TERMS OF SERVICE

HUMAN CAPITAL UNIVERSITY INTERFACE

These Terms of Service for the Human Capital University Interface govern your access to and use of the University Interface (defined below), so please read everything carefully. You shall be referred to as “Client”, as specified in the applicable Search Services Agreement (“SSA”) or Order Form (defined below). This page explains the terms by which you may use the University Interface and any other services or applications owned, controlled, or offered by Nav Talent, Inc., a Delaware corporation doing business as Human Capital (“Human Capital”). By accessing or using the University Interface you signify that you have read, understood, and agree to be bound by these Terms of Service and the associated Privacy Policy (collectively, the “Agreement”). 

 

  1. UNIVERSITY INTERFACE

    1. University Interface. This Agreement governs Client’s access to, and use of, of Human Capital’s “University Interface”, which means (a) access to and use of Human Capital’s proprietary interface that provides Clients with access to employment candidates curated by Human Capital for the Client (“Candidates”, and such interface, the “University Interface”), and (b) the support, maintenance, and training services that Human Capital provides to Client with respect to the use of the University Interface (“Support Services”). Human Capital will find, screen, and select Candidates that it deems, in its sole discretion, the best fit based on the criteria that Client has indicated. Such screening will generally entail a first-round style interview, although in cases where a Candidate is very well known to Human Capital, this step may not be undertaken. The specific services related to the University Interface that Client will be entitled to receive under this Agreement will be set forth in an SSA or an “Order Form” that is entered into by the Parties. Client’s employees, contractors, or other personnel that access and use the University Interface on Client’s behalf are its “Users” under this Agreement. The University Interface provides Client and its Users with tools and services to provision, support, and manage the use of the Human Capital Interface.
    2. Access; License. Subject to the terms and conditions of this Agreement, during the Term, and subject to Client’s payment of all applicable fees, Human Capital shall provide Client access to the University Interface as specified in an SSA or an Order Form signed by the Parties for the Term. Human Capital grants Client a limited, non-exclusive, non-transferable, revocable right to access the University Interface to do the following solely for the internal purposes of locating and hiring potential employees for Client: (i) access the features and functions of the University Interface; and (ii) view, download, reproduce, and print job and candidate content made available to Client through the University Interface. 
    3. Third Party Products. The University Interface may contain links and features that connect to third party websites, products, or services (“Third Party Products”). This Agreement is not binding upon such third parties, and Human Capital does not endorse such third parties. Human Capital is not responsible for the actions or inactions of such third parties or the contents or performance of any Third Party Product.

  2. HUMAN CAPITAL RESPONSIBILITIES

    1. University Interface. Subject to this Agreement, Human Capital will (a) provide Client and its Users with access to and use of the University Interface, (b) provide the University Interface in material conformance with the terms and conditions of this Agreement, (c) use commercially reasonable efforts to make the University Interface available 24 hours a day, 7 days a week except for instances of scheduled maintenance or downtime or unavailability caused by circumstances outside of Human Capital’s reasonable control (e.g., emergency downtime, force majeure and similar events), and (d) provide the University Interface in accordance with the laws and government regulations applicable to the provisioning of the University Interface and to Human Capital’s business. Human Capital is responsible for the performance of its employees and contractors and their compliance with Human Capital’s obligations under this Agreement. Human Capital may use non-employee contractors, service providers, or agents for the purpose of providing University Interface hereunder.
    2. Changes to University Interface. From time-to-time during the Term, Human Capital may update or change the features, functionality or other aspects of the University Interface, provided that such changes do not materially reduce the functionality of the University Interface unless deemed necessary or useful, for example to: (a) maintain or enhance (i) the quality or delivery of the University Interface to its Clients, (ii) the competitive strength of or market for the University Interface, or (iii) the University Interface’s efficiency or performance; or (b) to comply with applicable law and regulation. Human Capital will use reasonable efforts to provide electronic notice to Client in advance of any such updates or changes. Client agrees that its purchase of the University Interface is not contingent upon the delivery of any future functionalities or features.

  3. CLIENT RESPONSIBILITIES

    1. Content. In order to make use of the University Interface, Client or its users may upload, create, or input information, data, documentation, and other materials (together, “Content”) into the University Interface. Client has sole responsibility for all Content which it stores in the University Interface, whether publicly posted or privately transmitted by Client. Human Capital does not endorse, support, represent, or guarantee the completeness, truthfulness, accuracy, or reliability of any Content or communications posted via the University Interface or endorse any opinions expressed via the University Interface. If Client uses or relies on any Content or materials posted via the University Interface or obtained by Human Capital through the University Interface, it is at Client’s own risk. Human Capital disclaims all liability as regards any of Content, and will not be liable for (i) any loss or damage of any kind incurred as a result of the use of any Content in the University Interface, (ii) any losses, costs, or expenses resulting from the loss or corruption of Content, and/or (iii) any third party claims relating to Content. Client agrees not to upload Content to the University Interface that: (i) may create a risk of harm, loss, physical or mental injury, emotional distress, death, disability, disfigurement, or physical or mental illness to Client or to any other person; (ii) may create a risk of any other loss or damage to any person or property; (iii) seeks to harm or exploit children by exposing them to inappropriate content, asking for personally identifiable details or otherwise; (iv) may constitute or contribute to a crime or tort; (v) contains any information or content that we deem to be unlawful, harmful, abusive, racially or ethnically offensive, defamatory, infringing, invasive of personal privacy or publicity rights, harassing, humiliating to other people (publicly or otherwise), libellous, threatening, profane, or otherwise objectionable; (vi) contains any information or content that is illegal (including, without limitation, the disclosure of insider information under securities law or of another party’s trade secrets); (vii) contains any information or content that Client does not have a right to make available under any law or under contractual or fiduciary relationships; or (viii) contains any information or content that Client knows is not correct and current. Client agrees that any Content that it posts does not and will not violate third party rights of any kind, including, without limitation, any intellectual property rights of third parties, or rights of privacy. Human Capital reserves the right to reject and/or remove any Content that it believes, in its sole discretion, violates this Agreement.
    2. Candidate Selection. Client shall have the sole and absolute right to accept or reject any Candidates introduced by Human Capital. Human Capital shall be under no duty or obligation to perform any additional services or take any actions except as specifically provided in this Agreement, and no other duties or obligations of any kind or nature shall be implied. Notwithstanding the foregoing, Client acknowledges and understands that Human Capital maintains long-term relationships with its members (i.e., Candidates), and it is expected that each Candidate will have a positive experience with Client, such that Client will send at least one response email to each Candidate that is introduced to them by Human Capital via email.
    3. Enterprise Registration. In order to access and use the University Interface, Client will have a company account (an “Account”) through the University Interface. Client will (a) provide accurate, truthful, current, and complete information with respect to its Account; and (b) maintain and promptly update all Account information. Client is responsible for protecting and safeguarding any passwords, user IDs, or other credentials and login information that have been provided to Client or that are generated in connection with Client’s Account. Client will use reasonable efforts to prevent unauthorized access to, or use of, its Account. Client will immediately notify Human Capital in writing of any unauthorized use of the Account that comes to Client’s attention.
    4. Users. Client is liable for the acts and omissions of its Users, including their compliance with this Agreement. In the event of a dispute, Human Capital will bring claims under this Agreement against Client as an entity (and not against individual Users) unless Human Capital deems it necessary in its sole discretion to preserve or pursue a claim or action.
    5. Authorized Use. Client will use the University Interface in accordance with the terms and conditions of this Agreement and the applicable SSA or Order Form, including any applicable usage restrictions on subscription term and other usage parameters for the University Interface set forth in an SSA or an Order Form (collectively, “Approved Use”). Client is permitted to access and use the University Interface solely for its internal business purposes and not for the benefit of any third party.
    6. Cooperation. Client’s cooperation is required in order for Human Capital to efficiently and effectively provide services in the University Interface. Client agrees to comply with all of Human Capital's reasonable requests made in connection with the provision of University Interface to Client. Human Capital will have no liability for any delays, deficiencies, or failures that occur in the performance of University Interface as a result of (a) delays due to unanticipated Client requests, (b) Client’s failure to cooperate (including the cooperation of third parties under Client’s control), or (c) Client’s breach of this Agreement.
    7. Other Third-Party Products and Services. Client is responsible for obtaining and maintaining, at its sole cost and expense, any devices, hardware, equipment, third party software, and all internet browsers and connections required to access or use the University Interface as such requirements are specified herein. Human Capital shall not be responsible for the contents of any linked external websites.
    8. Compliance with Law. Client will use the University Interface in accordance with all applicable laws and government regulations. Certain University Interface may provide Client with usage metrics or other analytics regarding Client’s Users and their applicable use of Human Capital’s Interface. Client is solely responsible for providing any required notices related to such use and for other ensuring its use of the University Interface, including any such features, is in accordance with applicable law.
    9. Restrictions; Limitations. Without limitation of the foregoing, Client will not (and will ensure that its Users do not): (a) modify, disassemble, decompile, reverse engineer, or do anything that might discover source code or bypass or circumvent measures employed to prevent or limit access to any part of the University Interface; (b) use or access the University Interface to build a competitive product or service; (c) use any data mining, robots, or similar data gathering or extraction methods designed to scrape or extract data from the University Interface; (d) download (other than page caching) any portion of or information contained within the University Interface other than as expressly permitted by Human Capital; (e) perform or disclose any benchmarking or performance testing of the University Interface; (f) sell, license, rent, lease or assign the University Interface or distribute, display, host, disclose, outsource or otherwise commercially exploit the University Interface as part of a product or service provided to any third party; (g) use the Client Interface for any unlawful purposes or for promotion of illegal activities; or (h) use the University Interface other than for its intended use. This list is not exhaustive. Client and all of its Users agree to comply with all local laws regarding online conduct and acceptable content. Client may access the University Interface only through interfaces and protocols provided or authorized by Human Capital and may not copy, co-brand, frame or mirror any part or content of the University Interface.

  4. OWNERSHIP RIGHTS

    1. Content Ownership. Client retains full ownership of its Content, but Client hereby grant Human Capital a worldwide, non-exclusive, irrevocable, transferable, royalty-free license (with the right to sublicense) for the Term (except as otherwise specified herein), to use, copy, reproduce, process, adapt, modify, publish, transmit, edit, translate, make derivatives, display and distribute any and all Content in order to: (a) provide the University Interface to Client; (b) create, improve, market, or provide support for Human Capital and its products, processes, and/or services; (c) compile and/or aggregate analytical or other usage patterns related to use of the University Interface; and (d) otherwise aggregate and analyze the Content, provided that in the cases of (b)-(d) the Content is used in a form that does not identify Client. This license also includes the right to modify or adapt Content as part of the University Interface in order to transmit, display, or distribute it over computer networks and in various media and/or make changes to Content to conform and adapt that Content to any requirements or limitations of any networks, devices, services, or media. Client also extends these rights to the third-party services with whom Human Capital works to provide the services contemplated hereunder. Client represents and warrants that it has the rights and authority necessary to grant the rights granted herein to any Content that it submits, including all necessary rights to upload its Content for use in accordance with this Agreement. 
    2. Ownership by Human Capital. Human Capital owns and retains all right, title, and interest in and to the University Interface, any Human Capital software or technology utilized, created, or reduced to practice in the provision of the University Interface, the Human Capital Interface, and all Intellectual Property Rights contained therein or related thereto, including without limitation all copies, translations, adaptations, modifications, derivations, and enhancements thereof (the “Human Capital Materials”). Client acknowledges that (a) no right or interest in the Human Capital Materials is conveyed other than the limited licenses granted herein, (b) the Human Capital Materials are protected by copyright and other intellectual property laws, and (c) the Human Capital Materials embody valuable confidential and secret information of Human Capital or its licensors, the development of which required the expenditure of considerable time and money. Client will not take or encourage any action during or after the Term that will in any way impair the rights of Human Capital in and to the Human Capital Materials, any proprietary software or technology of Human Capital, or any Intellectual Property Rights in and to any of the foregoing. “Intellectual Property Rights” means all patents, copyrights, moral rights, trademarks, trade names, service marks, trade dress, trade secrets and any other form of intellectual property rights now or hereafter recognized in any jurisdiction, including applications and registrations for any of the foregoing.
    3. Restrictions. Client will not: (a) alter, or permit the alteration of, the Human Capital Materials, or any component thereof, (b) copy, or permit the copying of, the Human Capital Materials or any component thereof, (c) take any action that would foreseeably jeopardize Human Capital’s or its licensors’ proprietary rights in the Human Capital Materials, (d) seek to acquire any ownership interest in or to the Human Capital Materials or any component thereof, (e) attempt to derive source or object code from the Human Capital Materials or any component thereof, (f) access the University Interface to build or create a derivative, competitive, or similar product or service, or copy any ideas, features, functions, or graphics of the University Interface, or (g) license, sell, transfer, lease, or disclose the Human Capital Materials, other than as expressly provided in Section 4.5 below. 
    4. Feedback. Client may have the option to provide Human Capital with feedback, suggestions, or comments regarding the University Interface. From time to time, Human Capital may request that Client provide feedback in a specified form, manner and/or frequency, provided that all such feedback will be at Client’s discretion. Without limiting the generality of the foregoing, Client will use commercially reasonable efforts to submit notice of any and all hardware or software bugs, defects, or other issues with the features, functionality, or performance of the University Interface to Human Capital promptly upon occurrence. Any such notices will be deemed feedback. Client hereby grants Human Capital a non-exclusive, perpetual, and irrevocable license to use and exploit such feedback for any purpose, including incorporating such feedback within its products and services, without providing payment or any other consideration to Client. Human Capital has no confidentiality or other obligations with respect to feedback.

  5. PUBLICITY.

    Client agrees that the HC Parties may issue a press release or other promotional information upon successful completion of an engagement, referencing both Client and a placed Candidate. Additionally, the HC Parties may publicly refer to Client as a client of the company, including, without limitation, any verbal statements, written materials, or use of Client’s logo for purposes of, without limitation, press interviews, promotional activities, fundraising activities, website marketing, and reference calls with prospective clients and employees.

  6. NON-SOLICITATION.

    During the Term (defined below) and for a period of one (1) year thereafter, Client agrees that it will not, without Human Capital’s written consent, directly or indirectly employ, solicit, engage, accept, or retain the services of any current or former personnel of Human Capital. In the event Client breaches this provision, it shall be liable to Human Capital for an amount (that Client agree is not to be construed as punitive but compensatory in nature) equal to one hundred percent (100%) of the annual compensation of the relevant personnel in his or her new position, plus all actual and reasonable fees and expenses incurred by Human Capital in hiring replacement personnel including but not limited to recruiters’ fees and reasonable attorneys’ fees incident thereto. For the avoidance of doubt, this Section 6 shall apply to each parent, and subsidiary, and affiliate of Human Capital.

  7. FEES, PAYMENT, AND TAXES

    1. Subscriptions. The University Interface is offered on a subscription basis (each, a “Subscription”) on an annual or other periodic basis as set forth in the applicable SSA or Order Form, starting from the date that Client first gets access to the applicable University Interface (the “Subscription Period”). The University Interface is offered for use only in accordance with the Approved Use.
    2. Fees; Invoices. Client will pay fees for the University Interface provided by Human Capital as specified in the applicable SSA or Order Form (“Fees”). Human Capital reserves the right to increase the Fees for a subsequent Subscription Period, as indicated on the SSA or Order Form for such Subscription Period. Client will only dispute invoices in good faith. To be eligible for an invoice adjustment, Client must provide a written description of the disputed portion of the invoice within 30 days of receipt, otherwise Client will waive the right to dispute any invoice.
    3. Taxes. All Fees payable by Client are exclusive of taxes and similar assessments. Client is responsible for all sales and use taxes, excise taxes, goods and services taxes, consumption taxes, value-added taxes, and any other similar taxes, duties, and charges of any kind imposed by any national, federal, state, or local governmental or regulatory authority on any amounts payable by Client hereunder, other than any taxes imposed on Human Capital’s income. Client shall indemnify Human Capital for any taxes imposed upon Human Capital for which Client is responsible.

  8. TERM AND TERMINATION

    1. Term. Unless terminated earlier pursuant to any of the Agreement’s express provisions, the term of this Agreement will commence on the Effective Date and will continue until the Subscription Period under the applicable SSA or Order Form has expired (“Term”). Human Capital and Client may agree on additional periods thereafter by executing additional SSAs or Order Forms.
    2. Termination. Either Party may immediately terminate this Agreement by providing prior written notice of its intent to terminate. In the event of any termination: (a) all of Client’s rights under the Agreement will immediately terminate and Client will immediately cease any access or use of the University Interface; (b) if Human Capital terminates the Agreement for material breach by Client, then Client will remain responsible for the remaining balance of the Fees in Client’s applicable SSA or Order Form(s) and Client must pay within 30 days all such amounts plus related taxes and expenses; (c) Sections 4, 5, 6, 7, 8, 9, 10, 11, 12.4, and 12.5 of this Agreement, together with any other provisions that by their nature are intended to survive, will continue to apply in accordance with their terms. If Client terminates for material breach by Human Capital or Human Capital terminates, then Human Capital will refund to Client within thirty (30) days of termination any unused pre-paid Fees on a pro rata basis for the remaining Term following the month in which the termination is effective.
    3. Suspension, Limitation, or Termination. Human Capital may, in its sole discretion, immediately stop, suspend, or modify the University Interface at any time without prior notice, in any circumstances Human Capital reasonably determine to be necessary, including but not limited: (i) if Client violates a material restriction or obligation in the Agreement, including where payment of Fees are not paid in a timely manner; (ii) to perform essential repairs/maintenance to the Service; or (iii) if in Human Capital’s judgment, the University Interface or any component thereof is about to suffer a material threat to security or functionality. Human Capital will provide advance notice to Client of any such suspension in Human Capital’s reasonable discretion based on the nature of the circumstances giving rise to the suspension unless Human Capital determines that prior notice is not feasible. Human Capital will use reasonable efforts to re-establish University Interface promptly after Human Capital determines, in its reasonable discretion, that the situation giving rise to the suspension has been cured. Human Capital may terminate University Interface if any of the foregoing causes of suspension are not cured within 30 days after Human Capital’s initial notice thereof. Any suspension or termination by Human Capital under this Section 8.3 will not excuse Client from its obligation to make payment(s) under the Agreement if the suspension or termination arises from Client’s breach of the Agreement.

  9. PRIVACY; DATA PROTECTION.

    Human Capital may collect, use, and share personally identifiable information and non-personally identifiable information as described in our Privacy Policy. Each Party shall comply with its obligations under applicable data protection regulations regarding its activities under this Agreement. Client (as data controller) is responsible for assessing data collection legitimacy, processing, and use of the protection of Candidate’s rights. To the extent that Human Capital (as data processor) processes personal data disclosed by Client, Human Capital will act only on instructions from Client regarding processing of that personal data.

  10. INDEMNITY; LIABILITY

    1. By Client. Client will defend, indemnify, and hold harmless Human Capital and its affiliates, independent contractors, and service providers, and each of their respective members, directors, officers, employees, and agents (the “HC Parties”) from and against all claims, damages, losses, liabilities, costs, and expenses (including reasonable attorneys’ fees) relating to any third party (including Users) claim to the extent arising out of: (a) Client’s breach of this Agreement or applicable law; (b) any claims from Client’s Users; (c) any Client Content; or (d) Client’s hiring and/or employment activities and/or decisions. If Human Capital is obligated to respond to a third party subpoena or other compulsory legal order or process in connection with either of the foregoing, Client will also reimburse Human Capital for reasonable attorneys’ fees, as well as the time and materials spent by Human Capital’s employees and contractors responding to the third party subpoena or other compulsory legal order or process. For any claims under this Section 10.1, Client shall obtain Human Capital’s written consent prior to (i) selecting and retaining counsel to defend against any claim under this Section 10.1, and (ii) agreeing to any settlement. Human Capital may also assume control of the defense and settlement of any claim subject to this Section 10.1 at any time.
    2. By Human Capital. Human Capital will defend any third party suit against Client claiming that the University Interface as used in accordance with this Agreement infringes a valid United States patent or copyright existing as of the Effective Date and will indemnify Client for any final judgment against Client or settlement approved by Human Capital resulting from such third party suit provided Client: (i) gives Human Capital prompt notice when Client becomes aware of the claim, including the nature of the claim and the amount of damages and nature of other relief sought; (ii) gives complete authority and assistance (at Human Capital’s expense) for disposition of the claim; and (iii) makes no prejudicial admission about the claim. Human Capital has no liability for any: (i) use of the University Interface other than in accordance with this Agreement; (ii) claims resulting from combining the University Interface with a product or software not supplied by Human Capital; (iii) modification or customizations of the University Interface by anyone other than Human Capital; (iv) compromise or settlement made without written Human Capital’s consent; (v) claims resulting from Client’s failure to install updates, upgrades, error corrections, changes, or revisions; or (vi) Third Party Services. If a claim is made or is likely, Human Capital may, at its option and expense: (i) obtain the right for Client to continue using the University Interface in accordance with the Applicable Terms; (ii) substitute the allegedly infringing component of the University Interface with an equivalent, non-infringing component; or (iii) modify the University Interface to be non-infringing. If options (i) through (iii) are not commercially reasonable as determined by Human Capital, Human Capital may terminate this Agreement upon notice to Client and credit Client any prepaid fees paid for the University Interface but not yet earned by Human Capital. THIS SECTION 10.2 STATES HUMAN CAPITAL’S ENTIRE LIABILITY AND CLIENT’S SOLE RECOURSE AND EXCLUSIVE REMEDIES WITH RESPECT TO INFRINGEMENT. ALL WARRANTIES AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS, WHETHER STATUTORY, EXPRESS OR IMPLIED, ARE DISCLAIMED. “Third Party Services” means software or services acquired or licensed by Human Capital from a third party that is included in the University Interface or otherwise made available to Client or its Users.
    3. Assumption of Risk; Limitation of Liability. Client is solely responsible for determining whether and on which terms to hire potential Candidates in its hiring decisions and for its hiring decisions. Client assumes all risks arising from Client’s hiring and employment activities and decisions. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, (A) NEITHER PARTY WILL BE LIABLE (WHETHER IN CONTRACT OR IN TORT) UNDER ANY CIRCUMSTANCES FOR ANY INDIRECT, CONSEQUENTIAL (INCLUDING LOST OPPORTUNITIES OR PROFITS), OR PUNITIVE DAMAGES, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND (B) THE AGGREGATE LIABILITY OF EACH PARTY ARISING FROM OR RELATING TO THIS AGREEMENT, WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), WILL NOT EXCEED THE FEES PAID BY CLIENT TO HUMAN CAPITAL FOR UNIVERSITY INTERFACE UNDER THE SSA OR ORDER FORMS ENTERED INTO UNDER THIS AGREEMENT IN THE PRECEDING 12 MONTHS. THE ABOVE DISCLAIMERS AND LIMITATIONS OF LIABILITY SHALL NOT APPLY TO ANY DAMAGES ARISING FROM (I) EITHER PARTY’S BREACH OF ANY CONFIDENTIALITY TERMS SET FORTH HEREIN, (II) AMOUNTS OWED PURSUANT TO EITHER PARTY’S INDEMNIFICATION OBLIGATIONS HEREUNDER, (III) EITHER PARTY’S BREACH OF ANY INTELLECTUAL PROPERTY TERMS SET FORTH HEREIN, OR (IV) EITHER PARTY’S GROSS NEGLIGENCE, WILLFUL MISCONDUCT, OR FRAUD.

  11. LIMITED WARRANTIES AND REMEDIES

    1. Warranties. Human Capital represents and warrants that: (a) the University Interface will conform in all material respects with this Agreement when operated in accordance with this Agreement and Approved Use; and (b) it will provide Support Services with commercially reasonable care and skill and in material compliance with applicable laws. The warranties specified in this warranty clause will not be effective and Human Capital will have no obligation or liability to Client if: (a) University Interface are not used according to this Agreement and Approved Use; (b) Client’s computer hardware or network malfunctions; (c) Client uses University Interface with any computer hardware or software not approved or recommended by Human Capital as compatible with Service in this Agreement; or (d) the warranty claim is unrelated to a defect in University Interface.
    2. Remedy. In the event of a breach of the warranty in Section 11.1, Client must give Human Capital notice of a material defect or nonconformance within 30 days from when Client becomes aware of such defect or nonconformance. Human Capital’s sole obligation with respect to a breach of the warranties in Section 11.1 will be to use commercially reasonable efforts to correct any nonconformance of the University Interface.
    3. DISCLAIMER. Client is solely responsible for determining whether and on which terms to hire potential Candidates in its hiring decisions and for its hiring decisions. Client assumes all risks arising from Client’s hiring and employment activities and decisions. Client releases and agrees to defend, indemnify, and hold Human Capital harmless from and against all third party claims asserted against Human Capital in connection with this Agreement and any judgment or liability imposed against Human Capital pursuant to such claims, to the extent such claims arise out of Client’s hiring and/or employment activities and/or decisions. EXCEPT AS SET FORTH IN SECTION 11.1: (A) TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE UNIVERSITY INTERFACE ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, AND CLIENT HEREBY WAIVES, RELEASES, AND DISCLAIMS, ALL OTHER WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE REGARDING THE UNIVERSITY INTERFACE OR RESULT INCLUDING ANY WARRANTY THAT THE UNIVERSITY INTERFACE OR RESULT WILL BE UNINTERRUPTED, ERROR FREE OR FREE OF HARMFUL COMPONENTS, OR THAT ANY MATERIALS OR DATA PROVIDED BY CLIENT OR A THIRD PARTY WILL BE SECURE OR NOT OTHERWISE LOST OR DAMAGED; AND (B) EXCEPT TO THE EXTENT PROHIBITED BY LAW, HUMAN CAPITAL AND ITS SUPPLIERS DISCLAIM ALL WARRANTIES, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR QUIET ENJOYMENT, AND ANY WARRANTIES ARISING OUT OF ANY COURSE OF DEALING OR USAGE OF TRADE.

  12. MISCELLANEOUS

    1. Independent Contractor. This Agreement does not create any agency, partnership, or joint venture between the Parties. This Agreement does not create any third-party beneficiary rights in any individual or entity that is not a Party to this Agreement unless it expressly states that it does.
    2. Assignment. Neither Party may assign or transfer this Agreement or any of its rights or obligations hereunder without the other Party’s prior written consent, provided that Human Capital may assign this Agreement to an affiliate under common control without the Client’s consent. This Agreement is binding upon and inures to the benefit of the Parties and their respective successors and permitted assigns.
    3. Force Majeure. Neither Party will be liable for, or be considered to be in, breach of or default under this Agreement on account of any delay or failure to perform as required by this Agreement as a result of any cause or condition beyond such Party’s reasonable control (including, without limitation, any act or failure to act by the other Party). This paragraph will not apply to any payment obligation of either Party.
    4. Governing Law; Enforcement. This Agreement shall be governed by and construed in accordance with the laws of the State of California, without regard to principles of conflicts of law. In the event that Human Capital initiates litigation to enforce its rights under this Agreement and is the prevailing Party in such litigation, Human Capital shall be entitled to costs of suit and reasonable attorney fees incurred by it in connection with such litigation. Client acknowledge that monetary damages would not be an adequate remedy for any breach of Section 4 and that Human Capital may, in addition to all other remedies available at law or in equity, obtain immediate injunctive or other equitable relief, without the necessity of posting bond or other security, to remedy or prevent any breach or threatened breach of such section.
    5. Information. Client acknowledges and agrees that the HC Parties operate within a larger organizational structure and information learned from or about Client may be shared within the organization between the HC Parties, namely with TCM Group Holdings, LLC dba Human Capital Management, an affiliate investment management firm.
    6. Agreement Modification. Human Capital may revise this Agreement at any time without notice. By using the Client Interface, Client is agreeing to be bound by the then-current version of this Agreement. If Human Capital makes any substantial changes, it may notify Client by sending an e-mail to the last e-mail address Client provided to Human Capital (if any) and/or by prominently posting notice of the changes on the Client Interface. Any changes to this Agreement will be effective immediately for new Users and upon the date stated in the notice for existing Users. Continued use of the Client Interface following notice of such changes will indicate Client’s acknowledgement of such changes and agreement to be bound by the terms and conditions of such changes. Client is responsible for providing Human Capital with its most current e-mail address. In the event that the last e-mail address that Client has provided Human Capital is not valid, or for any reason is not capable of delivering to Human Capital the notice described above, its dispatch of the e-mail containing such notice will nonetheless constitute effective notice of the changes described in the notice.
    7. Entire Agreement. This Agreement, together with any SSA or Order Form, constitutes the complete and exclusive statement of all mutual understandings between the Parties with respect to the subject matter hereof, superseding all prior or contemporaneous proposals, communications and understandings, oral or written. Any preprinted terms appearing in any Client Order Form or similar document that differ from, are inconsistent with, or are in addition to the terms of this Agreement, shall be void. If a conflict occurs between this Agreement and any SSA, such SSA will control unless required by applicable law. If a conflict occurs between this Agreement and any Order Form, this Agreement will control unless (a) an Order Form expressly identifies a specific provisions of this Agreement that is to be modified and the manner in which it is to be modified or (b) otherwise required by applicable law. Section headings contained in this Agreement are inserted only for convenience of reference, and shall not be construed as a part of this Agreement or as altering or affecting in any way the meaning or interpretation of any term or provision hereof. If any provision or part of a provision of this Addendum is determined to be illegal, invalid, or unenforceable, the validity of the remaining provisions will not be affected and will be enforced to the fullest extent of applicable law. Neither Party will be treated as having waived any rights by not exercising (or delaying the exercise of) any rights under this Agreement. Each Party has reviewed this Agreement carefully and has had the opportunity to consult counsel; accordingly, the principle of construction that any ambiguities are to be resolved against the drafting Party will not be employed in the interpretation of this Agreement.
    8. Notices. Notices under this Agreement are sufficient if given in writing and in English to: (a) in the case of notices to Client, Client’s email or postal address set out in the Order Form; and (b) in the case of notices to Human Capital, to ba@human.capital and laura@human.capital, or as otherwise notified to Client. Notice will be treated as given on receipt, as verified by written or automated receipt or by electronic log (as applicable).
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