This document is an electronic record in terms of the Information Technology Act, 2000 and rules thereunder as applicable and the provisions pertaining to electronic records in various statutes as amended by the Information Technology Act, 2000. This electronic record is generated by a computer system and does not require any physical or digital signatures.
SOFTWARE AS A SERVICE (“SaaS” or “Shortlist Connect”) SERVICES AND SUPPORT
Subject to the terms of this Agreement, Shortlist will use commercially reasonable efforts to provide Customer the Services. As part of the registration process, Customer will identify an administrative username and password for Customer’s Shortlist account. Shortlist reserves the right to refuse registration of or cancel passwords it deems inappropriate.
Shortlist may agree to provide any additional services related to Shortlist Connect which will then also be covered by this agreement.
Subject to the terms hereof, Shortlist will provide Customer with reasonable technical support services in accordance with Shortlist’s standard practice.
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 Shortlist 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; or remove any proprietary notices or labels.
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.
Customer or its representatives shall not be allowed to use Shortlist Connect to advertise external websites or URLs with the exception of the Company page, exclusively in the “Website” space dedicated to it.
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 Shortlist includes non-public information regarding features, functionality and performance of the Service. Proprietary Information of Customer includes non-public data provided by Customer to Shortlist 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.
Shortlist 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 any of the foregoing.
Notwithstanding anything to the contrary, Shortlist shall have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (including, without limitation, information concerning Customer Data and data derived therefrom), and Shortlist 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 Shortlist offerings, (ii) use such information to suggest other Shortlist products and services, and (iii) 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. Any data that is Personal Data (as defined in paragraph 4.1.) shall only be used collected, analyzed or disclosed in accordance with section 4.
It is understood by both parties that proprietary information may be shared by Shortlist within the execution of the present contract, in good faith. This may encompass, without being limited to, making job descriptions available to third parties.
PROCESSING OF PERSONAL DATA
When Customer and Shortlist process personal data (as defined in the regulation 2016/679, the “General Data Protection Regulation” or “GDPR”) (“Personal Data”), in relation to this Agreement, they comply with the GDPR and applicable national legislation, as amended from time to time.The Personal Data processed may vary but Customer and Shortlist undertake to process only the Personal Data necessary to perform the Services under this Agreement, and to comply with legal and regulatory requirements they are subject to. Personal Data may be shared with other third parties, on which the Customer and Shortlist rely in order to perform the Services under this Agreement. When sharing Personal Data, Customer and Shortlist undertake to put in place appropriate safeguards.Customer and Shortlist warrant and represent that Personal Data they provide to the other one and, where applicable and appropriate, the instructions they provide as regards their use do not breach their obligations (or any other data subjects rights) under the General Data Protection Regulation and applicable national legislations. If Customer or Shortlist provides Personal Data it shall be liable to provide any relevant data privacy information (including the communication that Personal Data are shared) to the individuals to whom the Personal Data relates. Customer and Shortlist undertake and warrant that they are bound, amongst others, by the information requirements under GDPR and may, where necessary, reach out to data subjects in order to provide them with such information as required under GDPR.
Paragraph 4.1 shall apply insofar as the processing of Personal Data falls under the scope of GDPR.
PAYMENT OF FEES
Customer will pay Shortlist the then applicable fees described in the Order Form for the Services and Implementation Services in accordance with the terms therein (the “Fees”). Shortlist 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 the then-current renewal term, upon thirty (30) days prior notice to Customer (which may be sent by email). If Customer believes that Shortlist has billed Customer incorrectly, Customer must contact Shortlist no later than thirty (30) 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 Shortlist’s customer support department.
Shortlist may choose to bill through an invoice, in which case, full payment for invoices issued in any given month must be received by Shortlist thirty (30) days after the mailing date of the invoice. Unpaid amounts are subject to a finance charge of 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 Kenyan taxes based on Shortlist’s net income.
If Customer is subject to a Free Trial (section 7), Customer is expressively authorizing Shortlist to charge it, where applicable, fees to be billed over a subscription period, or any other fees for services purchased, at the earliest 1 (one) business day after the expiration date of the free trial (as defined by section 7.1.)
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.
Termination for convenience: any party may terminate this Agreement at any time for any reason by giving at least fourteen (14) days’ written notice. No refund shall be provided to the Customer for any prepaid period, and any billed period, whether invoiced or not, shall be paid.
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. 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.
From time to time and at our sole discretion, we may offer you the opportunity to try Shortlist Connect for free for a limited time. Each trial membership will automatically convert to a regular monthly subscription unless canceled no more than forty-eight (48) hours prior to the end of your trial period. To cancel your subscription, send an email to firstname.lastname@example.org.
This Free Trial to use Shortlist Connect shall last for a period of 30 days from the day the account is created by Shortlist unless otherwise stated to the customer in external communication directly sent to the customer.
Paid services including but not limited to: custom assessments, custom API, are not eligible to any free trial period.
Offer is not available for customers in all countries and territories.
Shortlist reserves the right to cancel or remove the Free Trial offer at any time.
Shortlist reserves the right to change the features or services included in the Free Trial offer at any time.
Shortlist reviews all requests for Free Trial and reserves the right to deny or cancel any Free Trial request at any time for any reason.
Unless otherwise specifically provided in the Quote, “Authorized Users” will only consist of: (i) employees of Customer, and (ii) subject to Section 3 (Confidentiality), third party contractors of Customer who do not compete with Shortlist (“Permitted Contractors”). Permitted Contractors may Use the Software only at Customer’s place of business or in the presence of Customer personnel. Customer is fully liable for the acts and omissions of Permitted Contractors under these Terms and Conditions & Terms and Conditions.
WARRANTY AND DISCLAIMER
Shortlist 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 manner. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Shortlist or by third-party providers, or because of other causes beyond Shortlist’s reasonable control, but Shortlist shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. However, Shortlist 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 Shortlist disclaims all warranties, express or implied, including, but not limited to, implied warranties of merchantability and fitness for a particular purpose and non-infringement.
LIMITATION OF LIABILITY
Notwithstanding anything to the contrary, except for bodily injury of a person, Shortlist 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 shortlist’s reasonable control; or (d) for any amounts that, together with amounts associated with all other claims, exceed the fees paid by the customer to Shortlist 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 Shortlist 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 Shortlist’s prior written consent. Shortlist 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 Shortlist 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 Kenya] without regard to its conflict of laws provisions.
This Agreement shall be governed by the Laws of the Republic of Kenya. The courts in Kenya shall have jurisdiction to enforce any arbitral awards granted pursuant to this Agreement and to grant interim injunctions pending any arbitration proceedings.