By ETC AI LLC as the Software as a Service (The Provider) and the Customer and/or User that may be the Company, the Candidates, the Examiner or Observers executing functions or any person with an interest in the ETC Solutions.
1.1 In this Agreement, except to the extent expressly provided otherwise:
“Access Credentials” means, the usernames, passwords, and other credentials enabling access to ETC Solutions (HIRE, Law Enforcement, Corp Climate, PROBE, College & Operations), including both access credentials for the User Interface and access credentials for the Candidate Video Test and Company Registration;
“Agreement” means this agreement including any Schedules and any amendments to this Agreement from time to time;
“Business Day” means any weekday other than a bank or public holiday in the United States;
“Business Hours” means any time, since ETC Solutions is a worldwide solution in 12 languages, we try to service you 24/7. ;
“Candidate” means a person selected by the Company (Customer) to perform a Video Record Test to Diagnose and Evaluate emotional trends and patterns, in order to determine the hiring possibility of a Job Opening. You must be at least 18 years of age to use ETC Solutions services; and by using the Services, you warrant and represent to us that you are[at least 18 years of age.
“Candidate Invitation email” means the vehicle that the Candidate will be notified of a potential Job Opening by the Company and by clicking the access link, grants all permits related to GDPR in any country in the world. If the Candidate is not fully aware of ETC Solutions Test, should STOP the process and review all relative materials in the Help & Guidelines section.
“Charges– Prices” means the following amounts:
(b) range prices per test, prices, and discounts will be published from time to time; and
(c) amounts calculated by multiplying the Provider’s test rates as notified by the Provider to the Customer before the date of this Agreement by the time spent by the Provider’s Candidates performing the Services rounded down by the Provider to the nearest unit;
(a) any information disclosed by or on behalf of the Customer and Candidates to the Provider during the Term OR at any time before the termination of this Agreement, whether disclosed in writing, orally or otherwise that at the time of disclosure:
(i) was marked or described as “confidential”; or
(ii) should have been reasonably understood by the Provider to be confidential; and
(b) the Customer, Candidates, Examiner or Observers Data;
“Customer Data” means all data, scorings, notes, and materials: uploaded to or stored on the ETC Solutions Platform by the Customer; transmitted by the Platform at the instigation of the Customer; supplied by the Customer to the Provider for uploading to, transmission by or storage on the Platform; or generated by the Platform as a result of the use of the Hosted Services by the Customer but excluding analytics data relating to the use of the Platform and server log files;
“Customer Personal Data” means any Personal Data that is processed by the Provider on behalf of the Customer in relation to this Agreement, but excluding personal data with respect to which the Provider is a data controller;
“Data Protection Laws” means the EU GDPR and the UK GDPR and all other applicable laws relating to the processing of Personal Data;
“Documentation” means the Help & Guidelines documentation for the Hosted Services produced by the Provider and delivered or made available by the Provider to the Customer;
“Effective Date” means the date of execution of this Agreement;
“EU GDPR” means the General Data Protection Regulation (EU) 2016/679 and all other EU laws regulating the processing of Personal Data, as such laws may be updated, amended, and superseded from time to time;
“Examiner & Observers” means people assigned by the Company to perform an evaluation of metrics and scoring the “Good Candidate & Honesty Score”
“Force Majeure Event” means an event, or a series of related events, that is outside the reasonable control of the party affected including failures of the internet or any public telecommunications network, hacker attacks, denial of service attacks, virus or other malicious software attacks or infections, power failures, industrial disputes affecting any third party, changes to the law, disasters, epidemics, pandemics, explosions, fires, floods, riots, terrorist attacks, and wars;
“Hosted Services” means the hosted services, which will be made available by the Provider to the Customer as a service via the internet in accordance with this Agreement;
“Hosted Services Defect” means a defect, error, or bug in the Platform having an adverse effect OR a material adverse effect on the appearance, operation, functionality, or performance of the Hosted Services, but excluding any defect, error, or bug caused by or arising as a result of:
(a) any act or omission of the Customer or any person authorized by the Customer to use the Platform or Hosted Services];
(b) any use of the Platform or Hosted Services contrary to the Documentation, whether by the Customer or by any person authorized by the Customer;
(c) a failure of the Customer to perform or observe any of its obligations in this Agreement; and/or
(d) an incompatibility between the Platform or Hosted Services and any other system, network, application, program, hardware, or software not specified as compatible in the Hosted Services Specification;
“Intellectual Property Rights” means all intellectual property rights wherever in the world, whether registrable or unregistrable, registered or unregistered, including any application or right of application for such rights and these “intellectual property rights” include copyright and related rights, database rights, confidential information, trade secrets, know-how, business names, trade names, trademarks, service marks, passing off rights, unfair competition rights, patents, petty patents, utility models, semiconductor topography rights and rights in designs;
“Mobile App” means the mobile application known as mobile application name that is made available by the Provider through the Google Play Store;
“Personal Data” means personal data under any of the Data Protection Laws;
“Platform” means ETC HIRE managed by the Provider and used by the Provider to provide the Hosted Services, including [the application and database software for the Hosted Services, the system and server software used to provide the Hosted Services, and the computer hardware on which that application, database, system, and server software is installed;
“Regulated Business” means that you must not use the Services for any purpose relating to gambling, gaming, betting, lotteries, sweepstakes, prize competitions, drugs production, or distribution, without complying with specific country jurisdiction law related to Regulated Business.
“Schedule” means any schedule attached to the main body of this Agreement;
“Test Services” means the ETC Solutions test services that the Provider provides to the Customer, or has an obligation to provide to the Customer, under this Agreement;
“Support Services” means support in relation to the use of, and the identification and resolution of errors in, the Hosted Services, but shall not include the provision of training services;
“Supported Web Browser” means the current release from time to time of Microsoft Edge, Mozilla Firefox, Google Chrome or Apple Safari, or any other web browser that the Provider agrees in writing shall be supported];
“Term” means [the term of this Agreement, commencing in accordance with Clause 3.1 and ending in accordance with Clause 3.2;
“GDPR” means the EU GDPR, Data Protection Act 2018 and the Data Protection, Privacy and Electronic Communications and Regulations 2019 and all other laws regulating the processing of Personal Data, as such laws may be updated, amended, and superseded from time to time; and
“User Interface” means the ETC Solutions interface for the Hosted Services designed to allow individual human users to access and use the Hosted Services.
“Video Record Test” means the candidate executing the sessions of the test, Video recording by Candidates must not be illegal or unlawful, must not infringe any person’s legal rights, and must not be capable of giving rise to legal action against any person in each case in any jurisdiction and under any applicable law.
Answer to questions must not be:
Libelous or maliciously false, be obscene or indecent, untrue, inaccurate, or misleading.
Infringe any copyright, moral right, database right, trade mark right, design right, right in passing off, or another intellectual property right;
Infringe any right of confidence, right of privacy, or right under data protection legislation;
Constitute negligent advice or contain any negligent statement, constitute an incitement to commit a crime, instructions for the commission of a crime or the promotion of criminal activity;
Be in contempt of any court, or in breach of any court order;
Constitute a breach of racial or religious hatred or discrimination legislation;
Constitute a breach of any contractual obligation owed to any person.
2.1 This Agreement shall come into force upon the Effective Date – March 1st, 2021, and by using the Services, you agree to the rules set out in this Agreement.
3.2 This Agreement shall continue in force indefinitely OR until an end date is established by ETC AI, and this Agreement shall terminate automatically, subject to termination in accordance with Clause 18 or any other provision of this Agreement.
If you consider that your rights are being affected in any way, stop immediately any form of use of ETC HIRE.
3. Hosted Services
4.1 ETC AI shall provide, or shall ensure that the Platform will provide, to the Customer the Access Credentials necessary to enable the Customer to access and use the Hosted Services.
4.2 The Provider hereby grants to the Customer a worldwide, non-exclusive license to use the Hosted Services by means of 12 different languages for the internal business purposes of the Customer in accordance with the Documentation.
4.3 The license granted by ETC HIRE the Provider to the Customer under Clause 4.2 is subject to the following limitations:
(a) the User Interface may only be used through a Supported Web Browser, on a computer or mobile device;
(b) the User Interface may only be used by the officers, employees, agents, and subcontractors of the Customer, outside of the United States of America, where the Employee Polygraph Protection Act restricts their use.
ETC HIRE may be restricted for companies and individuals, based on U.S. OFAC sanctions programs. The sanctions can be either comprehensive or selective, using the blocking of assets and trade restrictions to accomplish foreign policy and national security goals. ;
(c) the User Interface may only be used by the registered users, providing that the Customer may change, add or remove a designated named user in accordance with the user change procedure defined by the Hosted Services;
(d) the User Interface may be used at any point in time by the number of concurrent users registered as Candidates, Examiners, Observers and Administrators and,
(e) the Company can register as many accounts need based on languages, facilities, or any other criteria.
4.4 Except to the extent expressly permitted in this Agreement or required by law on a non-excludable basis, the license granted by the Provider to the Customer under Clause 4.2 is subject to the following prohibitions:
(a) the Customer must not sub-license its right to access and use the Hosted Services;
(b) the Customer must not permit any unauthorized person or application to access or use the Hosted Services;
(c) the Customer must not use the Hosted Services to provide services to third parties;
(d) the Customer must not republish or redistribute any content or material from the Hosted Services;
(e) the Customer must not make any alteration to the Platform, except as permitted by the Documentation; and
(f) the Customer must not conduct or request that any other person conduct any load testing or penetration testing on the Platform or Hosted Services without the prior written consent of ETC AI, the Provider.
4.5 The Customer shall implement and maintain reasonable security measures relating to the Access Credentials to ensure that no unauthorized person or application may gain access to the Hosted Services by means of the Access Credentials.
4.6 The Provider shall use all reasonable endeavors to maintain the availability of the Hosted Services to the Customer at the gateway between the public internet and the network of the hosting services provider for the Hosted Services but does not guarantee 100% availability.
4.7 For the avoidance of doubt, downtime caused directly or indirectly by any of the following shall not be considered a breach of this Agreement:
(a) a Force Majeure Event;
(b) a fault or failure of the internet or any public telecommunications network;
(c) a fault or failure of the Customer’s computer systems or networks;
(d) any breach by the Customer of this Agreement; or
(e) scheduled maintenance carried out in accordance with this Agreement.
4.8 The Customer must not use the Hosted Services in any way that causes or may cause, damage to the Hosted Services or Platform or impairment of the availability or accessibility of the Hosted Services.
4.9 The Customer must not use the Hosted Services in any way that uses excessive Platform resources and as a result, is liable to cause a material degradation in the services provided by the Provider to its other customers using the Platform; and the Customer acknowledges that the Provider may use reasonable technical measures to limit the use of Platform resources by the Customer for the purpose of assuring services to its customers generally.
4.10 The Customer must not use the Hosted Services:
(a) in any way that is unlawful, illegal, fraudulent or harmful; or
(b) in connection with any unlawful, illegal, fraudulent, or harmful purpose or activity.
4.11 For the avoidance of doubt, the Customer has no right to access the software code (including object code, intermediate code, and source code) of the Platform, either during or after the Term.
4.12 The Provider may suspend the provision of the Hosted Services if any amount due to be paid by the Customer to the Provider under this Agreement is overdue, and the Provider has given to the Customer at least 30 days written notice, following the amount becoming overdue, of its intention to suspend the Hosted Services on this basis.
5. Scheduled maintenance
5.1 The Provider may from time to time suspend the Hosted Services for the purposes of scheduled maintenance to the Platform[, providing that such scheduled maintenance must be carried out in accordance with this Clause 5.
5.2 The Provider shall, where practicable give to the Customer at least 5 Business Days’ prior written notice of scheduled maintenance that will, or is likely to, affect the availability of the Hosted Services or have a material negative impact upon the Hosted Services.
5.3 Since ETC HIRE is a worldwide platform, The Provider can’t ensure that all scheduled maintenance will be carried out outside Business Hours.
5.4 The Provider shall ensure that, during each calendar month, the aggregate period during which the Hosted Services are unavailable as a result of scheduled maintenance, or negatively affected by scheduled maintenance to a material degree, does not exceed 24 hours.
6. Support Services
6.1 The Provider shall provide the Support Services to the Customer during the Term.
6.3 The Provider shall provide the Support Services with reasonable skill and care OR in accordance with the standards of skill and care reasonably expected from a leading service provider in the Provider’s industry.
6.4 The Customer may use the Helpdesk for the purposes of requesting and, where applicable, receiving the additional Support Services, and the Customer must not use the Helpdesk for any other purpose.
6.5 The Provider shall respond promptly to all requests for Support Services made by the Customer through the Helpdesk.
7.1 The Customer, Candidates, Examiners, and Observers, hereby grants to the Provider a non-exclusive license to record, copy, reproduce, store, distribute, publish, export, adapt, edit, process, generate metrics, and translate their Personal Data to the extent reasonably required for the performance of the Provider’s obligations and the exercise of the Provider’s rights under this Agreement.
7.2 The Customer, Candidate, Examiners, and Observers warrants to the Provider that the Customer Data OR the Customer Data, when used by the Provider in accordance with this Agreement, will not infringe the Intellectual Property Rights or other legal rights of any person, and will not breach the provisions of any law, statute or regulation, in any jurisdiction and under any applicable law.
7.3 The Provider shall create a backup copy of the Customer Data at least every week, shall ensure that each such copy is sufficient to enable the Provider to restore the Hosted Services to the state they were in at the time the back-up was taken, and shall retain and securely store each such copy for a minimum period of 30 days.
7.4 Within the period of 3 Business Day following receipt of a written request from the Customer, the Provider shall [use all reasonable endeavors to restore to the Platform the Customer Data stored in any back-up copy created and stored by the Provider in accordance with Clause 7.3. The Customer acknowledges that this process will overwrite the Customer Data stored on the Platform prior to the restoration.
8. Mobile App – ETC Operations
8.1 The parties acknowledge and agree that the use of the Mobile App, the parties’ respective rights and obligations in relation to the Mobile App and any liabilities of either party arising out of the use of the Mobile App shall be subject to separate terms and conditions, and accordingly, this Agreement shall not govern any such use, rights, obligations or liabilities.
9. No assignment of Intellectual Property Rights
9.1 Nothing in this Agreement shall operate to assign or transfer any Intellectual Property Rights from the Provider to the Customer, Candidates, Examiners or Observers, or from the Customer to the Provider.
10.1 The Customer shall pay for the ETC HIRE Tests to the Provider in accordance with this Agreement.
10.2 The Charges are based in whole by the Provider performing the HIRE Services, the Customers, Candidates, Examiners, and Observers, award full consent for the performance of the Services by accepting that and agreed by the parties being exceeded; and unless the parties agree in writing, the Provider shall not be liable to pay to the Customer, Candidates, Examiner or Observers, any compensation of any kind.
10.4 The Provider may elect to vary any element of the Tests Charges by giving to the Customer not less than 30 days written notice.
11.1 The Provider or ETC Country Partners shall issue invoices for the Charges to the Customer in advance for the use of the ETC HIRE Tests (Invoiced Credits).
11.2 The Customer must pay the Charges (Test Credits) to the Provider in advance and the receipt of an invoice issued in accordance with this Clause 11, providing that the Charges must in all cases be paid before the tests are performed.
11.3 The Customer must pay the Charges by debit card, credit card, direct debit, bank transfer using payment platforms such as Paypal, Stripe, or others, details as are notified by the Provider to the Customer from time to time.
12. Provider’s confidentiality obligations
12.1 The Provider must:
(a) keep the Customer Confidential Information strictly confidential, ETC AI provides Customer hosting services, to ensure maximum confidentiality (AWS – Amazon) OR private hosting or other suppliers, write to email@example.com for more information.
(b) not disclose the Customer Confidential Information to any person without the Customer’s prior written consent, and then only under conditions of confidentiality approved in writing by the Customer OR no less onerous than those contained in this Agreement;
(c) use the same degree of care to protect the confidentiality of the Customer Confidential Information as the Provider uses to protect the Provider’s own confidential information of a similar nature, being at least a reasonable degree of care;
(d) act in good faith at all times in relation to the Customer Confidential Information; and
(e) not use any of the Customer Confidential Information for any purpose other than specified purposes.
12.2 Notwithstanding Clause 12.1, the Provider may disclose the Customer Confidential Information to the Provider’s officers, employees, professional advisers, insurers, agents and subcontractors, who have been granted access rights for the performance of their work with respect to this Agreement and ]who are bound by a written agreement or professional obligation to protect the confidentiality of the Customer Confidential Information.
12.3 This Clause 12 imposes no obligations upon the Provider with respect to Customer Confidential Information that:
(a) is known to the Provider before disclosure under this Agreement and is not subject to any other obligation of confidentiality;
(b) is or becomes publicly known through no act or default of the Provider; or
(c) is obtained by the Provider from a third party in circumstances where the Provider has no reason to believe that there has been a breach of an obligation of confidentiality.
12.4 The restrictions in this Clause 12 do not apply to the extent that any Customer Confidential Information is required to be disclosed by any law or regulation, by any judicial or governmental order or request, or pursuant to disclosure requirements relating to the listing of the stock of the Provider on any recognized stock exchange.
12.5 The provisions of this Clause 12 shall continue in force indefinitely following the termination of this Agreement OR for a period of 5 years following the termination of this Agreement, at the end of which period they will cease to have an effect.
13.1 The Provider OR Each party shall comply with the Data Protection Laws with respect to the processing of the Customer Personal Data.
13.2 The Customer warrants to the Provider that it has the legal right to disclose all Personal Data that it does in fact disclose to the Provider under or in connection with this Agreement.
13.3 The Customer shall only supply to the Provider, and the Provider shall only process, in each case under or in relation to this Agreement:
13.4 The Provider shall only process the Customer Personal Data for the purposes of record each answer to the approved questions, process emotional responses, generate metrics and scores, and Alerts. (Data processing information).
13.5 The Provider process the Candidate Tests and KPIs for the Customer in real-time and any wrong interpretation video are deleted.
13.6 The Customer hereby authorizes the Provider to make the following transfers of Customer Personal Data:
(a) the Provider may transfer the Customer Personal Data internally to own servers (cloud), employees, offices, and facilities in the jurisdiction(s), providing that such transfers must be protected by appropriate safeguards;
(b) the Provider may transfer the Customer Personal Data to third party processors in the jurisdictions selected by the Customer (Data processing information) and may permit its third party processors to make such transfers, providing that such transfers must be protected by any appropriate safeguards identified therein; and
(c) the Provider may transfer the Customer Personal Data to a country, a territory, or sector to the extent that the competent data protection authorities have decided that the country, territory, or sector ensures an adequate level of protection for Personal Data.
13.7 The Provider shall promptly inform the Customer if, in the opinion of the Provider, an instruction of the Customer relating to the processing of the Customer Personal Data infringes the Data Protection Laws.
13.8 Notwithstanding any other provision of this Agreement, the Provider may process the Customer Personal Data if and to the extent that the Provider is required to do so by applicable law. In such a case, the Provider shall inform the Customer of the legal requirement before processing, unless that law prohibits such information[ on important grounds of public interest.
13.10 The Provider shall ensure that persons authorized to process the Customer Personal Data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality.
13.11 The Provider and the Customer shall each implement appropriate technical and organizational measures to ensure an appropriate level of security for the Customer Personal Data, including those measures.
13.12 The Provider may include third parties to process the Customer Personal Data without the prior specific or general written authorization of the Customer to improve the scope, reach, methods of the Diagnose, Evaluation, Behavior Fingerprint, and KPIs.
13.13 The Provider shall, insofar as possible and taking into account the nature of the processing, take appropriate technical and organizational measures to assist the Customer with the fulfillment of the Customer’s obligation to respond to requests exercising a data subject’s rights under the Data Protection Laws.
13.14 The Provider can assist the Customer in ensuring compliance with the obligations relating to the security of the processing of personal data, the notification of personal data breaches to the supervisory authority, the communication of personal data breaches to the data subject, data protection impact assessments, and prior consultation in relation to high-risk processing under the Data Protection Laws. The Provider may charge the Customer at its standard time-based charging rates for any work performed by the Provider at the request of the Customer.
13.16 The Provider must notify the Customer of any Personal Data breach affecting the Customer Personal Data without delay and, in any case, not later than 36 hours after the Provider becomes aware of the breach.
13.17 The Provider shall make available to the Customer all information necessary to demonstrate the compliance of the Provider with its obligations under Clause 13 and the Data Protection Laws. The Provider may charge the Customer at its standard time-based charging rates for any work performed by the Provider at the request of the Customer pursuant to this Clause 13.17, providing that no such charges shall be levied with respect to the completion by the Provider at the reasonable request of the Customer, not more than once per calendar year of the standard information security questionnaire of the Customer.
13.18 The Provider shall, at the choice of the Customer, delete or return all of the Customer Personal Data to the Customer after the provision of services relating to the processing, and shall delete existing copies save to the extent that applicable law requires the storage of the relevant Personal Data.
13.19 The Provider shall allow for and contribute to audits, including inspections, conducted by the Customer or another auditor mandated by the Customer in respect of the compliance of the Provider’s processing of Customer Personal Data with the Data Protection Laws and this Clause 13. The Provider may charge the Customer at its standard time-based charging rates] for any work performed by the Provider at the request of the Customer pursuant to this Clause 13.19, providing that no such charges shall be levied where the request to perform the work arises out of any breach by the Provider of this Agreement or any security breach affecting the systems of the Provider.
13.20 If any changes or prospective changes to the Data Protection Laws result or will result in one or both parties not complying with the Data Protection Laws in relation to the processing of Personal Data carried out under this Agreement, then the parties shall use their best endeavors promptly to agree on such variations to this Agreement as may be necessary to remedy such non-compliance.
14.1 The Provider warrants to the Customer that:
(a) the Provider has the legal right and authority to enter into this Agreement and to perform its obligations under this Agreement;
(b) the Provider will comply with all applicable legal and regulatory requirements applying to the exercise of the Provider’s rights and the fulfillment of the Provider’s obligations under this Agreement; and
(c) the Provider has or has access to all necessary know-how, expertise, and experience to perform its obligations under this Agreement.
14.2 The Provider warrants to the Customer that:
(a) the ETC HIRE Platform and Hosted Services will conform in all material respects with the Hosted Services Specification;
(b) the Hosted Services will be free from Hosted Services Defects;
(c) the Platform will be free from viruses, worms, Trojan horses, ransomware, spyware, adware, and other malicious software programs; and
(d) the Platform will incorporate security features reflecting the requirements of good industry practice.
14.3 The Provider warrants to the Customer that the Hosted Services, when used by the Customer in accordance with this Agreement, will not breach any laws, statutes, or regulations applicable under the United States law.
14.4 The Provider warrants to the Customer that the Hosted Services, when used by the Customer in accordance with this Agreement, will not infringe the Intellectual Property Rights of any person in any jurisdiction and under any applicable law.
14.5 If the Provider reasonably determines, or any third party alleges, that the use of the Hosted Services by the Customer in accordance with this Agreement infringes any person’s Intellectual Property Rights, the Provider may at its own cost and expense:
(a) modify the Hosted Services in such a way that they no longer infringe the relevant Intellectual Property Rights; or
(b) procure for the Customer the right to use the Hosted Services in accordance with this Agreement.
14.6 The Customer warrants to the Provider that it has the legal right and authority to enter into this Agreement and to perform its obligations under this Agreement.
14.7 All of the parties’ warranties and representations in respect of the subject matter of this Agreement are expressly set out in this Agreement. To the maximum extent permitted by applicable law, no other warranties or representations concerning the subject matter of this Agreement will be implied into this Agreement or any related contract.
15. Acknowledgements and warranty limitations
15.1 The Customer acknowledges that ETC HIRE is a complex software that is never wholly free from defects, errors, and bugs; and subject to the other provisions of this Agreement, the Provider gives no warranty or representation that the Hosted Services will be wholly free from defects, errors, and bugs.
15.2 The Customer acknowledges that complex software is never entirely free from security vulnerabilities; and subject to the other provisions of this Agreement, the Provider gives no warranty or representation that the Hosted Services will be entirely secure.
15.3 The Customer acknowledges that the Hosted Services are designed to be compatible only with that software and those systems specified as compatible in the Hosted Services Specification, and the Provider does not warrant or represent that the Hosted Services will be compatible with any other software or systems.
15.4 The Customer acknowledges that the Provider will not provide any legal, security, human resources, or tax advice under this Agreement or in relation to the Hosted Services; and, except to the extent expressly provided otherwise in this Agreement, the Provider does not warrant or represent that the Hosted Services or the use of the Hosted Services by the Customer will not give rise to any legal liability on the part of the Customer or any other person.
16. Limitations and exclusions of liability
16.1 Nothing in this Agreement will:
(a) limit any liabilities in any way that is not permitted under applicable law; or
(b) exclude any liabilities that may not be excluded under applicable law.
16.2 The limitations and exclusions of liability set out in this Clause 16 and elsewhere in this Agreement:
(a) are subject to Clause 16.1; and
(b) govern all liabilities arising under this Agreement or relating to the subject matter of this Agreement, including liabilities arising in contract, in tort including negligence, and for breach of statutory duty, except to the extent expressly provided otherwise in this Agreement.
16.3 Neither party shall be liable to the other party OR The Provider shall not be liable to the Customer OR The Customer shall not be liable to the Provider in respect of any losses arising out of a Force Majeure Event.
16.4 Neither party shall be liable to the other party OR The Provider shall not be liable to the Customer OR The Customer shall not be liable to the Provider in respect of any loss of profits or anticipated savings.
16.5 Neither party shall be liable to the other party OR The Provider shall not be liable to the Customer OR The Customer shall not be liable to the Provider in respect of any loss of revenue or income.
16.6 Neither party shall be liable to the other party OR The Provider shall not be liable to the Customer OR The Customer shall not be liable to the Provider in respect of any loss of use or production.
16.7 Neither party shall be liable to the other party OR The Provider shall not be liable to the Customer OR The Customer shall not be liable to the Provider in respect of any loss of business, contracts, or opportunities.
16.8 Neither party shall be liable to the other party OR The Provider shall not be liable to the Customer OR The Customer shall not be liable to the Provider in respect of any loss or corruption of any data, database, or software; providing that this Clause 16.8 shall not protect the Provider unless the Provider has fully complied with its obligations under Clause 7.3 and Clause 7.4.
16.9 Neither party shall be liable to the other party OR The Provider shall not be liable to the Customer OR The Customer shall not be liable to the Provider in respect of any special, indirect, or consequential loss or damage.
16.10 The liability of each party to the other party OR the Provider to the Customer OR the Customer to the Provider under this Agreement in respect of any event or series of related events shall not exceed the greater of:
(a) $ 5,000 US Dollars; and
(b) the total amount paid and payable by the Customer to the Provider under this Agreement in the 12 month period preceding the commencement of the event or events.
16.11 The aggregate liability of [each party to the other party] OR [the Provider to the Customer] OR [the Customer to the Provider] under this Agreement shall not exceed the greater of:
(a) $ 2,500 US Dollars; and
(b) the total amount paid and payable by the Customer to the Provider under this Agreement.
17. Force Majeure Event
17.1 If a Force Majeure Event gives rise to a failure or delay in either party performing any obligation under this Agreement other than any obligation to make a payment, that obligation will be suspended for the duration of the Force Majeure Event.
17.2 A party that becomes aware of a Force Majeure Event which gives rise to, or which is likely to give rise to, any failure or delay in that party performing any obligation under this Agreement, must:
(a) promptly notify the other; and
(b) inform the other of the period for which it is estimated that such failure or delay will continue.
17.3 A party whose performance of its obligations under this Agreement is affected by a Force Majeure Event must take reasonable steps to mitigate the effects of the Force Majeure Event.
18.1 The Customer terminates this Agreement by not purchasing additional ETC HIRE Tests and giving to the other party written notice of termination, if the Customer wants to delete permanently all information from the account.
18.2 Either party may terminate this Agreement immediately by giving written notice of termination to the other party if the other party commits a material breach of this Agreement.
18.3 Subject to applicable law, either party may terminate this Agreement immediately by giving written notice of termination to the other party is dissolved or ceases to conduct all or substantially all of its business.
19. Effects of termination
19.1 Upon the termination of this Agreement, all of the provisions of this Agreement shall cease to have an effect, save that the following provisions of this Agreement shall survive and continue to have effect in accordance with their express terms or otherwise indefinitely.
19.2 Except to the extent expressly provided otherwise in this Agreement, the termination of this Agreement shall not affect the accrued rights of either party.
19.3 Within 30 days following the termination of this Agreement for any reason:
20.1 Any notice from one party to the other party under this Agreement must be given by email notification:
20.2 The Provider’s (ETC AI LLC) contact details for notices under this Clause 20 are as follows: firstname.lastname@example.org
21.1 The Provider may subcontract some of its obligations under this Agreement without the prior written consent of the Customer.
21.1 Subject to any express restrictions elsewhere in this Agreement, the Provider may subcontract some obligations under this Agreement, such as local invoicing, consulting services in local jurisdictions to comply with country laws.
21.2 The Provider shall supervise the services performed to the Customer by the ETC Local Partner but will not be responsible for the subcontracted partner obligations.
21.3 Notwithstanding the provisions of this Clause 21 but subject to any other provision of this Agreement, the Customer acknowledges and agrees that the Provider may subcontract to any reputable third party hosting business the hosting of the ETC HIRE Platform and the provision of services in relation to the support and maintenance of elements of the Platform.
22.1 No breach of any provision of this Agreement shall be waived except with the express wrote consent of the party not in breach.
22.2 If any provision of this Agreement is determined by any court or other competent authority to be unlawful and/or unenforceable, the other provisions of this Agreement will continue in effect. If any unlawful and/or unenforceable provision would be lawful or enforceable if part of it were deleted, that part will be deemed to be deleted, and the rest of the provision will continue in effect unless that would contradict the clear intention of the parties, in which case the entirety of the relevant provision will be deemed to be deleted.
22.3 This Agreement may not be varied except by a written document signed by or on behalf of each of the parties.
22.4 Neither party may without the prior written consent of the other party assign, transfer, charge, license, or otherwise deal in or dispose of any contractual rights or obligations under this Agreement.
22.5 This Agreement is made for the benefit of the parties and is not intended to benefit any third party or be enforceable by any third party. The rights of the parties to terminate, rescind, or agree to any amendment, waiver, variation, or settlement under or relating to this Agreement are not subject to the consent of any third party.
22.6 Subject to Clause 16.1, this Agreement shall constitute the entire agreement between the parties in relation to the subject matter of this Agreement, and shall supersede all previous agreements, arrangements, and understandings between the parties in respect of that subject matter.
22.7 This Agreement shall be governed by and construed in accordance with the United States of America law.
22.8 The courts of Florida in the United States shall have exclusive jurisdiction to adjudicate any dispute arising under or in connection with this Agreement.
23.1 In this Agreement, a reference to a statute or statutory provision includes a reference to:
(a) that statute or statutory provision as modified, consolidated, and/or re-enacted from time to time; and
(b) any subordinate legislation made under that statute or statutory provision.
23.2 The Clause headings do not affect the interpretation of this Agreement.
23.3 In this Agreement, general words shall not be given a restrictive interpretation by reason of being preceded or followed by words indicating a particular class of acts, matters, or things.
Execution of this Agreement:
The parties have indicated their acceptance of this Agreement by performing the ETC HIRE Test by Candidates and/or Examiners, Observers, and Companies by creating Job Openings, inviting Candidates and reviewing and score the Diagnose & Evaluate their Tests.