Terms of Service
Introduction
You are entering into this Agreement with Analog (Sphere, Inc. or, as used herein, "Analog", "We", "Our", or "Us"). When You (individually or the entity that You represent) use Our Services, You are agreeing to the Terms of Service (the “Agreement”) below.
By accessing the Services, You agree to be bound by this Agreement, and any additional terms referenced herein, including Our Privacy Policy. If You do not agree to this Agreement, the Privacy Policy, and any other referenced agreements or documentation, You must not access the Services. In agreeing, You also represent that You are at least eighteen (18) years of age, have the authority to bind Yourself or the company You represent, and have disclosed all information to Analog as necessary to perform the Services, including the name of all companies with which You are associating. Capitalized terms are as defined throughout this Agreement.
Services
This Agreement applies to www.analog.com.ai and www.analogstaffing.com (the “Analog Site” and/or the “Analog Service”), Analog-branded app (the “App”), and other Analog-related sites, apps, communications and other services that state that they are offered under this Agreement (“Services”). This Agreement applies to all registered users of Our Services (“Users,” or as used herein, “You,” “Your”, “Yourself”), including, but not limited to, Users who are seeking employment and/or contractor opportunities through Our Services (“Candidates”) and companies interested in hiring or engaging Candidates (“Clients”). If You engage a Candidate and the Candidate works in a country other than the country in which Your office through which You engaged the Candidate is located, You will be bound by the geographic-specific terms applicable to the region in which the Candidate works.
Registration and Account Information
In order to use Our Services, You may register for an account. In registering, You agree to provide accurate, current, and complete information about Yourself ("Registration Data") and update it as necessary. If Analog has reason to believe that Your Registration Data is inaccurate, outdated, or incomplete, Analog may suspend or terminate Your account and refuse any and all use of the Services. You agree You will not (a) create an account using a false identity or information that is not your own; (b) have more than one account; (c) create an account or use the Services if You have been previously removed from the Services. We reserve the right, in Our sole discretion, to accept or reject Your registration to use Our Services. If Your registration is accepted, You will be allowed access to the Services.
You will be responsible for maintaining the confidentiality of your password and account and will be fully responsible for any and all activities that occur under your account. You agree to immediately notify Us of any unauthorized use of Your account or any other breach of account security. We will not be liable for any loss or damage arising from your failure to comply with this paragraph.
Your Responsibilities
You are responsible for Your use of the Services and for any use of the Services made using Your account, including by any third parties. You agree not to access, copy, or otherwise use the Services beyond the permitted use hereunder. When using Our Services, You agree that You will not (1) copy or distribute any part of the Services, including by way of automated or non-automated "scraping" (2) use any automated systems including "robots" and "spiders" (3) interfere with or compromise Our systems’ integrity or decipher any server transmissions (4) impose any unreasonably large load on Our infrastructure (5) upload viruses or worms to the Service (6) collect or retain any personally identifiable information contained in the Service (7) access the Service by any means other than authorized herein, including virtual private networks which are expressly forbidden (8) stalk, harass, bully or harm others (9) impersonate any person or entity (10) hack, spam, phish, or otherwise provide fraudulent, manipulative, or inflammatory content. Your continued access to Our Services are contingent on Your agreement to act in a professional manner.
Third Party Agents
You may permit third party agents to use the Service on Your behalf (“Third Party Agents”) for the sole purpose of delivering services to You. You are fully responsible for Your Third Party Agents’ actions and any breach of this Agreement by a Third Party Agent shall be deemed to be a breach by You.
Third Party Services
Analog may provide to You, or provide Your Content to, certain third party services or third party service providers (collectively, "Third Party Service(s)") which may also provide to You links to sites, job postings, email and telephone correspondence and other offers outside of the Analog network. Such Third Party Services are provided "AS IS" without indemnification, support, or warranty of any kind, and this Agreement does not apply to Your use of any such provided Third Party Services. You are responsible for evaluating whether You want to access or use such Third Party Services, and, in certain circumstances where required or applicable, may opt-out from such Third Party Services available outside of the Analog network, or may choose to not utilize such Third Party Services at any time. We reserve the right to suspend Third Party Services at any time. You should review any applicable terms and/or privacy policies of a Third Party Service before using it or sharing any information with it, because You may give the operator permission to use Your information outside of what You have agreed to herein. Analog is not responsible for, nor endorses any features, content, advertising, products or other materials on or available from such Third Party Services.
Your Content
As Users of Our Services, all information You post, transmit, or submit through Our Services (“Content”) is intended to be shared with other Users. By submitting any Content to us, You hereby represent and warrant that You own all rights to the Content or, alternatively, that You have the right to give us the license described below. You further represent and warrant that the Content does not infringe on the intellectual property rights, privacy rights, publicity rights, or other legal rights of any third party. We are not required to or under any obligation to review any Content posted by Our Users on Our Services, although We reserve the right to do so with or without notice, to prevent or rectify any alleged violations of this Agreement or any applicable law. We reserve all defenses made available to us by the Communications Decency Act and any other applicable laws, rules, or regulations.
We may refuse to accept or display the Content, and may remove or delete all or any portion of the Content at any time. You understand that Analog is not responsible for the accuracy, usefulness, safety, or intellectual property rights of or relating to such Content, and that such Content is not the responsibility of Analog. You further understand and acknowledge that You may be exposed to Content that is inaccurate, offensive, indecent, or objectionable, and You agree to waive, and hereby do waive, any legal or equitable rights or remedies You have or may have against the Analog Parties with respect thereto.
Licensing to Analog
Users will retain all rights to the Content they upload or create on or through the Services. You hereby grant to Analog and its owners, affiliates, representatives, licensees, licensors and assigns (the "Analog Parties") a non-exclusive, fully-paid, royalty-free, world-wide, universal, transferable license to display, modify, publicly perform, distribute, store, broadcast, transmit and reproduce Your Content, logo(s), service marks, trademarks and trade names in conjunction with the Services, including in developing, enhancing, and supporting the Services. You waive and agree never to assert any and all moral rights in and to all of the materials licensed in this Section. We reserve the right to display advertisements in connection with the Content.
Limitations On Liability
Analog is not liable for (1) any Content posted on Our Services; (2) contracts or other obligations that may arise between Users; (3) any damages that result through Your use of Our Services; (4) any negative or critical comments that may be posted by other Users through the Services; or (5) any of the Third Party Service(s) You may be provided pursuant to Your use of the Services.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, YOU UNDERSTAND AND AGREE THAT IN NO EVENT SHALL ANALOG BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE SITE AND/OR SERVICE, WHETHER OR NOT ANALOG HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY DAMAGES FOR PERSONAL OR BODILY INJURY OR EMOTIONAL DISTRESS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, OR FROM ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH OTHER USERS OF THE SITE OR SERVICE, ON ANY THEORY OF LIABILITY (INCLUDING CONTRACT, TORT INCLUDING NEGLIGENCE, OR HOWSOEVER OTHERWISE) ARISING OUT OF, IN CONNECTION WITH, OR RESULTING FROM (1) THE USE OR INABILITY TO USE THE SERVICES; (2) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICES; OR (3) ANY OTHER MATTER RELATED TO THE SERVICES.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, UNDER NO CIRCUMSTANCES WILL ANALOG BE LIABLE TO A USER, REGARDLESS OF WHETHER THE CLAIM IS BASED IN CONTRACT, TORT INCLUDING NEGLIGENCE, STRICT LIABILITY, OR OTHERWISE, FOR MORE THAN THE GREATER OF (1) THE TOTAL AMOUNT PAYABLE BY THE USER TO ANALOG FOR THE TWELVE (12) MONTH PERIOD PRECEDING THE DATE THE CAUSE OF ACTION FIRST AROSE, OR (2) $100.
THE LIMITATIONS OF THIS SECTION WILL NOT APPLY TO ANY LIABILITY THAT CANNOT BE EXCLUDED OR LIMITED BY LAW.
Our licensors and service providers will have no liability of any kind under this Agreement. You may not bring any claim under this Agreement more than twelve (12) months after the cause of action arises.
Confidentiality
Confidential Information
Means non-public information disclosed or otherwise made available by one party in connection with the Service that are provided under circumstances reasonably indicating their confidentiality. Our Confidential Information includes: (1) login credentials; and (2) any information or materials relating to the Services. Your Confidential Information does not include Your Content.
Protection
A party may use Confidential Information of the other party solely as permitted under, or to exercise its rights and perform its obligations under, this Agreement. Each party will disclose the Confidential Information of the other party only to individuals who have a need to know the Confidential Information for purposes of this Agreement and who are under a duty of confidentiality no less restrictive than that under this Agreement.
Exceptions
The recipient’s obligations under this Section will not apply to information that: (a) was already rightfully known to the recipient; (b) was disclosed to the recipient by a third party who had the right to make the disclosure; (c) becomes generally available to the public; or (d) was independently developed by the recipient without access to, or use of, discloser’s Confidential Information. The recipient may disclose Confidential Information to the extent the disclosure is required by law or regulation or the listing rules of any stock exchange. The recipient will provide the other party notice, when practicable, and will take reasonable steps to contest and limit the scope of any required disclosure.
Continuing Obligations
You agree to keep all information gained from using Our Site confidential; You agree that (1) You will use any content submitted by Candidates or Clients in accordance with applicable privacy and data protection laws; (2) You will not disclose the names or identities of any Candidates; AND (3) You will take appropriate physical, technical and administrative measures to protect content You obtain through use of the Site and/or Service from loss, misuse, unauthorized access, disclosure, alteration or destruction. You also agree not to post, publicly or privately disclose or disseminate any job offers, or contractor opportunities which You become aware of through Our Site or Service.
Intellectual Property Rights
The entirety of the Services, along with any logos, features, trademarks, designs, or the like contained therein ("Marks"), are owned by or licensed to Analog, subject to copyright and other intellectual property rights under United States and foreign laws and international conventions. Analog reserves all rights in and to the Services. You agree you will not use, copy, or distribute any content contained within the Services beyond the authorized use hereunder.
Disclaimer Of Warranties
THE SERVICES ARE PROVIDED TO YOU AS IS. ANALOG PARTIES EXPRESSLY DISCLAIM ALL IMPLIED WARRANTIES AND REPRESENTATIONS SUCH AS WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY OF DATA, AND NONINFRINGEMENT.
THE ANALOG PARTIES MAKE NO GUARANTEE THAT: (1) THE SERVICES WILL MEET YOUR REQUIREMENTS; (2) YOUR USE OF THE SERVICES WILL BE UNINTERRUPTED, SECURE, OR ERROR-FREE; (3) THE SERVICES WILL BE ACCURATE OR RELIABLE; OR (4) ANY ERRORS IN THE SERVICES WILL BE CORRECTED.
YOU AGREE THAT YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF THE SITE AND/OR SERVICE. YOU UNDERSTAND AND ACKNOWLEDGE THAT ANY COMMUNICATION SENT THROUGH THE SERVICE MAY BE VIEWED BY THIRD PARTIES AND, AS SUCH, ARE NOT CONSIDERED CONFIDENTIAL AND Analog HAS NO RESPONSIBILITY, CONTROL OVER, OR LIABILITY FOR THE CONTENT OF THOSE MESSAGES, ANY ATTACHMENTS TO THOSE MESSAGES, OR THE CHOSEN RECIPIENTS BY THE SENDER, WHETHER SENT THROUGH THE SERVICE, OR VIA YOUR PREFERRED E-MAIL SERVICE.
IF YOU ARE A RESIDENT OF A JURISDICTION THAT REQUIRES A SPECIFIC STATEMENT REGARDING RELEASE, THEN THE FOLLOWING APPLIES. FOR EXAMPLE, CALIFORNIA RESIDENTS MUST, AS A CONDITION OF THIS AGREEMENT, WAIVE THE APPLICABILITY OF CALIFORNIA CIVIL CODE SECTION 1542, WHICH STATES, "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE AND THAT, IF KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY." YOU HEREBY WAIVE THIS SECTION OF THE CALIFORNIA CIVIL CODE. YOU HEREBY WAIVE ANY SIMILAR PROVISION IN LAW, REGULATION, OR CODE THAT HAS THE SAME INTENT OR EFFECT AS THE AFOREMENTIONED PROVISION.
Indemnity
You agree to defend and indemnify the Analog Parties from and against any third party claim, including reasonable attorney’s fees, court costs, settlements, and disbursements, from or relating to (a) Your Content (b) Your use of and access to the Services (c) Your violation of this Agreement (d) Your violation of any law, rule, or regulation, or the rights of any third party (e) Your use of any Third Party Services and (f) allegations that the Analog Parties and the Client are joint employers of any Candidate Analog by a Client through the Services. You may not settle any Infringement Claim without Our prior written consent.
General
DMCA Notices
We take copyright infringement very seriously, and We have registered a Registered Copyright Agent with the United States Copyright Office, which limits Our liability under the Digital Millennium Copyright Act. It is Our policy to terminate the account of any user who repeatedly infringes copyright upon prompt notification to Analog by the copyright owner or the copyright owner’s legal agent. Without limiting the foregoing, if You believe that Your work has been copied and posted on the Site and/or Service in a way that constitutes copyright infringement, please provide Our Copyright Agent with the following information: (1) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; (2) a description of the copyrighted work that You claim has been infringed; (3) a description of the material that You claim is infringing and a description of the location on the Site and/or Service of the material that You claim is infringing; (4) Your address, telephone number and e-mail address; (5) a written statement by You that You have a good faith belief that the disputed use is not authorized by the copyright owner, its agent or the law; and (6) a statement by You, made under penalty of perjury, that the above information in Your notice is accurate and that You are the copyright owner or authorized to act on the copyright owner’s behalf. Contact information for the Company’s Copyright Agent for notice of claims of copyright infringement is as follows: Analog (attention: Legal), DG257-444 Alaska Ave, Torrance, CA, 90503; e-mail: legal@analog.com.ai; telephone: 1 (888) 497-9387.
Compliance and Choice Of Law
Each party will comply with all laws applicable to this Agreement. This Agreement shall be governed by the laws of the State of California without giving effect to its principles regarding conflicts of law. All disputes shall be resolved exclusively in state or federal court in San Francisco County, California. You acknowledge that the Services are of United States origin and agree to comply with all export laws and regulations of the United States.
Dispute Resolution
PLEASE READ THIS SECTION CAREFULLY.
Any dispute shall be settled by binding and confidential arbitration. Arbitration shall be subject to the Federal Arbitration Act. The arbitration will be governed by the AAA’s Commercial Arbitration Rules and, if applicable, the Supplementary Procedures for Consumer Related Disputes. Each party shall bear its own costs (including attorney fees). Notwithstanding the foregoing, the Company may seek injunctive or other equitable relief to protect its intellectual property rights in any court of competent jurisdiction. YOU ARE HEREBY GIVING UP YOUR RIGHT TO GO TO COURT. Arbitrator decisions are as enforceable as any court order and are subject to VERY LIMITED REVIEW BY A COURT. Any claims brought by you must be bought in an individual capacity, not as a class member in any representative proceeding. An arbitrator may not consolidate individuals’ claims. The arbitrator will not have authority to award damages in excess of the amount allowed by this Agreement. The arbitrator also shall be authorized to grant any equitable remedy or relief it deems just and equitable and within the scope of the Agreement. The arbitration award shall be final and binding upon the parties without appeal or review except as permitted by California law or United States federal law.
Force Majeure
We will not be liable for failure or delay in performance to the extent caused by circumstances beyond our reasonable control.
Severability; Headings.
The unenforceability of any provision of this Agreement will not affect the enforceability of any other provision. If any provision of this Agreement is deemed to conflict with another Analog will have the sole right to elect which provision remains in force. Headings are provided for convenience only.
Non-waiver
We reserve all rights under applicable law. Our non-enforcement of any provision of this Agreement or under applicable law will not be construed as Our waiver of any enforcement rights under the same or different circumstances at any time in the future.
Termination
We may suspend or terminate the Services or Your account at Our discretion without explanation and notice, though We will strive to provide a timely explanation. In the event of Your breach of this Agreement, We will notify You of such breach, and in the event the breach can be cured, provide You thirty (30) days to cure such breach. If such breach remains uncured, We will terminate this Agreement with You as set forth herein. Unless you are a Subscription Client, if You wish to terminate this Agreement, You may do so by notifying Analog at any time and closing Your account for the Service. Your notice should be sent in writing, in accordance with Section Titled "Notice" below. Termination of the Agreement may result in the immediate deletion of any or all of the Content. Analog will not have any liability whatsoever to You for any suspension or termination. All provisions of this Agreement which by their nature should survive termination shall survive termination, including ownership, success fees, warranty disclaimers, indemnity and limitations of liability.
Assignment
You may not assign any rights or obligations under this Agreement without the consent of Analog.
Notice
You agree that We will provide notices and messages to you either within the Services or sent to the contact information that you provided Us. You are responsible for providing Analog with your most current e-mail address. If you have provided an invalid email, or such address is not capable of receiving Analog notices, Analog’s dispatch of such email will nonetheless constitute effective notice. You may give notice to Analog at the following address: Sphere, Inc., DG257-444 Alaska Ave, Torrance, CA, 90503, ATTN: Legal. Notices shall be deemed given when received by Analog delivered by overnight delivery service or first-class postage prepaid mail.
Entire Agreement
This Agreement contains the entire agreement of the parties and supersedes all other agreements and understandings with respect to the matters contained herein.
Electronic Communications
Any communication between You and Analog under or in connection with the Services may be made by electronic mail or other electronic means. You consent to receive communications from Analog electronically, and agree that all terms, conditions, or otherwise, provided to your electronically satisfy any legal requirement that would be satisfied if they were in writing.
California Users And Residents
Pursuant to California Civil Code Section 1789.3, questions about pricing, complaints, or inquiries must be addressed to Our agent for notice and sent via certified mail to: Agent of Analog, DG257-444 Alaska Ave, Torrance, CA, 90503. California users are also entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 North Market Blvd., Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210.
Modifications
THIS AGREEMENT IS SUBJECT TO CHANGE BY ANALOG IN ITS SOLE DISCRETION AT ANY TIME. When changes are made, We will make a new copy of the Agreement available by posting on Our Site or through the Services. We will also update the "Last Revised" date at the top of the Agreement. If We make any material changes, and You have registered to use the Services, We may also notify you via email or through the Services. Changes will be effective immediately for new users and will be effective thirty (30) days after posting notice of such changes on the Site for existing users. Analog may require You to provide consent to the updated Agreement. If You do not agree to any change(s) You agree to stop using the Services. Your continued use of the Services constitutes Your acceptance of such change(s). YOU AGREE TO REGULARLY CHECK THE SERVICES TO VIEW THE THEN-CURRENT TERMS OF SERVICE.
Beta or Evaluation Usage
If Analog indicates any features of functionality as a beta or evaluation (referred to as the "Beta Service"), then You may use the Beta Service for a period of time as indicated by Analog, pursuant to Analog’s then current fees for the Beta Service, if applicable. NOTWITHSTANDING ANY OTHER PROVISION OF THE TERMS OF SERVICE OR ANY AGREEMENT YOU MAY HAVE DIRECTLY WITH ANALOG, YOUR USE OF THE BETA SERVICE WILL BE PURSUANT TO ANALOG’S THEN CURRENT TERMS OF SERVICE AND PRIVACY POLICY. ANALOG PROVIDES THESE BETA SERVICE(S) "AS IS" WITHOUT ANY REPRESENTATIONS, WARRANTIES, REFUNDS, OR INDEMNIFICATION OF ANY KIND. Analog may discontinue, modify, or begin to charge for use of a Beta service at any time, and at their sole discretion.
Specific Terms for Use of the Analog Service
Social events
By attending a social event generated by Analog each attendee is agreeing not to hold Analog in any way responsible for the behavior of any attendee prior, during, or after the event. In this regard, Analog will take reasonable steps to honor requests by a user that another user not be invited to the same event as the requesting user, but it shall have no liability for a failure to honor such a request.
Analog reserves the right, but undertakes no obligation, to exclude any user from receiving invitations to any event at the request of any other user who has asked not to be invited to events that include the user being excluded. In this regard, Analog will be more likely to honor such requests if they are accompanied by a report of objectionable behavior by the user to be excluded and if the requesting user deletes the user to be excluded from his contact list. While Analog may make inquiries with regard to such a report, it shall have no obligation with regard to how or whether it conducts an inquiry. Analog may effect such an exclusion by removing contacts from the contact list of the user to be excluded.
Analog reserves the right but undertakes no obligation to make reasonable inquiries into the behavior of the users at an event that it has created through its Service, either at its own initiative or in response to a request from a user.
Job matching
Client-Specific Terms
After a Client’s registration has been accepted, the Client will be able to browse the Candidates on the Analog Site, communicate with these Candidates, and/or submit non-binding interview requests (“Requests”). A Success Fee (as defined in Section Titled "Success Fees" below) will only be collected from You upon a Candidate’s acceptance of a Covered Offer. YOU UNDERSTAND THAT ANALOG DOES NOT INQUIRE INTO THE BACKGROUNDS OF ITS USERS OR ATTEMPT TO VERIFY THE STATEMENTS OF ITS USERS (ALTHOUGH IT RESERVES THE RIGHT TO CONDUCT ANY BACKGROUND CHECK OR OTHER SCREENINGS AT ANY TIME USING AVAILABLE PUBLIC RECORDS). YOU AGREE TO (1) CONDUCT ANY BACKGROUND CHECKS, REFERENCE CHECKS, OR OTHER DUE DILIGENCE THAT YOU MAY REQUIRE BEFORE ENGAGING CANDIDATE, AND (2) COMPLY WITH ALL LAWS AND REGULATIONS RELATING TO THE INTENDED CONTRACT OF ANY CANDIDATE.
Once a Client has discovered a Candidate on the Analog Site, the Client agrees to communicate exclusively with the Candidate through the Analog Site and Service for the duration of the Request process. The Client and the Candidate may use other means of communication during the hiring process. The Client agrees not to circumvent the Analog Site and Service by independently attempting to communicate and hire the Candidate through alternative means after discovering the Candidate on the Analog Site or Service.
Success Fees
For purposes of this Agreement, "Success Fee" shall refer to Analog’s then-current prevailing list price for Covered Offers (including both Employment and Contractor Engagements). Client agrees to pay the Success Fees charged to Client’s account in accordance with the fees, charges, and billing terms in effect at the time the Success Fee is due and payable hereunder. Notwithstanding the foregoing, in the event of a Success Fee dispute, if a Client can establish that the Client had an Active Process (as defined below) with the Candidate before using the Analog Site and/or Service (e.g., the Candidate had already begun the interview process with the Client and such process had not been terminated, or the Client had received the Candidate’s resume from an employment agency or headhunter and the Candidate was under active consideration by the Client), the Client may be exempted from paying the Success Fee. However, the final determination as to whether a Success Fee is owed by the Client for an accepted Covered Offer will be at the sole discretion of Analog. For the purposes hereof, "Active Process" shall mean continuous direct, back & forth communication, in an active recruiting or hiring context where a decision to put a candidate on hold or reject has not been made, within the three (3) months prior to using the Site or Service for a Candidate that exists in Client’s applicant tracking system or that was submitted by a recruiting agency.
If You do not agree with any of the provisions of this Agreement, please terminate Your account immediately and cease using Analog. YOUR OBLIGATION TO PAY ANY SUCCESS FEES SHALL SURVIVE ANY TERMINATION OF THIS AGREEMENT.
Limited Exclusivity for Candidates
If a Candidate identified through use of the Analog Service accepts a Covered Offer within twelve (12) months of the date on which the Client first viewed the Candidate on the Analog Site, the Client will be charged a Success Fee. If a Client circumvents the Analog Site and/or Service after discovering a Candidate through the Analog Site or Service and subsequently hires that Candidate within twelve (12) months of the date on which the Client first viewed the Candidate on the Analog Site, the Client will pay a Success Fee equal to 25% of the 1st year base salary or prorated contractor compensation of the Candidate and Analog may, in its sole discretion, terminate the Client’s account.
As a Client You agree that (1) if You make a Covered Offer, You shall provide Analog with the Candidate’s Start Date, key terms, and compensation, promptly upon the signing of a Covered Offer employment offer letter between You and such Candidate (the "Effective Date"), (2) You will promptly notify Analog should the Start Date or offer terms change at any time, and (3) You will promptly notify Analog after termination of the Candidate’s employment as an employee, intern, coop employee, consultant or contractor ("Employment") in the event that (a) such Employment is terminated based on unsatisfactory performance within ninety (90) days of the date on which it commenced, (b) the Candidate voluntarily terminates Employment within ninety (90) days of the date on which Employment commenced, or (c) before the Start Date, either Client or Candidate elect not to begin the Employment contemplated by the Covered Offer.
Subscription Agreements
Clients engaged in a Subscription Agreement with Analog (individually a "Subscription Client" and collectively "Subscription Clients") will be charged a Subscription fee as agreed upon between the Client and Analog for the period as agreed upon between the parties (the "Subscription Period"). During the Subscription Period, the Subscription Client will be able to browse, request, contact (through the Service) and extend Covered Offers to Candidates listed on the Analog Site and Service. All Covered Offers must be made for positions located in the territories set forth in Your Subscription Agreement. All other territories are excluded. Unless otherwise agreed in writing, all Covered Offers accepted within the Subscription Period will not be subject to any additional fees beyond the Subscription Agreement fees as agreed upon between You and Analog.
Contractor Engagements will count towards the number of Full-Time Hires set forth on the Order Form. In the event of Contractor Engagements in excess of the number of Full-Time Hires as set forth in Your Subscription Agreement or after expiration of the Agreement, Analog will invoice Client at Analog’s then-current rates.
Authorized Users
Client will be provided a number of “Premium” and “Standard” seats (each, an “Authorized User”). “Premium” seats will be those users able to interact with Candidate on the Service, including sending Interview Requests. “Standard” seats will be those users able to view Candidates on the Service but will not be able to interact with, or send Interview Requests, to Candidates.
Client will designate one Client user for each seat it purchases and will not permit a Client user to share a Client user’s access to the Service with any other individual. If a Client user ceases employment, takes leave or vacation, or transfers work function, Client may transfer the Client user's seat to a different Client user. Analog reserves the right to limit the number of transfers of each seat. If Analog discovers that Client users are sharing seat access to the Service with other Client employees or contractors who have not been provisioned access (each, an “Unauthorized User”), this will be deemed a material breach of this Agreement. Analog will have the right to assign any unused seats purchased by Client to the Unauthorized Users to remedy Client’s breach. If there are no unused purchased seats, Analog reserves the right to assess a fee equal to 1.5 times the prorated cost of the Additional Premium Seat.
Each Authorized User may be logged into Our Service from up to three (3) different browsers or computers (the “Devices”) at the same time. Should Client exceed the Device limit, Client will be notified through the Service and prompted to log out of at least one (1) other active session before proceeding.
Client may add additional seats at any time during an applicable Service Term. For clarity, additional seats will be added only for the duration of the applicable Service Term and the associated fee set forth on the applicable Order Form will be prorated accordingly. Upon Client’s notice of intent to add additional seats and immediate payment of invoice, Analog will add the number of seats requested.
Payment
All fees (such as Success Fees or Subscription Fees) for the Analog Service are due and payable net thirty (30) days from the date indicated on each invoice as sent to Client by Analog. Should any Success Fees, Subscription Service Term fees, or other fees incurred by Client pursuant to Client’s use of the Services remain unpaid more than ten (10) days after the thirty (30) day payment requirement set forth herein, Analog will, as a genuine assessment of its damages, assess a late payment fee on Client’s invoice equal to five percent (5%) of the amount overdue for each month OR FRACTION THEREOF, OR SUCH LESSER AMOUNT AS MAY BE THE MAXIMUM AMOUNT PERMITTED BY LAW, outstanding until paid, beginning with the due date of the late payment.
Analog may change its fees and billing methods at any time (including to begin charging for services that it is currently providing free of charge) by providing notice to You as set forth in the Notice section herein.
Credits
If (1) a Client hires a Candidate and terminates the Candidate’s Employment or Contractor Engagement based on unsatisfactory performance within ninety (90) days of the Start Date, (2) a Candidate voluntarily terminates his or her Employment within ninety (90) days of the Start Date, or (3) Candidate does not start Employment or Contractor Engagement because either Client or Candidate elects not to begin the employment relationship contemplated in the Covered Offer, (each, a "Termination Event"), upon written receipt and confirmation of such information, Analog will provide Client a credit for additional Analog Services corresponding to the Success Fee related to the Candidate who was the subject of the Termination Event if such Success Fee was paid by Client prior to the Termination Event. No credits shall be provided for Success Fees pursuant to a contractor to full-time hire conversion or for Subscription Services. Any applied credit will expire twelve (12) months from date issued.
Professional Services
Clients engaged in a Subscription Agreement may have the option to purchase certain professional sourcing and recruiting services from Analog to source Candidates on Analog Site on Clients’ behalf (the “Professional Service(s)”). These Professional Services are at all times independent contractor relationships between and among the individual performing the Professional Services (the “Sourcer”), Analog, and the Client. Sourcer will perform a certain number of hours per week of Professional Services as indicated on an applicable Subscription Agreement. Sourcer will perform these Professional Services in a reasonable manner; however, Client acknowledges and understands that any final determination as to the Candidates sourced, any hiring or employment decisions, or otherwise, are the sole and exclusive determination of the Client, and neither Sourcer nor Analog will be responsible for any final hiring decisions made by Client. Neither Analog nor Sourcer makes any representations, warranties, or guarantees with respect to the Professional Services, the Candidates sourced, or Client’s ultimate hiring determinations. The term of these Professional Services will be as set forth on an applicable Subscription Agreement and may not be terminated early by Client. Client is solely responsible for interacting with Sourcer to discuss such Professional Services, Candidates sourced, and management of work product during the Professional Services term, including any issues with performance. Analog disclaims all liability for actions taken by Sourcer, and Client understands and agrees that Sourcer is solely responsible for their actions pursuant to the Professional Services offered.
Candidate-Specific Terms
A Candidate is required to promptly notify Analog if the Candidate (1) accepts a Client’s offer of employment, whether for an indefinite or fixed term, (2) accepts an offer to engage as a contractor, whether for an indefinite or fixed term (each, a "Contractor Engagement"), (3) accepts a Client’s employment offer during or within twelve (12) months after termination of a Contractor Engagement with such Client (each, a "Covered Offer"). You agree that (1) if You receive a Covered Offer, You shall promptly notify Analog of Your Start Date and the key terms of such Covered Offer (and notify Analog promptly should that Start Date or offer terms change at any time), and (2) You will promptly notify Analog after termination of Your employment as a Candidate, intern, coop Candidate, consultant or contractor in the event that (a) a Client terminates Your engagement based on unsatisfactory performance within ninety (90) days of the date on which Your Employment commenced, or (b) You voluntarily terminate Your engagement within ninety (90) days of the date on which Your engagement commenced.
The Candidate agrees not to attempt to circumvent the Analog Site and Service by independently attempting to communicate with a Client that contacted or communicated with him or her on the Analog Site or Service.
Contractor Engagements Through the Analog Service
General
Client and Candidate are responsible for any contracts or agreements they may form with respect to such Contractor Engagements. Analog does not control, manage, or provide any guidance with respect to the determination of independent contractor or employee status, subsequent agreements between Client and Candidate, or services performed by or payments made to the Client pursuant to a Contractor Engagement. Candidate and Client expressly agree that no joint venture, partnership, employment, or agency agreement exists between them and Analog as a result of this Agreement or any use of the Analog Service, and that Analog is not a joint employer for purposes of this Agreement.
Classification and Relationship
Client and Candidate assume all liability for proper classification of Candidates as independent contractors or employees based on applicable legal guidelines. Candidate and Client acknowledge that Analog does not, in any way, supervise, direct, or control the manner, means, or conditions of any work or services performed. Client and Candidate will be solely responsible for all tax returns and payments required to be filed with or made to any federal, state, or local tax authority, in any nation, with respect to a contractor engagement.
In addition to the indemnification obligations set forth herein, Client and Candidate agree to indemnify, hold harmless and defend Analog from any and all claims, demands, causes of action, losses, damages, liabilities, costs, and expenses, including attorneys’ fees, arising out of or related to their engagement, including but not limited to any breach of any of Contractor’s representations and warranties, from the death or injury of any person or persons, including employees of Client or Contractor, or from damage or destruction of any work or properties, attributable to or resulting from Contractor Engagement with Client, claims misclassification of a Client as an independent contractor, any liabilities arising from a determination by a court, arbitrator, government agency or other body that Candidate was misclassified, any claim that Analog was an employer or joint employer of Candidate, as well as breach of agreement, action, inaction, omission or any claims under any employment-related laws, such as those relating to termination of employment, employment discrimination, harassment or retaliation, as well as any claims for overtime pay, sick leave, holiday or vacation pay, minimum wages, payroll taxes, social security or unemployment taxes, or disability insurance, retirement benefits, worker's compensation benefits, unemployment benefits, or any other employee benefits required by law.
Reward Points
Users are invited to earn “Analog Reward Points” for themselves and their connections. Each time a user encourages a connection to become a user and that connection actually becomes a user, both will be awarded Analog Reward Points. Once Analog has grown sufficiently that it makes sense in the judgment of its management, it will make each Analog Reward Points worth discounts at cooperating businesses.
Analog will maintain an account of Analog Reward Points for each of its users. However, that account will be deleted once a person has been removed as a user either at his request or as a result of his violation of the Analog Terms of Service. Analog Reward Points will only be redeemable by an active user and only with merchants identified by Analog as being cooperating businesses for the Analog Rewards Points program.
Specific Provisions for Users of the Assessment Service
Introduction
The Assessment Service is owned and operated by Sphere, Inc. (“Analog”) and provides a collection of programming challenges and psychometric evaluations that are designed to assess a Candidate for a job interview and a platform for Clients to create custom challenges through the Assessment Service.
Authorized Users
Client will designate one Client user for each seat it purchases and will not permit a Client User to share a Client User’s access to the Service with any other individual. If a Client User ceases employment, takes leave or vacation, or transfers work function, Client may transfer the Client User's seat to a different Client User. Analog reserves the right to limit the number of transfers of each seat. If Analog discovers that Client Users are sharing seat access to the Service with other Client employees or contractors who have not been provisioned access (each, an “Unauthorized User”), this will be deemed a material breach of this Agreement. Analog will have the right to assign any unused seats purchased by Client to the Unauthorized Users to remedy Client’s breach. If there are no unused purchased seats, Analog reserves the right to assess a fee equal to 1.5 times the prorated cost of the additional seat.
Client may add additional seats at any time during the applicable Service Term. For clarity, additional seats will be added only for the duration of the applicable Service Term and the associated fee set forth on an applicable Order Form will be prorated accordingly. Upon Client’s notice of intent to add additional seats and immediate payment of invoice, Analog will add the number of seats requested.
No Resale
The Assessment Service is to be accessed by Clients and its designated Users only and only for Clients’ internal business purposes, not for resale or unauthorized distribution to any third party.
Geographic-Specific Provisions
Clients and Candidates in Canada
Replace Section Titled “Compliance and Choice of Law” With The Following:
Governing Law. This Agreement shall be governed by the laws of Toronto, Canada. Save as otherwise set out in the Section entitled Dispute Resolution, the courts sitting in Toronto, Canada shall have exclusive jurisdiction over any claim arising under or in connection with this Agreement.
Add The Following Paragraph To The End Of Section Titled “Dispute Resolution”:
To the extent permitted by the applicable law, any claim or dispute (excluding claims for injunctive or other equitable relief as set forth below) in connection with the Agreement where the total amount of the award sought is less than Five Thousand Canadian Dollars (C$5,000.00) may be resolved in a cost effective manner through binding non-appearance-based arbitration, at the option of the party seeking relief. Such arbitration shall be initiated through an established alternative dispute resolution provider (“ADR Provider”) that offers arbitration as set forth in this section and under the rules of such ADR Provider, except to the extent such rules are in conflict with the Agreement. The party demanding arbitration will propose an ADR Provider and the other party shall not unreasonably withhold consent to use such ADR Provider.