER FORM, CAREFULLY READ THESE TERMS AND CONDITIONS, BY SIGNING, CLIENT IS CONSENTING TO BE BOUND BY AND ARE BECOMING A PARTY TO THIS AGREEMENT. CLIENT’S USE OF THE SERVICES INDICATES CLIENT’S ASSENT TO BE BOUND BY THESE TERMS AND CONDITIONS.
1. Definitions.
1.1. “Aggregated Data” means data and information related to Client’s use of the Services that is used by SeatMatch in an aggregate and/or anonymized manner, including to compile statistical and performance information related to the Services.
1.2. “SeatMatch IP” means the Services, the Documentation, and any and all intellectual property provided to Client or any Authorized User in connection with the foregoing. For the avoidance of doubt, SeatMatch IP includes Aggregated Data and any information, data, algorithms, assessments, or other content derived from SeatMatch’s monitoring of Client’s access to or use of the Services, but does not include Client Data.
1.3. “Authorized User” means Client’s employees, consultants, contractors, and agents (i) who are authorized by Client to access and view SeatMatch platforms and documentation under the rights granted to Client pursuant to this Agreement and (ii) for whom access to the Platform and Services has been purchased hereunder.
1.4. “Client Data” means, other than Aggregated Data, information, data, and other content, in any form or medium, that is submitted, posted, or otherwise transmitted by or on behalf of Client or an Authorized User through the Services.
1.5. “Documentation” means SeatMatch’s forms, guides, job ads, and work product relating to the Services provided by SeatMatch to Client either electronically or in hard copy form.
1.6. “End-Users” means Client’s Clients, employees, contractors, or others who are end-users of the Services or Platform.
1.7. “Services” means the consultation, research, assessments, campaign buildouts, candidate filtering, interviewing, and negotiation services in the Services Order Form and Exhibit A.
1.8. “Platform” means the VineHired dashboard described in the Services Order Form.
2. Access and Use.
2.1. Provision of Access. Subject to and conditioned on Client’s payment of Fees and compliance with all other terms and conditions of this Agreement, SeatMatch hereby grants Client a non-exclusive, non-transferable (except in compliance with Section 15.4) right to access and use the Services during the Term, solely for use by Authorized Users in accordance with the terms and conditions herein. Such use is limited to Client’s internal use. Client’s use will not exceed the parameters of the Platform Plan and Credit Plan as set forth in the Services Order Form, including, without limitation, the total number of Authorized Users, trainings, and NNMs referenced therein, except as expressly agreed to in writing by the Parties and subject to any appropriate adjustment of the Fees payable hereunder.
2.2. Documentation License. Subject to the terms and conditions contained in this Agreement, SeatMatch hereby grants to Client a non-exclusive, non-sublicensable, non-transferable (except in compliance with Section 15.4) license to use the Documentation during the Term solely for Client’s internal business purposes in connection with its use of the Services.
2.3. Use Restrictions. Client shall not use the Services for any purposes beyond the scope of the access granted in this Agreement. Client shall not at any time, directly or indirectly, and shall not permit any Authorized Users to: (i) copy, modify, or create derivative works of the Services or Documentation, in whole or in part; (ii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Services or Documentation; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Platform, in whole or in part; (iv) remove any proprietary notices from the Services or Documentation; or (v) use the Services or Documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law.
2.4. Reservation of Rights. SeatMatch reserves all rights not expressly granted to Client in this Agreement. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Client or any third party any intellectual property rights or other right, title, or interest in or to the SeatMatch IP.
2.5. Suspension. Notwithstanding anything to the contrary in this Agreement, SeatMatch may temporarily suspend Client’s and any Authorized User’s access to any portion or all of the Services if: (i) SeatMatch reasonably determines that (A) there is a threat or attack on any of the SeatMatch IP; (B) Client’s or any Authorized User’s use of the SeatMatch IP disrupts or poses a security risk to the SeatMatch IP or to any other Client or vendor of SeatMatch; (C) Client, or any Authorized User, is using the SeatMatch IP for fraudulent or illegal activities; (D) subject to applicable law, Client has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or (E) SeatMatch’s provision of the Services to Client or any Authorized User is prohibited by applicable law; (ii) any vendor of SeatMatch has suspended or terminated SeatMatch’s access to or use of any third-party services or products required to enable Client to access the Services; or (iii) in accordance with Section 6.1 (any such suspension described in subclause (i), (ii), or (iii), a “Service Suspension”). SeatMatch shall use commercially reasonable efforts to provide written notice of any Service Suspension to Client and to provide updates regarding resumption of access to the Services following any Service Suspension. SeatMatch shall use commercially reasonable efforts to resume providing access to the Services as soon as reasonably possible after the event giving rise to the Service Suspension is cured. SeatMatch will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Client or any Authorized User may incur as a result of a Service Suspension.
2.6. Aggregated Data. Notwithstanding anything to the contrary in this Agreement, SeatMatch may monitor Client’s use of the Services and collect and compile Aggregated Data. As between SeatMatch and Client, all right, title, and interest in Aggregated Data, and all intellectual property rights therein, belong to and are retained solely by SeatMatch. Client acknowledges that SeatMatch may compile Aggregated Data based on Client Data. Client agrees that SeatMatch may (i) make Aggregated Data publicly available in compliance with applicable law, and (ii) use Aggregated Data to the extent and in the manner permitted under applicable law.
3. Campaign Services, Scope, and Coverage.
3.1 SeatMatch Services. SeatMatch will perform all consultation, research, assessments, campaign buildouts, candidate filtering, interviewing, and negotiation services specified in the Services Order Form.
3.2. Twelve-Month Candidate Commitment Guarantee. SeatMatch guarantees that any candidate hired through our service will remain in their designated role for a minimum of twelve months. In the event of a candidate's departure or dismissal before completing twelve months, our 'SeatMatch Guarantee' ensures a replacement campaign at no additional cost.
3.3. No-Cost Replacement Campaign. Should an early departure occur within this twelve-month period, we will rerun the recruitment campaign to find a suitable replacement. This is done swiftly and efficiently, ensuring minimal disruption to your staffing needs. The guarantee applies specifically to the exact role, title, and person specifications for which the candidate was hired. Changes or eliminations of the original role within the company disqualify the guarantee, though if the roles are similar, a partial discount or credit on a new campaign may be offered at SeatMatch's discretion.
3.4. Campaign Scope and Billing. Each SeatMatch campaign targets one specific hire. The charges are calculated at 30% of the first year’s total compensation for the role. The total compensation is determined by combining the base annual salary and 50% of the annual potential incentive, unless a different amount is mutually agreed in writing by the client prior to the initial public listing of the job. The total fee per hire is subject to a minimum charge of $30,000. Each hire from a campaign is billed separately.
3.5. Initial Campaign Engagement Deposit. An upfront, non-refundable deposit of 50% of the minimum engagement value or, if higher, the total engagement value, is required to start a campaign.If the engagement value exceeds the minimum, the balance up to 50% of this higher value is billed at the time of the role’s public listing.
3.6 Payment of Engagement Value. The remainder of the engagement value for each role or campaign is due immediately when a candidate accepts an offer.
3.7 Campaign Closure Conditions. A single-hire campaign concludes with that hire. Multiple hires from one campaign are treated as separate engagements and billed accordingly.
3.8 Limitations and Client Responsibilities. The SeatMatch Guarantee is limited to one replacement per hire and is contingent upon the fulfillment of all financial obligations from the original campaign. Clients are expected to notify us promptly of any early departure and cooperate in the replacement process.
3.9 Campaign Modification and Pause Policy. If a client requests to pause or stop the campaign or hires a candidate not sourced through SeatMatch’s hiring and qualifications process, 50% of the remaining balance of the engagement value will be billed and due immediately.
4. Client Responsibilities.
4.1. General. Client is responsible and liable for all uses of the Services and Documentation resulting from access provided by Client, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement. Without limiting the generality of the foregoing, Client is responsible for all acts and omissions of Authorized Users, and any act or omission by an Authorized User that would constitute a breach of this Agreement if taken by Client will be deemed a breach of this Agreement by Client. Client shall use reasonable efforts to make all Authorized Users aware of this Agreement’s provisions as applicable to such Authorized User’s use of the Services, and shall cause Authorized Users to comply with such provisions.
4.2. Client Collaboration and Documentation Requirements. Clients are required to share the signed final hire letter and any supporting documentation upon request. Regular check-ins, at least once per quarter, are mandatory. Clients must also allow and facilitate our evaluations of the hire, which involve feedback from both the hire and a supervisor, to be completed within two weeks of request. Non-compliance with these requirements may result in disqualification from the guarantee of replacement.
4.3. Client Interaction Recording Consent:
All interactions with clients, including meetings and calls, may be recorded for quality and training purposes. By continuing engagement with SeatMatch, clients consent to such recordings. Recordings will be stored securely and will be accessible to clients upon request, adhering to privacy and data protection laws.
5. Support. The rights granted hereunder entitle Client to the support services as described in the Services Order Form.
6. Fees and Payment.
6.1. Fees. Client shall pay SeatMatch the fees (“Fees”) as set forth in the Services Order Form Attachment 1 without offset or deduction. Client shall make all payments hereunder in US dollars on or before the due date set forth in the Services Order Form. If Client fails to make any payment when due, without limiting SeatMatch’s other rights and remedies: (i) SeatMatch may charge interest on the past due amount at the rate of 1.5% per month calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable law; (ii) Client shall reimburse SeatMatch for all costs incurred by SeatMatch in collecting any late payments or interest, including attorneys’ fees, court costs, and collection agency fees; and (iii) if such failure continues for thirty (30) days or more, SeatMatch may suspend Client’s and its Authorized Users’ access to any portion or all of the Services until such amounts are paid in full.
6.2. Taxes. All Fees and other amounts payable by Client under this Agreement are exclusive of taxes and similar assessments. Client is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Client hereunder, other than any taxes imposed on SeatMatch’s income.
6.3 Payment Method Update and Verification Policy. Clients must ensure their payment information (credit card, ACH) is up-to-date. SeatMatch will conduct semi-annual verifications of payment methods. Clients with expired or invalid payment details will receive an email notification with a direct link to update their information within 7 business days to avoid service interruptions.
7. Confidential Information. From time to time during the Term, either Party may disclose or make available to the other Party information about its business affairs, products, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, whether orally or in written, electronic, or other form or media, whether or not marked, designated, or otherwise identified as “confidential” (collectively, “Confidential Information”). Confidential Information does not include information that, at the time of disclosure is: (a) in the public domain; (b) known to the receiving Party at the time of disclosure; (c) rightfully obtained by the receiving Party on a non-confidential basis from a third party; or (d) independently developed by the receiving Party. The receiving Party shall not disclose the disclosing Party’s Confidential Information to any person or entity, except to the receiving Party’s employees who have a need to know the Confidential Information for the receiving Party to exercise its rights or perform its obligations hereunder. Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required (i) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the Party making the disclosure pursuant to the order shall first have given written notice to the other Party and made a reasonable effort to obtain a protective order; or (ii) to establish a Party’s rights under this Agreement, including to make required court filings. On the expiration or termination of the Agreement, the receiving Party shall promptly return to the disclosing Party all copies, whether in written, electronic, or other form or media, of the disclosing Party’s Confidential Information, or destroy all such copies and certify in writing to the disclosing Party that such Confidential Information has been destroyed. Each Party’s obligations of non-disclosure with regard to Confidential Information are effective as of the Effective Date and will expire five years from the date first disclosed to the receiving Party; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations of non-disclosure will survive the termination or expiration of this Agreement for as long as such Confidential Information remains subject to trade secret protection under applicable law.
8. Intellectual Property Ownership; Feedback.
8.1. SeatMatch IP. Client acknowledges that, as between Client and SeatMatch, SeatMatch owns all right, title, and interest, including all intellectual property rights, in and to the SeatMatch IP.
8.2. Client Data. SeatMatch acknowledges that, as between SeatMatch and Client, Client owns all right, title, and interest, including all intellectual property rights, in and to the Client Data. Client hereby grants to SeatMatch a non-exclusive, royalty-free, worldwide license to reproduce, distribute, and otherwise use and display the Client Data and perform all acts with respect to the Client Data as may be necessary for SeatMatch to provide the Services to Client, and a non-exclusive, perpetual, irrevocable, royalty-free, worldwide license to reproduce, distribute, modify, and otherwise use and display Client Data incorporated within the Aggregated Data.
8.3. Feedback. If Client or any of its employees or contractors sends or transmits any communications or materials to SeatMatch by mail, email, telephone, or otherwise, suggesting or recommending changes to the SeatMatch IP, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (“Feedback”), SeatMatch is free to use such Feedback irrespective of any other obligation or limitation between the Parties governing such Feedback. Client hereby assigns to SeatMatch on Client’s behalf, and on behalf of its employees, contractors and/or agents, all right, title, and interest in, and SeatMatch is free to use, without any attribution or compensation to any party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, although SeatMatch is not required to use any Feedback.
10. Non-Circumvention and Engagement Fee Entitlement
10.1. Acknowledgment of Referrals. Client hereby acknowledges that any candidate introduced by SeatMatch for any position, whether expressly communicated or discovered through SeatMatch's efforts, shall be considered a referred candidate from SeatMatch.
10.2. Non-Circumvention. Client agrees not to circumvent, avoid, bypass, or obviate SeatMatch's involvement directly or indirectly, to avoid payment of fees or commissions to SeatMatch, in any transaction with any candidate introduced by SeatMatch during the term of this Agreement and for a period of one year following the termination of this Agreement.
10.3. Engagement Fee Entitlement. In the event of new hire into employment, engagement, or other use of the services of a candidate referred by SeatMatch, either directly or indirectly, within one year from the date of the last referral of such candidate, Client shall be liable to pay SeatMatch an engagement fee as per the terms agreed upon in this Agreement.
10.4. Reporting of Employment: Client shall notify SeatMatch immediately of any employment or engagement of a referred candidate. Failure to report such engagement shall not relieve the Client of its obligation to pay the due engagement fee to SeatMatch.
11. Limited Warranty and Warranty Disclaimer. THE SeatMatch IP IS PROVIDED “AS IS” AND SeatMatch HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. SeatMatch 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. SeatMatch MAKES NO WARRANTY OF ANY KIND THAT THE SeatMatch IP, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CLIENT’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.
12. Indemnification.
12.1. SeatMatch Indemnification.
12.1.1. SeatMatch shall indemnify, defend, and hold harmless Client from and against any and all losses, damages, liabilities, costs (including reasonable attorneys’ fees) (“Losses”) incurred by Client resulting from any third-party claim, suit, action, or proceeding (“Third-Party Claim”) that the Services, or any use of the Services in accordance with this Agreement, infringes or misappropriates such third party’s US intellectual property rights, provided that Client promptly notifies SeatMatch in writing of the claim, cooperates with SeatMatch, and allows SeatMatch sole authority to control the defense and settlement of such claim.
12.1.2. If such a claim is made or appears possible, Client agrees to permit SeatMatch, at SeatMatch’s sole discretion, to (A) modify or replace the Services, or component or part thereof, to make it non-infringing, or (B) obtain the right for Client to continue use. If SeatMatch determines that neither alternative is reasonably available, SeatMatch may terminate this Agreement, in its entirety or with respect to the affected component or part, effective immediately on written notice to Client.
12.1.3. This Section 12.1 will not apply to the extent that the alleged infringement arises from: (A) use of the Services in combination with data, software, hardware, equipment, or technology not provided by SeatMatch or authorized by SeatMatch in writing; (B) modifications to the Services not made by SeatMatch; or (C) Client Data.
12.2. Client Indemnification. Client shall indemnify, hold harmless, and, at SeatMatch’s option, defend SeatMatch from and against any Losses resulting from any Third-Party Claim that the Client Data, or any use of the Client Data in accordance with this Agreement, infringes or misappropriates such third party’s US intellectual property rights and any Third-Party Claims based on Client’s or any Authorized User’s (i) negligence or willful misconduct; (ii) use of the Services in a manner not authorized by this Agreement; (iii) use of the Services in combination with data, software, hardware, equipment, or technology not provided by SeatMatch or authorized by SeatMatch in writing; or (iv) modifications to the Services not made by SeatMatch, provided that Client may not settle any Third-Party Claim against SeatMatch unless SeatMatch consents to such settlement, and further provided that SeatMatch will have the right, at its option, to defend itself against any such Third-Party Claim or to participate in the defense thereof by counsel of its own choice.
12.3. Sole Remedy. THIS SECTION 12 SETS FORTH CLIENT’S SOLE REMEDIES AND SEATMATCH’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SERVICES INFRINGE, MISAPPROPRIATE, OR OTHERWISE VIOLATE ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY. IN NO EVENT WILL SEATMATCH’S LIABILITY UNDER THIS SECTION 12 EXCEED THE LIMITATION OF LIABILITY AS SET FORTH IN SECTION 13 BELOW.
13. Limitations of Liability. IN NO EVENT WILL SEATMATCH BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (a) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (b) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (c) LOSS OF GOODWILL OR REPUTATION; (d) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY, OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (e) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER SEATMATCH WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. IN NO EVENT WILL SEATMATCH’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE EXCEED THE TOTAL AMOUNTS PAID TO SEATMATCH UNDER THIS AGREEMENT IN THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
14. Term and Termination.
14.1. Term. The Term of this Agreement is as set forth in the Services Order Form.
14.2. Termination. In addition;
14.2.2. Either Party may terminate this Agreement, effective on written notice to the other Party, if the other Party breaches this Agreement, and such breach: (A) is incapable of cure; or (B) being capable of cure, remains uncured thirty (30) days after the non-breaching Party provides the breaching Party with written notice of such breach;
14.2.3. Either Party may terminate this Agreement without cause upon thirty (30) days prior written notice to the other Party (subject to the Early Termination Fee referenced in Section 14.3 below); or
14.2.4. Either Party may terminate this Agreement, effective immediately upon written notice to the other Party, if the other Party: (A) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (B) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (C) makes or seeks to make a general assignment for the benefit of its creditors; or (D) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
14.3 Effect of Expiration or Termination.
14.3.1. Except as permitted in Section 14.3.2 below, upon expiration or earlier termination of this Agreement, Client shall immediately discontinue use of the SeatMatch IP and, without limiting Client’s obligations under Section 7, Client shall delete, destroy, or return all copies of the SeatMatch IP and certify in writing to the SeatMatch that the SeatMatch IP has been deleted or destroyed.
14.3.2. Provided this Agreement is not terminated by SeatMatch for cause, upon expiration or earlier termination of this Agreement, SeatMatch will provide Client with access to the Platform for fifteen (15) calendar days (the “Sunset Period”) following the date of termination or expiration, solely for Client to export its Client Data. Client shall not submit any new Service requests, or otherwise use the Platform in any other way during the Sunset Period.
14.3.3. No expiration or termination will affect Client’s obligation to pay all Fees that may have become due before such expiration or termination or entitle Client to any refund.
14.3.4. If Client terminates this Agreement without cause pursuant to Section 14.2.3, Client shall pay the Early Termination Fee to SeatMatch upon termination. The “Early Termination Fee” means all Fees that would have been payable to SeatMatch for the remainder of the then-current Term.
14.4. Survival. This Section 14.4 and Sections 1, 5-13, 14.3 and 15 shall survive any termination or expiration of this Agreement. No other provisions of this Agreement survive the expiration or earlier termination of this Agreement.
15. Miscellaneous.
15.1. Entire Agreement. This Agreement, together with any other documents incorporated herein by reference and all related Services Order Forms and Exhibits, constitutes the sole and entire agreement of the Parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, and representations and warranties, both written and oral, with respect to such subject matter.
15.2. Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice”) must be in writing and addressed to the Parties at the addresses set forth on the first page of this Agreement (or to such other address that may be designated by the Party giving Notice from time to time in accordance with this Section). All Notices must be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile or email (with confirmation of transmission), or certified or registered mail (in each case, return receipt requested, postage pre-paid). Except as otherwise provided in this Agreement, a Notice is effective only: (i) upon receipt by the receiving Party; and (ii) if the Party giving the Notice has complied with the requirements of this Section.
15.3. Force Majeure. In no event shall SeatMatch be liable to Client, or be deemed to have breached this Agreement, for any failure or delay in performing its obligations under this Agreement (except for any obligations to make payments), if and to the extent such failure or delay is caused by any circumstances beyond SeatMatch’s reasonable control, including but not limited to acts of God, flood, fire, earthquake, explosion, war, terrorism, invasion, riot or other civil unrest, strikes, labor stoppages or slowdowns or other industrial disturbances, or passage of law or any action taken by a governmental or public authority, including imposing an embargo.
15.4. Amendment and Modification; Waiver. No amendment to or modification of this Agreement is effective unless it is in writing and signed by an authorized representative of each Party. No waiver by any Party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement, (i) no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof, and (ii) no single or partial exercise of any right, remedy, power, or privilege hereunder will preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
15.5. Severability. If any provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the Parties shall negotiate in good faith to modify this Agreement so as to effect their original intent as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
15.6. Governing Law; Submission to Jurisdiction. This Agreement is governed by and construed in accordance with the internal laws of the State of Texas without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of Texas. Any legal suit, action, or proceeding arising out of or related to this Agreement or the licenses granted hereunder will be instituted exclusively in the federal courts of the United States or the courts of the State of Texas in each case located in the city of Austin and County of Travis, and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.
15.7. Assignment. Client may not assign any of its rights or delegate any of its obligations hereunder, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without the prior written consent of SeatMatch. Any purported assignment or delegation in violation of this Section will be null and void. No assignment or delegation will relieve the assigning or delegating Party of any of its obligations hereunder. This Agreement is binding upon and inures to the benefit of the Parties and their respective permitted successors and assigns.
15.8. Export Regulation. Client shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), that prohibit or restrict the export or re-export of the Services or any Client Data outside the US.
15.9. Equitable Relief. Each Party acknowledges and agrees that a breach or threatened breach by such Party of any of its obligations under Section 7 or, in the case of Client, Section 2.3, would cause the other Party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other Party will be entitled to equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.
Exhibit A
Capitalized terms used but not defined in this Exhibit A have the meaning given to those terms in the Agreement.
1. Campaign Services
SeatMatch will provide consultation, research, assessments, campaign buildouts, candidate filtering, interviewing, and negotiation services to Client. The following helps further define these services in detail.
Accordingly, SeatMatch will provide Client with the following detailed services as part of the Assessment Services
2. Core Campaign Services
Role and Fit Consultations – SeatMatch will consult with Client and perform Person Specification assessment to ensure the ideal role requirements, job functions, and job description so that the new hire will be the highest value add possible within the company.
Competitive Landscape Research – SeatMatch will perform research and analysis on comparable roles and functions across the job market to ensure Client has a competitive offering and accurate hiring plans.
Initial Culture & Fit Analysis – SeatMatch, through with its subcontractor Aboutly Technologies LLC, will perform both neural network mappings and culture fit assessment on up to 3 existing team members including the hiring manager, a successful peer in the existing role, and one other. The goal is to understand the environment and team to which a successful candidate will need to fit and adapt.
Precision Hiring Funnel/Process – SeatMatch will build a custom hiring funnel/process including job ad, application form, candidate tests, Aboutly Neural Network Mapping, and in depth interviews appropriate to the Client’s role and hiring needs. SeatMatch will publish, update, and optimize the job ad and hiring funnel regularly, perform outbound recruitment as necessary to supply the funnel with candidates, and deliver finalist candidates to the Client as they are selected by the process.
Regular Updates – SeatMatch will offer regular meetings with Client, and will send an update at least once per week on the status of the campaign, any optimizations made, and notable candidates who are working through the process. Client is welcome to provide feedback as well.
Hiring Negotiations – SeatMatch will consult and assist Client with the hiring negotiations with any referred candidates including salary and benefits discussions, or other work requirements. SeatMatch at the request of the Client will prepare and send an offer letter for final signature by both parties.
Post-Hire Check-Ins – SeatMatch will contact the Client at one month, three month, and quarterly thereafter from the candidate start date up to one year to discuss new employee’s performance and Client satisfaction, as well as offer additional advice, feedback, etc with the goal of optimizing new employee’s overall success at the Company.
2. Neural Network Mappings
a. SeatMatch, through it’s subcontractor Aboutly Technologies, will perform an NNM analysis on existing team members and candidates who make it to the relevant stage of the hiring funnel. This involves an interview over Zoom, analysis of responses, and a report provided back to SeatMatch. These reports will be used to assess role fit and team culture fit.
3. Data Storage
a. All interview and meeting recordings held by SeatMatch will be kept in secure digital storage, confidential from all parties outside SeatMatch, except as required by law. SeatMatch reserves the right to delete all records of the recording after a period of 6 months following the date of interview.
2. Turnaround Time
SeatMatch shall make best efforts to respond to client communications within 1 business day, and guarantees this within 3 business days.
3. Client Responsibilities
Client will be responsible for maintaining certain business practices, systems, applications, and providing SeatMatch the following information:
1. Turnaround Time
a. Client will respond to the best of their ability within 2 business days to requests for information, meetings, etc as required for SeatMatch to fulfill on Services obligations.
2. Point of Contact
a. Client and SeatMatch will each provide a designated point of contact as a liaison for all SeatMatch-associated work before the start of work.
3. Date Delivery System Maintenance
a. SeatMatch will not be responsible for delays in reporting or data delivery due to malfunctions or errors of systems, applications, or personnel maintained by Client.
b. Client will inform SeatMatch via email or phone, of any and all issues occurring to systems, applications, or personnel maintained by Client that may affect the exchange of information, reporting, or data delivery between Client and SeatMatch.
SeatMatch Terms and Conditions
These SeatMatch Terms and Conditions together with the corresponding Services Order Form (collectively, the “Agreement”) is between SeatMatch and Client. Capitalized terms used in these Terms and Conditions and not otherwise defined herein shall have the same meaning as set forth in the Services Order Form.
SeatMatch IS WILLING TO PROVIDE THE SERVICES, INCLUDING LICENSING THE PLATFORM, TO CLIENT ONLY UPON THE CONDITION THAT CLIENT ACCEPTS ALL OF THESE TERMS AND CONDITIONS. BEFORE SIGNING THE SERVICES ORDER FORM, CAREFULLY READ THESE TERMS AND CONDITIONS, BY SIGNING, CLIENT IS CONSENTING TO BE BOUND BY AND ARE BECOMING A PARTY TO THIS AGREEMENT. CLIENT’S USE OF THE SERVICES INDICATES CLIENT’S ASSENT TO BE BOUND BY THESE TERMS AND CONDITIONS.
1. Definitions.
1.1. “Aggregated Data” means data and information related to Client’s use of the Services that is used by SeatMatch in an aggregate and/or anonymized manner, including to compile statistical and performance information related to the Services.
1.2. “SeatMatch IP” means the Services, the Documentation, and any and all intellectual property provided to Client or any Authorized User in connection with the foregoing. For the avoidance of doubt, SeatMatch IP includes Aggregated Data and any information, data, algorithms, assessments, or other content derived from SeatMatch’s monitoring of Client’s access to or use of the Services, but does not include Client Data.
1.3. “Authorized User” means Client’s employees, consultants, contractors, and agents (i) who are authorized by Client to access and view SeatMatch platforms and documentation under the rights granted to Client pursuant to this Agreement and (ii) for whom access to the Platform and Services has been purchased hereunder.
1.4. “Client Data” means, other than Aggregated Data, information, data, and other content, in any form or medium, that is submitted, posted, or otherwise transmitted by or on behalf of Client or an Authorized User through the Services.
1.5. “Documentation” means SeatMatch’s forms, guides, job ads, and work product relating to the Services provided by SeatMatch to Client either electronically or in hard copy form.
1.6. “End-Users” means Client’s Clients, employees, contractors, or others who are end-users of the Services or Platform.
1.7. “Services” means the consultation, research, assessments, campaign buildouts, candidate filtering, interviewing, and negotiation services in the Services Order Form and Exhibit A.
1.8. “Platform” means the VineHired dashboard described in the Services Order Form.
2. Access and Use.
2.1. Provision of Access. Subject to and conditioned on Client’s payment of Fees and compliance with all other terms and conditions of this Agreement, SeatMatch hereby grants Client a non-exclusive, non-transferable (except in compliance with Section 15.4) right to access and use the Services during the Term, solely for use by Authorized Users in accordance with the terms and conditions herein. Such use is limited to Client’s internal use. Client’s use will not exceed the parameters of the Platform Plan and Credit Plan as set forth in the Services Order Form, including, without limitation, the total number of Authorized Users, trainings, and NNMs referenced therein, except as expressly agreed to in writing by the Parties and subject to any appropriate adjustment of the Fees payable hereunder.
2.2. Documentation License. Subject to the terms and conditions contained in this Agreement, SeatMatch hereby grants to Client a non-exclusive, non-sublicensable, non-transferable (except in compliance with Section 15.4) license to use the Documentation during the Term solely for Client’s internal business purposes in connection with its use of the Services.
2.3. Use Restrictions. Client shall not use the Services for any purposes beyond the scope of the access granted in this Agreement. Client shall not at any time, directly or indirectly, and shall not permit any Authorized Users to: (i) copy, modify, or create derivative works of the Services or Documentation, in whole or in part; (ii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Services or Documentation; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Platform, in whole or in part; (iv) remove any proprietary notices from the Services or Documentation; or (v) use the Services or Documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law.
2.4. Reservation of Rights. SeatMatch reserves all rights not expressly granted to Client in this Agreement. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Client or any third party any intellectual property rights or other right, title, or interest in or to the SeatMatch IP.
2.5. Suspension. Notwithstanding anything to the contrary in this Agreement, SeatMatch may temporarily suspend Client’s and any Authorized User’s access to any portion or all of the Services if: (i) SeatMatch reasonably determines that (A) there is a threat or attack on any of the SeatMatch IP; (B) Client’s or any Authorized User’s use of the SeatMatch IP disrupts or poses a security risk to the SeatMatch IP or to any other Client or vendor of SeatMatch; (C) Client, or any Authorized User, is using the SeatMatch IP for fraudulent or illegal activities; (D) subject to applicable law, Client has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or (E) SeatMatch’s provision of the Services to Client or any Authorized User is prohibited by applicable law; (ii) any vendor of SeatMatch has suspended or terminated SeatMatch’s access to or use of any third-party services or products required to enable Client to access the Services; or (iii) in accordance with Section 6.1 (any such suspension described in subclause (i), (ii), or (iii), a “Service Suspension”). SeatMatch shall use commercially reasonable efforts to provide written notice of any Service Suspension to Client and to provide updates regarding resumption of access to the Services following any Service Suspension. SeatMatch shall use commercially reasonable efforts to resume providing access to the Services as soon as reasonably possible after the event giving rise to the Service Suspension is cured. SeatMatch will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Client or any Authorized User may incur as a result of a Service Suspension.
2.6. Aggregated Data. Notwithstanding anything to the contrary in this Agreement, SeatMatch may monitor Client’s use of the Services and collect and compile Aggregated Data. As between SeatMatch and Client, all right, title, and interest in Aggregated Data, and all intellectual property rights therein, belong to and are retained solely by SeatMatch. Client acknowledges that SeatMatch may compile Aggregated Data based on Client Data. Client agrees that SeatMatch may (i) make Aggregated Data publicly available in compliance with applicable law, and (ii) use Aggregated Data to the extent and in the manner permitted under applicable law.
3. Campaign Services, Scope, and Coverage.
3.1 SeatMatch Services. SeatMatch will perform all consultation, research, assessments, campaign buildouts, candidate filtering, interviewing, and negotiation services specified in the Services Order Form.
3.2. Twelve-Month Candidate Commitment Guarantee. SeatMatch guarantees that any candidate hired through our service will remain in their designated role for a minimum of twelve months. In the event of a candidate's departure or dismissal before completing twelve months, our 'SeatMatch Guarantee' ensures a replacement campaign at no additional cost.
3.3. No-Cost Replacement Campaign. Should an early departure occur within this twelve-month period, we will rerun the recruitment campaign to find a suitable replacement. This is done swiftly and efficiently, ensuring minimal disruption to your staffing needs. The guarantee applies specifically to the exact role, title, and person specifications for which the candidate was hired. Changes or eliminations of the original role within the company disqualify the guarantee, though if the roles are similar, a partial discount or credit on a new campaign may be offered at SeatMatch's discretion.
3.4. Campaign Scope and Billing. Each SeatMatch campaign targets one specific hire. The charges are calculated at 30% of the first year’s total compensation for the role. The total compensation is determined by combining the base annual salary and 50% of the annual potential incentive, unless a different amount is mutually agreed in writing by the client prior to the initial public listing of the job. The total fee per hire is subject to a minimum charge of $30,000. Each hire from a campaign is billed separately.
3.5. Initial Campaign Engagement Deposit. An upfront, non-refundable deposit of 50% of the minimum engagement value or, if higher, the total engagement value, is required to start a campaign.If the engagement value exceeds the minimum, the balance up to 50% of this higher value is billed at the time of the role’s public listing.
3.6 Payment of Engagement Value. The remainder of the engagement value for each role or campaign is due immediately when a candidate accepts an offer.
3.7 Campaign Closure Conditions. A single-hire campaign concludes with that hire. Multiple hires from one campaign are treated as separate engagements and billed accordingly.
3.8 Limitations and Client Responsibilities. The SeatMatch Guarantee is limited to one replacement per hire and is contingent upon the fulfillment of all financial obligations from the original campaign. Clients are expected to notify us promptly of any early departure and cooperate in the replacement process.
3.9 Campaign Modification and Pause Policy. If a client requests to pause or stop the campaign or hires a candidate not sourced through SeatMatch’s hiring and qualifications process, 50% of the remaining balance of the engagement value will be billed and due immediately.
4. Client Responsibilities.
4.1. General. Client is responsible and liable for all uses of the Services and Documentation resulting from access provided by Client, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement. Without limiting the generality of the foregoing, Client is responsible for all acts and omissions of Authorized Users, and any act or omission by an Authorized User that would constitute a breach of this Agreement if taken by Client will be deemed a breach of this Agreement by Client. Client shall use reasonable efforts to make all Authorized Users aware of this Agreement’s provisions as applicable to such Authorized User’s use of the Services, and shall cause Authorized Users to comply with such provisions.
4.2. Client Collaboration and Documentation Requirements. Clients are required to share the signed final hire letter and any supporting documentation upon request. Regular check-ins, at least once per quarter, are mandatory. Clients must also allow and facilitate our evaluations of the hire, which involve feedback from both the hire and a supervisor, to be completed within two weeks of request. Non-compliance with these requirements may result in disqualification from the guarantee of replacement.
4.3. Client Interaction Recording Consent:
All interactions with clients, including meetings and calls, may be recorded for quality and training purposes. By continuing engagement with SeatMatch, clients consent to such recordings. Recordings will be stored securely and will be accessible to clients upon request, adhering to privacy and data protection laws.
5. Support. The rights granted hereunder entitle Client to the support services as described in the Services Order Form.
6. Fees and Payment.
6.1. Fees. Client shall pay SeatMatch the fees (“Fees”) as set forth in the Services Order Form Attachment 1 without offset or deduction. Client shall make all payments hereunder in US dollars on or before the due date set forth in the Services Order Form. If Client fails to make any payment when due, without limiting SeatMatch’s other rights and remedies: (i) SeatMatch may charge interest on the past due amount at the rate of 1.5% per month calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable law; (ii) Client shall reimburse SeatMatch for all costs incurred by SeatMatch in collecting any late payments or interest, including attorneys’ fees, court costs, and collection agency fees; and (iii) if such failure continues for thirty (30) days or more, SeatMatch may suspend Client’s and its Authorized Users’ access to any portion or all of the Services until such amounts are paid in full.
6.2. Taxes. All Fees and other amounts payable by Client under this Agreement are exclusive of taxes and similar assessments. Client is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Client hereunder, other than any taxes imposed on SeatMatch’s income.
6.3 Payment Method Update and Verification Policy. Clients must ensure their payment information (credit card, ACH) is up-to-date. SeatMatch will conduct semi-annual verifications of payment methods. Clients with expired or invalid payment details will receive an email notification with a direct link to update their information within 7 business days to avoid service interruptions.
7. Confidential Information. From time to time during the Term, either Party may disclose or make available to the other Party information about its business affairs, products, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, whether orally or in written, electronic, or other form or media, whether or not marked, designated, or otherwise identified as “confidential” (collectively, “Confidential Information”). Confidential Information does not include information that, at the time of disclosure is: (a) in the public domain; (b) known to the receiving Party at the time of disclosure; (c) rightfully obtained by the receiving Party on a non-confidential basis from a third party; or (d) independently developed by the receiving Party. The receiving Party shall not disclose the disclosing Party’s Confidential Information to any person or entity, except to the receiving Party’s employees who have a need to know the Confidential Information for the receiving Party to exercise its rights or perform its obligations hereunder. Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required (i) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the Party making the disclosure pursuant to the order shall first have given written notice to the other Party and made a reasonable effort to obtain a protective order; or (ii) to establish a Party’s rights under this Agreement, including to make required court filings. On the expiration or termination of the Agreement, the receiving Party shall promptly return to the disclosing Party all copies, whether in written, electronic, or other form or media, of the disclosing Party’s Confidential Information, or destroy all such copies and certify in writing to the disclosing Party that such Confidential Information has been destroyed. Each Party’s obligations of non-disclosure with regard to Confidential Information are effective as of the Effective Date and will expire five years from the date first disclosed to the receiving Party; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations of non-disclosure will survive the termination or expiration of this Agreement for as long as such Confidential Information remains subject to trade secret protection under applicable law.
8. Intellectual Property Ownership; Feedback.
8.1. SeatMatch IP. Client acknowledges that, as between Client and SeatMatch, SeatMatch owns all right, title, and interest, including all intellectual property rights, in and to the SeatMatch IP.
8.2. Client Data. SeatMatch acknowledges that, as between SeatMatch and Client, Client owns all right, title, and interest, including all intellectual property rights, in and to the Client Data. Client hereby grants to SeatMatch a non-exclusive, royalty-free, worldwide license to reproduce, distribute, and otherwise use and display the Client Data and perform all acts with respect to the Client Data as may be necessary for SeatMatch to provide the Services to Client, and a non-exclusive, perpetual, irrevocable, royalty-free, worldwide license to reproduce, distribute, modify, and otherwise use and display Client Data incorporated within the Aggregated Data.
8.3. Feedback. If Client or any of its employees or contractors sends or transmits any communications or materials to SeatMatch by mail, email, telephone, or otherwise, suggesting or recommending changes to the SeatMatch IP, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (“Feedback”), SeatMatch is free to use such Feedback irrespective of any other obligation or limitation between the Parties governing such Feedback. Client hereby assigns to SeatMatch on Client’s behalf, and on behalf of its employees, contractors and/or agents, all right, title, and interest in, and SeatMatch is free to use, without any attribution or compensation to any party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, although SeatMatch is not required to use any Feedback.
10. Non-Circumvention and Engagement Fee Entitlement
10.1. Acknowledgment of Referrals. Client hereby acknowledges that any candidate introduced by SeatMatch for any position, whether expressly communicated or discovered through SeatMatch's efforts, shall be considered a referred candidate from SeatMatch.
10.2. Non-Circumvention. Client agrees not to circumvent, avoid, bypass, or obviate SeatMatch's involvement directly or indirectly, to avoid payment of fees or commissions to SeatMatch, in any transaction with any candidate introduced by SeatMatch during the term of this Agreement and for a period of one year following the termination of this Agreement.
10.3. Engagement Fee Entitlement. In the event of new hire into employment, engagement, or other use of the services of a candidate referred by SeatMatch, either directly or indirectly, within one year from the date of the last referral of such candidate, Client shall be liable to pay SeatMatch an engagement fee as per the terms agreed upon in this Agreement.
10.4. Reporting of Employment: Client shall notify SeatMatch immediately of any employment or engagement of a referred candidate. Failure to report such engagement shall not relieve the Client of its obligation to pay the due engagement fee to SeatMatch.
11. Limited Warranty and Warranty Disclaimer. THE SeatMatch IP IS PROVIDED “AS IS” AND SeatMatch HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. SeatMatch 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. SeatMatch MAKES NO WARRANTY OF ANY KIND THAT THE SeatMatch IP, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CLIENT’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.
12. Indemnification.
12.1. SeatMatch Indemnification.
12.1.1. SeatMatch shall indemnify, defend, and hold harmless Client from and against any and all losses, damages, liabilities, costs (including reasonable attorneys’ fees) (“Losses”) incurred by Client resulting from any third-party claim, suit, action, or proceeding (“Third-Party Claim”) that the Services, or any use of the Services in accordance with this Agreement, infringes or misappropriates such third party’s US intellectual property rights, provided that Client promptly notifies SeatMatch in writing of the claim, cooperates with SeatMatch, and allows SeatMatch sole authority to control the defense and settlement of such claim.
12.1.2. If such a claim is made or appears possible, Client agrees to permit SeatMatch, at SeatMatch’s sole discretion, to (A) modify or replace the Services, or component or part thereof, to make it non-infringing, or (B) obtain the right for Client to continue use. If SeatMatch determines that neither alternative is reasonably available, SeatMatch may terminate this Agreement, in its entirety or with respect to the affected component or part, effective immediately on written notice to Client.
12.1.3. This Section 12.1 will not apply to the extent that the alleged infringement arises from: (A) use of the Services in combination with data, software, hardware, equipment, or technology not provided by SeatMatch or authorized by SeatMatch in writing; (B) modifications to the Services not made by SeatMatch; or (C) Client Data.
12.2. Client Indemnification. Client shall indemnify, hold harmless, and, at SeatMatch’s option, defend SeatMatch from and against any Losses resulting from any Third-Party Claim that the Client Data, or any use of the Client Data in accordance with this Agreement, infringes or misappropriates such third party’s US intellectual property rights and any Third-Party Claims based on Client’s or any Authorized User’s (i) negligence or willful misconduct; (ii) use of the Services in a manner not authorized by this Agreement; (iii) use of the Services in combination with data, software, hardware, equipment, or technology not provided by SeatMatch or authorized by SeatMatch in writing; or (iv) modifications to the Services not made by SeatMatch, provided that Client may not settle any Third-Party Claim against SeatMatch unless SeatMatch consents to such settlement, and further provided that SeatMatch will have the right, at its option, to defend itself against any such Third-Party Claim or to participate in the defense thereof by counsel of its own choice.
12.3. Sole Remedy. THIS SECTION 12 SETS FORTH CLIENT’S SOLE REMEDIES AND SEATMATCH’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SERVICES INFRINGE, MISAPPROPRIATE, OR OTHERWISE VIOLATE ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY. IN NO EVENT WILL SEATMATCH’S LIABILITY UNDER THIS SECTION 12 EXCEED THE LIMITATION OF LIABILITY AS SET FORTH IN SECTION 13 BELOW.
13. Limitations of Liability. IN NO EVENT WILL SEATMATCH BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (a) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (b) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (c) LOSS OF GOODWILL OR REPUTATION; (d) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY, OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (e) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER SEATMATCH WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. IN NO EVENT WILL SEATMATCH’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE EXCEED THE TOTAL AMOUNTS PAID TO SEATMATCH UNDER THIS AGREEMENT IN THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
14. Term and Termination.
14.1. Term. The Term of this Agreement is as set forth in the Services Order Form.
14.2. Termination. In addition;
14.2.2. Either Party may terminate this Agreement, effective on written notice to the other Party, if the other Party breaches this Agreement, and such breach: (A) is incapable of cure; or (B) being capable of cure, remains uncured thirty (30) days after the non-breaching Party provides the breaching Party with written notice of such breach;
14.2.3. Either Party may terminate this Agreement without cause upon thirty (30) days prior written notice to the other Party (subject to the Early Termination Fee referenced in Section 14.3 below); or
14.2.4. Either Party may terminate this Agreement, effective immediately upon written notice to the other Party, if the other Party: (A) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (B) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (C) makes or seeks to make a general assignment for the benefit of its creditors; or (D) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
14.3 Effect of Expiration or Termination.
14.3.1. Except as permitted in Section 14.3.2 below, upon expiration or earlier termination of this Agreement, Client shall immediately discontinue use of the SeatMatch IP and, without limiting Client’s obligations under Section 7, Client shall delete, destroy, or return all copies of the SeatMatch IP and certify in writing to the SeatMatch that the SeatMatch IP has been deleted or destroyed.
14.3.2. Provided this Agreement is not terminated by SeatMatch for cause, upon expiration or earlier termination of this Agreement, SeatMatch will provide Client with access to the Platform for fifteen (15) calendar days (the “Sunset Period”) following the date of termination or expiration, solely for Client to export its Client Data. Client shall not submit any new Service requests, or otherwise use the Platform in any other way during the Sunset Period.
14.3.3. No expiration or termination will affect Client’s obligation to pay all Fees that may have become due before such expiration or termination or entitle Client to any refund.
14.3.4. If Client terminates this Agreement without cause pursuant to Section 14.2.3, Client shall pay the Early Termination Fee to SeatMatch upon termination. The “Early Termination Fee” means all Fees that would have been payable to SeatMatch for the remainder of the then-current Term.
14.4. Survival. This Section 14.4 and Sections 1, 5-13, 14.3 and 15 shall survive any termination or expiration of this Agreement. No other provisions of this Agreement survive the expiration or earlier termination of this Agreement.
15. Miscellaneous.
15.1. Entire Agreement. This Agreement, together with any other documents incorporated herein by reference and all related Services Order Forms and Exhibits, constitutes the sole and entire agreement of the Parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, and representations and warranties, both written and oral, with respect to such subject matter.
15.2. Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice”) must be in writing and addressed to the Parties at the addresses set forth on the first page of this Agreement (or to such other address that may be designated by the Party giving Notice from time to time in accordance with this Section). All Notices must be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile or email (with confirmation of transmission), or certified or registered mail (in each case, return receipt requested, postage pre-paid). Except as otherwise provided in this Agreement, a Notice is effective only: (i) upon receipt by the receiving Party; and (ii) if the Party giving the Notice has complied with the requirements of this Section.
15.3. Force Majeure. In no event shall SeatMatch be liable to Client, or be deemed to have breached this Agreement, for any failure or delay in performing its obligations under this Agreement (except for any obligations to make payments), if and to the extent such failure or delay is caused by any circumstances beyond SeatMatch’s reasonable control, including but not limited to acts of God, flood, fire, earthquake, explosion, war, terrorism, invasion, riot or other civil unrest, strikes, labor stoppages or slowdowns or other industrial disturbances, or passage of law or any action taken by a governmental or public authority, including imposing an embargo.
15.4. Amendment and Modification; Waiver. No amendment to or modification of this Agreement is effective unless it is in writing and signed by an authorized representative of each Party. No waiver by any Party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement, (i) no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof, and (ii) no single or partial exercise of any right, remedy, power, or privilege hereunder will preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
15.5. Severability. If any provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the Parties shall negotiate in good faith to modify this Agreement so as to effect their original intent as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
15.6. Governing Law; Submission to Jurisdiction. This Agreement is governed by and construed in accordance with the internal laws of the State of Texas without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of Texas. Any legal suit, action, or proceeding arising out of or related to this Agreement or the licenses granted hereunder will be instituted exclusively in the federal courts of the United States or the courts of the State of Texas in each case located in the city of Austin and County of Travis, and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.
15.7. Assignment. Client may not assign any of its rights or delegate any of its obligations hereunder, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without the prior written consent of SeatMatch. Any purported assignment or delegation in violation of this Section will be null and void. No assignment or delegation will relieve the assigning or delegating Party of any of its obligations hereunder. This Agreement is binding upon and inures to the benefit of the Parties and their respective permitted successors and assigns.
15.8. Export Regulation. Client shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), that prohibit or restrict the export or re-export of the Services or any Client Data outside the US.
15.9. Equitable Relief. Each Party acknowledges and agrees that a breach or threatened breach by such Party of any of its obligations under Section 7 or, in the case of Client, Section 2.3, would cause the other Party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other Party will be entitled to equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.
Exhibit A
Capitalized terms used but not defined in this Exhibit A have the meaning given to those terms in the Agreement.
1. Campaign Services
SeatMatch will provide consultation, research, assessments, campaign buildouts, candidate filtering, interviewing, and negotiation services to Client. The following helps further define these services in detail.
Accordingly, SeatMatch will provide Client with the following detailed services as part of the Assessment Services
2. Core Campaign Services
Role and Fit Consultations – SeatMatch will consult with Client and perform Person Specification assessment to ensure the ideal role requirements, job functions, and job description so that the new hire will be the highest value add possible within the company.
Competitive Landscape Research – SeatMatch will perform research and analysis on comparable roles and functions across the job market to ensure Client has a competitive offering and accurate hiring plans.
Initial Culture & Fit Analysis – SeatMatch, through with its subcontractor Aboutly Technologies LLC, will perform both neural network mappings and culture fit assessment on up to 3 existing team members including the hiring manager, a successful peer in the existing role, and one other. The goal is to understand the environment and team to which a successful candidate will need to fit and adapt.
Precision Hiring Funnel/Process – SeatMatch will build a custom hiring funnel/process including job ad, application form, candidate tests, Aboutly Neural Network Mapping, and in depth interviews appropriate to the Client’s role and hiring needs. SeatMatch will publish, update, and optimize the job ad and hiring funnel regularly, perform outbound recruitment as necessary to supply the funnel with candidates, and deliver finalist candidates to the Client as they are selected by the process.
Regular Updates – SeatMatch will offer regular meetings with Client, and will send an update at least once per week on the status of the campaign, any optimizations made, and notable candidates who are working through the process. Client is welcome to provide feedback as well.
Hiring Negotiations – SeatMatch will consult and assist Client with the hiring negotiations with any referred candidates including salary and benefits discussions, or other work requirements. SeatMatch at the request of the Client will prepare and send an offer letter for final signature by both parties.
Post-Hire Check-Ins – SeatMatch will contact the Client at one month, three month, and quarterly thereafter from the candidate start date up to one year to discuss new employee’s performance and Client satisfaction, as well as offer additional advice, feedback, etc with the goal of optimizing new employee’s overall success at the Company.
2. Neural Network Mappings
a. SeatMatch, through it’s subcontractor Aboutly Technologies, will perform an NNM analysis on existing team members and candidates who make it to the relevant stage of the hiring funnel. This involves an interview over Zoom, analysis of responses, and a report provided back to SeatMatch. These reports will be used to assess role fit and team culture fit.
3. Data Storage
a. All interview and meeting recordings held by SeatMatch will be kept in secure digital storage, confidential from all parties outside SeatMatch, except as required by law. SeatMatch reserves the right to delete all records of the recording after a period of 6 months following the date of interview.
2. Turnaround Time
SeatMatch shall make best efforts to respond to client communications within 1 business day, and guarantees this within 3 business days.
3. Client Responsibilities
Client will be responsible for maintaining certain business practices, systems, applications, and providing SeatMatch the following information:
1. Turnaround Time
a. Client will respond to the best of their ability within 2 business days to requests for information, meetings, etc as required for SeatMatch to fulfill on Services obligations.
2. Point of Contact
a. Client and SeatMatch will each provide a designated point of contact as a liaison for all SeatMatch-associated work before the start of work.
3. Date Delivery System Maintenance
a. SeatMatch will not be responsible for delays in reporting or data delivery due to malfunctions or errors of systems, applications, or personnel maintained by Client.
b. Client will inform SeatMatch via email or phone, of any and all issues occurring to systems, applications, or personnel maintained by Client that may affect the exchange of information, reporting, or data delivery between Client and SeatMatch.