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This Services Agreement (this “Agreement”) is by and between TalentQuest LLC, a Georgia limited liability company (“TalentQuest”) and the Client listed on the Order Form (“Client”; and together with TalentQuest, the “Parties”, and each a “Party”).

WHEREAS, Client desires to retain TalentQuest to provide certain services and related deliverables as more particularly described in the Order Form, and TalentQuest is willing to provide such services and deliverables under the terms and conditions described in the Order Form.

NOW, THEREFORE, in consideration of the mutual covenants and agreements hereinafter set forth and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, TalentQuest and Client agree as follows:

1. Order Form. Order Form means an ordering document or online order specifying the Services to be provided hereunder that is entered into between Client and TalentQuest or any of their Affiliates, including any addenda and supplements thereto. By entering an Order Form hereunder, an Affiliate agrees to be bound by the terms of this Agreement as if it were an original party hereto.

2. Services. TalentQuest shall provide to Client the services (the “Services”) set out in one or more Order Forms to be mutually agreed upon between TalentQuest and Client from time to time (each, a “Order Form”). The Parties may change the scope of the Services or add additional Services only by executing additional Order Forms (in each case, in writing and signed by an authorized representative of each Party). TalentQuest shall designate employees or contractors to perform the Services.

3. TalentQuest System. If Client accesses or will access TalentQuest’s web-based talent management system (including any enhancements, modifications, updates, upgrades, translations, adaptations and information pertaining thereto, the “TalentQuest System”), the additional Order Form and terms and conditions set forth in the Order Form shall apply.

4. Client’s Obligations. Client shall:

4.1 Respond promptly to any reasonable requests from TalentQuest for instructions, information or approvals required by TalentQuest to provide the Services.

4.2 Cooperate with TalentQuest in its performance of the Services and provide access to Client’s premises, employees, contractors and equipment as required to enable TalentQuest to provide the Services.

4.3 Take all steps necessary, including obtaining any required licenses or consents, to prevent Client-caused delays in TalentQuest’s provision of the Services.

5. Fees and Expenses; Payment.

5.1 In consideration of the provision of the Services by TalentQuest and the rights granted to Client under this Agreement, Client shall pay the fees set out in the applicable Order Form. Client shall also reimburse TalentQuest for all reasonable expenses (including without limitation, printing, mailing, facilities rentals and travel and travel-related expenses) incurred in connection with this Agreement.

5.2 Unless otherwise provided in the applicable Order Form, all fees and expenses will be payable within thirty (30) days of receipt by Client of an invoice from TalentQuest. All fees payable hereunder shall be paid in US Dollars.

5.3 Client shall be responsible for all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state or local governmental entity on any amounts payable by Client hereunder; provided, that, in no event shall Client pay or be responsible for any taxes imposed on, or with respect to, TalentQuest’s income. TalentQuest shall include applicable taxes on invoices for the Services, at any time and from time to time as such taxes are or become applicable, unless Client provides applicable sales tax exemption certificate(s) prior to provision of the Services.

5.4 Except for invoiced amounts that Client has disputed, Client shall not withhold any payments or make any setoff against any payments due hereunder. All late payments shall bear interest at the lesser of the rate of 1½% per month or the highest rate permissible under applicable law. Client shall also reimburse TalentQuest for all costs incurred in collecting any late payments, including, without limitation, attorneys’ fees.

6. Representations of Each Party. Each Party hereby represents and warrants to the other that: (a) it has all right, power and authority necessary to enter into this Agreement and perform its obligations hereunder; (b) its entry into this Agreement does not and will not violate any agreement with any other party; and (c) its performance under this Agreement will conform to applicable laws and government rules and regulations.

7. Limited Warranties.

7.1 TalentQuest warrants that it shall perform the Services (a) in accordance with the terms and subject to the conditions set out in the applicable Order Form and this Agreement, and (b) in a timely, workmanlike and professional manner in accordance with generally recognized industry standards for similar services.

7.2 TalentQuest’s sole and exclusive liability and Client’s sole and exclusive remedy for breach of the warranties provided in Section 7.1 above shall be as follows:

(a) TalentQuest shall use reasonable commercial efforts to promptly cure any such breach and re-perform any Services or Deliverables (as defined below) not in compliance with the warranty; provided, that if TalentQuest cannot cure such breach within a reasonable time (but no more than thirty (30) days) after Client’s written notice of such breach, Client may, at its option, terminate the applicable Order Form by serving written notice of termination in accordance with Section 10.2.
(b) In the event the applicable Order Form is terminated pursuant to Section 7.2(a) above, TalentQuest shall, within thirty (30) days after the effective date of termination, refund to Client any fees paid by Client as of the date of termination solely with respect to the Services and/or Deliverables that are the subject of the breach, less a deduction for Client’s actual receipt or use of all or such portion of such Services and/or Deliverables that were in compliance with this Agreement up to and including the date of termination on a pro-rated basis, as reasonably determined by TalentQuest.
(c) The foregoing remedy shall not be available unless Client provides written notice of such breach within thirty (30) days after delivery of the applicable Services or Deliverables to Client.

7.3 EXCEPT FOR THE WARRANTIES EXPRESSLY SET FORTH IN THIS AGREEMENT, ALL OTHER WARRANTIES OF ANY NATURE CONCERNING THIS AGREEMENT, THE SERVICES, THE DELIVERABLES AND/OR THE TALENTQUEST SYSTEM, WHETHER ORAL OR WRITTEN, EXPRESS OR IMPLIED, PARTICULARLY INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, ARE EXPRESSLY DISCLAIMED.

8. Intellectual Property. Due to the proprietary and confidential nature of the Services and Deliverables provided hereunder, the Parties acknowledge and agree that all intellectual property rights, including copyrights, patents, patent disclosures and inventions (whether patentable or not), trademarks, service marks, trade secrets, know-how or other confidential information, trade dress, trade names, logos, corporate names and domain names, together with all of the goodwill associated therewith, derivative works and all other rights (collectively, “Intellectual Property Rights”) in and to all documents, work product and other materials that are delivered to Client under this Agreement or prepared by or on behalf of TalentQuest in the course of performing the Services, including any items identified as such in an Order Form (collectively, the “Deliverables”), but excluding any Confidential Information (as defined below) of Client, shall be owned by TalentQuest. TalentQuest hereby grants to Client a license to use the Intellectual Property Rights in the Deliverables on a non-exclusive, worldwide, non-transferable, non-sublicenseable, fully paid-up, royalty-free and perpetual basis, solely to the extent necessary to enable Client to make reasonable use of the Deliverables and the Services. In the event that Client should, by operation of law or otherwise, be deemed to own any such Intellectual Property Rights, Client does hereby assign all right, title and interest in and to such Intellectual Property Rights to TalentQuest.

9. Confidentiality. From time to time during the term of this Agreement, either Party (as the “Disclosing Party”) may disclose or make available to the other Party (as the “Receiving Party”), non-public proprietary and confidential information of the Disclosing Party or its affiliates, customers or vendors, whether disclosed in writing or other tangible form or orally, and whether or not labeled as “confidential” (“Confidential Information”); provided, however, that Confidential Information does not include any information that: (a) is or becomes generally available to the public other than as a result of the Receiving Party’s breach of this Section 8; (b) is or becomes available to the Receiving Party on a non-confidential basis from a third-party source, provided that such third party is not and was not prohibited from disclosing such Confidential Information; (c) was in the Receiving Party’s possession prior to the Disclosing Party’s disclosure hereunder; or (d) was or is independently developed by the Receiving Party without using any Confidential Information. The Receiving Party shall: (i) protect and safeguard the confidentiality of the Disclosing Party’s Confidential Information with at least the same degree of care as the Receiving Party would protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care; (ii) not use the Disclosing Party’s Confidential Information, or permit it to be accessed or used, for any purpose other than to exercise its rights or perform its obligations under this Agreement; and (iii) not disclose any such Confidential Information to any person or entity, except to the Receiving Party’s employees, agents and representatives who need to know the Confidential Information to assist the Receiving Party, or act on its behalf, to exercise its rights or perform its obligations under this Agreement (and the Receiving Party shall ensure that all such persons comply with the provisions of this Section 8). If the Receiving Party is required by applicable law or legal process to disclose any Confidential Information, it shall, prior to making such disclosure, use commercially reasonable efforts to notify the Disclosing Party of such requirements to afford the Disclosing Party the opportunity to seek, at the Disclosing Party’s sole cost and expense, a protective order or other remedy. Either Party is entitled to seek enforcement of its rights under this Section 8 by application in any court of competent jurisdiction for injunctive or other equitable relief.

10. Term, Termination and Survival.

10.1 This Agreement shall commence on the date Client first accepts, unless otherwise called out in the Order Form, and shall continue thereafter until all Services have been performed and all Deliverables have been delivered under all Order Forms, unless sooner terminated pursuant to Section 10.2 or 10.3.

10.2 Either Party may terminate this Agreement or any Order Form, effective upon written notice to the other Party (the “Defaulting Party”), if the Defaulting Party breaches this Agreement or such Order Form, and such breach is incapable of cure, or with respect to a breach capable of cure, the Defaulting Party does not cure such breach within thirty (30) days after receipt of written notice of such breach.

10.3 Notwithstanding anything to the contrary in Section 10.2 and in addition to all other remedies available under this Agreement or at law, if Client fails to pay any amount when due hereunder and such failure continues for ten (10) days after Client’s receipt of written notice of nonpayment, TalentQuest may (a) suspend the provision of Services, or (b) terminate this Agreement or the applicable Order Form on written notice.

10.4 Upon the termination or expiration of this Agreement, Client shall immediately remit to TalentQuest any fees and expenses due and not yet paid under this Agreement. The rights and obligations of the parties set forth in this Section 10.4 and in Sections 5 through 9 and 11 through 24, and any right or obligation of the Parties in this Agreement which, by its nature, should survive the termination or expiration of this Agreement, will survive any such termination or expiration of this Agreement.

11. Limitation of Liability.

11.1 IN NO EVENT SHALL TALENTQUEST BE LIABLE TO CLIENT OR TO ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT OR LOSS OF DATA OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES, WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER OR NOT THE PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.

11.2 IN NO EVENT SHALL TALENTQUEST’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE AMOUNTS PAID OR PAYABLE TO TALENTQUEST PURSUANT TO THE APPLICABLE ORDER FORM IN THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.

12. Indemnification.

12.1 Subject to Section 11 above, each Party will indemnify, defend and hold harmless the other Party, its affiliates, and their respective employees, directors, officers, principals (partners, shareholders or holders of an ownership interest, as the case may be) and agents, from and against any third party claims, demands, losses, damages or expenses (including reasonable attorneys’ fees and court costs) relating to or arising out of (a) a breach of any of the representations, warranties, covenants or agreements set forth in this Agreement, or (b) the gross negligence or willful misconduct of the indemnifying Party, its personnel or agents during the performance or receipt of the Services or Deliverables, or (c) with respect to Client, Client’s use of the Services or Deliverables, including without limitation Client’s use of the TalentQuest System.

12.2 To receive the indemnities contained in Section 12.1, the Party seeking indemnification must promptly notify the indemnifying Party in writing of a claim or suit and provide reasonable cooperation (at the indemnifying Party’s expense) and full authority to the indemnifying party to defend or settle the claim or suit, provided that (a) the indemnified party shall be entitled to participate in the defense of such matter and to employ counsel of its own choosing and at its own expense to assist in the handling of such matter, and (b) the indemnifying Party shall obtain the prior written approval of the indemnified Party, which approval shall not be unreasonably withheld or delayed, before entering into any settlement of such matter or ceasing to defend against such matter.

13. Entire Agreement; Amendments. This Agreement, including and together with any related Statements of Work, exhibits, schedules, attachments and appendices, constitutes the sole and entire agreement of the Parties with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, regarding such subject matter. Titles or headings of Sections contained in this Agreement are inserted only as a matter of convenience and for reference, and in no way define, limit, extend, or prescribe the scope of this Agreement or the intent of any of its provisions. The Parties acknowledge and agree that if there is any conflict between the terms and conditions of this Agreement and the terms and conditions of any Order Form, the terms and conditions of this Agreement shall supersede and control. No amendment to or modification of this Agreement is effective unless it is in writing and signed by an authorized representative of each Party.

14. Further Assurances. The Parties agree to execute any and all such further agreements, instruments, or documents, and to take any and all such further actions as may be required, necessary, or desirable to effect the transactions contemplated by this Agreement.

15. Notices. All notices, requests, consents, claims, demands, waivers and other communications under this Agreement (each, a “Notice”) must be in writing and addressed to the other Party at its address set forth in the Order Form (or to such other address that the receiving Party may designate from time to time in accordance with this Section). All Notices must be delivered by personal delivery, nationally recognized overnight courier or certified or registered mail (in each case, return receipt requested, postage prepaid), or by email with confirmation of transmission. Except as otherwise provided in this Agreement, a Notice is effective on receipt by the receiving Party.

16. Severability. If any term or provision of this Agreement is found by a court of competent jurisdiction to be invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.

17. Waiver. No waiver by any Party of any of the provisions of this Agreement shall be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement shall operate or be construed as a waiver thereof, nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.

18. Assignment. This Agreement is binding on and inures to the benefit of the Parties to this Agreement and their respective successors and permitted assigns. Client shall not assign, transfer or delegate any of its rights or delegate any of its obligations under this Agreement without the prior written consent of TalentQuest. Any purported assignment or delegation by Client in violation of this Section 17 shall be null and void. No permitted assignment or delegation shall relieve Client of any of its obligations under this Agreement.

19. No Third-Party Beneficiaries. This Agreement benefits solely the Parties to this Agreement and their respective successors and permitted assigns and nothing in this Agreement, express or implied, confers on any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.

20. Independent Contractors. The Parties are and shall be independent contractors to one another, and nothing herein shall be deemed to cause this Agreement to create an employment or agency relationship, partnership or joint venture between the Parties or to authorize any Party to enter into any commitment or agreement binding on the other Party.

21. Choice of Law; Choice of Forum; Waiver of Jury Trail. This Agreement and all matters arising out of or relating to this Agreement, is governed by, and is to be construed in accordance with, the laws of the State of Georgia, without regard to the conflict of laws provisions thereof to the extent such principles or rules would require or permit the application of the laws of any jurisdiction other than those of the State of Georgia. Each Party irrevocably and unconditionally agrees that it will not commence any action, litigation or proceeding of any kind whatsoever against the other Party in any way arising from or relating to this Agreement in any forum other than the United States District Court for the Northern District of Georgia or the courts of the State of Georgia sitting in Fulton County, Georgia and any appellate court thereof. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of such courts and agrees to bring any such action, litigation or proceeding only in such courts. Each Party agrees that a final judgment in any such action, litigation or proceeding is conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law. EACH PARTY ACKNOWLEDGES THAT ANY CONTROVERSY THAT MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES AND, THEREFORE, EACH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT.

22. Counterparts. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement. A signed copy of this Agreement delivered by facsimile, email or other means of electronic transmission is deemed to have the same legal effect as delivery of an original signed copy of this Agreement.

23. Force Majeure. TalentQuest shall not be liable or responsible to Client, nor be deemed to have breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of TalentQuest, including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, lock-outs, strikes or other labor disputes (whether or not relating to either Party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage; provided that, if the event in question continues for a continuous period in excess of ninety (90) days, Client shall be entitled to give notice in writing to TalentQuest to terminate this Agreement or the applicable Order Form.

24. Press Releases/Publications. Client agrees that TalentQuest may reference this Agreement and its relationship with Client in product literature, advertisements, articles, press releases, marketing literature, presentations and the like.

SYSTEM LICENSE AND ADDITIONAL TERMS AND CONDITIONS

1. TalentQuest System License Grant. The Parties acknowledge and agree that all Intellectual Property Rights in and to the TalentQuest System (including without limitation, all Deliverables, content and data therein, URLs, domain names, technology, software, code, user interfaces and “look and feel” associated therewith, and other Deliverables and items posted on or used in connection or associated with the TalentQuest System, and any goodwill arising out of Client’s use of the TalentQuest System), but excluding any Confidential Information of Client, shall be owned by TalentQuest. In the event that Client should, by operation of law or otherwise, be deemed to own any such Intellectual Property Rights, Client does hereby assign all right, title and interest in and to such Intellectual Property Rights to TalentQuest. Subject to the terms and conditions of the Services Agreement and this Order Form, TalentQuest hereby grants to Client a limited license (the “License”), on a non-exclusive, worldwide, non transferable, non-sublicenseable basis, solely for its internal hiring, employment and talent management purposes, to: (a) access the TalentQuest System in order to utilize the functionality of the TalentQuest System modules for which Client has subscribed hereunder, and (b) to view and use the Deliverables, content and data available within such TalentQuest System modules. The Parties acknowledge and agree that the TalentQuest System, the Deliverables and all content and data therein shall be deemed to be Confidential Information of TalentQuest. Client is expressly prohibited from removing, altering, editing, masking or otherwise changing any trademark identifiers, serial numbers or other program identifiers or information in the TalentQuest System; editing, revising, changing or otherwise modifying the TalentQuest System; seeking to decompile the TalentQuest System; or attempting to reverse engineer or otherwise generate source code versions therefrom.

2. Client Data. Notwithstanding the foregoing, the Parties acknowledge and agree that Client shall own any Confidential Information of Client residing in the TalentQuest System (“Client Data”). Client hereby grants to TalentQuest a License, on a non-exclusive, worldwide, non transferable, non-sublicenseable, fully paid-up, royalty-free and perpetual basis, to (a) store, maintain and access Client Data for application support purposes, and (b) use Client Data for the purpose of preparing statistical analyses and other data compilations, as well as using Client Data on an aggregate basis; provided, however, that TalentQuest will not reveal any personally identifiable information of any person or specific user of Client.

3. Client’s Access to the TalentQuest System. TalentQuest shall provide Client with username(s) and password(s) for personnel who are authorized to access the TalentQuest System. Client is solely responsible for use of and access to the TalentQuest System using the usernames assigned to it. If Client learns or suspects that unauthorized use of its account is taking place, or if the individual user’s employment with Client is terminated, then Client shall immediately notify TalentQuest in writing and TalentQuest will remove or replace the username and password.

4. Security. Client is solely responsible for maintaining the security of all usernames and passwords granted to it, for the security of its information systems used to access the TalentQuest System, and for its users’ compliance with the terms of the Services Agreement and this Order Form. TalentQuest has the right at any time to terminate or suspend access to any user or to Client if TalentQuest believes in good faith that such termination or suspension is necessary to preserve the security, integrity, or accessibility of the TalentQuest System.

5. Client’s Employee Population. The License granted herein assumes access to the TalentQuest System for up to the employee count listed in the Order Form. Client’s employee population may be reviewed from time to time to take into effect additions to Client’s employee population and subscription fees for the License may be increased accordingly, based on TalentQuest’s then-current pricing list.

6. NO WARRANTIES. CLIENT ASSUMES ALL LIABILITY AND RISKS ARISING OUT OF OR RESULTING FROM CLIENT’S ACCESS OR USE OF THE TALENTQUEST SYSTEM. TALENTQUEST MAKES NO WARRANTIES OF ANY NATURE, WHETHER ORAL OR WRITTEN, EXPRESS OR IMPLIED, PARTICULARLY INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT OR THAT CLIENT’S ACCESS TO THE TALENTQUEST SYSTEM WILL BE UNINTERRUPTED OR ERROR FREE, AND ANY SUCH WARRANTIES ARE EXPRESSLY DISCLAIMED.

7. Rights and Obligations of Client upon Expiration or Termination. Upon the expiration or termination of this Order Form:

a. Client shall immediately cease any and all usage of the TalentQuest System and terminate any and all internal links or access to the TalentQuest System.
b. Provided that Client has paid all amounts due under the Agreement and this Order Form in full, the License may be extended by TalentQuest for a period of twelve (12) months from and after the expiration or termination of this Order Form, solely for purposes of Client accessing and viewing reports available within the TalentQuest System as of the effective date of expiration or termination of this Order Form.

Last updated on 24 September 2021

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