Subscription Agreement

Last Updated as of the 1st day of March, 2021

This Subscription Agreement (together with all Order Forms and Addenda attached hereto, the "Agreement") of Applied Training Systems, Inc. and its affiliates (collectively, “ATSI”) governs all access to and use of the human resources computer program,  software modules and interactive computer services for human resources and management solutions and all applicable documentation of ATSI and its affiliates, together with all related interfaces, functionality, web-services, supplements, add-on components, corrections, bug fixes, modifications, enhancements, updates, new versions or releases that ATSI subsequently may make available (collectively, the “System”), and constitutes a legally binding agreement between the entity for whom the System will be accessed and/or used (the “Client”), including without limitation all of Client’s personnel who access or use the System, and ATSI.  

THIS AGREEMENT CONTAINS VERY IMPORTANT INFORMATION REGARDING CLIENT’S RIGHTS AND OBLIGATIONS, AS WELL AS CONDITIONS, LIMITATIONS AND EXCLUSIONS THAT MIGHT APPLY TO CLIENT. PLEASE READ THIS AGREEMENT CAREFULLY BEFORE ACCESSING OR USING THE SYSTEM OR ANY PORTION THEREOF. BY CLICKING ON "I AGREE" OR BY ACCESSING OR USING THE SYSTEM OR ANY PORTION THEREOF, YOU, ON BEHALF OF THE CLIENT, ACKNOWLEDGE AND CONFIRM THAT: (A) YOU HAVE FULL AUTHORITY FROM THE CLIENT TO BIND THE CLIENT TO ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT; (B) YOU HAVE READ AND UNDERSTAND ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT; (C) CLIENT AGREES TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT; AND (D) CLIENT ACKNOWLEDGES THAT THIS AGREEMENT IS THE LEGAL EQUIVALENT OF A SIGNED, WRITTEN CONTRACT BETWEEN ATSI AND CLIENT.  IF YOU OR THE CLIENT WHOM YOU ARE REPRESENTING ARE NOT WILLING TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, INCLUDING WITHOUT LIMITATION THE PRECEDING ACKNOWLEDGEMENT AND AGREEMENT, THEN YOU MUST NOT SELECT THE 'I AGREE' BUTTON ASSOCIATED WITH THIS AGREEMENT AND YOU MUST NOT ACCESS OR USE THE SYSTEM OR ANY PORTION THEREOF; ATSI DOES NOT AND WILL NOT GRANT YOU OR THE CLIENT ANY RIGHT OR LICENSE TO ACCESS OR USE THE SYSTEM OR ANY PORTION THEREOF.

THIS AGREEMENT REQUIRES THE USE OF ARBITRATION TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS. 

This Agreement applies to Client’s subscription to the System. This Agreement is subject to change by ATSI without prior written notice at any time, in ATSI’s sole discretion; however, ATSI will post a notice on this website (the “Site”) or send Client a notice via e-mail to notify Client that this Agreement has been revised, and Client hereby consents to receiving such notice in such manner. Any changes to this Agreement will be in effect as of the "Last Updated” date referenced above (the “Last Updated Date”). Client’s continued use of the System after the Last Updated Date will constitute Client’s acceptance of and agreement to such changes.  All Order Forms (as defined below) between ATSI and Client shall be governed by this Agreement.

1. Access to and Use of the System.

1. Order Forms.  The parties must set forth those services within the System to which Client is receiving or will receive a subscription (the “Services”), together with the term of such subscription, associated fees and other terms, in a mutually approved (which approval may be evidenced in a written agreement, through a click-through agreement or through DocuSign or other reliable electronic means, regardless of whether approval occurs prior to, in conjunction with or following the Effective Date hereof), written order forms (each an “Order Form”).  Hereafter, “System” shall be deemed to mean only those parts of the System necessary for Client to receive the Services to which Client has a subscription pursuant to an effective Order Form.  The Services shall provide the business functionality set forth in ATSI’s documentation, as amended by ATSI from time to time as ATSI modifies the System (the “Specifications”).
2. Access.  Subject to the terms and conditions of this Agreement, including the timely payment of all fees due hereunder, ATSI hereby:  (a) agrees to make available to the personnel that Client authorizes to access and use the System (each a “User” and collectively the “Users”) non-exclusive access to the System via the Internet in accordance with the standard access protocol of ATSI; (b) authorizes Client, on a non-exclusive, non-transferable basis, to have Users access and use the System, which will at all times reside on servers owned or controlled by ATSI; and (c) authorizes Client, on a non-exclusive, non-transferable basis, to have Users make a reasonable number of copies of ATSI’s standard documentation that ATSI provides to Client from time to time (“Documentation”), in whole or in part, as required for Client to produce internal support, training or communication materials regarding usage of the System.
3. Limited Scope. ATSI is providing a limited term subscription to access and use the System during the term set forth on Client’s Order Form. Client acknowledges that access to, and use of, the System is limited to the scope of the express provisions set forth in Section 1.1 above and that there are no implied licenses; all rights not expressly granted under this Agreement are reserved by ATSI.
4. Restrictions. Client agrees that it will not, and will not allow its directors, officers, employees, business partners, contractors or agents to:

1. Reverse assemble, reverse engineer, decompile or otherwise attempt to derive source code from the System or any component thereof;
2. Copy, reproduce, modify, sell, lease, sub-license, market or commercially exploit in any way the System or any component thereof (including the further distribution or blank forms or templates) other than as expressly agreed to in this Agreement;
3. Use, or permit the use of, the System except for Client's internal human resources purposes. Client agrees that it shall not provide access to or perform services for third parties using the System including, but not limited to, any service bureau, time-sharing, lease, distribution or re-sale, rental, application service provider arrangement, or any other arrangement;
4. Disclose, resell or grant access to an access code to the System or any component thereof to any third party not affiliated with ATSI.

5. Updates. ATSI may, at its sole discretion, make available error corrections, bug fixes, modifications or minor enhancements to the System (each an “Update” and collectively “Updates”) that ATSI generally makes available to its clients that subscribe to the same Services.
6. Upgrades.  ATSI may develop new modules that provide new functionality or services (each an “Upgrade”) that are not part of the Services to which Client is subscribing.  Client may, at Client’s discretion, purchase a subscription to an Upgrade pursuant to the terms of a new Order Form.
7. Right to Modify the System. ATSI reserves the right, in its sole discretion and without incurring any liability to Client, to change, enhance and otherwise modify the specifications for, and formulations and methods of provision of, the System and the Services, provided that such alterations will not materially reduce the functionality of the same.  ATSI further reserves the right, in its sole discretion, to create new products and/or services based upon or incorporating the System, the Services or elements thereof.

2. Term and Termination.  

1. Agreement Term.  The initial term of this Agreement shall commence upon the date on which Client has both (a) clicked “Accept” to this Agreement and (b) entered into an Order Form with ATSI (the “Effective Date”) and, unless earlier terminated in accordance with this Agreement, continue until there is no Order Form in effect.
2. Order Form Term.  The term of each Order Form shall begin on the ‘begin date’ of the applicable Order Form (the “Order Form Begin Date”) and shall continue for the duration specified on the relevant Order Form (the “Order Form Initial Term”), at which time, subject to any fee changes made by ATSI pursuant to this Agreement, the Order Form Term shall automatically renew for subsequent renewal terms of one (1) year each (each an “Order Form Renewal Term” and, together with the Order Form Initial Term, “Order Form Term”), unless and until either Party provides written notice of intent not to renew at least sixty (60) days prior to the end of the then-current Order Form Term.
3. Termination.  Upon a material breach of this Agreement, the non-breaching Party may send written notice to the breaching Party informing the breaching Party of the nature of the breach and providing thirty (30) days to cure a non-monetary breach and ten (10) days to cure a monetary breach (the “cure period”). If the breaching Party does not cure the material breach within the cure period, the non-breaching Party may immediately terminate this Agreement.
4. Effects of Termination.  

1. Upon expiration or termination of an Order Form for any reason, (i) any amounts owed to ATSI under the Order Form before such expiration or termination will be immediately due and payable, and Client will promptly pay any and all such amounts (and with respect to any amounts not paid due to a reasonable dispute, such amounts will be paid at the time of, and to the extent required by, resolution of the dispute, together with Late Payment Fees (as defined below), if any) and (ii) all rights to access or use the Services specified in the Order Form, and the associated System, will immediately terminate.
2. Upon expiration or termination of the Agreement for any reason, (i) any amounts owed to ATSI under all Order Forms before such expiration or termination will be immediately due and payable, and Client will promptly pay any and all such amounts (and with respect to any amounts not paid due to a reasonable dispute, such amounts will be paid at the time of, and to the extent required by, resolution of the dispute, together with Late Payment Fees (as defined below), if any), (ii) all access to or use of the Services specified under all Order Forms, and the associated System, will immediately terminate and Client and all Users will immediately cease accessing or using the Services and System, (iii) each Party will return to the other Party, or destroy, all property (including without limitation any Confidential Information) of the other Party in its possession or control and (iv) Client may access and download its data from the System and, to the extent that Client requests the same within five (5) days of the expiration or termination date, ATSI will, at Client’s expense, assist Client in downloading Client’s data in its then-current state but in a format reasonably acceptable to Client. ATSI will perform off-boarding activities in accordance with ATSI’s standard procedures, a copy of which is available upon request. The following Sections will survive the termination or expiration of this Agreement:  2.4; 3.2; 3.3; 8; 10; 11.2; 11.3; 12; 14; and 15.

3. Fees; Payment and Taxes.

1. Subscription Fees.  

1. Client will pay ATSI the “per seat” subscription fee set forth on the Order Form (the “Subscription Fee”), on a monthly basis upon receipt of invoice.  Client must provide full legal name, full company name, a valid e-mail address, correct billing information and any other information requested in order to complete the payment process.  Client acknowledges and agrees that if Client adds additional seats at any time(s) during the term, then ATSI may invoice Client for such additional seats at the then-current Subscription Fee.
2. Client acknowledges and agrees that Subscription Fees, which are the fees paid for each “seat,” are fixed for each Contract Year during the term (provided that Client understands that it will be required to pay for additional seats that it adds at any point(s) during the term), where “Contract Year” means each 12-month period during the term of the applicable Order Form, with the first Contract Year commencing on the effective date of such Order Form and each subsequent Contract Year commencing on the annual anniversary of such effective date.  ATSI may change the Subscription Fees for the next Contract Year upon providing at least seventy-five (75) days’ notice to Client.  ATSI may provide such notice by e-mail, posting to the Site or posting on the System itself, and Client hereby consents to receiving such notice in such manner.

2. Late Fees.

1. Client will pay all invoiced amounts to the extent not subject to reasonable dispute within thirty (30) days of the date of invoice unless otherwise expressly set forth in the applicable Order Form. Client will pay all withheld invoiced amounts that had been subject to reasonable dispute to the extent and at the time required by resolution of the dispute.
2. Until paid in full, all amounts that are not subject to good faith dispute that are not paid within thirty (30) days of the date of invoice may, at ATSI's discretion, bear an interest charge at the lesser rate of twelve percent (12%) on an annualized basis or the maximum amount permitted under applicable law (the "Late Payment Fee"). With respect to amounts that were subject to good faith dispute, Client will promptly pay such amounts to the extent required by and at the time of the dispute resolution, together with the applicable Late Payment Fee, if any.

3. Taxes.  All Subscription Fees are exclusive of, and Client will be responsible for, all taxes (including without limitation sales, value-added and similar taxes), duties and the like, other than taxes based upon or calculated by ATSI's net income.

4. Service Level Commitment.

1. Availability; Service Level Exceptions.  ATSI shall use diligent, commercially reasonable efforts with the objective of making the System available to Client at least 99.5% of the time, subject to the following exceptions (“Service Level Exceptions”), for which ATSI will not be liable:

1. periodic maintenance procedures, enhancements, repairs or corrections with respect to the System or server(s), as deemed necessary by ATSI (which Includes but is not limited to, infrequent product updates and improvements);
2. periods during which ATSI has suspended Client’s access to the System as a result of Client’s material breach of this Agreement, which includes without limitation failure to make timely payment of amounts that are due and are not subject to reasonable dispute, provided that ATSI notifies Client of such material breach and Client does not cure such breach within ten (10) days of receipt of notice;
3. acts or omissions of Client or its Users, including but not limited to Client’s misuse of the System, scheduled or unscheduled outages of the User’s internet browser, known and persistent slow response time on a User’s internal network, or problems with the User’s computer hardware, telecommunications system or electricity; or
4. causes beyond the reasonable control of ATSI or that are not reasonably foreseeable by ATSI, including interruption or failure of telecommunication or digital transmission links, delays or failures due to Client’s Internet Service Provider (ISP), hostile network attacks, network congestion or other Force Majeure Event (as defined in Section 13 below).

2. Client Obligation.  Client agrees that it shall notify ATSI immediately if Client suspects the System is unavailable due to a fault of ATSI. In such notice, Client shall provide reasonable information as requested by ATSI for proper diagnosis and repair.
3. Outages.  For purposes of this Agreement, an “Outage” occurs when the System is unavailable to Client in Client’s hosted production environment for a reason other than a Service Level Exception and such unavailability causes the System not to be meet the 99.5% availability objective (with any Service Level Exception time not counted toward the unavailable time).  If an Outage occurs in three (3) consecutive months, then Client may terminate this Agreement upon providing written notice to ATSI, provided that Client must exercise this right to terminate within thirty (30) days of the latest consecutive Outage or the Agreement will be considered in good standing.

5. Support.

1. First-Line Support. Client shall provide first-line support to its Users. Client shall appoint an “Internal Administrator” and notify ATSI in writing regarding the Internal Administrator’s name and contact information. The Internal Administrator shall be responsible for: input of all Client-related information and data, User ID information, and organizational structure (including without limitation accurate job titles and/or roles, which will be used in connection with role-based access to the System); and training of Client’s Users.  All User questions regarding the functioning of the System shall be directed first to Client’s Internal Administrator.
2. Second-Line Support. Provided that Client is current in its payment of Subscription Fees under this Agreement, ATSI shall provide its standard technical support and maintenance to Client, solely through Client’s Internal Administrator, during ATSI’s normal business hours (9:00 AM-8:00 PM Eastern Time M-F).  ATSI may provide such support via telephone, e-mail and other Internet based technology directly to Client’s Internal Administrator.  Second-line support means direct technical support of the System, including, but not limited to: (a) direct response to the Internal Administrator’s inquiries concerning performance, functionality or operation of the System; (b) a direct response to reported problems for performance deficiencies with the System; (c) a diagnosis of problems for performance deficiencies of the System; and (d) a resolution of the problems for performance deficiencies of the System. ATSI shall also provide standard error correction and maintenance modifications to the System.
3. Additional Support.  Notwithstanding the above, if ATSI makes a reasonable business determination that the technical support requested by Client pursuant to Section 5.2 will entail detailed, specialized maintenance or support services different in kind or amount from those provided to other clients that subscribe to similar Services, then ATSI shall notify Client that the requested support is considered an additional service which shall be subject to additional fees, to be negotiated.

6. System Maintenance. ATSI shall employ reasonable efforts to ensure the security, confidentiality and integrity of all Client data and other proprietary information transmitted to or stored on the System by or on behalf of Client or any User (“Client Data”). ATSI shall maintain backup information on all Client Data in the application on a daily incremental basis during the week and a full backup each weekend.
7. Certain Client Obligations.

1. Client is responsible for all activity occurring under its account and will comply with all applicable local, state, national and foreign laws, treaties, and regulations in connection with its access or use of the System, including those related to data privacy, data security, international communications and the transmission of technical or personal data. Client will be solely responsible for ensuring that its Users receive sufficient training to enable proper access or use of the System. Client will be solely responsible for, and will bear the cost of, providing all equipment, facilities and connectivity, including without limitation any Internet access or telecommunications services, necessary to use and access the System.
2. As part of the registration and account creation process, each of Client’s Users will need a unique user name (“User Name”) and password (“Password”). User may not select a User Name that is identical to that used by another person or use a User Name that, in the sole opinion of ATSI, is offensive or inappropriate. Client shall be solely responsible for its Users’ maintaining the confidentiality of Passwords. Client is solely responsible for all usage or activity on Client’s account, including but not limited to use of Client’s account, Client’s User Names, and Password by any third party. Any fraudulent, abusive, or otherwise illegal activity may be grounds for termination of Client’s account, in ATSI’s sole discretion, and ATSI may refer Client to appropriate law enforcement agencies.

8. Confidential Information.

1. For purposes of this Agreement, “Confidential Information” means (a) with respect to each party, all nonpublic information disclosed or otherwise made available under this Agreement that relates to the provision or receipt, respectively, of the Services or either party's financial condition, operations technology or business, and that is clearly identified as confidential at the time of disclosure or that, in light of the nature of the information itself or the circumstances surrounding its disclosure, ought in good faith to be deemed confidential, (b) with respect to ATSI, the System and the Documentation and (c) with respect to Client, the Client Data (as defined below) entered into the System.
2. Obligations. Client agrees to disclose to ATSI only that Confidential Information of Client that is reasonably necessary to enable ATSI to provide the Services, and ATSI agrees to disclose to Client only that Confidential Information of ATSI that is reasonably necessary to enable Client to receive the Services. The party receiving Confidential Information (the "Receiving Party") from the other party (the "Disclosing Party") will not use any Confidential Information of the Disclosing Party for any purpose other than the provision and receipt of Services under this Agreement, respectively, in accordance with all terms and conditions of this Agreement. Further, the Receiving Party will disclose the Confidential Information of the Disclosing Party only to the employees or contractors of the Receiving Party who have a need to know such Confidential Information for purposes of this Agreement and who are under a duty of confidentiality no less restrictive than the Receiving Party's duty hereunder. The Receiving Party will protect the Disclosing Party's Confidential Information from unauthorized use, access or disclosure in the same manner as the Receiving Party protects its own confidential or proprietary information of a similar nature and with no less than reasonable care.  Client also agrees not to: (i) disclose to third parties (whether in writing or orally) any benchmark test data related to the System; and (ii) use ATSI’s Confidential Information to create, or have a third party create, any computer software or documentation that is substantially similar to the System software.
3. Termination of Obligations. The Receiving Party's obligations under this Section 8 with respect to any Confidential Information of the Disclosing Party will terminate if and when the Receiving Party can document that such information: (i) was already lawfully known to the Receiving Party at the time of disclosure by the Disclosing Party; (ii) is disclosed to the Receiving Party by a third party who had the right to make such disclosure without any confidentiality restrictions; (iii) is, or through no fault of the Receiving Party has become, generally available to the public; or (iv) is independently developed by the Receiving Party without access to, or use of, the Disclosing Party's Confidential Information. In addition, the Receiving Party will be allowed to disclose Confidential Information of the Disclosing Party to the extent that such disclosure is: (1) approved in writing by the Disclosing Party; (2) necessary for the Receiving Party to enforce its rights under this Agreement in connection with a legal proceeding; or (3) required by law or by the order or a court of similar judicial or administrative body, provided that the Receiving Party notifies the Disclosing Party of such required disclosure promptly and in writing and cooperates with the Disclosing Party, at the Disclosing Party's reasonable request and expense, in any lawful action to contest or limit the scope of such required disclosure.
4. Return of Confidential Information. The Receiving Party will return to the Disclosing Party or destroy all Confidential Information of the Disclosing Party in the Receiving Party's possession or control and permanently erase all electronic copies of such Confidential Information promptly upon the written request of the Disclosing Party.

9. Client Data.

1. Client at all times has and will have sole responsibility for the accuracy, quality, integrity, legality, reliability and appropriateness of all Data and other material that is submitted to the System.  Client represents, warrants and covenants to ATSI that: (a) Client has all necessary rights in all Client Data and other Confidential Information (including without limitation all intellectual property rights and trade secrets rights), and has obtained all necessary consents, made all necessary disclosures and otherwise complied with all applicable laws and regulations, including without limitation all privacy and data security laws and regulations, to transmit, input, load and use such Client Data and/or other Confidential Information that it enters into the System and to allow ATSI to provide the Services, as are required by applicable laws, rules or regulations; and (b) Client will employ all appropriate safeguards for the privacy and security of the Client Data and other Confidential Information solely within Client’s custody and control that will be provided to ATSI in connection with this Agreement, including without limitation the administrative, physical and technical safeguards regarding the same while such Client Data and other Confidential Information is within Client’s custody and control.
2. During the term of this Agreement, Client hereby grants to ATSI the right to receive, maintain, create derivative works of, distribute and display Client Data solely to enable ATSI to provide the Services to Client and as otherwise authorized under this Agreement.  ATSI may provide user statistical information such as usage or traffic patterns in aggregate form to third parties, but such information will not include identifying information. ATSI may access Client Data to respond to service or technical problems with the System.  Except as permitted in this Agreement, ATSI will not edit, delete, or disclose the contents of Client Data unless authorized by Client or unless ATSI is required to do so by law or in the good faith belief that such action is necessary to: (a) conform with applicable laws or comply with legal process served on ATSI; (b) protect and defend the rights or property of ATSI; (c) enforce this Agreement; or (d) perform ATSI’s obligations described in this Agreement, the Specifications or in conformance with Client’s instructions.
3. Client will be responsible or liable for the deletion of, correction of, destruction of, damage to, loss of, or failure to store any Client Data by or on behalf of Client or any User.
4. ATSI reserves the right to establish a maximum amount of memory or other computer storage and a maximum amount of Client Data that Client may store, post or transmit on or through the System; in the event that ATSI, in its sole reasonable discretion, determines that Client’s use of memory or computer storage is excessive, ATSI may notify Client regarding the same and Client will promptly either reduce such excessive use or pay any reasonable fee approved by the parties.

10. Intellectual Property.

1. ATSI Property.  Client acknowledges that, as between ATSI and Client, ATSI is and will remain sole and exclusive owner of all right, title and interest in and to the System and Documentation, and all components and portions thereof, and all other materials, information, processes and technology used by ATSI or made available to Client in connection with the Services, and any and all improvements, enhancements, updates, upgrades and modifications to any of the preceding (whether or not made in conjunction with this Agreement), and all patent, trade secret, copyright, trademark and other proprietary rights worldwide embodied in each of the preceding.
2. Client Property.  As between Client and ATSI, Client is and will remain the sole and exclusive owner of all right, title and interest in and to Client Data.
3. Protection of Proprietary Rights. Client shall not remove or obscure any proprietary, copyright, patent, trademark, design right, trade secret, or any other proprietary rights legends from the System or Documentation.

11. Limited Warranty; Disclaimer.

1. Warranty.  ATSI represents and warrants that the System and the Services provided under this Agreement will substantially conform to the Specifications and the System Documentation provided by ATSI to Client.
2. Disclaimer.  Except as expressly provided in Section 11.1 above, ATSI and its licensors expressly disclaim any and all representations, warranties and conditions of any kind or nature, express or implied, whether written or oral, including without limitation, representations, warranties and conditions of satisfactory quality, performance, merchantability, merchantable quality, durability, fitness for a particular purpose, title, non-infringement and those arising by statute or otherwise in law or from a course of dealing or use of trade. ATSI and its licensors do not represent or warrant that: (a) the Services will meet the Client’s business requirements; (b) the Services will be error-free or uninterrupted or that the results obtained from its use will be accurate or reliable; or (c) all deficiencies in the System or any Services can be found or corrected.  Some states do not allow limitations relating to implied warranties, so the above limitations may not apply to Client.
3. Acknowledgement.  Where applicable, Client acknowledges that ATSI has no control over, and no duty to take any action regarding: which Content (as defined hereafter) Client accesses via the System; what effects the Content may have on Client or any User; how Client may interpret or use the Content; or what actions Client may take as a result of having been exposed to the Content. Client releases ATSI from any and all liability for Client having acquired, used, relied on, acted upon (or not acquired) Content obtained or obtainable through the System. ATSI makes no representations or warranties concerning any content contained in or accessed through the System, and ATSI will not be responsible or liable for the accuracy, completeness, copyright compliance or legality of material or Content contained in or accessed through the System.
4. Exclusive Remedy. Except for the exclusive remedy as provided above for service level commitments, and except for the exclusive remedy provided by ATSI for infringement, for any breach of warranty or the failure of ATSI to provide the services as required herein (a “deficiency”), the Client’s sole and exclusive remedy and ATSI’s entire obligation hereunder shall be, at ATSI’s option, for ATSI to cure the deficiency or for ATSI to refund an amount equal to the amount Client paid for the deficiency reduced by any benefit received by Client for the deficiency.

12. Limitations of Liability; Indemnification.

1. Limitations.  Except as otherwise provided herein, for any breach or default by ATSI of any of the provisions of this Agreement, or with respect to any claim arising here from or related hereto, ATSI and its licensors’ entire liability, if any, shall in no event exceed annual fees paid to ATSI by Client pursuant to this Agreement in the calendar year in respect of which the cause of action first arose. Client acknowledges that the fees quoted herein are consideration for the stated limits of liability and the subscription charges and consulting fees (if applicable) would have been substantially higher if ATSI were to assume any further liability other than as set forth herein this paragraph. In no event will ATSI and its licensors be liable for special, incidental, indirect, or consequential loss or damage, lost business revenue, loss of profits, loss of data, loss of cover, damages for delay, punitive or exemplary damages, failure to realize expected profits or savings or any claim against Client by any other person, even if ATSI and its licensors have been advised of the possibility of any such losses or damages and even if the remedy set forth herein shall be deemed to have failed of its essential purpose.
2. Disclaimer.  To the fullest extent allowed by law, ATSI disclaims any liability or responsibility for the accuracy, reliability, availability, completeness, legality or operability of the content, material and/or Services provided through the System. By using the System, Client acknowledge that ATSI is not responsible or liable for any harm resulting from:  (a) use of the System; (b) the temporary or permanent inability to access or retrieve any content from the System; and (c) downloading information contained on the System, including, without limitation, harm caused by viruses, worms, trojan horses, or any similar contamination or destructive program.  The limitations specified in this Section will survive termination or expiration of this Agreement.
3. One Year Limit.  No Party may bring an action, regardless of form, arising out of or related to this Agreement (other than to recover fees or expenses due to ATSI) more than one year after the cause of action has arisen or the date of discovery of such cause, whichever is later.
4. Indemnification by Client. Subject to the provisions contained herein, Client agrees to defend, indemnify and hold ATSI and its officers, directors, employees, agents, affiliates, licensors, distributors, and resellers harmless against any loss, damage, expense, or cost, including reasonable attorneys’ fees (including allocated costs for in-house legal services) (“Liabilities”) arising out of any claim, demand, proceeding, or lawsuit by a third party relating to Client’s acts or omissions related to this Agreement.
5. Indemnification by ATSI.  In the event of a third party claim against Client asserting that Client’s use of the System infringes upon or violates any U.S. patent, copyright, trade secret, or other proprietary right, as Client’s exclusive remedy, ATSI will defend, at ATSI’s expense, and will indemnify Client and hold Client harmless against any loss, cost, expense (including attorneys’ fees), or liability arising out of such claim, whether or not such claim is successful. In the event an injunction or order should be obtained against use of the System by reason of the allegations, or if in ATSI’s opinion the System is likely to become the subject of such a claim of infringement, ATSI will, at its option and its expense, and as Client’s exclusive remedy:  (a) procure for the Client the right to continue using the System; (b) replace or modify the same so that it becomes non-infringing (such modification or replacement shall be functionally equivalent in all material respects to the original); or (c) if neither (a) nor (b) is practicable, refund any prepaid subscription fees, on a pro-rated basis, for Services not rendered and terminate this Agreement. Notwithstanding the foregoing, ATSI will not indemnify Client to the extent that the claim arises because Client altered the System or used it outside the scope of use identified in the ATSI’s user documentation. In addition, ATSI will not indemnify Client to the extent that an infringement claim is based upon (i) any information, design, specification, instruction, software, data, or material not furnished by ATSI, or (ii) any system from a third party portal or other external source that is accessible to Client within or from the System (e.g., a third-party Web page accessed via a hyperlink) or (iii) based upon the combination of any system with any products or services not provided by ATSI. This section provides Client’s exclusive remedy for any infringement claims or damages.

13. Force Majeure. Notwithstanding anything in this Agreement to the contrary, ATSI will be excused from performance hereunder for any period and to the extent that it is prevented from performing pursuant hereto, in whole or in part, as a result of delays caused by Client or a Force Majeure Event.  For purposes of this Agreement, “Force Majeure Event” means an act of God, war (whether or not actually declared), armed conflict or the serious threat of the same, hostility, blockade, military embargo, sabotage, insurrection, rebellion, act of a public enemy, riot or other act of civil disobedience, governmental act, judicial action, explosion, act of terrorism or threat thereof (including cyberterrorism), natural disaster (including without limitation asteroid strikes or volcanic activity), violent storm (including without limitation hurricanes, tornados or blizzards), atmospheric disturbance (including without limitation geomagnetic storm, solar flare or sun outage with respect to electricity grids, transformers and satellite transmissions), destruction by lightning, fire, earthquake, tsunami, flood, plague, epidemic, pan-epidemic, quarantine, civil commotion, strike or lockout or labor dispute (excluding for the avoidance of doubt strikes of ATSI’s staff), satellite malfunction, prolonged internet outage, communications line failure or power failure.
14. Waiver of Jury Trials and Binding Arbitration.

1. CLIENT AND ATSI ARE AGREEING TO GIVE UP ANY RIGHTS TO LITIGATE CLAIMS IN A COURT OR BEFORE A JURY. OTHER RIGHTS THAT CLIENT WOULD HAVE IF CLIENT WENT TO COURT MAY ALSO BE UNAVAILABLE OR MAY BE LIMITED IN ARBITRATION.  ANY CLAIM, DISPUTE OR CONTROVERSY (WHETHER IN CONTRACT, TORT OR OTHERWISE, WHETHER PRE-EXISTING, PRESENT OR FUTURE, AND INCLUDING STATUTORY, CONSUMER PROTECTION, COMMON LAW, INTENTIONAL TORT, INJUNCTIVE AND EQUITABLE CLAIMS) BETWEEN CLIENT AND ATSI ARISING FROM OR RELATING IN ANY WAY TO CLIENT’S SUBSCRIPTION TO, ACCESS TO, OR USE OF THE SYSTEM WILL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION.
2. The arbitration will be administered by the American Arbitration Association ("AAA") under its Commercial Arbitration Rules and Mediation Procedures ("Commercial Rules"). The arbitrator will have exclusive authority to resolve any dispute relating to arbitrability and/or enforceability of this arbitration provision, including any unconscionability challenge or any other challenge that the arbitration provision or the agreement is void, voidable or otherwise invalid. The arbitrator will be empowered to grant whatever relief would be available in court under law or in equity. Any award of the arbitrator(s) will be final and binding on each of the parties, and may be entered as a judgment in any court of competent jurisdiction.
3. If any provision of this arbitration agreement is found unenforceable, the unenforceable provision will be severed, and the remaining arbitration terms will be enforced.

15. Miscellaneous.

1. Assignment. Client will not assign any of its rights or delegate any of its obligations under this Agreement without ATSI’s prior written consent. Any purported assignment or delegation in violation of this Section __ is null and void. No assignment or delegation relieves Client of any of its obligations under this Agreement.
2. Choice of Law. All matters arising out of or relating to this Agreement are governed by and construed in accordance with the internal laws of the State of Delaware without giving effect to any choice or conflict of law provision or rule (whether of the State of Delaware or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of Delaware.
3. Entire Agreement. This Agreement and all Exhibits hereto, as well as agreements and other documents referred to in this Agreement constitute the entire agreement between the Parties with regard to the subject matter hereof and thereof. This Agreement supersedes all previous agreements between or among the Parties. There are no agreements, representations, or warranties between or among the Parties other than those set forth in this Agreement or the documents and agreements referred to in this Agreement.
4. Feedback. Client may, but is not required to, provide feedback to ATSI from time to time at its discretion, which feedback will not be treated as Client’s Confidential Information. To the extent Client does provide feedback to ATSI, Client shall, and hereby does, grant ATSI a perpetual, irrevocable, non-exclusive, worldwide, transferable, assignable, sub-licensable, royalty-free, fully paid-up license to use and exploit the feedback for any purpose.
5. Independent Contractor Relationship. The relationship between the Parties to this Agreement is that of independent contractors. Neither Party is an agent, representative or employee of the other Party. Neither Party will have any right, power or authority to enter into any agreement for or on behalf of, or incur any obligation or liability of, or to otherwise bind, the other Party. This Agreement will not be interpreted or construed to create an association, agency, joint venture or partnership between the Parties or to impose any liability attributable to such a relationship upon either Party.
6. Notice. Any notice, approval, request, authorization, direction or other communication under this Agreement will be given in writing and will be deemed to have been delivered and given for all purposes (a) on the delivery date if delivered by confirmed facsimile; (b) on the delivery date if delivered personally to the Party to whom the same is directed; (c) one business day after deposit with a commercial overnight carrier, with written verification of receipt; or (d) five business days after the mailing date, if sent by U.S. mail, return receipt requested, postage and charges prepaid, or any other means of rapid mail delivery for which a receipt is available. The contact information below the Parties signatures may be used by the Parties hereto.
7. Severability. If any term or provision of this Agreement is determined to be illegal, unenforceable, or invalid in whole or in part for any reason, such illegal, unenforceable, or invalid provisions or part thereof shall be stricken from this Agreement, and such provision shall not affect the legality, enforceability, or validity of the remainder of this Agreement. If any provision or part thereof of this Agreement is stricken in accordance with the provisions of this section, then this stricken provision shall be replaced, to the extent possible, with a legal, enforceable, and valid provision that is as similar in tenor to the stricken provision as is legally possible.

8. Third-Party Beneficiaries. This Agreement does not and is not intended to confer any rights or remedies upon any person or entity other than Client and ATSI.
9. Waivers. The failure by ATSI to enforce any right or provision of this Agreement will not constitute a waiver of future enforcement of that right or provision. The waiver of any right or provision will be effective only if in writing and signed by a duly authorized representative of ATSI.

16. EU-US Privacy Shield. ATSI complies with the EU-U.S. Privacy Shield Framework as set forth by the U.S. Department of Commerce regarding the collection, use, and retention of personal information transferred from the European Union to the United States. ATSI has certified to the Department of Commerce that it adheres to the Privacy Shield Principles. If there is any conflict between the terms in this privacy policy and the Privacy Shield Principles, the Privacy Shield Principles shall govern. To learn more about the Privacy Shield program, and to view our certification, please visit:  https://www.privacyshield.gov/

In compliance with the Privacy Shield Principles, ATSI commits to resolve complaints about our collection or use of your personal information. Individuals in the European Union (EU) with inquiries or complaints regarding our Privacy Shield policy should first contact ATSI at:

help@Mindflash.com[CM6] , support@trakstar.com, support@recruiterbox.com or help@reviewsnap.com as applicable.

ATSI has further committed to cooperate with EU data protection authorities (DPAs) and comply with the advice given by such authorities with regard to unresolved Privacy Shield complaints concerning human resources data transferred from the EU in the context of the employment relationship. If timely acknowledgment of your complaint is not received from us, or if we have not addressed your complaint to your satisfaction, please contact the EU DPAs for more information or to file a complaint. The services of EU DPAs are provided at no cost to you.

ATSI does not disclose personal information to third parties, unless required to do so in response to a lawful request by public authorities, including to meet national security or law enforcement requirements. In cases of onward transfer to third parties of data of EU individuals received pursuant to the EU-US Privacy Shield, ATSI is potentially liable. Individuals have the right to access their personal data as long as a.) the individual is in good standing with their organization b.) the organization is a customer in good standing with ATSI. Individual personal data is accessible by the identified, customer-appointed system administrator of the ATSI system (contact support to identify your system administrator.) ATSI is subject to the investigatory and enforcement powers of the Federal Trade Commission (FTC). Individuals have the possibility, under certain conditions, to invoke binding arbitration before a Privacy Shield Panel.

All inquiries should be directed to:

Julie Rieken, CEO and Privacy Shield Portal Administrator

911 E. Pike St, #333

Seattle, WA 98122

support@recruiterbox.com

support@trakstar.com

help@reviewsnap.com

help@mindflash.com

ADDENDUM A

MINDFLASH ADDENDUM

If Client has subscribed to the Mindflash module of the System (“Mindflash”), then these terms govern in addition to the rest of Agreement.

 A. NON-MINDFLASH PROVIDERS

1. Acquisition of Non-Mindflash Products and Services. ATSI or third parties may make available (for example, through a marketplace or otherwise) third-party products or services, including by way of illustration but not limitation non-Mindflash applications and implementation and other consulting services (collectively, “Third Party Products”). Any access to or use by Client of such Third Party Products, and any exchange of data between Client and any third party provider of such Third Party Product (each a “Third Party Provider”), is solely between Client and the applicable Third Party Provider. ATSI does not warrant or support Third Party Proucts, whether or not they are designated by ATSI as “certified” or otherwise, except as expressly specified in an Order Form.

2. Non-Mindflash Applications and Client Data/Materials. If Client installs or enables a Third Party Product for use with a Service, then Client grants ATSI permission to allow the applicable Third Party Provider to access Client Data and Client Materials (as defined below) as required for the interoperation of that Third Party Product with the Services. ATSI is not responsible for any disclosure, modification or deletion of Client Data or Client Materials resulting from access by a Third Party Provider or Third Party Product.

3. Integration with Third Party Products. The System may contain features designed to interoperate with Third Party Products. To use such features, Client may be required to obtain access to the Third Party Products from their Third Party Providers, and Client hereby grants ATSI permission to access Client account(s), data, materials, and other information (“Client Materials”) on the Third Party Product (all of which shall be deemed Client Materials for purposes of this Agreement) to allow such Third Party Product to interoperate with the Services. ATSI is not responsible for the operation of any Third Party Product or the availability or operation of the Services to the extent such availability and operation is dependent upon a Third Party Product. If the Third Party Provider ceases to make the Third Party Product available for interoperation with the corresponding Service features on reasonable terms, ATSI may cease providing those Service features without entitling Client to any refund, credit, or other compensation.

4. Client Responsibilities. Client will (a) be responsible for complying (including, without limitation, ensuring that all Users and Client Affiliates’ Users comply) with this Agreement and ATSI’s policies available at: www.mindflash.com/acceptable-use/ each of which is incorporated into and made a part of this Agreement by reference, (b) be responsible for ensuring that Client Data and Client Materials are at all times accurate and appropriate, are not acquired or provided to ATSI in violation of any applicable law, policy, contractual restrictions, or other third party rights, and do not infringe or misappropriate any intellectual property or other rights of any party, (c) use commercially reasonable efforts to prevent unauthorized access to or use of Services, and notify ATSI promptly of any such unauthorized access or use, (d) use Services only in accordance with the Documentation and applicable laws and government regulations.

ATSI, d/b/a RECRUITERBOX ADDENDUM

 A.             Client Content Storage and Retrieval

 1.             Recruiterbox (the “Site”) may only be used to transmit and store resumes (or CVs), files associated with the process of hiring a candidate (hereinafter referred to as “Candidate”), Client Data job descriptions and comments with respect to the foregoing (all of the foregoing referred to herein as “Client Content”). You may not upload advertisements or any other materials that do not fall within the definition of “Client Content” or transmit unsolicited information, materials or data (including, without limitation, “spam” messages).

2.             You understand that Recruiterbox can be used for transmission of your Client Content.

3.             You must not transmit any worms or viruses or any code of a destructive nature or that attempts to automatically gather information from the screen (screen scraping). You may not use automated systems (“bots”) to upload multiple streams of data, such as for multiple Candidates, at once. If your bandwidth usage is excessive (as determined solely by Recruiterbox Inc.), in order to protect the responsiveness of the service for all Clients, we reserve the right to throttle your usage or disable your account until you can reduce your bandwidth consumption.

 B.             External Job Boards and Other Vendors

 1.             The System and Site may contain links to other websites and vendors. Any such links to other web sites do not represent an endorsement, sponsorship, or approval of the material on and/or generally of such website(s). Such other websites or vendors are not within the supervision or control of ATSI or the Site. Unless explicitly otherwise provided, neither ATSI nor the Site make any representation or warranty whatsoever about any third party site that is linked to the Site, or endorse the products or services offered on such website or vendors. ATSI and the Site disclaim: (a) all responsibility and liability for content on third party websites and (b) any representations or warranties as to the security of any information (including, without limitation, credit card and other personal information) you might be requested to give any third party, and you hereby irrevocably waive any claim against the Site or ATSI and its directors, officers, employees, agents and members with respect to such sites and third party content.

2.             ATSI assumes no liability for loss or damage as the result of the incorrect presentation of information, including prices and ratings, on any screen that results in a transaction of any kind, with a vendor found through using the System.

(a)            ATSI provides no warranty or guarantee that you will receive the same results as shown in the aggregated data presented on job boards or any other rating system found in the System.