Monster
Services Agreement for Job Postings
1. Services. This agreement, including any exhibits, schedules and
attachments (collectively the “Agreement”), is between your company or
organization (“Customer”) and Monster, Inc. (“Monster”). Monster operates an
internet-based interactive job posting and search service/career destination
portal on Monster.com (the “Site”). This
Agreement contains terms and conditions applicable to the products and services
(“Services”) provided by Monster to Customer pursuant to the Post a Job order
(the “Order”) you submitted. Customer shall use all Services provided hereunder
solely for its own internal business purposes and shall not resell or transfer
to any third party any Service. As part of the Services, Customer consents to receive by e-mail
updates and announcements of Monster services, Site enhancements, and special
offers.
2. Term and Termination. The term (“Term”) of this
Agreement will begin on the date Customer submits the Order (the “Effective
Date”), and will end upon the expiration of one (1) year from the Effective
Date, and except as otherwise provided below, may not be terminated by either
party. If Customer breaches any
provision of this Agreement or the Site’s terms of use, Monster may immediately
suspend all Customer passwords and access codes until the breach is cured and
if applicable, immediately remove any violative job
postings. If Customer’s breach is
capable of being cured, Customer will have ten (10) days to cure such breach to
Monster’s reasonable satisfaction in order to have passwords and access codes
restored. If such breach is incapable of
being cured or is not cured by Customer within the ten (10) day period, Monster
may: (a) terminate this Agreement and/or (b) pursue all other available
remedies to enforce this Agreement and obtain payment of Fees (as defined
below) due. If Customer has committed
two (2) breaches of the terms of this Agreement or the Site’s terms of use
which have subsequently been cured, upon any additional breach by Customer,
Monster may immediately without further notice to Customer and without refund
of any Fees paid terminate the Agreement.
If this Agreement is terminated for Customer’s uncured breach or for
Customer’s multiple breaches of this Agreement whether cured or uncured,
Monster may accelerate all fees for Services and collect all of its costs and
attorney fees related to the termination.
Either party may immediately terminate this Agreement if the other party
(i) applies for or consents to the appointment of a
receiver, trustee, or liquidator of it or its assets, (ii) makes a general
assignment for the benefit of creditors, (iii) has a petition seeking
bankruptcy, reorganization or similar relief filed against it (which, if
involuntary, is not stayed or dismissed within ninety (90) days of filing), or
(iv) materially breaches this Agreement which breach is not cured within ten
(10) days of notice thereof. Monster may terminate the Agreement
upon notice if Customer fails to meet credit requirements established by
Monster from time to time. Customer’s
breach of this Agreement shall constitute a breach of any other agreement
between Monster and Customer or Customer’s affiliates.
3.
Payment. All amounts
payable by Customer for the Services (“Fees”) are due within thirty (30) days
after delivery of the Monster invoice without deduction or setoff. Monster may, at its option, charge Customer
interest of 1½% per month and collection charges on any Fees not paid when due. Customer will be responsible for the payment
of any present or future sales, use, excise or other similar tax (excluding
taxes based on Monster’s net income) applicable to the Services. Fees paid for Services are
non-refundable. Pricing after the
expiration or termination of the Term of this Agreement shall be at the
then-prevailing rates applicable thereto.
4.
Job Postings. Monster will
permit Customer to post jobs on the Site in accordance with the terms of this
Agreement. Each job posting may include
only one (1) job description in one (1) location and one (1) job category. In the event that Customer or any of its job
postings is the subject of a criminal investigation, such job postings will be
immediately disabled. Any hyperlinks
contained in a job posting submitted by Customer will be disabled when such job
posting is posted on the Site.
Notwithstanding anything to the contrary set forth in this Agreement, in
the Order or in any written or oral statement made by Monster or any representative
of Monster, unlimited job posting packages are not permitted and not available
for purchase from Monster with respect to the Site or any other Site, and any
agreement or statement (written or oral) with respect to unlimited job postings
made in this Agreement, in the Order or otherwise shall be void and of no force
or effect. Any jobs posted by Customer on
the Site in excess of the number of jobs provided for in this Agreement will be
billed to Customer and will be payable by Customer in accordance with the terms
hereof, at Monster’s then prevailing rate for such job postings. Except as otherwise specifically
provided in the Order, job postings purchased hereunder (i) have a scheduled run of 60 days,
and (ii) must be posted during the Term, after which all job postings purchased
hereunder expire. At any time, Customer may take down any of its own
postings but Customer will not receive any refund. The terms and conditions of this Agreement
shall apply to all job postings posted hereunder for the duration of their
scheduled run. Any (1) re-activation of
a deleted or expired job posting, (2) refreshing or renewing of any job
posting, (3) change in the Site (Monster, MonsterTRAK,
etc.) where a job has been posted via FTP/BGW, (4) change in the reference code
of a job, or (5) change in location where a job is based (including a change of
City/Town), constitutes use of an additional job posting.
5. Confidentiality. Each party will keep the specific
terms of this Agreement confidential and not disclose them to any third party
(other than to its attorneys and accountants) without the other party’s prior
written consent, except as required by law.
6. Ownership. Subject to the next sentence, the
contents of the Site (including without limitation all job postings and all
resumes), and all elements which are a part of or incorporated in (or
constitute a collection or compilation of) any of the foregoing, and all
intellectual and other proprietary rights therein are and shall at all times
remain the property of Monster. Notwithstanding the prior sentence, as between
Monster and Customer, any job postings placed by Customer on the Site and all
intellectual and other proprietary rights therein are and shall at all times
remain Customer’s property.
7. Terms of Use. Customer
acknowledges that it and its employees and agents must comply with the terms of
use of the Site available from the Site’s homepage through the link
“Terms of Use.” To the extent there is
any inconsistency between any accessed Site’s terms of use described above in
this paragraph and the terms of this Agreement, the terms of this Agreement
will control.
8. No Warranties. MONSTER MAKES NO WARRANTIES, EXPRESS OR
IMPLIED, INCLUDING THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE, OR NON-INFRINGEMENT WITH RESPECT TO ITS SERVICES OR THE SITE, OR THE
FUNCTIONALITY, PERFORMANCE OR RESULTS OF USE OF ITS SERVICES OR THE SITE.
9. Indemnification. (a) Each
party (each, in such capacity, the “Indemnifying Party”) shall indemnify the
other party, its affiliates and their respective officers, directors, employees
and agents (each, in such capacity, an “Indemnified Party” and, collectively,
the “Indemnified Parties”), from and against any claims, actions or demands,
including without limitation reasonable legal and accounting fees, arising or
resulting from a breach by the
Indemnifying Party of this Agreement or of any representation, warranty,
covenant or agreement contained herein..
10. Limitation of Liability. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED
IN THIS AGREEMENT (INCLUDING THE ORDER), EXCEPT FOR OBLIGATIONS OF AN
INDEMNIFYING PARTY UNDER SECTION 9 TO THE EXTENT ARISING OR RESULTING SOLELY
FROM A THIRD-PARTY CLAIM OF INFRINGEMENT OF SUCH THIRD PARTY’S INTELLECTUAL
PROPERTY RIGHTS, BUT WITHOUT IN ANY WAY LIMITING CUSTOMER’S PAYMENT OBLIGATIONS
UNDER THIS AGREEMENT, (A) NO PARTY WILL BE LIABLE TO ANY OTHER PARTY (NOR TO
ANY PERSON CLAIMING RIGHTS DERIVED FROM THE OTHER PARTY’S RIGHTS) FOR
INCIDENTAL, INDIRECT, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES OF
ANY KIND - INCLUDING LOST REVENUES OR PROFITS, LOSS OF BUSINESS OR LOSS OF DATA
- ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE SERVICES PROVIDED
HEREUNDER (INCLUDING WITHOUT LIMITATION AS A RESULT OF ANY BREACH OF ANY
WARRANTY OR OTHER TERM OF THIS AGREEMENT), REGARDLESS OF WHETHER THE PARTY
LIABLE OR ALLEGEDLY LIABLE WAS ADVISED, HAD OTHER REASON TO KNOW, OR IN FACT
KNEW OF THE POSSIBILITY THEREOF, AND (B) MONSTER’S MAXIMUM LIABILITY ARISING
OUT OF OR IN CONNECTION WITH THIS AGREEMENT, ANY PRODUCT, THE SERVICES PROVIDED
HEREUNDER OR THE SITE, REGARDLESS OF THE CAUSE OF ACTION (WHETHER IN CONTRACT,
TORT, BREACH OF WARRANTY OR OTHERWISE), WILL NOT EXCEED THE AMOUNT PAID BY
CUSTOMER TO MONSTER DURING THE TERM HEREOF.
11. Navigation/Search Engines; No
Modification. Notwithstanding
anything to the contrary contained herein, Customer shall not use and shall
cause each party under Customer’s control (including but not limited to its
Resume Users) not to use any engine, software, tool, agent or other device or
mechanism (including without limitation browsers, spiders, avatars or
intelligent agents) to navigate or search the Site other than the search engine
and search agents available from Monster on the Site or such other Site, as the
case may be, except for generally available third party web browsers (e.g.,
Netscape Navigator, Microsoft Explorer).
Customer shall not and shall cause each party under Customer’s control
(including but not limited to its Resume Users) not to, decipher, decompile,
disassemble or reverse engineer any of the software comprising or in any way
making up a part of the Site.
12. Miscellaneous. Customer agrees with respect to its use of
the Services to comply with all applicable local, national and international
laws, including but not limited to laws relating to labor and employment
(including without limitation the U.S. Equal Employment Opportunity
Commission’s Uniform Guidelines on Employee Selection Procedures), data
privacy, data access and use, and intellectual property. Without limiting the foregoing, Customer
agrees to comply with all laws relating to equal employment opportunity and
employment eligibility requirements and acknowledge that job postings may not
require U.S. citizenship or lawful permanent residence in the U.S. as a
condition of employment, unless otherwise required in order to comply with law,
regulation, executive order, or federal, state or local government contract.
Each party to this Agreement shall be acting as an independent contractor, and
nothing herein shall be construed to create a partnership, joint venture or any
type of agency relationship between Monster and Customer or any of Customer’s
employees or agents. This Agreement, which may be executed in counterparts, contains
the entire understanding of the parties with respect to the transactions and
matters contemplated hereby, supersedes all previous communications,
understandings and agreements (whether oral or written), and cannot be amended
or waived except by a writing signed by all of the parties. Customer may not assign this Agreement in
whole or in part, by operation of law, merger, asset or stock sale or transfer,
or otherwise, without the prior written consent of Monster. No party has relied on any representation or
warranty of any other party not expressly set forth in this Agreement. No failure or delay on the part of any party
in exercising any right or remedy provided in this Agreement shall operate as a
waiver thereof; nor shall any single or partial exercise of or failure to
exercise any such right or remedy preclude any other or further exercise
thereof or the exercise of any other right or remedy under this Agreement. This Agreement shall be governed by and construed
in accordance with the domestic laws of the
13. Non-Traditional Client Provisions. (a) If Customer is an entity that
posts career fair opportunities, work-at-home opportunities or job postings
that request an up-front fee, Customer agrees (i) to purchase
Monster’s Custom Apply Online service at Monster’s current rate-card rate, (ii)
that no links will be contained in its job postings other than the Apply Online
link and that there will be no links back to Customer’s web site, (iii)
that it will post legitimate job opportunities and agrees that the jobs posted
are for specific, legitimate job opportunities that exist for available jobs,
(iv) that all job postings and Customer website(s) will clearly and explicitly
describe any up-front fees that users will have to pay for any service, (v) to
publish verifiable and in-service contact information on its web site (i.e.
functioning e-mail address and phone number), (vi) not to copy any job
description or other content of any other Customer of Monster, (vii) that job seekers will not be
charged a fee to view or apply to the specific opportunity, (viii) an e-mail
address will be included for resume submissions for a specific job opportunity,
(ix) that job postings will not reference other postings that may be available
by becoming a member of Customer’s web site, (x) to provide Monster with the
name and e-mail address of the person responsible for curing of breaches of
these terms and of the Agreement, and (xi) to post all jobs for career fair
opportunities, work-at-home opportunities or job postings that request an
up-front fee solely in the “Sales - Commission Only/Work at Home” Job
Category, the “Business Opportunity/Investment Required” Job Category or the
“Career Fair” Job Category.
(b)
In addition, if Customer is an entity that requests an up-front fee, Customer
agrees to display and adhere to a real and reasonable refund policy, for users
who are not satisfied with such services.
The refund policy must provide for, and Customer must adhere to, at
least (i) a 100% unconditional refund policy for all
job seekers for 30 days after date of purchase (i.e., receipt of funds), (ii)
the ability to request refund via email and telephone, (iii) live support via
telephone and email requests to receive a response not later than the end of
the business day following the day of such request, (iv) a refund policy, with
specific refund guidelines, must be made visible (via link to the policy or
direct text) to the job seeker before a committed purchase is capable of being
made, and (v) refund rules may not include posting a resume or delivery of any
other material as a condition of receiving a refund.
(c) Monster reserves the right to screen
Customer’s postings at any time and from time to time to ensure compliance with
this Section 13.