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Eqo Technologies, Inc., a Delaware Corporation (“Eqo”) is the provider of a software-as-a-service platform that allows companies to receive and manage candidate referrals from employees.
The Terms of Service, together with the Order Form between you (the “Company” – official company name listed on the Order Form) and Eqo Technologies, Inc. (“Eqo”) referencing these terms, as well as any additional SOWs or Order Forms executed among the parties from time to time that reference and are incorporated in this Agreement, constitutes the entire agreement between Eqo and the Company.
Eqo and the Company are referred to herein each, as a “Party”, and together, as the “Parties”.
By entering into this Agreement you are agreeing to the binding arbitration provisions provided herein.
"Account" means a unique password-protected login for the Company to access and use the Application Services via Eqo’s website (or such other means as may be made available from time to time).
"Agreement" means these Terms of Service, the applicable Order Form and any applicable SOW.
"Application Services" shall mean the software-as-a-service platform and corresponding referral widget, pop-ups and platforms provided by Eqo.
"Order Form" shall mean the ordering documents for the Company’s purchases of Services from Eqo that are executed by the parties from time to time and which reference Eqo’s Terms of Service. Order Forms shall be deemed incorporated herein.
"Company Data" shall mean all electronic and other data or information submitted by the Company, or on the Company’s behalf, to the Application Services.
"Malicious Code" shall mean viruses, worms, time bombs, Trojan horses and other harmful files, scripts, agents or programs.
"Professional Services" shall mean the implementation, integration, consulting and similar services described in an SOW.
"Scope of Professional Work" or "SOW" shall mean the document describing the scope and schedule of Professional Services to be performed by Eqo for the Company. If available, each SOW should be attached to an Order Form and shall be governed by the terms of this Agreement.
"Services" shall mean the Application Services and Professional Services collectively.
“Employee” shall mean an individual that is employed by the company on a full-time, part-time or hourly basis. This shall also include contractors as well.
“Referrer” shall mean an Employee who uses the Application Services to refer another individual to any of Company’s open employment positions.
“Referred Candidate” shall mean an individual who has been referred by a Referrer.
“Referred New Hire” shall mean a Referred Candidate who has been hired and has become an employee of the Company.
“Qualified Referral” shall mean when a Referred Candidate has met the conditions stated by the Company as to which when the Referrer qualifies for a Referral Reward.
“Referral Reward” shall mean the compensation and/or other benefits that the Company specifies will be granted by the Company for a Qualified Referral.
1.1 By using the Application Services, the Company will enable their employees to harness their professional and personal networks to refer candidates to Company’s open employment positions. The Company will be able to track and compensate such employees who have assisted in that process.
1.2 Subject to the terms hereof, Eqo will provide Company with reasonable technical and integration support services in accordance with any SOW attached to the Order Form.
2.1 Subject to the terms and conditions of this Agreement, Eqo hereby grants to Company and to its Employees, a limited, non-exclusive, non-transferable and revocable right and license to use and access the Application Services.
2.2 The Company will use the Application Services only for the uses described or referenced in this Agreement. Neither Company nor any Employee will (a) reproduce, download, modify or distribute all or any of a portion of the Application Services or any intellectual property relating to such services, including without limitation any computer code; or (b) reverse engineer, decompile, disassemble, access the computer code relating to the Application Services. The Company may not remove Eqo logos, Terms, trademarks, or similar materials from the Application Services without Eqo’s prior written consent. The Company may use the Application Services only for lawful purposes and in a lawful manner consistent in all material respects with all applicable laws, statutes and regulations relating to employment.
2.3 Company understands that information regarding their referral program provided through or by means of the Application Services (“Referral Content”) has not been independently reviewed or verified by Eqo and that Eqo will not be responsible for the accuracy or veracity of such information.
2.4 In using the Services, the Company will be solely responsible for adequately describing its Referral Reward to its Employees.
2.5 In using the Application Services, the Company shall be solely responsible for providing, updating, uploading and maintaining any and all Company information and/or materials on, within, displayed, linked or transmitted to, from or through the Application Services on its behalf (“Company Content”). For the avoidance of doubt, the Company Content includes, without limitation, information about jobs, job postings and referral rewards. Company assumes sole responsibility for the accuracy of the Company Content, and for ensuring that the Company Content does not infringe or violate any right of any third party or any law, statute or regulation (in each case, in any material respect).
2.6 The Company will be able to use the Application Services to send SMS text campaigns to its Employees. Company acknowledges that it has received consent from its Employees regarding this communication.
3.1 The Application Services shall be utilized in conjunction with Company personnel. Company shall appoint at least one person to be the primary point of contact for receiving alerts or other communications from Employees (the “Company Representative(s)”), and shall provide Eqo with the contact information for such Company Representative(s), including name(s), title(s) and email address(es). Unless otherwise designated, Company Representative(s) will be the persons designated as Administrator within the Eqo platform.
4.1 Subject to the terms and conditions of this Agreement, Eqo shall provide the Application Services on a twenty-four (24) hours a day, seven (7) days a week basis throughout the term of this Agreement. Company acknowledges and agrees that from time to time the Application Services may be inaccessible or inoperable due to equipment malfunctions, periodic maintenance procedures, repairs or upgrades which Eqo may undertake from time to time, service malfunctions and causes beyond the reasonable control of Eqo or which are not reasonably foreseeable by Eqo, including, without limitation, interruption or failure of telecommunication or digital transmission links, including delays or failures due to Company’s Internet service provider, hostile network attacks, network congestion or other failures. Company agrees that Eqo may not have control over the stability and throughput speed of the internet or the availability of Application Services on a continuous or uninterrupted basis. Regardless of the cause of any interruption in the normal Application Services, Eqo shall use its commercially reasonable best efforts to promptly re-establish the Application Services.
5.1 Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Proprietary Information of Eqo includes non-public information regarding features, functionality and performance of the Services. Proprietary Information of Company includes non-public data provided by Company to Eqo to enable the provision of the Services. The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after five (5) years following the disclosure thereof or any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party or (e) is required to be disclosed by law.
5.2 Company shall own all right, title and interest in and to the Company Data, as well as any data that is based on or derived from the Company Data and provided to Eqo as part of the Services. Eqo shall own and retain all right, title and interest in and to (a) the Application Services, all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with Services, and (c) all intellectual property rights related to any of the foregoing.
6.1 Eqo shall have an independent auditor perform audits of its systems addressing security, availability, processing integrity, confidentiality, and privacy applicable to the processing of transactions and/or data rendered in connection with the Services as provided to the Company under this Agreement for the purpose of issuing SOC 2 audit reports under the American Institute of Certified Public Accountants applicable standards no less frequently than every (12) months. Eqo shall provide a summary of such audit reports to the Company upon request.
6.2 Eqo will implement and maintain throughout the term of this Agreement, and at any time thereafter while Eqo retains any Company Data, reasonable administrative, physical and technical safeguards which attempt to prevent any collection, use or disclosure of, or access to Company Data that this Agreement does not expressly authorize, including, without limitation, an information security program that meets commercially reasonable industry practice to safeguard Company Data. Such information security program will include: (i) physical security of all premises in which Company Data will be processed and/or stored; and (ii) reasonable precautions taken with respect to the employment of, access given to, and education and training of any and all personnel furnished or engaged by Eqo to perform any part of the Services.
7.1 Company will pay Eqo the then applicable fees described in the Order Form for the Services in accordance with the terms therein (the “Fees”). If Company’s use of the Services exceeds the Service Capacity set forth on the Order Form or otherwise requires the payment of additional fees (per the terms of this Agreement), Company shall be billed for such usage and Company agrees to pay the additional fees in the manner provided herein. Eqo reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the Initial Service Term or then current renewal term, upon thirty (30) days prior notice to Company (which may be sent by email). Any and all renewals shall be subject to a minimum negotiated price increase of seven percent (7%). If Company believes that Eqo has billed Company incorrectly, Company must contact Eqo no later than 60 days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. Inquiries should be directed to the Company's dedicated account manager at Eqo.
7.2 Eqo may choose to bill through an invoice, in which case, full payment for invoices issued in any given month must be received by Eqo thirty (30) days after the mailing date of the invoice. Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection and may result in immediate termination of the Services. Company shall be responsible for all taxes associated with Services other than U.S. taxes based on Eqo’s net income.
8.1 Eqo shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services and shall perform the Professional Services in a professional and workmanlike manner. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Eqo or by third-party providers, or because of other causes beyond Eqo’s reasonable control, but Eqo shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. HOWEVER, EQO DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES AND PROFESSIONAL SERVICES ARE PROVIDED “AS IS” AND COMPANY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
9.1 Eqo shall hold Company harmless from liability to third parties resulting from infringement by the Service of any United States patent or any copyright or misappropriation of any trade secret, provided Eqo is promptly notified of any and all threats, claims and proceedings related thereto and given reasonable assistance and the opportunity to assume sole control over defense and settlement; Eqo will not be responsible for any settlement it does not approve in writing. The foregoing obligations do not apply with respect to portions or components of the Services (i) not supplied by Eqo, (ii) made in whole or in part in accordance with Company specifications, (iii) that are modified after delivery by Eqo, (iv) combined with other products, processes or materials where the alleged infringement relates to such combination, (v) where Company continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) where Company’s use of the Services is not strictly in accordance with this Agreement. If, due to a claim of infringement, the Services are held by a court of competent jurisdiction to be or are believed by Eqo to be infringing, Eqo may, at its option and expense (a) replace or modify the Services to be non-infringing provided that such modification or replacement contains substantially similar features and functionality, (b) obtain for Company a license to continue using the Services, or (c) if neither of the foregoing is commercially practicable, terminate this Agreement and Company’s rights hereunder and provide Company a refund of any prepaid, unused fees for the Services.
10.1 NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT FOR BODILY INJURY OF A PERSON, EQO AND ITS SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT AND TECHNOLOGY SUPPLIERS), OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND EQO’S REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY COMPANY TO EQO FOR THE SERVICES UNDER THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT EQO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
11.1 Subject to earlier termination as provided below, this Agreement is for the Initial Service Term as specified in the Order Form, and shall be automatically renewed for additional periods of the same duration as the Initial Service Term (collectively, the “Term”), unless either party requests termination at least thirty (30) days prior to the end of the then-current term.
11.2 In addition to any other remedies it may have, either party may also terminate this Agreement upon thirty (30) days’ notice (or without notice in the case of nonpayment) if the other party materially breaches any of the terms or conditions of this Agreement. Company will pay in full for the Services up to and including the last day on which the Services are provided. Upon any termination, Eqo will make all Company Data available to Company for electronic retrieval for a period of thirty 30 days, but thereafter Eqo shall delete stored Company Data. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.
12.1 If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable or sublicensable by Company except with Eqo’s prior written consent. Eqo may transfer and assign any of its rights and obligations under this Agreement without consent. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement and the Company does not have any authority of any kind to bind Eqo in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by email; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. This Agreement shall be governed by the laws of the State of Delaware without regard to its conflict of laws provisions. The parties shall work together in good faith to issue at least one mutually agreed upon press release within 90 days of the Effective Date, and Company otherwise agrees to reasonably cooperate with Eqo to serve as a reference account upon request.of the remaining provisions hereof.
