Definitions
In addition to the capitalized terms defined elsewhere in this Agreement, the following capitalized terms shall have the meaning indicated:
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- “Affiliate” of a Person means any other Person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such Person. The term “control” (including the terms “controlled by” and “under common control with”) means the direct or indirect power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract or otherwise/ownership of more than fifty percent (50%) of the voting securities of a Person.
- “Applicable ATS Software” has the meaning of any applicant tracking system that Licensee has the rightful use of and that the Licensed Software will integrate with as identified in the Project Details Agreement.
- “Confidential Information” has the meaning set forth in Section
- “Contract Year” shall mean each consecutive twelve (12) month period of the Term, with the first Contract Year commencing on the Effective Date.
- “Critical Error” means a systemic Error that generally prevents use or access of the Licensed Software by Licensee or its authorized users.
- “Deliverables” means the items specified to be delivered by Punchkick to Licensee in connection with Punchkick’s performance of any Services.
- “Development Services” means any development, customization, compatibility or other services, if any, relating to the functionality of the user interface of Licensee’s instance of the ATS software other than the UI Branding, as set forth in in a separate written services agreement between the Parties.
- “Disclosing Party” has the meaning set forth in Section 8)a).
- “Documentation” means any and all manuals, instructions and other documents and materials that Punchkick provides or makes available to Licensee in any form or medium which describe the functionality, components, features or requirements of the Licensed Software, including any aspect of the installation, configuration, integration, operation, use, support or maintenance thereof.
- “Error” means a malfunction or other deficiency in the Licensed Software that prevents it from performing in accordance with the applicable performance specifications for that software. An Error is classified as a Critical Error, a Non-Critical Error, or a Minor Error.
- “Fees” has the meaning set forth in Section 5)a).
- “Indemnitee” has the meaning set forth in Section 13)c).
- “Indemnitor” has the meaning set forth in Section 13)c).
- “Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.
- “Law” means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree or other requirement or rule of any federal, state, local or foreign government or political subdivision thereof, or any arbitrator, court or tribunal of competent jurisdiction.
- “Licensed Software” means, as applicable, any or all of the following as provided by Punchkick to Licensee under this Agreement: (i) applicable ATS adjacent product identified in “Project Details” document; (ii) any Maintenance Releases; (iii) any Modules; and (iv) any Punchkick IP.
- “Licensee Materials” means the pre-existing trademarks, logos, copyrights, copy, artwork, and other branding elements, assets and Intellectual Property Rights of Licensee as may be necessary for Punchkick to implement the UI Branding or perform any Services.
- “Loss” means any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs or expenses of whatever kind, including reasonable attorneys’ fees and the costs of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers.
- “Maintenance Release” means any update, upgrade, release or other adaptation or modification of the Licensed Software the sole purpose of which is to correct Errors or maintain compatibility with then-supported versions of the applicable ATS Software, including any updated Documentation, that Punchkick may provide to Licensee from time to time during the Term.
- “Minor Error” means an Error that is only cosmetic in nature and does not affect the functionality of the Licensed Software.
- “Modules” means any optional plug-ins, add-ons, routines or scripts that are from time to time generally offered by Punchkick to implement additional functionality to the user interface of the applicable ATS Software, whether proprietary to Punchkick or constituting Third Party Materials. Certain Modules selected by Licensee may be identified in the Project Details Agreement entered into by the parites and incorporated herein by this reference. Each Module is subject to this Agreement and to the supplemental terms applicable to that Module in a separate written agreement between the Parties (each a “Module Agreement”).
- “New Version” means any new version of the Licensed Software (including, without limitation, enhancements, improvements, and changes to functionality, capabilities, performance, efficiency or quality) that Punchkick may from time to time introduce and market generally as a distinct licensed product (as may be indicated by Punchkick’s designation of a new version number), and which Punchkick may make available to Licensee at an additional cost under a separate written agreement.
- “Non-Critical Error” means an Error that has a reasonable work-around reasonably available to Licensee or its authorized users.
- “Open-Source Components” means any software component that is subject to any open-source copyright license agreement (each an “Open-Source License”), including any GNU General Public License or GNU Library or Lesser Public License, the MIT License, or other obligation, restriction or license agreement that substantially conforms to the Open Source Definition as prescribed by the Open Source Initiative or otherwise may require disclosure or licensing to any third party of any source code with which such software component is used or compiled.
- “Permitted Use” means use of the Licensed Software by Licensee within its duly-licensed instance of the Applicable ATS Software for the benefit of Licensee in the ordinary course of its internal business operations.
- “Person” means an individual, corporation, partnership, joint venture, limited liability entity, governmental authority, unincorporated organization, trust, association or other entity.
- “Punchkick IP” means any pre-existing Intellectual Property Rights of Punchkick, and any Intellectual Property Rights authored, invented or otherwise created by or on behalf of Punchkick or its personnel or contractors, separately or jointly, in the course of Punchkick’s performance under this Agreement, except only the Licensee Materials.
- “Receiving Party” has the meaning set forth in Section 8)a).
- “Representatives” means, with respect to a Party, that Party’s and its Affiliates’ employees, officers, directors, consultants,, agents, independent contractors, service providers and legal advisors.
- “Term” has the meaning set forth in Section 11)a).
- “Third-Party Materials” means materials and information, in any form or medium, that are not proprietary to Punchkick, including any third-party: (i) documents, data, content or specifications; (ii) Open-Source Components or other software (including Modules that are not proprietary to Punchkick), hardware or other products, facilities, equipment or devices; and (iii) accessories, components, parts or features of any of the foregoing.
- “Services” means the services performed by Punchkick pursuant to this Agreement in order to effectuate the UI Branding.
- “UI Branding” means the core functionality of the Licensed Product that implements aesthetic customization of the user interface of Licensee’s instance of the Applicable ATS Software to the specifications set forth in Project Details Agreement and incorporated herein by this reference.