HireTrak Membership Agreement


This Membership Agreement and the exhibits, schedules and attachments hereto including, without limitation, the Terms and Conditions, are referred to individually and together as the "Agreement." Client and Data Research Network, Inc. dba: HireTrak ("HT") are referred to individually as “Party” and together as the "Parties." The Parties hereby agree to the terms and conditions in the Agreement.

PLEASE READ THIS AGREEMENT CAREFULLY. BY ACCESSING, BROWSING, OR USING THE WEBSITE DURING ANY “FREE TRIAL OFFER OR TEST DRIVE”, OR MAKING A PURCHASE FROM US, YOU ACKNOWLEDGE AND AGREE TO COMPLY WITH, WITHOUT LIMITATION, THE FCRA AND OTHER APPLICABLE INTERNATIONAL, FEDERAL, STATE AND LOCAL LAWS, OUR PRIVACY POLICY, AND THESE TERMS. ANY USE OR ACCESS TO THE WEBSITE BY ANYONE NOT EMPLOYED BY AND REPRESENTING A LEGAL BUSINESS ENTITY IS STRICTLY PROHIBITED. THE FCRA PROVIDES THAT ANY PERSON WHO KNOWINGLY AND WILLFULLY OBTAINS INFORMATION ON A CONSUMER FROM A CONSUMER REPORTING AGENCY UNDER FALSE PRETENSES SHALL BE FINED UNDER TITLE 18, OR IMPRISONED NOT MORE THAN TWO YEARS, OR BOTH.

Terms and Conditions

1. The Parties. Client and HireTrak (“HT”) are referred to individually as “Party” and together as the "Parties."

2. The Agreement. The Membership Agreement, the Pricing Proposal and all exhibits, schedules and attachments to the Membership Agreement including, without limitation, these Terms and Conditions, are referred to individually and together as the "Agreement."

3. Right to Access to the Software. Subject to the terms of the Agreement, HT grants to Client a limited, non-transferable, non-exclusive right to access and use HT's proprietary applicant tracking system software ("Software") via a web browser. The Software is made available to Client as a hosted service. HT 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 Client through a Web-browser. No provision under the Agreement shall obligate HT to deliver or otherwise make available any copies of computer programs or code from the Software, whether in object code or source code or any other form.

4. Fees and Billing. Upon execution of the Agreement, the pricing and fees specified in the Agreement will be invoiced in full for the one (1) year term. The invoice is due and payable in full upon Client’s receipt. Subsequent invoices are due and payable at the commencement of the subsequent one (1) year period(s).

5. Free Trial or Free Test Drive Offer(s). The 15-day free trial is exclusively for the HireTrak ATS. Not included in the HireTrak ATS pricing are all other services (HireSafe background checks; drug testing, etc.) which are optional with additionally incurred fees. The HireTrak ATS and VIDEO modules only contain their individually listed components.
 
6. Term, Automatic Renewal and Notice of Termination. The Agreement shall be for a one (1) year term, and shall renew automatically upon the same terms and conditions set forth in the Agreement, including the fees and pricing set forth in the Agreement, for subsequent one (1) year periods unless Client or HT provides written notice of termination at least thirty (30) days prior to the expiration of the then-current term.

7. Billing Information. Client agrees to provide to HT on the Membership Agreement accurate and complete billing and contact information, Client’s legal name and company name, street address, e-mail address, and telephone number, and to update this information in writing within ten (10) days of any changes.

8. Fees and Taxes. During the term of the Agreement, Client agrees to pay HT based on the fees and pricing in the Membership Agreement. Unless otherwise specifically provided in the Membership Agreement, fees are non-refundable. All payments, fees and other charges payable by Client to HT under the Agreement are exclusive of all applicable taxes including, without limitation, federal, state and local. Client agrees to bear and be responsible for the payment of all such taxes.

9. Delinquent Payment. In the event that Client’s account is delinquent, HT reserves the right to suspend Client’s access to the Software, with no liability to Client for this suspension, until such amounts are paid in full. For credit card payments, an account will be considered delinquent if Client’s credit card company refuses for any reason to pay the amount billed to it and that amount remains unpaid thirty (30) days following the billing cycle. Client agrees that HT may impose a $175.00 fee to restore archived data from delinquent accounts. Unpaid charges (except those charges under reasonable and good faith dispute) are subject to interest of 1.75% per month on any outstanding balance, or the maximum permitted by law, whichever is less, plus all expenses of collection, including without limitation reasonable attorneys’ fees, and a $35.00 late fee per monthly billing cycle.

10. Restrictions. Except as may be expressly provided elsewhere in the Agreement or except to the extent applicable law precludes such activities from being prohibited by contract, Client shall not, directly or indirectly, reverse engineer, decompile, disassemble or otherwise attempt to discover the source code or underlying ideas or algorithms of the Software; modify, translate, or create derivative works based on the Software, or authorize any third party to do so; rent, lease, distribute, sell, resell, assign, or otherwise transfer rights to the Software; use the Software for timesharing or service bureau purposes or otherwise for the benefit of a third party; obfuscate, remove or alter any of the logos, trademarks, internet links, patent or copyright notices, confidentiality or proprietary legends or other notices or markings that are on or in the Software or the related documentation; or send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs. Because the Software is proprietary, Client agrees not to publish or disclose to third parties any evaluation of the Software without HT's prior written consent.

11. Ownership. Client retains all right, title and interest to any and all information provided, inputted or uploaded to the Software by Client, a Client candidate and/or employee, or by HT on Client’s behalf. HT has no right, title or interest in any personally identifiable information related to Client’s candidates or employees. HT shall retain all right, title and interest in and to the Software, the documentation for the Software, 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 Client has provided input regarding such modifications and/or enhancements. Client acknowledges that HT will retain all right, title and interest to transactional and performance data related to use of the Software which HT may collect, use and disclose for its business purposes (including software use optimization and product marketing) provided that such use does not reveal Client’s identity, any of Client’s Confidential Information or any personally identifiable candidate or employee information that belongs to Client. Custom developed documents, designs, computer programs, computer documentation and other tangible materials authored or prepared for Client by HT ("Deliverables") as required by a statement of work are hereby licensed, solely for Client’s internal use, for the term of the Agreement. HT retains ownership and may reuse any Deliverables, provided that such use does not reveal Client’s identity or Client’s Confidential Information.

12. Equipment. Client is responsible for obtaining and maintaining all computer hardware, software and communications equipment needed to access the Software, and for paying all third-party access charges, if applicable, incurred while using the Software. HT reserves the right to make changes to its policies, procedures and practices and to make changes to its hosting and technical infrastructure during the term of the Agreement as deemed reasonably necessary by HT to provide service to HT’s Clients. Such changes will not materially degrade the performance of the Software or materially decrease the functionality of the Software.

13. Prohibited Uses. Client may not use the Software for spamming, chain letters, junk mail or distribution lists to contact any person who has not given specific permission to be included in such list. Client agrees not to transmit, or permit Client’s employees to transmit, through the Software, any unlawful, harassing, libelous, abusive, threatening, vulgar, obscene or otherwise objectionable material of any kind. Client agrees to only use the Software for lawful purposes, in compliance with all applicable laws including, without limitation, copyright, trademark, obscenity and defamation laws. Unlawful activities may include (without limitation) storing, distributing or transmitting any unlawful material, or attempting to compromise the security of any networked account or site. Client agrees to defend, indemnify and hold HT harmless against any claim or action that arises from Client’s use of the Software in an unlawful manner or in any manner inconsistent with the restrictions and policies stated herein.

14. Third Party Contractors. Client may make the Software available for use by third-party contractors used by Client solely to assist in Client’s applicant tracking efforts (“Third-Party Contractor”), within the limits of the usage rights and restrictions set forth in the Agreement. Client is responsible for the use of the Software by such Third-Party Contractors, including compliance with each term of the Agreement to the same extent as if the Third-Party Contractor were Client’s employee. Client agrees that any password provided to a Third-Party Contractor will be disabled immediately upon conclusion of such Third Party Contractor’s work for Client.

15. Technical Tests, Scans, Reviews, Etc. Client shall not and shall not allow anyone working on Client’s behalf to (i) perform any technical security integrity review, penetration test, load test, denial-of-service simulation or vulnerability scan without HT’s prior written consent, or (ii) attempt to access the data of another HT Client. Client shall not and shall not allow anyone working on Client’s behalf to 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 HT Software. If Client or anyone working on Client’s behalf uses a Robot or a similar program or tool for the purposes listed above or any other purpose, it shall constitute a material breach of the Agreement. Client shall indemnify and hold HT harmless without limitation from any damages, losses, claims, costs, expenses or liabilities arising from downtime, production incidents or other technical problems arising during a time period in which Client is in breach of this provision or as a result of Client’s breach of this provision, including without limitation, damages or credits to HT clients arising from downtime and costs, including third party costs, related to the correction of such downtimes, production incidents or other technical problems.

16. Invoice Dispute and Audit of Use of Software. To dispute an invoice, Client must contact HT in writing no later than thirty (30) days after the billing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. Client agrees to retain complete, clear and accurate records regarding Client’s use of the Software and agree to submit to a reasonable audit of this information upon reasonable notice by HT not more than once per calendar year. Client has waived the right to charge back for any reason

17. Publicity. Client agrees that HT can disclose the fact that Client is a client of HT. During the term of the Agreement, and unless otherwise set forth in the Membership Agreement, Client grants HT the right to reference Client, along with Client’s logo, on the Client section of HT’s public web site and/or HT’s marketing and promotional material, until such time as Client’s use of the Software is discontinued.

18. Data Backup. HT shall use all reasonable efforts to protect Client’s data behind a secure firewall system, to conduct regular data backups, and to store full-system backups in a separate, fire-safe facility.

19. Passwords. Client will choose or be given all applicable passwords to use in connection with the Software. Client is responsible for maintaining the confidentiality of Client’s passwords and account (including, if applicable, the passwords and accounts of each user accessing the Software by means of an account established by Client). Furthermore, Client is responsible for any and all activities that occur under Client’s account (including, if applicable, the accounts of each user accessing the Software by means of an account established by Client). Each password may be used by one individual named person only. Passwords may not be used concurrently or shared by more than one individual named person.

20. Security. Client shall notify HT immediately of any unauthorized use of its account (including, if applicable, the passwords and accounts of each user accessing the Software by means of an account established by Client) or any other breach of security. HT will not be liable for any loss or damage arising from Client’s failure to comply with these requirements.

21. Confidential Information. By reason of the relationship hereunder, each party will have access to certain information and materials concerning the other party’s technology, business, plans, and Clients that are confidential and of substantial value to such party, which value would be impaired if such information were disclosed to third parties or used for competitive purposes by the other party (“Confidential Information”). Confidential Information of HT shall include, without limitation, information specifically designated as confidential, the features and functions of the Software that are not available to the general public via the public internet (including screen shots of the same), future product plans, any documentation or specifications provided to Client, the commercial terms (including pricing) of the Agreement, statements of work, schedules, addenda or amendments to the Agreement, performance and security test results (whether conducted by HT or Client), and any other proprietary, financial or business information supplied to Client by HT. Each party agrees that it will not and will ensure that its employees, agents and contractors will not make use of (except in furtherance of the Agreement), disseminate, or in any way disclose any Confidential Information of the other party to any person, firm or business, except for any purpose the disclosing party may hereafter authorize in writing. Each party agrees that it will treat all Confidential Information with the same degree of care as it accords to its own Confidential Information, and each party represents that it exercises reasonable care to protect its own Confidential Information. Notwithstanding the foregoing, “Confidential Information” shall not include: (i) information previously known to the receiving party without reference to Confidential Information, (ii) information which is or becomes publicly known through no act or omission of the receiving party, (iii) information which has been independently developed by the receiving party without reference to the disclosing party’s Confidential Information, (iv) information received from a third party under no confidentiality obligation with respect to the Confidential Information, (v) information required to be disclosed pursuant to administrative or court order, government or regulatory requirement or arbitration or litigation arising out of the Agreement.

22. Termination. Client or HT may terminate the Agreement for cause: (i) upon thirty (30) days written notice of a material breach to the other party if such breach remains uncured at the expiration of the thirty (30) day period; or (ii) immediately if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. Additionally, any account which is suspended for more than thirty (30) days due to delinquent payments may be terminated, without notice to Client and without any obligation on the part of HT to maintain, store or return any of Client’s data or data residing in Client’s instance of the HT Software. If Client terminates the Agreement for cause pursuant to this section, HT shall refund to Client the prorated amount of the fees prepaid by Client that were to apply to the remainder of the unexpired term, as calculated from the termination date through the remainder of the unexpired term. Upon termination of the Agreement for any reason, (i) the license will terminate, and Client, and any user accessing the Software by means of a company account, if applicable, will cease to use or have access to the HT Software; and (ii) except where such termination is due to delinquent payment, Client may request a copy of the most recent back-up of Client’s data. Fees may apply to retrieve data from back-ups. HT may, but is not obligated to, delete archived data, but will not do so until thirty (30) days after the termination of the Agreement. Delinquent accounts must be brought to good standing in order to receive data.

23. Survival. Each provision of the Agreement reasonably intended by its terms to survive termination or expiration of the Agreement shall so survive.

24. Warranty. HT represents, warrants, and covenants that the Software will perform substantially in accordance with any user instructions, manuals, or technical requirements documents that are generally provided by HT in connection with the Software. In the event of a breach of the foregoing warranty, HT’s sole obligations, and Client’s sole remedy, shall be, at HT’s option, to use commercially reasonable efforts to correct the Software or replace the Software free-of-charge.

25. Disclaimer. EXCEPT AS SPECIFICALLY PROVIDED HEREIN, THE SOFTWARE IS PROVIDED TO CLIENT "AS IS" AND WITHOUT WARRANTY OF ANY KIND, AND HT DISCLAIMS ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. SOME STATES AND/OR JURISDICTIONS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES, SO THE ABOVE LIMITATION MAY NOT APPLY TO CLIENT. HT DOES NOT REPRESENT OR WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE. ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS DONE AT CLIENT’S RISK AND CLIENT WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO CLIENT’S COMPUTER SYSTEM OR NETWORK, OR LOSS OF DATA THAT RESULTS FROM CLIENT’S USE OF THE SOFTWARE.

26. Limitation of Liability. EACH PARTY’S TOTAL LIABILITY WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT (INCLUDING, BUT NOT LIMITED TO, LIABILITY ARISING OUT OF CONTRACT, TORT, STRICT LIABILITY, BREACH OF WARRANTY OR OTHERWISE), WILL BE LIMITED TO THE FEES PAID BY CLIENT TO HT FOR THE SOFTWARE IN THE 12 MONTHS PRIOR TO THE ACT OF INJURY THAT GAVE RISE TO THE LIABILITY. NEITHER PARTY SHALL BE LIABLE IN ANY EVENT FOR LOSS OR INACCURACY OF DATA, LOSS OF PROFITS OR REVENUE, OR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, THE COST OF ANY SUBSTITUTE FOR THE SOFTWARE), WHETHER OR NOT FORESEEABLE AND EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. CERTAIN STATES AND/OR JURISDICTIONS DO NOT ALLOW THE LIMITATION OF LIABILITY FOR INCIDENTAL, CONSEQUENTIAL OR CERTAIN OTHER TYPES OF DAMAGES, SO THE CERTAIN EXCLUSIONS SET FORTH ABOVE MAY NOT APPLY TO CLIENT.

27. Additional Terms. The Agreement is between HT and Client, and is not for the benefit of any third party, whether directly or indirectly (including, if applicable, any user accessing the Software by means of an account established by Client). The failure of either party to exercise any right provided for herein will not be deemed a waiver of any other rights hereunder. If any provision of the Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect. Client may not assign, transfer, or sublicense the Agreement except with HT's prior written consent. This Agreement is deemed to be made, executed and performed in the State of California. This Agreement shall be governed by and shall be construed in accordance with the laws of the State of California, without reference to principle of conflicting laws. HT and Client each will in good faith use reasonable efforts to mitigate any potential damages or other adverse consequences arising from the reporting results of any given report. If the parties are unable to resolve a dispute after holding good faith and confidential discussions, then the dispute shall be submitted to binding arbitration conducted in Sacramento County, California, under the American Arbitration Association or JAMS. Notwithstanding the foregoing, each party shall be entitled to seek immediate injunctive relief to protect its Confidential Information. The parties to this Agreement consent to jurisdiction and venue in the Eastern U.S. Federal District courts located in the State of California, and the County of Sacramento and waives any right it may have to challenge the appropriateness of such forum. Client and HT agree that any cause of action arising out of or related to the Software or the Agreement must commence within one (1) year after the cause of action arose; otherwise, such cause of action is permanently barred. Both parties agree that the Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous or contemporaneous written and/or oral agreements, communications and other understandings relating to the Software and/or the Agreement, and that all modifications to the Agreement must be in writing signed by both parties. No agency, partnership, joint venture, or employment is created as a result of the Agreement and neither party has any authority of any kind to bind the other party in any respect whatsoever. In any action or proceeding to enforce rights under the Agreement, the prevailing party will be entitled to recover costs and reasonable attorneys' fees. All notices under the Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is confirmed by the receiver, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. The Agreement may be executed in one or more counterparts and may be exchanged by facsimile or electronically scanned copy or photocopied, each of which shall for all purposes be deemed to be an original and all of which shall constitute the same instrument.

28. HT Support. Client may contact HT support at 888-792-4473 (HIRE). HT support is available 8:30 AM to 5:30 PM, Pacific Time; Monday through Friday, excluding holidays.

29. Client Responsibilities. Client shall provide HT a list of its administrative users, standard users and contacts, along with user permissions. If any error or problem arises, Client shall cooperate and work with HT and provide all reasonably requested information to enable HT to reproduce, troubleshoot and resolve the error. Client shall designate at least one primary IT contact and one backup IT contact, which shall be the primary IT contact and one backup IT contact, which shall be the primary IT contacts for HT.

30. Indemnity. Client agrees to defend, indemnify and hold harmless HT, its owners, parents, subsidiaries, and/or affliates, and its and their respective officers, directors, employees, agents, successors and assigns, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney's fees) based upon any material breach of this Agreement by HT. This defense and indemnification obligation will survive these Terms and your use of the HT site.

31. Addendum. This Agreement is eligible to become an Addendum to the Data Research Network End-user Subscriber Agreement for Investigative Consumer Reports.

32. Changes to These Terms. From time to time, HT may revise these Terms. To help you stay current of any changes, HT notes the date these Terms were last updated below. Your use of the Site following the posting of any revised Terms shall be deemed acceptance of the revised Terms. HT strongly recommends checking these Terms and Conditions periodically. If, and only if, HT makes revisions to these Terms that result in a material lessening of the restrictions on HT’s use or disclosure of your Personal Information (as defined in our Privacy Policy), HT will make a commercially reasonable attempt to obtain your consent before implementing such revisions with respect to such Personal Information. If you disagree with the provisions of these Terms and Conditions at any time, your sole remedy is to terminate your use of the Website and inform us of such termination as described in these Terms and Conditions. Continued use of the Website constitutes your agreement to these Terms as in effect.

33. Electronic Signature. Your affirmative act of using the Site constitutes your electronic signature to these Terms and Conditions and your consent to enter into agreements with HT electronically. You also agree that HT may send any privacy or other notices, in electronic form to the e-mail address that you provided during registration, or by posting on the Website. The delivery of any Notice is effective when sent by HT, regardless of whether you read the Notice when you receive it or whether you actually receive the delivery. All contracts completed electronically will be deemed for all legal purposes to be in writing and legally enforceable as a signed writing. Any notice that is required or permitted hereunder shall be deemed given to HT only if delivered personally or by registered or certified mail, return receipt requested and postage prepaid, or by a nationally recognized overnight delivery service, addressed as follows: Data Research Network, Inc., 2228 Longport Ct. Suite 130, Elk Grove, CA 95758; Attention: Legal Department. This Agreement may not be assigned in whole or in part by Client without the express written consent of HT, which shall not be unreasonably witheld. Notwithstanding the foregoing, this Agreement shall inure to the benefit of successors or assigns. This Agreement is deemed to be made, executed and performed in the State of California. This Agreement shall be governed by and shall be construed in accordance with the laws of the State of California, without reference to principle of conflicting laws. HT and Client each will in good faith use reasonable efforts to mitigate any potential damages or other adverse consequences arising from the reporting results of any given report. If the parties are unable to resolve a dispute after holding good faith and confidential discussions, then the dispute shall be submitted to binding arbitration conducted in Sacramento County, California, under the American Arbitration Association or JAMS. Notwithstanding the foregoing, each party shall be entitled to seek immediate injunctive relief to protect its Confidential Information. The parties to this Agreement consent to jurisdiction and venue in the Eastern U.S. Federal District courts located in the State of California, and the County of Sacramento.

34. Survival.  All provisions of this Agreement which by their nature are reasonably intended to have effect after termination or expiration of this Agreement shall survive such termination or expiration.

35. Severability. If any provision of this Agreement is determined to be illegal, unenforceable or invalid, in whole or in part, for any reason, such provision(s) shall be stricken from this Agreement and shall not affect the legality, enforceability or validity of the remainder of this Agreement. The words "include" or "including" herein shall mean "including without limitation." The Agreement shall be considered drafted mutually by the parties.

36. Force Majeure. The obligation of either party to perform under this Agreement shall be excused during a reasonable period of delay caused by matters beyond such party's reasonable control, including changes in laws, power or internet service failure, third party system or service failure, war, earthquake, fire, food or other natural disasters.

37. Effective Date. This Agreement may be executed by electronic signature, and shall be deemed effective in the event and at such time as HT activates Client's account.  Client represents that this Agreement has been executed on Client’s behalf by a representative authorized to bind Client with respect to the undertakings and obligations contained in the Agreement.

38. Remedies Cumulative. All remedies herein are cumulative and may be exercised concurrently or separately, and the exercise of any one remedy shall not be deemed an election of such remedy to the exclusion of other remedies.

39. Miscellaneous. HT’s failure to enforce any provision of these Terms shall not be deemed a waiver of such provision nor of the right to enforce such provision. If any part of these Terms is determined to be invalid or unenforceable pursuant to applicable law, including, but not limited to, the warranty disclaimers and liability limitations set forth above, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of these Terms shall continue in effect. A printed version of these Terms and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to these Terms to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.