Last modified: October, 2020
- The DiversiBoard Services
DiversiBoard offers its Customers access to a pool of employment candidates with diverse background who have previously submitted their application to another customer of DiversiBoard, and who have provided their consent to grant Customer with access to their data. The applicants data is obtained by connecting to Customer’s systems and withdrawing all information concerning open positions and relevant candidates from such systems.
- Registration, User Account, Password and Security
2.1 The individual (the “User”) opening the account on DiversiBoard’s website (the “Account”) does this on behalf of its organization (the “Customer”). In order to use the Service, the User must provide truthful, accurate, and current information about himself/herself, including such User’s email address at the Customer’s domain, as well as additional set-up information (“Registration Data”). The User must also provide technical information about the Customer’s platform for which Customer wishes to use the Service (jointly with the Registration Data and additional data generated by the Service: “Customer Configurations”). As part of the Account set-up and registration process, User (on behalf of the Customer) will choose a username and password. User and the Customer will be responsible for maintaining the confidentiality of User’s password and agree not to transfer the use of, or access to, the Service to any third party. Customer will indemnify DiversiBoard and the Related Parties (as defined below) from and against any and all Damages (as defined below) that are based on or arise directly or indirectly out of or from any use of, or access to, the Service to any third party.
Customer is fully and solely responsible for any and all activities that occur through the Account. DiversiBoard cannot and will not be liable for any Damage resulting from Customer’s failure to comply with this security obligation. Customer agrees to immediately notify DiversiBoard of any unauthorized use of User’s password or the Account or any other breach of security and to simultaneously make sure that the User resets his/her password.
2.3 The User accepting these Terms on behalf of Customer hereby represents and warrants that she/he has the authority to bind the Customer. IF USER DOES NOT HAVE THE AUTHORITY TO BIND THE CUSTOMER, USER WILL INDEMNIFY, DEFEND AND HOLD DIVERSIBOARD AND ITS RELATED PARTIES HARMLESS FROM AND AGAINST ANY AND ALL DAMAGES THAT ARE BASED ON OR ARISE DIRECTLY OR INDIRECTLY OUT OF OR FROM THE USE OF THE SERVICE BY THE USER ON BEHALF OF THE CUSTOMER.
- Non-Exclusive License to the Service
3.1 Non-Exclusive License. Subject to and conditioned upon Customer acceptance of these Terms and Customer ongoing compliance with these Terms, DiversiBoard grants Customer a non-exclusive, non-transferable, non-sublicensable, limited license to access and use the Service, solely for Customer’s own internal business use, and in strict compliance with these Terms.
3.2 Changes in the Service. DiversiBoard makes continuous efforts to constantly improve the Service for the benefit of its customers. Therefore, DiversiBoard may make changes to the Service from time to time, including removing any feature or functionality of the Service. DiversiBoard will use reasonable efforts to provide the Customer with a reasonable notice prior to any material change in the Service.
3.3 Restrictions. Customer’s use of, and access to the Service is conditioned upon Customer compliance with these Terms, including that Customer will not, nor will Customer allow, any third party to: (a) copy, modify, adapt, translate or otherwise create derivative works of the Service; (b) reverse engineer, de-compile, disassemble or otherwise attempt to discover the source code of the Service; (c) rent, lease, sell, sublicense, assign or otherwise transfer rights in or to the Service; (d) remove any proprietary notices or labels on the Service; (e) use, post, transmit or introduce any device, software or routine which interferes or attempts to interfere with the operation of the Service; (f) develop any other product or service containing any of the concepts and ideas contained in the Service or use the Service for the purpose of building a similar or competitive product; (g) test the Service or use the Service in connection with any benchmark tests, evaluation, or any other tests of which the results are designated or likely to be published in any form or media, or otherwise made available to the public, without DiversiBoard prior written approval; (h) directly or indirectly take any action to contest DiversiBoard’s intellectual property rights or infringe them in any way; (i) make the Service available for timesharing, application service provider or service bureau use; and (j) remove, obscure, or alter any notice of copyright, DiversiBoard’s Marks (as defined below), or other proprietary right appearing in or on any item included with the Service.
4.1 Mutual Representations Each of the Parties represents and warrants toward the other party hereto: 4.1.1. it has the full power, legal capacity, and authority to enter into, deliver and fully perform its respective obligations set forth in these Terms; and 4.1.2. the execution or performance of these Terms will not result in a violation or breach of any contract, agreement, order, judgment, decree, rule, regulation or law to which such party is bound.
4.2 Customer’s Representations Customer represents and warrants to DiversiBoard that: 4.2.1. It will not use the Service for any illegal or unauthorized purpose or infringe or promote the infringement of any intellectual, proprietary or other rights of any party, and Customer will comply with all applicable laws and regulations (including, but not limited to, all applicable import and export laws, copyright and privacy laws) in Customer’s use of and access to the Service. 4.2.2. Customer holds and maintains all personal information in compliance with any and all applicable laws. 4.2.3 Customer has received all authorizations needed from any and all candidates DiversiBoard received access to their data, and such authorization has not been cancelled.
- Intellectual Property Rights; Customer’s Content
5.1 DiversiBoard’s Intellectual Property Rights
5.1.1. The Service and all of the intellectual property rights in the Service (including DiversiBoard’s Marks) are, and shall remain, DiversiBoard exclusive property, including but not limited to, any modifications or custom features to the Service that may be developed by DiversiBoard for Customers benefit, whether requested or instructed by Customer or not, even if Customer has paid for such modifications, except if DiversiBoard and Customer have a separate written agreement that specifically states otherwise and references this Section.
Any error and bug reports, additional features, ideas, requests, feedbacks, recommendations, comments, concepts and other requests or suggestions related to the Service (collectively “Ideas”) that Customer may provide to DiversiBoard, will be solely owned by DiversiBoard. Customer hereby irrevocably assigns and transfers any intellectual property rights in such Ideas to DiversiBoard, free of charge.
All of DiversiBoard’s trademarks, service marks, logos, domain names, copyrights and other proprietary rights associated with DiversiBoard and the Service, whether registered or non-registered, shall be collectively be referred to as “DiversiBoard’s Marks”. Customer agrees not to directly or indirectly (and not to allow any third party to): (a) use DiversiBoard’s Marks for any purpose (other as detailed hereunder) without DiversiBoard’s express written consent; and (b) register, attempt to register, or assist anyone else to register any DiversiBoard’s Marks or marks confusingly similar thereto.
5.2 Customer’s Content 5.2.1. By registering to the Service, Customer hereby grants DiversiBoard the right to use, access, copy, adjust and reproduce all Customer’s content contained in the Customer’s systems: (i) as part of the provision of the Service to Customer or any other customer of DiversiBoard; (ii) to offer employment candidates of with diverse background other employment or engagement opportunities with other customers of DiversiBoard (collectively “Customer’s Content”). DiversiBoard does not claim ownership or any copyright in Customer’s Content.
5.2.2. Customer authorizes DiversiBoard to use Customer’s name, logo and other applicable trademarks, at any time, for the purpose of referencing Customer as a customer of the Service or in other promotional marketing materials. If Customer does not wish to be referenced, the Customer may contact DiversiBoard at firstname.lastname@example.org
6.1 Each party agrees that it will not disclose to any third party or use any Confidential Information disclosed to it by the other party, except disclosure and usage in accordance with these Terms, and that it will take all reasonable measures to maintain the confidentiality of all other party’s Confidential Information in its possession or control, which will in no event be less than the measures it uses to maintain the confidentiality of its own information of similar importance.
“Confidential Information” shall mean any proprietary information of either party, including but not limited to, all computer software (in object code or source code form), programs, designs, concepts, scientific, algorithmic and structural information included in, or related to, the Service, information of a business and commercial nature (such as financial and marketing information disclosed in any form or medium whatsoever) and any proposed new candidates which are offered to Customer by the Service. Confidential Information includes all information designated by either party as confidential or proprietary within a reasonable time of its disclosure or which a reasonable person would expect to be treated as confidential. “Confidential Information” will not include information that (a) is in or enters the public domain without breach of these Terms; (b) is lawfully obtained from a third party without breach of a nondisclosure obligation, it being agreed with respect to (a) and (b) above that the possibility of finding such information in the public domain shall not be deemed to exclude such information from the definition of “””Confidential Information”; (c) is already in the possession of the receiving party as shown by its dated written records; or (d) is required by law to be disclosed, provided that the receiving party gives prompt written notice of such requirement prior to disclosure, and reasonably assist the disclosing party in avoiding or limiting such disclosure, all subject to applicable law.
6.2 The receiving party acknowledges that the disclosure of Confidential Information could cause substantial harm to the disclosing party that may not be remedied by the payment of damages alone. Accordingly, disclosing party will be entitled to preliminary and permanent injunctive relief and other equitable relief in any relevant jurisdiction for any breach of this Section 6 or misuse of Confidential Information by the receiving party.
6.3 Upon termination of these Terms, each party will immediately return to the other party or destroy all copies of the other party’s Confidential Information in its possession or control.
- Fees; Taxes
7.1 Fees. In consideration for the Service, Customer shall pay DiversiBoard the fees agreed between Customer and DiversiBoard (the “Fees”).
7.2 Taxes. In case Customer is legally required to withhold any income or remittance tax from amounts payable to DiversiBoard, then (a) Customer will promptly notify DiversiBoard; (b) the amounts payable to DiversiBoard will be automatically increased to the full extent required to offset such tax, so that the amount remitted to DiversiBoard, net of all taxes, equals the amount stated in the invoice; and (c) Customer will provide DiversiBoard with the official receipt of payment of such taxes to the appropriate taxing authority.
- Term and Termination; Consequences of Termination
8.1 Term and Termination
8.1.2. Customer may cease using the Service at any time by providing DiversiBoard with a 30 days prior written notice by writing an email to email@example.com, except that in the event the Customer signed up for an annual plan he shall not be entitled to terminate such plan. DiversiBoard shall not refund Customer for any amount paid by Customer to DiversiBoard in advance following the termination.
8.1.3. DiversiBoard may terminate these Terms and the licenses granted hereunder, in any case of a material breach by Customer (including non-payment of Fees) of these Terms and/or any applicable law, which has not been cured by Customer within fourteen (14) days following written notice thereof from DiversiBoard.
8.1.4. In respect to any free of charge licenses, such as trial licenses, DiversiBoard may terminate the license and these Terms at any time by providing Customer with a thirty (30) days prior notice.
8.2 Consequences of Termination
Upon any termination of a license to use the Service, the following shall apply:
8.2.1. All rights granted to Customer under the applicable license shall immediately terminate.
8.2.2. DiversiBoard shall be entitled to continue to offer its customers with candidates with diverse background which were found on Customer’s systems.
8.2.3. The expiration or termination of the license shall not relieve Customer of any obligation intended to survive under these Terms, including but not limited to, Sections 3.3, 6, 8.2, and 9-12.
Customer hereby agrees to indemnify, defend and hold DiversiBoard and its directors, employees, service providers, agents, sub-contractors, representatives, and anyone on DiversiBoard’s behalf (the “Related Parties”) harmless from and against any and all claims, including related judgments, awards, liabilities, damages, losses, costs and expenses (including reasonable attorneys’ fees) and other expenses (collectively “Damages”) that are based on or arise directly or indirectly out of or from (a) Customer breach of these Terms; (b) any misuse of the Account(s) by Customer and any third party on Customer’s behalf; (c) any breach of Customer’s representations and warranties set forth herein; (d) any claim by a candidate that the use of the Customer Content was not authorized; and (e) Customer or Customer employees’ or personnel’s negligence or willful misconduct.
- Disclaimer of Warranties
10.1 CUSTOMER UNDERSTANDS AND AGREES THAT THE SERVICE AND ANY RELATED SERVICES PROVIDED TO CUSTOMER ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, DIVERSIBOARD AND ITS RELATED PARTIES DISCLAIM ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, ACCURACY, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE.
10.2 DIVERSIBOARD AND ITS RELATED PARTIES DO NOT WARRANT: (A) THAT THE SERVICE AND ANY RELATED SERVICES PROVIDED TO CUSTOMER WILL MEET CUSTOMER REQUIREMENTS OR EXPECTATIONS; (B) THAT CUSTOMER’S USE OF THE SERVICE AND ANY RELATED SERVICES PROVIDED TO CUSTOMER WILL BE UNINTERRUPTED; OR (C) THAT DEFECTS, IF ANY, WILL BE CORRECTED.
10.3 The foregoing exclusions and disclaimers are an essential part of these Terms and formed the basis for determining the price charged for the Service and any related services. Some states do not allow the exclusion of an implied warranty, so this disclaimer may not apply to Customer.
10.4 DiversiBoard may provide hyperlinks to other websites or resources. Because DiversiBoard has no control over such sites and resources, Customer acknowledges and agrees that DiversiBoard shall not be responsible for the availability of such sites or resources, nor shall DiversiBoard be responsible or liable for any content, advertising, products or other materials on or available from such sites or resources. When Customer accesses these third-party sites, Customer does so at Customer own risk, and Customer should refer to each such website’s individual “Terms of Service” and not rely on these Terms in any way.
- Limitation of Liability
11.1 DIVERSIBOARD AND ITS RELATED PARTIES SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS, LOSS OF GOODWILL, LOSS OF DATA, LOST PROFITS OR OTHER INTANGIBLE LOSSES), UNDER ANY THEORY OF LAW INCLUDING UNDER CONTRACT, NEGLIGENCE, STRICT LIABILITY, BREACH OF ANY STATUTORY DUTY, OR OTHERWISE ARISING OUT OF OR RELATING IN ANY WAY TO THE SERVICE AND ANY RELATED SERVICES PROVIDED TO CUSTOMER (EVEN IF DIVERSIBOARD OR ITS RELATED PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF A REMEDY FAILS OF ITS ESSENTIAL PURPOSE).
Some jurisdictions may not allow the limitation or exclusion of liability for incidental or consequential damages, so some of the above may not apply to Customer. In such jurisdictions, liability is limited to the fullest extent permitted by law.
11.2 NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, DIVERSIBOARD’S AND ITS RELATED PARTIES’ TOTAL AGGREGATE LIABILITY TO CUSTOMER OR ANY OTHER PARTY FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION, WILL AT ALL TIMES BE LIMITED TO THE AMOUNTS ACTUALLY RECEIVED BY DIVERSIBOARD FROM CUSTOMER FOR THE SERVICE PROVIDED TO CUSTOMER DURING THE TWELVE MONTHS PRECEDING THE CIRCUMSTANCES FIRST GIVING RISE TO THE CLAIM OF LIABILITY (THE “CAP AMOUNT”); EXCEPT THAT IF SUCH LICENSE WAS PROVIDED TO THE CUSTOMER FREE OF CHARGE, THEN THE CAP AMOUNT SHALL BE LIMITED TO US$1,000.
11.3 These Terms shall not confer any rights or remedies upon any person or entity on behalf of Customer other than the Customer.
12.1 No waiver by either party of any default shall be deemed a waiver of any prior or subsequent default of the same or other provisions of these Terms, nor shall any delay or omission on the part of either party to exercise or avail itself of any right or remedy that it has or may have hereunder operate as a waiver of any right or remedy.
12.2 If any provision hereof is held invalid or unenforceable by a court of competent jurisdiction, such invalidity shall not affect the validity or operation of any other provision and such invalid provision shall be deemed to be severed from these Terms.
12.3 These Terms constitute the entire understanding between Customer and DiversiBoard, and revoke and supersede all prior agreements between the parties, and are intended as a final expression of the parties’ agreement.
12.4 Any heading, caption or section title contained in these Terms is inserted only as a matter of convenience and in no way defines or explains any section or provision hereof.
12.5 DiversiBoard reserves the right at any time to modify these Terms. Any such modification will be effective immediately upon posting the amended Terms on DiversiBoard’s website or by sending an electronic mail to Customer. Customer’s continued use of the Service after the effective date of any such modification will be deemed acceptance of such modified Terms.
12.6 If the Service was provided by DiversiBoard all disputes arising out of these terms will be subject to the governing law of New York and the exclusive jurisdiction of the competent courts located in the city of New York, New York. The parties understand and fully agree that they are giving up their right to have a trial by jury. The parties agree and submit to the personal and exclusive jurisdiction and venue of these courts, except that nothing will prohibit either party from instituting an action in any court of competent jurisdiction to obtain injunctive relief or protect or enforce its intellectual property rights. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to these Terms.
12.7 Notices and all other communications provided for in these Terms shall be in writing and shall be deemed to have been duly given when personally delivered or sent by email to firstname.lastname@example.org provided that the recipient confirmed the receipt of such notice, or certified mail, return receipt requested, postage prepaid, addressed to the respective addresses set forth on the respective Ordering Document or last given by each party to the other. Such notice, demand or other communication shall be deemed given (a) if sent by email – upon receipt of confirmation as set forth above; (b) at the expiration of seven (7) days from the date of mailing by registered mail; or (c) immediately if delivered by hand.