HIREVUE VIDEO PLUGIN SOFTWARE LICENSE AGREEMENT
HIREVUE CORPORATION AND/OR ITS AFFILIATES (“HIREVUE”) IS WILLING TO LICENSE THE LICENSED SOFTWARE TO YOU AS THE INDIVIDUAL, THE COMPANY, OR THE LEGAL ENTITY THAT WILL BE UTILIZING THE LICENSED SOFTWARE (REFERENCED BELOW AS “YOU” OR “YOUR”) ONLY ON THE CONDITION THAT YOU ACCEPT ALL OF THE TERMS OF THIS LICENSE AGREEMENT (“LICENSE AGREEMENT”). READ THE TERMS AND CONDITIONS OF THIS LICENSE AGREEMENT CAREFULLY BEFORE USING THE LICENSED SOFTWARE. THIS IS A LEGAL AND ENFORCEABLE CONTRACT BETWEEN YOU AND HIREVUE. BY OPENING THE LICENSED SOFTWARE PACKAGE, CLICKING THE “I AGREE” OR “YES” BUTTON, OR OTHERWISE INDICATING ASSENT ELECTRONICALLY, OR LOADING THE LICENSED SOFTWARE OR OTHERWISE USING THE LICENSED SOFTWARE, YOU AGREE TO THE TERMS AND CONDITIONS OF THIS LICENSE AGREEMENT. IF YOU DO NOT AGREE TO THESE TERMS AND CONDITIONS, CLICK THE “I DO NOT AGREE” OR “NO” BUTTON OR OTHERWISE INDICATE REFUSAL AND MAKE NO FURTHER USE OF THE LICENSED SOFTWARE. UNLESS OTHERWISE DEFINED HEREIN, CAPITALIZED TERMS WILL HAVE THE MEANING GIVEN IN THE “DEFINITIONS” SECTION OF THIS LICENSE AGREEMENT AND SUCH CAPITALIZED TERMS MAY BE USED IN THE SINGULAR OR IN THE PLURAL, AS THE CONTEXT REQUIRES.
YOU AGREE THAT YOUR USE OF THE SOFTWARE AND/OR SERVICES ACKNOWLEDGES THAT YOU HAVE READ THIS LICENSE AGREEMENT, UNDERSTAND IT, AND AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS.
ANY THIRD PARTY SOFTWARE, INCLUDING ANY THIRD PARTY'S PLUGIN, THAT MAY BE PROVIDED WITH THE SOFTWARE IS INCLUDED FOR USE AT YOUR OPTION. IF YOU CHOOSE TO USE SUCH THIRD PARTY SOFTWARE, THEN SUCH USE SHALL BE GOVERNED BY SUCH THIRD PARTY'S LICENSE AGREEMENT. HIREVUE IS NOT RESPONSIBLE FOR ANY THIRD PARTY'S SOFTWARE AND SHALL HAVE NO LIABILITY FOR YOUR USE OF THIRD PARTY SOFTWARE.
1. GRANT OF LICENSE. HireVue hereby grants to you a non-exclusive license to use the Software and any related documentation ("Documentation") subject to the following terms:
a) You may: (i) use the Software on any computer; and (ii) copy the Software for back-up and archival purposes, provided any copy must contain all of the original Software's proprietary notices.
b) Changes to this Agreement. HireVue may change this Agreement from time to time. If HireVue makes any changes to the rates, terms or conditions set forth in this Agreement, HireVue will post them on its Web page at http://www.hirevue.com/pluginlicense (the “Web Page”). HireVue may satisfy any applicable notice requirements by posting changes to this Agreement on the Web Page. You agree to review the Web Page on a timely and reasonable basis, and can easily see if changes have been made by checking the Revision Date posted at the bottom of this Agreement. If you do not agree to the terms of any revised agreement, you should cease use of the Software and immediately contact HireVue. Your continued use of the Software following the posting of any changes to this Agreement constitutes your consent to be bound by the terms of this Agreement as revised.
2. LICENSE RESTRICTIONS.
a) You may not: (i) permit other individuals to use the Software except under the terms listed above; (ii) modify, translate, reverse engineer, decompile, disassemble (except to the extent that this restriction is expressly prohibited by law) or create derivative works based upon the Software or Documentation; (iii) copy the Software or Documentation (except for back-up or archival purposes); (iv) rent, lease, transfer, or otherwise transfer rights to the Software or Documentation; (v) use the Software with any application or device that circumvents technological measures for the protection of video, audio, and/or data content or (vi) remove any proprietary notices or labels on the Software or Documentation. Any such forbidden use shall immediately terminate your license to the Software.
b) You agree that you shall only use the Software and Documentation in a manner that complies with all applicable laws in the jurisdictions in which you use the Software and Documentation, including, but not limited to, applicable restrictions concerning copyright and other intellectual property rights.
3. ALPHA RELEASE VERSIONS. In the event that the Software is an alpha release version, the terms of this Section shall apply. Your license to use the Software expires 45 days after installation (or such other period as indicated by the Software) and the Software may cease to function. The Software you are receiving may contain more or less features than the commercial release of the HireVue Product that HireVue intends to distribute. While HireVue intends to distribute a commercial release of the Software, HireVue reserves the right at any time not to release a commercial release of the Software or, if released, to alter features, specifications, capabilities, functions, licensing terms, release dates, general availability or other characteristics of the commercial release. You agree that the alpha release versions are not suitable for production use and may contain errors affecting their proper operation. You agree that you will not do anything to circumvent or defeat the features designed to stop the Software from operating after the license expires.
4. BETA RELEASE OR PRE-RELEASE VERSIONS. In the event that the Software is a beta release or pre-release version, the terms of this Section shall apply. Your license to use the Software expires 120 days after installation (or such other period as indicated by the Software) and the Software may cease to function. The Software you are receiving may contain more or less features than the commercial release of the HireVue Product that HireVue intends to distribute. While HireVue intends to distribute a commercial release of the Software, HireVue reserves the right at any time not to release a commercial release of the Software or, if released, to alter features, specifications, capabilities, functions, licensing terms, release dates, general availability or other characteristics of the commercial release. You agree that the beta release or pre-release versions are not suitable for production use and may contain errors affecting their proper operation. You agree that you will not do anything to circumvent or defeat the features designed to stop the Software from operating after the license expires.
5. USER INFORMATION
a) Hardware information: In order to download the appropriate software, HireVue must send certain anonymous information about the hardware on your computer to the HireVue download server. Once the software is installed, information about your hardware will not be stored on any server.
c). Usage information: HireVue may keep statistics on the use of the HireVue Video Plugin.
6. TITLE. Title, ownership, rights, and intellectual property rights in and to the Software and Documentation and any authorized copies you make of it shall remain in HireVue and/or its suppliers. The structure, organization and code of the Software are the valuable intellectually property (e.g. trade secrets and confidential information) of HireVue and its suppliers. The Software and the Services are protected by the copyright laws of the United States and international copyright treaties.
7. WARRANTIES AND LIABILITIES.
(a) For the production released versions of HireVue’s Products, the following terms apply:
LIMITED WARRANTY. HireVue warrants that for a period of ninety (90) days from the date of acquisition the Software, if operated as directed, will substantially achieve the functionality described in the Documentation. HireVue does not warrant however that your use of the Software will be uninterrupted or that the operation of the Software will be error-free or secure.
(i) NO OTHER WARRANTIES: TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW HIREVUE AND ITS SUPPLIERS DISCLAIM ALL OTHER WARRANTIES EITHER EXPRESS OR IMPLIED INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE WITH REGARD TO THE SOFTWARE, THE ACCOMPANYING WRITTEN MATERIALS AND ANY ACCOMPANYING HARDWARE. If any modifications are made to the Software by you during the warranty period; if the media is subjected to accident, abuse or improper use; or if you violate the terms of this License Agreement, this warranty shall immediately terminate. This warranty shall not apply if the Software is used on or in conjunction with hardware or Software other than the unmodified version of hardware and Software with which the Software was designed to be used as described in the Documentation. THIS LIMITED WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS; YOU MAY HAVE OTHER RIGHTS THAT VARY FROM STATE/JURISDICTION TO STATE/JURISDICTION.
(ii) Customer Remedies. HireVue’s sole liability for a breach of this warranty shall be in HireVue’s sole discretion: (i) to replace your defective media; or (ii) to advise you how to achieve substantially the same functionality with the Software as described in the Documentation through a procedure different from that set forth in the Documentation. Repaired, corrected or replaced Software and Documentation shall be covered by this limited warranty for the period remaining under the warranty that covered the original Software or if longer for thirty (30) days after the date HireVue either shipped to you the repaired or replaced Software or advised you as to how to operate the Software so as to achieve the functionality described in the Documentation, whichever is applicable. Only if you inform HireVue of the problem with the Software during the applicable warranty period and provide evidence of the date you acquired the Software will HireVue be obligated to honor this warranty.
LIMITATION OF LIABILITY. UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY WHETHER IN TORT, CONTRACT OR OTHERWISE SHALL HIREVUE OR ITS SUPPLIERS OR RESELLERS BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY CHARACTER INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION OR ANY AND ALL OTHER COMMERCIAL DAMAGES OR LOSSES EVEN IF HIREVUE SHALL HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES OR FOR ANY CLAIM BY ANY OTHER PARTY. FURTHER, IN NO EVENT SHALL HIREVUE’S LIABILITY UNDER ANY PROVISION OF THIS AGREEMENT EXCEED THE LICENSE FEE PAID TO HIREVUE FOR THE SOFTWARE AND DOCUMENTATION. BECAUSE SOME STATES/JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
(b) For the Trial, Pre-Release, Alpha, and Beta versions of HireVue Products, the Services and the Content, the following terms apply:
DISCLAIMER OF WARRANTY & LIMIT OF LIABILITY. THE SOFTWARE, DOCUMENTATION, SERVICES AND CONTENT ARE PROVIDED AS IS WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, HIREVUE FURTHER DISCLAIMS ALL WARRANTIES, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT. THE ENTIRE RISK ARISING OUT OF THE USE OR PERFORMANCE OF THE SOFTWARE, DOCUMENTATION, SERVICES AND CONTENT REMAINS WITH YOU. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL HIREVUE BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE, OR OTHER DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR OTHER PECUNIARY LOSS) ARISING OUT OF THIS AGREEMENT OR THE USE OF OR INABILITY TO USE THE SOFTWARE, THE SERVICES OR THE CONTENT, EVEN IF HIREVUE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHER, IN NO EVENT SHALL HIREVUE’S LIABILITY UNDER ANY PROVISION OF THIS AGREEMENT EXCEED THE LICENSE FEE PAID TO HIREVUE FOR THE SOFTWARE AND DOCUMENTATION. BECAUSE SOME STATES/JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU. HIREVUE DOES NOT ENDORSE, WARRANT OR GUARANTEE ANY CONTENT PROVIDED BY OR THROUGH HIREVUE.
13. TERMINATION. This License Agreement will automatically terminate if you fail to comply with any term hereof. No notice shall be required from HireVue to effect such termination. You may also terminate this License Agreement at any time by notifying HireVue in writing of termination. Upon any termination of this License Agreement, you shall immediately discontinue use of the Software and shall within three (3) days return to HireVue, or certify destruction of, all full or partial copies of the Software, documentation and related materials provided by HireVue.
14. NO ASSIGNMENT. This Agreement is personal to you, and may not be assigned without HireVue’s express written consent. In the event that you are an entity that merges with another entity or are acquired by another entity during the Term, you shall provide written notice of such merger or acquisition not later than the date on which any public announcement is made. If HireVue does not consent to assignment of this Agreement to the new or acquiring entity in such merger or acquisition, HireVue may terminate this Agreement on thirty (30) days' written notice. Both parties shall perform under this Agreement until such termination is effective.
15. TECHNICAL SUPPORT. Technical support for the Software, as made available by HireVue, is described at HireVue’s technical support website: http://hirevue.com/help
16. U.S. GOVERNMENT RESTRICTED RIGHTS AND EXPORT RESTRICTIONS. U.S. GOVERNMENT RESTRICTED RIGHTS: This Software and documentation are provided with RESTRICTED RIGHTS. Use, duplication or disclosure by the Government is subject to restrictions set forth in subparagraphs (a) through (d) of the Commercial Computer Software--Restricted Rights at FAR 52.227-19 when applicable, or in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013, and in similar clauses in the NASA FAR supplement, as applicable. Manufacturer is HireVue, Inc./ 12227 South Business Park Dr., Suite 120
Draper, Utah 84020. You are responsible for complying with all trade regulations and laws both foreign and domestic. You acknowledge that none of the Software or underlying information or technology may be downloaded or otherwise exported or re-exported (i) into Afghanistan (Taliban-controlled areas), Cuba, Iran, Iraq, Libya, North Korea, Serbia (except Kosovo), Sudan and Syria or any other country subject to a U.S. embargo; or (ii) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Commerce Department's Denied Parties List or Entity List. By using the Software you are agreeing to the foregoing and are representing and warranting that (i) no U.S. federal agency has suspended, revoked, or denied you export privileges, (ii) you are not located in or under the control of a national or resident of any such country or on any such list, and (iii) you will not export or re-export the Software to any prohibited county, or to any prohibited person, entity, or end-user as specified by U.S. export controls. For more information on the U.S. Export Administration Regulations (EAR), 15 C.F.R. Parts 730-774, and the Bureau of Export Administration ("BXA"), please see the BXA homepage (http://bxa.fedworld.gov).
a) Arbitration & Jurisdiction. You and HireVue agree that the exclusive remedy for all disputes and claims relating in any way to, or arising out of, this Agreement, the Software or Services, or your use of the Software or Services shall be final and binding arbitration. The arbitration shall be conducted under the Commercial Arbitration Rules of the American Arbitration Association ("AAA") and AAA's Supplementary Procedures for Consumer Related Disputes ("AAA Consumer Rules"). The arbitration shall take place in the State of Utah. To the fullest extent permitted by law: no arbitration under this License Agreement shall be joined to any other arbitration, including any arbitration involving any other current or former licensee of HireVue; no class arbitration proceedings shall be permitted; no finding or stipulation of fact in any other arbitration, judicial or similar proceeding may be given preclusive or collateral estoppel effect in any arbitration hereunder (unless determined in another proceeding between you and HireVue); and no conclusion of law in any other arbitration may be given any weight in any arbitration hereunder (unless determined in another proceeding between you and HireVue). Your arbitration fees and your share of arbitrator compensation will be limited to those set forth in the AAA's Consumer Rules with the remainder paid by HireVue. If such costs are determined to be excessive, HireVue will pay all arbitration fees and arbitrator compensation. You and HireVue may litigate in court only to compel arbitration under this Agreement, stay proceedings pending arbitration, or to confirm, modify, vacate or enter judgment on the award rendered by the arbitrator(s). You and HireVue hereby consent to the exclusive jurisdiction of the state and federal courts sitting in the State of Utah to enforce the provisions of this Section 16 and to resolve any disputes and claims cognizable in court relating in any way, or arising out of, this Agreement, the Software or Services or your use of the Software or Services. The court, not the arbitrator, shall determine arbitrability and enforce the arbitration agreements contained herein, including the prohibition on consolidated arbitrations and class arbitration. This Agreement and all disputes and claims relating in any way to, or arising out of, this Agreement, the Software or Services or your use of the Software or Services shall be governed by the laws of the State of Utah and the Federal Arbitration Act.
b) Complete Agreement. This Agreement shall constitute the complete and exclusive agreement between us, notwithstanding any variance with any purchase order or other written instrument submitted by you, whether formally rejected by HireVue or not. The acceptance of any purchase order you place is expressly made conditional on your consent to the terms set forth herein. The terms and conditions contained in this Agreement may not be modified by you except in a writing duly signed by you and an authorized representative of HireVue. If any provision of this Agreement is held to be unenforceable for any reason, such provision shall be reformed only to the extent necessary to make it enforceable, and such decision shall not affect the enforceability of such provision under other circumstances, or of the remaining provisions hereof under all circumstances. This Agreement will not be governed by the United Nations Convention of Contracts for the International Sale of Goods, the application of which is hereby expressly excluded.
Copyright (c) 2012 HireVue, Inc. 12227 South Business Park Dr., Suite 120
Draper, Utah 84020 and/or its suppliers and licensors. All rights reserved. HireVue and the HireVue logo are registered trademarks or trademarks of HireVue, Inc.
Last modified: June 14, 2012