~IMPORTANT~
NEW TERMS MAY APPLY
PLEASE READ THE TALEO BUSINESS EDITION GENERAL
TERMS AND CONDITIONS (“AGREEMENT”), CAREFULLY BEFORE USING THE TALEO SOFTWARE.
BY EXECUTING A SALES ORDER FORM INCORPORATING THIS AGREEMENT, AND/OR ACCESSING
THE TALEO BUSINESS EDITION OR HOURLY EXPRESS SOFTWARE VIA THE ONLINE SERVICE,
YOU ARE ACCEPTING THE TERMS AND CONDITIONS OF THIS AGREEMENT AND AGREEING TO BE
BOUND BY THE TERMS OF THIS AGREEMENT.
If you are signing up for the service on behalf
of a company, you represent that you are duly authorized to represent the
company and accept the terms and conditions of the Agreement on behalf of the
company. By your acceptance, a binding contract is then formed between Taleo
Corporation (“Taleo”) and the company in accordance with the terms and
conditions of this Agreement. You personally agree not to commit or encourage
any violation of the Agreement between Taleo and the company. If you are
entering into this Agreement on your own behalf, or if you are not authorized
to represent the company on whose behalf you purport to sign up, you agree that
you are personally bound by this Agreement.
IF THE COMPANY YOU REPRESENT OR YOU DO NOT AGREE
TO THE TERMS OF THIS AGREEMENT, DO NOT CLICK ON THE “SUBMIT” BUTTON OR THE “I
HAVE READ AND AGREE” BOX, DO NOT EXECUTE A SALES ORDER FORM INCORPORATING THIS
AGREEMENT, AND DO NOT USE THE SERVICE.
This agreement is entered into by and between the
Taleo entity (either Taleo Corporation or an Affiliate of Taleo Corporation) as
listed in the “Company Name” section of the Order Form signed contemporaneously
with this agreement (“Taleo”) and the customer’s legal name as it appears on
the Order Form (“Customer”). The parties hereby agree to abide by and comply
with the terms and conditions of this Agreement.
1
Definitions.
1.1 The following terms are defined in the sections of the Agreement listed with each term below: Confidential Information (Section 9); Initial Term (Section 2); Order Form (Section 5); Professional Services (Section 8); Renewal Term (Section 2); SOW (Section 8); and Term (Section 2).
1.2 “Affiliate” means any entity Controlled by, Controlling, or under common Control with a party to this Agreement.
1.3 “Agreement,” as used in herein, includes this Taleo Subscription Agreement (including any exhibits, schedules, addendums, or appendices hereto and documents incorporated herein), and any Order Forms, statements of work, or amendments referencing this agreement.
1.4 “Control” means either the direct or indirect control of more than 50% of the shares or other equity interests of the subject entity entitled to vote in the election of directors (or, in the case of an entity that is not a corporation, for the election or appointment of the corresponding managing authority).
1.5 “Customer System Data” means any and all information provided, entered or uploaded to the Software by an employee or approved third party of Customer or an Affiliate.
1.6 “Deliverable” means all custom developed documents, designs, and other materials authored or prepared by Taleo for Customer pursuant to a statement of work. The term “Deliverable” does not include the Software (including all modifications and/or enhancements to the Software), the Documentation, Taleo’s proprietary education and training content, and all pre-existing materials related to Taleo’s Professional Services processes and methodology.
1.7 “Documentation” means the user manuals and/or technical requirements documents that are generally provided by Taleo to customers in connection with the Software.
1.8 “Software” means Taleo’s commercially available software applications ordered by Customer via one or more Order Form(s).
2
Term of Agreement and Renewal. The initial
term of this Agreement shall be the period set forth in the section titled “Term
of Order Form” in the Order Form signed contemporaneously with this Agreement (“Initial
Term”). At the expiration of the Initial
Term or any Renewal Term, this Agreement and any Order Forms then in effect
will automatically renew for subsequent one (1) year periods (each a “Renewal
Term”) unless one party provides the other party with written notice of its
intent to amend terms and/or fees or not to renew the Agreement at least thirty
(30) days prior to the end of the then-current term. The capitalized word
“Term” means the Initial Term and any Renewal Terms.
2.1 30-Day
Trial. If Customer is participating
in Taleo’s free 30-Day Trial (for Taleo Business Edition only), this Agreement
lasts thirty (30) days from date of service authorization. At the conclusion of
the free 30-Day Trial, if Customer chooses not to purchase a Taleo
subscription, Customer will immediately cease all use of the service, including
the Taleo Software and any documentation.
3
Right to Terminate. Either party may terminate the
Agreement in the event that the other party has materially breached the
Agreement and such breach has not been cured (or, if the breach is not capable
of being cured, discontinued with appropriate changes to ensure that it is not
repeated) within thirty (30) days of written notice of breach from the other
party. Either party may terminate this Agreement immediately if the other party
terminates or suspends its business as a result of bankruptcy, insolvency or
similar event.
4
Software Usage Rights.
4.1 General
Rights. Through the expiration or
termination of the Agreement, Taleo grants to Customer a limited,
non-transferable, non-exclusive right to access and use the Software and
Documentation for Customer’s internal use.
The Software shall be made available to Customer as a service. Taleo
will host and retain physical control over the Software and make such computer
programs and code available only through the Internet for access, use and
operation by Customer through a web-browser. Unless otherwise agreed to by
Taleo in writing, no provision under this Agreement shall obligate Taleo to
deliver or otherwise make available any copies of computer programs or code
from the Software to Customer, whether in object code or source code form. Customer agrees that it shall not,
except where applicable law prohibits such restrictions, make derivative works
of, disassemble, reverse compile or reverse engineer any part of the Software
or Documentation, or access the Software or Documentation in order to build a
similar or competitive product or service (or contract with a third party to do
so). Customer may not remove or alter
any of the logos, trademark, patent or copyright notices, confidentiality or
proprietary legends or other notices or markings within the Software or
Documentation.
4.2 Use By Affiliates and Other Third Parties. Subject to the usage
limitations described below, Customer’s Affiliates may access and use the
Software and Documentation to the same extent as Customer. Unless agreed to by Taleo in writing,
Customer may not make the Software or Documentation available to any other third
parties. The obligations and limitations
as to Customer that are set forth in this Agreement are also applicable to
Affiliates and any approved third parties. Customer is responsible for
ensuring that its employees, any approved third parties, and its Affiliates
(and their employees and
approved third parties) are aware of and comply with the terms of this
Agreement. Any breach of this Agreement by such entities or individuals
shall be deemed to be a breach by Customer, and Customer is liable for such
breaches. External job candidates (if applicable) and external users of the
learning management system (if applicable) are approved third party users of
the portions of Software intended for use by non-employees (i.e., those
portions of the Software which may be accessed without Customer or Affiliate employee
login credentials from the public internet).
4.3 Usage Limitations. If applicable, the Order Form will set forth a maximum
employee count and the Software may not
be used by or for the benefit of Customer and Affiliate employee populations
(e.g., the employee populations of business units, geographies or legal
entities to which the Software has been made available) in excess of the maximum
employee count. For purposes of this
clause, an employee is any distinct individual included in the payroll system
of Customer or an Affiliate. If applicable, the Order Form will set forth a user
limit or other allowed usage metric and use of the Software will be limited to
the number and type of users listed in such Order Form or such other allowed
usage metric listed in the Order Form. When a user limit is imposed, a user means
an individual human being. User rights may be transferred in the event of
termination or job change but may not be shared or used concurrently by more
than one person at a time. Login credentials may not be shared or concurrently
used by more than one person. Customer agrees to submit to reasonable audit of its compliance with any usage limits upon reasonable notice by Taleo not more than once per calendar year.
5
Order Forms. The Software and certain services and content
ordered by Customer shall be listed in a duly executed ordering document
(“Order Form”). Each Order Form will
specify the specific Software modules, services and content ordered, and the
fees and payment terms for use of the Software. Each Order Form during the Term
is governed by the terms of this Agreement and in the event of a conflict or
discrepancy between the terms of an Order Form and the terms of the Agreement,
the Agreement shall govern except as to which specific Software modules,
services or content were ordered, and the fees, currency and payment terms for
such orders, for which the Order Form shall govern. If explicitly stated, an Order Form may
modify or amend this Agreement.
6 Hosting
Services and Customer Support. Taleo shall host and maintain the Software
and all Customer System Data, and provide customer support, data back-up, and
disaster recovery services in accordance with Taleo’s then-current policies and
practices, which may be acquired from Customer’s Taleo contact (“Support
Services”). Taleo reserves the right to make changes to the policies,
procedures and practices regarding Support Services and to make changes to its
hosting and technical infrastructure, provided such changes do not materially
degrade the overall level of the Support Services provided to Taleo customers.
7 Security / Load Testing and Use of Robots.
Customers may not, without the prior written consent of Taleo’s security
officer, (i) conduct security, integrity, penetration, vulnerability or similar
testing on the Software, (ii) use any software tool designed to
automatically emulate the actions of a human user (such tools are commonly
referred to as robots) in conjunction with the Software, or (iii) attempt to
access the data of another Taleo customer (whether or not for test purposes).
8
Professional Services. Taleo offers certain
professional services, including services related to implementation and
optimization of the Software, change management and business practice
optimization, and education and training (“Professional Services”). Such Professional
Services are typically purchased via a mutually executed statement of work (”SOW”).
Customer shall have a non-exclusive, non-transferable, internal use, object
code license during the Term to use the Deliverables resulting from Taleo’s Professional
Services. Each SOW during the Term is
governed by the terms of this Agreement and in the
event of any conflict or discrepancy between an SOW and the terms of the
Agreement, the Agreement shall govern except as to the scope of work, fees,
currency, expenses and payment terms for the professional services, for which
the SOW will govern.
10 Ownership. Customer shall retain all right, title and
interest to all Customer System Data.
Taleo shall retain all right, title and interest in and to (i) the
Software, the Documentation, and all modifications and/or enhancements to the
Software, regardless of the source of inspiration for any such enhancement or
modification and regardless of whether Customer has provided input regarding
such modifications and/or enhancements, (ii) proprietary education or training
content, (iii) pre-existing materials related to Taleo’s Professional Services
processes and methodology, and (iv) all Deliverables, provided that no Customer
Confidential Information is shared or revealed by or included within the
portion of any Deliverable later used by Taleo.
Notwithstanding any other term of this Agreement, Taleo may access and
use, and shall retain all right, title and interest in transactional and
performance data related to use of the Software, which may include aggregated
and anonymized data based upon Customer System Data, so long as such data does
not reveal the identity or traits of any particular individual person or of
Customer. Taleo reserves to itself all
rights that are not expressly granted pursuant to this Agreement.
11 Taxes. All fees and other charges payable by Customer to
Taleo under this Agreement are stated exclusive of all federal, state, local
and foreign taxes, levies and assessments.
Customer agrees to bear and be responsible for the payment of all such
taxes, levies and assessments imposed on Customer or Taleo arising out of this
Agreement, excluding any tax based on Taleo’s net income. If Customer is required by any applicable law
to deduct or withhold amounts otherwise payable to Taleo hereunder, Customer
will pay the required amount to the relevant governmental authority and provide
Taleo with an official receipt or certified copy or other documentation
acceptable to Taleo evidencing the payment and pay to Taleo, and in addition to
the payment to which Taleo is otherwise entitled under this Agreement, such
additional amount as is necessary to ensure that the net amount actually
received by Taleo free and clear of all taxes equals the full amount Taleo
would have received had no such deduction or withholding been required.
12 Late
Payment. Taleo may assess a late fee
at the rate of 1.5% per month or the maximum rate permitted by applicable law,
whichever is less, for any amount due hereunder that is not paid when due and
that is not the subject of a reasonably based dispute (“Undisputed Late
Payment”). In the event an Undisputed
Late Payment is not made within thirty (30) days of the date payment was due,
Taleo shall have the further right, at its sole option, to suspend Customer's
access to the Software until payment is made.
13 Taleo
Warranties. Taleo represents, warrants, and covenants as
follows: (i) Taleo possesses all rights necessary to grant to Customer the
rights set forth in this Agreement; (ii) the Software will perform
substantially in accordance with the Documentation; and (iii) Professional
Services shall be provided in a professional manner consistent with industry
standards. Customer must notify Taleo in
writing of any claim by Customer that the Software does not perform substantially
in accordance with the Documentation no later than ten (10) business days after
the last day of the month in which the non-performance occurred. Customer must notify Taleo in writing of any
claim by Customer that the Professional Services were not provided in a
professional manner consistent with industry standards within ninety (90) days of
completion of the Professional Services engagement (normally a statement of
work) under which the Professional Services were delivered.
TALEO DOES NOT GUARANTEE OR WARRANT THAT THE SOFTWARE
WILL PERFORM ERROR-FREE OR UNINTERRUPTED OR THAT TALEO WILL CORRECT ALL SOFTWARE
ERRORS.
FOR ANY BREACH OF THE ABOVE
WARRANTIES, CUSTOMER’S EXCLUSIVE REMEDY AND TALEO’S ENTIRE LIABILITY SHALL BE: (A)
FOR TALEO TO CORRECT THE SOFTWARE ERRORS THAT CAUSED BREACH OF THE WARRANTY;
OR, IF TALEO CANNOT CORRECT SUCH BREACH IN A COMMERCIALLY REASONABLE TIMEFRAME,
CUSTOMER MAY TERMINATE ITS ORDER FOR THE SPECIFIC SOFTWARE MODULE THAT IS IN
BREACH AND RECEIVE A REFUND OF THE prorated amount of the fees prepaid by Customer for
such software module that were to apply to the remainder of the unexpired Term,
as calculated from the termination date through the remainder of the unexpired
Term; OR (B) FOR TALEO TO REPERFORM THE DEFICIENT PROFESSIONAL SERVICES.
14 DISCLAIMER
OF WARRANTY. TO THE EXTENT NOT PROHIBITED BY APPLICABLE
LAW, TALEO DISclAIMS
AND EXCLUDES ALL WARRANTIES, CONDITIONS AND OTHER TERMS IMPLIED BY STATUTE,
COLLATERALLY OR OTHERWISE, INCLUDING WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS
FOR A PARTICULAR PURPOSE.
15 Indemnification.
15.1General
Indemnity. Taleo agrees to defend,
indemnify, and hold harmless Customer, and its directors, officers and
employees from and against any demands, damages, or liabilities (including
reasonable attorneys’ fees) arising from a third party claim that Taleo caused
bodily injury (including death) or damaged real or tangible personal property.
15.2Infringement
Indemnity. Taleo shall, at its expense, defend or at its
option, settle any claim, action or allegation brought against Customer
alleging that the Software or any Deliverable infringes any valid copyright,
patent, trade secret, or any other proprietary right of any third party and
shall pay any final judgments awarded or settlements entered into; provided
that Customer gives prompt written notice to Taleo of any such claim, action or
allegation of infringement and gives Taleo the authority to proceed as
contemplated herein. In the event any infringement claim, action or allegation
is brought or threatened, Taleo may, at its sole option and expense: (a)
procure for Customer the right to continue use of the Software or infringing
part thereof; (b) modify, amend or replace the Software or infringing part
thereof with other software having substantially the same or better
capabilities; or, if neither of the foregoing is in Taleo’s opinion
commercially practicable, (c) terminate this Agreement and refund to Customer
the prorated amount of the fees prepaid by Customer that were to apply to the
remainder of the unexpired Term, as calculated from the termination date
through the remainder of the unexpired Term.
The foregoing obligations will not apply to the extent the infringement
arises as a result of (i) any use of the Software in a manner expressly
prohibited by this Agreement; or (ii) any use by Customer of the Software in
combination with other products, equipment, devices, software, systems or data
not supplied by Taleo to the extent such claim is directed against such
combination, unless such combination is with hardware, software or other
technology required to access and use the Software (e.g., a web browser, an
internet connection, a personal computer). This Section states the entire
liability of Taleo with respect to infringement of any patent, copyright, trade
secret or other intellectual property right.
15.3Indemnity
Process. Taleo will have the
exclusive right to defend any indemnified claim (including the right to select
and control the work of counsel) and make settlements thereof at its own
discretion. Customer may not settle or compromise any indemnified claim, action
or allegation, except with prior written consent of Taleo. Taleo may not, without Customer’s prior
written approval, enter into any settlement of an indemnified claim that
imposes a direct financial liability on Customer or includes an admission of
fault by Customer. Customer shall give
such assistance and information as Taleo may reasonably require to settle or
defend indemnified claims.
16 Limitation
of Liability.
In
no event will either party be liable for any indirect, Incidental, consequential,
special, punitive, or exemplary damages OR any loss of revenue, PROFITS, data
or data use arising out of this Agreement. taleo’s maximum liability in
connection with this agreement, on the basis of any theory of liability or
cause of action, shall be limited to the fees collected by Taleo from Customer
pursuant to this Agreement in the twelve months preceding the imposition of
liability (or, if greater in amount and if liability arises in the first twelve
months of the Term, the fees payable to Taleo by Customer pursuant to the
initial Order Form during the first twelve months of the initial Term). THE
EXCLUSIONS AND LIMITATIONS OF THIS SECTION DO NOT APPLY (a) TO the extent
prohibited by applicable law, (b) to Customer’s contractual payment
obligations, (C) to the indemnity obligations set forth in section 15.2.
17 Governing
Law.
THIS AGREEMENT
WILL BE GOVERNED BY THE SUBSTANTIVE
AND PROCEDURAL LAWS OF CALIFORNIA AND CUSTOMER AND TALEO AGREE TO SUBMIT TO THE
EXCLUSIVE JURISDICTION OF, AND VENUE IN, THE COURTS IN SAN FRANCISCO OR SANTA CLARA
COUNTY IN CALIFORNIA IN ANY DISPUTE ARISING OUT OF OR RELATING TO THE
AGREEMENT. IN NO EVENT SHALL THIS
AGREEMENT BE GOVERNED BY THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL
SALE OF GOODS.
18 Compliance
with Laws and Control Disclaimer. Each party shall comply with all laws, rules
or regulations applicable to such party’s activities in relation to this
Agreement, including export control laws of the United States which are
applicable to the Software, and which may prohibit use of the Software in
certain sanctioned or embargoed countries. Taleo shall not provide Customer
with any legal advice regarding compliance with employment, data privacy or
other relevant laws, rules or regulations in the jurisdictions in which Customer
uses the Software (“Laws”). Customer
acknowledges that the Software may be used in ways that do and do not comply
with Laws, and it is Customer’s sole responsibility to monitor its compliance
with all relevant Laws. Customer
acknowledges and agrees that not all features, functions and capabilities of
the Software may be used in all jurisdictions, and Customer recognizes that
certain features, functions and capabilities may need to be configured
differently or not used in certain jurisdictions in order to comply with
applicable local law, and in certain jurisdictions consents may need to be
obtained from individuals submitting data via the Software as to the intended
purpose, storage, distribution, access and use of the data submitted (“Local
Use Decisions”). Customer is responsible
for Local Use Decisions, and Taleo disclaims all liability for Local Use
Decisions. Customer acknowledges and agrees that Taleo
exercises no control over any Customer specific talent management practices or its
staffing practices implemented using the Software or Customer’s decision as to
employment, promotion, advancement, training, certification, termination or compensation
of any job candidate and/or employee (“Customer Use Decisions”). Customer is responsible for Customer Use
Decisions and Taleo disclaims all liability for Customer Use Decisions.
19 Independent
Contractors. Taleo and Customer are independent
contractors. Neither party has the
authority to bind or make any commitment on behalf of the other party. None of either party’s employees are entitled
to any employment rights or benefits of the other party. This Agreement is made for the
benefit of the parties to it and is not intended to benefit or be enforceable
by anyone else. Taleo will be
solely responsible for: (i) paying all wages and other compensation to Taleo
employees; (ii) withholding and payment of federal and state individual income
tax, FICA, FUTA and other taxes and applicable amounts with respect to payments
made to Taleo's employees; (iii) providing all insurance and other employment
related benefits to Taleo's employees; and (iv) making any overtime payments to
Taleo's employees if required by law or regulations.
20 Waiver,
Entire Agreement and Amendments, Representations, Severability and Purchase
Orders. The failure of either party to enforce at any
time any of the provisions of this Agreement, or the failure to require at any
time performance by the other party of any of the provisions of this Agreement,
will not be construed to be a waiver of such provisions, or in any way affect
the right of either party to enforce such provision thereafter. This Agreement includes any schedules and
exhibits attached hereto, and any mutually executed amendments and addenda
hereto, Order Forms or SOWs between Customer and Taleo. Such documents shall encompass the entire agreement
between Customer and Taleo with respect to the subject matter hereof and
supersede all prior representations, agreements and understandings, written or
oral. This Agreement may not be altered,
amended or modified except by written instrument signed by the duly authorized
representatives of both parties.
Customer acknowledges and agrees that in entering into this Agreement it
does not rely on any statement, representation (whether innocent or negligent)
assurance or warranty, whether or not in writing of any person (whether or not
party to this Agreement) other than as expressly set out in the Agreement. Customer specifically agrees that it has not
relied on the future availability of any software, products, services, programs,
modifications, enhancements or updates in entering into the payment obligations
in this Agreement (including the payment obligations in any Order Forms and
SOW); however, the preceding does not relieve Taleo of its obligation to
deliver Software and services that Customer has ordered per the terms of the Agreement. If any provision, or portion thereof, of this
Agreement is or becomes invalid under any applicable statute or rule of law, it
is to be deemed stricken and the rest of the Agreement shall remain in full
force and effect. The terms and
conditions appearing on any purchase order issued by Customer for this
Agreement, if any, shall not change, add to, or modify the terms or conditions
of this Agreement and shall have no effect.
21 Assignment. Neither party
may transfer or assign this Agreement, including by merger or operation of law,
without the other party’s prior written consent, except (i) to a successor in interest following a merger or other change
of control, or (ii) to an Affiliate upon receipt of thirty (30) days notice
from the assigning party. In the event an Affiliate to which the
Agreement is assigned fails to meet its obligations under the Agreement, the
assigning party shall remain liable for such obligations.
22 Survival. The provisions of this Agreement that are
intended to survive termination or expiration of this Agreement in order to
achieve the fundamental purposes of this Agreement shall so survive, including,
without limitation, the provisions regarding confidentiality, disclaimer of warranties,
and limitation of liability.
23 Force Majeure. Taleo shall not be held responsible for any
delay or failure in performance hereunder caused in whole or in part by fire,
flood, wind, storm, lightening, or similar act of God, or by embargo, acts of
sabotage, terrorism, riot or civil unrest, internet outages, or mandatory
compliance with any governmental act, regulation or request (“Force Majeure
Events”). If a Force Majeure Event occurs
and disrupts the services to be provided under this Agreement, the Agreement
shall be deemed extended by the length of the Force Majeure Event.
24 Notices. All notices or other communications required
or permitted to be given pursuant to this Agreement shall be in writing and
shall be considered properly given or made if hand delivered, mailed first
class mail (postage prepaid and return receipt requested) or sent by recognized
courier service (e.g., Federal Express, DHL, UPS) (i) if to Customer: to the
attention of “Legal” at the addresses listed in the last signed Order Form (or
to such other address as Customer may have designated by like notice forwarded
to Taleo hereto), and (ii) if to Taleo: to the attention of “Legal” at 4140
Dublin Blvd., Suite 400, Dublin, CA 94568.