Master Subscription Agreement
THIS AGREEMENT GOVERNS YOUR ACQUISITION AND USE OF OUR SERVICES. IF YOU REGISTER FOR A FREE TRIAL FOR OUR SERVICES, THIS AGREEMENT WILL ALSO GOVERN THAT FREE TRIAL.
BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY EXECUTING A SERVICE ORDER THAT REFERENCES THIS AGREEMENT, YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY THAT WILL BE RECEIVING AND USING OUR SERVICES, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS "YOU" OR "YOUR" OR “CUSTOMER” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.
This Agreement was last updated on August 1, 2014. It is effective between You and HackerRank as of the date of You accepting this Agreement (the “Effective Date”).
“Affiliate” shall mean (a) any persons or entities that, now or in the future, directly or indirectly, control, are controlled by, or are under common control with the subject entity, or (b) any persons or entities that are acquired, managed, or operated by either party, whether by membership, stock ownership, joint operating agreement, or other substantial relationship. “Control” means, with respect to a corporation, the direct or indirect control of more than fifty percent (50%) of the voting power to elect directors thereof, or any other entity, the power to direct the management or management policies of such entity.
“Agreement” means this Master Subscription Agreement together with any Service Order, Statement of Work, and any Exhibits or Appendices that are entered into between You and HackerRank.
“Candidate” means those individuals that You have provided access to HackerRank’s Services.
“Customer Data” means all data, reports, information or other materials uploaded or created by You or by Customer’s Users on or through the Services.
“Non-Personally Identifiable Data” shall mean Customer Data that is de-identified data, which means it does not include: (1) personally identifiable information; or (2) anonymized information capable of being re-identified.
“Services” means the products and services ordered by You under a free trial or a Service Order and made available to You by HackerRank including online services, tools and software for coding challenges used to recruit and screen software developers.
“Service Order” means an ordering document specifying the Services to be provided to You hereunder that is entered into between You and HackerRank, and includes a description of what is being ordered, product and service specifications, quantity, price, service levels, payment terms and order duration. Once signed by both Customer and HackerRank, each Service Order shall be incorporated by reference, and subject to the terms of this Agreement.
“User” or “Recruiter” means those individual(s) that are authorized by You to use the Services and to whom You have provided access to the Services having registered accounts with user identification name and password.
"We," "Us," "Our" or “HackerRank” means HackerRank, also doing business as Interviewstreet Incorporation, a Delaware corporation with a place of business at 700 E. El Camino Real, Suite 300 Mountain View, California 94041
"You," "Your," or “Customer” means the company or other legal entity for which you are accepting this Agreement, and Affiliates of that company or entity.
2. Scope of Agreement. This Agreement sets forth the terms and conditions for Customer’s use of the Services on a trial basis free of charge as described below (a “Free Trial”), and/or purchase of the Services subject to an applicable Service Order. From time to time, Customer may add new Service Orders, which, upon execution by the applicable parties, will be subject to the terms and conditions of this Agreement.
2.1 Free Trial. If You register on Our website for a free trial, HackerRank will make one or more Services available to You on a trial basis free of charge until the earlier of (a) the end of the Free Trial period for which you registered to use the applicable Service(s), or (b) the start date of any Service Order entered into between You and HackerRank for such Service(s). Additional Free Trial terms and conditions may appear on the Free Trial registration web page. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding.
ANY DATA YOU ENTER INTO THE SERVICES, AND ANY CUSTOMIZATIONS MADE TO THE SERVICES BY OR FOR YOU, DURING YOUR FREE TRIAL WILL BE PERMANENTLY LOST UNLESS YOU PURCHASE A SUBSCRIPTION TO THE SAME SERVICES AS THOSE COVERED BY THE FREE TRIAL, PURCHASE UPGRADED SERVICES, OR EXPORT SUCH DATA, BEFORE THE END OF THE FREE TRIAL PERIOD. YOU CANNOT TRANSFER DATA ENTERED OR CUSTOMIZATIONS MADE DURING THE FREE TRIAL TO A SERVICE THAT WOULD BE A DOWNGRADE FROM THAT COVERED BY THE FREE TRIAL; THEREFORE, IF YOU PURCHASE A SERVICE THAT WOULD BE A DOWNGRADE FROM THAT COVERED BY THE FREE TRIAL, YOU MUST EXPORT YOUR DATA BEFORE THE END OF THE FREE TRIAL PERIOD OR YOUR DATA MAY BE PERMANENTLY LOST.
NOTWITHSTANDING SECTION 8 (REPRESENTATIONS AND WARRANTIES), DURING THE FREE TRIAL THE SERVICES ARE PROVIDED “AS-IS” WITHOUT ANY WARRANTY.
2.2 Access. HackerRank shall provide Customer with access to the Services as identified in an applicable Service Order and according to the service levels indicated in Exhibit A - Service Level Agreement, which is attached hereto.
2.3 Named Users. Customer may designate Recruiter Users and/or Engineer Users in the number specified in an applicable Service Order to access and use the Services subject to the restrictions in the Agreement. Recruiter Users each receive the right to send the number of invitations specified in an applicable Service Order to Candidates to access the Services for the purposes of taking coding challenges to assess the Candidates’ software developer skills. Additional invitations may be purchased for an additional fee, and unused invitations expire upon expiration or termination of an applicable Service Order. Each invitation includes a unique link to a coding challenge landing page as well as embedded login credentials generated by the services, and is delivered via email to the Candidate. When a Candidate responds to an invitation and accesses a coding challenge landing page: (i) Candidates with a HackerRank Developer login will be asked if they would like to share their past HackerRank challenge scores with Customer; and (ii) Candidates without a HackerRank Developer login will be asked to create one. Any HackerRank Developer community information, including a Candidate’s HackerRank Developer account information and past challenge performance scores, shall not be considered Customer Data or Customer Content as defined in this Agreement, and belong solely to the Candidate. Recruiter Users and Engineer Users each receive the right to conduct real-time technical interviews and to view challenges being solved by the Candidates using the Services’ “CodePair” feature. Each Candidate’s coding challenge performance is evaluated and compared against an anonymous scoring pool and given a ranking. A performance report and ranking is reported back through the Services to enable Customer to objectively assess the Candidates’ software developer skills. Customer may have only as many Recruiter Users and Engineer Users activated at any one time for HackerRank for Work as specified in an applicable Service Order. No registered User account may be shared or accessed by more than one User, and Customer will not, and will not permit its Users to, share a User account with any other individual. A User account may be reassigned by Customer to a new individual replacing one who no longer requires ongoing use of HackerRank for Work.
2.4 Hosted Maintenance and Support. Hosted Maintenance and Support. HackerRank shall provide Customer with maintenance and support services as described in Exhibit A - Service Level Agreement.
3. Reservation of Rights. HackerRank and its third party suppliers and partners hereby reserve all rights in and to the Services, support services, and any underlying or related software for the foregoing (collectively, the “Software”). Nothing in this Agreement will be deemed to grant any license therein. Customer is entitled to access the Services solely in accordance with the terms of this Agreement. Customer shall not decompile, disassemble, reverse engineer, reverse assemble, analyze or otherwise examine, prepare derivative works of, modify, or attempt to derive source code from the Software. Customer shall not frame or utilize framing techniques to enclose any marks of HackerRank or its third party suppliers or partners, or other proprietary information (including images, text, page, layout or form), without HackerRank’s prior written consent.
4. Customer Obligations
4.1 No Resale. The Services are to be accessed by Customer and its designated Users only, and only for Customer’s internal business purposes, not for resale or unauthorized distribution to any third party.
4.3 Maintenance and Support Obligations. Maintenance and Support Obligations. In addition to the terms and conditions specified in Exhibit A - Service Level Agreement, HackerRank’s obligations to provide support services are subject to the following: (a) Customer shall reasonably assist HackerRank to duplicate and resolve errors; (b) Customer shall document and promptly report all encountered errors or malfunctions related to the Services to HackerRank; and (c) Customer shall use reasonable efforts to carry out procedures to resolve errors or malfunctions within a reasonable time after such procedures have been communicated to Customer by HackerRank or by a third party acting on HackerRank’s behalf.
5. Fees/Payment of Services/Taxes
5.1 Fees. Customer shall pay to HackerRank the fees specified in a Service Order entered into between Customer and HackerRank.
5.2 Invoicing and Payment. Unless otherwise indicated in the applicable Service Order, HackerRank shall invoice Customer in advance for all fees for the Services, and fees are nonrefundable and not subject to apportionment by Customer. Payment terms are thirty (30) days calculated from the date of invoice. All late payments shall bear interest at the lesser of the rate of 1.0% per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. In addition to all other remedies available under this Agreement or at law which HackerRank does not waive by the exercise of any rights hereunder, HackerRank shall be entitled to suspend the provision of any Services if the Customer fails to pay any undisputed amounts/fees when due hereunder and such failure continues for fifteen (15) days following written notice thereof. All payments must be made in U.S. dollars.
5.3 Taxes. Customer shall pay for taxes imposed in conjunction with this Agreement, including sales, use, excise and similar taxes based on or measured by charges payable under this Agreement and imposed under authority of federal, state or local taxing jurisdictions. This Customer obligation specifically excludes foreign, federal, state and local taxes based upon HackerRank’s revenues, net income, number of employees, or corporate existence.
5.4 Pricing. HackerRank reserves the right to unilaterally determine and modify its pricing for its Services without any prior notice to Customer. Where a Service Order is in effect, the pricing for the Services shall remain as agreed for the term specified in such Service Order.
6. Data Rights, License Grant
6.1 Non-Personally Identifiable Data License and Restrictions. Non-Personally Identifiable Data License and Restrictions. Subject to the terms and conditions of this Agreement, Customer agrees to and hereby grants to HackerRank a non-exclusive, worldwide, royalty-free, fully paid-up, sublicenseable license to use, reproduce, copy, modify, make derivative works of, distribute, and otherwise exploit Non-Personally Identifiable Data solely for the purposes of (i) providing the Services to Customer; and (ii) developing, enhancing and supporting the Services.
6.2 Data Ownership. Customer will retain all rights to Customer Data or other materials uploaded or created by Customer on or through the Services (“Customer Content”). By submitting, posting or displaying Customer Data and/or Customer Content on or through the Services which are intended to be made available to Users or Candidates, Customer grants HackerRank a worldwide, non-exclusive, royalty-free license to reproduce, adapt, modify, publish and distribute such Customer Data and/or Customer Content solely in conjunction with the Services for the purpose of performing HackerRank’s obligations under this Agreement. Customer represents and warrants that it has all rights, power and authority necessary to grant the rights granted herein to any such Customer Data and/or Customer Content.
7.1 Confidential Information. “Confidential Information” means any technical or non-technical information related to the past, current or proposed operations, products, technology, services or business that one party (the “Disclosing Party”) discloses or otherwise makes available in any manner to the other party (the “Receiving Party”), or to which the Receiving Party may gain access in the performance of its obligations or the exercise of its rights hereunder, whether such information is disclosed orally, visually or in writing, and whether or not bearing any legend or marking indicating that such information or data is confidential, including without limitation software, know-how, processes, trade secrets, manuals, reports, procedures, and methods. Confidential Information also includes proprietary or confidential information of any third party that may be in the Disclosing Party’s possession, as well as the terms of this Agreement. The Receiving Party will not use any Confidential Information of the Disclosing Party for any purpose not expressly permitted by this Agreement. Unless expressly permitted by this Agreement, the Receiving Party will not disclose the Confidential Information of the Disclosing Party to any third party, except to those employees or contractors of the Receiving Party who have a need to know such Confidential Information for purposes of this Agreement and who have signed confidentiality agreements (or are otherwise under a duty of confidentiality) no less protective of Confidential Information than the terms of this Agreement. The Receiving Party shall take reasonable measures to protect the secrecy of and avoid disclosure and/or unauthorized use of the Disclosing Party’s Confidential Information. Without limiting the foregoing, the Receiving Party will protect the Disclosing Party’s Confidential Information from disclosure and/or unauthorized use in the same manner as the Receiving Party protects its own confidential or proprietary information of similar type and importance.
7.2 Exceptions. Confidential Information shall not include any information the Receiving Party can document: (a) was already lawfully known by the Receiving Party at the time of disclosure by the Disclosing Party; (b) was disclosed to the Receiving Party by a third party who had the right to make such disclosure without any confidentiality restrictions; (c) is, or through no fault of the Receiving Party has become, generally available to the public; or (d) was independently developed by the Receiving Party without access to, or use of, the Disclosing Party’s Confidential Information. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent that such disclosure is (i) approved in writing by the Disclosing Party, or (ii) required by law or by the order or a court or similar judicial or administrative body, provided that the Receiving Party notifies the Disclosing Party of such required disclosure promptly and in writing and cooperates with the Disclosing Party, at the Disclosing Party’s reasonable request and expense, in any lawful action to contest or limit the scope of such required disclosure.
7.3 Return of Confidential Information. The Receiving Party will, at Disclosing Party’s option, either return to the Disclosing Party or destroy all Confidential Information of the Disclosing Party in the Receiving Party’s possession or control and permanently erase all electronic copies of such Confidential Information promptly upon the written request of the Disclosing Party or the termination of this Agreement, whichever comes first. In addition, the Receiving Party will certify in writing signed by an officer of the Receiving Party that it has fully complied with its obligations under this Section 7.3.
8. Representations and Warranties
8.1 By HackerRank.
8.1.1 Documentation. HackerRank represents and warrants that any and all documentation for the Services provided by HackerRank (the “Documentation”) will be accurate and complete and will be revised by HackerRank on a timely basis at no cost to Customer to reflect material changes and updates to the Services.
8.1.2 Services. HackerRank represents and warrants that the Services shall (i) function properly and in conformity with the warranties herein and the Documentation (as applicable) provided as Services hereunder, and (ii) operate on the computer hardware and software environment as identified in its Documentation relating to the Services.
8.1.3 Other. HackerRank represents and warrants that: (i) it has obtained all necessary rights to comply with its obligations under this Agreement and to allow the Customer to exercise its rights under this Agreement; (ii) there are no pending, or to its knowledge, threatened claims, demands or litigation on the Services or Software; and (iii) HackerRank will in the provisions of the Services and Software comply with all applicable laws.
8.1.4 Disclaimer. EXCEPT AS EXPLICITLY STATED IN THIS AGREEMENT, THE SERVICES AND THE SOFTWARE ARE PROVIDED “AS IS,” AND CUSTOMER’S USE OF THE SERVICES AND THE SOFTWARE IS AT ITS OWN RISK. HACKERRANK (INCLUDING HACKERRANK’S THIRD PARTY SUPPLIERS AND PARTNERS AND EACH OF THEIR AFFILIATES, SUPPLIERS AND RESELLERS) DO NOT MAKE, AND HEREBY DISCLAIM, ANY AND ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND TITLE, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, PERFORMANCE, USAGE, OR TRADE PRACTICE. HACKERRANK DOES NOT WARRANT THAT THE SERVICES OR SOFTWARE WILL BE UNINTERRUPTED, ERROR-FREE, OR COMPLETELY SECURE.
8.2 By Customer Customer represents and warrants that Customer’s services, products, materials, Customer Data, Customer Content, and information used by Customer in connection with this Agreement as well as Customer’s access to and use of the Services do not and will not during the term of this Agreement operate in any manner that would violate any applicable law or regulation or infringe any copyright, trade secret, privacy, publicity, or other rights of any third party.
9. Term and Termination
9.1 Term. Unless earlier terminated in accordance with the termination rights set forth in this Section 9, the term of each Service Order shall be as set forth in each Service Order. Unless terminated earlier in accordance with the termination rights set forth in this Section 9, this Agreement shall commence upon the Effective Date and remain in full force and effect until all Service Orders hereto have expired or terminated.
9.2 Termination for Cause. Either party may terminate this Agreement or the applicable Service Order upon thirty (30) days’ prior written notice if the other party is in material breach of this Agreement or any Service Order and the breaching party fails to remedy the breach within the 30-day notice period. Any written notice under this Section 9.2 must specify in reasonable detail the nature of the alleged material breach.
9.3 Termination for Bankruptcy. In the event of the bankruptcy, insolvency, liquidation, winding up, reorganization, protection or relief of either party under any law of any jurisdiction, or upon issuance of any order for relief or the appointment of a receiver, trustee, or other similar official for such party, the other party may thereupon terminate this Agreement upon written notice to the first party, without prejudice to any right or remedy that such other party may have.
9.4 Effect of Termination. Upon the expiration or termination of a Service Order: (a) Customer will cease using the Services under such Service Order and HackerRank will be relieved from any further obligation to provide the Services under such Service Order; and (b) within thirty (30) days of termination or expiration, HackerRank, at Customer’s expense, will return or destroy any and all Customer Data to Customer. Notwithstanding anything to the contrary herein, if Customer terminates this Agreement and/or a Service Order in accordance with Section 9.2, then Customer shall be relieved of all payment obligations, namely future monthly payments for the delivery of Services under such Service Order except for those Services delivered prior to the date of termination. The following Sections will survive any termination or expiration of this Agreement: 3 (Reservation of Rights), 5 (Fees/Payment for Services/Taxes), 6 (Data Rights), 7 (Confidentiality), 8 (Representations and Warranties), 9 (Term and Termination), 10 (Indemnification), 11 (Limitation of Liability), and 13 (Miscellaneous).
10.1 By HackerRank. Subject to Section 11.2, HackerRank shall indemnify, defend (or settle), and hold harmless Customer from and against all claims, suits, liabilities, losses, costs, damages, and expenses, including without limitation reasonable attorneys’ fees or expenses (“Losses”), arising out of or related to any third party claim that alleges that the Services or the Software infringe any copyright, trade secret, patent or trademark, or any other intellectual property right (“Intellectual Property”) of any third party brought against Customer. Customer shall provide HackerRank with: (i) prompt written notice of such claim; (ii) control over the defense and settlement of such claim; and (iii) proper and full information and assistance to settle and/or defend any such claim. The foregoing provisions of this Section 10.1 state the entire liability of HackerRank, and the sole remedy of Customer, with respect to any actual or alleged claim of infringement or misappropriation of Intellectual Property.
10.2 By Customer. Customer shall indemnify, defend (or settle), and hold harmless HackerRank from and against all Losses arising out of or related to any third party claim that alleges that: (a) any Customer Data and/or any Customer Content infringe the Intellectual Property of any third party; or (b) Customer’s use of any Services or Software infringe the Intellectual Property of any third party to the extent such infringement or alleged infringement is based on any misuse, unauthorized modification, or other unauthorized change to the Services or the Software made by Customer. HackerRank shall provide Customer with: (i) prompt written notice of such claim; (ii) control over the defense and settlement of such claim; and (iii) proper and full information and assistance to settle and/or defend any such claim.
11. Limitation of Liability
11.1 NEITHER PARTY WILL BE LIABLE TO THE OTHER FOR ANY INCIDENTAL, PUNITIVE, SPECIAL, INDIRECT, OR CONSEQUENTIAL DAMAGES, OR ANY LOST REVENUE, LOST PROFITS, REPLACEMENT GOODS, LOSS OF TECHNOLOGY, RIGHTS OR SERVICES, LOSS OF DATA, OR INTERRUPTION OF BUSINESS, EVEN IF THE OTHER IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER UNDER ANY THEORY OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE.
11.2 Maximum Liability. HackerRank’s maximum aggregate liability to Customer related to or in connection with this Agreement will be limited to the total amount payable by Customer to HackerRank hereunder for the six (6) month period prior to the date the cause of action first arose.
12. Dispute Resolution and Arbitration
12.1 Dispute Resolution. Prior to the initiation of binding arbitration as detailed below, the parties shall first attempt to resolve their dispute informally. Every effort should be made to resolve all disputes. The parties, using negotiators with authority to enter into a settlement, will use their best efforts to arrange personal meetings and/or telephone conferences as needed.
12.2 Binding Arbitration. Any controversy or claim arising out of or relating to the Agreement or the breach, termination, or validity thereof not settled through informal dispute resolution, except for temporary, preliminary, or permanent injunctive relief or any other form of equitable relief which shall be subject to the ruling of an applicable court of competent jurisdiction, shall be settled by binding arbitration in Santa Clara County, California and administered by the American Arbitration Association (“AAA”) and conducted by a sole arbitrator in accordance with the AAA’s Commercial Arbitration Rules. The Federal Arbitration Act, 9 U.S.C. Sec. 1-16, shall govern the arbitration to the exclusion of state laws inconsistent therewith or that would produce a different result, and any court having jurisdiction thereof may enter judgment on the award rendered by the arbitrator. Except as may be required by law or to the extent necessary in connection with a judicial challenge, or enforcement of an award, neither a party nor the arbitrator may disclose the existence, content, record, or results of an arbitration. Fourteen (14) calendar days before the hearing, the parties will exchange and provide to the arbitrator: (a) a list of witnesses they intend to call (including any experts) with a short description of the anticipated direct testimony of each witness and an estimate of the length thereof; and (b) pre-marked copies of all exhibits they intend to use at the hearing. Deposition for discovery purposes shall not be permitted. The arbitrator may award only monetary relief and is not empowered to award damages other than compensatory damages. A short statement of the reasoning on which the award rests shall accompany an award for $50,000.00 or more.
13.1 Assignment. Neither party may assign its rights or delegate its duties under this Agreement, in whole or in part, by operation of law or otherwise, without the prior written consent of the other party, except that a party shall have the right to assign this Agreement in whole as part of a corporate reorganization, consolidation, merger, or sale of substantially all of its assets upon notice to the other party. Any attempted assignment or delegation in violation of this Section 13.1 will be void. This Agreement shall be binding on, and shall inure to the benefit of, the parties and their respective successors and permitted assigns.
13.2 Relationship. The parties hereto are independent contractors. Nothing in this Agreement will be deemed to create an agency, employment, partnership, fiduciary, or joint venture between the parties. No party hereto (nor any agent or employee of such party) will make any representations or warranties or incur any liability on behalf of the other.
13.3 Severability. If any provision of this Agreement is held to be illegal, invalid or unenforceable, each party agrees that such provision shall be enforced to the maximum extent permissible so as to effect the intent of the parties, and the validity, legality and enforceability of the remaining provisions of this Agreement shall not in any way be affected or impaired thereby. If necessary to effect the intent of the parties, the parties shall negotiate in good faith to amend this Agreement to replace the unenforceable language with enforceable language that reflects such intent as closely as possible.
13.4 Electronic Signature. Original signatures transmitted and received via electronic transmission of a scanned document (via secure email or a service such as provided by DocuSign) are true and valid signatures for all purposes hereunder and shall bind the parties to the same extent as that or an original signature.
13.5 Waiver. No delay or omission by a party hereto to exercise any right occurring upon any noncompliance or default by another party with respect to any of the terms of this Agreement will impair any such right or power or be construed to be a waiver thereof. A waiver by one of the parties hereto of any of the covenants, conditions, or agreements to be performed by one of the other parties will not be construed to be a waiver of any subsequent breach thereof or of any covenant, condition, or agreement contained herein.
13.6 Notices. All legal notices and other communications required hereunder, excepting those identified as “with email being accepted” shall be in writing and delivered in person, via certified mail, return receipt requested, or by overnight express mail. Notices to HackerRank should be addressed as follows:Interviewstreet Incorporation, dba HackerRank
Attn: Legal Department
215 Castro Street, 3rd Floor
Email: firstname.lastname@example.org and email@example.com
13.7 Construction. The division of this Agreement into sections and the insertion of captions and headings are for convenience of reference only and will not affect the construction or interpretation of this Agreement. Unless otherwise expressly stated “day,” “week,” “month,” “quarter,” and “year” mean calendar day, week, month, quarter, and year, respectively, and “business day” means weekdays (Monday – Friday).
13.8 Governing Law; Venue. This Agreement shall be governed by and construed in accordance with the internal laws of the State of California without reference to the conflict of laws provisions thereof. Any disputes relating to the interpretation, execution or enforcement of this Agreement or arising from the dealings between HackerRank, Customer and any third parties under this Agreement that are not subject to exclusive and binding Arbitration shall be dealt with under the exclusive jurisdiction and venue of the courts of the State of California, sitting in Santa Clara County, or the United States Federal Court for the District of California, and the parties irrevocably submit for all purposes to the jurisdiction of each such court.
13.9 Export Regulations. Customer agrees to comply with all applicable export and re-export control laws and regulations, including the Export Administration Regulations (“EAR”) maintained by the United States Department of Commerce. Specifically, Customer covenants that it shall not, directly or indirectly, sell, export, re-export, transfer, divert, or otherwise dispose of any software, source code, or technology (including products derived from or based on such technology) received from HackerRank under this Agreement to any country (or national thereof) subject to antiterrorism controls or U.S. embargo, or to any other person, entity, or destination prohibited by the laws or regulations of the United States, without obtaining prior authorization from the competent government authorities as required by those laws and regulations. Customer agrees to indemnify, to the fullest extent permitted by law, HackerRank from and against any fines or penalties that may arise as a result of Customer’s breach of this provision.
13.10 Force Majeure. Except for payment obligations, neither party shall be liable to the other party or deemed to be in default for any delay or failure in performance of any obligation under the Agreement or interruption of service resulting directly or indirectly from acts of God, civil or military authority, acts of the public enemy, acts of terrorism, war, riots, civil disturbances, insurrections, accidents, fire, explosions, earthquakes, floods, the elements or any other cause beyond the reasonable control of such party.
13.11 Entire Agreement; Counterparts. The Exhibits attached hereto are incorporated herein by this reference, are an integral part of the Agreement, and will be read and interpreted together with the Agreement as a single document. This Agreement (including all Exhibits, Service Orders and addendums attached hereto) sets forth the complete, exclusive and final statement of the agreement between the parties as to the subject matter hereof and supersedes all prior and contemporaneous agreements, understandings, negotiations and discussions, whether oral or written, between the parties regarding such subject matter. This Agreement may only be modified, amended, or any rights under it waived, by a written document executed by the parties.
SERVICE LEVEL AGREEMENT
1. Email Support HackerRank shall provide Customer email support which shall be available Monday through Friday, 9:00 a.m. to 5:00 p.m. Pacific time, excluding holidays.
2. Service Availability. HackerRank will use commercially reasonable efforts to maintain the availability of the Services to Customer as follows:
|Service Category||Availability/Response Time|
|Monthly AvailabilityThe availability percentage does not include interruptions due to Scheduled Downtime or Force Majeure.||99.5% monthly|
|Scheduled Downtime||10:00 pm – 11:00 pm Pacific Time weekly on Fridays, or as HackerRank otherwise notifies Customer no less than twenty-four (24) hours in advance.|
|Unplanned Outages (other than for system emergency)||Maximum 40 minutes over a reference period of 1 month, excluding Force Majeure.|
|Unplanned Outages for system emergency||Maximum 2 hours over a reference period of 1 month, excluding Force Majeure. HackerRank will promptly notify Customer of any Unplanned Outage (whether or not for system emergency), including a description of the Unplanned Outage and the expected or estimated time until normal operations will resume.|
|Frequency of back-ups of Candidate data and configuration data||One incremental back-up per day until 30 days after the end of an active event. All the data is retained for a year.|
|Target median time for resolution of incidentsCalculated as from opening until closing of a case.||< 4 hours for 90% of cases|
i. less than 99.5% but above 95%, HackerRank shall upon Customer’s request made within thirty (30) days of the end of the calendar month, provide Customer with a written plan for improving HackerRank’s Service Availability to attain the 99.5% Service Availability and HackerRank shall promptly implement such plan;
ii. between 95% and 90%, HackerRank shall, upon Customer’s request made within thirty (30) days of the end of that calendar month, provide Customer with a service credit in an amount equal to one half of one month of service and the action plan under subpart (a) above; or
iii. less than 90%, HackerRank shall, upon Customer’s request made within thirty (30) days of the end of that calendar month, provide Customer with a service credit in an amount equal to one month of service and the action plan under subpart (a) above. Customer may also terminate this Agreement upon thirty (30) days’ written notice (which notice must be given within sixty (60) days of the end of the calendar month in which the Service Availability was less than 90%).
Customer shall not exercise the rights in this Section 2 without a reasonable basis or belief that the applicable Service Availability commitment was not satisfied. If Customer believes that HackerRank has failed to achieve its Service Availability commitment in any given month, HackerRank shall, promptly following Customer’s request, provide a report that contains true and correct information detailing HackerRank’s actual Service Availability performance. THIS SECTION 2 SETS FORTH CUSTOMER’S SOLE AND EXCLUSIVE REMEDY, AND HACKERRANK’S ENTIRE LIABILITY, FOR ANY FAILURE TO MEET THE SERVICE AVAILABILITY COMMITMENT AND/OR ANY OTHER TERMS AND CONDITIONS OF THE SERVICE LEVEL AGREEMENT SET FORTH IN THIS EXHIBIT.
Disaster recovery. HackerRank will use commercially reasonable efforts to maintain the availability of service in the event of an unplanned outage. Load balancing and auto scaling have been configured throughout HackerRank’s technical stack. A content delivery network is used to deliver the solution to users around world in the most efficient manner possible. Finally, in addition to its “hot” production environment, HackerRank maintains a “warm” environment with a different hosting provider in the event of an unplanned outage that is localized to the “hot” production hosting provider. HackerRank leverages a world-class hosting provider to support its production operations: Amazon Web Services (“AWS”). AWS maintains a SOC SSAE 16 report. HackerRank only leverages data centers that are located within the continental United States.
ERROR CORRECTIONS AND UPDATES
i. “Error” means a failure of the Services to conform to the documentation, resulting in the inability to use, or material restriction in the use of, the Services.
ii. “Update” means either a Services modification or addition that, when made or added to the Services, corrects the Error, or a procedure or routine that, when observed in the regular operation of the Services, eliminates the practical adverse effect of the Error.
b. Updates. HackerRank will make commercially reasonable efforts to provide an Update designed to solve or by-pass a reported Error. HackerRank shall reasonably determine the priority level of Errors, pursuant to the following protocols and take the following actions during HackerRank’s support center hours.
i. Severity 1 Errors: HackerRank promptly initiates the following procedures: (1) assigns specialists to correct the Error on an expedited basis; (2) provides ongoing communication on the status of an Update; and (3) begins to provide a temporary workaround or fix. A Severity 1 Error means the (i) production system is severely impacted or completely shut down, or (ii) system operations or mission-critical Services are down.
ii. Severity 2 Errors: HackerRank assigns a HackerRank specialist to begin an Update, and provides additional, escalated procedures as reasonably determined necessary by HackerRank support services staff. HackerRank exercises commercially reasonable efforts to provide a workaround or include a fix for the Severity 2 Errors in the next update or release. A Severity 2 Error means (i) the production system is functioning with limited capabilities, or (ii) is unstable with periodic interruptions, or (iii) mission critical Services, while not being affected, have experienced system interruptions.
iii. Severity 3 Errors: HackerRank may include an Update in the next release. A Severity 3 Error means there (i) are errors in fully operational production systems, (ii) is a need to clarify procedures or information in documentation, or (iii) is a request for a product enhancement.
d. Target Response Times. HackerRank will respond to Customer reports of a problem based on the severity. Upon receipt of a request for support or report of a problem, HackerRank will use commercially reasonable efforts to respond to Customer in accordance with the initial target response times for the corresponding level of priority as indicated in the table below:
|Priority||Examples||Target for Initial Response Time|
|Priority One: Emergency
A crisis has occurred - a system is down, a major operational function is unavailable or a critical interface has failed
|• Production system is down or crashing frequently
• A business critical operation cannot be performed
|< 1 business hour|
|Priority Two: Critical
Any problem critical to Customer success and requiring immediate resolution
|• Production system functioning with limited capabilities
• Services unstable with periodic interruptions
|< 4 business hours|
|Priority Three: High
Priority three situations include problems to be resolved as soon as possible. Most of these have acceptable workarounds, or the Services recover on their own
|• Errors in production systems but still fully functional
• Malfunction in non-critical functions
|< 1 business day|
|Priority Four: Normal
Priority four situations are technical questions or problems requiring resolution - many of which are of “how to” nature
|• Need clarification of procedures or information in documentation
• Attributes or options do not operate as stated
• Services enhancement requests
• Documentation is incorrect
|< 2 business days|
Conditions for Providing Support. HackerRank’s obligation to provide support services is conditioned upon the following: (a) Customer makes reasonable efforts to solve the problem after consulting with HackerRank; and (b) Customer provides HackerRank with sufficient information and resources to correct the problem, as well as access to the personnel, hardware, and any additional systems involved in discovering the problem.
Exclusions from HackerRank’s Support Services. HackerRank is not obligated to provide support services in the following situations: (a) the problem is caused by Customer’s negligence, hardware malfunction or other causes beyond the reasonable control of HackerRank; (b) the problem is with third party software not made available through HackerRank; (c) the problem is with individual user’s desktop or browser software; or (d) Customer has not paid HackerRank the fees for the Services when due under the Agreement or any applicable Service Order.