Continuous Workforce Screening

Terms of Services

Terms of Service

Monitoring Software platform

Effective Day 1 November 2021

These Terms of Service (“TOS”) are entered into by and between Alpha Screening LLC d/b/a PostHire, a Limited Liability Company incorporated under the laws of the Commonwealth of Virginia (“Posthire”) and the entity or person that has executed an agreement with PostHire that provides access to Posthire’s proprietary Continuous Monitoring Platform and use of the Continuous Monitoring System (“Customer” or “you”.

The “Effective Date of this TOS is the date which is the earlier of (a) Customer’s initial access to the Continuous Monitoring

Platform or (b) the effective date of any executed agreement with Posthire that references this TOS.

1.  Definitions

  1. Access Credentials. Any user name, identification number, password, license or security key, security token, PIN, or other security code, method, technology, or device, used alone or in combination, to verify an individuals identity and authorization to access and use the Services.
  2. Affiliate. Any other Person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such Person.
  3. Agreement. These TOS along with any Order Form that incorporates it.
  4. Authorized Users. Customer’s employees, consultants, contractors, and agents (a) who are authorized by Customer to access and use the Services under the rights granted to Customer pursuant to this TOS and any Order Form; and (b) for whom access to the Services has been purchased or otherwise granted by agreement.
  5. Continuous Monitoring System. A proprietary software system developed by Posthire that continuously checks for new public criminal, traffic, and arrest records from a proprietary compilation of sources on a continuous and automated basis. The Continuous Monitoring System does not check for new records from non-court or non-arrest sources such as, without limitation, information relating to sanctions or administrative disciplinary actions
  6. Continuous Monitoring Platform. Software platform developed by Posthire that: (i) allows users to monitor a list of individual names (hereafter “Monitored Individuals”) using the Continuous Monitoring System, and (il) alerts users to any new criminal, traffic and arrest records found for Monitored Individuals. This software platform also utilizes proprietary technology and techniques such as, without limitation, (i) Match Indicators which assign returned records with a numerical value (sometimes with color coding): (i) Monitoring Categories which categorizes returned records by offense levels; and (iii) Filters which allows Authorized Users to create a set of rules for filtering returned records.
  7. Customer Data. Information, data, and other content, in any form or medium, that is collected, downloaded, or otherwise received, directly or indirectly, from Customer or an Authorized User by or through the Services. For the avoidance of doubt, Customer Data does not include Monitoring Results or any other information reflecting the access or use of the Services by or on behalf of Customer or any Authorized User.
  8. Documentation. The user manuals) and any other materials supplied by Posthire for use with the Continuous Monitoring System and Continuous Monitoring Platform.
  9. End Users. Customer or Customers clients end-user customers.
  10. Intellectual Property Rights. Any and all registered and unregistered rights granted, applied for, or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection, or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.
  11. Law. Any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree, or other requirement of any federal, state, local, or foreign government or political subdivision thereof, or any arbitrator, court, or tribunal of competent jurisdiction.
  12. Losses. Any and all losses, damages, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees and the costs of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers.
  13. Monitoring Order. An automated or manual request to monitor a name in combination with Date of Birth or other identifying information through the Continuous Monitoring Platform.
  14. Monitoring Results. Results of a Monitoring Order, including: (i) alert(s) to users of any new records found for Monitored Individuals, (ii) summary of record information, including any graphical or image representation thereof: and (iii) a link to a copy of underlying source data, when available.
  15. Order Form. Any executed agreement including, without limitation, trial agreements, between Customer and Posthire that expressly provides Customer access to Services.
  16. Paying Customer Clients. Customer’s clients that are actively submitting live Monitoring Orders and paying for use of Posthire’s Continuous Monitoring System and Platform.
  17. Person. An individual, corporation, partnership. joint venture. limited liability entity. governmental authority, unincorporated organization, trust, association, or other entity.
  18. Security Breach. An act or omission that materially compromises either the security confidentiality or integrity of Confidential Information, including, without limitation, unauthorized access to Services.
  19. Services. Continuous Monitoring System and Continuous Monitoring System are collectively referred to as Services
  20. Term. The term specified in any Order Form.
 

2. Ownership. This is a subscription agreement for access to and use of the Services. Customer acknowledges that it is obtaining only a limited right to the Services and that irrespective of any use of the words “purchase”, “sale” or like terms in this Agreement no ownership rights are being conveyed to Customer under this Agreement. Customer agrees that Posthire retains all right, title and interest (including all Intellectual Property Rights) in and to the Services and all Documentation, integrations with the Services, and any and all related and underlying technology and documentation and any derivative works, modifications or improvements of any of the foregoing. Except as expressly set forth in this Agreement, no rights in any Services or related proprietary technology are granted to Customer. Further, Customer acknowledges that the Services are offered as an on-line, hosted solution, and that Customer has no right to obtain a copy of any of the Services.

3.  Access. Posthire shall provide Customer with Access Credentials within a reasonable time following the Effective Date.

 

4. Documentation License. Posthire hereby grants to Customer a non-exclusive, non- sublicensable, non-transferable limited license to use the Documentation during the Term specified in the Order Form solely for use in accordance with Customer’s permitted use of Services.

5. Use Restrictions. Customer shall not access or use the Services except as expressly permitted by this Agreement.
Without limitations, Customer shall not, except as this Agreement expressly permits:

  1. use Services as or in connection with an initial employment application or an offer of employment conditioned upon an application;
  2. use Services to discriminate against an Monitored Individual. or otherwise misuse Services in violation of federal or state equal opportunity laws or regulations;
  3. copy. modify. or create derivative works or improvements of the Services or Documentation:
  4. rent, lease, lend, sell, sublicense, assian, distribute. publish, transfer, or otherwise make available any Services or Documentation to any Person. including on or in connection with the internet or an time-sharing. service bureau. software as a service, cloud, or other technology or service;
  5. reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to the source code of the Services or Documentation, in whole or in part;
  6. bypass or breach any security device or protection used by the Services or Documentation or access or use the Services or Documentation other than by an Authorized User through the use of his or her own then valid Access Credentials;
  7. input, upload, transmit, or otherwise provide to or through the Services, any information or materials that are unlawful or injurious, or contain, transmit, or activate any harmful code;
  8. damage, destroy, disrupt, disable, impair, interfere with, or otherwise impede or harm in any manner the Services and its infrastructure;
  9. 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 Documentation, including any copy thereof;
  10. access or 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 third party, or that violates any applicable Law;
  11. access or use the Services or Documentation for purposes of competitive analysis of the Services or Documentation, the development, provision, or use of a competing software service or product or any other purpose that is to Posthire’s detriment or commercial disadvantage;
  12. otherwise access or use the Services or Documentation beyond the scope of the authorization granted by this Agreement.


6. Changes. Posthire reserves the right, in its sole discretion, to make any changes to the Services and Documentation that it deems necessary or useful to: (a) maintain or enhance: (i) the quality or delivery of Posthire’s services to its customers; (ii) the competitive strength of or market for Posthire’s services; or (ili) the Services’ cost efficiency or performance; or (b) to comply with applicable Law. Without limiting the foregoing, either party may, at any time during the Term, request in writing changes to the Services


7. Suspension or Termination of Services. Posthire may, directly or indirectly, suspend, terminate, or otherwise deny Customer’s, any Authorized User’s, or any other Person’s access to or use of all or any part of the Services or Documentation, without incurring any resulting obligation or liability, if: (a) Posthire receives a judicial or other governmental demand or order, subpoena, or law enforcement request that expressly or by reasonable implication requires Posthire to do so; or (b) Posthire believes, in its good faith and reasonable discretion, that: (i) Customer or any Authorized User has failed to comply with any material term of this Agreement, or accessed or used the Services beyond the scope of the rights granted or for a purpose not authorized under this Agreement or in any manner that does not comply with any material instruction or requirement included herein; (ji) Customer or any Authorized User is, has been, or is likely to be involved in any fraudulent, misleading, or unlawful activities relating to or in connection with any of the Services; or (ili) Agreement expires or is terminated. This Section does not limit any of Posthire’s other rights or remedies, whether at law, in equity, or under this Agreement.


8. Customer Obligations. Customer shall at all times during the Term provide all cooperation and assistance as Posthire may reasonably request to enable Posthire to exercise its rights and perform its obligations under and in connection with this Agreement. Posthire is not responsible or liable for any delay or failure of performance caused in whole or in part by Customer’s delay in performing, or failure to perform, any of its obligations under this Agreement.


9. Service-Level Agreement.

  1. Target Availability. Posthire will use commercially reasonable efforts to make each Service available with an uptime of 99.8% of each calendar month (“Target Availability”).
  2. Exclusions. The calculation of uptime will not include unavailability to the extent due to: (a) use of the Service by Customer in a manner not authorized in this Agreement or the applicable Documentation; (b) general Internet problems, force majeure events or other factors outside of Posthire’s reasonable control; (c) Customer’s equipment, software, network connections or other infrastructure; (d) third party systems, acts or omissions; or (e) Scheduled Maintenance or reasonable emergency maintenance.
  1. Scheduled Maintenance. “Scheduled Maintenance” means Posthire’s scheduled routine maintenance of the Services for which Posthire notifies Customer at least twenty-four (24) hours in advance. Scheduled Maintenance will not exceed twelve (12) hours per month.
  2. Remedy for Failure to Meet Target Availability. If there is a verified failure of a Service to meet Target Availability in two (2) consecutive months, then Customer may terminate this Agreement by sending written notice of termination within thirty (30) days after the end of the second such month. This termination is Customer’s sole and exclusive remedy, and Posthire’s sole and exclusive liability, for Posthire’s failure to meet the Target Availability.


10. Non-Solicitation. During the Term and for two years after, Customer shall not, and shall not assist any other Person to, directly or indirectly, recruit or solicit (other than by general advertisement not directed specifically to any Person or Persons) for employment or engagement as an independent contractor any Person then or within the prior 6 months employed or engaged by Posthire. In the event of a violation of this Section, Posthire will be entitled to liquidated damages equal to the compensation paid by Posthire to the applicable employee or contractor during the prior 6 months.


11. Security.

  1. Information Security. Posthire will employ security measures in accordance with industry standards.
  2. Security Breach. Each Party shall notify the other Party of a Security Breach as soon as practicable, but no later 72 hours after a Party becomes aware of it. Immediately following notification of a Security Breach, Parties shall coordinate with each other to investigate the Security Breach.
  3. 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 information technology infrastructure including computers, software, databases, electronic systems (including database management systems), and networks, whether operated directly by Customer or through the use of third-party services (“Customer Systems”); the security and use of Customer’s and its Authorized Users’ Access Credentials; and (e) all access to and use of the Services and Documentation directly or indirectly by or through the Continuous Monitoring Platform 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
  4. 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.


12. Confidentiality.

  1. Confidential Information. In connection with this Agreement each party (as the “Disclosing Party”) may disclose or make available Confidential Information to the other party (as the “Receiving Party”). “Confidential Information” means information in any form or medium (whether oral, written, electronic, or other) that the Disclosing Party considers confidential or proprietary, including information consisting of or relating to the Disclosing Party’s technology, trade secrets, know-how, employee information, customer information, business operations, plans, strategies, customers, pricing, and information with respect to which the Disclosing Party has contractual or other confidentiality obligations, in each case whether or not marked, designated, or otherwise identified as “confidential”.
    Without limiting the foregoing: all Documentation are the Confidential Information of Posthire and the financial terms and existence of this Agreement are the Confidential Information of each of the parties
  2. Exclusions. Confidential Information does not include information that the Receiving Party can demonstrate by written or other documentary records: (a) was rightfully known to the Receiving Party without restriction on use or disclosure prior to such information’s being disclosed or made available to the Receiving Party in connection with this Agreement; (b) was or becomes generally known by the public other than by the Receiving Party’s or any of its Representatives’ noncompliance with this Agreement or (c) was or is received by the Receiving Party on a non-confidential basis from a third party that was not or is not, at the time of such receipt, under any obligation to maintain its confidentiality.
  3. Protection of Confidential Information. As a condition to being provided with any disclosure of or access to Confidential Information, the Receiving Party shall:

    i.      not access or use Confidential Information other than as necessary to exercise its rights or perform its obligations under and in accordance with this Agreement;

    ii.     not disclose or permit access to Confidential Information other than to its those who need to know such Confidential Information for purposes of the Receiving Party’s exercise of its rights or performance of its obligations under and in accordance with this Agreement.

  4. Compelled Disclosures. If the Receiving Party is compelled by applicable Law to disclose any Confidential Information then, to the extent permitted by applicable Law, the Receiving Party shall: (a) promptly, and prior to such disclosure, notify the Disclosing Party in writing of such requirement so that the Disclosing Party can seek a protective order or other remedy or waive its rights; and (b) provide reasonable assistance to the Disclosing Party in opposing such disclosure or seeking a protective order or other limitations on disclosure. If the Disclosing Party waives compliance or, after providing the notice and assistance, the Receiving Party remains required by Law to disclose any Confidential Information, the Receiving Party shall disclose only that portion of the Confidential Information that the Receiving Party is legally required to disclose.

13. Intellectual Property Rights.

  1. Documentation. All right, title, and interest in and to the Documentation, including all Intellectual Property Rights therein, are and will remain with Posthire. Customer has no right, license, or authorization with respect to any of the Docuetnation except as expressly set forth in this Agreement. In furtherance of the foregoing,
  1. Monitoring Results. Customer hereby unconditionally and irrevocably grants to Posthire an assignment of all right, title, and interest in and to the Monitoring Results, including all Intellectual Property Rights relating thereto
  2. Customer Data. As between Customer and Posthire, Customer is and will remain the sole and exclusive owner of all right, title, and interest in and to all Customer Data, including all Intellectual Property Rights relating thereto.
  3. Consent to Use Customer Data. Customer hereby irrevocably grants all such rights and permissions in or relating to Customer Data as are necessary or useful to Posthire to enforce this Agreement and exercise Posthire’s rights and perform Posthire’s obligations hereunder.


14. Representations and Warranties.

  1. Mutual Representations and Warranties. Each party represents and warrants to the other party that.

    i. it is duly organized, validly existing, and in good standing as a corporation or other entity under the Laws of the jurisdiction of its incorporation or other organization;

    ii. it has the full right, power, and authority to enter into and perform its obligations and grant the rights, licenses, consents, and authorizations it grants or is required to grant under this Agreement;

    iii. the execution of this Agreement by its representative has been duly authorized by all necessary corporate or organizational action of such party; and

    iv. when any Order Form is executed and delivered by both parties, this Agreement will constitute the legal, valid, and binding obligation of such party, enforceable against such party in accordance with its terms.

  2. Additional Posthire Representations, Warranties, and Covenants. Posthire represents, warrants, and covenants to Customer that Posrhire will perform the Services using personnel of required skill, experience, and qualifications and in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services.
  3. Additional Customer Representations, Warranties, and Covenants.

    i. Customer represents, warrants, and covenants to Posthire that Customer owns or otherwise has and will have the necessary rights and consents in and relating to the Customer Data so that, as received by Posthire and processed in accordance with this Agreement, they do not and will not infringe, misappropriate, or otherwise violate any Intellectual Property Rights, or any privacy or other rights of any third party or violate any applicable Law.

    ii. Customer represents, warrants, and covenants that it has obtained all necessary written permissions from Monitored Individuals.

    iii. Customer represents, warrants, and covenants that it complies with all requirements of the Fair Credit Reporting Act, as applicable

  4. DISCLAIMER OF WARRANTIES. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN SECTION 14. ALL SERVICES AND DOCUMENTATION ARE PROVIDED “AS IS.’ POSTHIRE 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. WITHOUT LIMITING THE FOREGOING, POSTHIRE MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES OR DOCUMENTATION, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF. 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.

15. Indemnification.

  1. Posthire Indemnification. Posthire shall indemnify, defend, and hold harmless Customer and Customer’s officers, directors, employees, agents, permitted successors, and permitted assigns (each, a “Customer Indemnitee”) from and against any and all Losses incurred by Customer resulting from any Action by a third party (other than an Affiliate of [al Customer [Indemnitee]) that Customer’s or an Authorized User’s use of the Services (excluding Customer Data) in accordance with this Agreement infringes or misappropriates such third party’s US Intellectual Property Rights/US patents, copyrights, or trade secrets. The foregoing obligation does not apply to the extent that the alleged infringement arises from:

    i. Customer Data;

    ii. access to or use of the Documentation in combination with any hardware, system, software, network, or other materials or service not provided by Posthire or specified for Customer’s use in the Documentation;

    iii. modification of the Documentation other than: (i) by or on behalf of Posthire; or (i) with Posthire’s written approval in accordance with Posthire’s written specification; or

    iv. modification of the Documentation other than: (i) by or on behalf of Posthire; or (i) with Posthire’s written approval in accordance with Posthire’s written specification; or

    v. failure to timely implement any modifications, upgrades, replacements, or enhancements made available to Customer by or on behalf of Posthire;

  2. Customer Indemnification. Customer shall indemnify, defend, and hold harmless Posthire and its Affiliates, and each of its and their respective officers, directors, employees, agents, successors, and assigns (each, a “Posthire Indemnitee”) from and against any and all Losses incurred by such Posthire Indemnitee resulting from any Action by a third party (other than an Affiliate of a Posthire Indemnitee) that arise out of or result from, or are alleged to arise out of or result from:

    i. Customer Data, including any processing of Customer Data by or on behalf of Posthire in accordance with this Agreement;

    ii. 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 Posthire’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 Posthire;

    iii. allegation of facts that, if true, would constitute Customer’s breach of any of its representations, warranties, covenants, or obligations under this Agreement; or

    iv. 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.

  3. Indemnification Procedure. Each party shall promptly notify the other party in writing of any Action for which such party believes it is entitled to be indemnified pursuant to this Agreement. The party seeking indemnification (the “Indemnitee”) shall cooperate with the other party (the “Indemnitor”) at the Indemnitor’s sole cost and expense. The Indemnitor shall promptly assume control of the defense and shall employ counsel reasonably acceptable to the Indemnitee to handle and defend the same, at the Indemnitor’s sole cost and expense. The Indemnitee may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing The Indemnitor shall not settle any Action on any terms or in any manner that adversely affects the rights of any Indemnitee without the Indemnitee’s prior written consent which shall not be unreasonably withheld or delayed. If the Indemnitor fails or refuses to assume control of the defense of such Action, the Indemnitee shall have the right. but no obligation, to defend against such Action, including settling such Action after giving notice to the Indemnitor, in each case in such manner and on such terms as the Indemnitee may deem appropriate. The Indemnitee’s failure to perform any obligations under this Section 15 will not relieve the Indemnitor of its obligations under this Section 15. except to the extent that the Indemnitor can demonstrate that it has been materially prejudiced as a result of such failure.
  4. Sole Remedy. THIS SECTION 15 SETS FORTH CUSTOMER’S SOLE REMEDIES AND POSTHIRE’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SERVICES AND DOCUMENTATION OR ANY SUBJECT MATTER OF THIS AGREEMENT INFRINGES, MISAPPROPRIATES, OR OTHERWISE VIOLATES ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.


16. Limitations of Liability.

  1. EXCLUSION OF DAMAGES. IN NO EVENT WILL POSTHIRE OR ANY OF ITS AFFILIATES, LICENSORS, SERVICE PROVIDERS, OR SUPPLIERS BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) STRICT LIABILITY. AND OTHERWISE. FOR ANY: (a) LOSS OF PRODUCTION. USE. BUSINESS REVENUE, OR PROFIT OR DIMINUTION IN VALUE; (b) IMPAIRMENT, INABILITY TO USE OR LOSS, INTERRUPTION OR DELAY OF THE SERVICES; (c) LOSS, DAMAGE, CORRUPTION, OR RECOVERY OF DATA, OR BREACH OF DATA OR SYSTEM SECURITY; (d) COST OF REPLACEMENT GOODS OR SERVICES; (e) LOSS OF GOODWILL OR REPUTATION; OR (f) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES. REGARDLESS OF WHETHER SUCH PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
  2. CAP ON MONETARY LIABILITY. IN NO EVENT WILL THE COLLECTIVE AGGREGATE LIABILITY OF POSTHIRE AND ITS AFFILIATES, LICENSORS, SERVICE PROVIDERS, AND SUPPLIERS ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING UNDER OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR ANY OTHER LEGAL OR EQUITABLE THEORY, EXCEED $25,000. THE FOREGOING LIMITATIONS APPLY EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE

17. Termination.

  1. Termination. In addition to any other express termination right set forth elsewhere in this Agreement:

    i. Posthire may terminate this Agreement, effective on written notice to Customer, if Customer fails to pay any amount when due hereunder, and such failure continues more than 30 calendar days after Posthire’s delivery of written notice thereof;

    ii. either party may terminate this Agreement, effective on written notice to the other party, if the other party materially breaches this Agreement, and such breach: (i) is incapable of cure; or (i) being capable of cure, remains uncured 30 calendar days after the non-breaching party provides the breaching party with written notice of such breach; and

    iii. either party may terminate this Agreement, effective immediately upon written notice to the other party, if the other party: (i) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (ii) 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; (ili) makes or seeks to make a general assignment for the benefit of its creditors; or (iv) 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.

  2. Effect of Termination or Expiration. Upon any expiration or termination of this Agreement, except as expressly otherwise provided in this Agreement:

    i. all rights, licenses, consents, and authorizations granted by either party to the other hereunder will immediately terminate;

    ii. Posthire shall immediately cease all use of any Customer Data or Customer’s Confidential Information and (i) within 30 days return to Customer, or at Customer’s written request destroy, all documents and tangible materials containing, reflecting, incorporating, or based on Customer Data or Customer’s Confidential Information; and (ii) permanently erase all Customer Data and Customer’s Confidential Information from all systems Posthire directly or indirectly controls, provided that, for clarity, Posthire’s obligations do not apply to any Monitoring Results;

    iii. Customer shall immediately cease all use of any Services and Documentation and (i) promptly return to Posthire, or at Posthire’s written request destroy, all documents and tangible materials containing, reflecting. incorporating, or based on any Documentation or Posthire’s Confidential Information and (i) permanently erase Posthire’s Confidential Information from all systems Customer directly or indirectly controls and (iii) certify to Posthire in a signed written instrument that it has complied with these requirements;

    iv. Posthire may disable all Customer and Authorized User access to the Documentation;

  3. Surviving Terms. Any other right or obligation of the parties in this Agreement that, by its nature, should survive termination or expiration of this Agreement, will survive any expiration or termination of this Agreement.


18. Miscellaneous.

  1. Assignment. This Agreement will bind and inure to the benefit of each party’s permitted successors and assigns.
    Neither party may assign this Agreement without the advance written consent of the other party, except that either party may assign this Agreement in connection with a merger, reorganization, acquisition or other transfer of all or substantially all of such party’s assets or voting securities.
  2. Amendments/Waivers. No supplement, modification, or amendment of this Agreement will be binding, unless executed in writing by a duly authorized representative of each party to this Agreement. No waiver will be implied from conduct or failure to enforce or exercise rights under this Agreement, nor will any waiver be effective unless in a writing signed by a duly authorized representative on behalf of the party claimed to have waived. No provision of any purchase order or other business form employed by Customer will supersede the terms and conditions of this Agreement, and any such document relating to this Agreement will be for administrative purposes only and will have no legal effect.
  3. Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
  4. Notices. Any notice or communication required or permitted under this Agreement will be in writing to the parties at the addresses set forth on the Order Form or at such other address as may be given in writing by either party to the other in accordance with this Section and will be deemed to have been received by the addressee (i) if given by hand, immediately upon receipt; (i) if given by overnight courier service, the first business day following dispatch or (iii) if given by registered or certified mail, postage prepaid and return receipt requested, the second business day after such notice is deposited in the mail.
  5. Severability. If any provision of this Agreement will be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision will be limited to the minimum extent necessary so that this Agreement will otherwise remain in effect.
  6. Entire Agreement. This Agreement, represents the entire and integrated agreement between the Parties and supersedes all prior negotiations, representations and agreements, whether written or oral.
  7. Governing Law. The construction, interpretation and enforcement of this Agreement shall be governed by the laws of the Commonwealth of Virginia. The courts of the Commonwealth of Virginia shall have jurisdiction over any action arising out of this Agreement and over the Parties.
  8. Force Majeure. Neither party will be liable to the other for any delay or failure to perform any obligation under this Agreement (except for a failure to pay fees) if the delay or failure is due to unforeseen events that occur after the signing of this Agreement and that are beyond the reasonable control of such party, such as a strike, blockade, war, act of terrorism, riot, natural disaster, failure or diminishment of power or telecommunications or data networks or services, or refusal of a license by a government agency.
  9. Counterparts. This Agreement may be executed in counterparts, each of which will be deemed an original and all of which together will be considered one and the same agreement.

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