Customer Platform Services Agreement. Effective: Jan 1, 2026. Last Updated: Jul 30, 2026.
Welcome to FactoryFix. These Terms of Service (this "Agreement") govern access to and use of the websites, platform, and online services of FactoryFix, Inc. ("FactoryFix," "we," "us," or "our") by the entity on whose behalf this Agreement is accepted ("Customer"). This Agreement is a binding contract between FactoryFix and Customer. Customer accepts this Agreement by executing an Order Form that references it, by clicking to accept it, or by accessing or using the Platform Services, whichever occurs first. The person accepting on Customer’s behalf represents that they have authority to bind Customer. FactoryFix and Customer may be referred to collectively as the "Parties" or individually as a "Party."
If Customer and FactoryFix have executed a separate written agreement covering the Platform Services, that agreement governs to the extent it conflicts with this Agreement.
1.1 "Authorized User" means Customer’s employees, consultants, contractors, and agents (i) who Customer authorizes to access and use the Platform Services under the rights granted to Customer under this Agreement and (ii) for whom access to the Platform Services has been provisioned under this Agreement.
1.2 "Candidate" means an individual job seeker or worker whose information is made available to Customer through the Platform Services, whether the individual applied to a Customer job, was matched or sourced from the Network, or was otherwise presented to Customer.
1.3 "Candidate Data" means information about a Candidate made available to Customer through the Platform Services, including applications, resumes, contact information, screening responses and summaries, assessments, and related records.
1.4 "Customer Data" means information, data, and other content, in any form or medium, that is submitted, posted, or otherwise transmitted by or on behalf of Customer or an Authorized User through the Platform Services, including Job Content and Customer Feedback. Customer Data does not include the Network, Candidate profiles maintained by FactoryFix, or Aggregated Data.
1.5 "Customer Feedback" means information Customer provides about a Candidate, including interview feedback, hiring status, dispositions, fit assessments, and engagement history.
1.6 "Documentation" means FactoryFix’s end-user documentation relating to the Platform Services.
1.7 "FactoryFix IP" means the Platform Services, the Documentation, the Network, Aggregated Data, FactoryFix’s software, models, algorithms, scoring and matching systems, Recruiting Brands, and any other intellectual property provided to Customer or any Authorized User, and all improvements and derivatives of any of the foregoing.
1.8 "Harmful Code" means any software, hardware, or other technology, device, or means, including any virus, worm, malware, or other malicious computer code, the purpose or effect of which is to permit unauthorized access to, or to destroy, disrupt, disable, distort, or otherwise harm or impede any system or data in any manner.
1.9 "Job Content" means job postings, job descriptions, requirements, compensation information, employer or end-client information, and related materials provided by or on behalf of Customer.
1.10 "Network" means FactoryFix’s proprietary talent network and database of candidate profiles, including profile, contact, skills, and engagement information, however sourced, and all related data and systems.
1.11 "Order Form" means an order form, online checkout, or similar ordering document entered into by the Parties that incorporates this Agreement by reference.
1.12 "Platform Services" means FactoryFix’s recruiting platform and related services, including job distribution and advertising, AI-assisted sourcing, screening, and matching, Candidate delivery, talent pool search, integrations, analytics, and any related features identified in an Order Form.
1.13 "Recruiting Brands" means recruiting brands and candidate-facing sites and channels operated by FactoryFix under names other than FactoryFix, as they may change from time to time.
1.14 "Third-Party Channels" means third-party job boards, advertising platforms, search engines, and distribution partners through which jobs may be advertised or applications received.
1.15 "Third-Party Products" means any third-party products provided with, integrated with, or incorporated into the Platform Services, including applicant tracking systems.
2.1 Access
Subject to this Agreement and payment of applicable Fees, FactoryFix grants Customer a limited, non-exclusive, non-transferable, non-sublicensable right during the Term to access and use the Platform Services for Customer’s internal recruiting and staffing business, in accordance with this Agreement, the Documentation, and the applicable Order Form.
2.2 Responsibility for Users
Customer is responsible for the acts and omissions of all persons using its access to the Platform Services, including Authorized Users, as if they were Customer’s own acts and omissions, and for maintaining the confidentiality and security of access credentials.
2.3 Use Restrictions
Customer shall not at any time, directly or indirectly, and shall not permit any Authorized User or third party to:
2.4 Aggregated Data
Notwithstanding anything to the contrary in this Agreement, FactoryFix may monitor use of the Platform Services and collect and compile data and information related to or derived from Customer Data, Customer Feedback, or use of the Platform Services in an aggregated and anonymized manner that does not identify Customer or any individual ("Aggregated Data"). FactoryFix may use Aggregated Data for any lawful business purpose, including to operate, maintain, evaluate, develop, and improve the Platform Services and the Network, to develop and improve matching and screening models, to produce benchmarks and market intelligence, and to make Aggregated Data available to third parties, in each case in compliance with applicable law.
2.5 Talent Search Access and Usage Limits
FactoryFix may establish, modify, and enforce reasonable limits on Customer’s access to and use of talent search, Candidate profile viewing, contact-information unlocking, exports, and other Network features, including daily, monthly, account-level, Authorized User-level, job-level, or other usage limits. FactoryFix may apply such limits to prevent scraping, bulk extraction, misuse of Candidate Data, degradation of the Platform Services, or other activity that creates legal, privacy, security, operational, or commercial risk to FactoryFix, Candidates, or the Network.
Customer will not attempt to circumvent any such limits, including through multiple accounts, Authorized Users, automated tools, scripts, or other means. FactoryFix may monitor usage and may suspend, restrict, or modify access where FactoryFix reasonably believes Customer has exceeded or attempted to evade applicable limits. Usage limits do not change the restrictions on Candidate Data set forth elsewhere in this Agreement.
3.1 Appointment
Customer appoints FactoryFix, including its Recruiting Brands, as Customer’s authorized, non-exclusive recruiting and advertising agent for the jobs Customer activates in the Platform Services, and authorizes FactoryFix to create, publish, edit, sponsor, promote, distribute, and remove advertisements for those jobs on and through the Sites, the Recruiting Brands, and Third-Party Channels, under FactoryFix’s, a Recruiting Brand’s, or Customer’s name, as FactoryFix reasonably determines. This authorization is a written authorization for purposes of any Third-Party Channel requirement that job advertising by an agent be expressly authorized by the employer.
3.2 Designated Hiring System
Customer designates FactoryFix as Customer’s authorized applicant-receiving hiring system for jobs activated in the Platform Services. Customer directs FactoryFix to receive applications and candidate information for those jobs on Customer’s behalf, to process them as described in this Agreement, and to deliver them to Customer through the Platform Services and any integrated applicant tracking system.
3.3 Channel Discretion
FactoryFix determines in its reasonable discretion the channels, brands, formats, timing, and budgets used to advertise and distribute jobs, and may add, remove, or substitute channels and Recruiting Brands at any time. Third-Party Channels are not controlled by FactoryFix, and their availability, policies, pricing, and treatment of postings may change at any time. FactoryFix does not guarantee that any job will appear, remain, or achieve any level of visibility on any particular channel, and changes to or loss of any channel is not a breach of this Agreement, provided FactoryFix continues to use commercially reasonable efforts to distribute Customer’s jobs through available channels.
3.4 Job Content Representations
Customer represents and warrants that all Job Content and each job activated in the Platform Services: (i) relates to a genuine, currently open position for which Customer (or its end client) has present authority and intent to hire, or another lawful hiring purpose Customer has disclosed to FactoryFix in writing; (ii) is accurate and not misleading, including as to duties, location, employer identity, and compensation; (iii) includes all information required by applicable law where the job is advertised, including pay ranges where required; (iv) is lawful and non-discriminatory; and (v) does not infringe or misappropriate any third-party rights. Customer will promptly deactivate jobs that are filled, closed, or no longer authorized.
3.5 Staffing and Agency Customers
If Customer is a staffing, recruiting, or similar firm advertising jobs for its clients, Customer represents and warrants that it has all authorizations required from each end client to advertise the job, to engage FactoryFix and its Recruiting Brands to advertise and recruit for the job, and to receive and share candidate information for the job, and Customer will provide evidence of such authorization on FactoryFix’s reasonable request. As between the Parties, Customer is solely responsible to its end clients.
3.6 Removal and Refusal
FactoryFix may decline, pause, edit for compliance, or remove any Job Content or job advertisement that FactoryFix reasonably believes violates this Agreement, applicable law, or the policies of any Third-Party Channel, or that creates risk to FactoryFix, Candidates, or the Platform Services. Where practicable, FactoryFix will notify Customer and give Customer an opportunity to correct the issue.
4.1 The Network
The Network is owned and operated by FactoryFix, independent of any Customer. Candidates presented to Customer may also be, or may become, members of the Network with their own direct relationship with FactoryFix governed by FactoryFix’s candidate-facing privacy policy. Making a Candidate available to Customer does not transfer to Customer any ownership of, or exclusivity over, the Candidate, the Candidate’s Network profile, or the Network. Nothing in this Agreement limits FactoryFix’s right to operate the Network, including presenting any Candidate to other customers, subject to applicable law and FactoryFix’s privacy commitments to Candidates.
4.2 Customer’s License to Candidate Data
FactoryFix grants Customer a limited, non-exclusive, non-transferable license to use Candidate Data solely for Customer’s internal recruiting, hiring, and placement purposes in connection with the specific roles and hiring needs for which the Candidate Data was made available, including, for staffing customers, presenting a Candidate to the end client for whose role the Candidate was delivered. Customer may retain Candidate Data received through the Platform Services in its own applicant tracking or similar internal systems, and Customer is responsible for its retained copies as described in Section 4.4.
4.3 Candidate Data Restrictions
Except as expressly permitted in Section 4.2, Customer shall not sell, license, publish, or otherwise commercialize Candidate Data; provide Candidate Data to data brokers, lead generators, or marketing services; use Candidate Data to build or enrich any commercial database or data product; or use Candidate Data for any purpose unrelated to the recruiting and hiring purposes for which it was provided.
4.4 Customer’s Copies and Compliance
Once Candidate Data is delivered to Customer or synced to Customer’s systems, Customer is independently responsible for that copy, including its security, retention, and use, and for compliance with all laws applicable to Customer’s handling of it, including privacy, anti-discrimination, and recordkeeping laws. If Customer communicates with Candidates outside the Platform Services, Customer is solely responsible for those communications, including compliance with telephone, text messaging, and email laws and honoring opt-outs.
4.5 Customer Feedback and Dispositions
Customer grants FactoryFix the right to use Customer Feedback and disposition information to provide the Platform Services, to maintain and improve the Network and FactoryFix’s matching, screening, and quality systems, and to comply with Third-Party Channel reporting requirements, in each case in a manner that does not disclose Customer’s identifiable Customer Feedback about a Candidate to another customer. Customer will provide timely and accurate disposition information where reasonably requested, and represents that its Customer Feedback is accurate to its knowledge and provided for legitimate recruiting purposes.
4.6 No Verification; Customer Vetting
FactoryFix provides recruiting software and candidate supply, not background checks or credential verification. FactoryFix does not verify and does not guarantee any Candidate’s identity, qualifications, credentials, licenses, work authorization, background, or conduct, and FactoryFix is not responsible for any act or omission of any Candidate. Customer is solely responsible for its own final vetting of Candidates before any offer, engagement, or placement, including interviews, reference checks, credential and license verification, work authorization verification, and any background checks, each conducted in compliance with applicable law, including the Fair Credit Reporting Act where applicable.
4.7 Not a Consumer Reporting Agency
FactoryFix is not a consumer reporting agency, and the Platform Services, including screening summaries and assessments, are not consumer reports. Customer shall not use Candidate Data or any FactoryFix output as a substitute for a background check or other consumer report, or as the basis for any purpose regulated by the Fair Credit Reporting Act.
4.8 No Employment Relationship
FactoryFix is not the employer, joint employer, or employment agency of record for any Candidate hired or engaged by Customer or its end clients, and is not a party to any employment or engagement relationship formed between Customer (or its end clients) and any Candidate. Customer is solely responsible for all terms, conditions, and legal obligations of any such relationship, including compensation, benefits, withholding, classification, and workplace compliance.
5.1 AI-Assisted Tools
The Platform Services use artificial intelligence, machine learning, and automation, including to source, screen, score, rank, summarize, and communicate with Candidates. These tools assist and organize recruiting work; they are probabilistic, may produce imperfect outputs, and do not automatically reject Candidates from consideration.
5.2 Customer Decisions and Employer Obligations
Customer (or its end client) makes all interview, hiring, compensation, and other employment decisions and is solely responsible for them. Customer is solely responsible for its own compliance with employment and anti-discrimination laws applicable to its use of the Platform Services and its hiring processes, including any laws requiring employer notices, consents, bias audits, or assessments relating to automated or AI-assisted hiring tools in the jurisdictions where Customer hires. At Customer’s reasonable request and expense, FactoryFix will provide reasonable cooperation and available information about the operation of the relevant Platform Services features to support Customer’s compliance.
5.3 Human Oversight
Customer will maintain appropriate human review of hiring processes that use Platform Services outputs and will not represent to any person that FactoryFix makes employment decisions on Customer’s behalf.
5.4 Customer-Directed Candidate Communications
Customer is responsible for the content, accuracy, lawfulness, targeting, frequency, and timing of any Candidate communication initiated by or at Customer’s direction through the Platform Services, including communications generated from Customer-provided Job Content, instructions, templates, settings, or other inputs. Customer will not use the Platform Services to send misleading, unlawful, harassing, discriminatory, or excessive communications.
FactoryFix may administer Candidate opt-outs and communication preferences within the Network and may monitor, limit, modify, pause, or stop any communication or Customer access that FactoryFix reasonably believes creates legal, privacy, security, candidate-experience, or Platform risk. FactoryFix’s administration of opt-outs and platform safeguards does not shift responsibility for Customer-directed communications to FactoryFix, except to the extent applicable law provides otherwise.
6.1 Customer Control and Responsibility
Customer has and will retain sole responsibility for: (i) all Customer Data, including its content, accuracy, and use; (ii) all information, instructions, and materials provided by or on behalf of Customer or any Authorized User in connection with the Platform Services; (iii) Customer’s information technology infrastructure and systems ("Customer Systems"); (iv) the security and use of access credentials of Customer and its Authorized Users; and (v) all access to and use of the Platform Services directly or indirectly by or through Customer Systems or such credentials.
6.2 Accurate Information
Customer will provide and maintain accurate, current company, contact, and billing information, and will not misrepresent its identity, its end clients, or the nature of its business to FactoryFix, Candidates, or any Third-Party Channel.
6.3 Candidate Experience
Customer will act in good faith toward Candidates presented through the Platform Services, including reviewing delivered Candidates promptly and not using the Platform Services to collect applications for roles that are not genuine.
FactoryFix may make Third-Party Products available or allow them to be integrated with the Platform Services, including applicant tracking system integrations that transmit data in both directions. Third-Party Products are governed by their own terms, and Customer’s use of them is at Customer’s option and risk. By enabling an integration, Customer represents that it has all rights and authority to authorize the data flows involved, authorizes FactoryFix to access, transmit, and store the relevant data (including storing log-in credentials where applicable), and acknowledges that FactoryFix is not responsible for Third-Party Products or changes to their availability or behavior. Third-Party Channels are third parties, and Section 3.3 governs their availability.
8.1 Fees
Customer shall pay FactoryFix the fees identified in the applicable Order Form ("Fees"), including subscription fees and any per-unit fees such as additional job slots. Unless the Order Form states otherwise, Fees are due as invoiced or charged under the payment method and interval specified in the Order Form, without setoff. Except as expressly set forth in this Agreement, Fees are non-refundable, and committed subscription Fees for the Term are payable in full notwithstanding monthly billing intervals.
8.2 Late Payment
Overdue amounts accrue interest at 1.5% per month or the maximum rate permitted by law, whichever is less, and Customer is responsible for FactoryFix’s reasonable costs of collection, including attorneys’ fees. FactoryFix may suspend the Platform Services for amounts more than 15 days overdue after notice, and suspension does not relieve Customer’s payment obligations.
8.3 Fee Disputes
Customer must notify FactoryFix in writing of any good-faith fee dispute within 30 days of the invoice or charge date, with reasonable detail, and must pay all undisputed amounts when due. Disputes not raised within that period are waived.
8.4 Taxes
All Fees are exclusive of taxes and similar assessments. Customer is responsible for all sales, use, and excise taxes and similar charges imposed on amounts payable by Customer, other than taxes on FactoryFix’s income. If FactoryFix is required to pay any such amounts, FactoryFix may invoice Customer and Customer will pay them.
9.1 Term and Renewal
This Agreement begins on the start date of the first Order Form and continues while any Order Form is in effect (the "Term"). Unless the Order Form specifies non-renewal, each subscription automatically renews for successive periods equal to the then-current subscription period at the then-current fees, unless either Party gives written notice of non-renewal at least 30 days before the end of the then-current period. Customer may give notice of non-renewal by email to Support@FactoryFix.com. If an applicable automatic-renewal law requires additional notice or cancellation mechanics for a particular renewal, this Section is deemed modified to the minimum extent necessary to comply, and the renewal otherwise remains effective.
9.2 Termination for Cause
Either Party may terminate this Agreement or the affected Order Form if the other Party materially breaches this Agreement and fails to cure within 30 days after written notice. FactoryFix may terminate immediately on notice if Customer breaches Sections 2.3, 3.4, 3.5, 4.3, or 4.7, fails to pay amounts more than 30 days overdue, or becomes subject to insolvency proceedings.
9.3 Effect of Termination
Upon expiration or termination: Customer’s access rights end; Customer remains responsible for Fees committed for the then-current Term and unpaid amounts; and, for 30 days after termination, Customer may export Customer Data and Candidate Data received for its roles using available platform features or by written request. Thereafter FactoryFix may delete Customer Data in accordance with its policies, except as retained under standard backups or as required or permitted by law. Sections that by their nature should survive (including Sections 2.3, 2.4, 4, 5.2, 8, 9.3, and 10 through 15) survive termination.
9.4 Suspension
FactoryFix may suspend or restrict access to all or part of the Platform Services, without liability, if: (a) required by a judicial or governmental demand, subpoena, or law enforcement request; (b) FactoryFix reasonably believes Customer or an Authorized User has engaged in fraudulent, misleading, or unlawful activity in connection with the Platform Services, or has materially breached this Agreement; (c) continued provision would create a security risk, legal risk, or risk of harm to Candidates, other customers, or the Platform Services, or would cause FactoryFix to violate the requirements of a Third-Party Channel; or (d) amounts are overdue as described in Section 8.2. FactoryFix will use reasonable efforts to notify Customer and to limit the scope and duration of any suspension.
FactoryFix may offer trial subscriptions, promotional plans (such as premium-tier trials), or beta, preview, or early-access features. Trials and beta features are provided "as is," may be modified, limited, or discontinued at any time, and are excluded from any performance commitments. Unless the Order Form states otherwise, at the end of a trial the applicable features convert to the plan and fees stated in the Order Form or cease to be available.
"Confidential Information" means information disclosed by one Party to the other that is designated confidential or that reasonably should be understood to be confidential given its nature and the circumstances, including the terms of each Order Form, non-public product information, and business and technical information. Confidential Information does not include information that: (a) is or becomes public through no fault of the receiving Party; (b) was known to the receiving Party without restriction before disclosure; (c) is rightfully obtained from a third party without breach of any obligation; or (d) is independently developed without use of the disclosing Party’s Confidential Information.
The receiving Party will use the disclosing Party’s Confidential Information solely to exercise its rights and perform its obligations under this Agreement, will protect it with at least reasonable care, and will not disclose it except to employees, contractors, and agents who need to know it and are bound by obligations at least as protective ("Representatives"). Each Party is responsible for its Representatives. A Party may disclose Confidential Information to the extent required by law or legal process, with reasonable advance notice to the other Party where legally permitted.
12.1 FactoryFix IP
As between the Parties, FactoryFix owns all right, title, and interest in and to the FactoryFix IP, including the Network, Aggregated Data, and all models, scores, summaries, and other outputs generated by the Platform Services (excluding the underlying Customer Data). No rights are granted to Customer except as expressly stated in this Agreement. Third-party providers own their Third-Party Products.
12.2 Customer Data
As between the Parties, Customer owns all right, title, and interest in and to the Customer Data. Customer grants FactoryFix a non-exclusive, worldwide, royalty-free license to host, use, process, transmit, display, and modify Customer Data (i) to provide, secure, support, and improve the Platform Services, (ii) to advertise and distribute Customer’s jobs as authorized in Section 3, (iii) to create Aggregated Data, and (iv) as otherwise instructed by Customer or permitted by this Agreement. Customer may export Customer Data at any time through available platform features.
12.3 Feedback on the Services
If Customer provides suggestions, ideas, or other feedback about the Platform Services, FactoryFix may use it without restriction, attribution, or compensation.
13.1 Roles
For personal information that FactoryFix processes on Customer’s behalf in delivering Customer’s applicants and operating Customer’s account, FactoryFix acts as Customer’s service provider or processor, and will: use such information only to provide the Platform Services and as permitted by applicable law; not sell or share it as those terms are defined by applicable U.S. state privacy law; and provide reasonable assistance with verified consumer rights requests that Customer receives. The Parties will execute FactoryFix’s standard Data Processing Addendum on request, which is incorporated by reference once executed.
13.2 FactoryFix’s Independent Role
Customer acknowledges that FactoryFix independently operates the Network and the Recruiting Brands, maintains its own direct relationships with Candidates under FactoryFix’s candidate-facing privacy policy, and acts as an independent business (not Customer’s service provider) for those activities. Candidate consents, opt-outs, and privacy rights relating to the Network are administered by FactoryFix.
13.3 Security
FactoryFix maintains reasonable administrative, technical, and physical safeguards designed to protect Customer Data, and will notify Customer of a confirmed security breach affecting Customer Data as required by applicable law.
13.4 Customer’s Privacy Obligations
Customer will comply with all privacy and data protection laws applicable to Customer’s collection and use of personal information in connection with the Platform Services, including providing any notices required to its own personnel, applicants, and end clients, and will not instruct FactoryFix to process personal information in violation of law.
FactoryFix may identify Customer as a customer and use Customer’s name and logo in FactoryFix’s customer lists, website, and marketing materials, in a manner consistent with Customer’s brand guidelines if provided. Customer may opt out at any time by emailing Sales@FactoryFix.com, and FactoryFix will honor the request within a reasonable period.
15.1 Mutual Warranties
Each Party represents and warrants that it has the legal power to enter into this Agreement and that it will comply with applicable law in performing under it.
15.2 Disclaimer
EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, THE PLATFORM SERVICES, THE SITES, AND ALL RELATED MATERIALS ARE PROVIDED "AS IS" AND "AS AVAILABLE" WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. WITHOUT LIMITING THE FOREGOING, FACTORYFIX DOES NOT WARRANT THAT: (A) THE PLATFORM SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE; (B) ANY JOB WILL RECEIVE ANY PARTICULAR VISIBILITY, VOLUME OF APPLICANTS, OR DISTRIBUTION ON ANY PARTICULAR CHANNEL; (C) ANY NUMBER OR QUALITY OF CANDIDATES, RESPONSES, INTERVIEWS, PLACEMENTS, OR HIRES WILL RESULT FROM USE OF THE PLATFORM SERVICES; OR (D) ANY CANDIDATE INFORMATION OR AI-GENERATED OUTPUT WILL BE ACCURATE, COMPLETE, OR CURRENT. RESULTS VARY BY ROLE, MARKET, COMPENSATION, AND CUSTOMER PROCESS, AND STATEMENTS ABOUT TYPICAL OR HISTORICAL RESULTS ARE NOT COMMITMENTS.
16.1 By Customer
Customer will defend, indemnify, and hold harmless FactoryFix and its affiliates, officers, directors, employees, and agents from and against any third-party claim, action, or proceeding, and all resulting damages, penalties, costs, and expenses (including reasonable attorneys’ fees), arising out of or relating to: (i) Customer Data or Job Content, including claims that Job Content is inaccurate, unlawful, misleading, or advertised without authority; (ii) Customer’s (or its end clients’) employment or engagement decisions, hiring processes, and employer obligations, including discrimination, background check, classification, and wage claims; (iii) Customer’s communications with Candidates, including communications initiated by or at Customer’s direction through or outside the Platform Services; (iv) claims by Customer’s end clients; (v) Customer’s use of Candidate Data in violation of this Agreement or applicable law; or (vi) Customer’s breach of Sections 2.3, 3.4, 3.5, 4, or 13.4.
16.2 By FactoryFix
FactoryFix will defend Customer against any third-party claim that the Platform Services, as provided by FactoryFix and used as permitted under this Agreement, infringe a U.S. patent, copyright, or trademark, or misappropriate a trade secret, and will indemnify Customer for damages and reasonable attorneys’ fees finally awarded or agreed in settlement for such claim. This obligation does not apply to the extent a claim arises from Customer Data, Third-Party Products or Channels, combinations not provided by FactoryFix, or use in violation of this Agreement. If the Platform Services are enjoined or likely to be, FactoryFix may modify or replace them or, if neither is commercially practicable, terminate the affected Order Form and refund prepaid, unused Fees. This Section states FactoryFix’s entire liability and Customer’s exclusive remedy for infringement claims.
16.3 Procedure
The indemnified Party must give prompt written notice of the claim (except to the extent the delay does not prejudice the indemnifying Party), reasonable cooperation, and sole control of the defense and settlement to the indemnifying Party, provided any settlement that imposes non-monetary obligations on the indemnified Party requires its consent.
TO THE MAXIMUM EXTENT PERMITTED BY LAW: (A) NEITHER PARTY WILL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES, OR FOR LOST PROFITS, REVENUE, GOODWILL, OR DATA, ARISING OUT OF OR RELATING TO THIS AGREEMENT, UNDER ANY THEORY, EVEN IF ADVISED OF THE POSSIBILITY; AND (B) EACH PARTY’S TOTAL AGGREGATE LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT WILL NOT EXCEED THE FEES PAID OR PAYABLE BY CUSTOMER TO FACTORYFIX IN THE TWELVE (12) MONTHS PRECEDING THE FIRST EVENT GIVING RISE TO LIABILITY.
THE EXCLUSIONS AND CAP ABOVE DO NOT APPLY TO: CUSTOMER’S PAYMENT OBLIGATIONS; A PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 16; CUSTOMER’S BREACH OF SECTIONS 2.3 OR 4.3; OR A PARTY’S GROSS NEGLIGENCE, FRAUD, OR WILLFUL MISCONDUCT. FACTORYFIX HAS NO LIABILITY FOR THE ACTS OR OMISSIONS OF ANY CANDIDATE, ANY THIRD-PARTY CHANNEL, OR ANY THIRD-PARTY PRODUCT. NO CLAIM ARISING OUT OF THIS AGREEMENT MAY BE BROUGHT BY EITHER PARTY MORE THAN ONE (1) YEAR AFTER THE CLAIM ACCRUED, EXCEPT FOR PAYMENT CLAIMS AND EXCEPT WHERE THIS LIMITATION IS PROHIBITED BY LAW.
18.1 Governing Law
This Agreement is governed by the laws of the State of Delaware, without regard to conflicts of law principles, and the United Nations Convention on Contracts for the International Sale of Goods does not apply.
18.2 Arbitration
Except as stated in Section 18.3, any dispute arising out of or relating to this Agreement or the Platform Services will be resolved by final and binding arbitration administered by the American Arbitration Association under its Commercial Arbitration Rules, by a single arbitrator, seated in Wilmington, Delaware (with remote proceedings available). Judgment on the award may be entered in any court of competent jurisdiction. EACH PARTY WAIVES ANY RIGHT TO A JURY TRIAL AND AGREES THAT DISPUTES WILL BE RESOLVED ONLY ON AN INDIVIDUAL BASIS, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS, CONSOLIDATED, OR REPRESENTATIVE PROCEEDING.
18.3 Exceptions
Either Party may seek injunctive or other equitable relief in any court of competent jurisdiction to protect its intellectual property or Confidential Information, and FactoryFix may bring collection actions for unpaid Fees in any court of competent jurisdiction. For any matter not subject to arbitration, the Parties consent to the exclusive jurisdiction and venue of the state and federal courts located in Delaware.
FactoryFix may update this Agreement from time to time by posting the updated version with a new "Last Updated" date. Updates take effect for Customer at the start of Customer’s next renewal term, except that changes required by law, changes to Third-Party Channel requirements, and changes that do not materially reduce Customer’s rights may take effect on posting. For material changes, FactoryFix will provide notice by email or through the Platform Services. If a material change adversely affects Customer, Customer may elect not to renew. Continued use of the Platform Services after the effective date of an update constitutes acceptance of the updated Agreement.
20.1 Entire Agreement; Order of Precedence
This Agreement, together with the Order Forms, the Data Processing Addendum (if executed), and any documents incorporated by reference, is the entire agreement between the Parties regarding its subject matter and supersedes all prior and contemporaneous understandings. In the event of conflict, the order of precedence is: (i) a separately executed written agreement between the Parties, if any; (ii) the applicable Order Form; (iii) the Data Processing Addendum; (iv) this Agreement; and (v) any other incorporated documents. Customer purchase order terms have no effect.
20.2 Force Majeure
Neither Party is liable for failure or delay caused by circumstances beyond its reasonable control, including acts of God, natural disasters, war, terrorism, civil unrest, labor disturbances, internet or utility failures, actions of governmental authorities, or failures of Third-Party Channels, provided the affected Party uses reasonable efforts to mitigate. Payment obligations are not excused.
20.3 Severability; Waiver
If any provision is held invalid or unenforceable, it will be modified to the minimum extent necessary or severed, and the remainder will remain in effect. A waiver is effective only if in writing and does not waive any later breach.
20.4 Assignment
Customer may not assign this Agreement or any rights or obligations under it without FactoryFix’s prior written consent, not to be unreasonably withheld. FactoryFix may assign this Agreement to an affiliate or in connection with a merger, acquisition, reorganization, or sale of all or substantially all of its assets or business. Any assignment in violation of this Section is void. This Agreement binds and benefits the Parties and their permitted successors and assigns.
20.5 Relationship; No Third-Party Beneficiaries
The Parties are independent contractors. Nothing in this Agreement creates a partnership, joint venture, or employment relationship. There are no third-party beneficiaries of this Agreement, and no Candidate or end client has any rights under it.
20.6 Notices
FactoryFix may give notices to the email address associated with Customer’s account or through the Platform Services. Customer must give legal notices to FactoryFix, Inc., Attn: Legal, at FactoryFix’s then-current address published on its website, with a copy to Support@FactoryFix.com. Notices are deemed given when sent, if sent during business hours, and otherwise the next business day.
20.7 Export and Sanctions
Customer represents that it is not subject to U.S. sanctions or located in a sanctioned jurisdiction and will comply with applicable export control and sanctions laws in using the Platform Services.
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