TMP Metrics Agreement – Additional Terms and Conditions

The following terms apply to any TMP Metrics Agreement (“Agreement”) that incorporates such terms by reference.

1. TMP Property. TMP Metrics software, including, without limitation, source code and object code, design and business methods associated therewith, and all other software and services provided by TMP and used in connection herewith and otherwise contemplated by this Agreement, as well as TMP’s trademarks, service marks and trade names used in connection therewith, are proprietary to TMP ("TMP Property").  Client shall not copy, transfer, distribute, publish, upload, recreate, decompile, reverse engineer, disassemble, modify, translate, decipher or otherwise determine the source code or create derivative works of any TMP Property.

2. Client Property. Client shall retain any and all rights that it may have in any and all data and materials provided to TMP under this Agreement, including job descriptions and accompanying artwork, text, logos, trademarks, service marks and trade names ("Client Property").  This Agreement grants to TMP a limited right to copy, modify, transfer, display and otherwise use Client Property to fulfill TMP's obligations hereunder.

3. Confidentiality. In connection with the negotiation and performance of this Agreement, a party (the "Receiving Party") may receive information of the other party (the "Disclosing Party") which is confidential or proprietary in nature, including without limitation information about a party’s products and services.  Such information, along with the terms of this Agreement, shall be deemed confidential to the Disclosing Party ("Confidential Information").  The Receiving Party shall not use any Confidential Information for any purpose other than in connection with the performance of its obligations under, and as permitted by, this Agreement and may disclose the Confidential Information of the other party to their employees or consultants with a need to know for the performance of this Agreement.  Notwithstanding the foregoing, either party may disclose the Confidential Information of the other party (i) to the extent required by law or pursuant to the order or requirement of, or in connection with proceedings before, a court, administrative agency, or other governmental body; and (ii) on a confidential basis to its legal and/or financial advisors.  “Confidential Information” shall not include information that (i) is or becomes publicly available, without fault of Receiving Party, its Affiliates or their respective Subcontractors, directors, officers, employees, servants, agents or invitees, (ii) is disclosed to Receiving Party by a party who is not under any legal obligation to Disclosing Party or its Affiliates prohibiting such disclosure or (iii) is known by Receiving Party as evidenced by written record before disclosure under this Agreement.

4. Client Data. All data collected pursuant to this Agreement belongs to Client (“Client Data”). TMP shall use Client Data solely for the purposes of providing the Metrics services described herein.  Notwithstanding the foregoing, Client acknowledges and agrees that Client Data may be anonymized and used in aggregated form by TMP  including to improve TMP’s products and services.  The parties shall comply with all applicable laws with respect to the collection, storage, transmission or other processing of all information relating to identified or identifiable natural persons, including without limitation visitors to Client’s TalentBrew Site and Client’s job applicants.  Specifically to ensure compliance with the European Union’s General Data Protection Regulation ((EU) 2016/679), the Data Protection Addendum located at www.tmp.com/DPA, is incorporated in and made a part of this Agreement.

5. Indemnity. Each party (the “Indemnifying Party”) shall indemnify, hold harmless and defend the other party, its members, managers, officers, employees, affiliates and subsidiaries (collectively, the “Claimants”) against any and all claims, liabilities, losses, expenses (including reasonable attorney's fees and legal expenses related to such defense), fines, penalties, taxes or damages, asserted against, imposed upon or incurred by the Claimants resulting from or arising out of (a) any breach of its obligation of confidentiality or (b) any claim that (a) in the case of TMP the Services or (b) in the case of Client any materials provided to TMP by or on behalf of Client for use in connection with the Services infringes any patent, copyright, trademark, trade secret, right of privacy or publicity or other third party intellectual property right.

6. Limitation of Liability. EXCEPT WITH RESPECT TO A PARTY’S INDEMNIFICATION OBLIGATIONS OR A BREACH OF CONFIDENTIALITY, NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR CONSEQUENTIAL OR INDIRECT DAMAGES INCLUDING, BUT NOT LIMITED TO, TRANSPORTATION, STORAGE, LOSS OF PROFIT, LOSS OF PRODUCTION AND LOSS OF USE OF PROFIT, NOR SHALL THE LIABILITY OF EITHER PARTY EXCEED THE FEES PAID OR PAYABLE TO TMP BY CLIENT UNDER THIS AGREEMENT DURING THE ONE YEAR PERIOD PRECEDING THE INJURY.

7. Warranty. TMP warrants that the TMP Metrics services will be performed with due skill, care and diligence, in accordance with good and sound practices, and the requirements of this Agreement. EXCEPT AS EXPRESSLY PROVIDED HEREIN, TMP METRICS PROVIDED ON AN "AS IS" BASIS WITHOUT ANY WARRANTIES OF ANY KIND, AND TMP AND ITS SUPPLIERS, VENDORS, CONTRACTORS AND AGENTS (i) DISCLAIM ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, NON-INFRINGEMENT OF THIRD-PARTY RIGHTS, AND ARISING BY STATUTE OR OTHERWISE IN LAW OR FROM A COURSE OF DEALING OR USAGE OF TRADE; AND (ii) DO NOT WARRANT (a) THAT THE CONTENT, DATA, INFORMATION OR FUNCTIONS ASSOCIATED WITH, TMP METRICS SERVICES WILL MEET CLIENT’S REQUIREMENTS, BE TIMELY, ACCURATE OR UP-TO-DATE, OR BE FREE FROM MISTAKES OR ERRORS, (b) THAT THE OPERATION OF PRODUCTS OR SOFTWARE COMPRISING TMP METRICS SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, OR (c) THAT DEFECTS IN ANY SOFTWARE OR PRODUCTS COMPRISING TMP METRICS SERVICES WILL BE CORRECTED.

8. Independent Contractor. In the performance of the Services, TMP is an independent contractor and none of TMP, its subcontractors, and/or their employees or invitees, is an employee of Client.  TMP shall be solely responsible for the payment of labor employed or hired by TMP, whether on contract or other status, including all social benefits, compensation, termination payments, and all benefits of whatever description required by TMP's employment policies or practices. 

9. Waiver. It is understood and agreed that none of the terms and conditions of this Agreement shall be deemed waived or amended by either party unless such waiver or amendment is executed in writing by a duly authorized agent or representative of each of the parties.  The right of either party to require strict performance will not be affected by any previous waiver, action or course of dealing.

10. Choice of LawThe laws of the State of New York shall apply, excluding any choice of law rules that would refer the matter to the laws of another jurisdiction.

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