TERMS AND CONDITIONS FOR DATA EXPORT
Terms and Conditions for Data Export Insertion Order
The following terms and conditions (the “Terms and Conditions”) shall govern the insertion order (“IO”) (collectively the “Agreement”) under which Client will provide leads, clicks or specified actions (collectively known as “Leads”) to KB3 Marketplace as described in the Campaign Notes through one or more of its websites and/or through Client’s relationships with its job seekers.
1. Display of KB3 Marketplace Information; Editorial Control. Subject to the provisions of this Agreement, KB3 Marketplace hereby grants Client a limited non-exclusive right and license to display its brand, logo, job or other advertising information including ad placements and lead presentations (the “Content”), as applicable, on Client’s website during the Term. Client may not modify Content other than to fit the format and look and feel of Client’s website or to display an excerpt (rather than all) of the long description that does not change the language that is excerpted.
2. Ownership, Licensing and Use of Leads. Each party hereby agrees that it will treat the Leads, including but not limited to personally identifiable information provided by individual web users, as Confidential Information as set forth in the Confidentiality Section below.
3. Terms of Payment. Client will earn a monthly performance payment from KB3 Marketplace during the Term (the “Monthly Performance Payment”) under the terms listed in the IO. KB3 Marketplace has twenty (20) business days from date of delivery to return rejected Leads to Client. Leads can be rejected by KB3 Marketplace for any reasonable business reason (e.g., if KB3 Marketplace finds the Leads to be false, duplicative or erroneous). The Monthly Performance Payment will be calculated in accordance with the Type indicated in the IO, further described as follows:
“CPC” or “cost-per-click” rate is the dollar rate stated for each Click-Through. A “Click-Through” results when a visitor clicks from any email job alert or career webpage hosted by Client or on Client’s website, which links directly to KB3 Marketplace’s Content.
“CPA” or “cost-per-acquisition, action, or application” (also known as “CPL” or “cost-per-lead”) refers to the dollar rate stated per unique Lead.
“CPM” refers to cost per one thousand impressions or views displayed to a
visitor, for example, where viewers cumulatively click on a particular advertisement 1,000 times.
In the absence of payment terms in the IO, Client will invoice KB3 Marketplace at the end of each calendar month for the Monthly Performance Payment as reported by KB3 Marketplace. KB3 Marketplace will pay Client within 60 days of the end of the calendar month for which it has been invoiced. For example, if Client sends an invoice to KB3 Marketplace dated August 31st, for all clicks delivered during the month of August, KB3 Marketplace would then pay Client by October 31st for the August 31st invoice.
4. Taxes. All payments required under this Agreement are exclusive of federal, state, local and foreign taxes, duties, tariffs, levies and other similar charges (“Taxes”). When applicable, such Taxes shall appear as separate items on invoices. Payment of such Taxes and other charges (excluding any taxes based upon the billing/collecting party’s net income) shall be the paying party’s sole responsibility. In the event the billing/collecting party is subsequently assessed by any governmental authority for having failed to collect any Taxes from the paying party, the paying party agrees to pay such assessed amounts, excluding any associated interest or penalties, upon the billing/collecting party’s written request.
5. Confidentiality. Except as otherwise provided herein, KB3 Marketplace and Client each agree that all written information communicated to it by the other, whether before the Effective Date or during the term of this Agreement, and (a) marked as confidential or proprietary; or (b) regarding customers; human resources; financial costs, expenses or operations; inventory, purchasing or merchandising; or plans, strategies or forecasts (hereinafter collectively referred to as “Confidential Information”) shall be used only for the purposes of this Agreement, and that no Confidential Information of the disclosing party shall be disclosed to outside parties by the recipient party, its agents or employees without the prior written consent of the disclosing party. Client agrees to keep completely and unconditionally confidential the names of any institutions, corporations, investors, organizations, individuals, or groups of individuals introduced by KB3 Marketplace or its associates. Client agrees not to divert or attempt to divert KB3 Marketplace’s business customers or prospects based on information gained as a result of discussions with KB3 Marketplace.
Each party agrees to take all reasonable precautions to prevent disclosure to outside parties of Confidential Information, including without limitation, the terms of this Agreement, except for information which is (i) not marked as confidential or proprietary or included in the categories identified above, (ii) already known by or available to the receiving party or its parent or subsidiaries at the time of
disclosure; (iii) independently generated by either of the parties hereto or its parent or subsidiaries and not derived from the Confidential Information of the disclosing party, (iv) generally known or available to the public, or which may later become generally known or available to the public except where such knowledge or availability is the result of an unauthorized disclosure by one of the parties hereto, (v) disclosed to the receiving party or its parent or subsidiaries by a third party who is lawfully permitted to make such disclosure, (vi) made available by the disclosing party to a third party without a similar restriction; or (vii) required to be disclosed by either party or their parent or subsidiaries by law, regulation, court order or other legal process. This obligation of confidentiality shall cease two (2) years after the return of such Confidential Information to the disclosing party by the receiving party or two (2) years after the termination of this Agreement, whichever is later. The foregoing notwithstanding, KB3 Marketplace will have the right to identify that Client is a customer of KB3 Marketplace and may utilize traffic data for statistical and comparative purposes provided it is not disclosed in any manner which could reasonably identify Client.
6. Term; Termination. The term of this Agreement shall be as set forth in the IO or until terminated upon the mutual written agreement of both Parties. In addition, either party may terminate this Agreement in the event that the other party fails to perform any material covenant or otherwise breaches any material term of this Agreement: (i) immediately upon written notice to the other party if the nonperformance or breach is incapable of cure, or (ii) upon the expiration of thirty (30) days after such notice if the nonperformance or breach is capable of cure and has not been cured. Acceptance of any additional IOs shall be by written agreement of the Parties. Pricing for any renewal period is subject to change by KB3 Marketplace from time to time.
7. Privacy. All parties represent and warrant that they are fully compliant with applicable privacy laws, and all federal and state regulations.
8. Audit. At its own expense but no more than once every twelve months, upon reasonable prior written notice and during dates and times mutually agreed upon by the Parties, either Party may have its independent auditors examine, books and records with respect to all transactions for which Monthly Performance Payments may be due, for the sole and limited purpose of verifying the other Party’s accurate reporting.
10. Representations. Client will conduct its web advertising campaigns in accordance with industry standards. Client’s web site(s) and advertisements shall not contain, or contain links to, illegal content or websites, or to improper content or websites such as pornographic or gambling oriented content or websites.
11. Indemnification. Each party, at its own expense, will indemnify, defend and hold harmless the other party, its affiliates and their employees, representatives and agents (the “Indemnified Parties”), against any third party claim, suit, action, or other proceeding brought against the Indemnified Parties based upon, incident to, arising from, or in connection with the breach by the indemnifying party of any of its obligations hereunder. Further, Client agrees to indemnify and hold KB3 Marketplace and KB3 Marketplace’s web site affiliates harmless against any and all expenses and losses of any kind (including reasonable attorney’s fees and costs) incurred by KB3 Marketplace or its web site affiliates in connection with any claim of any kind arising out of the display and use of the Content (including, without limitation, any claim of trademark or copyright infringement, libel defamation, breach of confidentiality, false or deceptive advertising or sales practices) and/or any material of Client to which users can link through the Content.
12. DISCLAIMER; Limitation of Liability. EXCEPT AS OTHERWISE STATED HEREIN, KB3 MARKETPLACE’S SERVICES AND LEADS ARE PROVIDED “AS IS” AND “AS AVAILABLE” AND KB3 MARKETPLACE DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, UNINTERRUPTED SERVICE, AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE. KB3 Marketplace shall not be liable for the contents of any advertisements, web sites or web page. In no event shall either party be responsible for any consequential, special, indirect, incidental, lost profits, or other indirect damages arising from the IO. Without limiting the foregoing, neither party shall have any liability for any failure or delay resulting from conditions beyond its control. Except for confidentiality and indemnification obligations, neither party’s liability (whether in contract, tort or otherwise) shall exceed the amount of revenue then due and payable to KB3 Marketplace under the IO or Five Hundred ($500) Dollars, whichever is greater.
13. Remedies Cumulative. Except as otherwise expressly specified herein, the rights and remedies granted to each party under this Agreement are cumulative and in addition to, and not in lieu of, any other rights or remedies that such party may possess at law or in equity.
14. Notice. All notices, requests, consents, and other communications under this Agreement shall be in writing (which includes paper, facsimile or email communication), and shall be delivered by hand, sent by reputable overnight courier service or electronic facsimile transmission (with proof of transmission) or
mailed by first class certified or registered mail, return receipt requested, postage prepaid, to the Parties at the respective contact point set forth in the IO. Notices provided in accordance with this Section shall be deemed delivered (i) immediately if personally delivered or sent by email or electronic facsimile transmission, or (ii) if sent by overnight courier service, 24 hours after deposit with such courier service, or (iii) if sent by certified or registered mail, return receipt requested, 48 hours after deposit in the mail. Either Party may change the address to which notices, requests, demands, claims, or other communications hereunder are to be delivered by giving the other Party notice in the manner herein set forth.
16. Assignment. Client may not resell, assign or transfer any of its rights hereunder. KB3 Marketplace may assign this Agreement to an entity that acquires all or substantially all of KB3 Marketplace’s assets or business.
17. Independent Contractors; No Agency. The Parties are independent contractors and nothing contained in this Agreement shall be construed to (i) give either Party the power to direct and control the daytoday activities of the other; (ii) create or constitute a partnership, joint venture, franchise, employment or agency relationship between the parties; or (iii) allow either Party to create or assume any obligation on behalf of the other Party for any purpose whatsoever.
18. Governing Law/Venue. This Agreement shall be governed by and construed in accordance with the laws of the State of New York, as if entered into and to be wholly performed in New York and without regard to conflicts of law principles. In any action brought hereunder, each party hereby consents to the jurisdiction of the Federal or state courts of the State of New York, and waives any jurisdictional, venue or inconvenient forum objections thereto.
19. Miscellaneous. No conditions other than those set forth in the IO or these Standard Terms shall be binding on either party unless expressly agreed to in writing, including, but not limited to any on-line end user license agreement or other on-line terms required to authorize access and/or start services under the IO. In the event of any inconsistency between the IO and the Standard Terms, the terms of the IO shall control. These Standard Terms, together with the IO, (i) may be amended only by written agreement executed by an authorized representative of each party; and (ii) constitute the complete and entire expression of the agreement between the parties, and shall supersede any and all other agreements, whether written or oral, between the parties. If any provision of this Agreement is found invalid or unenforceable, that provision will be enforced to the maximum extent permissible, and the other provisions of this Agreement will remain in force.
Effective Date: October 1, 2020