These Terms of Service govern your use of all Luxton Ace, Inc. (Luxton) software and/or services (the “Services”). By mutually executing an Order Form with Luxton that references these Terms of Service or by using the Luxton website, You agree to these Terms of Service and the applicable Order Form (together with the DPA, if applicable, the “Agreement”). You represent that you are entering into this Agreement on behalf of the entity identified on the Order Form (“you” or “Customer”) and that you have authority to bind the Customer to this Agreement.
Luxton reserves the right to periodically modify these Terms of Service upon written notice to Customer, and such modification will automatically become effective thirty (30) days after such modification. If you do not agree with a modification to these Terms of Service, you must notify Lever within thirty (30) days after receiving notice of such modification. If you provide such written notice, Your Agreement will continue to be governed by the version of the Terms of Service made prior to the such modification for the remainder of the then-current Term. Upon any renewal of this Agreement pursuant to Section 9 below, the then-current Terms of Service published on the Lever website at www.lxtonace.com/terms will automatically be incorporated into this Agreement as of such date.
1. Access Grant.
(a) Provision of Access. Subject to all the terms and conditions of this Agreement, Lever will provide Customer with access to the Services described in the applicable Order Form during the Term, through the Internet, solely for Customer’s internal use. This Agreement and the access provided hereunder are non-transferable, except as expressly provided herein. Lever retains all rights not expressly granted to the Customer pursuant to this Agreement.
(b) Customer Use of the Services. Customer will not, and will not permit any third party to: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of the Services or any software, documentation or data related to the Services (provided that reverse engineering is prohibited only to the extent such prohibition is not contrary to applicable law); modify, translate, or create derivative works based on the Services or Software; use the Services or Software for timesharing or service bureau purposes or for any purpose other than its own benefit; rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Services or Documentation to any third party; remove any proprietary notices from the Services or Documentation; use the Services or Documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person; or use the Services or Software other than in accordance with this Agreement and in compliance with all applicable laws and regulations, including but not limited to any European privacy, intellectual property, consumer and child protection, obscenity or defamation laws. Customer will cooperate with Lever in connection with the performance of this Agreement by making available such personnel and information as may be reasonably required, and taking such other actions as Lever may reasonably request. Customer will also cooperate with Lever in establishing a password or other procedures for verifying that only designated employees of Customer have access to any administrative functions of the Services. Customer will designate an employee who will be responsible for all matters relating to this Agreement (“Primary Contact”). Customer may change the individual designated as Primary Contact at any time by providing written notice to Lever.
(c) Modification of Services. Lever may update the Services from time to time, in its sole and absolute discretion. If Lever changes the Services in a manner that materially reduces the aggregate functionality of the Service, Lever will make commercially reasonable efforts to inform Customer thirty (30) days ahead of the effective date of such changes, and Customer will have the right to terminate this Agreement upon thirty (30) days’ written notice to Lever (provided that Lever receives such notice within thirty (30) days of such reduction in functionality). In the event that Customer terminates this Agreement pursuant to this Section 1(c), Lever will provide Customer with a prorated refund of any pre-paid Fees with respect to the then-remaining Term as of the effective date of such termination.
(d) Future Functionality. Customer agrees that Customer’s subscription to the Service and acceptance of this Agreement are not contingent on the delivery of any future functionality or features.
2. Lever Responsibilities.
(a) Service Levels. Subject to the terms and conditions of this Agreement, Lever shall use commercially reasonable efforts to make the Services available twenty-four (24) hours a day, seven days a week, except for: (i) planned downtime; and (ii) unavailability caused by circumstances beyond Lever’s control, including but not limited to acts of God, internet service provider failures or delays, and denial of service attacks.
(b) Information Security. Lever will use commercially reasonable technical and organizational measures that are reasonably designed to: maintain an industry-standard level of security, prevent unauthorized access to and/or disclosure of Customer Confidential Information. Those safeguards will include, but will not be limited to, measures reasonably designed to prevent access, use, modification or disclosure of electronic data and information submitted by or for Customer to the Service (collectively, “Customer Data”) by Lever personnel except (a) to provide the Services and prevent or address service or technical problems with the Services, (b) as required by applicable law in accordance with Section 6(v) below, or (c) as Customer may expressly permit in writing. To the extent Lever processes Customer Data subject to the EU General Data Protection Regulation (“GDPR”), the terms of the Lever GDPR Data Processing Agreement located at www.lever.co/Data-Processing-Agreement (“DPA”), which is hereby incorporated by reference, shall apply and the parties agree to comply with such terms.
3. Customer Responsibilities.
(a) General. Customer is responsible and liable for all uses of the Service resulting from access provided by Customer, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement. Without limiting the generality of the foregoing, Customer is responsible for all acts and omissions of employees and agents of Customer that are authorized to use the software (“Authorized Users”), and any act or omission by an Authorized User that would constitute a breach of this Agreement if performed by Customer. Customer shall make all Authorized Users aware of this Agreement’s provisions as applicable to such Authorized User’s use of the Services, and shall cause Authorized Users to comply with such provisions.
(b) Customer Content; Compliance with Laws. Customer represents, warrants and covenants that Customer and its employees will not produce content or otherwise use the Service in a manner that (i) infringes or violates the intellectual property rights or property rights, rights of publicity or privacy, or other rights of any third party; (ii) violates any law, statute, ordinance or regulation; (iii) is harmful, fraudulent, deceptive, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, or otherwise objectionable; or, (iv) contains a virus or other harmful computer file, or program. Further, Customer represents, warrants and covenants that Customer, in performance of its obligations and/or exercise of its rights pursuant to this Agreement, will comply with all applicable laws and regulations. Customer further acknowledges that Customer is responsible for all employee activity in connection with the Services and that fraudulent, abusive, or otherwise illegal activity may be grounds for termination of this Agreement.
4. Fees and Payment.
(a) Fees. Customer will pay Lever the applicable fees described in the Order Form (collectively, “Fees”) in accordance with the terms of this Agreement. If Customer believes that Lever has billed Customer incorrectly, Customer must contact Lever no later than thirty (30) days after the closing date on the first billing statement in which the error or problem appeared, to receive an adjustment or credit. Inquiries should be directed to email@example.com. Except as expressly set forth in this Agreement, all Fees are non-cancellable and non-refundable.
(b) Renewal Service Term Fees. In the event that Customer exceeds any Employee Limit identified in an applicable Order Form, a prorated increase in fees will automatically be assessed and applied to the invoice for the Renewal Service Term. Lever reserves the right to change the Renewal Service Term fees or applicable charges and to institute new charges and fees at the end of any Service Term, upon thirty (30) days prior notice to Customer. Without limiting the foregoing, any Renewal Term in which subscription volume for any Services has decreased from the prior term will result in re-pricing at renewal without regard to the prior Term’s per-unit pricing.
(c) Invoices. Unless otherwise specified in an Order Form, Lever will bill through an invoice and full payment for invoices issued must be received by Lever thirty (30) days after the electronic delivery date of the invoice.
(d) Credits. Any credits due to a Customer will be applied on the next invoice against amounts then due. If there are no future invoices expected, Lever will issue a payment to Customer for credits due.
(e) Taxes. Any amounts payable hereunder are exclusive of, and Customer shall be responsible for all taxes, including general sales tax, value added taxes, duties, use taxes, withholdings and other governmental assessments, excluding taxes based on the net income of Lever, unless Customer provides to Lever a valid tax-exempt certificate. In the case of any withholding requirements, Customer will pay any required withholding itself and will not reduce the amount paid to Lever on account thereof.
5. Intellectual Property.
(a) Lever IP. Except as expressly set forth in this Agreement, Lever will own and retain all right, title and interest in and to (a) the Services, including all software, improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed as part of any Professional Services (as set forth in an Order Form or Statement of Work mutually executed by both parties hereto that references this Agreement) or support, and (c) all intellectual property rights related to all of the foregoing. This Agreement does not grant Customer (i) any rights to the Intellectual Property Rights in the Services or (ii) any rights to use the Lever trademarks, logos, domain names, or other brand features. “Intellectual Property Rights” means current and future worldwide rights under patent, copyright, trade secret, trademark, moral rights, and other similar rights.
(b) Customer Data. Customer gives Lever permission to view data and take actions within Customer’s Lever account for the purpose of delivering the Services, including support, maintenance, and onboarding, as well as to make design choices relating to the technical administration of the Services, for example, how the Service backs up data to keep it safe. Customer may request Lever to perform actions within Customer’s Lever account, and in doing so hereby grants Lever the limited permission to view, create, and modify Lever data in Customer’s Lever account to fulfill the request, including but not limited to candidate records, reports, and account configurations. While not limited to the following, additional examples of the permissions encompassed in this section are: viewing or acting within an employee’s Lever account to reproduce an issue or bug, creating or uploading job postings in the onboarding process, merging sources or tags, exporting data to produce a custom report, etc. Customer may request Lever to perform actions within Customer’s Lever account, and in doing so hereby grants Lever the limited permission to view, create, and modify Customer Data in Customer’s Lever account to fulfill the request, including but not limited to candidate records, reports, and account configurations. While not limited to the following, additional examples of the permissions encompassed in this section are: viewing or acting within an employee’s Lever account to reproduce an issue or bug, creating or uploading job postings in the onboarding process, merging sources or tags, exporting data to produce a custom report, etc. CUSTOMER RETAINS ALL RIGHTS, TITLE AND INTEREST IN ITS CUSTOMER DATA, AND THIS AGREEMENT DOES NOT GRANT LEVER ANY RIGHTS TO CUSTOMER DATA OR THE INTELLECTUAL PROPERTY RIGHTS EMBODIED IN CUSTOMER DATA EXCEPT FOR THE LIMITED RIGHTS EXPRESSLY SET FORTH IN THIS AGREEMENT.
(c) Blind Data. Notwithstanding anything to the contrary, Lever will be free (during and after the term hereof) to, without any obligation to Customer to collect, develop, create, extract, compile, synthesize, analyze and commercialize statistics, benchmarks, measures and other information based on “Anonymized Data” (collectively “Blind Data”). “Anonymized Data” means Customer Data that is: (i) anonymized by removing any personal or other information so the data is in no way attributable to Customer, any of Customer’s employees, or any other individual or entity, and (ii) presented in a way which does not reveal Customer’s identity.
(d) Feedback. Notwithstanding anything to the contrary, if Customer or any of its employees or contractors provide Lever with any ideas, suggestion(s), enhancement requests, feedback and/or recommendation(s) regarding the Services, including without limitation, new and/or improved features or functionality relating thereto (”Feedback”), Lever is free to use and disclose such Feedback without any obligation to Customer or such employees or contractors.
6. Confidential Information. Each party agrees that all code, inventions, know-how, business, technical and financial information it obtains (“Receiving Party”) from the disclosing party (“Disclosing Party”) constitute the confidential property of the Disclosing Party (“Confidential Information”), provided that it is identified in writing as confidential at the time of disclosure, is identified as confidential in writing within thirty (30) days of the disclosure, or is of a nature that a reasonable person with knowledge of the Disclosing Party’s business would understand to be confidential. Except as provided herein (including, without limitation, as required for Lever to provide the Services), the Receiving Party will hold in confidence and not use or disclose any Confidential Information of the Disclosing Party. The Receiving Party’s non-use and non-disclosure obligations hereunder will not apply to information which the Receiving Party can document: (i) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (ii) is or becomes publicly available through no fault of the Receiving Party; (iii) is rightfully obtained by the Receiving Party without restriction on use and/or disclosure from a third party; (iv) is independently developed by or for employees of the Receiving Party without use of or reference to any Confidential Information of Disclosing Party; or (v) is required to be disclosed pursuant to a regulation, law or court order (but only to the minimum extent required to comply with such regulation or order and with advance notice to the Disclosing Party).
(a) Lever represents and warrants that (i) it has sufficient right, title and interest in the Services in order to provide the Services pursuant to the terms and conditions of this Agreement, and (ii) its execution and performance of this Agreement will not violate or conflict with any obligation it has to any third party.
(b) THE FOREGOING WARRANTY DOES NOT APPLY TO, AND LEVER STRICTLY DISCLAIMS ALL WARRANTIES WITH RESPECT TO, THIRD PARTY SERVICES.
(c) EXCEPT AS EXPRESSLY SET FORTH IN THE AGREEMENT, THE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE” AND LEVER HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. LEVER NOR ITS LICENSORS SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. CUSTOMER ACKNOWLEDGES THAT LEVER DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE.
Please contact us at 18 Montrose Drive, Nassau, Bahamas with any questions regarding these Terms.