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TERMS AND CONDITIONS FOR THE USE OF EMPLOYER BRANDING PROFILES ON www.kununu.com/US

Last updated: 27 October 2016

TERMS AND CONDITIONS FOR THE USE OF EMPLOYER BRANDING PROFILES ON www.kununu.com/US

kununu US, LLC (kununu US or the Service Provider) provides the Employer Branding Profiles (EBPs) on www.kununu.com/US (the kununu Site) to you (You or the Customer) subject to following terms and conditions (the Terms and Conditions) and the Sales Order (collectively, the Terms and Conditions and Sales Order are referred to herein as the Agreement). This Agreement governs your use of the EBPs and, as applicable, certain free or paid accompanying services of kununu US. All kununu US services provided under the Agreement are hereafter referred to as the "Services." You and kununu US may also be referred to herein, individually as a "Party" and collectively as the "Parties." By affirmatively accepting this Agreement during the Sales Order process, or by otherwise accessing or using the Services or any portion thereof (Acceptance), you are deemed to agree to all terms, conditions, and notices contained or referenced in this Agreement. If you do not agree to all of the terms in this Agreement, you may not use the Services, and you must immediately cease using them.

kununu US reserves the right, at its discretion, to update or revise the Terms and Conditions from time to time without notice to You. You can review the most current version of the Terms and Conditions at any time at https://www.kununu.com/us/EBPterms. Please check this link periodically for changes. Your continued use of the Services following the posting of any changes to this Agreement constitutes acceptance of any such changes. In addition, when using particular Services or features of the Services, you shall be subject to any policies, guidelines or rules applicable to such Services which may be posted from time to time. All such guidelines or rules are hereby incorporated by reference into this Agreement.

1. Definition and Interpretation.

In this Agreement:

  1. except where the context otherwise requires, a reference to “includes” or “including” or words of similar import shall be construed without limitation;
  2. except where the context otherwise requires, the words "herein,” “hereof,” “hereby,” “hereto” and “hereunder” refer to the Agreement as a whole;
  3. unless expressly provided otherwise, references to “persons” shall include legal entities as well as natural persons, references importing the singular shall include the plural (and vice versa), and use of the masculine pronoun shall include the feminine;
  4. references to days or time periods shall be to calendar days or calendar time periods unless otherwise expressly stated; and
  5. the term “Business Day” shall mean any day, excluding Saturdays and Sundays or public holidays in the United States.

Any code that kununu US creates to generate or display any kununu US Content or the pages making up any kununu US Site is also protected by kununu US's copyright and You may not copy or adapt such code

You agree not to sell or modify the kununu US Content or reproduce, display, publicly perform, distribute, or otherwise use the kununu US Content in any way for any public or commercial purpose, in connection with products or services that are not those of the kununu US Sites, in any other manner that is likely to cause confusion among consumers, that disparages or discredits kununu US or its licensors, that dilutes the strength of kununu US's or its licensor’s property, or that otherwise infringes kununu US's or its licensor’s intellectual property rights. You further agree to in no other way misuse kununu US Content. The use of the kununu US Content on any other application, web site or in a networked computer environment for any purpose is prohibited. Any code that kununu US creates to generate or display any kununu US Content or the pages making up any Application or Service is also protected by kununu US's copyright and you may not copy or adapt such code.

2. Services.

Within the EBP, You may display Customer-generated images, video and other content that provides information about you and your workplace, including, but not limited to, an overview of your products and services, description of your location(s), and an overview of your benefits. The exact extent to which You may use the EBP and any fees for creating, claiming and/or using the EBP depends on the specific product description.

You acknowledge that Services may be provided by kununu US, its affiliates and/or any third party engaged by kununu US to do so.

3. Business Use Only.

You shall use the Services provided hereunder solely for your own internal business purposes, and shall not resell or transfer any Services to a third party.

Unless otherwise expressly provided, nothing herein shall limit your ability to: select an Administrator (as defined and set forth in Section 8); appoint an agency to represent You and submit Sales Orders on your behalf to kununu US, (an Agency); or to otherwise engage a third party agent or affiliate for your own internal business purposes (e.g. uploading information to your EBP), provided that, in each case, prior to engaging any Agency, third party agent or affiliate, You must:

  1. assume all liability for any such Agency, third party agent or affiliate, without exception; and
  2. ensure that any such Agency, third party agent or affiliate shall also agree to the Terms and Conditions of this Agreement.

4. kununu US Property.

kununu US is and will remain the sole and exclusive owner of all intellectual property rights in and to each product, the Services made available on the kununu Site, and any related specifications, instructions, documentation or other materials, including, but not limited to, all related copyrights, patents, trademarks and other intellectual property rights, subject only to the limited license granted under the product's or Service's license agreement. You do not and will not have or acquire any ownership of the products or Services made available through the kununu Site or of any intellectual property rights relating to those products or Services. Under no circumstances shall Your use or display of the kununu US property in conjunction with Your website(s) or other Customer Content (as defined below) constitute or result in a derivative work, compilation or joint work.

5. Term and Termination.

The initial term of this Agreement shall have a minimum duration of twelve (12) months, commencing on the “Product Start Date” and terminating on the “Product End Date,” each date as defined in the Sales Order, unless terminated earlier in accordance with this Agreement (the Initial Term).

This Agreement will automatically renew for additional one (1) year periods (each, a Renewal Term and together with the Initial Term, the Term) on the Terms and Conditions in this Agreement, unless either Party provides written notice of nonrenewal at least sixty (60) days prior to the end of then-current Term. If either Party provides timely notice of its intent not to renew the Agreement, then the Agreement shall terminate on the expiration of the then-current Term, unless otherwise sooner terminated in accordance with its terms.

Either Party may immediately terminate the Agreement if the other Party materially breaches the Agreement and such breach is not cured within thirty (30) days after receipt of written notice thereof. On the kununu Site, employees have the opportunity to rate and review current or former employers based on a number of criteria. You explicitly acknowledge that kununu US has the right to extraordinary termination of this agreement without notice if You exert unreasonable pressure on kununu US to amend reviews and ratings on the kununu Site in any way. Claims for reimbursement of the contractual amount are expressly excluded in this case.

If the Agreement is terminated, the EBP will return to the status of a free basic company profile on the kununu Site. In particular, all content for which a paid EBP is required for display on the kununu Site will be removed.

6. Payment.

Your payment terms are specified on the Sales Order. All amounts payable by You (the Fees) are due in full without deduction or setoff. Fees for the entire subscription period are immediately payable on the date the invoice is issued. If a particular charge or item is in dispute and You have given kununu US written notice of the disputed charge before payment is due, then You shall only be responsible to pay the undisputed amounts invoiced.

If an Agency is provided on the Sales Order, Fees shall be payable by the Agency to kununu US on Your behalf, in accordance with the Sales Order and these Terms and Conditions. You may change the Agency on record with written notice to kununu US.

All Fees paid or payable for the Services under this Agreement are nonrefundable, regardless of whether You elect to revoke your Acceptance at any point during the Term. All payments shall be made in US dollars, unless otherwise agreed in writing by the Parties.

At its option, kununu US may collect charges from You for any Fees not paid when due, at an interest rate that is equal to: (a) 1.5% per month; or (b) the maximum rate permitted by law, whichever is greater. You shall be responsible for the payment of any present or future sales, use, excise or other similar applicable tax (excluding taxes based on kununu US’s net income).

All Fees paid are non-refundable, except in the event of an uncured material breach by kununu US, in which case, kununu US will refund to You any applicable pre-paid amounts that have not rendered as of the effective date of such termination.

kununu US may assign to a third party the right to invoice, collect and receive payment on its behalf. Any such assignment will be indicated on the Sales Order and You may receive invoices from and submit payment to that third party for the Services.

kununu US may set off any amount received by kununu US from You against any amount which is due and payable under the Agreement. If You request credit and kununu US cannot authenticate your identity, then You must authorize kununu US to obtain and verify your customer information (e.g., from trade and bank references, external credit reporting sources, consumer credit agencies or other credit sources) as may be reasonably necessary.

kununu US, at its sole discretion, may increase the Fees following the completion of the Initial Term, and at the end of each Renewal Term. Notice of such Fee changes will be reflected in an invoice provided to you in advance of the Renewal Term and shall automatically take effect from the first date of each subsequent Renewal Term.

7. Grant of License and Right to Sublicense.

Customer Content” shall mean all information, data, text, software, music, sound, photographs, graphics, video, advertisements, messages or other materials submitted, posted or displayed by You, on or through the kununu Site. By uploading your Customer Content and trademarks (Customer Marks) on the kununu Site, You grant to kununu US and its affiliates a worldwide, non-exclusive, royalty-free, transferable, sub-licensable right and license to use, copy, reproduce, adapt, publish, perform, display, and distribute Customer Content (in whole or in part) and Customer Marks solely in connection with and to promote the EBP services. You represent and warrant that You have the right to grant the license stated above, or that the holder of any rights, including moral rights, in Customer Content and Customer Marks has completely and effectively waived all such rights and validly and irrevocably granted to You the right to grant the license stated above. You represent and warrant that Customer Content does not violate the privacy rights, publicity rights, copyright rights, or other rights of any person.

kununu US reserves the right to refuse to accept, post, display or transmit any Customer Content in its sole discretion. You irrevocably grant kununu US the right to display the EBP and the Customer Content on other local kununu platforms such as kununu.com/de or kununu.com/at, operated by kununu US or third parties. You acknowledge and agree that the EBP and Customer Content may be removed from display on other local kununu platforms (or any thereof) at any time.

You grant kununu US the limited right to sublicense the EBP, Customer Content and Customer Marks to share the information that is submitted or collected on the kununu Site with kununu US affiliates and Monster Worldwide, Inc. Information that is shared with third parties or kununu US affiliates is shared in accordance with the terms of the kununu US Privacy Policy, which is incorporated by reference and available for review online at https://www.kununu.com/us/privacy.

8. Set Up and Use of the EBP.

You will identify an administrator (Administrator) who will be responsible for creating and managing Your EBP. The Administrator’s contact information (e.g., name and email address) will be provided to kununu US in order to create an account for you to manage the EBP within the kununu Site self-service application. You shall be responsible for any liabilities, acts or omissions of the Administrator in relation to the kununu Site.

The Administrator will be sent login details via email after receipt of the Sales Order. The Administrator will add content (inclusive of at least three (3) images, video, text, social media links etc.) for the EBP directly into the kununu US self-service application using their login. Once activated by you, your EBP will be active on the kununu Site through the Product End Date set forth in the Sales Order, unless You otherwise voluntarily remove or delete all Customer Content at an earlier date, using the kununu US self-service application. You are obliged to keep access data confidential from unauthorized third parties. In particular, You will store usernames and passwords in such a way that it is not possible for unauthorized third parties to gain access to them. You are obliged to inform kununu US without delay should You become aware that a password is known to third parties.

On an as-needed basis, kununu US can provide assistance in setting up the EBP for You. You must complete the EBP order form and submit along with at least three (3) images in order to have the EBP created. kununu US shall inform You when the EBP is ready for review; The Administrator will receive a preview link, in order to be able to check the EBP content and authorize display on the kununu Site. Further edits can be made directly via the kununu US self-service application.

In the event that kununu US offers You the option to include Your name in the EBP URL (Vanity URL), the following terms apply: You are permitted to use Your own name only in the Vanity URL. No other terms, names, brands or other company names may be used in the Vanity URL. If Your Vanity URL violates this term or any legal regulations or third-party rights, kununu US may return the Vanity URL to its original state. kununu US also reserves the right to return the Vanity URL to its original state if it contains generic terms such as "apps" or "community" and kununu US would like to use these terms in its own URLs.

9. Sanctions.

kununu US may impose the following sanctions in the event that obligations from the Agreement are violated by You or the Administrator, or if kununu US has any other legitimate interest:

  1. delete content that You have published in the EBP;
  2. temporarily or permanently deactivate the EBP; or
  3. terminate the Agreement.
kununu US reserves the right to impose these sanctions in particular in the event that the means of payment provided by you is invalid, or you do not fulfil a payment obligation on time or sufficiently. All other rights of kununu US shall remain reserved.

10. Job Ads in the “Jobs” category of the EBP.

kununu US may at its own discretion display or allow Monster Worldwide, Inc. or its affiliates to display Customer job ads in the “Jobs” category of the EBP, which may be job ads from any source, including but not limited to job ads purchased by You from Monster Worldwide, Inc. or its affiliates.

11. DISCLAIMER OF REPRESENTATIONS AND WARRANTIES

EXCEPT AS EXPRESSLY SET FORTH HEREIN, NEITHER KUNUNU US, NOR ITS AFFILIATES MAKES ANY WARRANTIES OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR ARISING BY USAGE OF TRADE, COURSE OF DEALING, COURSE OF PERFORMANCE, OR NON-INFRINGEMENT WITH RESPECT TO THE SERVICES OR THE KUNUNU SITE, OR THE FUNCTIONALITY, PERFORMANCE OR RESULTS OF USE OF THE SERVICES OR THE KUNUNU SITE.

12. 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:

  1. infringement or alleged infringement of any patent, copyright, trade secret or other proprietary right of any third party, arising out of or relating to:
    1. in the case of kununu US, the delivery of the Services;
    2. in the case of the Customer, the provision of any material to the kununu Site by or on behalf of the Customer;
  2. in the case of kununu US, gross negligence or willful misconduct arising out of or relating to the delivery of the Services; and
  3. 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.

13. Limitation of Liability.

EXCEPT TO THE EXTENT CONTRARY TO APPLICABLE LAW OR AS PROVIDED IN SECTIONS , 11, OR 15, IN NO EVENT, REGARDLESS OF THE FORM OF THE ACTION OR THE THEORY OF RECOVERY, WHETHER IN CONTRACT, TORT (INCLUDING BREACH OF WARRANTY, NEGLIGENCE AND STRICT LIABILITY), INDEMNITY OR OTHER LEGAL OR EQUITABLE THEORY) SHALL EITHER PARTY OR ITS AFFILIATES BE LIABLE FOR: (A) INCIDENTAL, INDIRECT, CONSEQUENTIAL, SPECIAL, PUNITIVE, REMOTE, ENHANCED, SPECULATIVE OR EXEMPLARY DAMAGES OF ANY KIND OR NATURE WHATSOEVER; OR (B) LOSS OF REVENUE, PROFITS, GOODWILL, REPUTATION, BUSINESS OPPORTUNITY, ANTICIPATED SAVINGS OR DATA, AND

IN EACH CASE, 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 THIS LIMITATION SHALL SURVIVE FAILURE OF AN EXCLUSIVE REMEDY.

14. Total Aggregate Liability.

Except to the extent contrary to applicable law or as provided in Section 15, and subject to Section 13, each Party’s maximum liability arising out of or in connection with the 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), shall not exceed the amount paid or payable by the Customer to kununu US during the twelve (12) months immediately preceding the claim for damages.

By using any downloadable application to enable Your use of the kununu US Sites, You are explicitly confirming Your acceptance of the terms of the End User License Agreement associated with the Application provided at download or installation, or as may be updated from time to time.

15. Exclusions.

The exclusions and limitations in Sections 12 and 13 shall not apply to, and nothing in this Agreement shall operate to: (a) limit the Customer’s payment obligations under this Agreement; or (b) limit or exclude either Party’s (or its relevant affiliate’s) liability in respect of losses arising from a Party’s (or its relevant affiliate’s) intentional breach, fraud, gross negligence or willful misconduct in the performance or non-performance of its obligations under this Agreement.

16. Search Engines; No Modification.

Notwithstanding anything to the contrary contained herein, You 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 kununu Site other than the search engine and search agents available from kununu US on the kununu Site, except for generally available third party web browsers (e.g., Internet Explorer, Firefox or Safari). You 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 the kununu Site.

17. Third Party Sites.

The kununu Site contains links to third party websites. These links are provided solely as a convenience to You and not as an endorsement by kununu US of the contents on such third-party websites. kununu US is not responsible for the content of linked third-party sites and does not make any representations regarding the content or accuracy of materials on such third party Web sites. If You decide to access linked third-party Web sites, You do so at Your own risk.

18. Privacy.

The Parties shall each comply with all applicable privacy laws and regulations relating to the protection of personal or personally identifiable information of all third parties, and relating to commercial email marketing and unsolicited bulk email.

19. Compliance with Laws.

Each Party shall comply with all applicable laws, rules and regulations in the performance of this Agreement.

20. No Partnership or Agency.

Each Party shall act as an independent contractor, and nothing herein shall be construed to create a partnership, joint venture or any type of agency relationship between kununu US and the Customer or any of Customer’s employees or agents.

21. Entire Agreement; Amendment.

The Agreement 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), and cannot be amended or waived except by a writing signed by each of the Parties.

22. Assignment.

Neither Party may assign the 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 (a) in connection with a merger, consolidation, reorganization or sale of all or substantially all assets of the assigning Party, or (b) to a party controlling, controlled by or under common control with the assigning Party.

23. No Reliance.

No Party has relied on any representation or warranty of any other Party not expressly set forth in the Agreement. No failure or delay on the part of any Party in exercising any right or remedy provided in the 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 the Agreement.

24. Headings.

Headings to sections and subsections in this Agreement are for the convenience of the Parties only and are not intended to be a part of or to affect the meaning or interpretation hereof.

25. Severability.

In the event that any of the provisions of the Agreement 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.

26. Governing Law and Venue.

The Agreement, and any disputes between the Customer and kununu US relating to the Agreement, shall be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts, excluding its conflicts of law rules. Any claims or litigation arising under this Agreement will be brought by the Parties solely in the state and federal courts located in Boston, Massachusetts.

27. Waiver of Jury Trial.

EACH OF THE PARTIES HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.

28. Force Majeure.

Neither Party shall be liable to the other for any default or delay in the performance of any of its obligations under this Agreement if such default or delay is caused, directly or indirectly, by any cause beyond such Party's reasonable control.

29. Notices.

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 in the Sales Order and to kununu US, LLC; 34 Farnsworth Street, 3rd floor; Boston, MA 02210 Attn: Customer Service, and shall be deemed given upon actual delivery thereof.

30. No Third Party Beneficiaries

This Agreement is not intended to, and shall not, convey any rights to persons who are not a party to this Agreement.