Software-as-a-Service Master Subscription Agreement
Last Revised: January 1, 2021
You accept this Software-as-a-Service Master Subscription Agreement (this “MSA”) either by executing an Order Form (an “Order Form”) that references this MSA or by accessing LaunchSource’s proprietary job candidate search software as a service platform (the “Platform”) and/or any additional LaunchSource service offering. This MSA, together with any executed Order Forms and any exhibits, schedules and/or addenda thereto (collectively, the “Agreement”) set forth the terms and conditions that will govern Launch Source’s grant of access to the Platform and its performance of the services referenced on one or more Order Form(s) (the Platform and such services are referred to herein collectively as the “Services”). In the event of any conflict between this MSA and any Order Form, the terms of this MSA shall govern, except to the extent the applicable Order Form expressly overrides a provision of this MSA. Client and LaunchSource are individually hereinafter referred to as a “Party” and collectively as the “Parties”.
In this Agreement, the following capitalized terms shall have the following meanings:
“Candidate” means an individual job candidate whose profile is made available to Client for consideration for hiring through the Services.
“Client” or “You” means the Client entity identified in an Order Form;
“Intellectual Property Rights” means patents, trademarks, service marks, registered designs, applications for the foregoing, copyright and design rights, know-how, confidential information, trade and business names and any other similar protected rights in any country;
2. SCOPE OF THE AGREEMENT
2.1 Provision of Services. LaunchSource will use its best efforts to provide Client with access to the Platform and to perform the Services set forth on the applicable Order Form.
2.1 Rights to Use. LaunchSource grants Client a non-exclusive, non-transferable, limited, revocable license to access and use the Platform and Services solely during the Term set forth in the applicable Order Form and solely for Client’s internal business purposes.
2.3 Ownership and Reservation of Rights. Nothing in this Agreement shall constitute a transfer of any proprietary right by LaunchSource to Client. The Services may be protected by patent, copyright and other intellectual property laws. As between the Parties, LaunchSource owns and retains all right, title and interest in and to the intellectual property rights in and to the Services and any enhancements, modifications or derivative works thereof. As between the Parties, (i) each Party retains ownership in and to its Confidential Information (as hereinafter defined) and (ii) LaunchSource exclusively owns all right, title and interest in and to the Services and any derivative works and work product conceived, originated, or prepared in connection with the Services. All rights not specifically granted to Client in this Agreement are retained by LaunchSource. Client acknowledges the proprietary rights of LaunchSource and its LaunchSources in the Services and that LaunchSource retains all right, title and interest in and to the Services. LaunchSource reserves the right at any time to alter any features, functionality and other characteristics of the Services; provided, however, that in the event that any such alterations shall not materially limit the features or functionality of the Services during the applicable Term. LaunchSource reserves the right, in its sole and absolute discretion, to deny Client (or any user or device) access to the Platform and/or the Services, or any portion of the Platform and/or the Services, without notice.
2.4 Hosting; Third-Party Sites. LaunchSource may host the Platform on its computer servers or on servers hosted by third parties, and make the Services available to Client via the Internet. In addition, the Services may link, interface and integrate with third party software applications and websites that are not operated or controlled by LaunchSource (“Third-Party Sites”). All such Third-Party Sites shall remain the property of their third-party providers. Client hereby acknowledges and agrees that LaunchSource is not responsible for the content or practices of the Third-Party Sites. Any links to or content from Third-Party Sites in the Services are provided for Client’s convenience only. LaunchSource reserves the right to update or remove any functionality available through the Services at any time for any reason.
2.5 Availability of the Platform. Client acknowledges that access to the Services may be affected by certain mandatory actions by LaunchSource, or by events beyond the control of LaunchSource, including: (i) malfunction or failure of computer hardware or software; (ii) periodic maintenance procedures or repairs which LaunchSource may undertake from time-to-time; or (iii) causes beyond the control of LaunchSource or which are not reasonably foreseeable by LaunchSource, including interruption or failure of telecommunication or digital transmission links, hostile network attacks or network congestion or other failures.
3. CLIENT DUTIES AND RESTRICTIONS
3.1 Introductions; Hiring Process.
(a) The Services include the features set forth in the applicable Order Form, which may include a limited or unlimited number of Introductions and/or Hires as specified in the applicable Order Form. An “Introduction” shall be deemed made the first time a Candidate accepts an invitation from Client to communicate through the Services.
(b) Client agrees that it will act in good faith after accessing a Candidate’s profile through the Services to complete the hiring process through the Services and that it will not attempt to circumvent the Services by communicating with or hiring such Candidate outside the Services.
(c) Client agrees to notify LaunchSource within forty-eight (48) hours of a Candidate’s acceptance of an offer of employment.
(d) Client shall have the sole discretion to reject any Candidate for potential employment for any legally permissible reason.
(e) Notwithstanding any Candidate screening performed by LaunchSource, such as employment verification, education verification and background checks (such background checks to be performed by third party vendors), Client acknowledges that LaunchSource shall have no liability with respect to such screening and Client shall be responsible for conducting any additional due diligence that Client deems necessary in connection with its hiring decisions.
3.2 Client General Agreements. Client shall: (i) ensure Client’s designated users, officers, directors employees, contractors, representatives, agents and affiliates (collectively, “Representatives”) comply with this Agreement; (ii) take all necessary steps to prevent unauthorized access to or use of the Services, (iii) notify LaunchSource immediately of any such unauthorized access or use; (iv) comply with applicable federal, state, local, municipal, domestic and foreign laws, rules and regulations (“Law”); (v) use the Services in compliance with all applicable industry standards; (vi) use the Services only for Client’s own internal business purposes and solely in accordance with the terms of this Agreement; and (vii) use the Services solely in accordance with LaunchSource ’s instructions.
3.3 Restrictive Covenants. Client shall not, and Client will cause Client’s Representatives to not: (i) alter, change, modify, adapt, translate, or make derivative works of the Services; (ii) use the Services in a manner that violates any applicable Law; (iii) transmit any virus or programming routine intended to damage, surreptitiously intercept, or expropriate any system, data, or personal information; (iv) transfer, resell, redistribute, remarket, license, sublicense or otherwise make the Services available to any third party, except as expressly described in this Agreement; (v) set up or share any user identification numbers, passwords or LaunchSource data with other persons; (vi) use the Services for timesharing, rental, outsourcing, or a service bureau operation; (vii) attempt to gain, or assist others with attempting to gain unauthorized access to LaunchSource’s network, systems or the Services; (viii) decipher, decompile, disassemble, or reverse engineer the Platform or Services or assist or encourage any third party to do so; (viii) engage in any activity that violates the rights of others or that interferes with or disrupts the Services; or (ix) upload any file containing any back door, time bomb, Trojan horse, worm, virus or similar malicious code (“Malware”).
3.4 Additional Platform User Restrictions. Client shall not, and Client will cause Client’s Representatives to not: (i) access or use the Platform or the Services to collect any market research for any competing business; (ii) “stalk” or otherwise harass another user of the Platform and/or Services; (iii) impersonate any person or entity or falsely state or otherwise misrepresent its affiliation with a person or entity in connection with its use of the Services.
4. FEES, TERM AND TERMINATION
4.1 Fees. Client shall timely pay the fees in accordance with the payment terms set forth in the applicable Order Form, including the currency, frequency, amount and timing of payment. Unless otherwise specified on the applicable Order Form, all fees shall be due and payable in advance within fifteen (15) days of the date of Client’s receipt of LaunchSource’s invoice. The fees under this Agreement do not include, and Client shall be responsible for paying all, local, state, federal or foreign sales, use, excise, VAT or other taxes, levies, duties or tariffs of any nature that may be due relating to this Agreement and the Services provided hereunder, except for taxes based on the income of LaunchSource. LaunchSource reserves the right to charge 0.5% interest per month on late payments.
4.2 Term and Termination:
a) This MSA shall become effective on the Effective Date specified in the first Order Form and continue until cancelled by either party upon 30 days’ prior written notice to the other party. The term of each Order Form shall be the term identified in such Order Form. If any Order Form is still in effect at the time of termination or expiration of the MSA, the MSA shall remain in full force and effect according to its terms until completion of such Order Form.
b) Either party may terminate an Order Form and/or the Agreement in the event of a material breach (including non-payment) of the Order Form and/or the Agreement by the other party that is not cured within thirty (30) days after receipt of written notice thereof from the other party. In the event of late payment or non-payment by Client, LaunchSource may at its option suspend Client’s access to the Platform.
c) The Agreement may be terminated immediately by one party in the case of a dissolution, termination of existence or insolvency of a party, appointment of a receiver, or the voluntary or involuntary commencement of any other proceedings under bankruptcy or insolvency laws of the other party.
d) Upon termination or expiration of an Order Form, Client’s access to the Platform and Services provided under such Order Form will be terminated. All provisions of the MSA which by their nature are reasonably intended to survive the termination of the MSA shall survive such termination. Upon the termination or expiration of this Agreement for any reason, Client will promptly pay all outstanding fees.
a) The parties each acknowledge that the other party treats its products, development processes, business methods, business information, client data, and prices as confidential to the extent permitted by the laws applicable to this Agreement and that they constitute the commercially valuable proprietary products and/or services and trade secrets of the respective party, regardless of whether they may be copyrighted, patented or trademarked.
b) Each party will learn or receive information about the other party which the other party treats as confidential, including but not limited to all business, marketing, financial and Client-related data (“Confidential Information”), as well as product related information and information pertaining to the Agreement. All personal information provided by a Candidate shall be deemed Confidential Information provided to Client by LaunchSource. Each party agrees that Confidential Information received from the other party shall be treated as confidential and protected in the same manner as the receiving party treats its own confidential information, but with no less than reasonable care. Each party agrees not to transfer, distribute or disclose to any third party any Confidential Information of the other party, except as expressly authorized in writing by the other and shall confine knowledge and use of the Confidential Information received by the other to those of its employees and contractors who require such knowledge and use of the information in the ordinary course of and scope of their employment pursuant to this Agreement, and who are under an obligation to keep such information confidential. Notwithstanding the foregoing, Confidential Information shall not include information which (i) has entered the public domain by no action of the receiving party hereunder, (ii) was already rightfully in the possession of the receiving party when received by the disclosing party, or (iii) was developed independently by the receiving party by individuals without access to the disclosing party’s information. In addition, Confidential Information may be disclosed if it is required to be disclosed pursuant to an order of a court or governmental agency, provided that the receiving party shall first notify the disclosing party and afford the disclosing party the opportunity to seek a protective order relating to such disclosure. LaunchSource may collect, analyze and anonymize data, statistics or other information obtained through the provision, use and performance of various aspects of the Services and aggregate such data, statistics or other information with data, statistics or other information (collectively, “Analytics”) obtained from other sources, and may use such Analytics for lawful business purposes, including improvement of the Platform and the Services, as long as in doing so LaunchSource does not re-identify, or attempt to re-identify, any of the Analytics or otherwise link or associate Analytics with any information relating to (i) Client, or (ii) an identified or identifiable natural person.
c) The obligations of the parties, with regard to the Confidential Information of the other that constitutes trade secrets, shall remain in effect for as long as such Confidential Information shall remain a trade secret under applicable law. All other Confidential Information shall remain protected during the Term and for three (3) years thereafter.
6. WARRANTIES, DISCLAIMERS AND LIMITATION OF LIABILITY
6.1 Warranties. Each Party represents and warrants to the other that: (i) it is duly organized and existing under the laws of the state of its formation; (ii) it has all requisite power and authority to enter into this Agreement; (iii) there is no outstanding contract, commitment or agreement to which it is a party that conflicts with this Agreement, and (iv) its activities relating to this Agreement will not violate any applicable Law. LaunchSource will use reasonable efforts not to transmit Malware to Client, provided that it shall not be a breach of LaunchSource’s covenant to Client if Client or Client’s designated user uploads a file containing Malware in contravention of Client’s obligations under Section 3.3.
6.2 Warranty Disclaimer. EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, LAUNCHSOURCE MAKES NO WARRANTY, (EXPRESS, IMPLIED OR STATUTORY) AND HEREBY DISCLAIMS ANY AND ALL WARRANTIES, REPRESENTATIONS, OR CONDITIONS, INCLUDING THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND ANY WARRANTY ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE. ALL SERVICES PROVIDED BY LAUNCHSOURCE ARE PERFORMED AND PROVIDED ON AN “AS-IS”, “AS AVAILABLE” AND “WITH ALL FAULTS” BASIS. LAUNCHSOURCE DOES NOT WARRANT THAT THE SERVICES OR ITS WORK PRODUCT WILL MEET CLIENT’S REQUIREMENTS OR THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, OR WITHOUT DELAY. CLIENT ACKNOWLEDGES THAT, AS A SAAS-BASED SERVICE, THE FUNCTIONALITY AND INTERFACES OF THE SERVICES MAY CHANGE OVER TIME.
6.3 Limitation of Liability. IN NO EVENT SHALL EITHER PARTY, THEIR EMPLOYEES, AGENTS, OFFICERS, DIRECTORS OR LAUNCHSOURCE’S THIRD PARTY PROVIDERS BE LIABLE IN ANY WAY WHATSOEVER UNDER THIS AGREEMENT OR IN ANY WAY RELATED TO THE SERVICES TO THE OTHER PARTY, FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OR FOR ANY LOST PROFITS OR BUSINESS REVENUE, LOST BUSINESS, LOSS OF DATA, FAILURE TO REALIZE EXPECTED SAVINGS, OR OTHER COMMERCIAL OR ECONOMIC LOSS OF ANY KIND WHATSOEVER REGARDLESS OF WHETHER SUCH COSTS, LOSSES OR DAMAGES ARE/WERE FORESEEABLE OR SUCH PARTY, ITS EMPLOYEES, AGENTS, OFFICERS OR DIRECTORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH COSTS, LOSSES OR DAMAGES.
IN ADDITION, IN NO EVENT WILL LAUNCHSOURCE HAVE ANY LIABILITY ARISING FROM OR RELATING TO (1) THE RESULTS OF ANY VERIFICATION OR BACKGROUND CHECK PERFORMED BY LAUNCHSOURCE WITH RESPECT TO ANY CANDIDATE OR (2) THE JOB PERFORMANCE OR ACTIONS OR OMMISSIONS OF ANY CANDIDATE HIRED BY CLIENT .
THE MAXIMUM LIABILITY OF EITHER PARTY FOR ALL DIRECT DAMAGES, LOSSES, AND CAUSES OF ACTION (WHETHER IN CONTRACT, TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE, OR OTHERWISE, SHALL BE THE TOTAL AMOUNT, IF ANY, PAID TO LAUNCHSOURCE BY CLIENT, FOR THE SERVICES IN THE TWELVE (12) MONTHS PRIOR TO THE CAUSE OF ACTION AROSE. THE FOREGOING LIMITATIONS AND EXCLUSIONS OF LIABILITY SHALL APPLY REGARDLESS OF WHETHER THE CLAIM AROSE IN CONTRACT INCLUDING A FUNDAMENTAL BREACH, TORT INCLUDING NEGLIGENCE, STRICT LIABILITY OR UNDER STATUTE.
Notwithstanding anything to the contrary, the exclusions and limitations set forth in shall not apply with respect to: (i) the parties’ respective obligations under Section 7 (Indemnification), or (ii) breach of Section(s) 3, 4.1 or 5.
LaunchSource agrees to indemnify, defend and hold Client, its officers, directors, employees, agents and representatives harmless from and against any and all third party claims, damages, losses, costs (including reasonable attorneys’ fees), or other expenses that arise out of or from (a) a breach of its confidentiality obligations under this Agreement; (b) an infringement of the Intellectual Property Rights of a third party; (c) a breach of the limited warranties set forth in Section 6.1, provided that LaunchSource is notified promptly by Client of any such claims. LaunchSource shall have sole control over the defense of any such claims. All settlements must be agreed to by Client. If a judgment is obtained against Client’s use of the LaunchSource Services, or if LaunchSource reasonably believes that there is a likelihood of a claim of infringement of Intellectual Property Rights, LaunchSource shall, at LaunchSource’s option and expense, modify or substitute the affected Services (but provide Client with substantially the same equivalent); obtain the right to continued use; or in the event that the claim of infringement relates to the Services and none of the foregoing are reasonably available on commercial terms, LaunchSource may terminate the Client’s right to use the Services at issue and take back the affected Services. In the event of such termination, LaunchSource will refund any fees pre-paid by Client hereunder pro-rated for the period that LaunchSource cannot provide access to the Services.
Client agrees to indemnify, defend and hold LaunchSource its officers, directors, employees, agents and representatives harmless from and against any and all third party claims, damages, losses, costs (including reasonable attorneys’ fees), or other expenses that arise out of or from (a) a breach of Section 3 or Section 6.1 of this Agreement; b) an infringement of the Intellectual Property Rights of a third party caused by Client, provided that Client is notified promptly by LaunchSource of any such claims. All settlements must be agreed to by LaunchSource.
LaunchSource shall maintain during the Term of each Order Form, insurance policies of commercially types and with commercially reasonable coverage levels for LaunchSource’s business. Without limiting the foregoing, such insurance shall include insurance for comprehensive general liability, errors and omissions, and data breach incidents. LaunchSource shall provide Client with a certificate of insurance upon Client’s request prior to the execution of the Agreement or at any point during the Term of any Order Form.
9.1 Assignment: Except as otherwise provided herein, neither party shall have the right to assign or otherwise transfer its rights and obligations under this Agreement except with the prior written consent of the other party, such consent not to be unreasonably withheld. Any prohibited assignment shall be null and void. Notwithstanding the foregoing, either party may assign its rights and obligations under this Agreement to a parent, an affiliate, division, subsidiary or an entity, which acquires all or substantially all of that party’s business, which is related to this Agreement. This Agreement is binding on the parties’ respective successors and permitted assigns. LaunchSource reserves the right to terminate this Agreement if Client assigns this Agreement to a direct competitor of LaunchSource (which determination shall be in LaunchSource’s sole discretion).
9.2 Governing Law; Jurisdiction: The laws of the Commonwealth of Massachusetts (without giving effect to its conflicts of law principles) govern all matters, including tort claims, arising out of or relating to this Agreement, including, without limitation, its validity, interpretation, construction, performance, and enforcement. Any dispute arising between the Parties will be settled in an action commenced and maintained in any court sitting in Suffolk County, Massachusetts. The Parties irrevocably consent and submit to the exclusive personal jurisdiction of such courts if there is any dispute between them and agree not to challenge or assert any defense to the jurisdiction of such courts.
9.3 Severability: The provisions of this Agreement shall be deemed severable. If any provision or any part thereof is, for any reason, held to be invalid or unenforceable in any respect under the laws of any jurisdiction where enforcement is sought, such invalidity or unenforceability will not affect any other provision of this Agreement and this Agreement will be construed as if such invalid or unenforceable provision or part thereof had not been contained therein
9.4 Amendments: This Agreement may be modified or amended by written Agreement of the parties only.
9.5 Notices: Unless otherwise specified, all notices and other communications provided for under this Agreement shall be in writing (including e-mail, facsimile or similar electronic communication) and mailed, hand-delivered or electronically transferred:
Temp Mailing Address:
18 Dean Rd.
Brookline, MA 02445
Attn: Sasanka Atapattu, CEO
9.6 Waivers: Any consent by any party to, or waiver of, a breach by the other, whether express or implied, shall not constitute consent to, or a waiver of any other, different or subsequent breach. Failure to enforce any provision of this Agreement shall not constitute a waiver of any term hereof.
9.7 Force Majeure: LaunchSource shall not be held liable for inadequate performance to the extent caused by acts or conditions beyond the reasonable control of LaunchSource, including but not limited to acts of nature, war, acts of terrorism, riots, strikes or labor disputes, embargoes, government orders, internet disturbances or any other force majeure event.
9.8 Entire Agreement; Governing Terms: This Agreement constitutes the entire agreement between the parties hereto with respect to the Services agreed to by the parties in the Order Form(s), and cancels and supersedes any prior understanding and agreements between the parties relating thereto. There are no representations, warranties, terms, conditions, undertakings or collateral agreements, express, implied, statutory or otherwise between the parties, except as expressly set forth in this Agreement.
9.9 Relationship. This Agreement does not create any agency, partnership, franchise, joint venture, or any other such relationship between the Parties. Neither Party is granted any express or implied right or authority to assume or create any obligation on behalf of or in the name of the other Party or to bind the other Party in any matter whatsoever.