Terms of Agreement
- Pyxai: Operating name of Pyxai Inc.’s applications and deployed by or for Customer, including but not limited to any software, applications, website, webpages, among other services.
- Customer: An entity seeking products and/or services to aid in its human capital recruitment and acquisition efforts of certain job requisitions, that has enlisted the help of Pyxai.
- Engagement/Engage: One or multiple text messages (SMS or MMS) and/or email sent to Pyxai’s application developed by Pyxai and deployed by or for the Customer. Sending one or multiple text messages (SMS or MMS) and/or email one-way or back and forth, counts as one engagement, as long as it is with the same phone number/email.
Qualification/Qualified: Best effort screening from Pyxai based on:
- Applicant’s indicated interest in applying for a job with the Customer; and
- Requirements as communicated to Pyxai by Customer in writing.
- Applicants: Individuals that may be interested in applying for a job available with or through the Customer.
TERMS AND CONDITIONS
1. SAAS SERVICES AND SUPPORT
Subject to the terms of this Agreement, Pyxai will use reasonable efforts to provide Customer with Services in accordance with the Service Level Terms attached hereto as Exhibit B. As part of the registration process, Customer will identify an administrative user name and password for Customer’s Pyxai account. Pyxai reserves the right to refuse registration of, or cancel passwords it deems inappropriate.
Subject to the terms herein, Pyxai will provide Customer with reasonable technical support services in accordance with the terms set forth in Exhibit C.
2. RESTRICTIONS AND RESPONSIBILITIES
Customer 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 or any software, documentation or data related to the Services (“Software”); modify, translate, or create derivative works based on the Services or any Software (except to the extent expressly permitted by Pyxai or authorized within the Services); use the Services or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third party; or remove any proprietary notices or labels.
Further, Customer may not remove or export from the United States or allow the export or re-export of the Services, Software or data 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 252.227 7014(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 United States 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.
Customer represents, covenants, and warrants that Customer will use the Services only in compliance with Pyxai’s standard published policies then in effect (the “Policy”) and all applicable laws and regulations. [Customer hereby agrees to indemnify and hold harmless Pyxai 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 Customer’s use of Services.] Although Pyxai has no obligation to monitor Customer’s use of the Services, Pyxai may do so and may prohibit any use of the Services it believes may be (or alleged to be) in violation of the foregoing.
Customer 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”). Customer shall also be responsible for maintaining the security of the Equipment, Customer account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer account or the Equipment with or without Customer’s knowledge or consent.
3. CONFIDENTIALITY; PROPRIETARY RIGHTS
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 (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Proprietary Information of Pyxai includes non-public information regarding features, functionality and performance of the Service. Proprietary Information of Customer includes non-public data provided by Customer to Pyxai to enable the provision of the Services (“Customer Data”). The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after five (5) years following the disclosure thereof or any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party or (e) is required to be disclosed by law.
Pyxai shall own and retain all right, title, and interest in and to (a) the Services and Software, all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with Implementation Services or support, and (c) all intellectual property rights related to all of the foregoing.
Notwithstanding anything to the contrary, Pyxai shall have the right 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 Customer data and data derived therefrom), and Pyxai will be free (during and after the term hereof) 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 Pyxai 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
Customer will pay Pyxai the then applicable fees described in the Order Form for the Services and Implementation Services in accordance with the terms therein (the “Fees”). If Customer’s use of the Services exceeds the Service Capacity set forth on the Order Form or otherwise requires the payment of additional fees (per the terms of this Agreement), Customer shall be billed for such usage and Customer agrees to pay the additional fees in the manner provided herein. Pyxai reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the Initial Service Term or then current renewal term, upon thirty (30) days prior notice to Customer (which may be sent by email). If Customer believes that Pyxai has billed Customer incorrectly, Customer must contact Pyxai no later than 60 days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. Inquiries should be directed to Pyxai’s customer support department.
Pyxai may choose to bill through an invoice, in which case, full payment for invoices issued in any given month must be received by Pyxai thirty (30) days after the mailing date of the invoice. Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection and may result in immediate termination of Service. Customer shall be responsible for all taxes associated with Services other than U.S. taxes based on Pyxai’s net income.
5. TERM AND TERMINATION
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.
In addition to any other remedies it may have, either party may also terminate this Agreement upon thirty (30) days’ notice (or without notice in the case of nonpayment), if the other party materially breaches any of the terms or conditions of this Agreement. Customer 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. WARRANTY AND DISCLAIMER
Pyxai shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services and shall perform the Implementation Services in a professional and workmanlike manner. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Pyxai or by third-party providers, or because of other causes beyond Pyxai’s reasonable control, but Pyxai shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. HOWEVER, PYXAI DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT 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 AND IMPLEMENTATION SERVICES ARE PROVIDED “AS IS” AND PYXAI DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
Pyxai shall hold Customer harmless from liability to third parties resulting from infringement by the Service of any United States patent or any copyright or misappropriation of any trade secret, provided Pyxai is promptly notified of any and all threats, claims and proceedings related thereto and given reasonable assistance and the opportunity to assume sole control over defense and settlement; Pyxai will not be responsible for any settlement it does not approve in writing. The foregoing obligations do not apply with respect to portions or components of the Service (i) not supplied by Pyxai, (ii) made in whole or in part in accordance with Customer specifications, (iii) that are modified after delivery by Pyxai, (iv) combined with other products, processes or materials where the alleged infringement relates to such combination, (v) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) where Customer’s use of the Service is not strictly in accordance with this Agreement. If, due to a claim of infringement, the Services are held by a court of competent jurisdiction to be or are believed by Pyxai to be infringing, Pyxai may, at its option and expense (a) replace or modify the Service to be non-infringing provided that such modification or replacement contains substantially similar features and functionality, (b) obtain for Customer a license to continue using the Service, or (c) if neither of the foregoing is commercially practicable, terminate this Agreement and Customer’s rights hereunder and provide Customer a refund of any prepaid, unused fees for the Service.
8. LIMITATION OF LIABILITY
NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT FOR BODILY INJURY OF A PERSON, PYXAI 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 PYXAI’S REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY CUSTOMER TO PYXAI FOR THE SERVICES UNDER THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT PYXAI 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 and enforceable. This Agreement is not assignable, transferable or sublicensable by Customer except with Pyxai’s prior written consent. Pyxai may transfer and assign any of its rights and obligations under this Agreement without consent. 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, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind Pyxai 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 by the laws of the State of [California] without regard to its conflict of laws provisions. [The parties shall work together in good faith to issue at least one mutually agreed upon press release within 90 days of the Effective Date, and Customer otherwise agrees to reasonably cooperate with Pyxai to serve as a reference account upon request.]
Statement of Work
This Statement of Work (SOW) is issued pursuant to the Software as a Service (SAAS) Services Agreement between the Customer (“Customer”) and Pyxai Inc. (“Pyxai”), effective Date (the “Agreement”). This SOW is subject to the terms and conditions contained in the Agreement between the parties and is made a part thereof. Any term not otherwise defined herein shall have the meaning specified in the Agreement. In the event of any conflict or inconsistency between the terms of this SOW and the terms of this Agreement, the terms of this SOW shall govern and prevail.
Customer is signing up to use “Pyxai” (Pyxai Inc.’s product) which includes but is not limited to a messaging (including but not limited to text messaging) based interaction mechanism that helps potential job applicants of a particular employer explore jobs, and get ‘Qualified’ for them.
The primary responsibility of Pyxai is to Qualify potential applicants and share them with Customer, via Pyxai or other means. All interview and/or screening related responsibilities after this point are borne by the Customer (e.g. confidentiality undertaking of applicants with Customer, make applicants or ‘Potential Applicant’s aware of any specific screening requirements like background checks, check for any obligations or restrictions that deem the applicant or ‘Potential Applicant’ unsuitable for the role such as non-competition). Pyxai may assist in scheduling, preparing, guiding, and communicating with the potential applicants after this point to aid the hiring process.
The Customer is expected to provide reasonable support to fulfill the objectives of this agreement. Such support could include helping Pyxai comprehend requisitions and gather and/or verify other necessary information needed to develop or maintain its applications prior to, during, and after the Customer has signed this agreement.
Pyxai shall provide Customer potential applicants who have been ‘Qualified’, which includes and is limited to a best effort screening based on (a) Potential Applicant’s indicated interest in applying for a job with the Customer and (b) Requirements as mutually agreed upon by the parties in writing.
Pyxai does not guarantee interview-ability or hire-ability of the potential applicants. In other words, performance of the potential applicants through the job application and interviews, and their potential to get hired is not guaranteed by Pyxai.
Subject to the terms of this Agreement, Pyxai will use reasonable efforts to provide Customer Pyxai and other provisions. Pyxai does not guarantee in any way that any ‘Potential Applicant’ shared through Pyxai (a) will clear background check or other tests conducted by the Customer through the interview process or (b) complete any other applicant or candidate responsibilities put in state by the Customer, or (c) is not looking for or considering other jobs or professional opportunities with or without Pyxai, while considering the open requisitions of the Customer.
Pyxai will share ‘Potential Applicant’ information with the Customer that is both (a) pertinent to ‘Qualification’ as defined above and (b) has been permitted by the ‘Potential Applicant’, if they shared it directly with Pyxai. Any other information that the Customer deems appropriate for their application or interviewing process should be requested directly by the Customer from the ‘Potential Applicant.’
It is left to the Customer to screen a ‘Qualified’ potential applicant to the best of its abilities as well as work towards retaining them if and when they are to take on employment with the Customer.
Pyxai is not obligated for ensuring that ‘Potential Applicant’ shared with the Customer are interview or job ready. It is the Customer’s responsibility to decide how to navigate a ‘Potential Applicant’ shared through Pyxai or other means through its application and/or interview process.
Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use Pyxai, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers, mobile phones and the like (collectively, “Equipment”). Customer shall also be responsible for maintaining the security of the Equipment, Customer account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer account or the Equipment with or without Customer’s knowledge or consent.
Pyxai reserves the right to make modifications to Pyxai at any point before, during and after deployment of Pyxai by or for the Customer; provided such modifications do not have a material adverse effect on the functionality of Pyxai that Customer signed up for.
Customer will not, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source, source code, object code or underlying structure, strategies (e.g. ‘Potential Applicant’ acquisition, screening, ‘Qualifying’, ‘Engaging’), ideas, know-how or algorithms relevant to Pyxai, documentation or data related to them; modify, translate, or create derivative works based on Pyxai (except to the extent expressly permitted by Pyxai or authorized within this document); or remove any proprietary notices or labels
This use of Pyxai as described in this Agreement is limited to Customer and it may not be resold, sublicensed, leased or otherwise made available to a third party.
Pyxai grants to Customer a limited, nonexclusive, nontransferable, and nonsublicenseable license (i) to access and use Pyxai, and (ii) to use any documentation provided to Customer by Pyxai in connection with Pyxai, in each case to the extent necessary to access and use Pyxai.
Each party represents, covenants, and warrants that it will use Pyxai only in compliance with all applicable laws and regulations. Each party hereby agrees to indemnify and hold harmless the other party against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorney’s’ fees) in connection with any claim or action that arises from an alleged violation of the foregoing or otherwise from such party’s unlawful use of Pyxai]. Although Pyxai has no obligation to monitor Customer’s use of Pyxai, Pyxai may do so and may prohibit any use of Pyxai it believes may be (or alleged to be) in violation of the foregoing.
Adding several users at once: If Customer has a need for more than one user account, Pyxai will facilitate the bulk provisioning of user accounts. Customer will need to provide Pyxai a spreadsheet with all users in order to create the accounts.
A tip banner guides users around the product and calls out important features about which they should know. The banners serve as an introduction, not a substitute for an actual tutorial.
Customers have access to an interactive walkthrough for support and guidance as well as access to our knowledge base (example may include: FAQs, Tips, Videos, Search bar, and Articles).
Online materials like searchable help systems, knowledge bases, self-paced e-learning courses, etc. may be available to Customer for documentation. Printable materials such as user manuals, quick reference guides, etc. may also be available.
When Customer gets onboarded to the Pyxai software, there may be integration work to be done to link Customer’s Applicant Tracking System (ATS) to Pyxai’s software. This integration allows Pyxai software to automatically detect a new Applicant and being the screening process. If Pyxai does not have an active integration with the Customer’s current ATS, then Pyxai will include the development work needed to make that integration as part of the onboarding process.
Service Level Terms
The Services shall be available at all times barring unforeseen events, measured monthly, including holidays and weekends and excluding scheduled maintenance. If Customer requests maintenance during these hours, any uptime or downtime calculation will exclude periods affected by such maintenance. Further, any downtime resulting from outages of third-party connections or utilities or other reasons beyond Pyxai’s control will also be excluded from such calculation. Customer's sole and exclusive remedy, and Pyxai's entire liability, in connection with Service availability shall be that for each period of downtime lasting longer than one hour, Pyxai will credit Customer 5% of Service fees for each period of 30 or more consecutive minutes of downtime; provided that no more than one such credit will accrue per day. Downtime shall begin to accrue as soon as Customer (with notice to Pyxai) recognizes that downtime is taking place and continues until the availability of the Services is restored. In order to receive downtime credit, Customer must notify Pyxai in writing within 24 hours from the Customer’s notice of downtime, and failure to provide such notice will forfeit the right to receive downtime credit. Such credits may not be redeemed for cash and shall not be cumulative beyond a total of credits for one (1) week of Service Fees in any one (1) calendar month in any event. Pyxai will only apply a credit to the month in which the incident occurred. Pyxai’s blocking of data communications or other Service in accordance with its policies shall not be deemed to be a failure of Pyxai to provide adequate service levels under this Agreement.
Pyxai will provide Technical Support to Customer via both telephone and electronic mail on weekdays during the hours of 9:00 am through 5:00 pm Eastern Time, with the exclusion of Federal Holidays (“Support Hours”).
Customer may initiate a helpdesk ticket during Support Hours by calling [617-586-5590] or any time by emailing firstname.lastname@example.org.
Pyxai will use reasonable efforts to respond to all Helpdesk tickets within one (1) business day.
|Support Type||Contact Information||Availability|
|Phone||617-586-5590||Support Hours (see above)|
|email@example.com||Any time; replies within one business day|