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Master Terms and Conditions of Service

These Master Terms and Conditions of Service (“Terms”) sets forth the terms under which PandoLogic, Inc. (“Company”) will provide Client with access to and use of certain service offering(s) as identified in an applicable Order Form (the “Services”), as well as related professional services (“Professional Services”). The term “Order Form” shall mean an ordering document executed by the parties hereto which references these Terms and specifies the Services and/or Professional Services to be provided hereunder.

  1.  Term and Termination
    1. Term . These Terms and each party’s rights and obligations hereunder shall commence upon the execution of the initial Order Form referencing these Terms and will continue for for so long as there is an Order Form in effect or until earlier terminated as provided below (“Term”). In the event there is no Order Form in effect hereunder for a consecutive period of one (1) year, these Terms will automatically terminate. The term of any subscription to the Services will be as specified on the applicable Order Form. Unless otherwise specified on an Order Form, any subscription to the Services thereunder shall automatically renew for successive periods equal to the longer of the Order Form’s previously stated term then expiring, or one year, upon the same terms and conditions as originally set forth in the expiring Order Form, unless either party provides written notice of non-renewal at least thirty (30) days prior to the end of the then-current Term.
    2. Termination. Either party may immediately terminate these Terms (including all Order Forms) upon written notice in the event the other party commits a material breach of any provision of these Terms that is not cured within thirty (30) days of written notice of such breach from the non-breaching party. Such notice of breach by the complaining party shall expressly state the reasons for the claimed material breach in sufficient detail so as to provide the alleged breaching party a meaningful opportunity to cure such alleged breach (“Breach Notice”). Upon termination or expiration for any reason, Client shall have no rights to continue use of the Services. If these Terms are terminated as a result of Client’s material breach, then Company shall be entitled to all of the fees due hereunder for the entire Term. If these Terms are terminated as a result of Company’s material breach, then Client shall be entitled to a refund of the pro rata portion of any prepaid subscription fees paid by Client for the remaining terminated portion of the Term.
  2. Data Security. Company shall maintain prevailing industry practices with regard to administrative, physical and technical safeguards for the security, protection, confidentiality and integrity of Client Materials and Confidential Information. Notwithstanding the foregoing, it is understood that the Services are not intended to retain “sensitive” or “special” categories of data including, but not limited to: (a) credit card or other financial information; (b) Social Security Numbers; (c) Driver’s License Numbers; (d) dates of birth; and (e) Protected Health Information as that term is defined in the HIPAA/HITECH regulations or similar state regulations (“Prohibited Data”). Client shall not provide any Prohibited Data through the Subscription Service.
  3. Confidentiality.
    1. “Confidential Information” means these Terms, any logon identifiers and passwords provided to Client, and any information identified as confidential by the disclosing party at the time of disclosure. Confidential Information will not include (and the disclosure and use restrictions hereunder shall not apply to) information that is: (i) publicly available; (ii) already in the other party’s possession and not subject to a confidentiality obligation; (iii) obtained by the other party from any source without any obligation of confidentiality; (iv) independently developed by the other party without use of or reference to the disclosing party’s Confidential Information; or (v) required to be disclosed by order of a court or other governmental entity.
    2.  Confidentiality Obligations. Each party agrees: (a) not to use or disclose Confidential Information except to the extent necessary to perform its obligations or exercise rights under these Terms or as directed by the disclosing party, (b) to protect the confidentiality thereof in the same manner as it protects the confidentiality of similar information and data of its own (at all times exercising at least a reasonable degree of care in the protection of such Confidential Information), and (c) to make Confidential Information available to authorized persons only on a “need to know” basis. Either party may disclose Confidential Information on a need to know basis to its contractors and service providers who have executed written agreements requiring them to maintain such information in strict confidence and use it only to facilitate the performance of their services in connection with the performance of these Terms.
  4. Limited Warranty.
    1. Company warrants that the Services will achieve in all material respects the features and functionality described in the Documentation (defined below) and that any Professional Services will be performed in a professional manner in accordance with prevailing industry standards. Documentation shall mean the reference, administrative, and user manuals (if any) published by Company and provided to Client with the Service but excluding any sales or marketing materials. In the event of a breach of the foregoing warranties, Client’s sole and exclusive remedy shall be that Company shall be required to use commercially reasonable efforts to modify the Services to achieve in all material respects the functionality described in the Documentation and these Terms. Company shall have no obligation with respect to a warranty claim unless notified of such claim within three (3) months of such claim. Other than as set forth in this Section 4, Company MAKES NO WARRANTIES, EXPRESS OR IMPLIED RELATING TO THE SERVICES, PROFESSIONAL SERVICES, OR ANY OTHER MATTERS COVERED BY THESE TERMS. COMPANY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PURPOSE, OR NON-INFRINGEMENT WITH RESPECT TO ITS SERVICES OR THE FUNCTIONALITY, PERFORMANCE OR RESULTS OF USE OF ITS SERVICES. COMPANY DOES NOT WARRANT THE DELIVERY OF ADVERTISING SPACE, NOR SHALL CLIENT BE ENTITLED TO ANY RECOURSE IN THE EVENT AN ADVERTISEMENT IS NOT PROPERLY DISPLAYED IN THE ADVERTISING SPACE OR A VALID USER DOES NOT CLICK ON THE ADVERTISEMENT.
    2. Client represents warrants and covenants that: (a) it has full authority to enter into these Terms and perform its obligations hereunder; and (b) it will access the Services only for lawful purposes and will not violate any laws or regulations or the rights of any third party in connection with use of the Services.
  5. Payment. Unless otherwise set forth on an Order Form, all amounts payable by Client for the Services (“Fees”) are due in full within 30 days of invoice date, without deduction. Late payments will incur interest in an amount equal to the lesser of 1.5% per month or the maximum allowable under applicable law. Client shall reimburse Company for all costs and expenses (including reasonable attorneys’ fees) incurred in collecting past due amounts.
  6. Indemnification.
    1. Company Indemnity. Company shall, at its own expense and subject to the limitations set forth in this Section 6, indemnify, defend and hold Client harmless from and against any and all claims, demands, suits, and proceedings brought by third parties (collectively, “Third Party Claims”) and all resulting damages, liabilities, losses, fines, judgments, awards, costs and expenses (including reasonable attorneys’ fees) actually incurred, finally awarded or entered into settlement (collectively “Losses”) to the extent arising out of: (i) an allegation that the Services, as used in accordance with the terms and conditions of these Terms, infringes the copyrights, trade secrets, patents or trademarks of such third party (an “Infringement Claim”); or (ii) the gross negligence or willful misconduct of Company in performance of Services under these Terms.
    2. Excluded from these indemnification obligations are Third Party Claims to the extent arising from (i) use of the Services in violation of these Terms or applicable law, (ii) use of the Services after Company notifies Client to discontinue use because of an Infringement Claim, (iii) modifications to the Services not made by Company, (iv) use of the Services in combination with any software, application or service not provided by Company; or (v) violation of the Use Restrictions.
    3. If an Infringement Claim is brought or threatened, Company shall, at its sole option and expense, use commercially reasonable efforts either (i) to procure for Client the right to continue using the Services without cost to Client; (ii) to modify or replace all or portions of the Services as needed to avoid infringement, such update or replacement having substantially similar or better capabilities; or (iii) if Company determines that (i) and (ii) are not commercially feasible, terminate these Terms and provide to Client a pro-rata refund of any pre-paid but unused fees paid under the applicable Order Form for its use of the Services applicable to the period after termination . The rights and remedies granted to Client under this Section 6 state Company’s entire liability, and Client’s sole and exclusive remedy, with respect to any claim of infringement of the intellectual property rights of any third party.
    4. Client Indemnity. Client shall indemnify, defend, and hold Company and its personnel and successors and assigns harmless for all Third Party Claims and Losses to the extent arising out of: (i) an allegation that any Client data infringes the copyrights, trade secrets, patents or trademarks of any third party; (b) Client’s violation of law in the use of the Services; or (c) the gross negligence or willful misconduct of Client.
    5. Indemnification Procedure. The party seeking indemnity hereunder (the “Indemnified Party”) shall notify the other party (the “Indemnifying Party”) promptly in writing of any Third-Party Claim for which the Indemnified Party is seeking indemnification hereunder. Failure or delay in providing notice shall not relieve the Indemnifying Party of its indemnification obligations, except to the extent the Indemnifying Party demonstrates that the defense of the Third-Party Claim has been prejudiced thereby. The Indemnifying Party shall control the defense and settlement of any Third-Party Claim; provided, however, no compromise or settlement may be finalized without the Indemnified Party’s prior written approval (not to be unreasonably withheld or delayed) unless such compromise or settlement unconditionally releases the Indemnified Party of all liability and does not adversely affect the Indemnified Party. The Indemnified Party shall provide reasonable assistance at the Indemnifying Party’s request and sole expense and may elect to participate in the defense or settlement of any such Third-Party Claim at its own expense with counsel of its choice.
  7. Governing Law; Venue. These Terms, and any disputes between Client and Company relating to these Terms, shall be governed by and construed in accordance with the laws of the State of New York notwithstanding its rules regarding conflicts of law. Exclusive venue for any dispute hereunder shall be in a state or federal court of competent jurisdiction located in New York City.
  8. Notices. All notices given hereunder shall be given by first class mail, return receipt requested, overnight courier, or email to the Client at the address or email set forth below and to PandoLogic Inc. at 750 Lexington Avenue, New York, NY 10022, Attn: CFO, or to support@pandologic.com and shall be deemed given upon receipt thereof.
  9. Limitation of Liability:
    1. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR LOSS OF PROFITS, LOSS OF USE, BUSINESS INTERRUPTION, DOWNTIME, LOSS OF OR DAMAGE TO CONTENT OR DATA, COSTS OF COVER OR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND, WHETHER ALLEGED AS BREACH OF CONTRACT, TORT OR OTHER FORM OF ACTION, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES
    2. TO THE MAXIMUM EXTENT PERMITTED BY LAW. EXCEPT WITH REGARD TO AMOUNTS PAYABLE BY CLIENT UNDER THESE TERMS THE MAXIMUM LIABILITY OF EITHER PARTY TO THE OTHER OR ANY THIRD PARTY WHATSOEVER ARISING OUT OF OR IN THE CONNECTION WITH THESE TERMS, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED ON BREACH OR REPUDIATION OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, TORT, STATUTORY DUTY, OR OTHERWISE, SHALL IN NO CASE EXCEED THE EQUIVALENT OF THE MOST RECENT 12 MONTHS IN FEES FOR THE SERVICE THAT IS THE SUBJECT OF THE CLAIM.
  10. Proprietary Rights
    1. Ownership of Client Data. As between Company and Client, all Client data is owned exclusively by Client.
    2. Company Proprietary Rights. All rights, title and all intellectual property rights in and to the Services and any Documentation are owned exclusively by Company or its licensors.
    3. All right, title and interest in and to Client’s marks, copyrights, patents, names and logos (collectively, “Client Marks”) and all Client Data are owned exclusively by Client. Unless expressly granted to Company, all rights in and to the Client Marks are retained by Client. If required to provide the Services, Client hereby grants to Company a non-exclusive, royalty-free, fully paid up, non-transferable license to display and use Client Marks as necessary to provide the Services. Client agrees to allow Company to reference Client Marks in its promotional and marketing materials and activities.
  11. Assignment. Client may not assign these Terms or any rights under these Terms without Company’s prior written consent; provided, that such consent will not be unreasonably withheld or delayed. Any assignment in violation of these Terms will be void and of no force and effect. All the terms and provisions of these Terms will be binding upon and inure to the benefit of the parties, their successors and permitted assigns.
  12. Force Majeure. Neither party will be liable to the other for a failure or delay in its performance of any of its obligations under these Terms (except for the payment of amounts due hereunder) to the extent that such failure or delay is caused by circumstances beyond its reasonable control or by events such as fire, riot, flood, labor disputes, natural disaster, regulatory action, internet or telecommunications failures, terrorist acts, provided that the non-performing party gives notice of such condition and continues or resumes its performance of such affected obligation to the maximum extent and as soon as reasonably possible
  13. Non-Disparagement. Client covenants and agrees that Client shall not engage in any pattern of conduct that involves the making or publishing of written or oral statements or remarks which are disparaging, deleterious or damaging to the integrity, reputation or goodwill of the Company or affiliates of the Company.
  14. Entire Agreement. These Terms, including the Order Form(s) contains the entire agreement of the parties with respect to the subject matter of the Terms and supersedes all previous communications, representations, understandings and agreements, either oral or written, between the parties with respect to said subject matter. No purchase order, other ordering document or any hand written or other text which purports to modify or supplement the text of these Terms or any Order Form shall add to or modify these Terms. All such proposed variations or additions are objected to and shall have no force or effect.
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