Terms of Service
Ember Hiring Technologies
Customer Terms of Service Agreement
Last Updated: April 25, 2025
Thank you for using the website and services offered by Ember Hiring Technologies, Inc. d/b/a Ember Hiring (together with its subsidiaries and other affiliates, “Ember”, “we”, “us”, “our”). The specific Ember Services you order will be set forth in ordering documents (including any online form) issued by Ember specifying the Ember Services to be provided under these terms (“ Order Forms”). To be eligible to use any Ember Services, you must review and accept the terms set forth in this Customer Terms of Service Agreement (this “Agreement”) by executing the applicable Order Form provided by us and/or checking on the “I Agree” button or other mechanism provided. Your authorization to access and use any Ember Services is conditioned on your acceptance of and compliance with the terms of this Agreement.
PLEASE REVIEW THIS AGREEMENT CAREFULLY. BY ACCEPTING THIS AGREEMENT OR USING ANY OF THE Ember SERVICES, YOU AGREE TO BE BOUND BY THESE TERMS AND CONDITIONS.
Your account registration constitutes an acknowledgement that you are able to electronically receive, download, and print this Agreement, and that you consent to do business electronically.
This Agreement applies to all Customers of the Ember Services, including, as applicable, administrators or employees authorized to act on behalf of an entity or other organization with respect to the Ember Services (collectively, “Customers” ). If you are registering for an Ember account or using the Ember Services on behalf of an entity or other organization, references to “you” are to such entity or organization and you are accepting this Agreement for that entity or organization and representing to Ember that you have the authority to bind that entity or organization to this Agreement (the term “Customer” will also refer to that entity or organization).
THIS AGREEMENT CONTAINS AN AGREEMENT TO ARBITRATE, WHICH REQUIRES, AMONG OTHER THINGS, THAT DISPUTES RELATING TO THIS AGREEMENT, YOUR ACCOUNT OR THE EMBER SERVICES MUST BE RESOLVED BY BINDING ARBITRATION AND ON AN INDIVIDUAL BASIS ONLY.
1. Ember Services.
1.1 Provision of Ember Services; Core Services.
(a) Provision of Ember Services . Ember makes the Ember Services available pursuant to this Agreement and any applicable Order Form, the Ember User Privacy Agreement,, and any supplemental policies or terms referenced herein, therein or which Ember may present to you for review and acceptance at the time you subscribe to the applicable Ember Service (collectively, "Supplemental Terms"), all of which are hereby incorporated into and form a part of this Agreement. In the event of conflict between the provisions of this Agreement and any Supplemental Terms, the Supplemental Terms will control to the extent of such conflict. “Ember Services” means the current and future ai and human recruiting automation, information and resume gathering, predictive analytics, financial, and information technology services and related services provided by Ember and its affiliates, as well as improvements, updates, enhancements, error corrections, bug fixes, release notes, upgrades and changes to those services.
(b) Core Services. Ember may make certain Core Services available through its platform, including (i) connection into a third party ATS system to sort included information, (ii) AI recruiting aid that surfaces resumes that meet the criteria for roles imputed into the system via text, questions, or document upload (“Swipe/Type to Hire”), (iii) a platform that third parties may use to develop and provide applications, services, websites or software that complement your use of the Ember Services (each, a “Third Party Product”), and (iv) other recruiting features, as may be developed by Ember from time to time, such as an employee directory and paid-time off tracking (“Core Services”). You acknowledge that information provided in Swipe/Type to Hire and other provided materials constitute “ Ember Content ” and are incorporated into the Ember Services. Ember may expressly permit you to modify or edit certain information within Swipe/Type to Hire, which, once modified, become “Modified Content”. Ember grants Customer a limited, revocable, non-sublicensable license to use, reproduce, copy, and distribute Ember Content contained within the Modified Content, solely for Customer’s internal business purposes, subject to Customer’s compliance with the terms of this Agreement, including payment terms herein.
1.2 Additional Services. Ember may make certain additional services available through its platform as may be developed from time to time. Without limiting the terms of this Agreement, if you subscribe to one or more of the Additional Services governed by additional terms, then you also agree to be bound by such Additional Terms. In addition, to the extent you purchase third-party services offered, referred, resold or otherwise made available by Ember through the Ember platform, you may be subject to the terms of service for that third-party service provider.
1.3 No Professional Advice. You acknowledge that Ember is not a lawyer, accountant, or other professional services provider, and accordingly, does not provide legal, financial, benefits, tax, IT, compliance, or other professional advice. Any information provided by the Ember Services is intended for your general use only, including with respect to any Templates available within the platform, and does not constitute legal or professional advice. You understand that you are responsible for any actions taken based upon information received from Ember, and where professional advice is needed, that you should seek independent professional advice from a person who is licensed or qualified in the applicable area.
1.4 Eligibility and Jurisdiction. The Ember Services are only available for persons in those jurisdictions in which they may legally be sold. Nothing on the Ember Services shall be considered a solicitation to buy or an offer to sell anything to any person in any jurisdiction in which such offer, solicitation, purchase or sale would be unlawful. The technology and software underlying the Service or distributed in connection therewith and the transmission of any applicable data (the “Software ”) is subject to Export Control Laws. No such Software or data may be downloaded from the Ember Services or otherwise exported or re-exported in violation of applicable Export Control Laws. Downloading or using such Software or data is at your sole risk. Recognizing the global nature of the Internet, you agree to comply with all local rules and laws regarding your use of the Ember Services, including as it concerns online conduct and acceptable content. Ember hereby disclaims any and all liability with respect to any use of the Ember Services outside of the terms of this Agreement.
1.5 User Limitations. The Ember Services may only be accessed and used by individual employees or contractors of Customer ("Users ") who are (i) at least eighteen (18) years of age, (ii) authorized by Customer to use the Ember Services, and (iii) otherwise not barred from using the Ember Services under applicable law. You are responsible for ensuring that any user that you allow to access the Ember Services is authorized to do so by law, and that such individual’s use of the Ember Services complies with all wage and hour laws, employment laws, and any other applicable laws and regulations.
1.6 Mobile Services. The Ember Services include certain services that are available via a mobile device, including (i) the ability to upload content to the Ember Services, (ii) the ability to browse the Ember Services and other websites, and (iii) the ability to access certain features of the Ember Services (collectively, the “Mobile Services ”). To the extent you access the Ember Services through a mobile device, your network service carrier’s standard charges, data rates and other fees may apply. In addition, downloading, installing, or using certain Mobile Services may be prohibited or restricted by your carrier, and not all Mobile Services may work with all carriers or devices. By using the Mobile Services, you agree that we may communicate with you regarding Customer and other entities by SMS, MMS, or other electronic means to your mobile device and that certain information about your usage of the Mobile Services may be communicated to us. In the event you change or deactivate your mobile telephone number or other mobile identifier, you agree to promptly update your Customer account information to ensure that your messages are not sent to the person that acquires your old number.
1.7 Professional Services.
(a) Managed Services . If specified on Customer’s Order Form, Ember will provide additional managed services to Customer (“Managed Services ”). Certain Managed Services, including Managed Implementation Services, will be delivered in accordance with a project framework document created by Ember describing key milestones, responsibilities, project participants and administrators, assumptions, and deliverables applicable to Ember and Customer. Customer will provide reasonable and timely cooperation in connection with Ember’s provision of Managed Services, including with respect to the project framework document. Ember will not be liable for any delay, costs, or other adverse conditions to the extent caused by Customer’s failure to provide Ember with information, materials, reviews, confirmations, consents, or access to Customer facilities, networks or systems required for Ember to perform the Managed Services. If Customer does not perform its obligations with respect to the Managed Services, Ember’s obligation to perform the Managed Services may be suspended and additional fees and delay may result.
(B) Time & Materials Support. Ember may provide Customer with the ability to schedule live and/or recorded appointments with Ember personnel to discuss questions related to, and take certain actions at the direction of Customer with respect to, the Ember Services (“T&M Support”). T&M Support may be subject to additional fees as communicated to Customer at the time of scheduling, and the provision of T&M Support is governed by Ember’s then-current T&M Support policies.
2. Customer Responsibilities.
2.1 Consent to Electronic Delivery; Electronic Signature.
(a) Electronic Signature. When you execute documents using the e-signature tools set forth in the Ember platform (“E-Sign Service ”), you consent to electronically sign such documents, including employment-related documents, and agree that your electronic signature ("Electronic Signature") is the legal equivalent of your manual or handwritten signature. By selecting an “I Accept” button or checkbox, or otherwise placing an Electronic Signature on a document while in your Ember Account, you expressly affirm that: (i) you are able to access and view the relevant document that you are electronically signing, (ii) you consent to conduct business electronically with respect to the transaction contemplated by the document, (iii) you agree to the use of an Electronic Signature for the document, and (iv) you are authorized to enter into the relevant agreement, and be bound by its terms. You further agree that no certification authority or other third party verification is necessary to validate your Electronic Signature, and that the lack of such certification or third party verification will not in any way affect the enforceability of your Electronic Signature or any resulting agreement.
(b) Electronic Delivery. You agree that Ember may electronically deliver service-related documents and/or disclosures to you electronically.
2.2 Accuracy of Customer/Candidate Information. All Ember Services will be based upon information provided to Ember by you, by your employees or representatives, or by third party services from which you may elect to import your information. You must review all imported information and ensure such information is accurate, complete, and timely. You acknowledge that Ember is entitled to rely conclusively on all information you provide and that Ember does not have any obligation to verify, correct, or otherwise ensure the accuracy or quality of the imported information. You further acknowledge that Ember bears no responsibility and shall not have any liability for errors, omissions, penalties, fines, lost business, missed payments, judgments, or any other losses incurred that result from inaccurate, incomplete, or untimely imported information.
2.3 Customer Data. With respect to any information that you provide or make available through the Ember Services (including information based on the usage of or interactions with the Ember Services, and Account Information and Materials, each as defined herein, but excluding information about Users or candidates provided to Ember in connection with the creation or administration of a Ember Account) (collectively, the “Customer Data”), you represent and warrant that you have the necessary rights, licenses, consents, permissions, waivers and releases to use, make available and distribute the Customer Data in connection with your use of the Ember Services. Without limiting the foregoing, in the event that you request that Ember provide any Customer Data to any third party or to any non-U.S. Customer location, you represent that you have acquired any consents or provided any notices required to transfer such content or information and that such transfer does not violate any applicable laws. By providing any Customer Data to Ember, you hereby grant and will grant Ember and its affiliated companies a nonexclusive, worldwide, royalty-free, fully paid up, transferable, sublicensable, license to copy, display, upload, perform, distribute, model, index, store, modify, create derivative works from and otherwise use your Customer Data to provide the Ember Services and interoperability with Third Party Products, including, without limitation, as set forth in this Agreement and Ember’s User Privacy Notice. You understand that the technical processing and transmission of the Ember Services, including Customer Data, may involve (1) transmissions over various networks; and (2) changes to conform and adapt to technical requirements of connecting networks or devices.
2.4 Account Administration; Authorizations.
(a) Accounts. To use the Ember Services, you must create an account (an “Account”) by providing your email address (“Account Email”) and a controlling password (the “Controlling Password” and, together with the Account Email, the “Credentials ”). You are responsible for the security of your Account, and agree to keep your Credentials secure. You understand that your Account is solely for your use, and you will not share your Account or Credentials with anyone. You are fully responsible for all activities on the Ember Services associated with your Account. As a Customer, you are fully responsible for all activities of your employees and contractors on the Ember Services associated with their User Accounts.
(b) Account Administration. Customer will designate and authorize either itself and/or one or more individuals with authority to (i) act on Customer’s behalf, (ii) provide information on Customer’s behalf, and (iii) bind Customer and/or Customer’s business with respect to the Ember Services (each such individual, an “Account Administrator”). Customer is solely responsible for all actions taken under any account to which Customer has access. Any actions taken under such accounts will be deemed authorized by Customer, regardless of Customer’s knowledge of such actions (the “ Authorized Actions ”). Authorized Actions include but are not limited to (iv) actions taken by Customer, an Account Administrator, or an authorized accountant, broker, or Recruiting/HR/IT consulting representative of Customer (an “Authorized Representative”), and (v) actions that Customer, an Account Administrator, or an Authorized Representative (or anyone that Ember reasonably believes to be Customer, an Account Administrator, or an Authorized Representative) directs or instructs Ember to take on its behalf. Authorized Representatives may access the Ember Services solely for the purpose of providing accounting, brokerage, or Recruiting/HR/IT consulting services to Customer. Authorized Representatives may not extract data from Ember for use outside of the Ember Services or as part of any data aggregation service.
(c) Account Information. In order to access or use certain aspects of the Ember Services, you may need to provide access to information maintained by certain third parties, such as current or prior ATS companies with which you have a customer relationship, manage accounts or engage in transactions and the various applications and services for which you use Ember’s access and password management services. In order for Ember to provide those aspects of the Ember Services, you must provide all relevant information, signatures, data, passwords, usernames, PINs and other necessary information, materials and content (“Account Information”). You retain all right, title and interest in and to your Account Information, and represent and warrant that the Account Information provided is accurate and complete and may be provided to Ember without any obligations on Ember to verify the accuracy or completeness of such Account Information. You are responsible for the consequences of any instructions provided that Ember follows, and Ember has no liability or responsibility for any inability to use the Ember Services due to such inaccuracy or incompleteness of Account Information.
(d) Account Security. Customer is solely responsible for (1) following instructions that Ember provides to Customer with respect to the Ember Services, and (2) maintaining applicable accounts with providers of Third Party Products (as defined above) utilized by Customer. Customer will adequately secure and keep confidential any Customer passwords or credentials, and any information accessible via its account. Customer accepts all risks of unauthorized use of its Account arising from Customer’s failure to implement security safeguards or otherwise maintain the confidentiality of its passwords or credentials and hereby releases, indemnifies, defends and holds harmless from any liability in connection with any such unauthorized access. If Customer believes or suspects that its account, passwords or credentials have been accessed or compromised, Customer must immediately notify Ember Support at support@emberhiring.com. Ember reserves the right to prevent access to the Ember Services if Ember has reason to believe that any accounts, passwords or credentials have been compromised.
(e) Communications and Notifications. Customer is responsible for reviewing any reports, information, documents or materials (collectively, the “Materials ”) made available to Customer by Ember for Customer’s review, and Customer must notify Ember of any inaccuracies in the Materials as soon as possible, or within the time period specified in communications received from Ember. Customer must promptly notify Ember of any third party notices that Customer may receive which could affect Ember’s ability to effectively provide the Ember Services.
(f) Authorizations. Customer agrees that, to the fullest extent permitted by law, the provision of account login or identity verification credentials to Ember by or on behalf of Customer, an Account Administrator, or an Authorized Representative, together with any actions authorized by such foregoing parties via the Ember Services, whether by clicking the applicable action button, providing a verbal instruction or otherwise, will have the same effect as providing a written signature authorizing the applicable action.
2.5 Third Party Products.
(a) Independent Services. The Ember Services are designed to work with many Third Party Products to input and digest information to be analyzed, sorted and presented to Customer; however, Third Party Products are not Ember Services. Ember does not provide any representations, warranties, indemnities, or support with respect to such Third Party Products, unless expressly provided herein or an applicable Order Form. You (and not Ember) decide whether to enable Third Party Products, and any use of such Third Party Products and any exchange of data, including Customer Data, between Customer or a User and any such third party provider or Third Party Product is solely between Customer or User and such third party provider. When you enable a Third Party Product, you grant Ember permission to allow the Third Party Product and its provider access to Customer Data as may be required for the bi-directional interoperation of that Third Party Product with the Ember Services. For the interoperation of the selected Third Party Products with the Ember Services, you may be required to obtain access to such Third Party Products directly from their providers, and/or grant Ember the ability to create, access, delete and/or otherwise modify your account(s) on such Third Party Products. You acknowledge that Ember is not responsible for any use, disclosure, modification or deletion of Customer Data that is transmitted to, or accessed by, a Third Party Product, and that the handling of such Customer Data within the Third Party Product will be exclusively governed by the separate terms and agreements, if any, between you and such third party provider. Customer and Users will comply with all terms and conditions applicable to the use of Third Party Products, and will not use Ember integrations with Third Party Products in any manner that damages, disables, overburdens, or impairs any websites, servers, or otherwise interferes with the Third Party Products. Customer acknowledges it has sole responsibility for, and assumes all risks arising from, Customer’s use of any Third Party Products. Ember does not guarantee the continued availability, operation, or utility of Third Party Products or Ember Services features integrated with Third Party Products, and may cease providing certain Third Party Products via the Ember platform without notice or entitling you to any refund, credit, or other compensation.
(b) Authorizations for Third Party Products. To connect the Ember Services with Third Party Products, you authorize Ember to, as applicable: (1) store relevant Account Information, (2) access the relevant service using the Account Information you provide Ember, (3) use and apply any credentials you provide Ember in order to provide related services, (4) gather and export from such Third Party Product any data or other information reasonably necessary to provide related Ember Services to you, and (5) otherwise take any action in connection with such Third Party Product as reasonably necessary to provide related services to you, including, but not limited to, opening accounts and making changes on your behalf with such third-party institutions.
(c) Management of Third Party Accounts . You are solely responsible for (1) ensuring that any Third Party Product accounts are accurately and properly provisioned for or matched to your Ember Service account, (2) ensuring the termination or de-linking of any Third Party Product accounts for employees or contractors who should not have access to such Third Party Product accounts or your Ember account, and (3) otherwise following all instructions provided by Ember in connection with matching, de-linking, termination or other management of your Ember accounts in relation to Third Party Products.
2.6 Prohibited Activities. Any authorization to access or use the Ember Services extends only to the Ember Services for which Customer has subscribed and remains in good standing, and for which User conduct is in conformance with these terms and any applicable Additional Terms. You will not (nor will you permit any User or third party to):
reverse engineer, decompile, disassemble or otherwise create, attempt to create or derive the source code underlying the Ember Services;
transfer, resell, lease, license, or assign Ember Services or otherwise offer the Ember Services on a standalone basis, or permit any third party to access the Ember Services, without express permission from Ember;
use or access the Ember Services for any purpose other than Customer’s bona fide internal business purposes;
use or access the Ember Services (1) to build a similar or competitive product or service, (2) for third party research purposes, or (3) for the purpose of obtaining unauthorized access to the Ember Services;
share your Ember username and password with any other person, or allow any other person to use your Ember username and password to access the Ember Services;
develop, support or use software, devices, scripts, robots or any other means or processes (including crawlers, browser plugins and add-ons or any other technology) to scrape the Ember Services or otherwise copy profiles and other data from the Ember Services in order to enable, use, or build a similar or competitive product or service;
tamper with the security of Ember’s systems or tamper with other customer accounts of Ember;
attempt to probe, scan or test the vulnerability of any Ember systems or to breach the security or authentication measures of Ember’s systems;
use or launch any automated system, including "robots," "spiders," or "offline readers," that sends more requests to our servers in a given period of time than a human can reasonably produce in the same period by using a conventional browser;
(1) use the Ember Services in any manner that damages, disables, overburdens, or impairs any of our websites, servers, or otherwise interferes with any other party's use of the Ember Services or (2) allow any such person or entity to use the Ember Services for any purpose;
access the Ember Services other than through our interface;
Access or obtain data from the Ember Services other than through the software applications, plugins, integrations and extensions which are authorized by Ember and made available to you by Ember;
engage in harassing or other inappropriate behavior with respect to any Ember employee;
use the Ember Services for any fraudulent activity or purpose;
use the Ember Services in violation of any applicable law, for illegal activities, or for activities outside the scope expressly permitted hereunder.
For the avoidance of doubt, Ember welcomes and encourages the responsible disclosure of security vulnerabilities through its Vulnerability Reporting program. Email support@emberhiring.com to report. Legitimate participation in Ember’s Vulnerability Reporting program is not a violation of the security-related prohibitions of this Section.
2.7 Compliance with Laws; Digital Millennium Copyright Act .
(a) Compliance with Laws. You will be solely responsible for compliance with any and all applicable laws, rules and regulations affecting your business, and any use you may make of the Ember Services to assist you in complying with any such laws, rules or regulations. In addition, Customer is responsible for ensuring that its employees and contractors comply with applicable laws while using the Ember Services, including the intellectual property and third-party rights of others.
(b) Digital Millennium Copyright Act. If you believe that your work has been copied in a way that constitutes copyright infringement, or that your intellectual property rights have been otherwise violated under the Digital Millennium Copyright Act (“DMCA”), you should notify support@emberhiring.com of your infringement claim, which shall include: (a) the subject line of “DMCA Takedown Request”; (b) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest; (c) a description of the copyrighted work or other intellectual property that you claim has been infringed; (d) a description of where the material that you claim is infringing is located on the Ember Service, with enough detail that we may find it on the Ember Service; (e) your address, telephone number, and email address; (f) a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright or intellectual property owner, its agent, or the law; and (g) a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner’s behalf. In accordance with the DMCA and other applicable law, Ember has adopted a policy of terminating, in appropriate circumstances and at Ember’s sole discretion, Users who are deemed to be repeat infringers. Ember may also at its sole discretion limit access to the Ember Service and/or terminate the memberships of any Users who infringe any intellectual property rights of others, whether or not there is any repeat infringement.
3. Term and Termination.
3.1 Term. The term of this Agreement will commence on the earliest of the date you (i) first accept this Agreement; (ii) execute an Order Form; or (iii) begin using any Ember Services, and will continue until terminated as provided in this Agreement (the “Term”). With respect to any Ember Services provided under an Order Form, the subscription term for such Ember will be as specified in the applicable Order Form (with respect to the applicable Ember Services, the “Initial Subscription Term”), and will automatically renew for additional periods equal to the shorter of the same duration as the Initial Subscription Term or twelve (12) months (each of the Initial Subscription Term and subsequent renewal terms, a “Subscription Term”), unless either party notifies the other party of non-renewal in writing at least thirty (30) days prior to the end of the then-current Subscription Term. Ember may change the Ember Services, discontinue Ember Services or their functionality or create usage limits for the Ember Services for all of our Users generally, provided that we will notify you of any material change at least thirty (30) days prior to the implementation of the change unless the changes are being made for legal reasons in which case we will notify you within a reasonable time period. If Ember discontinues a particular Ember Service in its entirety and that discontinued Ember Service is billed as an additional separate line item on the Order form, you will not be obligated to pay for the discontinued service after the date Ember ceases to offer such service.
3.2 Termination. Ember may immediately terminate your access to the Ember Services and this Agreement without liability to Customer for any actual or suspected violation of any provision of this Agreement and, if capable of cure, failure to cure within thirty (30) days following written notice thereof. You may deactivate your Ember Services account at any time by using the tools provided in the Ember Service, however (i) such action will not be deemed a termination of the Agreement or any associated payment obligations; (ii) the terms of this Agreement shall continue to apply until the end of the then-current Subscription Term, and to any use of the Ember Services whether during or after the Subscription Term; (iii) you will remain obligated to pay any outstanding fees to Ember pursuant to the terms of your Order Form; and (iv) solely in the event you pose a demonstrable credit risk to Ember, Ember may accelerate your unpaid payments or fees so that all such payment obligations become immediately due and payable. Customer may immediately terminate this Agreement and receive a refund of any prepaid and unused fees from the date of termination to the end of the Subscription Term if Ember is in material breach of any material term contained in this Agreement and fails to cure such breach within thirty (30) days following Ember’s receipt of written notice thereof. Either party may immediately terminate this Agreement if the other party ceases business operations, generally stops paying its debts, becomes insolvent, or becomes the subject of a petition in bankruptcy, receivership, liquidation, or assignment for the benefit of creditors, provided however that such termination shall not affect Customer’s obligation to pay any outstanding fees due under Customer’s Order Form. Upon any termination, the parties will continue to be bound by any terms of this Agreement that by their nature extend beyond termination.
3.3 Suspension. Without limiting our other rights or remedies, Ember may temporarily suspend your access to any portion of the Ember Services, including access to any leased equipment, without prior notice if (a) Ember reasonably determines that (i) there is a threat or attack on the Ember Services or other event that may create a risk to the Ember Services, you or any other customer or User of Ember; (ii) your use of the Ember Services disrupts or poses a security risk to the Ember Services or any other Ember customer; or (iii) you are in breach of Section 2.6 (Prohibited Activities) or Section 2.7 (Compliance with Laws; DMCA) or (b) Ember has notified you that any amount owed by you under this Agreement is thirty (30) or more days overdue, and you have failed to submit payment in full within five (5) days of receipt of such notice (collectively, “Service Suspensions”). We will provide notice of any Service Suspension following the commencement of the Service Suspension and provide updates regarding resumption of Ember Services following any Service Suspension. Ember will have no liability for any damage, liabilities, losses (including any loss of data or profits) or any other consequences that you may incur as a result of any Service Suspension.
4. Service Fees and Charges.
4.1 Fees.
(a) Payment of Fees. Customer agrees to pay the fees for the Ember Services in accordance with the applicable contract and order form.
(b) Failed Payments; Invoices. For past due amounts resulting from an ACH debit transaction that is rejected for insufficient funds, or any other rejected payment transaction, Customer understands that Ember may at its discretion attempt to process the debit again within thirty (30) days and that Ember may separately impose a fee of $50 for each such transaction, as permitted by applicable law. In the event of a failed or uncollected payment, and at Ember’s sole discretion, Ember may invoice Customer for any owed amounts and Customer agrees to pay such invoice no later than fifteen (15) days after receipt thereof. Interest shall accrue on past due amounts at the rate of one and one half percent (1.5%) per month, but in no event greater than the highest rate of interest allowed by law, calculated from the date such amount was first due until the date that payment is received by Ember. Ember may report non-payment, past due receivables, and other trade information to corporate credit reporting and risk assessment agencies.
(c) Splitting Fee with Third Party. To the extent Customer designates an external or third party to pay for any portion of the Ember Services and later opts to remove or change that third party, Customer will be liable to pay for the full amount of the Ember Services until Customer has designated a new third party and such third party has agreed to pay for such charges.
4.2 Automatic Debits. When Customer subscribes to a paid product that is part of the Ember Services, Customer authorizes Ember and its designated payment processors to store Customer’s designated bank account information and other related information. Customer authorizes Ember to automatically debit all applicable charges for such paid product from Customer’s designated payment account, including via ACH debit for bank accounts on the date such charges become due. This authorization to initiate ACH debit transactions will remain in full force and effect until Ember has received written notice from Customer by email at support@emberhiring.com at least thirty days (30) in advance of the date the applicable charges for the paid product become due. Because these are electronic transactions, these funds may be withdrawn from Customer’s designated bank account immediately. In the case of an ACH debit transaction that is rejected for insufficient funds, Customer understands that Ember may at its discretion attempt to process the debit in the amount of the applicable paid product again within thirty (30) days and Ember may separately impose a fee of $50 for each transaction returned for insufficient funds, as permitted by applicable law. You certify that you are an authorized user of Customer’s bank account and Customer will not dispute these scheduled transactions with such bank so long as the transactions correspond to this Agreement, an applicable Order Form, and/or any other applicable agreement for such paid product. Customer agrees to follow rules promulgated by the National Automated Clearing House Association (NACHA), which govern ACH transactions.
4.3 Fee Disputes. Customer must notify Ember in writing if Customer disputes any portion of any fees paid or payable by Customer under this Agreement or any Order Form. Customer must provide written notice to Ember within thirty (30) days of the applicable charge and Ember will work together with Customer to resolve the applicable dispute promptly. If Customer does not provide Ember with written notice of Customer’s fee dispute within this 30 day period, Customer will not be entitled to dispute any fees paid or payable by Customer.
4.4 Taxes and Administrative Fees. All amounts and fees stated or referred to in this Agreement are exclusive of taxes, duties, levies, tariffs, and other governmental charges (collectively, “Taxes”). Customer shall be responsible for payment of all Taxes and any related interest and/or penalties resulting from any payments made hereunder, other than any taxes based on Ember’s net income. Certain Ember Services may be subject to credit card processing fees, foreign exchange fees or other administrative fees as specified in the Order Form (collectively, “Administrative Fees”), and Customer shall be responsible for payment of all applicable Administrative Fees. In the event that Ember pays any Taxes, Administrative Fees or other amounts (including, without limitation, tax authority interest charges and/or tax authority penalties related to Errors (as defined in the Payroll Additional Terms) that are fully or partially abated after payment by Ember) that should have been paid and/or remitted to the applicable third party by Customer, Customer agrees to promptly pay and/or refund all such amounts to Ember.
5. Proprietary Rights and Confidentiality.
5.1 Ember’s Ownership Rights. As between the parties, all right, title, and interest in and to the Ember Services, including Ember Content, shall remain vested in Ember. Except for the express rights granted hereunder, Ember also reserves all rights, title and interests in and to the Ember Services and Ember’s Confidential Information.
5.2 Feedback. Customer or Users may from time to time provide Ember suggestions or comments for enhancements or improvements, new features or functionality or other feedback (“Feedback ”) with respect to the Ember Services. Ember will have full discretion to determine whether or not to proceed with the development of any requested enhancements, new features or functionality. Ember will have the full, unencumbered right to use, incorporate and otherwise fully exercise and exploit any such Feedback in connection with its products and services.
5.3 Customer Data. All right, title, and interest in and to the Customer Data, including the Account Information and Materials, you provide will remain vested in you.
5.4 Confidentiality. “Confidential Information ” means any information disclosed by either party that should be reasonably understood to be confidential in light of the nature of the information. However, “Confidential Information” will not include any information which (a) is in the public domain through no fault of receiving party; (b) was properly known to receiving party, without restriction, prior to disclosure by the disclosing party; (c) was properly disclosed to receiving party, without restriction, by another person with the legal authority to do so; or (d) is independently developed by the receiving party without use of or reference to the disclosing party’s Confidential Information. Each party will protect any Confidential Information of the other party which it may receive or otherwise be exposed to in the course of exercising its rights or performing its obligations hereunder. Each party will use the same care to protect the other party’s Confidential Information as it would use to protect its own similar information, but in no event less than reasonable care. Each party will use Confidential Information only for the purpose of fulfilling its obligations or exercising its rights under this Agreement. Neither party will disclose any Confidential Information of the other party to any third party without the prior written consent of the disclosing party, other than furnishing such Confidential Information (i) to its employees and consultants who are required to have access to the Confidential Information in connection with the exercise of receiving party’s rights or performance of its obligations under this Agreement, and (ii) to its professional advisers (e.g., lawyers and accountants), provided, however, that any and all such employees, consultants and advisers are bound by agreements or, in the case of professional advisers, ethical duties, to treat, hold and maintain such Confidential Information in a manner that is consistent with the terms and conditions of this Section. You acknowledge and agree that Ember may preserve Confidential Information (including, without limitation, Customer Data) and may also disclose Confidential Information and Customer Data if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to: (i) comply with legal process, applicable laws or government requests; (ii) enforce this Agreement; (iii) respond to claims that any content violates the rights of third parties; or (iv) protect the rights, property, or personal safety of Ember, its users and the public.
5.5 Data Security and Privacy.
(a) Data Security. Ember will implement and maintain commercially reasonable and industry standard administrative, physical, organizational and technical safeguards designed to prevent unauthorized use, access, processing, destruction, loss, alteration or disclosure of any Customer Data. Such safeguards will include, at minimum, an industry standard information security program to safeguard such Customer Data as well as procedures to help ensure that only those with a “need to know” have access to such Customer Data. Ember will take commercially reasonable measures to investigate, contain and mitigate any incident that has or potentially has compromised the security, confidentiality or integrity of any Customer Data. Ember will promptly notify Customer upon becoming aware of an incident that has or potentially has compromised the security, confidentiality or integrity of such Customer Data. Ember will comply with all notification obligations that may be required by applicable state and federal laws and regulations. Ember further reserves the right to protect its network and services from external threats, including by restricting network access from various hosting providers, traffic proxies, and locations where Ember does not conduct business.
(b) Data Privacy. Ember will process Customer Personal Data, as defined in the Ember DPA, in accordance with the terms set forth in the Ember DPA. All other User personal information that Ember collects and processes in connection with the Services will be used in accordance with Ember’s User Privacy Notice available at LINK . The Privacy Notice does not apply to Customer Personal Data.
5.6 Third Party Distribution Channels. Ember offers Software applications that may be made available through the Apple App Store, Android Marketplace or other distribution channels (“Distribution Channels”). If you obtain such Software through a Distribution Channel, you may be subject to additional terms of the Distribution Channel. This Agreement is between you and Ember only, and not with the Distribution Channel. To the extent that you utilize any other third party products and services in connection with your use of the Ember Services, you agree to comply with all applicable terms of any agreement for such third party products and services.
With respect to Software that is made available for your use in connection with an Apple-branded product (such Software, “Apple-Enabled Software”), in addition to the other terms and conditions set forth in this Agreement, the following terms and conditions apply:
Ember and you acknowledge that this Agreement is concluded between Ember and you only, and not with Apple Inc. ( “Apple” ), and that as between Ember and Apple, Ember, not Apple, is solely responsible for the Apple-Enabled Software and the content thereof.
You may not use the Apple-Enabled Software in any manner that is in violation of or inconsistent with the Usage Rules set forth for Apple-Enabled Software in, or otherwise be in conflict with, the App Store Terms of Service.
Your license to use the Apple-Enabled Software is limited to a non-transferable license to use the Apple-Enabled Software on an iOS Product that you own or control, as permitted by the Usage Rules set forth in the App Store Terms of Service.
Apple has no obligation whatsoever to provide any maintenance or support services with respect to the Apple-Enabled Software.
Apple is not responsible for any product warranties, whether express or implied by law. In the event of any failure of the Apple-Enabled Software to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the Apple-Enabled Software to you, if any; and, to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Apple-Enabled Software, or any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty, which will be Ember’s sole responsibility, to the extent it cannot be disclaimed under applicable law.
Ember and you acknowledge that Ember, not Apple, is responsible for addressing any claims of you or any third party relating to the Apple-Enabled Software or your possession and/or use of that Apple-Enabled Software, including, but not limited to: (i) product liability claims; (ii) any claim that the Apple-Enabled Software fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
In the event of any third party claim that the Apple-Enabled Software or the end-user’s possession and use of that Apple-Enabled Software infringes that third party’s intellectual property rights, as between Ember and Apple, Ember, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim.
You represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.
If you have any questions, complaints or claims with respect to the Apple-Enabled Software, they should be directed to Ember Support.
Ember and you acknowledge and agree that Apple, and Apple’s subsidiaries, are third party beneficiaries of this Agreement with respect to the Apple-Enabled Software, and that, upon your acceptance of the terms and conditions of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement against you with respect to the Apple-Enabled Software as a third party beneficiary thereof.
6. Disclaimer.
EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE EMBER SERVICES ARE PROVIDED “AS IS” TO THE FULLEST EXTENT PERMITTED BY LAW. EMBER HEREBY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE IN RELATION TO THE EMBER SERVICES. WITHOUT LIMITING THE FOREGOING, EMBER DOES NOT WARRANT THAT THE EMBER SERVICES WILL BE ERROR-FREE OR THAT THEY WILL MEET ANY SPECIFIED SERVICE LEVEL, OR WILL OPERATE WITHOUT INTERRUPTIONS OR DOWNTIME. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM Ember OR THROUGH THE Ember SERVICES WILL CREATE ANY WARRANTY. Ember DOES NOT WARRANT, ENDORSE, GUARANTEE OR ASSUME RESPONSIBILITY FOR ANY THIRD PARTY PRODUCT. TO THE EXTENT THIS DISCLAIMER CONFLICTS WITH APPLICABLE LAW, THE SCOPE AND DURATION OF ANY APPLICABLE WARRANTY WILL BE THE MINIMUM PERMITTED UNDER THAT LAW.
7. Indemnification.
7.1 Indemnification by You. Customer will defend Ember and affiliates (collectively, the “Ember Indemnified Parties ”) from and against any and all third party claims, actions, suits, proceedings, and demands arising from or related to (i) Customer’s or any of its Users’ violation of the Agreement or the User Terms, or (ii) any instruction given by Customer to Ember or any incomplete or incorrect information provided by Customer to Ember (collectively, a “Claim Against Us”), and will indemnify the Ember Indemnified Parties for all reasonable attorney’s fees incurred and damages and other costs finally awarded against a Ember Indemnified Party in connection with or as a result of, and for amounts paid by a Ember Indemnified Party under a settlement Customer approves of in connection with, a Claim Against Us. We must provide Customer with prompt written notice of any Claim Against Us and allow Customer the right to assume the exclusive defense and control, and cooperate with any reasonable requests assisting Customer’s defense and settlement of such matter. This section states your sole liability with respect to, and the Ember Indemnified Parties’ exclusive remedy against Customer for, any Claim Against Us.
7.2 Indemnification by Ember. Ember agrees to indemnify, defend and hold you harmless against any and all third party claims, actions, suits, proceedings, and demands (“Claim Against You ”) arising out of allegations by a third party that the Ember Services or any portion thereof infringe(s) or otherwise violate(s) such third party’s intellectual property rights. In order to receive the benefit of the foregoing indemnity, you must give Ember prompt written notice of the Claim Against You, sole control to defend and settle such Claim Against You and all reasonable cooperation, at Ember’ expense, in Ember’ defense and settlement of the Claim Against You. If a claim under the foregoing clause is made or likely to be made, Ember may: (a) procure a license to allow you to continue using the allegedly infringing component(s) of the Ember Services, (b) modify the infringing component(s) to make them non-infringing, or (c) if (a) and (b) are not reasonably available, terminate your right to use the infringing component(s) effective immediately and refund to Customer any prorated fees associated with such component from the termination date to the end of the then-current Subscription Term. This section states Ember's entire responsibility and Customer's sole and exclusive remedy with respect to infringement of third party intellectual property rights under this Agreement.
8. Limitation of Liability.
YOU ACKNOWLEDGE AND AGREE THAT THE ESSENTIAL PURPOSE OF THIS SECTION 8 IS TO ALLOCATE THE RISKS UNDER THIS AGREEMENT BETWEEN THE PARTIES AND LIMIT POTENTIAL LIABILITY GIVEN THE FEES, WHICH WOULD HAVE BEEN SUBSTANTIALLY HIGHER IF EMBER WERE TO ASSUME ANY FURTHER LIABILITY OTHER THAN AS SET FORTH HEREIN. EMBER HAS RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO PROVIDE YOU WITH THE RIGHTS TO ACCESS AND USE THE EMBER SERVICES PROVIDED FOR IN THIS AGREEMENT. EXCEPT WITH RESPECT TO EMBER'S IP INDEMNIFICATION OBLIGATIONS, UNDER NO CIRCUMSTANCES SHALL EMBER, ITS AFFILIATES, AGENTS, DIRECTORS, EMPLOYEES, SUPPLIERS AND LICENSORS BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE, OR OTHER INDIRECT DAMAGES, OR FOR LOST PROFITS OR LOST DATA ARISING OUT OF THE USE OR INABILITY TO USE THE EMBER SERVICES OR ANY FAILURE OR DELAY IN DELIVERING THE EMBER SERVICES, EVEN IF EMBER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EMBER, ITS AFFILIATES, AGENTS, DIRECTORS, EMPLOYEES, SUPPLIERS AND LICENSORS SHALL NOT BE LIABLE TO YOU FOR DIRECT DAMAGES, IN THE AGGREGATE, EXCEEDING THE AMOUNT OF FEES PAID TO EMBER HEREUNDER IN THE TWELVE (12) MONTHS PRECEDING THE CLAIM THAT GAVE RISE TO THE LIABILITY. THE LIMITATIONS IN THIS SECTION APPLY TO THE FULLEST EXTENT PERMITTED BY LAW, EVEN IF EMBER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
SOME STATES, PROVINCES AND OTHER TERRITORIES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU. THIS AGREEMENT GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM JURISDICTION TO JURISDICTION. THE EXCLUSIONS AND LIMITATIONS OF LIABILITY UNDER THIS AGREEMENT WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW. IF YOU ARE A USER FROM NEW JERSEY, THE FOREGOING SECTIONS TITLED “DISCLAIMER” AND “LIMITATION OF LIABILITY” ARE INTENDED TO BE ONLY AS BROAD AS IS PERMITTED UNDER THE LAWS OF THE STATE OF NEW JERSEY. IF ANY PORTION OF THESE SECTIONS IS HELD TO BE INVALID UNDER THE LAWS OF THE STATE OF NEW JERSEY, THE INVALIDITY OF SUCH PORTION SHALL NOT AFFECT THE VALIDITY OF THE REMAINING PORTIONS OF THE APPLICABLE SECTIONS.
9. Miscellaneous.
9.1 Assignment; Delegation. This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by you without the prior written consent of Ember, which consent shall not be unreasonably withheld, conditioned, or delayed. Any attempted transfer or assignment in violation hereof shall be null and void. Ember, in its sole discretion, may use vendors or contractors to help provide the Ember Services to you, and may change our use of vendors or contractors without notice to you. Ember will remain responsible for the acts and omissions of such vendors and/or contractors. To the extent consistent with applicable law, Ember and/or its Affiliates may receive commissions, referral fees or other sources of revenue with respect to your use of the Ember Services and/or certain Third Party Products.
9.2 Governing Law. This Agreement will be governed by the laws of the State of New York, exclusive of its rules governing choice of law and conflict of laws. This Agreement will not be governed by the United Nations Convention on Contracts for the International Sale of Goods. Subject to the agreement to arbitrate below, all disputes arising out of the Agreement will be subject to the exclusive jurisdiction and venue of the state and federal courts of New York, New York, USA, and the parties hereby consent to the personal jurisdiction of these courts.
9.3 Notices. Ember may provide notifications, whether such notifications are required by law or are for marketing or other business related purposes, to you via email notice, mobile messaging ( e.g. , SMS or MMS), mail, written or hard copy notice, or through posting of such notice on the Ember Services, as determined by Ember in its sole discretion. Ember reserves the right to determine the form and means of providing notifications to Users, provided that you may opt out of certain means of notification as provided in the Ember Services. Ember is not responsible for any automatic filtering you or your network provider may apply to email notifications Ember sends to the email address you provide. Ember may, in its sole discretion, modify or update this Agreement from time to time, so you should review this page periodically. When Ember materially changes this Agreement, Ember will update the ‘Last Updated’ date at the top of this page and notify you that material changes have been made to this Agreement. Any such changes will become effective no earlier than thirty (30) days after they are posted, except that changes addressing new functions of the Ember Services or changes made for legal reasons will be effective immediately. Your continued use of the Ember Services after the date any such change becomes effective constitutes your acceptance of this Agreement, as updated. If you do not agree to any of these terms or any future terms, you may not use or access the Ember Services. Notices to Ember shall be made to the attention of the “Ember Hiring Legal Department” and sent via mail to 210 West 29th Street, 9TH FLOOR, NY, NY, 10001, with a copy sent via email to support@emberhiring.com .
9.4 Waiver. No waiver of any rights will be effective unless assented to in writing by both parties. Any such waiver will be only to the specific provision and under the specific circumstances for which it was given, and will not apply with respect to any repeated or continued violation of the same provision or any other provision. Failure or delay by either party to enforce any provision of this Agreement will not be deemed a waiver of future enforcement of that or any other provision.
9.5 Relationship. Nothing contained herein will in any way constitute any association, partnership, agency, employment or joint venture between the parties hereto, or be construed to evidence the intention of the parties to establish any such relationship. Neither party will have the authority to obligate or bind the other in any manner, and nothing herein contained will give rise or is intended to give rise to any rights of any kind to any third parties.
9.6 Unenforceability. If a court of competent jurisdiction determines that any provision of this Agreement is invalid, illegal, or otherwise unenforceable, such provision will be enforced as nearly as possible in accordance with the stated intention of the parties, while the remainder of this Agreement will remain in full force and effect and bind the parties according to its terms.
9.7 Force Majeure. Neither Party will be deemed in breach hereunder for any cessation, interruption or delay in the performance of its obligations due to causes beyond its reasonable control, including earthquake, flood, or other natural disaster, act of God, labor controversy, civil disturbance, terrorism, war (whether or not officially declared) or the inability to obtain sufficient supplies, transportation, or other essential commodity or service required in the conduct of its business, or any change in or the adoption of any law, regulation, judgment or decree.
9.8 Entire Agreement. This Agreement (including all Order Forms, the Ember User Privacy Notice, the Ember Data Processing Addendum, Additional Terms, and any supplemental policies or terms referenced herein or which Ember may present you for review and acceptance at the time you subscribe to the applicable Ember Service) comprises the entire agreement between you and Ember with respect to its subject matter, and supersedes all prior and contemporaneous proposals, statements, sales materials or presentations and agreements. No oral or written information or advice given by Ember, its agents or employees will create a warranty or in any way increase the scope of the warranties in this Agreement. Ember and Customer declare that they have requested and do hereby confirm their request that the present agreement and the ancillary documents related thereto be in English; les parties declarent qu'elles ont exige et par les presentes confirment leur demande que la presente convention ainsi que les documents connexes soient rediges en anglais; las partes declaran que han requerido y por la presente confirman su solicitud de que este acuerdo y los documentos relacionados se redacten en inglés; Die Parteien erklären, dass sie verlangt haben und bestätigen hiermit ihren Wunsch, dass diese Vereinbarung und die zugehörigen Dokumente in englischer Sprache verfasst werden.
9.9 Interpretation. Terms and phrases that are defined in any part of this Agreement shall have the defined meanings wherever used throughout this Agreement.
(a) The terms "hereunder" and "herein" and similar terms used in this Agreement shall refer to the Agreement in its entirety and not merely to the section, paragraph or subparagraph in which the term is used.
(b) Any reference to “including” in the Agreement means “including without limitation.”
(c) Unless there is a specific reference to the contrary, any reference to “day” or “days” in the Agreement shall mean calendar days.
9.10 Marketing. Customer agrees that Ember may use Customer name and logo on our website and in other promotional marketing materials, unless Customer opts out of such usage by sending an email to support@emberhiring.com.
9.11 Anti-Corruption.
(a) Each Party agrees, in its performance of its obligations under this Agreement, to comply, and to cause its affiliates to comply, with applicable Anti-Corruption Laws, which may include but are not limited to the US Foreign Corrupt Practices Act (“FCPA”), the UK Bribery Act (the “UK Act”), the Mexico General Law on the National Anti-Corruption System (“GLAR”), the Canadian Corruption of Foreign Officials Act (“CFPOA”), as applicable, and all other applicable anti-corruption and anti-bribery laws (collectively, “Anti-Corruption Laws”). In general, the Anti-Corruption Laws prohibit directly or indirectly making, promising, authorizing, or offering any advantage or anything of value to public officials or private persons or corporations to secure an improper advantage, to improperly obtain or retain business, or to direct business to any other person or entity.
(b) Each Party will maintain policies and procedures designed to ensure its compliance with applicable Anti-Corruption Laws. Neither Party shall knowingly take any action that would cause the other Party to be in violation of Anti-Corruption Laws. Each Party shall immediately notify the other Party if such Party has any information or suspicion that there may be a violation of any Anti-Corruption Law in connection with the performance of any activities under this Agreement.
9.12 Export Compliance. Customer agrees that its use of the Ember Services will comply with all export and import laws and regulations of the United States and other applicable jurisdictions (“Export Control Laws ”). Customer represents and warrants that (a) it is not a citizen of, or located within, a country or territory that is subject to comprehensive U.S. trade sanctions or other significant trade restrictions (including, without limitation, Cuba, Iran, Syria and North Korea); (b) it is not identified on any government restricted party lists (including, without limitation, the Specially Designated Nationals and Blocked Persons List, Foreign Sanctions Evaders List, and Sectoral Sanctions Identifications List, administered by the Office of Foreign Assets Control (OFAC) of the U.S. Department of the Treasury, the Denied Party List, Entity List and Unverified List, administered by The Bureau of Industry and Security of the U.S Department of Commerce, and the UK Sanctions List); and (c) that no Customer Data is subject to any restriction on disclosure, transfer, download, export or re-export under the Export Control Laws. Customer acknowledges that the Ember Services may not be available in all jurisdictions, and that Customer is solely responsible for complying with the Export Control Laws and monitoring Export Control Laws for any modifications.
9.13 Future Functionality. Customer agrees that it has not relied on the availability of any future functionality of the Ember Services or any other future product or service in executing this Agreement or any Order Form. Customer acknowledges that information provided by Ember regarding future functionality should not be relied upon to make a purchase decision.
9.14 Construction. Ember has prepared this Agreement and provided it to Customer for Customer’s review. Customer has either retained counsel or had the opportunity to do so to review this Agreement. With respect to any dispute concerning the meaning of this Agreement, this Agreement will be interpreted as a whole with reference to its relevant provisions and in accordance with its fair meaning, and no part of this Agreement will be construed against Ember on the basis that Ember drafted it. This Agreement will be viewed as if prepared jointly by Ember and Customer.
9.15 Headings. Captions and organization are for convenience and may not be used in construing meaning.
10. Agreement to Arbitrate and Class Action Waiver
10.1 First Try Customer Support. If you have any issues with Ember Services, Ember, or any issue covered by this Agreement, you must try to resolve the issue first through Ember Support.
If you are not able to resolve the issue through Ember customer support within sixty (60) days, you may pursue the dispute resolution procedures detailed in the remainder of Section 10.
10.2 Agreement to Arbitrate. ANY DISPUTE OR CLAIM RELATING IN ANY WAY TO YOUR USE OF OR ACCESS TO THE EMBER SERVICES, EMBER SOFTWARE, OR ANY PRODUCT OR SERVICE INTEGRATED WITH THE EMBER SERVICES, AS WELL AS ANY DISPUTE OR CLAIM RELATING TO OR ARISING UNDER THIS AGREEMENT (INCLUDING UNDER EMBER’S USER PRIVACY NOTICE, EMBER’S DATA PROCESSING ADDENDUM, AND ANY APPLICABLE ADDITIONAL TERMS), SHALL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION, RATHER THAN IN COURT. THE TERMS IN THIS SECTION ARE REFERRED TO AS THE “ARBITRATION AGREEMENT.” THIS ARBITRATION AGREEMENT APPLIES TO ALL SUCH CLAIMS, BROUGHT UNDER ANY LEGAL THEORY, UNLESS THE CLAIM FITS IN ONE OF THE EXCEPTIONS IDENTIFIED IN SECTION 10.3.
This arbitration agreement is governed by the Federal Arbitration Act (FAA) and, where applicable, the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (“NY Convention”) (each as in effect as of the date the arbitration agreement is invoked), including its procedural provisions, in respects. This means that the FAA and/or the NY Convention governs, among other things, the interpretation and enforcement of this arbitration agreement and all of its provisions, including, without limitation, the class action waiver discussed below. State, provincial or other local arbitration laws do not govern in any respect.
This arbitration agreement is intended to be broadly interpreted and will survive termination of this Agreement, which means (among other things) that this arbitration agreement applies even after you have stopped using your Ember account or have deleted it. The arbitrator, and not any federal, state or local court or agency, shall have exclusive authority to the extent permitted by law to resolve all disputes arising out of or relating to the interpretation, applicability, enforceability, or formation of this Agreement, including, but not limited to, any claim that all or any part of this agreement is void or voidable. If the parties have a dispute about whether this arbitration agreement can be enforced, whether this arbitration agreement applies to a dispute, or any other dispute about the meaning or scope of this arbitration agreement, the parties agree that the arbitrator shall have exclusive authority to resolve the dispute.
There is no judge or jury in arbitration, and court review of an arbitration award is limited. However, an arbitrator can award on an individual basis the same damages and relief as a court (including injunctive and declaratory relief or statutory damages) and must follow this Agreement as a court would. For the avoidance of doubt, the arbitrator can award public injunctive relief.
In the event this arbitration agreement is for any reason held to be unenforceable or inapplicable to a claim, any litigation against Ember (except for the intellectual property and small claims actions described in Section 10.3 below) may be commenced only in those courts referenced in Section 9.2, and both parties consent to the jurisdiction of those courts for such purposes.
10.3 Exceptions to Agreement to Arbitrate. You and Ember agree that the agreement to arbitrate will not apply to any disputes relating to your or Ember’s intellectual property (e.g., trademarks, trade dress, domain names, trade secrets, copyrights or patents) and that such disputes may be brought in any court that has jurisdiction over such claims. Also, either party can bring a claim in small claims court in Miami-Dade County, Florida (or small claims court in another place if both parties agree in writing), if it qualifies to be brought in that court.
10.4 Details of Arbitration Procedure.
(a) Informal Resolution. You and Ember agree that good-faith informal efforts to resolve disputes often can result in a prompt, low-cost and mutually beneficial outcome. Prior to demanding or filing any arbitration, you and Ember agree to personally meet and confer, in person or by videoconference, in a good-faith effort to resolve informally any claim covered by this arbitration agreement. If you are represented by counsel, your counsel may participate in the conference, but you shall also fully participate in the conference. The party initiating the claim must give notice to the other party in writing of its, his, or her intent to initiate an informal dispute resolution conference, which shall occur within 60 days after the other party receives such notice, unless an extension is mutually agreed upon by the parties. To notify Ember that you intend to initiate an informal dispute resolution conference, email support@emberhiring.com with the subject “INFORMAL DISPUTE RESOLUTION REQUEST” and provide your name, the telephone number associated with your Ember account, the email address associated with your email account, and a description of your claim. In the interval between the party receiving such a notice and the informal dispute resolution conference, the parties shall be free to attempt to resolve the initiating party’s claims. Engaging in an informal dispute resolution conference is a requirement that must be fulfilled before commencing arbitration. The statute of limitations and any filing fee deadlines shall be tolled while the parties engage in the informal dispute resolution process described in this paragraph.
(b) If the informal dispute resolution process does not result in a resolution of the dispute within 60 days after the conference is held, either party may initiate an arbitration proceeding under the then-current version of the American Arbitration Association’s (“AAA”) Commercial Arbitration Rules (the “AAA Rules”). The AAA Rules are available on the AAA's website available at http://www.adr.org or Customer can call them at 1-800-778-7879. The arbitration will be governed by the AAA Rules and will be held before a single arbitrator appointed in accordance with the AAA Rules. To the extent anything described in this agreement to arbitrate conflicts with the AAA Rules, the language of this agreement to arbitrate applies. Any arbitration will be conducted in Miami-Dade County, Florida, or in another location that both parties agree to in writing.
(c) Discovery. Each party will be entitled to get a copy of non-privileged relevant documents in the possession or control of the other party and each party may take one (1) deposition. All such discovery will be in accordance with procedures approved by the arbitrator. This agreement to arbitrate does not alter in any way the statute of limitations that would apply to any claims or counterclaims asserted by either party.
(d) Arbitration Award . The arbitrator’s award will be based on the evidence admitted and the substantive law of the State of Florida and the United States, as applicable, and will contain an award for each issue and counterclaim. The award will provide in writing the factual findings and legal reasoning for such award. The arbitrator will not be entitled to modify this Agreement, and may not award any relief that is inconsistent with this Agreement. The prevailing party shall be entitled to an award of the costs and expenses of the arbitration, including reasonable attorneys’ fees and expert witness fees.
(e) Final and Binding . Except as provided in the Federal Arbitration Act and/or the New York Convention, as applicable, the arbitration award will be final and binding on the parties. Judgment may be entered in any court of competent jurisdiction.
10.5 Class Action Waiver. You and Ember agree that any claims or controversies between the parties must be brought against each other on an individual basis only, and not in a class, consolidated, or representative action. That means neither you nor Ember can bring such a claim as a plaintiff or class member in a class action, consolidated action, or representative action. The arbitrator cannot combine or consolidate more than one person’s or one entity’s claims into a single case, and cannot preside over any consolidated, class or representative proceeding (unless all parties agree otherwise in writing). Further, the arbitrator’s decision or award in one person’s or entity’s case can only impact the person or entity that brought the claim, not other entities or Ember customers, and cannot be used to decide other disputes with other customers. YOU AGREE TO WAIVE ANY RIGHT TO A JURY TRIAL, YOU AGREE TO WAIVE ANY RIGHT TO PARTICIPATE IN A CLASS-WIDE OR REPRESENTATIVE ARBITRATION, AND YOU AGREE TO WAIVE ANY RIGHT TO PARTICIPATE IN ANY CLASS ACTION LAWSUIT (INCLUDING FOR ANY CLAIM THAT IS DETERMINED NOT TO BE SUBJECT TO ARBITRATION UNDER THESE TERMS). If a court decides that this class action waiver is not enforceable or valid, then the entire agreement to arbitrate will be null and void, but the rest of this Agreement will still apply.
11. Territory Specific Terms.
The following provisions apply only with respect to Customers domiciled in the specific territory(ies) identified. To the extent of a conflict among any territory-specific provision below and the provisions of the Customer Terms of Service set forth above, the territory-specific provision(s) will control to the extent of such conflict. In all other respects, the Ember Customer Terms of Service remain as written unless expressly modified by a territory-specific provision below.
European Economic Area, United Kingdom, and Switzerland
(a) This provision shall replace Section 9.2 (Governing Law): This Agreement and all claims or causes of action (whether in contract, tort or statute) that may be based upon, arise out of or relate to this Agreement, or the negotiation, execution or performance of this Agreement (including any claim or cause of action based upon, arising out of or related to any representation or warranty made in or in connection with this Agreement or as an inducement to enter into this Agreement), shall be governed by, and enforced in accordance with, the internal laws of England and Wales, including its statute of limitations, exclusive of its rules governing choice of law and conflict of laws. This Agreement will not be governed by the United Nations Convention on Contracts for the International Sale of Goods. Subject to the agreement to arbitrate below, the Parties irrevocably agree that the courts of England located in London shall have exclusive jurisdiction to settle any dispute which may arise out of or in connection with this Agreement and agree to submit to the jurisdiction of such courts.
(b) This provision shall replace clause (b) of Section 10.4 (Details of Arbitration Procedure): If the informal dispute resolution process does not result in a resolution of the dispute within 60 days after the conference is held, either party may initiate an arbitration proceeding under the then-current rules (“ Rules ”) of the London Court of International Arbitration (“ LCIA ”), which Rules are deemed to be incorporated by reference into this clause. The number of arbitrators shall be one. The seat, or legal place, of arbitration shall be London, England. The language to be used in the arbitral proceedings shall be English. The governing law of the contract shall be the substantive law of England and Wales. The party initiating arbitration in accordance with this Section and the Rules may take any steps to seek expedited procedures under the Rules and the other party agrees that it shall not oppose, hinder or delay any request for expedited procedures where available. To the extent anything described in this agreement to arbitrate conflicts with the Rules, this agreement to arbitrate shall govern and control to the extent of such conflict.
(c) This provision shall replace clause (d) (Arbitration Award) of Section 10.4 (Details of Arbitration Procedure): The arbitrator’s award will be based on the rules of evidence admitted under, and the substantive law of, England and Wales, and will contain an award for each issue and counterclaim. The award will provide in writing the factual findings and legal reasoning for such award. The arbitrator will not be entitled to modify this Agreement, and may not award any relief that is inconsistent with this Agreement. The prevailing party shall be entitled to an award of the costs and expenses of the arbitration, including reasonable and documented out-of-pocket attorneys’ fees and reasonable expert witness fees.
(d) To the extent of any conflict between any statutory law in Customer’s country of domicile applicable to Customer, and the terms and conditions of this Agreement or any policies incorporated or referenced herein, the applicable statutory law shall govern and control to the extent of any such conflict.
Asia-Pacific-Oceania (e.g., Australia, New Zealand, People's Republic of China and Hong Kong, India, Indonesia, Japan, Republic of Korea, Malaysia, Singapore)
(a) This provision shall replace Section 9.2 (Governing Law): This Agreement and all claims or causes of action (whether in contract, tort or statute) that may be based upon, arise out of or relate to this Agreement, or the negotiation, execution or performance of this Agreement (including any claim or cause of action based upon, arising out of or related to any representation or warranty made in or in connection with this Agreement or as an inducement to enter into this Agreement), shall be governed by, and enforced in accordance with, the internal laws of England and Wales, including its statute of limitations, exclusive of its rules governing choice of law and conflict of laws. This Agreement will not be governed by the United Nations Convention on Contracts for the International Sale of Goods. Subject to the agreement to arbitrate below, the Parties irrevocably agree that the courts of Singapore shall have exclusive jurisdiction to settle any dispute which may arise out of or in connection with this Agreement and agree to submit to the jurisdiction of such courts.
(b) This provision shall replace clause (b) of Section 10.4 (Details of Arbitration Procedure): If the informal dispute resolution process does not result in a resolution of the dispute within 60 days after the conference is held, either party may initiate an arbitration proceeding under the then-current rules (“ Rules ”) of the Singapore International Arbitration Centre (“ SIAC ”), which Rules are deemed to be incorporated by reference into this clause. The seat of the arbitration shall be Singapore. The Tribunal shall consist of one (1) arbitrator. The language of the arbitration shall be English. The party initiating arbitration in accordance with this Section and the Rules may take any steps to seek expedited procedures under the Rules and the other party agrees that it shall not oppose, hinder or delay any request for expedited procedures where available. In respect of any court proceedings in Singapore commenced under the International Arbitration Act 1994 in relation to the arbitration, the parties agree (a) to commence such proceedings before the Singapore International Commercial Court (the “ SICC ”); and (b) in any event, that such proceedings shall be heard and adjudicated by the SICC. To the extent anything described in this agreement to arbitrate conflicts with the Rules, this agreement to arbitrate shall govern and control to the extent of such conflict.
(c) This provision shall replace clause (d) (Arbitration Award) of Section 10.4 (Details of Arbitration Procedure): The arbitrator’s award will be based on the rules of evidence admitted under, and the substantive law of, England and Wales, and will contain an award for each issue and counterclaim. The award will provide in writing the factual findings and legal reasoning for such an award. The arbitrator will not be entitled to modify this Agreement, and may not award any relief that is inconsistent with this Agreement. The prevailing party shall be entitled to an award of the costs and expenses of the arbitration, including reasonable and documented out-of-pocket attorneys’ fees and reasonable expert witness fees.
France
(a) To the extent permitted under applicable law, the provisions of Article 1222 and 1223 of the French Civil Code shall in no event be applicable.
Germany
(a) This provision shall replace Section 8 (Limitation of Liability): YOU ACKNOWLEDGE AND AGREE THAT THE ESSENTIAL PURPOSE OF THIS SECTION 8 IS TO ALLOCATE THE RISKS UNDER THIS AGREEMENT BETWEEN THE PARTIES AND LIMIT POTENTIAL LIABILITY GIVEN THE FEES, WHICH WOULD HAVE BEEN SUBSTANTIALLY HIGHER IF EMBER WERE TO ASSUME ANY FURTHER LIABILITY OTHER THAN AS SET FORTH HEREIN. EMBER HAS RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO PROVIDE YOU WITH THE RIGHTS TO ACCESS AND USE THE EMBER SERVICES PROVIDED FOR IN THIS AGREEMENT. EXCEPT WITH RESPECT TO EMBER'S IP INDEMNIFICATION OBLIGATIONS OR TO THE EXTENT ARISING FROM Ember’S WILFUL MISCONDUCT, UNDER NO CIRCUMSTANCES SHALL Ember, ITS AFFILIATES, AGENTS, DIRECTORS, EMPLOYEES, SUPPLIERS AND LICENSORS BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE, OR OTHER INDIRECT DAMAGES, OR FOR LOST PROFITS OR LOST DATA ARISING OUT OF THE USE OR INABILITY TO USE THE EMBER SERVICES OR ANY FAILURE OR DELAY IN DELIVERING THE EMBER SERVICES, EVEN IF Ember HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT TO THE EXTENT ARISING FROM ORAGE’S WILFUL MISCONDUCT, EMBER, ITS AFFILIATES, AGENTS, DIRECTORS, EMPLOYEES, SUPPLIERS AND LICENSORS SHALL NOT BE LIABLE TO YOU FOR DIRECT DAMAGES, IN THE AGGREGATE, EXCEEDING THE AMOUNT OF FEES PAID TO EMBER HEREUNDER IN THE TWELVE (12) MONTHS PRECEDING THE CLAIM THAT GAVE RISE TO THE LIABILITY. THE LIMITATIONS IN THIS SECTION APPLY TO THE FULLEST EXTENT PERMITTED BY LAW, EVEN IF Ember HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
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