This Agreement governs your (“Client”) relationship with Paradox, Inc. (“Paradox”) and your use of Paradox’s products and services (the “Services”).
BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, CLIENT AGREES TO THE TERMS OF THIS AGREEMENT. IF CLIENT IS ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, CLIENT REPRESENTS THAT CLIENT HAS THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS "YOU" OR "YOUR" OR “CLIENT” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF CLIENT DOES NOT HAVE SUCH AUTHORITY, OR IF CLIENT DOES NOT AGREE WITH THESE TERMS AND CONDITIONS, CLIENT MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.
You may not access the Services if you are Paradox’s direct competitor, except with Paradox’s prior written consent. In addition, you may not access the Services for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes; including but not limited to marketing your company, sourcing data, or sourcing leads.
This Agreement was last updated on November 19, 2019. It is effective between Client and Paradox as of the date that Client accepts this Agreement in accordance with the terms herein.
1. SAAS SERVICES AND SUPPORT
1.1 Subject to the terms of this agreement, Paradox will use commercially reasonable efforts to provide Client the Services set forth in any order form or statement of work.
1.2 Subject to the terms hereof, Paradox will provide Client with reasonable technical support services in accordance with Paradox's standard practice.
2. RESTRICTIONS AND RESPONSIBILITIES
2.1 Client will not, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services, including, without limitation, any software, documentation or data related to the Services; modify, translate, or create derivative works based on the Services (except to the extent expressly permitted by Paradox); use the Services for time sharing or service bureau purposes or otherwise for the benefit of a third party; or remove any proprietary notices or labels.
2.2 Furthermore, Client may not remove or export from the United States, or allow the export or re-export of, the Services, Software or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. As defined in FAR section 2.101, the Software and documentation are “commercial items” and according to DFAR section 252.2277014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use, modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.
2.3 Client represents, covenants, and warrants that Client will use the Services only in compliance with Paradox’s standard published policies then in effect and all applicable laws and regulations. Client hereby agrees to indemnify and hold harmless Paradox against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees) in connection with any claim or action that arises from an alleged violation of the foregoing or otherwise from Client’s use of Services. Although Paradox has no obligation to monitor Client’s use of the Services, Paradox may do so and will notify Client of any violation or suspected violation under the Agreement, or an order form or statement of work, and will provide Client an opportunity to cure before Paradox prohibits any use of the Services.
2.4 Client shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”). Client shall also be responsible for maintaining the security of the Equipment, Client accounts, passwords (including but not limited to administrative and user passwords and/or PIN) and files, and for all uses of Client accounts or the Equipment, with or without Client’s knowledge or consent.
3. CONFIDENTIALITY; PROPRIETARY RIGHTS
3.1 Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereafter referred to as “Confidential Information”). Confidential Information of Paradox includes, without limitation, non-public information regarding pricing, features, functionality and performance of the Services. Confidential Information of Client includes non-public data provided by Client to Paradox to enable the provision of the Services (“Client Data”). The Receiving Party agrees: (i) to take reasonable precautions to protect such Confidential Information, and (ii) not to use or divulge to any third party any such Confidential Information, except in performance of the Services or as otherwise permitted herein. The Disclosing Party agrees that the foregoing shall not apply with respect to any Confidential Information: (1) five (5) years after the disclosure thereof, or (2) that the Receiving Party can document (a) is or becomes generally available to the public due to no fault of its own, (b) was in the it’s possession or known to it prior to receiving it from the Disclosing Party, (c) was rightfully disclosed to it without restriction by a third party, (d) was independently developed without use of any Confidential Information of the Disclosing Party, or (e) is legally required to be disclosed.
3.2 Client shall own all right, title and interest in and to the Client Data. Paradox shall own and retain all right, title and interest in and to: (a) the Services, including all improvements, enhancements or modifications thereto; and (b) all intellectual property rights related to any of the foregoing.
3.3 Notwithstanding anything to the contrary, Paradox shall have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (including, without limitation, information concerning Client Data and data derived therefrom), and Paradox will be free (during and after the term of this Agreement) to (i) use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other Paradox offerings, and (ii) disclose such data solely in aggregate or other de-identified form in connection with its business. No rights or licenses are granted except as expressly set forth herein.
4. PAYMENT OF FEES AND EXPENSES
4.1 Client shall pay all fees specified in the applicable order form or statement of work in the currency identified therein. If Client’s use of the services exceeds the service capacity set forth on the order form or statement for work or otherwise requires the payment of additional fees (per the terms of this Agreement), Client shall be invoiced for such usage and Client agrees to pay the additional fees in the manner provided herein. Unless stated otherwise in the applicable order form or statement of work, the fees will be invoiced annually in advance and are non-cancelable and non-refundable. Paradox will submit an invoice for fees at which time payment shall be due and payable upon receipt of invoice by Client. Any payment not received from Client by the payment due date will accrue simple interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid. Notwithstanding the foregoing, payment subject to a good faith dispute pursuant to Section 4.2 will not accrue late charges.
4.2 Client may dispute part or the entirety of an invoice by: (i) providing written notice to Paradox of such dispute within ten (10) days of invoice receipt; (ii) providing a reasonably detailed description of the dispute, at least sufficient to allow Paradox to analyze the dispute, as part of the written notice; (iii) only submitting such dispute in good faith; (iv) paying all undisputed amounts when due; and (v) paying all disputed amounts promptly after resolution of such dispute. Except with respect to fees subject to a good faith dispute under Section 4.2, if Client’s account is more than thirty (30) days past due, in addition to any other rights or remedies Paradox may have under this Agreement or by law, Paradox may suspend the Services upon ten (10) days written notice to Client, without liability to Client, until such amounts are paid in full.
4.3 All fees are exclusive of any sales or use taxes, value added tax, goods or services tax, or any and all similar taxes or legally imposed fees, duties or contributions based on such amounts payable, all of which shall be the sole responsibility of Client whether due now or subsequently imposed by any jurisdiction.
4.4 Paradox shall be entitled to reimbursement of out-of-pocket expenses directly related to performing the Services included in an order form or statement of work. Out-of-pocket expenses shall include reasonable and verifiable coach class travel, hotel accommodations and meal expenses that are incurred by Paradox and are directly related to the Services. All such expenses shall be reimbursed. Each invoice shall include copies of receipts for all out-of-pocket expenses that are submitted for reimbursement.
5. TERM AND TERMINATION
5.1 Subject to earlier termination as provided below, this Agreement is for the initial service term as specified in the order form, and shall be automatically renewed for additional periods of the same duration as the initial service term (collectively, the “Term”), unless either party requests termination at least thirty (30) days prior to the end of the then-current Term.
5.2 In addition to any other remedies it may have, either party may also terminate this agreement upon thirty (30) days’ notice (or without notice by Paradox in the case of nonpayment), if the other party materially breaches any of the terms or conditions of this Agreement. Client will pay in full for the services up to and including the last day on which the services are provided. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.
6. MESSAGING TERMS AND CONDITIONS
6.1 NOTICE TO CLIENT:
6.1.1 Paradox may provide Short Message Service (SMS) and Multimedia Messaging Service (MMS) to Client included within the Paradox Services. It is the Client’s responsibility to ensure its full compliance, and that of its users, with the requirements of any and all regulatory agencies, such as but not limited to the Telephone Consumer Protection Act (TCPA). Additionally, Client should review and adhere to the practices contained in the latest version of CTIA’s Short Code Monitoring Handbook and Messaging Principles and Best Practices Guide, as the practices contained within these documents are designed to protect consumers in a manner approved by wireless carriers.
6.2 NOTICE TO SMS/MMS RECIPIENT:
6.2.1 Paradox offers an assistive intelligence recruitment messaging platform (the “Platform”), which you agree to use and participate in subject to this Agreement. By opting-in to or participating in any of our Platform services, you represent that you are the owner, or authorized user of the wireless device you use to receive messages, and that you are authorized to approve the applicable charges. In addition, you accept and agree to the terms and conditions of this Agreement.
6.2.3 User Opt-out: If you do not wish to continue receiving messages or no longer agree to the terms and conditions of this Agreement you agree to opt-out of the Platform services by replying STOP, STOPALL, UNSUBSCRIBE, CANCEL, END or QUIT to any mobile message that you have received through the Platform. After sending such message you may receive an additional mobile message from the Platform confirming your decision to opt-out. You understand and agree that the foregoing options are the only reasonable methods of opting-out.
6.2.4 Duty to Notify and Indemnify: If at any time you intend to stop using the mobile telephone number that has been used to subscribe to the Platform, including canceling your service plan or selling or transferring the phone number to another party, you agree that (prior to ending your use of the mobile telephone number) you will complete the user opt-out process set forth in Section 6.2.3. Furthermore, you understand and agree that your commitment to engage in the aforementioned opt-out process is a material part of these terms and conditions. You further agree that, if you discontinue the use of your mobile telephone number without notifying Paradox of such change you will be responsible for all costs (including attorneys’ fees) and liabilities incurred by Paradox, or any party that assists Paradox in the delivery of the mobile messages, as a result of claims brought by individual(s) who are later assigned that mobile telephone number. The opt-out commitment described in this section shall survive any cancellation or termination of your agreement to participate in the Platform.
6.2.5 YOU AGREE THAT YOU SHALL INDEMNIFY, DEFEND, AND HOLD PARADOX HARMLESS FROM ANY CLAIM OR LIABILITY RESULTING FROM YOUR FAILURE TO NOTIFY PARADOX OF A CHANGE IN THE INFORMATION YOU HAVE PROVIDED, INCLUDING ANY CLAIM OR LIABILITY UNDER THE TELEPHONE CONSUMER PROTECTION ACT, 47 U.S.C. § 227, et seq., OR SIMILAR STATE AND FEDERAL LAWS, AND ANY REGULATIONS PROMULGATED THEREUNDER RESULTING FROM PARADOX ATTEMPTING TO CONTACT YOU AT THE MOBILE TELEPHONE NUMBER YOU PROVIDED.
6.2.6 Frequency and Cost: Through the Platform you will receive automated and unique messages, the frequency of which will differ depending on your interaction with the Platform, an employer and/or Paradox. Message and data rates may apply.
6.2.7 Age Restriction: You may not use or engage with the Platform if you are under thirteen (13) years of age. If you use or engage with the Platform and are between thirteen (13) and eighteen (18) years of age, you must have your parent’s or legal guardian’s permission to do so. By using or engaging with the Platform, you acknowledge and agree that you are not under the age of thirteen (13), are between the ages of thirteen (13) and eighteen (18) and have your parent’s or legal guardian’s permission to use or engage with the Platform, or are of adult in your jurisdiction. By using or engaging with the Platform, you also acknowledge and agree that you are permitted by your jurisdiction’s applicable law to use and/or engage with the Platform.
7. WARRANTY AND DISCLAIMER
Paradox shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Paradox or by third-party providers, or because of other causes beyond Paradox’s reasonable control. Paradox shall use reasonable efforts to provide advance notice of any scheduled service disruption. However, Paradox does not warrant that the Services will be uninterrupted or error free; nor does Paradox make any warranty as to the results that may be obtained from use of the Services. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES ARE PROVIDED “AS IS” AND PARADOX DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.
8. MUTUAL INDEMNIFICATION
8.1 Indemnification by Paradox: Paradox shall defend, indemnify and hold Client and its trustees, officers, employees, agents and volunteers, harmless from any and all liabilities, claims, damages, obligations, actions, lawsuits, losses, judgements, fines, penalties, costs or expenses (including reasonable attorney’s fees) in connection with claims, demands, suits or proceedings made or brought against Client by a third party alleging that the use of the Services as contemplated under this Agreement infringes any third-party’s intellectual property rights (“IP Claim”); provided, however, that Client: (a) promptly gives written notice of the IP Claim to Paradox; (b) gives Paradox sole control of the defense and settlement of the IP Claim (provided that Paradox may not settle any IP Claim unless it unconditionally releases Client of all liability); and (c) provides to Paradox, at Paradox’s cost, all reasonable assistance. If Client is enjoined from using the Service or Paradox reasonably believes it will be enjoined, Paradox shall have the right, at its sole option, to obtain for Client the right to continue use of the Services or to replace or modify the Services so that they are no longer infringing. If neither of the foregoing options is reasonably available to Paradox, the use of the Services may be terminated at either Party’s option. In event of such a termination, Paradox will continue to indemnify, defend, and hold Client and its trustees, officers, employees, agents, and volunteers harmless, and shall refund to Client any prepaid fees for the Services that were to be provided after the effective date of termination. This provision shall survive the termination or expiration of the Agreement or any amendment. Paradox shall not be required to indemnify Client to the extent that the alleged infringement arises from: (1) use or modification of the Services by Client, its affiliates, its employees, or users in conflict with Client’s obligations or as a result of any prohibited activity as set forth under this Agreement; (2) use of the Services in a manner inconsistent with any applicable documentation; (3) use of the Services in combination with any other product or service not provided by Paradox, provided that Paradox shall remain responsible for its portion of a combination infringement; or (4) use of the Services in a manner not otherwise contemplated by this Agreement.
8.2 Indemnification by Client. Client shall defend, indemnify and hold Paradox and its affiliates, trustees, officers, employees, agents and volunteers, harmless from any and all liabilities, claims, damages, obligations, actions, lawsuits, losses, judgements, fines, penalties, costs or expenses (including reasonable attorney’s fees) in connection with claims, demands, suits or proceedings made or brought against Paradox by a third party that : (1) alleges any Client Data infringes or misappropriates such third party’s intellectual property rights, or (2) arises from Client’s use of the Services in violation of the Agreement, an order form or statement of work, or applicable law (a “Claim Against Paradox”); provided, however, that Paradox: (a) gives written notice of the Claim Against Paradox to Client; (b) gives Client sole control of the defense and settlement of the Claim Against Paradox (provided that Client may not settle any Claim Against Paradox unless it unconditionally releases Paradox of all liability); and (c) provides to Client, at Client’s cost, all reasonable assistance.
8.3 Exclusive Remedy. This Section 8 states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against the other party for any type of claim described in this Section 8.
9. LIMITATION OF LIABILITY
NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT FOR BODILY INJURY OF A PERSON, PARADOX AND ITS SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT AND TECHNOLOGY SUPPLIERS), OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND PARADOX’S REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY CLIENT TO PARADOX FOR THE SERVICES UNDER THIS AGREEMENT IN THE TWELVE (12) MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT PARADOX HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect. This Agreement is not assignable, transferable or sublicensable by Client except with Paradox’s prior written consent. Paradox may transfer and assign any of its rights and obligations under this Agreement without Client’s consent. Except as set forth herein, neither Party shall use the other Party’s name, logos or trademarks, without the prior written consent of the other Party, in any written press releases, advertisements and/or marketing materials. Notwithstanding the foregoing, Paradox may use Client’s name and logo in lists of clients and on its website, as such usage shall not be classified as an advertisement but an identification as an entity who receives Services from Paradox. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement. In the event of a dispute between the parties, this Agreement will not be construed for or against either party but will be interpreted in a manner consistent with the intent of the parties as evidenced by the terms of this Agreement. Unless otherwise specified, “days” means calendar days. Nothing contained in any purchase order, clickwrap agreement, or other document or instrument issued by Client will in any way modify or add any additional terms or conditions to this Agreement, and any such modified or additional terms or conditions are expressly rejected and excluded from the parties’ agreement hereunder. All waivers and modifications must be in a writing and must be signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment relationship is created as a result of this Agreement and Client does not have any authority of any kind to bind Paradox in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. This Agreement shall be governed exclusively by the internal laws of the State of Arizona, without regard to its conflict of laws rules. Venue shall be in the state and federal courts for Maricopa County, Arizona. The Parties agree that the United Nations Convention on Contracts for the International Sale of Goods and Uniform Computer Information Transaction Act are expressly excluded from this Agreement.
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