These Terms and Conditions of Use (the “Terms”) are binding as of the date accepted by you, the “Subscriber” (the “Effective Date”). Use of the service (the “Service”) provided by Bench Talent Cloud Inc. (“Bench”) is also governed by our Privacy Policy and Terms and Conditions, incorporated herein. Subscriber and Bench may be referred to individually as a "Party" and together as the "Parties." 

DEFINITIONS

Capitalized terms shall have the meanings set forth below unless otherwise defined herein.

“Application” shall mean the Bench-developed software application used by Subscriber for the Service hereunder.

“Authorized Users” shall mean Subscriber’s employees and independent contractors working for Subscriber in the ordinary course of Subscriber’s business who: (i) agree to be bound by these Terms; and (ii) are specifically authorized by Subscriber to access the Service.

“Display Devices” shall mean any display device used to access and display the Service.

“Fees” shall mean the fees payable pursuant to the Subscriber’s subscription selection.

“Office” shall mean the address(es) of Subscriber’s office(s) in which a Display Device is located. 

“Service” shall mean Bench’s applications subscribed to by Subscriber.

“Terms” shall mean these terms and conditions and any written amendments or addendums signed by both Parties, all of which are incorporated herein.

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1. LICENSE TO RECEIVE THE SERVICE

• Grant. Bench hereby grants the Subscriber a limited, non-exclusive, non-transferable, revocable license, without right of sublicense, during the Term to access and display the Service on Subscriber’s Display Devices, and to permit Authorized Users to use the Service, subject to the terms and conditions herein. All rights in the Service not expressly granted hereunder are reserved to Bench.
  Subscriber shall designate Authorized Users and shall identify each individual Authorized User to Bench in writing. Only Subscriber’s Authorized Users may use the Service.

• Scope. The license granted to Subscriber hereunder is limited to the authorized Application for the display and retrieval of the Service on an Authorized User’s device. Unless expressly permitted herein, Subscriber shall have no right pursuant to these Terms to distribute the Service in whole or in part. Nothing in these Terms shall obligate Bench to continue providing access to any Service beyond the date when Bench ceases providing such Service to subscribers generally.
• Restricted Uses. Subscriber shall not edit, alter, abridge or otherwise change in any manner the content of the Service, including, without limitation, all copyright and proprietary rights notices. Subscriber may not, and may not permit others to:
  • reverse engineer, decompile, decode, decrypt, disassemble, or in any way derive source code from, the software or Service;
  • modify, translate, adapt, alter, publish, broadcast, or circulate;
  • create derivative works (including, without limitation, trading algorithms), test algorithms in conjunction with, or distribute by any means the Service in whole or in part to anyone, including, but not limited to, other employees of Subscriber, without Bench’s express prior written consent; provided, however, that Authorized Users may on an occasional basis in the normal course of business include limited portions of the Service (a) in oral and (with proper attribution to the respective Service) non-electronic written communications with clients and other employees, and (b) in email and instant messaging communications with other employees and/or securities professionals;
  • store, copy, reproduce, retransmit, disseminate, distribute, publicly display, transmit, sell, sublicense, rent, lease or otherwise exploit the Service;
  • distribute, license, sublicense, rent, sell, lease, loan, or otherwise grant access to the Service to any third party; 
  • use the Service for the purposes of competing with Bench, including without limitation competitive intelligence; or
  • use the Software in a manner that violates any applicable local, state, national or international law or governmental regulation, policy procedure or ordinance, or any rights of a third party.
    
    Subscriber agrees to notify its employees and agents who have access to the Service of the limitations set forth in these Terms.

2. FEES AND PAYMENT

• Fees. Subscriber hereby acknowledges and agrees that upon Subscriber’s acceptance of these Terms, Bench has earned all Fees in full. Bench has sole discretion to provide Subscriber the option to make payments in installments. This option provided by Bench does not constitute a waiver of the foregoing. Furthermore, in the event the Subscribe terminates the Services for convenience before the end of the Term, the Subscriber is not entitled to withhold or recover any portion of the Fees owed to Bench under these Terms.
• Taxes. Subscriber alone will be responsible for the payment of all sales, use, excise, value-added or similar taxes, assessments, or duties (or other similar charges) imposed by any governmental agency (including any interest and penalty imposed thereon as a result of any act or omission of Bench that is in accordance with the direction or request of Subscriber) that are based on or with respect to the Service provided by Bench to Subscriber, or the amounts payable to Bench therefore.

3. PROFESSIONAL SERVICES; CUSTOM ORDERS

Subscriber may request that Bench perform administrative, project related, or computer professional services in the nature of software development, customization add-in, documentation and/or integration services (hereinafter, “Professional Services”). Bench may accept or reject a request for Professional Services for any reason in its sole discretion. Professional Services may be subject to a separate agreement as determined by Bench in its sole discretion. Professional Services performed by Bench are not exclusive to Subscriber, and Bench may perform services of any type or nature for any other person or entity at any time.

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4. ACCESS

The Service is made available to Subscriber via an internet feed (the “Feed”). Subscriber shall acquire, install, operate and maintain at Subscriber’s expense all communications lines, equipment, software, services and related technology necessary to receive the Service via the Feed.

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5. RESULTANT DATA USE

Bench shall have a non-exclusive, perpetual, fully paid-up, royalty-free, irrevocable, worldwide right to collect, aggregate and use all information and data derived from, or through, Subscriber’s use of the Service, for the purpose of Bench’s internal business processes or system efficiencies to improve or otherwise modify its product and services, or to recommend or create new products and services. Any resultant data used by Bench in accordance with these Terms shall be de-identified so that any Subscriber information cannot be reasonably identified from mere inspection or analysis of such information.

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6. COPYRIGHT PROTECTION; USE RESTRICTIONS; SECURITY

Subscriber agrees that the Service and Feed specifications, including, but without limitation, the editorial coding and metadata contained therein, are the property of Bench. The works and databases included in the content of the Service are protected by applicable copyright laws. Subscriber agrees that only Authorized Users shall be permitted access to the Service. Except as set forth herein, no clients or other persons or entities who are not legal employees of Subscriber or independent contractors consulting for Subscriber in the ordinary course of Subscriber’s business may be Authorized Users.

Without limiting the foregoing, under no circumstances shall distribution under this section by Subscriber be permitted if such distribution may be viewed as a substitute for a subscription to the Service itself. Subscriber agrees that when using the Service in this way, the facts, content and intent of the Service will not be changed in form or in spirit or otherwise in any way be prejudicial to the integrity of the Service or Bench.

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7. DISCLAIMER

SUBSCRIBER ACKNOWLEDGES AND AGREES THAT THE SERVICE(S), THE CONTENTS THEREIN, AND ANY ACCOMPANYING DOCUMENTATION ARE PROVIDED ON AN “AS IS”, “AS AVAILABLE” BASIS AND BENCH DOES NOT MAKE ANY, AND HEREBY SPECIFICALLY DISCLAIMS ANY REPRESENTATIONS, ENDORSEMENTS, GUARANTEES, OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NON INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS.

TECHNICAL DIFFICULTIES COULD BE ENCOUNTERED IN CONNECTION WITH THE SYSTEM. THESE DIFFICULTIES COULD INVOLVE, AMONG OTHERS, FAILURES, DELAYS, MALFUNCTION, SOFTWARE EROSION OR HARDWARE DAMAGE, WHICH DIFFICULTIES COULD BE THE RESULT OF HARDWARE, SOFTWARE OR COMMUNICATION LINK INADEQUACIES OR OTHER CAUSES. SUCH DIFFICULTIES COULD LEAD TO POSSIBLE ECONOMIC AND/OR DATA LOSS.

IN NO EVENT WILL BENCH OR ANY OF ITS AFFILIATES, EMPLOYEES, OFFICERS OR DIRECTORS BE LIABLE FOR ANY POSSIBLE LOSS, COST OR DAMAGE INCLUDING, WITHOUT LIMITATION, CONSEQUENTIAL DAMAGES WHICH MIGHT OCCUR AS A RESULT OF OR ARISING OUT OF USING, ACCESSING, INSTALLING, MAINTAINING, MODIFYING, DEACTIVATING OR ATTEMPTING TO ACCESS THE SYSTEM OR OTHERWISE. SUBSCRIBER ASSUMES RESPONSIBILITY FOR SELECTING THE SOFTWARE TO ACHIEVE SUBSCRIBER’S INTENDED RESULTS, AND FOR THE RESULTS OBTAINED FROM SUBSCRIBER’S USE OF THE SOFTWARE.

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8. INDEMNIFICATION

Subscriber, at its expense, shall defend, indemnify, and hold Bench, and its affiliates, officers, directors, members, managers, employees, attorneys, and agents harmless from and against any and all third party claims for damages (whether ordinary, direct, indirect, incidental, special, consequential, or exemplary), judgments, liabilities, fines, penalties, losses, claims, costs, and expenses including, without limitation, reasonable attorneys' fees finally awarded by a court of competent jurisdiction, after all rights of appeal are exhausted against Bench. These claims must directly relate to a claim, action, lawsuit, or proceeding made or brought against Bench as a result of Subscriber’s negligence, willful misconduct, or breach of these Terms, or as a result of a third party alleging the infringement or violation of such third party's registered patent, trade secret, copyright, or trademark (each a “Bench Claim”) by way of Bench's use of any content given to Bench by Subscriber that Bench uses in the provision of any Service.

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9. LIMITATION OF LIABILITY

BENCH AND ITS SUBSIDIARIES, AFFILIATES, SHAREHOLDERS, DIRECTORS, OFFICERS, EMPLOYEES WILL NOT BE LIABLE (JOINTLY OR SEVERALLY) TO SUBSCRIBER, AUTHORIZED USERS, OR ANY THIRD PARTY, FOR INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL, PUNITIVE, OR EXEMPLARY DAMAGES, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOST SAVINGS AND LOST REVENUES (COLLECTIVELY, THE “EXCLUDED DAMAGES”), WHETHER OR NOT CHARACTERIZED IN NEGLIGENCE, TORT, CONTRACT, OR OTHER THEORY OF LIABILITY, EVEN IF ANY OF THE PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF OR COULD HAVE FORESEEN ANY OF THE EXCLUDED DAMAGES, AND IRRESPECTIVE OF ANY FAILURE OF AN ESSENTIAL PURPOSE OF A LIMITED REMEDY. IN NO EVENT WILL THE LIABILITY OF THE PARTIES ARISING OUT OF ANY CLAIM RELATED TO THE SERVICES UNDER THESE TERMS EXCEPT FOR INTELLECTUAL PROPERTY INFRINGEMENT OR THE SUBJECT MATTER HEREOF EXCEED THE AGGREGATE AMOUNT PAID BY SUBSCRIBER HEREUNDER IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. IF ANY APPLICABLE AUTHORITY HOLDS ANY PORTION OF THIS SECTION TITLED “LIMITATION OF LIABILITY” TO BE UNENFORCEABLE, THEN THE PARTIES’ LIABILITY WILL BE LIMITED TO THE FULLEST POSSIBLE EXTENT PERMITTED BY APPLICABLE LAW. 

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10. TERM; EARLY TERMINATION

• Termination by Subscriber. Subscriber may terminate the Service provided under these Terms upon thirty (30) days prior written notice to Bench to that effect. In the event that Subscriber elects to terminate the Service early pursuant to this section, Subscriber will receive a prorated refund of any fees paid for the applicable period.
• Termination by Bench. Bench may terminate Subscriber’s access at any time with or without reason. Upon termination, Subscriber will receive a prorated refund of the fee paid for the applicable period remaining, except in the event Bench’s termination is the result of Subscriber’s material breach of a covenant, commitment or obligation under these Terms.
• Obligations upon Termination. Termination of the Service for any reason shall not discharge Subscriber’s liability for obligations incurred hereunder and amounts unpaid at the time of such termination. 

11. CONFIDENTIALITY

Subscriber understands and agrees that in the performance of these Terms, Subscriber may have access to Bench’s private or confidential which either is marked as “confidential” or that the Subscribershould reasonably know under the circumstances is confidential and/or proprietary information of Bench. Subscriber shall hold such information in confidence and not, without the consent of Bench, disclose it to a third party or use it for any purpose other than in performance of these Terms. This obligation of confidentiality shall not apply to information that is generally available to the public through no act or omission of the Subscriber or becomes known to the Subscriber through a third party with no obligation of confidentiality, or is required to be disclosed by law, court or by any government or regulatory authority.

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12. MISCELLANEOUS

• Assignment. The Service is not transferable, assignable, delegable, or sublicensable by Subscriber in whole or in part, without the prior written permission of Bench. These Terms will be binding upon and inure to the benefit of the Parties and their respective successors, trustees, administrators, and assigns.
• Survival. The following obligations of the Parties will survive termination or expiration of the Service provided under these Terms for any reason: The sections titled, “Copyright Protection; Use Restrictions; Security”, “Disclaimer”; “Limitation of Liability”, “Confidentiality”, and any payment obligations of Subscriber that accrue prior to such termination or expiration.
• Binding Effect and Third-Party Beneficiary. Neither Party, nor any of their respective employees or agents, will have the power or authority to bind or obligate the other Party. No third party is a beneficiary of the Services received under these Terms.
• Waiver of Rights. Except where specifically stated to the contrary, all remedies available to either Party for breach of these Terms, at law, or in equity, are cumulative and nonexclusive. A waiver or failure of either Party at any time to require performance by the other Party of any provision hereof will not affect the full right to require such performance at any time thereafter.
• Injunctive Relief. If Subscriber breaches the first section of these terms, titled, “License to Receive the Service”, Bench will be entitled, in addition to any other rights available under these Terms, or at law or in equity, to apply for immediate injunctive relief without any requirement to post a bond or other security and Subscriber acknowledges and agrees to not contest such application.
• Severability. If any provision or portion thereof of these Terms or its application in a particular circumstance is held to be invalid or unenforceable to any extent in any jurisdiction, such provision or portion thereof will be ineffective only to the extent of such unenforceability in that jurisdiction. All other provisions and portions of these Terms will remain unaffected and will continue to be valid and enforceable to the fullest extent permitted by law.
• Choice of Law; Venue; Arbitration. These Terms, as well as any and all claims arising from the Service, these Terms or arising from any of the proposals, negotiations, communications or understandings regarding these Terms, will be governed by and construed in accordance with the laws of the State of California, without regard to any conflict or choice of law principles.
  Any controversy, claim or dispute arising out of or relating to this Agreement shall be settled by binding arbitration in San Diego County, California. Such arbitration shall be conducted in accordance with the then prevailing commercial arbitration rules of the American Arbitration Association. The Parties agree to abide by all decisions and awards rendered in such proceedings. Such decisions and awards rendered by the arbitrator shall be final and conclusive and may be entered in any court having jurisdiction thereof as a basis of judgment and of the issuance of execution for its collection. All such controversies, claims or disputes shall be settled in this manner in lieu of any action at law or equity, provided however, that nothing in this subsection shall be construed as precluding bringing an action for injunctive relief or other equitable relief.

• Force Majeure. Any failure or delay by Bench in the performance of its obligations pursuant to these Terms will not be deemed a default or breach of the Terms, or a ground for termination to the extent such failure or delay is due to computer or Internet or telecommunications breakdowns, denial of service attacks, fire, flood, earthquake, epidemic, pandemic, elements of nature or acts of God, acts of war, terrorism, riots, civil unrest, rebellions or revolutions in the United States or any nation where the obligations under these Terms are to be executed, strikes, supplier and third party failure, lockouts, or labor difficulties, or any similar cause beyond the reasonable control of Bench.
• Policies.
  Privacy Policy: benchtalentcloud.com/privacy-policy
  Terms and Conditions: benchtalentcloud.com/terms-and-conditions

• Entire Terms. These Terms contain the final and entire understanding of the Parties with respect to the subject matter hereof, and supersedes all previous and contemporaneous verbal or written negotiations, understandings, or agreements between the parties.