Term & Services

Term & Services

1.Agreement.

These Terms of Agreement, including the Order (collectively the "Agreement"), is between the ("Customer") and JMH Associates, LLC. ("JMH") and shall govern the services provided by JMH.

2.Term and Termination.

This term of this Agreement shall commence on the date Customer registers and makes payment for access to SourceLync shall continue for one year unless earlier terminated in accordance with the provisions of this Agreement. If Customer materially breaches any provision of this Agreement, upon notice to Customer, JMH may immediately suspend all Customer passwords and access codes until the breach is cured and if applicable, immediately remove any postings that violate any SourceLync Web Site (each a “Site”) terms of use. Either party may immediately terminate this Agreement if the other party materially breaches this Agreement which breach is not cured within ten (10) days after receipt of written notice thereof. The terms of Sections 2, 3, 4, 8 and 9 shall survive any expiration or termination of this Agreement.

3.Payment.

All amounts payable by Customer for the Services ("Fees") are due in full upon registration. Customer will be responsible for the payment of any present or future sales, use, excise or other similar tax (excluding taxes based on JMH’s net income) applicable to the Services. Fees paid for Services are non-refundable, except in the case of JMH’s uncured material breach, in which case JMH will refund to Customer pre-paid amounts for Services not rendered as of the effective date of such termination. JMH may assign to a third party the right to collect and receive payment. JMH may set off any amount received by JMH from Customer against any amount which is due and payable under this Agreement. If Customer requests credit or JMH cannot authenticate Customer’s identity, then Customer authorizes JMH to obtain information regarding Customer from trade and bank references, external credit reporting sources, consumer credit agencies and other credit sources as may be reasonably necessary.

4.Confidentiality.

Each party will keep the specific terms of this Agreement confidential and not disclose them to any third party (other than to its professional advisors) without the other party’s prior written consent, except as required by law.

5.Ownership.

 As between JMH and Customer, any intellectual property, including but not limited to job postings, logos, advertisements and/or any other content provided by Customer (“Customer Content”) for placement on any JMH Site and all other proprietary rights therein are and shall at all times remain Customer’s property. Customer grants to JMH and its affiliates a royalty-free, fully paid up, non-exclusive and worldwide license to use, copy, reproduce, publish, perform, display, and distribute such Customer Content (in whole or in part) solely in connection with the Services provided during the Term of this Agreement. JMH shall retain all right, title and interest, including all intellectual property rights, to and in:

(i) any proprietary technology and software contained or incorporated in or part of the Sites and

(ii) the content (excluding Customer Content) on or part of the Sites (including without limitation all resumes), and all elements which are a part of or incorporated in (or constitute a collection or compilation of) any of the foregoing.

6.Terms of Use.

(a) Customer shall use all Services provided hereunder solely for its own internal business purposes, including if applicable the sourcing of candidates for clients of Customer, and shall not resell or transfer to any third party any Service.
(b)Customer shall comply with the terms of use of each Site accessed by Customer. Terms of use of each Site are available from the applicable Site’s homepage through the link "Terms of Use." To the extent there is any inconsistency between any accessed Site’s terms of use described in this paragraph and the terms of this Agreement, the terms of this Agreement will control.

7.Limited Warranty.

JMH warrants that JMH will perform Services in a professional manner in accordance with prevailing industry standards. EXCEPT FOR THE FOREGOING, JMH MAKES NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT WITH RESPECT TO ITS SERVICES OR THE SITES, OR THE FUNCTIONALITY, PERFORMANCE OR RESULTS OF USE OF ITS SERVICES OR THE SITES.

8.Indemnification.

Each party (each, in such capacity, the “Indemnifying Party”) shall indemnify the other party, its affiliates and their respective officers, directors, employees and agents (each, in such capacity, an “Indemnified Party” and, collectively, the “Indemnified Parties”), from and against any third party claims, actions or demands, including without limitation reasonable legal and accounting fees, arising or resulting from:

(a) infringement or alleged infringement of any patent, copyright, trade secret or other proprietary right of any third party, arising out of or relating to (i) in the case of JMH, the delivery of the Services and (ii) in the case of the Customer, the provision of any material to any Site by or on behalf of the Customer and

(b) in the case of JMH, gross negligence or willful misconduct arising out of or relating to the delivery of the Services and (c) in the case of the Customer, gross negligence or willful misconduct arising out of or related to use of the Services. The Indemnifying Party’s obligations hereunder will only apply if the Indemnified Party notifies the Indemnifying Party promptly in writing as to any such claim, action or demand, provided, however, that the Indemnifying Party's indemnity obligations shall not cease unless the failure to so notify materially prejudices its ability to defend the claim.

9.Limitation of Liability.

NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT EXCEPT FOR OBLIGATIONS OF AN INDEMNIFYING PARTY UNDER SECTION 8 OR BREACHES OF SECTIONS 6(a) OR 10, BUT WITHOUT IN ANY WAY LIMITING CUSTOMER’S PAYMENT OBLIGATIONS UNDER THIS AGREEMENT,

(A) NO PARTY WILL BE LIABLE TO ANY OTHER PARTY (NOR TO ANY PERSON CLAIMING RIGHTS DERIVED FROM THE OTHER PARTY’S RIGHTS) FOR INCIDENTAL, INDIRECT, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES OF ANY KIND - INCLUDING LOST REVENUES OR PROFITS, LOSS OF BUSINESS OR LOSS OF DATA - ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE SERVICES PROVIDED HEREUNDER (INCLUDING WITHOUT LIMITATION AS A RESULT OF ANY BREACH OF ANY WARRANTY OR OTHER TERM OF THIS AGREEMENT), REGARDLESS OF WHETHER THE PARTY LIABLE OR ALLEGEDLY LIABLE WAS ADVISED, HAD OTHER REASON TO KNOW, OR IN FACT KNEW OF THE POSSIBILITY THEREOF, AND

(B) EACH PARTY’S MAXIMUM LIABILITY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, ANY PRODUCT, THE SERVICES PROVIDED HEREUNDER OR ANY SITE, REGARDLESS OF THE CAUSE OF ACTION (WHETHER IN CONTRACT, TORT, BREACH OF WARRANTY OR OTHERWISE), WILL NOT EXCEED THE AMOUNT PAID OR PAYABLE BY CUSTOMER TO JMH DURING THE TWELVE MONTHS PRECEDING THE CLAIM FOR DAMAGES. Notwithstanding anything to the contrary contained herein, Customer shall not use and shall not cause a third party to use any engine, software, tool, agent or other device or mechanism (including without limitation browsers, spiders, avatars or intelligent agents) to navigate or search the Sites other than the search engine and search agents available from JMH on the Sites, except for generally available third party web browsers (e.g., Internet Explorer, Firefox or Safari). Customer shall not and shall not cause a third party to decipher, decompile, disassemble or reverse engineer any of the software comprising or in any way making up a part of any Site. Customer’s access of JMH’s Resume Database via a Resume Aggregator or an ATS software product user interface shall not be deemed a violation of this Section 10; provided such Resume Aggregator or ATS has been approved by JMH and is part of the JMH Resume Aggregator Alliance Program or JMH ATS Alliance Program, as applicable. JMH will have no liability as regards such Resume Aggregator or ATS software product.

Miscellaneous.

Each party agrees with respect to its use or provision of the Services to comply with all applicable local, national and international laws, regulations and executive orders, including but not limited to those relating to labor and employment (including but not limited to anti-discrimination, affirmative action and in the case of U.S Services, the U.S. Equal Employment Opportunity Commission’s Uniform Guidelines on Employee Selection Procedures), data privacy, data access and use, and intellectual property. Customer acknowledges that U.S. job postings may not require U.S. citizenship or lawful permanent residence in the U.S. as a condition of employment, unless otherwise required in order to comply with law, regulation, executive order, or federal, state or local government contract. Each party to this Agreement shall be acting as an independent contractor, and nothing herein shall be construed to create a partnership, joint venture or any type of agency relationship between JMH and Customer or any of Customer’s employees or agents. This Agreement, which may be executed in counterparts and via facsimile or electronically transmitted signature or by completing the registration and paying for access to SourceLync, contains the entire understanding of the parties with respect to the transactions and matters contemplated hereby, supersedes all previous communications, understandings and agreements (whether oral or written), as well as any purchase orders that have been or may from time to time be submitted by Customer, and cannot be amended or waived except by a writing signed by all of the parties. Neither party may assign this Agreement in whole or in part, by operation of law, merger, asset or stock sale or transfer, or otherwise, without the prior written consent of the non-assigning party, except

(i) in connection with a merger, consolidation, reorganization or sale of all or substantially all assets of the assigning party, or

(ii) to a party controlling, controlled by or under common control with the assigning party. No party has relied on any representation or warranty of any other party not expressly set forth in this Agreement. No failure or delay on the part of any party in exercising any right or remedy provided in this Agreement shall operate as a waiver thereof; nor shall any single or partial exercise of or failure to exercise any such right or remedy preclude any other or further exercise thereof or the exercise of any other right or remedy under this Agreement. In the event that any of the provisions of these conditions shall be determined by a competent authority to be invalid, unlawful or unenforceable to any extent, such provision shall to that extent be severed from the remaining provisions which shall continue to be valid to the fullest extent permitted by law. This Agreement, and any disputes between Customer and JMH relating to this Agreement, shall be governed by and construed in accordance with the laws of the State of Colorado excluding: (i) its conflicts of laws principles; (ii) the United Nations Convention on Contracts for the International Sale of Goods;

(iii) the 1974 Convention on the Limitation Period in the International Sale of Goods; and

(iv) the Protocol amending the 1974 Convention, done at Vienna April 11, 1980. Each party’s performance under this Agreement is subject to force majeure. All notices given hereunder shall be given by first class mail, return receipt requested or overnight courier, to the Customer at the address set forth below and to JMH at 1067 Hover Rd, Longmont, CO 80503, Attn: Legal Department, and shall be deemed given upon actual delivery thereof. No terms of this Agreement are enforceable by any person who is not a party to it. You consent to receiving notices from SourceLync electronically. This may include status updates from hospitals that you follow. Messages will be sent to the email address you provide SourceLync during registration. Your registration serves as an “opt in” to SourceLync emails. You can unsubscribe at any time by using the “unsubscribe” function at the bottom of SourceLync emails, or by contacting customerservice@sourcelync.net.
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