1.      Introduction.

By using the Services defined below you (the “Customer”) are entering into a legally binding agreement with Dalia, Inc., a Delaware corporation with offices at 75 State St. Suite 100 Boston, MA 02109 USA (“Dalia”) and agree to be bound by these Terms of Service (the “Terms”). If you are agreeing to these Terms on behalf of your company, you represent that you are authorized to accept these Terms on behalf of your company, and all references to “you” or “Customer” reference your company.

2.      The Services.

The Services are designed to enable Customer and Dalia to capture contact information from People who visit the Customer Site and advertise jobs to those People. The Services include (a) the deployment of the Dalia’s Capture Code on the Customer websites, apps, or other offerings owned and operated by (or for the benefit of) Customer (the “Costumer Site”), (b) Dalia’s capture of data from the Customer Site through cookies, and (c) Dalia’s uninterrupted access to a feed of Customer job postings displayed on the Customer Site.

The Capture Code is a web form of JavaScript code, software development kits (SDKs) or other code provided by Dalia used to capture any data of any type submitted through such form (the “Capture Form”) by Customer’s end user customers, potential candidates for employment and other users of and visitors to the Customer Site (collectively, the “People”) including without limitation data submitted, uploaded or imported to the web form directly by People.  In addition, the Services include the capture of cookie data collected by Dalia from the Customer Site, including but not limited to data from People who do not provide data through the Capture Form.

Customer may access and use the Services solely for its own benefit and in accordance with the Terms.

3.      Modifications.

We may update or modify these Terms from time to time. We will give you notice of the changes by posting an updated version of these Terms online or by emailing you at an email address you have provided. Changes to these Terms will be effective as of the date we post them or otherwise notify you of them, unless we specify a different effective date when we make a particular change. Your continued use of the Services will constitute your acceptance of the changes. If you do not agree to a change, you must stop using the Services.

We may modify, add to, suspend, or discontinue the Services or certain features of the Services, at any time for any reason, without prior notice to you. Unless expressly stated otherwise, any new feature that augments, enhances, or otherwise modifies the Services shall be subject to these Terms.

4.      Paid Services.

Our Services include a variety of products and features that are free to use, as well as certain products and services that may require payment (“Paid Services”). If you purchase any of our Paid Services, the terms and conditions of such Paid Services shall be outlined in a separate Order Form agreed to in writing by both parties.

5.      Authorized Use; Restrictions.

Subject to all of the terms and conditions of these Terms, Dalia grants to Customer a limited, non-transferable, non-sublicensable, non-exclusive license to copy the Capture Code in the form provided by Dalia on Customer Sites solely to support Customer’s use of the Services and otherwise in accordance with these Terms.

Customer will not (and will not permit any third party to): (a) rent, lease, provide access to or sublicense the Services to a third party; (b) use the Services to provide, or incorporate the Services into, any product or service provided to a third party; (c) reverse engineer, decompile, disassemble, or otherwise seek to obtain the source code or non-public APIs to the Services, except to the extent expressly permitted by applicable law (and then only upon advance notice to Dalia); (d) copy or modify the Services or create any derivative work from any of the foregoing; (e) remove or obscure any proprietary or other notices contained in the Services (including without limitation any attribution that may appear as part of the deployment of the Services on Customer Site); or (f) publicly disseminate information regarding the performance of the Services.  Customer agrees to not make any changes to the Capture Code unless agreed to in writing and in advance by Dalia. Customer acknowledges that any changes made to the Customer Site after initial implementation of the Capture Code may cause the Services to cease working or function improperly and that Dalia will have no responsibility for the impact of any such Customer changes.

6. Trademarks

Customer hereby grants to Dalia the express right to use Customer’s company logo in marketing, sales, and public relations materials and other communications solely to identify Customer as a Dalia customer. Other than as expressly stated herein, Dalia shall use the Customer’s marks, codes, drawings or specifications without the prior written permission of the Customer.

7. Rights and Obligations regarding the Data.

a. Customer Data. As between the parties, Customer will retain all right, title and interest (including any and all intellectual property rights) in any data submitted, uploaded or imported to the Services by Customer, any cookie data and any job data (“Customer Data”); it being understood that Customer hereby grants to Dalia a non-exclusive, perpetual, worldwide, royalty-free right to use, copy, store, transmit, modify, create derivative works of and display the Customer Data. Customer is solely responsible for the accuracy, content and legality of all Customer Data. Customer represents and warrants to Dalia that Customer has all necessary rights, consents and permissions to collect, share and use all Customer Data as contemplated in this Agreement (including granting Dalia the rights set forth herein and that no Customer Data will violate or infringe (i) any third party intellectual property, publicity, privacy or other rights, (ii) any laws, or (iii) any terms of service, privacy policies or other agreements governing the Customer Sites or Customer’s accounts with any third-party platforms.

b. People Data. As between the parties, both parties will retain all right, title and interest (including any and all intellectual property rights) in and to the People Data as provided to Dalia from the Capture Form.  In addition, Customer acknowledges that Dalia will deploy a unique cookie ID to be associated with each person who accesses the Customer Sites. Customer will include on each Customer Site a link to its privacy policy that discloses Customer’s use of third party tracking technology to collect data about People as described in this Agreement. Customer’s privacy policy must disclose how, and for what purposes, the data collected through Dalia Code will be used or shared with Dalia as part of the Services. Customer must also provide People with clear and comprehensive information about the storing and accessing of cookies or other information on the Peoples’ devices where such activity occurs in connection with the Services and as required by applicable Laws. For clarity, as between Customer and Dalia, Customer will be solely responsible for obtaining the necessary clearances, consents and approvals from People under all applicable Laws.

c. Compliance with Laws. Customer agrees to comply with all applicable laws in its use of the Services. Without limiting the generality of the foregoing, Customer will not engage in any unsolicited advertising, marketing, or other activities using the Services, including without limitation any activities that violate the Telephone Consumer Protection Act of 1991, CAN-SPAM Act of 2003 or any other anti-spam laws and regulations.

d. Aggregated Data.  Notwithstanding anything to the contrary herein, Customer agrees that Dalia may obtain and aggregate technical and other data about Customer’s use of the Services that is non-personally identifiable with respect to Customer (“Aggregated Anonymous Data”), and Dalia may use the Aggregated Anonymous Data to analyze, improve, support and operate the Services and otherwise for any business purpose during and after the term of this Agreement, including without limitation to generate industry benchmark or best practice guidance, recommendations or similar reports for distribution to and consumption by Customer and other Dalia customers. For clarity, this Section does not give Dalia the right to identify Customer as the source of any Aggregated Anonymous Data.

e. Indemnification by Customer. Customer will indemnify, defend and hold harmless Dalia from and against any and all claims, costs, damages, losses, liabilities and expenses (including reasonable attorneys’ fees and costs) arising out of or in connection with any claim arising from or relating to any Customer Data or breach or alleged breach by Customer of Sections 6(b) and (c). This indemnification obligation is subject to Customer receiving (i) prompt written notice of such claim (but in any event notice in sufficient time for Customer to respond without prejudice); (ii) the exclusive right to control and direct the investigation, defense, or settlement of such claim; and (iii) all necessary cooperation of Dalia at Customer’s expense. Notwithstanding the foregoing sentence, (a) Dalia may participate in the defense of any claim by counsel of its own choosing, at its cost and expense and (b) Customer will not settle any claim without Dalia’ prior written consent, unless the settlement fully and unconditionally releases Dalia and does not require Dalia to pay any amount, take any action, or admit any liability.

8.      Dalia Intellectual Property.

Customer acknowledges that it is obtaining only a limited right to the Services and that irrespective of any use of the words “purchase”, “sale” or like terms in this Agreement no ownership rights are being conveyed to Customer under these Terms. Customer agrees that Dalia or its suppliers retain all right, title and interest (including all patent, copyright, trademark, trade secret and other intellectual property rights) in and to the Services and all related documentation, professional services deliverables and any and all related and underlying technology and documentation and any derivative works, modifications or improvements of any of the foregoing (collectively, “Dalia Technology”). Except as expressly set forth in this Agreement, no rights in any Dalia Technology are granted to Customer. Further, Customer acknowledges that the Services are offered as an on-line, hosted solution, and that Customer has no right to obtain a copy of any of the Services, except for the Capture Code in the format provided by Dalia.

9.      Disclaimers.

The disclaimers in this section apply to the maximum extent allowable under applicable law.

You are solely responsible for your use of the Services. You are solely responsible for ensuring that your use of the Services is in compliance with all laws, rules, and regulations applicable to you. We make no representations concerning any content contained in or accessed through the Services.  The Services are provided “as is,” and without warranty of any kind, whether express or implied, including the warranties or conditions of merchantability, fitness for a particular purpose, accuracy, or non-infringement, all of which are expressly disclaimed. Dalia does not warrant that: (i) the Services will be secure or available at any particular time or location; (ii) the Services will function without errors; (iii) any defects or errors will be corrected; (iv) any data or software available at or through the Services is free of viruses or other harmful components; or (v) the results of using or relying on any data or Services or advice contained therein will meet your requirements or produce desired results. Your use of the Services or reliance on any data is solely at your own risk.

10.      Limitation of Liability.

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL Dalia BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY LOST PROFITS OR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL, OR PUNITIVE DAMAGES, OR ANY LOSS OF DATA, OPPORTUNITIES, OR REPUTATION ARISING FROM YOUR USE OF THE SERVICES, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, UNLESS OTHERWISE REQUIRED BY APPLICABLE LAW, YOU AGREE THAT IN NO EVENT SHALL THE AGGREGATE LIABILITY OF Dalia, WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE, WHETHER ACTIVE, PASSIVE, OR IMPUTED), PRODUCT LIABILITY, STRICT LIABILITY, OR OTHER THEORY, ARISING OUT OF OR RELATING TO THE USE OF OR INABILITY TO USE THE SERVICES EXCEED THE AMOUNT PAID BY YOU, IF ANY, FOR ACCESSING THE SERVICES DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE DATE OF THE CLAIM OR ONE HUNDRED DOLLARS, WHICHEVER IS GREATER.

11.    Indemnification.

Customer agrees to indemnify, defend and hold harmless Dalia, its affiliates and each of their respective principals, shareholders, agents, officers, directors, consultants, and employees from or against third-party claims, damages, payments, deficiencies, fines, judgments, settlements, liabilities, losses, costs, and expenses arising from or relating to any third-party claim, suit, action or proceeding arising out of or related to Customer’s use or purchase of the Services, Customer’s violation of the rights of any third party or person, or Customer’s breach of these Terms or any representation or warranty contained herein.

Dalia will defend Customer from and against any claim by a third party alleging that the Services when used as authorized under this Agreement infringes a U.S. patent, U.S. copyright, or U.S. trademark and will indemnify and hold harmless Customer from and against any damages and costs finally awarded against Customer or agreed in settlement by Dalia (including reasonable attorneys’ fees) resulting from such claim, provided that Dalia will have received from Customer: (i) prompt written notice of such claim (but in any event notice in sufficient time for Dalia to respond without prejudice); (ii) the exclusive right to control and direct the investigation, defense and settlement (if applicable) of such claim; and (iii) all reasonable necessary cooperation of Customer.  The foregoing indemnification obligation of Dalia will not apply: (1) if such Service is modified by any party other than Dalia; (2) if such Service is combined with products or processes not provided by Dalia; (3) to any unauthorized use of such Service; (4) to any action arising as a result of Customer Data or any third-party deliverables or components contained within such Service; (5) to the extent the alleged infringement is not caused by the particular technology or implementation of the Service but instead by features common to any similar product or service; or (6) if Customer settles or makes any admissions with respect to a claim without Dalia’ prior written consent. THIS SECTION SETS FORTH Dalia AND ITS SUPPLIERS’ SOLE LIABILITY AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY CLAIM OF INTELLECTUAL PROPERTY INFRINGEMENT.

12.    Dispute Resolution.

You agree that the laws of the State of Massachusetts, USA, excluding its conflict of laws rules, shall exclusively govern any dispute relating to these Terms and/or the Services.

You agree to arbitrate any dispute arising from these Terms or your purchase or use of the Services, except that you and Dalia are not required to arbitrate any dispute in which either party seeks equitable and other relief for the alleged unlawful use of copyrights, trademarks, trade names, logos, trade secrets, or patents. ARBITRATION PREVENTS YOU FROM SUING IN COURT OR FROM HAVING A JURY TRIAL. You and Dalia agree that you will notify each other in writing of any dispute within thirty (30) days of when it arises. Notice to Dalia shall be sent to info@dalia.co. You and Dalia further agree: to attempt informal resolution prior to any demand for arbitration; that any arbitration will occur in Boston, Massachusetts; that arbitration will be conducted confidentially by a single arbitrator in accordance with the rules of JAMS; and that the state or federal courts in Suffolk County, Massachusetts have exclusive jurisdiction over any appeals of an arbitration award and over any suit between the parties not subject to arbitration. Other than class procedures and remedies discussed below, the arbitrator has the authority to grant any remedy that would otherwise be available in court. Whether the dispute is heard in arbitration or in court, you and Dalia will not commence against the other a class action, class arbitration, or other representative action or proceeding.

13.    Miscellaneous.

These Terms, together with our Privacy Policy shall constitute the entire agreement between you and Dalia concerning your use of the Services. These Terms, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by Dalia at any time without restriction. If any provision of these Terms is deemed invalid by a court of competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of these Terms, which shall remain in full force and effect. If two or more provisions of this Agreement are deemed to conflict with each other’s operation, Dalia shall have the sole right to elect which provision remains in force. No waiver of any one provision set forth in these Terms shall be deemed a further or continuing waiver of such provision or any other provision, and Dalia’ failure to assert or enforce any right or provision under these Terms shall not constitute a waiver of such right or provision.

Neither party will be liable to the other for any delay or failure to perform any obligation under this Agreement (except for a failure to pay fees) if the delay or failure is due to unforeseen events that occur after the signing of this Agreement and that are beyond the reasonable control of such party, such as a strike, blockade, war, act of terrorism, riot, natural disaster, failure or diminishment of power or telecommunications or data networks or services, or refusal of a license by a government agency.

Dalia may use the services of subcontractors and permit them to exercise the rights granted to Dalia in order to provide the Services under this Agreement, provided that Dalia remains responsible for (i) compliance of any such subcontractor with the terms of this Agreement and (ii) for the overall performance of the Services as required under this Agreement.