PROWESS PROJECT, INC.PROWESS PORTAL MEMBERSHIP TERMS AND CONDITIONS

These Prowess Portal Membership Terms and Conditions (these “Terms”) govern the relationship between Prowess Project, Inc., a Delaware corporation with offices located at 9901 Brodie Lane Ste 160 #1168 Austin, TX 78748 (“PPI”), and the undersigned employer client (“Client” or “you”). These Terms (together with the applicable Membership Level features as described in Section 1(a)) comprise the entire agreement between PPI and Client with respect to Client’s access to and use of services provided by PPI pursuant to its online job candidate identification and recruitment portal (the “Prowess Portal”) from time to time (the “Services”), and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. These Terms are effective as of the date you agree to them or access the Prowess Portal, whichever is earlier (the “Effective Date”).

By accessing and using the Prowess Portal, you agree to these Terms.

1. Portal Services.

(a) Provision of Access. Subject to and conditioned on Client’s payment of Fees and compliance with these Terms, PPI hereby grants Client a non-exclusive, non-transferable right to access and use the Services and features corresponding to the Membership Level selected by Client and the documentation and/or other deliverables from time to time in the scope of providing the Services (the “Deliverables”), in each case during the Term, solely for use by Authorized Users in accordance with the terms and conditions herein. The features of the Membership Level that Client selects, as such features are described by PPI from time to time in correspondence to Client (level of Services, Deliverables, term, pricing, etc.) are incorporated into and made a part of these Terms. Such use is limited to Client’s internal use. PPI shall provide to Client the necessary passwords and network links or connections to allow Client to access the Services and Deliverables. As used herein, “Authorized Users” mean those of Client’s employees, consultants, contractors, and/or agents in each case (i) who are authorized by Client to access and use the Services and Deliverables under the rights granted to Client pursuant to these Terms, and (ii) for whom access to the Services and Deliverables has been purchased hereunder, which corresponds to the Membership Level.

(b) Use Restrictions. Client shall not use the Services or Deliverables for any purposes beyond the scope of the access granted in these Terms. Client shall not at any time, directly or indirectly, and shall not permit any Authorized Users to: (i) copy, modify, or create derivative works of the Services or Deliverables, in whole or in part; (ii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Services or Deliverables; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Services, in whole or in part; (iv) remove any proprietary notices from the Services or Deliverables; or (v) use the Services or Deliverables in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law.

(c) Reservation of Rights. PPI reserves all rights not expressly granted to Client in these Terms. Except for the limited rights and licenses expressly granted under these Terms, nothing in these Terms grants, by implication, waiver, estoppel, or otherwise, to Client or any third party any intellectual property rights or other right, title, or interest in or to the Prowess IP.

(d) As used herein:

(i) “Prowess IP” means the Services, the Deliverables, and any and all intellectual property provided to Client or any Authorized User in connection with the foregoing. For the avoidance of doubt, Prowess IP includes Aggregated Statistics but does not include Client Data.

(ii) “Aggregated Statistics” means data and information related to Client’s use of the Services that is used by PPI in an aggregate and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Services.

(iii) “Client Data” means, other than Aggregated Statistics, any information, data, or other content derived from Provider’s monitoring of Client’s access to or use of the Services, but does not include Client’s information, data, and other content, in any form or medium, that is submitted, posted, or otherwise transmitted by or on behalf of Client through the Services.

(e) Suspension. Notwithstanding anything to the contrary in these Terms, PPI may temporarily suspend Client’s and any Authorized User’s access to any portion or all of the Services if: (i) PPI reasonably determines that (A) there is a threat or attack on any of the Prowess IP; (B) Client’s or any Authorized User’s use of the Prowess IP disrupts or poses a security risk to the Prowess IP or to any other customer or vendor of PPI; (C) Client, or any Authorized User, is using the Prowess IP for fraudulent or illegal activities; (D) subject to applicable law, Client has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become thesubject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or (E) PPI’s provision of the Services to Client or any Authorized User is prohibited by applicable law; (ii) any vendor of PPI has suspended or terminated PPI’s access to or use of any thirdparty services or products required to enable Client to access the Services; or (iii) if Client fails to make any payments when due hereunder (any such suspension described in subclause (i), (ii), or (iii), a “Service Suspension”). PPI shall use commercially reasonable efforts to provide written notice of any Service Suspension to Client and to provide updates regarding resumption of access to the Services following any Service Suspension. PPI shall use commercially reasonable efforts to resume providing access to the Services as soon as reasonably possible after the event giving rise to the Service Suspension is cured. PPI will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Client or any Authorized User may incur as a result of a Service Suspension.

(f) Aggregated Statistics. Notwithstanding anything to the contrary in these Terms, PPI may monitor Client’s use of the Services and collect and compile Aggregated Statistics. As between PPI and Client, all right, title, and interest in Aggregated Statistics, and all intellectual property rights therein, belong to and are retained solely by PPI. Client acknowledges that PPI may compile Aggregated Statistics based on Client Data input into the Services. Client agrees that PPI may (i) make Aggregated Statistics publicly available in compliance with applicable law, and (ii) use Aggregated Statistics to the extent and in the manner permitted under applicable law; provided that such Aggregated Statistics do not identify Client or Client’s Confidential Information.

(g) Support. The access rights granted hereunder entitle Client to the support services described from time to time on PPI’s website located at www.prowessproject.com during with respect to the Term. [Optional – delete if not applicable.] Membership Level.

2. Client Responsibilities. Client is responsible and liable for all uses of the Services and Deliverables resulting from access provided by Client, directly or indirectly, whether such access or use is permitted by or in violation of these Terms. Without limiting the generality of the foregoing, Client is responsible for all acts and omissions of Authorized Users, and any act or omission by an Authorized User that would constitute a breach of these Terms if taken by Client will be deemed a breach of these Terms by Client. Client shall use reasonable efforts to make all Authorized Users aware of these Terms as applicable to such Authorized User’s use of the Services and shall cause Authorized Users to comply with such provisions. Client is responsible for keeping its and its Authorized Users’ passwords and access credentials associated with the Prowess Portal confidential. Client agrees that it will not sell or transfer them to any other person or entity. Client will promptly notify PPI about any unauthorized access to its passwords or access credentials.

3. Third-Party Products. PPI may from time to time make third-party products available to Client by incorporating them into the Services (“Third-Party Products”). For purposes of these Terms, such Third-Party Products are subject to their own terms and conditions and any applicable flow-through provisions of which Client is notified by PPI (including through the Prowess Portal) from time to time. If Client does not agree to abide by the applicable terms for any such Third-Party Products, then Client should not install or use such Third-Party Products as part of its use of the Services.

4. Payment, Fees, and Other Charges.

(a) Fees. In exchange for the Services, Client agrees to pay the fees for the Services and the applicable Membership Level as published by PPI from time to time (“Fees”). Onetime Fees, setup Fees, and the first payment of monthly Fees (as applicable) are payable at the time of purchasing the Services. All other Fees, including recurring monthly or annual Fees, are payable in advance as and when invoiced by PPI. Upon invoicing, Fees will be charged to the Client’s credit card by PPI. Should the credit card be declined, PPI will notify Client in writing and allow the Client five (5) business days to provide a valid credit card for payments.

(b) Credit Card Authorization. Client authorizes PPI to charge the credit card provided by it at any time for payment according to the terms outlined in these Terms. Client agrees that this authorization will remain in effect unless and until canceled upon at least 30 days’ prior written notice to PPI. Client agrees to notify PPI in writing of any changes in its credit card account information. Client represents that it is an authorized user of any credit card provided pursuant to these Terms, and further agrees that it will not dispute any charges of Fees payable pursuant these Terms with its credit card company. Should the PPI be unable to acquire a new payment method within that timeframe, without limiting PPI’s other rights and remedies PPI may suspend Client’s and its Authorized Users’ access to any portion or all of the Services until all Fees are paid in full and a valid credit card has been provided for future payments. 

(c) Disputes. Unless Client disputes an invoice in writing within ten (10) calendar days following receipt, the invoice will be deemed final, and Client thereafter waives any right to dispute the invoice. All Fees are non-refundable.

(d) Taxes. All Fees and other amounts payable by Client are exclusive of taxes and similar assessments. Client is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Client hereunder, other than any taxes imposed on PPI’s income.

5. Confidentiality. Either party to these Terms (as the “Disclosing Party”) may disclose or make available to the other party (as the “Receiving Party”) information about its business affairs, products/services, confidential intellectual property, trade secrets, thirdparty confidential information and other sensitive or proprietary information, whether or not marked, designated or otherwise identified as “confidential” (collectively, “Confidential Information”). Confidential Information shall not include information that, at the time of disclosure: (i) is or becomes generally available to and known by the public; (ii) is or becomes available to the Receiving Party on a non-confidential basis from a third-party source; (iii) was known by or in the possession of the Receiving Party or its representatives prior to being disclosed by or on behalf of the Disclosing Party; or (iv) was or is independently developed by the Receiving Party without reference to or use of, in whole or in part, any of the Disclosing Party’s Confidential Information. The Receiving Party shall: (A) protect and safeguard the confidentiality of the Disclosing Party’s Confidential Information with at least the same degree of care as the Receiving Party would protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care; (B) not use the Disclosing Party’s Confidential Information, or permit it to be accessed or used, for any purpose other than to exercise its rights or perform its obligations under these Terms; and (C) not disclose any such Confidential Information to any person or entity, except to the Receiving Party’s Authorized Users and employees who need to know the Confidential Information to assist the Receiving Party, or act on its behalf, to exercise its rights or perform its obligations under these Terms. Notwithstanding the foregoing, each party may disclose Confidential Information to the limited extent required (x) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the party making the disclosure pursuant to the order shall first have given written notice to the other party and made a reasonable effort to obtain a protective order; or (y) to establish a party’s rights under these Terms, including to make required court filings. On the expiration or termination of these Terms, the Receiving Party shall promptly return to the Disclosing Party all copies, whether in written, electronic, or other form or media, of the Disclosing Party’s Confidential Information, or destroy all such copies and certify in writing to the Disclosing Party that such Confidential Information has been destroyed. Each party’s obligations of non-disclosure with regard to Confidential Information are effective as of Effective Date and will expire five years from the date first disclosed to the Receiving Party; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations of non-disclosure will survive the termination or expiration of these Terms for as long as such Confidential Information remains subject to trade secret protection under applicable law.

6. Intellectual Property.

(a) Prowess IP. Client acknowledges that, as between Client and PPI, PPI owns all right, title, and interest, including all intellectual property rights, in and to the Prowess IP [and, with respect to Third-Party Products, the applicable third-party providers own all right, title, and interest, including all intellectual property rights, in and to the Third-Party Products]. [NOTE: Delete Third Party Product clause if not applicable.].

(b) Client Data. PPI acknowledges that, as between PPI and Client, Client owns all right, title, and interest, including all intellectual property rights, in and to the Client Data. Client hereby grants to PPI a non-exclusive, royalty-free, worldwide license to reproduce, distribute, and otherwise use and display the Client Data and perform all acts with respect to the Client Data as may be necessary for PPI to provide the Services to Client, and a non-exclusive, perpetual, irrevocable, royalty-free, worldwide license to reproduce, distribute, modify, and otherwise use and display Client Data incorporated within the Aggregated Statistics.

(c) Feedback. If Client or any of its employees or contractors sends or transmits any communications or materials to PPI by mail, email, telephone, or otherwise, suggesting or recommending changes to the Prowess IP, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like {“Feedback”), PPI is free to use such Feedback irrespective of any other obligation or limitation between the Parties governing such Feedback. Client hereby assigns to PPI on Client’s behalf, and on behalf of its employees, contractors and/or agents, all right, title, and Interest in, and PPI is free to use, without any attribution or compensation to any party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, although PPI is not required to use any Feedback.

7. Use of Descriptions of Services for Promotional Purposes. 

Client grants PPI the right to use descriptive text, testimonials, performance metrics, and other images, photos and/or graphics that may identify Client and describe the Services for promotional purposes. Within ten (10) days of Client’s written request, PPI shall remove or modify any promotional materials associated with or referencing Client.

8. Limited Warranty and Warranty Disclaimer.

(a) PPI warrants to Client that it shall perform the Services in accordance with generally recognized industry standards for similar services. PPI shall not be liable for a breach of the foregoing warranty unless Client gives written notice of the defective Services, reasonably described, to PPI within 30 days of the time when Client discovers or ought to have discovered that the Services were defective. Upon receiving written notice, PPI shall,in its sole discretion, either (i) repair or re-perform such Services (or the defective part) or (ii) credit or refund the price of such Services at the pro rata contract rate. The parties agree that the foregoing is Client’s sole remedy and PPI’s entire liability for breach of the warranty provided herein. PPI has no liability arising from Client’s failure to meet its obligations and responsibilities hereunder.

(b) By entering into these Terms, Client acknowledges and understands that the Services provided by PPI may be of a subjective nature, and, while PPI may provide Client with opinions and suggestions on candidates, qualifications, and other matters relating to the Services, such opinions and suggestions constitute PPI’s opinions only and are limited as such and by PPI’s knowledge of the facts at the time of expression, and are subject to any unknown or uncertain factors or conditions beyond PPI’s control. Client acknowledges and agrees that PPI makes no representations, guarantees, warranties, or predictions with regard to any candidate or the outcome of the Services, and nothing in these Terms shall be construed as such a promise or guarantee.

(c) EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION (a), THE SERVICES AND THE PROWESS IP ARE PROVIDED “AS IS” AND PPI HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. PPI SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NONINFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION (a), PPI MAKES NO WARRANTY OF ANY KIND THAT THE SERVICE OR THE PROWESS IP, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CLIENT’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE.

9. Limitation of Liability. IN NO EVENT WILL PPI BE LIABLE UNDER OR IN CONNECTION WITH THESE TERMS UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (a) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (b) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (c) LOSS OF GOODWILL OR REPUTATION; (d) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY, OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (e) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER PPI WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. IN NO EVENT WILL PPI’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THESE TERMS UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE EXCEED THE TOTAL AMOUNTS PAID TO PPI UNDER THESE TERMS IN THE THREE-MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.

10. Term and Termination.

(a) Term. The initial term of these Terms begins on the Effective Date and will continue in effect on a month-pursuant to-month basis the terms of the applicable Membership Level until terminated as provided hereunder (the “Term”).

(b) Termination. For the “Fractional” Membership Level, unless earlier terminated by either party upon written notice to the other, these Terms and the Services shall automatically terminate when the agreed upon Services have been performed (i.e., the provision of the agreed upon number of candidates). For all other Membership Levels, these Terms and the Services shall terminate upon written notice by either party to the other party, and such termination (other than a Service Suspension as described in Section 1(e)) shall be effective at the end of the applicable billing period.

(c) Effect of Termination. Upon expiration or earlier termination of these Terms, Client shall immediately discontinue use of the Prowess IP and, upon written request by PPI, delete, destroy, or return all copies of the Prowess IP and certify in writing to the PPI that the Prowess IP has been deleted or destroyed. No expiration or termination will affect Client’s obligation to pay all Fees that may have become due before such expiration or termination or entitle Client to any refund.

(d) Survival. This Section 10(d) and Section 4- 9 and 11 survive any termination or expiration of these Terms. No other provisions of these Terms survive the expiration or earlier termination hereof.

11. Miscellaneous.

(a) Authority; Enforceability. Each party represents and warrants to the other party that it is duly organized, validly existing and in good standing as a corporation or other entity as represented herein under the laws and regulations of its jurisdiction of incorporation, organization or chartering; it has the full right, power and authority to enter into these Terms, to grant the rights and licenses granted hereunder and to perform its obligations hereunder; the execution of these Terms by its representative whose signature is set forth at the end hereof has been duly authorized by all necessary corporate action of the party; and when executed and delivered by such party, these Terms will constitute the legal, valid and binding obligation of such party, enforceable against such party in accordance with its terms.

(b) Notices. All notices, requests, consents, claims, demands, invoices, waivers and other communications hereunder (each, a “Notice”) shall be in writing. Notices to PPI shall be addressed to the address set forth on the first page of these Terms or to such other address that may be designated by PPI in writing to Client, and must be delivered either in person, by certified or registered mail, return receipt requested and postage prepaid, or by recognized overnight courier service, and are deemed given upon receipt by us. Notwithstanding the foregoing, Client hereby consents to receiving electronic communications from PPI. These electronic communications may include Notices about applicable fees and charges, transactional information, and other information concerning or related to these Terms or the Prowess Portal. Client agrees that any Notices or other communications that PPI sends to you electronically to any email address provided by Client will satisfy any legal communication requirements, including that such communications be in writing. Except as otherwise provided in these Terms, a Notice is effective only (a) upon receipt of the receiving party, and (b) if the party giving the Notice has complied with the requirements of this Section.

(c) Choice of Law; Dispute Resolution.

(i) All matters arising out of or relating to these Terms are governed by and construed in accordance with the internal laws of the State of Texas without giving effect to any choice or conflict of law provision or rule (whether of the State of Texas or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of Texas.

(ii) Any dispute, controversy, legal action or proceeding arising out of or relating to these Terms (a “Dispute”) shall be settled by arbitration to be held in Austin, Texas in accordance with the Commercial Arbitration Rules then in effect of the American Arbitration Association. The arbitrator may grant injunctions or other relief in such Dispute. The decision of the arbitrator shall be final, conclusive, and binding on the parties to the arbitration. Judgment may be entered on the arbitrator’s decision in any court having jurisdiction.

(iii) Notwithstanding the foregoing, each party agrees that, prior to taking any formal legal action against the other party with respect to a Dispute, it shall send written notice to the other party of the Dispute and the parties shall first attempt in good faith to resolve the Dispute by negotiation and consultation between themselves, including without limitation not fewer than three negotiation sessions involving a representative from each party with the authority to resolve the Dispute and a period of not less than 45 days. If, following such efforts the parties cannot resolve the Dispute, either party may then initiate arbitration. Notwithstanding the foregoing, nothing in this Section shall prevent each party’s right to seek injunctive relief in the event of the other party’s violation of Sections 1(b), 5, or 6.

(iv) Each party irrevocably and unconditionally waives any right it may have to a trial by jury in respect of any legal action arising out of or relating to these Terms or the transactions contemplated hereby. The prevailing party in any Dispute shall be entitled to recover his, her or its reasonable attorney’s fees and reasonable out-of-pocket expenses incurred in the prosecution or defense of claims in such dispute.

(v) Further, each party acknowledges and agrees that a breach or threatened breach by such party of any of its obligations under Section 5 or, in the case of Client also Sections 1(b) or 6, would cause the other party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other party will be entitled to equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.

(d) Force Majeure. In no event shall PPI be liable to Client, or be deemed to have breached these Terms, for any failure or delay in performing its obligations under these Terms, if and to the extent such failure or delay is caused by any circumstances beyond PPI’s reasonable control, including but not limited to a lack of employment candidate, government order, law, or actions, telecommunication or internet breakdowns, power outages or shortage, or national or regional emergency.

(e) Assignability. These Terms are for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person any legal or equitable right, benefit, or remedy of any nature whatsoever, under or by reason of these Terms. Client shall not assign any of its rights or delegate any of its obligations under these Terms without the prior written consent of PPI.

(f) Severability. If any term or provision of these Terms is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of these Terms or invalidate or render unenforceable such term or provision in any other jurisdiction.

(g) Independent Contractors. The relationship between the parties is that of independent contractors. Nothing contained in these Terms shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.

(h) Export Regulation. Client shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), that prohibit or restrict the export or re-export of the Services or any Client Data outside the United States.

(i) Entire Agreement. These Terms (including any provisions expressly incorporated by reference herein) constitute the entire terms of the agreement between PPI and Client, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. These Terms can be modified only by a written agreement signed both by Client and PPI.

(j) Counterparts; Electronic Agreement. These Terms may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement. Each party agrees that the electronic signatures, whether digital or encrypted, of the parties to these Terms are intended to authenticate this writing and to have the same force and effect as manual signatures