Revised: 10/01/2024

This SERVICE AGREEMENT (“Agreement”) is between ATS OnDemand, Inc. (hereafter “ATS OnDemand”) and Company Name (hereafter “Customer”).  The parties will enter into this Agreement by signing and dating below by their respective authorized representatives.  ATS OnDemand and Customer agree to the following terms and conditions.

Services:

ATS OnDemand will provide Customer with licensed user access, use of a browser interface, data encryption, transmission, hosting and storage of its web-based Applicant Tracking Solution software application (“Service”).  ATS OnDemand Service is offered on subscription basis and Customer use of the Service shall be deemed Customer’s agreement to abide by the terms of this Agreement.

Account Information & Data:

ATS OnDemand does not own any Customer information or material that Customer submits to the Service (“Data”).  ATS OnDemand will not monitor, edit, or disclose any information regarding Customer or Data contained within a Customer account (including, without limitation, any such information or Data stored in the server space allotted by ATS OnDemand to Customer) without Customer’s prior written permission, except as expressly permitted under this Agreement or as may be required by applicable law.  ATS OnDemand may access Customer account only to verify user registration.  Notwithstanding the foregoing, any such disclosures will not include Customer identifying information, including IP address, and will not be transmitted with messages sent from Customer account.  ATS OnDemand may access Customer account, including its Data, solely to respond to training-related inquiries from Customer or to resolve technical problems.  Customer shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness and copyright of all Data contained in Customer account.

User Accounts:

A user account is a named licensed seat and is required to access the Service.  Only registered, licensed users may access and use the Service provided by ATS OnDemand.  During implementation of the Service or as subsequent users are added to the Service, Customer will identify its users by name and indicate Service access level.  Customer users shall abide by the terms and condition set forth in this Agreement, including but not limited to User Responsibilities & User Conduct.  In the event that ATS OnDemand believes in good faith that user activity is illegal, immoral or outside the scope of the Service, notice will be given to the Customer and ATS OnDemand may suspend or terminate use of the Service by the relevant user.  Each user of the Service will be given a Service ID and the option to choose a personal password.  User accounts and passwords are non-transferable are not allowed to be “shared” among users or provided to any third party or individual not named in this Agreement or Customer account.  Licensed seats can be transferred to another user only if a named user becomes inactive. ATS OnDemand will take all necessary precautions to protect and safeguard customer information and in the event of a data breach, ATS OnDemand will notify Customer within 24 hours of such breach.

 

 

User Responsibilities:

Customer and its users are solely responsible for all acts of Customer and/or its users that occur within Customer account.  Users are expected to exit or log-off from Customer account at the end of each session to ensure Customer information is kept secure from unauthorized use.  Customer shall immediately notify ATS OnDemand after Customer becomes aware of any unauthorized use of Customer data, user account access or any other breach of security that is known or suspected by Customer.  Customer shall also use its good faith efforts to stop immediately any unauthorized copying or distribution of Content that is known or suspected by Customer users.  As used in this Agreement, “Content” means screen shots of the ATS OnDemand web-based Applicant Tracking Solution software application, user guide documentation, and any other materials related to technology and application design, in each instance provided to Customer under this Agreement.  For the avoidance of doubt, “Content” does not include any Data as defined herein. Customer is required to notify its users of the proper use of such Customer information to maintain confidentiality and security of the Service and Customer information.

User Conduct:

ATS OnDemand and Customer agree to abide by all applicable local, state, national and foreign laws, treaties and regulations in connection with the Service.  In addition, without limitation, Customer agrees not to use the Service or information from the Service to: (a) send unsolicited or unauthorized e-mail, advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes, or any other form of duplicative or unsolicited messages, whether commercial or otherwise; provided, however, that the foregoing shall not prohibit or restrict Customer from sending e-mails to persons whose information is stored within Customer’s account; (b) harvest, collect, gather or assemble information or data regarding users other than Customer’s users, including e-mail addresses, without their consent; (c) transmit through or post on the Service unlawful, immoral, libelous, abusive, harassing, tortuous, defamatory, threatening, harmful, invasive of another’s privacy, vulgar, obscene or otherwise objectionable material of any kind or nature or which is harmful to minors in any way; (d) knowingly transmit any material that, to Customer’s knowledge, is reasonably likely to infringe the intellectual property rights or other proprietary rights of third parties, including trademark, copyright or right of publicity; (e) knowingly transmit any material that contains software viruses or other harmful or deleterious computer code, files or programs such as Trojan horses, worms, time bombs or cancel bots; (f) interfere with or disrupt the integrity of any data or computer-based information or any servers or networks connected to the Service or violate the regulations, policies or procedures of such networks; (g) attempt to gain unauthorized access to the Service, other accounts, computer systems or networks connected to the Service, through password mining or any other means; or (h) harass or interfere with another Customer’s use and enjoyment of the Service.

Payments:

Customer will pay all applicable subscription license fees, one-time charges and additional services in advance or in accordance with the terms set forth in Exhibit 1 to this Agreement.  If noted, Customer will provide ATS OnDemand with a purchase order in advance of execution of this Agreement.  Terms and conditions of this Agreement shall replace and supersede all other terms for the Service provided by ATS OnDemand.  Customer will be responsible to report and pay any applicable taxes to the appropriate governmental agency.

Total number of subscription licenses in effect and additional services provided as part of the Service term may be renewed at the rates in effect at that time of renewal or as outlined in Exhibit 1.  Licenses added during the Agreement term will be invoiced on a pro rata basis to coincide with the Agreement renewal date.

A Customer account will be considered past due if payment is not received within 60 days of the payment due date.  Past due invoices are subject to interest of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is greater, plus all expenses incurred by ATS OnDemand for collection of past due amounts.  If Customer fails to bring current such past due amounts within 90 days following ATS OnDemand’ written notice to Customer of nonpayment, ATS OnDemand may terminate this Agreement.

Customer agrees to provide ATS OnDemand with complete and accurate billing and contact information in Exhibit 1 to this Agreement.  This information includes Customer legal company name, street address, e-mail address, and name and telephone number of the authorized billing contact.  Customer agrees to update this information within 30 days of any change of information.

General Payment Information:

ATS OnDemand will invoice Customer in U.S. dollars (USD) for use of this Service.  Customer is responsible for notifying ATS OnDemand in writing within 30 days from the date of an invoice, if they believe a billing is incorrect.  ATS OnDemand will correct any billing inaccuracies and, if determined, will issue an adjustment credit to the Customer account to correct such error.

Non-Transferable License:

ATS OnDemand grants to Customer a personal, non-exclusive, non-transferable license to use the Service and application software contained in or made available through the Service solely for Customer’s own internal business purposes.  All rights not expressly granted herein by ATS OnDemand to Customer are reserved by ATS OnDemand and/or its licensors.

Restrictions:

Customer is permitted to store, manipulate, analyze, reformat, print, and display the Content only for Customer’s internal business use.  Use, resale or commercial exploitation of the Service and/or the Content in any way other than as authorized hereunder or otherwise permitted by ATS OnDemand is expressly prohibited.  Customer shall not copy, license, sell, transfer, make available, distribute, or assign this Service or the Content to any third-party; provided, however, that the foregoing shall not prohibit or restrict use by actual or potential applicants for employment with Customer from accessing or otherwise utilizing features of the Service to, inter alia, permit such persons to obtain information regarding Customer and its job openings and to upload resumes to the Customer account.  Customer shall not create Internet “links” to the Service or “frame” or “mirror” any Content contained on, or accessible from, the Service to any other server or Internet-based device.

Termination/Reduction in Service:

The initial term of this Agreement will be for one (1) year from the effective date of this Agreement, unless otherwise shown in Exhibit 1.  The terms of this Agreement will renew for successive one (1) year terms unless written notice of non-renewal or reduction is given by either party at least thirty (30) days in advance of the last day of the current term.  In the event of termination pursuant to this paragraph, Customer will be required to clear all balances due, including payments for annual term to ATS OnDemand before the effective date of termination.

Termination for Cause: This Agreement may be terminated by ATS OnDemand if a material breach by Customer is determined and Customer fails to cure such breach within thirty (30) days written notice thereof.  A material breach includes any material unauthorized access, use, copying, disclosure, distribution, or sublicensing by or with Customer aid or consent of the Service or Content or any related methods, algorithms, techniques, or processes provided by ATS OnDemand as part of the Service.

ATS OnDemand will notify Customer in writing and will provide the opportunity for Customer to cure such breach or non-compliance within thirty (30) days of receiving such notice.  Failure of Customer to cure such breach may result in ATS OnDemand disabling Customer account, user’s access and passwords until a mutually acceptable cure is implemented.  After thirty (30) days, ATS OnDemand may opt to terminate this Agreement by providing Customer written notice of termination, and, in such event, Customer’s right to access their account and data contained within immediately ceases.  Subject to the terms and conditions of this Agreement, ATS OnDemand shall have no obligation to maintain Data stored in Customer account following the effective date of termination of this Agreement.

Customer may terminate this Agreement upon written notice to ATS OnDemand in the event of ATS OnDemand’ failure to cure a material breach by ATS OnDemand of this Agreement within thirty (30) days following Customer’s written notice to ATS OnDemand of such breach.

Data Rights:

All rights, title and interest in and to all Customer information and material that Customer (including any of it users) submits to the Service are and will be owned by the Customer.  In the event of termination of this Agreement, Customer may opt to retrieve its Data in electronic format.  Upon termination of this agreement, ATS OnDemand will, as Customer requests, either back-up and return Data as provided herein, or destroy all the Data and copies of Data.  ATS OnDemand agrees to certify that it has completed such requested action.

ATS OnDemand will back-up and make such Data available via XML file format within 30 days after the effective date of termination, charges apply.

Privacy Policy:

A copy of the ATS OnDemand privacy policy can be viewed at https://power.ATS OnDemand.com/privacy/. For the avoidance of doubt, this policy is not incorporated in or made a part of this Agreement.

Cookies:

Cookies are files that a web browser places on Customer computer’s hard drive and are used to inform ATS OnDemand whether Customer has visited the Service previously.  ATS OnDemand uses a persistent cookie to help save and retrieve user access to the Service.  ATS OnDemand issues a session cookie only to record encrypted authentication information for the duration of a specific session.  The session cookie does not include the username or password of the user.

Proprietary Rights:

Except as provided herein, Customer has no rights, title or interest in ATS OnDemand Service or any its software application Content or its licensors’, including, without limitation, documentation, stories, articles, text, images, and other multimedia data, and all such right, title and interest shall remain exclusively with ATS OnDemand and its licensors, as applicable.  The Service and/or other ATS OnDemand products and services referenced are either trademarks or registered trademarks of ATS OnDemand. The names of other companies and products mentioned herein may be the trademarks of their respective owners.

Confidentiality Obligations 

Neither party shall use or disclose any Confidential Information of the other party except in the exercise of its rights granted or the performance of its obligations imposed on it pursuant to this Agreement. As used in this Agreement, “Confidential Information” means any and all trade secrets of a party and all information concerning a party, or its business, products or services, that is not generally known to the public, including, but not limited to, technical business, recruiting, and financial information and data and any application methodologies, design and system functionality from which a competitor could benefit if disclosed. Each party shall keep the other party’s Confidential Information in strict confidence. Any disclosure by the receiving party of the other party’s Confidential Information to the receiving party’s employees shall be made only in connection with use authorized pursuant to this Agreement and only on a need-to-know basis within the scope and purpose of this Agreement. The receiving party shall be responsible for any breach of such party’s confidentiality obligations by its employees, independent contractors or agents.  The restrictions in this section shall not apply to any information which (a) was in the public domain prior to the receiving party’s receipt of same, or has subsequently become part of the public domain through no act or omission of the receiving party; (b) was in the receiving party’s possession prior to its receipt hereunder, and was not acquired directly or indirectly from the other party; (c) was independently developed by the receiving party without reference to the other party’s Confidential Information; or (d) was received by the receiving party from a third party which the receiving party reasonably believed had no obligation of secrecy with respect thereto.  In the event of an order by a court of competent jurisdiction to disclose Confidential Information, the receiving party shall give reasonable notice of such requirement to the other party, and the parties shall cooperate in good faith to obtain a protective order or other appropriate confidential treatment of the Confidential Information.

Mutual Indemnification:

Customer shall indemnify and hold ATS OnDemand, its licensors and each such party’s parent organizations, subsidiaries, affiliates, officers, directors, employees, and agents harmless and defend or settle, at Customer’s expense, from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys’ fees and costs) (collectively, “Losses”), to the extent out of or in connection with any use of the Service or Content by Customer in a manner not permitted under this Agreement or any breach of this Agreement by Customer.  ATS OnDemand shall indemnify and hold Customer and Customer’s parent organizations, subsidiaries, affiliates, officers, members, directors, employees, and agents harmless and defend or settle, at ATS OnDemand’ expense, from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys’ fees and costs) arising out of or in connection with (i) Customer’s use of the Service or Content in accordance with this Agreement, including any claim or allegation against Customer that (a) ATS OnDemand has misappropriated the trade secret of another, or (b) Customer’s authorized and proper use of the Service or Content constitutes an infringement or other violation of any copyright, patent, trademark or other third party intellectual property or proprietary rights; or (ii) ATS OnDemand’ breach of this Agreement.

Warranties:

(A) ATS ONDEMAND WARRANTS THAT: (i)  THE SERVICE PROVIDED WILL PERFORM SUBSTANTIALLY IN ACCORDANCE WITH THE FUNCTIONS DESCRIBED IN THE ONLINE ATS ONDEMAND HELP DOCUMENTATION UNDER NORMAL USE AND CIRCUMSTANCES AND (ii) THE SERVICE AND CONTENT DO NOT INFRINGE ON ANY THIRD PARTY INTELLECTUAL OR OTHER PROPRIETARY RIGHTS.  ATS ONDEMAND ALSO REPRESENTS AND WARRANTS THAT, TO THE BEST OF ITS KNOWLEDGE, THE SERVICE AND CONTENT PROVIDE HEREUNDER DO NOT CONTAIN AND WILL NOT RECEIVE FROM ATS ONDEMAND’ TRANSMISSION VIA MODEM OR ANY OTHER ATS ONDEMAND MEDIUM ANY VIRUS, WORM, TRAP DOOR, BACK DOOR, TIMER, CLOCK, COUNTER OR OTHER LIMITING ROUTINE, DANGLE KEY, INSTRUCTION, OR DESIGN THAT WOULD ERASE DATA OR PROGRAMMING OR OTHERWISE CAUSE THE SERVICE OR CONTENT TO BECOME INOPERABLE OR INCAPABLE OF BEING USED IN THE FULL MANNER FOR WHICH IT WAS DESIGNED AND CREATED (A “DISABLING CODE”).  IF ANY DISABLING CODE IS IDENTIFIED BY CUSTOMER OR ATS ONDEMAND, AND IF THE DISABLING CODE RESULTED FROM AN ACT OR OMISSION OF ATS ONDEMAND, ATS ONDEMAND SHALL PROMPTLY TAKE ALL REASONABLE STEPS NECESSARY, AT NO ADDITIONAL COST TO CUSTOMER, TO: (i) RESTORE ANY AND ALL DATA LOST BY CUSTOMER AS A RESULT OF SUCH DISABLING CODE, TO THE EXTENT THAT SUCH RECOVERY IS TECHNICALLY FEASIBLE; (ii) TEST A NEW COPY OF THE SUBJECT MATTER  CONTAINING SUCH DISABLING CODE, FOR THE PRESENCE OF DISABLING CODES; (iii) FURNISH TO CUSTOMER A NEW COPY OF THE SUBJECT MATTER WITHOUT THE PRESENCE OF DISABLING CODES; AND (iv) INSTALL AND IMPLEMENT SUCH NEW COPY ON CUSTOMER’S EQUIPMENT.  (B) EXCEPT AS PROVIDED IN SUBSECTION (A) ABOVE: (i) ATS ONDEMAND AND ITS LICENSORS MAKE NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE SERVICE OR ANY CONTENT.

Mutual Limitation of Liability:

EXCEPT WITH RESPECT TO EACH PARTY’S INDEMNIFICATION OBLIGATIONS AND CONFIDENTIALITY OBLIGATIONS, UNDER THIS AGREEMENT, IN NO EVENT SHALL EITHER PARTY AGGREGATE LIABILITY EXCEED THE AMOUNTS ACTUALLY PAID BY AND/OR DUE FROM CUSTOMER IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM.  EXCEPT WITH RESPECT TO EACH PARTY’S INDEMNIFICATION OBLIGATIONS AND CONFIDENTIALITY OBLIGATIONS UNDER THIS AGREEMENT, IN NO EVENT SHALL EITHER PARTY AND/OR ITS LICENSORS BE LIABLE TO ANYONE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THIS SERVICE, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE SERVICE, OR FOR ANY CONTENT OBTAINED FROM OR THROUGH THE SERVICE, EVEN IF THE PARTY FROM WHICH DAMAGES ARE BEING SOUGHT OR SUCH PARTY’S LICENSORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

Additional Rights:

Certain states and/or jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental or consequential damages, so the exclusions set forth above may not apply to Customer.

Domestic Laws & Export Control:

ATS OnDemand provides Services and uses software and technology that may be subject to United States export controls administered by the U.S. Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, and other U.S. agencies and the export control regulations of the European Union. The user of this Service acknowledges and agrees that the Service shall not be used, and none of the underlying information, software, or technology may be transferred or otherwise exported or re-exported to Afghanistan, Burma, Cuba, Iraq, Iran, Libya, Sudan, or any other countries to which the United States and/or the European Union maintains an embargo (collectively, “Embargoed Countries”), or to or by a national or resident thereof, or any person or entity on the U.S. Department of Treasury’s List of Specially Designated Nationals or the U.S. Department of Commerce’s Table of Denial Orders (collectively, “Designated Nationals”). The lists of Embargoed Countries and Designated Nationals are subject to change without notice. By using this site, User represents and warrants that it is not located in, under the control of, or a national or resident of an Embargoed Country or Designated National. Customer agrees to comply strictly with all U.S. and European Union export laws and assumes sole responsibility for obtaining licenses to export or re-export as may be required.  This Service may use encryption technology that is subject to licensing requirements under the U.S. Export Administration Regulations, 15 C.F.R. Parts 730-774 and Council Regulation (EC) No. 1334/2000.

ATS OnDemand and its licensors make no representation that the Service is appropriate or available for use in other locations. If Customer use the Service from outside the United States of America and/or the European Union, Customer is solely responsible for compliance with all applicable laws, including without limitation export and import regulations of other countries. Any diversion of the Content contrary to United States or European Union (including European Union Member States) law is prohibited. None of the Content, nor any information acquired through the use of the Service, is or will be used for nuclear activities, chemical or biological weapons or missile projects, unless specifically authorized by the United States Government or appropriate European body for such purposes.

Service Customizations:

During the term of this Agreement, Customer may request enhancements to the Service to expand the Customer experience.  ATS OnDemand will provide such effort (“Work”) on a time and materials basis and pursuant to a separate written agreement to be negotiated in good faith and entered into by ATS OnDemand and Customer. ATS OnDemand shall own all rights in the resulting system enhancement.  ATS OnDemand will provide Customer maintenance for such enhancements at no additional charge.

Notices:

From time to time, ATS OnDemand may give general notice about the Service using electronic mail to Customer contact noted in the Customer account.  Such notices may include Service feature enhancements and system upgrades.  Notice shall be deemed to have been given when received by Customer.

Customer may give notices to ATS OnDemand such notice shall be deemed given when received by ATS OnDemand at any time to:

ATS OnDemand, Inc.

213 US Highway 35

Red Bank, NJ  07701

Modification to Terms:

This Agreement may be amended only by a writing agreed upon and executed by authorized representatives of each party hereto.

Assignability:

This Agreement may not be assigned in whole or in part by either party without the prior written approval of the other party; provided, however, that this Agreement may be assigned by either party to (i) a parent or subsidiary, or affiliate of such party, (ii) an acquirer of all or substantially all of the assets of such party, or (iii) a successor of such party by merger.  Any purported assignment in violation of this section shall be deemed void.

Beneficiaries:

The rights and limitations in this Agreement are also for the benefit of ATS OnDemand System’s permitted assigns, each of whom shall have the right to enforce its rights hereunder directly and on its own behalf.

General:

With respect to U.S. Customers, this Agreement shall be governed by Delaware law and controlling United States federal law, without regard to the choice or conflicts of law provisions of any jurisdiction, and any disputes, actions, claims or causes of action arising out of or in connection with this Agreement or the Service shall be subject to the exclusive jurisdiction of the state and federal courts located in Delaware.  No text or information set forth on any other purchase order, preprinted form or document (other than an Order Form, if applicable) shall add to or vary the terms and conditions of this Agreement. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect. No joint venture, partnership, employment, or agency relationship exists between Customer and ATS OnDemand as a result of this agreement or use of the Service. The failure of either party to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by such party in writing. This Agreement, together with any applicable Order Form, comprises the entire agreement between Customer and ATS OnDemand and supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the parties regarding the subject matter contained herein.  This Agreement may be signed in counterparts, each of which shall, when executed and delivered, be deemed an original, and both of which together shall constitute one and the same instrument.

ATS OnDemand Service Level Agreement

Severity	Description
Critical	All end users have lost their connectivity to the ATS OnDemand solution and all or most of the system functionality is lost. The ATS OnDemand application is not operational and there is no workaround.
High	More than one end user has lost connectivity and much of the ATS OnDemand application’s operation is lost but some functions are active. A Critical problem with a reasonable workaround may be reduced to High.
Medium	Some ATS OnDemand system functionality is lost. A High problem can be reduced to Medium if an acceptable workaround is found.
Low	No outage of the ATS OnDemand service is experienced. A Medium problem can be reduced to Low if an acceptable workaround is found.
Information	A request for information about Products or Services from ATS OnDemand Support