Terms of Service

SeekOut – Terms of Service | Effective Date: February 1, 2023

These SeekOut Terms of Service (these “Terms of Service”) are between SeekOut, a service of ZipStorm, Inc., a Delaware corporation with offices at 1110 112th Ave NE, Suite 400, Bellevue, WA 98004 (“SeekOut”, “we”, “our”, or “us”) and the customer listed on a SeekOut Order Form (“Customer”, “you”, or “your”). SeekOut and Customer may be referred to individually as a “Party” or collectively as the “Parties”.

SeekOut is our online talent search and talent optimization solution that allows customers to (i) discover and engage with internal and external candidates; and (ii) analyze attributes of existing personnel for internal talent purposes.

If you have any questions about this Agreement, please contact us at support@seekout.com. Additionally, please refer to our Privacy Policy for information about how we collect, use, and disclose information about you in connection with SeekOut. BY USING SEEKOUT SERVICES AND AGREEING TO THIS AGREEMENT, YOU REPRESENT AND WARRANT THAT YOU WILL NOT USE ANY SEEKOUT SERVICES OR SEEKOUT DATA IN VIOLATION OF THE SEEKOUT USE POLICY.

1. DEFINITIONS

Agreement”: these Terms of Service, including any applicable Supplemental Terms and any exhibits attached hereto and incorporated by reference, and any associated Order Forms.

Customer Data”: any data and information provided to SeekOut by you or on your behalf through use of the SeekOut Services.

Documentation”:the user instructions, release notes, manuals, and on-line help files in the form generally made available by SeekOut regarding the use of the applicable SeekOut Services.

License Metrics”: the limitation on the usage of each of the SeekOut Services set out in the applicable Order Form by a term such as number of seats, types of licenses, and purchased SeekOut Services.

Order Form”:the document(s), regardless of its actual name, executed by the Parties which incorporates by reference the terms of this Agreement and describes your order-specific information, such as a description of the SeekOut Services ordered, fees, and license scope, use, and restrictions.

Protected Materials”: collectively, the SeekOut Services, any professional services ordered under an Order Form or otherwise, and SeekOut’s or its licensors’ content, materials, intellectual property, or Confidential Information.

SeekOut Data”: any data or information produced or provided to you by SeekOut through your use of the SeekOut Services, including any data provided from the SeekOut talent database.

SeekOut Services”: the SeekOut software-as-a-service and SeekOut software components set forth on an Order Form which are hosted or provided by SeekOut to you and your authorized users.

SeekOut Use Policy”: the acceptable use policy that may be accessed at www.seekout.com/terms/use-policy.

Support”: the support services for the SeekOut Services which are provided under SeekOut’s Support Policies (as may be amended by SeekOut from time to time) in effect at the time the SeekOut Services are provided. For the avoidance of doubt, Support excludes professional services.

Third Party Software”: software not provided by SeekOut.

2. ACCEPTANCE

By signing an Order Form or otherwise accessing or using the SeekOut Services, you accept the terms of this Agreement and any terms incorporated by reference. If you do not accept the terms of this Agreement, you may not use the SeekOut Services. If you are an individual accepting this Agreement on behalf of a company or other legal entity, you represent that you have the authority to bind such entity and its affiliates to this Agreement, in which case the terms “Customer” or “you” refer to such entity. If the individual accepting this Agreement does not have such authority, or does not agree with the terms of this Agreement, such individual and the entity they represent must not access or use the SeekOut Services.

3. ELIGIBILITY

You may not access the SeekOut Services if (i) you have previously been suspended or removed from using the SeekOut Services; (ii) the laws of the country in which you reside prohibit use of the SeekOut Services; or (iii) your use of the SeekOut Services breaches any other agreement to which you are a party. Our competitors are prohibited from accessing or using the SeekOut Services without first obtaining our prior written consent.

4. USING THE SEEKOUT SERVICES

4.1 Account Information. You will need to register for an account to use the SeekOut Services. If you register for an account, you must: (i) provide any information required via the SeekOut Services; (ii) ensure that such information is accurate; (iii) keep such information up to date at all times; (iv) protect your account from unauthorized access or use, including by not sharing your account credentials with any third party; and (v) promptly notify us if you discover or suspect any unauthorized access or use of your account. Subject to the terms of this Agreement, you may access and use the SeekOut Services solely for the purposes set forth in the SeekOut Use Policy. The SeekOut Services, including the text, graphics, images, photographs, videos, illustrations, trademarks, trade names, service marks, logos, slogans, and other content contained therein, are owned by us and our licensors. We and our licensors reserve all rights, title, and interest in and to the SeekOut Services.

4.2 Grant of Use of the SeekOut Services. Subject to the terms of this Agreement, SeekOut grants you during the Term a non-exclusive, non-assignable (except as provided herein), non-transferable right to access and use the SeekOut Services solely for your internal business purposes and in accordance with the SeekOut Use Policy. The SeekOut Services purchased may be accessed by or used to manage the number of License Metrics specified in the applicable Order Form. Additional License Metrics may be purchased under an additional Order Form at the pricing then-in effect, prorated for the remainder of the then-current Term. The added License Metrics will have the same subscription term as the then-applicable Term. Fees are based on the SeekOut Services and License Metrics purchased and not actual usage.

4.3 Acceptable Use of the SeekOut Services. You will use the SeekOut Services exclusively for authorized and legal purposes, consistent with all applicable laws and regulations and the SeekOut Use Policy.

4.4 Modifications to the SeekOut Services. We reserve the right, in our sole discretion, to modify the SeekOut Services (or any features or functionality of the SeekOut Services) at any time without notice and without obligation or liability to you. If any of these modifications cause a negative material change to your use of the SeekOut Services you may terminate in accordance with Section 12 (Term and Termination) below.

5. FEES AND PAYMENT

5.1 Fees. You will pay all fees specified in Order Forms. Except as otherwise specified herein or in an Order Form, (i) fees are based on subscriptions and services purchased and not actual usage; (ii) payment obligations are non-cancelable and fees paid are non-refundable; and (iii) quantities purchased cannot be decreased during the relevant subscription term. All fees are in United States Dollars (USD).

5.2 Invoicing and Payment. Unless otherwise agreed in an Order Form: (i) the SeekOut Services fees will be invoiced in full and in advance annually; and (ii) for other amounts due to SeekOut under this Agreement or an Order Form, SeekOut will invoice you in advance and in accordance with the relevant Order Form. Unless otherwise stated in the Order Form, invoiced charges are due thirty (30) days after the date SeekOut provides the invoice to the email you provide to SeekOut. You will provide SeekOut complete and accurate billing and contact information and invoicing procedures, and you will notify SeekOut of any changes to this information. Notwithstanding the foregoing, your failure to provide such information (including changes thereto) does not excuse your payment obligations. If any invoiced amount is not received by SeekOut by the due date, then, without limiting SeekOut’s rights or remedies, those charges may accrue late interest at the rate of 1.5% of the outstanding balance per month or the maximum rate permitted by applicable law, whichever is lower. If an invoiced amount exceeds thirty (30) days past due, SeekOut may refer collection of the unpaid amount to an attorney or collections agency and you will pay reasonable attorneys’ fees or collections agency fees. SeekOut is not obligated to reinstate the SeekOut Services if you pay past due amounts after being referred to collections. SeekOut will not apply late interest or suspend your access to the SeekOut Services if you dispute applicable fees reasonably and in good faith and cooperate with SeekOut to diligently resolve the dispute.

5.3 Taxes. SeekOut’s fees do not include any taxes, levies, duties, or similar governmental assessments of any nature, including, for example, value-added, sales, use, or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). You are responsible for paying all Taxes associated with your purchases under an Order Form. You will be responsible for any liability or expense incurred by SeekOut as a result of your failure or delay in paying taxes due. If SeekOut has the legal obligation to pay or collect Taxes for which you are responsible, SeekOut will invoice you and you will pay that amount unless you provide SeekOut with a valid tax exemption certificate authorized by the appropriate taxing authority.

5.4 Suspension of Services and Acceleration. In the event any amounts are thirty (30) or more days overdue, SeekOut may (without limiting any of its other rights or remedies) (i) suspend its performance; and (ii) require full payment before any additional performance or services are rendered by SeekOut.

6. CONFIDENTIALITY

6.1 Confidential Information. “Confidential Information” means all non-public information, technical data, or know-how, in whatever form, which the disclosing Party (the “Discloser”) transmits or discloses to the receiving Party (the “Recipient”) in any manner, or that the Recipient otherwise receives, is exposed to, or has access to or knowledge of, even if disclosed to Recipient prior to this Agreement, relating to the properties, business activities, or operations of Discloser, including, without limitation: (i) all information of Discloser disclosed in writing or other tangible form and that is plainly marked by Discloser as confidential or “proprietary” or other similar wording; (ii) information that by its nature, industry standards, industry practices, or the context of its disclosure would be reasonably understood to be confidential; (iii) all information of Discloser that is not known to the public, without regard to the form in which such information is disclosed; and (iv) the contents of discussions and negotiations between the Parties concerning this Agreement.

6.2 Use and Disclosure. Recipient will not use Discloser’s Confidential Information for any purpose other than in furtherance of this Agreement. Recipient will not disclose Discloser’s Confidential Information to any person or entity other than Recipient’s employees, agents, advisors, and representatives with a need to know the Confidential Information in order to carry out the purpose of this Agreement and who agree to be bound by Recipient’s obligations under this Agreement with regard to nondisclosure and nonuse of such Confidential Information.

6.3 Exceptions. Confidential Information does not include information that Recipient can demonstrate: (i) was rightfully in its possession or known to it without an obligation of confidentiality prior to receipt from Discloser; (ii) is or has become public knowledge through no fault of Recipient; (iii) is rightfully obtained by Recipient from a third party without breach of any confidentiality obligation known to Recipient; or (iv) was independently developed by Recipient without use of or access to Discloser’s Confidential Information.

6.4 Disclosure Required by Law. If Recipient becomes legally compelled to disclose any of Discloser’s Confidential Information, Recipient will (i) promptly notify Discloser of such requirement before any disclosure is made so that Discloser may seek a protective order or other appropriate remedy limiting disclosure or use of such Confidential Information; and (ii) provide reasonable assistance to Discloser to seek such remedy at Discloser’s expense. If such protective order or other remedy is not obtained, Recipient may furnish only that portion of such Confidential Information that, in the written opinion of its legal counsel, it is legally required to disclose, and Recipient agrees to make commercially reasonable efforts to obtain assurance that confidential treatment will be accorded to the Confidential Information.

6.5 Return or Destruction of Confidential Information. Upon expiration or termination of the final subscription term or this Agreement for any reason, or upon Discloser’s request, Recipient will return or destroy, as directed by Discloser in its sole discretion, all of Discloser’s Confidential Information.

7. CUSTOMER DATA

7.1 Ownership of Customer Data. As between the Parties, you retain all right, title, and interest in and to Customer Data. You are solely responsible for the collection, accuracy, quality, integrity, legality, and appropriateness of all Customer Data. You represent and warrant that any Customer Data submitted to SeekOut for processing has been legally obtained and provided to SeekOut.

7.2 SeekOut as Service Provider. SeekOut will process, transmit, use, store, or disclose Customer Data in order to provide the SeekOut Services to you. With respect to Customer Data, SeekOut will (i) act as a Service Provider as defined by the California Consumer Privacy Act of 2018, Cal. Civ. Code § 1798.100 et seq. (“CCPA”); (ii) not sell Customer Data; and (iii) not collect, retain, use, disclose, or otherwise process Customer Data other than (a) to provide the SeekOut Services, (b) with your consent or at your direction, or (c) for purposes expressly permitted for service providers under the CCPA, the California Consumer Rights Act (“CPRA”), and any regulations issued thereunder.

8. LIMITED RIGHTS; OWNERSHIP

8.1 Reservation of Rights. All rights not expressly granted in this Agreement are reserved by SeekOut and its licensors. You acknowledge that you are receiving only the right to use and access the SeekOut Services, and SeekOut and its licensors retain sole and exclusive ownership of and all rights, title, and interest in and to the Protected Materials, including (whether developed by SeekOut or a third party) (i) intellectual property embodied or associated therewith; (ii) deliverables and work product associated therewith; and (iii) all copies and derivative works thereof. The Protected Materials, including the source and object codes, logic, and structure, constitute valuable trade secrets of SeekOut and its licensors. You agree to secure and protect the Protected Materials consistent with the maintenance of SeekOut’s and its licensors’ rights therein and as SeekOut’s Confidential Information.

8.2 Restrictions. You will not, yourself or through any affiliate, employee, consultant, contractor, agent, or other third party, access or use the Protected Materials or SeekOut Data in violation of the SeekOut Use Policy.

8.3 License Grant by Customer. You grant to SeekOut a non-exclusive and royalty free license to use Customer Data or other materials you provide to SeekOut for the purpose of performing its obligations under this Agreement.

8.4 Feedback. Either Party may provide suggestions, comments, ideas, know-how, or other feedback to the other Party regarding the other Party’s technologies, products, or services (collectively, “Feedback”). Feedback is voluntary and the recipient is not required to hold it in confidence and is not obligated to post or use the Feedback in any way; provided, however, the Feedback may be used by the recipient for any purpose without obligation of any kind, notwithstanding anything to the contrary in this Agreement.

8.5 Enforcement. You will (i) ensure that all your users of the SeekOut Services comply with the terms and conditions of this Agreement; (ii) promptly notify SeekOut of any actual or suspected violation thereof; and (iii) cooperate with SeekOut with respect to investigation and enforcement of this Agreement.

9. INDEMNIFICATION

9.1 SeekOut’s Indemnification Obligations. SeekOut will defend you and your officers, directors, employees, shareholders, and members (each, a “Customer Indemnified Party”) from and against any third party claim, threatened claim, suit, action, regulatory enforcement action, or proceeding (a “Claim”) arising out of infringement of any intellectual property right of a third party enforceable in the United States by the SeekOut Services (an “Infringement Claim”), and SeekOut will indemnify and hold harmless each Customer Indemnified Party against any losses, claims, penalties, fines, judgments, damages, liabilities, or expenses, including reasonable attorneys’ fees (each, a “Loss” and collectively, “Losses”) incurred by or awarded against such Customer Indemnified Party in connection with an Infringement Claim. With respect to any Infringement Claim, SeekOut has no obligation under the foregoing sentence to the extent any Claim or Loss arises out of or results from: (i) your use of the SeekOut Services other than in accordance with this Agreement; (ii) the combination, operation, or use of the SeekOut Services with software, data, or other services not provided or approved by SeekOut; or (iii) any other failure by you, directly or indirectly, to comply with this Agreement. In the event of any Claim or notice alleging infringement of the SeekOut Services, SeekOut may, at its option: (a) procure for you the right to continue using the SeekOut Services; (b) replace or modify the SeekOut Services in whole or in part; or (c) terminate your rights to access and use the SeekOut Services, in whole or in part, and provide you a refund of the pre-paid but unused portion of the SeekOut Services fees paid to SeekOut for such terminated SeekOut Services.

9.2 Customer’s Indemnification Obligations. You will indemnify and hold harmless SeekOut, its subcontractors, affiliates, and its and their respective officers, directors, employees, shareholders, and members (each, a “SeekOut Indemnified Party”) against any Losses incurred by or awarded against such SeekOut Indemnified Party in connection with a Claim arising out of or relating to: (i) your use of the SeekOut Services or SeekOut Data in breach of this Agreement; (ii) actual or alleged infringement of any intellectual property rights of a third party by (including SeekOut’s use of) Customer Data or any other materials or Confidential Information you provide to SeekOut; (iii) a breach of your obligations under the SeekOut Use Policy; or (iv) your gross negligence, fraud, willful misconduct, or violation of applicable law.

9.3 Procedure. As a condition of a Party’s obligations under this Section 9 (Indemnification), the party seeking defense or indemnification will: (i) give the indemnifying Party prompt written notice of the Claim; (ii) provide such assistance in connection with the defense and settlement of the Claim as the indemnifying Party may reasonably request; (iii) allow the indemnifying Party sole control of the defense and settlement (provided that any settlement unconditionally releases the indemnified party of all liability); and (iv) comply with any settlement or court order made in connection with the Claim.

10. DISCLAIMERS; WARRANTIES

10.1 Warranties. Subject to Section 10.4 (Exclusions), SeekOut warrants that (i) the SeekOut Services will perform materially in conformance with the applicable SeekOut Services Documentation; (ii) the functionality and security of the SeekOut Services will not materially decrease during the applicable Term; and (iii) the SeekOut Services will not violate laws applicable to SeekOut.

10.2 Third Party Products or Services. The SeekOut Services may contain features designed to interoperate with third party products or services. Any acquisition or use by you of third party products or services, and any exchange of data between you and any third party provider, product, or service, is solely between you and the applicable provider. SeekOut does not warrant or maintain any third party products or services. SeekOut is not responsible for any disclosure, modification, or deletion of Customer Data resulting from access to the SeekOut Services by any third party product or service.

10.3 DISCLAIMER. EXCEPT AS PROVIDED IN SECTION 10.1 (WARRANTIES), THE protected materials AND SEEKOUT DATA ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. SEEKOUT DOES NOT REPRESENT OR WARRANT THAT THE PROTECTED MATERIALS OR SEEKOUT DATA ARE ACCURATE, COMPLETE, RELIABLE, CURRENT, OR ERROR-FREE. SEEKOUT MAKES NO REPRESENTATIONS OR WARRANTIES REGARDING THE ACCURACY OR RELIABILITY OF ANY SUGGESTIONS SEEKOUT MAKES THROUGH THE SEEKOUT SERVICES. YOU ASSUME THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE SEEKOUT SERVICES. the provision of SeekOut Data does not constitute a recommendation by us or OTHERWISE indicate that any individual is ELIGIBLE OR qualified for your hiring needs OR that other ELIGIBLE OR qualified individuals do not exist.

10.4 Exclusions. SeekOut is not responsible for any claimed breach of any warranty set forth in Section 10.1 (Warranties) caused by: (i) modifications made to the SeekOut Services by anyone other than SeekOut or its agents or assigns; (ii) the combination, operation, or use of the SeekOut Services with any items not provided or approved by SeekOut; (iii) your specifications or instructions; (iv) errors caused by or related to internet connectivity; (v) you deviating from the services operating procedures described in the Documentation; (vi) access to or use of the SeekOut Services not in accordance with this Agreement or the Documentation; or (vii) third party products or services.

11. LIMITATION OF LIABILITY

11.1 Limitation of Liability. TO THE FULLEST EXTENT PERMITTED BY LAW, SEEKOUT’S TOTAL LIABILITY (INCLUDING ATTORNEYS’ FEES AWARDED) ARISING OUT OF OR RELATING TO THIS AGREEMENT WILL BE LIMITED TO THE FEES YOU PAID TO SEEKOUT IN THE TWELVE (12) MONTHS PRECEDING THE EVENT GIVING RISE TO LIABILITY FOR THE PRODUCT OR SERVICE TO WHICH THE LIABILITY RELATES.

11.2 Exclusion of Indirect and Consequential Damages. IN NO EVENT WILL SEEKOUT BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE, TREBLE, OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF BUSINESS, REVENUE, PROFITS, STAFF TIME, GOODWILL, USE, DATA, OR OTHER ECONOMIC ADVANTAGE), WHETHER BASED ON BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY, OR OTHERWISE.

11.3 Limitations Prohibited by Law. NOTHING CONTAINED IN THIS SECTION 11 (LIMITATION OF LIABILITY) SHALL LIMIT OR EXCLUDE ANY LIABILITY TO THE EXTENT PROHIBITED BY LAW.

12. TERM AND TERMINATION

12.1 Term. This Agreement commences on the date you first accept it according to the applicable Order Form and continues until the termination of all subscriptions hereunder. The term of each subscription is specified in the applicable Order Form. Except as otherwise specified in an Order Form, subscriptions will automatically renew for additional periods of one (1) year unless either Party gives the other written notice (email acceptable) at least thirty (30) days before the end of the then-current subscription term (the term specified in the Order Form(s) and any renewal periods or extensions thereof shall collectively be the “Term”). Fees will remain the same as the then-current fees unless SeekOut notifies you of a change in fees in writing at least sixty (60) days prior to the end of the applicable and then-current subscription term.

12.2 Termination. Either Party may terminate this Agreement including all Order Forms upon thirty (30) days’ written notice to the other Party in the event of the following: (i) the other Party commits a non-curable material breach of the Agreement; (ii) the other Party fails to cure any remediable material breach or provide a written plan of cure acceptable to the noticing Party within thirty (30) days of being notified in writing of such breach except for breach of Section 5 (Fees and Payment) which has a fifteen (15) day cure period; (iii) institution of bankruptcy, receivership, legal insolvency, reorganization, or other similar proceedings by or against the other Party under any section or chapter of the United States Bankruptcy Code, as amended, or under any similar laws or statutes of the United States or any state thereof, if such proceedings have not been dismissed or discharged within thirty (30) days after they are instituted; or (iv) the legal insolvency, making of an assignment for the benefit of creditors, the admittance by either Party of any involuntary debts as they mature, or the institution of any reorganization arrangement or other readjustment of debt plan of either Party not involving the United States Bankruptcy Code. Where a Party has a right to terminate the Agreement, the terminating Party may, at its discretion, either terminate the Agreement or the applicable Order Form. For the avoidance of doubt, the termination of one (1) Order Form will not affect any other Order Form(s) then in effect and such other Order Form(s) will continue in full force and effect under the terms of this Agreement.

12.3 Termination Refund and Obligations. In the event you terminate this Agreement pursuant to Section 12.2 (Termination), SeekOut will refund all pre-paid but unused SeekOut Services fees. Termination of this Agreement by SeekOut pursuant to Section 12.2 (Termination) will not excuse your obligation to pay in full any and all amounts due for the period prior to the effective date of termination, nor will such termination result in a refund of fees paid.

13. DISPUTE RESOLUTION; BINDING ARBITRATION

13.1 Arbitration of Disputes. Except for small claims disputes in which you seek to bring an individual action in small claims court located in the county of your billing address or disputes in which you seek injunctive or other equitable relief for the alleged unlawful use of intellectual property, you waive your rights to a jury trial and to have any dispute arising out of or related to this Agreement or the SeekOut Services resolved in court. Instead, for any dispute or claim that you have against SeekOut or relating in any way to the SeekOut Services (each, a ”Dispute”), you agree to first contact SeekOut and attempt to resolve the Dispute informally by sending a written notice of your claim (a “Notice”) by email at legal@seekout.com or by certified mail addressed to SeekOut Legal Department, 1110 112th Ave NE, Suite 400, Bellevue, WA 98004. The Notice must (i) include your name, residence address, email address, and telephone number; (ii) describe the nature and basis of the claim; and (iii) set forth the specific relief sought. If we cannot reach an agreement to resolve the Dispute within thirty (30) days after such Notice is received, then either Party may submit the Dispute to binding arbitration administered by JAMS or, under the limited circumstances set forth above, in court. All Disputes submitted to JAMS will be resolved through confidential, binding arbitration before one (1) arbitrator, with arbitration proceedings held in King County, Washington, USA. The arbitrator will have exclusive authority to resolve any dispute relating to arbitrability and/or enforceability of this arbitration provision, including any unconscionability challenge or any other challenge that the arbitration provision or this Agreement is void, voidable, or otherwise invalid. Any award of the arbitrator will be final and binding on each of the Parties and may be entered as a judgment in any court of competent jurisdiction. You agree that Disputes will be held in accordance with the JAMS Streamlined Arbitration Rules and Procedures (“JAMS Rules”). The most recent version of the JAMS Rules is available on the JAMS website and is hereby incorporated by reference. You either acknowledge and agree that you have read and understand the JAMS Rules or waive your opportunity to read the JAMS Rules and waive any claim that the JAMS Rules are unfair or should not apply for any reason.

13.2 Right to Opt-Out. You have the right to opt out of binding arbitration within thirty (30) days of the date you first accepted the terms of this Section 13 (Dispute Resolution; Binding Arbitration) by sending an email to legal@seekout.com. In order to be effective, the opt-out notice must include your full name and address and clearly indicate your intent to opt out of binding arbitration.

13.3 Severability. If any portion of this Section 13 (Dispute Resolution; Binding Arbitration) is found to be unenforceable or unlawful for any reason, (i) the unenforceable or unlawful provision shall be severed from this Agreement; and (ii) such severance of the unenforceable or unlawful provision shall have no impact whatsoever on the remainder of this Section 13 (Dispute Resolution; Binding Arbitration) or the Parties’ ability to compel arbitration of any remaining claims on an individual basis pursuant to this Section 13 (Dispute Resolution; Binding Arbitration). Further, if any part of this Section 13 (Dispute Resolution; Binding Arbitration) is found to prohibit an individual claim seeking public injunctive relief, that provision will have no effect to the extent such relief is allowed to be sought out of arbitration, and the remainder of this Section 13 (Dispute Resolution; Binding Arbitration) will be enforceable.

14. GENERAL PROVISIONS

14.1 Force Majeure. Neither Party will have the right to terminate this Agreement or an Order Form, and neither Party will incur any liability to the other Party on account of any loss, claim, damage, or liability to the extent resulting from any delay or failure to perform all or any part of this Agreement or an Order Form (except for payment obligations) if and to the extent such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control and without any negligence on the part of the Party seeking protection under this Section 14.1 (collectively, “Force Majeure Events”). Force Majeure Events include, without limitation, acts of God, strikes, lockouts, riots, acts of war, terrorism, earthquake, fire, or explosions. Dates by which performance obligations are scheduled to be met will be extended for a period of time equal to the time lost due to any delay so caused.

14.2 Assignment. Neither Party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other Party’s prior written consent (not to be unreasonably withheld); provided, however, either Party may assign this Agreement in its entirety (including all Order Forms) without the other Party’s consent in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Notwithstanding the foregoing, if you are acquired by, sell substantially all of your assets to, or undergo a change of control in favor of a direct competitor of SeekOut, then SeekOut may terminate this Agreement upon thirty (30) days’ written notice.

14.3 Export. SeekOut’s services, content, other technology, and derivatives thereof may be subject to export laws and regulations of the United States and other jurisdictions. Both Parties represent that they are not named on any U.S. government denied-party list and both Parties will comply with all applicable trade restrictions.

14.4 Relationship. This Agreement is not intended to create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship. Neither Party may bind the other Party or act in a manner which expresses or implies a relationship other than that of independent contractor.

14.5 Marketing. You agree that SeekOut may identify you as a customer in or on SeekOut’s demonstrations, website, or other promotional materials. SeekOut’s use of your name and logo will be in accordance with any guidelines you provide. Upon your written request, SeekOut will promptly remove your name or logo from SeekOut’s website and marketing materials.

14.6 No Waiver. Any waiver of the provisions of this Agreement or of a Party’s rights or remedies under this Agreement must be in writing to be effective. Any such waiver will constitute a waiver only with respect to the specific matter described in such writing and will in no way impair the rights of the Party granting such waiver in any other respect or at any other time. The waiver by either Party of a breach of or a default under any of the provisions of this Agreement will not be construed as a waiver of any other breach or default of a similar nature, or as a waiver of any of such provisions, rights, or privileges hereunder. The rights and remedies herein provided are cumulative and none is exclusive of any other or of any rights or remedies that any Party may otherwise have at law or in equity. Failure, neglect, or delay by a Party to enforce the provisions of this Agreement or its rights or remedies at any time will not be construed and will not be deemed to be a waiver of such Party’s rights under this Agreement and will not in any way affect the validity of the whole or any part of this Agreement or prejudice such Party’s right to take subsequent action.

14.7 Anti-Corruption. Neither Party has received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from an employee or agent of the other Party in connection with this Agreement. Reasonable gifts, entertainment, or business agreements provided in the ordinary course of business do not violate the above restriction.

14.8 Survival. The following provisions will survive any termination or expiration of this Agreement: Section 4 (Using the SeekOut Services); Section 5 (Fees and Payment); Section 8.4 (Feedback); Section 9 (Indemnification); Section 10 (Disclaimers; Warranties); Section 11 (Limitation of Liability); Section 13 (Dispute Resolution; Binding Arbitration); and Section 14.8 (Survival).

14.9 Entire Agreement. This Agreement constitutes the Parties’ entire agreement relating to its subject matter. It cancels and supersedes all prior or contemporaneous oral or written communications, requests for proposals, proposals, conditions, representations, and warranties, or other communication between the Parties relating to its subject matter as well as any prior contractual agreements between the Parties. No modification to this Agreement will be binding unless it is in writing and includes a signature by an authorized representative of each Party.

14.10 No Third Party Beneficiaries. This Agreement is for the benefit of the Parties and their successors and permitted assigns and does not confer any rights or benefits on any third party, including any employee of a Party, any customer of a Party, or any employee of a customer of a Party.

14.11 Governing Law and Venue. This Agreement and your access to and use of the SeekOut Services will be governed by and construed and enforced in accordance with the laws of the State of Washington, USA, without regard to conflict of law rules or principles (whether of Washington or any other jurisdiction) that would cause the application of the laws of any other jurisdiction. Any dispute between the Parties that is not subject to arbitration will be resolved by the state or federal courts sitting in King County, Washington, USA.

14.12 Notices. Any notice provided under this Agreement shall be in writing and sent (i) if to SeekOut, by email to legal@seekout.com or to SeekOut Legal Department, 1110 112th Ave NE, Suite 400, Bellevue, WA 98004; or (ii) if to Customer, to the address listed on the applicable Order Form. When sent to the address set forth in the foregoing sentence or to such other address as may have been designated by either Party by notice to the other given as provided in this Section 14.12, notices shall be deemed to have been effectively given (a) upon receipt when delivered personally or via confirmed email; (b) one (1) business day after sending when sent by private express mail service (such as Federal Express); or (c) five (5) business days after sending when sent by regular mail.

14.13 Order of Precedence; Severability; Construction. In the event of a conflict between an Order Form and these Terms of Service, including any exhibits or terms incorporated herein by reference, these Terms of Service will prevail to the extent of the conflict; provided that standard variable terms such as price, quantity, license scope and License Metrics, tax exempt status, payment terms, and the like will be specified on each Order Form. All pre-printed terms of any purchase order or other business processing document you provide will have no effect. To the extent any provision of this Agreement conflicts with the provisions of an applicable third party EULA for Third Party Software, the third party EULA will take precedence solely in relation to such Third Party Software. If any provision of this Agreement is adjudicated to be invalid, unenforceable, contrary to, or prohibited under applicable laws or regulations of any jurisdiction, such provision shall be severed and the remaining provisions shall continue in full force and effect. References to “include” and “including” mean including without limiting the generality of any description preceding such term and “or” and “and/or” is not exclusive.

15. SUPPLEMENTAL TERMS

The following supplemental terms and conditions ("Supplemental Terms") are incorporated into this Agreement by this reference and apply to any access and use by you of the following SeekOut offerings:

For a trial of the SeekOut Services, the SeekOut Trial Terms of Service;

For an early access release, the Early Access Addendum;

For the SeekOut Services and SeekOut Data,the SeekOut Use Policy; and

If referenced on your Order Form, the Enterprise Addendum.