June 1, 2022
This Agreement (“Agreement”) is made by and between Knack, Inc. (“Company”) and Customer.
Company has developed a breakthrough technology (“Service”) that includes mobile video games through which Company collects data and identifies behavioral attributes that may be relevant to talent management, including sourcing, screening, recruiting, hiring, team building and collaboration, mobility and promotion, leadership development, retention, and training activities that an employer may consider or undertake with respect to job applicants and/or existing workforce. Customer wishes to obtain access to the generally available version of the Service for use in accordance with the terms set forth in this Agreement. Now, therefore, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows:
Company provides Customer access to the Service as of Customer’s online sign-up to the Service.
Company grants to Customer a limited, non-exclusive, non-transferable, non-sublicensable license to access and use the Service for its own use with Authorized Users in the normal course of business. “Authorized Users” means Customer employees and jobseekers.
Company will provide Customer with support at the contact information available at https://www.knackapp.com. Except as expressly set forth herein, warranty and support services will not be provided by Company hereunder.
Customer shall not, directly or indirectly, nor permit any Customer user to: (i) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code or underlying ideas or algorithms of the Service; (ii) modify, translate, or create derivative works based on the Service; (iii) rent, lease, distribute, sell, resell, assign, or otherwise transfer its rights to use the Service; (iv) use the Service for timesharing or service bureau purposes or otherwise for the benefit of a third party; or (v) remove proprietary notices from the Service or any other Company materials furnished or made available.
Customer represents, warrants and covenants that Customer is in compliance with and will comply with all applicable privacy and data protection laws and regulations with respect to any personal data or personally identifiable information that Customer or any Authorized User may provide to Company directly or through the Service.
Customer acknowledges that as between Company and Customer all right, title and interest in the Service and any other Company materials furnished or made available, and all modifications and enhancements thereof, including all rights under copyright and patent and other intellectual property rights, belong to and are retained solely by Company or Company’s licensors and providers. There are no implied rights. Any aggregated or anonymized data and any information collected and/or compiled by Company hereunder, and the results of any manipulation, analysis, calculations, or processing of such data (collectively, “Aggregate Data”) is owned solely and exclusively by Company.
Customer shall have a limited, revocable license to use customer data through the Service during the Service Period. Customer shall have no other right in or to the Service or customer data.
In the case where the Service is made available to Customer through a third-party hosting services provider, Customer is responsible for obtaining and maintaining all computer hardware, software and communications equipment needed to access and use the Service, and for paying all third-party fees and access charges.
Customer shall be solely responsible for its actions and the actions of its employees and personnel while using the Service. Customer acknowledges and agrees (1) that Customer assumes the risk for use of the Service; (2) that Customer is responsible for selecting appropriate remediation for, and resolving, any issues found on Customer’s network or in Customer’s web traffic through the Service; and (3) that Company is not liable for, or responsible to, remediate any issues found on Customer’s network or in Customer’s web traffic through the Service. Customer agrees: (a) to abide by all local, state, and federal and national laws and regulations applicable to Customers use of the Service; (b) not to upload or distribute in any way content that contain viruses, corrupted files, or other similar software or programs that may damage the operation of the Service or anothers computer or mobile device; (c) not to use the Service for illegal, fraudulent, unethical or inappropriate purposes; and (d) not to interfere or disrupt networks connected to the Service or interfere with others’ ability to access or use the Service.
Customer shall promptly notify Company of defects or problems in the Service or its use or operation.
Company or Customer may terminate this Agreement immediately by disabling an account or by email notice (firstname.lastname@example.org) of a material breach. Any willful unauthorized use, copying, disclosure, distribution or sublicensing of the Service or documentation or any related methods, algorithms, techniques, or processes will be deemed a material breach of this Agreement that cannot be cured.
Company shall not be liable to Customer or any third party for suspension or termination of Customer’s access to, or right to use, the Service. Sections 5 (Security & Privacy), 6 (Ownership), 8 (Termination), 9 (Confidentiality), 10 (Warranty Disclaimer), 12 (Limitation of Liability) and 13 (General) shall survive its expiration or termination for any reason.
The parties agree to maintain in confidence non-public information of the other party, whether written or otherwise, disclosed by the other party in the course of performance of this Agreement that a party knows or reasonably should know is considered confidential by the disclosing party (“Confidential Information”). The parties agree that Confidential Information includes the sequence and structure of the Service. The receiving party shall not disclose, use, transmit, inform or make available to any entity, person or body any of the Confidential Information, except as a necessary part of performing its obligations hereunder, and shall take reasonably necessary and appropriate actions to preserve and protect the Confidential Information and the parties’ respective rights therein, at all times exercising at least a reasonable level of care. The parties agree to restrict access to Confidential Information of the other party to employees or agents who require access in order to perform hereunder, and, except as otherwise provided, neither party shall make Confidential Information available to any other person or entity without prior written consent of the other party.
Confidential Information shall not include information that is (i) already known to the receiving party at the time of the disclosure; (ii) publicly known at the time of disclosure or becomes publicly known through no wrongful act or failure of the receiving party; (iii) subsequently disclosed to the receiving party on a non-confidential basis by a third party not having a confidential relationship with the other party that rightfully acquired such information; or (iv) communicated to a third party by the receiving party with the express written consent of the other party. A disclosure that is legally compelled to be disclosed pursuant to a subpoena, summons, order or judicial or governmental process shall not be considered a breach; provided the receiving party provides prompt notice of such subpoena, order, or the like to the other party so that such party has an opportunity to seek protective order or oppose disclosure.
The Service is under development and testing by the Company and it may not operate properly. All use of the Service is at Customer’s own risk. CUSTOMER ACKNOWLEDGES THAT ALL COMPONENTS AND ASPECTS OF THE SERVICE PROVIDED UNDER THIS AGREEMENT ARE PROVIDED ON AN “AS IS” BASIS. SUBJECT TO ANY STATUTORY WARRANTIES THAT CANNOT BE EXCLUDED, COMPANY MAKES NO WARRANTIES OR CONDITIONS EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION, THE WARRANTY OF NON-INFRINGEMENT AND THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, REGARDING THE SERVICE. COMPANY DOES NOT WARRANT THAT IT WILL DEVELOP OR MAKE AVAILABLE ENHANCEMENTS OR MODIFICATIONS OF THE SERVICE.
Company recommends that Customer does not use the Services as a pass/no-pass screen for any employment decision or action. Customer should use the Service as incremental information as part of a complete talent process. Company has not and does not represent or warrant that Customer’s use of the Service is in compliance with any local, state, federal or national laws in or outside the US regarding use of employment tests or any other employment selection procedures. Although Company has conducted aggregated studies that provide information regarding the general link between an individual’s performance on the Service and other skills and abilities, Company does not represent or warrant that the Service has been professionally validated for Customer’s use on its workforce. Similarly, although Company has conducted aggregated studies reflecting the impact of the Service on different demographic groups, the Company makes no representations, guarantees or warranties regarding the impact of the Service on different demographic groups when used by Customer.
IN NO EVENT SHALL COMPANY’S AGGREGATE LIABILITY FOR DIRECT DAMAGES, IF ANY, ARISING OUT OF OR IN ANY WAY RELATED TO THIS AGREEMENT EXCEED AN AMOUNT EQUAL TO THE SERVICE FEE, WITHOUT REGARD TO WHETHER SUCH CLAIM IS BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE.
IN NO EVENT SHALL COMPANY BE LIABLE FOR ANY INDIRECT, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, LOSS OF DATA OR LOSS OF PROFITS, WITHOUT REGARD TO WHETHER SUCH CLAIM IS BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
The essential purpose of Section 12 is to limit the potential liability of the parties under this Agreement. The parties acknowledge the limitations set forth in this Section 12 are intricate to the amount of consideration levied in connection with the Service and that, were Company to assume any further liability, such consideration would, out of necessity, have been set much higher.
All notices to a party shall be in writing and sent by email at the address specified below, and shall be deemed to have been duly given when transmitted. This Agreement shall inure to the benefit of each party’s successors and permitted assigns. This Agreement, together with all exhibits, constitutes the entire agreement between the parties and supersedes all prior or contemporaneous agreements, oral or written statements and understandings between the parties. Customer acknowledges and agrees that the Service and technology subject to this Agreement are subject to the export and reexport control laws and regulations of the United States and any applicable jurisdiction, including but not limited to the Export Administration Regulations (“EAR”), and sanctions regimes of the U.S. Department of Treasury, Office of Foreign Asset Controls. Customer will comply with these laws and regulations. Customer shall not, without prior U.S. government authorization, export, re-export, or transfer any goods, software, or technology subject to this Agreement, either directly or indirectly, to any country subject to a U.S. trade embargo (currently Cuba, Iran, North Korea, Sudan, and Syria) or to any resident or national of any such country, or to any person or entity listed on the “Entity List” or “Denied Persons List” maintained by the U.S. Department of Commerce or the list of “Specifically Designated Nationals and Blocked Persons" maintained by the U.S. Department of Treasury. The Service is Commercial Items as that term is defined and used in the Federal Acquisition Regulation, 48 C.F.R. 2.101 and 48 C.F.R. Part 12, and is comprised of "commercial computer software" and "commercial computer software documentation". If obtained by or on behalf of a civilian agency, the U.S. Government obtains this commercial computer software and/or commercial computer software documentation subject to the terms of this Agreement as specified in 48 C.F.R. 12.212 (Computer Software) and 12.211 (Technical Data). If obtained by or on behalf of an agency or entity of the Department of Defense ("DoD"), the U.S. Government licensee obtains this commercial computer software and/or commercial computer software documentation subject to the terms of this Agreement as specified in 48 C.F.R. 227.7202-3 and 48 C.F.R. 227.7202-4 of the DoD FAR Supplement ("DFARS") and its successors, and consistent with 48 C.F.R. 227.7202-1. This U.S. Government Rights clause is in lieu of, and supersedes, any other FAR, DFARS, or other clause or provision that addresses Government rights in computer software or computer software documentation. This Agreement may be amended or superseded only by a written instrument signed by both parties. This Agreement shall be governed by the laws of the state of California, excluding its conflict of laws rules. The parties agree that the United Nations Convention for the International Sale of Goods is excluded in its entirety from this Agreement. Any provision of this Agreement held to be unenforceable shall not affect the enforceability of any other provisions of this Agreement. Neither party shall be in default if its failure to perform any obligation under this Agreement is caused solely by supervening conditions beyond that party’s reasonable control, including acts of God, civil commotion, war, strikes, labor disputes, third party Internet service interruptions or slowdowns, vandalism or “hacker” attacks, acts of terrorism or governmental demands or requirements.