Credly Talent Solutions Agreement

Version 1.0

Revised August 2021

This Credly Recruit Agreement (the “Agreement”) is entered into as of the Effective Date set forth on the Order Form by and between Credly and Client. Credly and Client may be referred individually as a “Party” and collectively as the “Parties.” Capitalized terms not otherwise defined in this Agreement shall have the meaning set forth on the applicable Order Form.

Recitals

  1. Credly hosts the largest verified skills and achievement database in the world. Credly’s software and services enable organizations to identify and recruit qualified professionals.
  2. Client wishes to access use the Credly Software to search for qualified candidates.

Agreement

Now, Therefore, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties, intending to be legally bound hereby, agree as follows:

1. Definitions

Capitalized terms not otherwise defined herein have the meanings set forth below.

1.1 “Authorized User" means an employee or agent of Client for whom Client creates a unique user name and password on the Credly Software under Client’s account.

1.2 “Affiliate” means any entity that controls or is under common control by or with a Party. A corporation or other entity will be deemed to control another if it owns or controls more than fifty percent (50%) of the voting stock or other ownership interest in such corporation or entity.

1.3 “Credential” means a digital representation of an achievement issued to an Earner by an Issuer using Credly’s Software. Credentials include an image and metadata describing the achievement and may include supporting evidence and related

1.4 “Connected Earner” means an Earner that has consented to be searched by Client.

1.5 “Credly Software” means Credly’s proprietary software as a service platform that can be used to search Connected Earners, including related software (including APIs), webpages or systems, including all updates, modifications and enhancement thereto.

1.6 “Earner” means an individual or organization that has earned a Credential using the Credly Software.

1.7 “Earner Account Data” means the data elements set forth on Schedule A that a Connected Earner consents to share with Client.

1.8 “Issuer” means an entity that issues Credentials using the Credly

1.9 “Personal Information” means any information, including information in electronic form, relating to a living person who can be identified from those data.


2. Data Sharing

2.1 Subscriptions. A subscription allows an Authorized User to access the Credly Software. Client must comply with this Agreement and ensure that its Authorized Users comply with this Agreement. Client shall not misrepresent the identity or nature of Authorized Users. Authorized Users shall keep login information confidential. Client may not provide access to the Credly Software to any person who is not an Authorized User. During an active subscription term, Client may add additional subscriptions by executing Order Forms.

2.2 Client’s Access to Connected Earners.
(a) When an Earner consents to share their Personal Information with Client, Credly agrees to provide to Client the Earner Account Data elements set forth on Schedule A.

(b) Credly may discontinue Client access to Earner Account Data or Earner Credential Data if the Earner deletes such information from the Credly Software, sets such information as “private” on the Credly Software, or deletes their account on the Credly Software, or if the Client violates this Agreement.

(c) Client is solely responsible for the content of its communications to Earners when using the Credly Software or other means of communication., and Credly disclaims all liability for such content, including as to whether such content is legal. Credly will not be responsible for providing notifications regarding messages
 
2.3 Use of Credly Recruit. Client agrees that it will not, and will not enable or authorize any third party, to:

 

(a) Identify or contact Connected Earners without a reasonable and legitimate intent to hire for a bona fide job opportunity or the specific position listed;

(b) Download, reproduce, copy, modify, or distribute the Earner Account Data and Credential Data received or accessed from the Credly Software, whether directly or through third parties without the consent of Credly and the Earner;

(c) “Spam” or otherwise contact applicants for purposes other than related to the specific employment opportunity described in the posting;

(d) Send bulk or automated messages to Connected Earners;

(e) Share any information regarding an Earner’s job search with that Earner’s current employer;

(f) Harass, stalk, or contact any Earner after they have asked not to be contacted;

(g) Solicit Earners by intentional misrepresentation;

(h) Engage in recruitment or hiring practices that would be a violation of the law in Client’s state or country, the state or country where the job is to be performed, or the applicable laws of the jurisdiction that governs this Agreement;

(i) Engage in solicitations, communications or transactions that violate any applicable laws or regulations related to the prohibition of employment discrimination, or that violate applicable laws governing legal eligibility to work;

(j) Develop, support or use software, devices, scripts, robots or any other means or processes (including crawlers, browser plugins and add-ons or any other technology) to access, modify, download, query, copy or otherwise collect information from the Credly Software;

(k) Except as expressly authorized by Credly in writing, copy, modify or create derivative works of the Credly Software or any related technology;

(l) Introduce malware, spyware or any other malicious code into the Credly Software or otherwise interfere with the operation of the Credly Software or any device or system or breach or circumvent any security measure of Credly or a third party;

(m) Reverse engineer, decompile, disassemble, decipher or otherwise attempt to derive the source code for the Credly Software or any related technology that is not open source;

(n) Except as expressly authorized by Credly in writing, imply or state that Client is affiliated with or endorsed by Credly;

(o) Except as expressly authorized by Credly in writing, engage in “framing,” “mirroring,” or otherwise simulating the appearance or function of the Credly Software;

(p) Interfere with the operation of, or place an unreasonable load on, the Credly Software (e.g., spam, denial of service attack, viruses, gaming algorithms); or

(q) Except as expressly authorized by Credly in writing, rent, lease, loan, trade, sell, or otherwise monetize the Credly Software or related data or access to the same.

3. Privacy

3.1 Privacy Exhibit. The Parties shall act in accordance with all applicable laws and regulations relating to the security and privacy of Personal Information of Earners. This Agreement incorporates the Client Controller to Controller Privacy Exhibit, set forth at https://info.credly.com/controller-to-controller-privacy-addendum. Credly is not responsible for the content of any Earner Account Data or Credential Data or the way Client or its Authorized Users choose to use the Credly Software to store or process any Earner Account Data and Credential Data.

3.2 Obligations upon Termination. Upon termination of this Agreement and any applicable Order Form, Client must irreversibly delete any personal information of any Earner received from Credly pursuant to this Agreement, including any Earner Profile Data. Notwithstanding the foregoing, Client may continue to process the personal information of a Connected Earner pursuant to the Earner’s lawful consent.
 

4. Term & Termination

4.1 Term. This Agreement will commence on the Effective Date and will and will remain in effect until the last Order Form is expired or terminated. Access to the Credly Software shall be granted on the effective date indicated in the applicable Order Form and continue for the term specified therein. Credly may suspend the services hereunder in the event of any breach or threatened breach of this Agreement. Notwithstanding the foregoing, the Agreement may be earlier terminated as described below:

4.2 Termination for Cause. Either Party may terminate the Agreement, effective on written notice to the other Party, which may be made via email to the contacts listed below and on the applicable Order Form and as subsequently updated by either party in writing,

(a) by either Party, if the other Party breaches any provision of this Agreement and either the breach cannot be cured or, if the breach can be cured, it is not cured by the breaching Party within 48 hours after the breaching Party's receipt of written notice of such breach. Notice to Client shall be sent via email to client’s notice email as set forth in an applicable Order Form or as otherwise notified to Credly in an acknowledged writing; Notice to Credly shall be sent via email to Legal@Credly.com; or

(b) by either Party immediately, if the other Party (A) becomes insolvent, (B) is generally unable to pay, or fails to pay, its debts as they become due, (C) files, or has filed against it, a petition for voluntary or involuntary bankruptcy or pursuant to any other insolvency law, (D) makes or seeks to make a general assignment for the benefit of its creditors, or (E) applies for, or consents to, the appointment of a trustee, receiver or custodian for a substantial part of its property or business.

4.3 Effect of Termination. Notwithstanding any termination of this Agreement, the rights and obligations under this Agreement, which by their nature should survive, will remain in effect after the termination, including Sections 3, 7, 8, 9 and 10.
 

5. Payment

5.1 Fees. During the Term, Client shall pay Credly the fee set forth in the applicable Order Form.

5.2 Invoicing. Credly will invoice Client at the Effective Date of this Agreement and annually thereafter at the beginning of each contract year. Credly will invoice Client for additional Authorized User seats upon purchase.

5.3 Taxes. Each Party will be responsible, as required under applicable law, for identifying and paying all taxes and other governmental fees and charges (and any penalties, interest, and other additions thereto) that are imposed on that Party upon or with respect to the transactions and payments under this Agreement.

6. Representations

6.1 Representations. Each Party represents and warrants that (i) it has the legal power and authority to enter into this Agreement, and (ii) it will comply with all relevant laws, regulations, and industry standards in the conduct of its actions regarding the subject-matter of this Agreement and their respective businesses.

6.2 Third-party data. Credly makes no representations, warranties, or guarantees regarding the Earner Account Data or Credential Data that Client may receive pursuant to this Agreement. The Parties agree and acknowledge that the Credentials issued using the Credly Software are issued by third parties and that Issuers may revoke, delete, or modify Credentials issued by them at any time. The Parties also agree and acknowledge that Earners may delete or make private their Credentials or accounts at any time. Connected Earners may also choose to withdraw their consent to share their personal information with Client at any time. The parties also acknowledge that the Credentials may include third-party intellectual property and that Credly does not provide any license, sub-license, or other rights in third-party intellectual property.

6.3 WAIVER. EXCEPT AS OTHERWISE EXPRESSLY SET FORTH HEREIN, EACH PARTY DISCLAIMS ALL WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO ANY SERVICE, MATERIAL OR PRODUCT PROVIDED BY SUCH PARTY PURSUANT TO THIS AGREEMENT.

7. Confidential Information; Rights, Use, and Ownership

7.1 Definition. The Parties acknowledge that both Parties may own, utilize, and develop certain Confidential Information (as defined herein) during the course of the Agreement and in furtherance of their respective obligations thereunder, which is privileged and confidential. “Confidential Information” includes any information in any form marked or designated as confidential and any information in any form that a reasonable person would understand to be confidential. Confidential Information includes, but is not limited to, trade secrets, computer programs and software (including source codes), processes, technical information, know-how, plans, data, software, specifications, identity of customers and suppliers, financial information, and, Software and business affairs of the party which is treated as confidential by such party; provided, however, that Confidential Information will not include information which, as established by documentary evidence is (a) known or becomes known to the public in general (other than by a breach of this provision), (b) is or has been independently developed or conceived by the other party without the use of the first party’s Confidential Information, or (c) is or has been made known or disclosed to the other party by a third person without a breach of any obligation of confidentiality such third person may have to the first party.

7.2 Use, Disclosure. The Parties agree that both Parties will disclose Confidential Information to the other party only to the extent that such information is necessary for the provision of the Services. With respect to any Confidential Information disclosed by a party (the “Disclosing Party”) to the other party (the “Receiving Party”) the Receiving Party will not report, publish, transfer or otherwise disclose such information to any person or other entity (except that such disclosure may be provided to an affiliated or contracted or subcontracted entity or person who is bound by formal contract, including confidentiality provisions of materially similar nature, with Receiving Party and solely for the purposes described in Section 2 of this Agreement) without the prior written consent of the Disclosing Party or except as otherwise expressly permitted by the terms of this Agreement. Upon written request of the Disclosing Party after expiration or earlier termination of this Agreement, unless otherwise stated in this Agreement, each party will destroy, and provide written certification of such destruction, or return to the other party all Confidential Information provided to it during the course of or in connection with this Agreement and which is in its possession. The Parties acknowledge that no license is created by the use of the Confidential Information beyond that which is contemplated within the scope of this Agreement.

7.3 Ownership of Intellectual Property. Nothing in this Agreement shall be construed as a transfer or assignment of any intellectual property rights from Credly or any third party to Client. Credly is the sole owner of the Credly Software and all Credly-created services, enhancements, Confidential Information created by Credly, data collection, processing, analysis, review, and reporting tools; data processing and management systems or processes, including all tangible and intangible items, trade secrets, know-how, processes, and all copyrights and other intellectual property rights pertaining thereto (collectively, the “Credly Intellectual Property”). Text and images in Credentials may be owned by third parties. Client agrees that it will not market, parcel, distribute, sell or otherwise communicate the Credly Intellectual Property without the express written consent of Credly. Credly will have a royalty-free, perpetual license to use or incorporate into the Credly Intellectual Property any suggestions, enhancements, requests, recommendations, or other feedback provided by Client. Credly may review any messages sent by Client via the Credly Software to ensure compliance with this Agreement, for data analysis, quality control, or to refine the Credly Software.
 

8. Indemnification 

8.1 Indemnification. Credly shall defend and indemnify Client from and against all third-party claims alleging that the Credly Software infringes any intellectual property of a third party. Credly agrees at its own expense to defend, or at its option, settle any such claim, suit, or proceeding brought against Client. This obligation to indemnify does not extend to any claims of infringement to the extent resulting from (i) Client’s modification of any Credly Software or any part thereof; (ii) any aspect of Client’s software, documentation, not designed or developed by Credly; (iii) any claim arising from any instruction, information, design, or materials furnished by Client to Credly; or (iv) Client’s continuing the allegedly infringing activity after being notified thereof or after being provided modifications that would have avoided the alleged infringement while not materially diminishing the performance or capabilities of the Credly Software. The provisions of this Section 8.1 set forth the Credly's exclusive liability, and Client's exclusive remedy for infringement or other violation of the intellectual property rights of any third party.

8.2 Indemnification against Claims Relating to Rewarding of Credentials and Intellectual Property Infringement. Client will defend and indemnify Credly from and against third-party claims arising out of violations by Client of Sections 2 or 3 of this Agreement.

8.3 Procedure for Indemnification. Any Party seeking indemnification under this Section must provide written notice thereof to the indemnifying party within fifteen (15) calendar days following service of the complaint or other process. The defense and/or settlement of a claim by the indemnified party without such opportunity to the indemnifying party shall relieve the Indemnifying Party of any further obligation to indemnify the indemnified party with regard to such claim. The indemnifying party shall, at its own expense, undertake the defense of such proceedings, claims, or demands through counsel of its choosing. Further, the indemnifying party shall have the right to enter into and conclude settlement negotiations, provided that no settlement will be made which imposes any material obligations on the indemnified party (other than the payment of money by the indemnifying party made on behalf of the indemnified party), without prior written consent of the indemnified party. If a court or similar tribunal requires consent of the indemnified party, such consent shall not be unreasonably withheld. Either party will reasonably cooperate with the other party to resolve any actual or alleged third-party claims as promptly as is reasonable.
 

9. Limitation of Liability

9.1 NEITHER PARTY SHALL BE LIABLE FOR ANY LOST REVENUE, LOST PROFITS OR OTHER CONSEQUENTIAL, INCIDENTAL, SPECIAL, OR PUNITIVE DAMAGES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

9.2 EXCEPT FOR ANY CLAIM ARISING OUT OF A BREACH OF PRIVACY LAWS BY CLIENT, IN NO EVENT SHALL EITHER PARTY'S AGGREGATE LIABILITY TO THE OTHER PARTY UNDER THIS AGREEMENT EXCEED THE AMOUNT PAID TO CREDLY HEREUNDER DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE THAT GAVE RISE TO THE CLAIM.
 

10. Miscellaneous

10.1 Independent Contractor Status. Credly is an independent contractor and is not an employee, agent, representative, officer, or Client of Client. Credly does not undertake to perform any of Client’s regulatory obligations, or assume any responsibility for Client’s operations or business. Except as expressly set forth in writing, neither party has power or authority to act for, represent, or bind the other party in any manner. Nothing contained in this Agreement will be deemed to create any relationship between the Parties other than that of a principal and independent contractor.

10.2 Waiver. No failure or delay in (i) exercising any right or remedy; or (ii) requiring satisfaction of any condition under this Agreement, and no course of dealing between the Parties, operates as a waiver or estoppels of any right, remedy or condition. A waiver made in writing on one occasion is effective only in that instance and only for the purpose that it is given and is not to be construed as a waiver on any future occasion or against any other person. The rights and remedies of the Parties set forth in this Agreement are not exclusive of, but are cumulative to, any rights or remedies now or subsequently existing at law, in equity or by statute.

10.3 Notices. Unless otherwise expressly provided herein, any notice required by this Agreement or given in connection with it, shall be in writing and shall be deemed delivered to the Party receiving such communication (i) on the delivery date if delivered personally to the Party; (ii) two business days after deposit with a commercial overnight carrier, with written verification of receipt; (iii) five business days after the mailing date, if sent by first class US mail, postage prepaid, return receipt requested; or (iv) on the delivery date if transmitted by confirmed email.

10.3 Equitable Relief. Each Party acknowledges that a breach by the other Party of any confidentiality or proprietary rights provision of this Agreement may cause the non-breaching Party irreparable damage, for which the award of damages would not be adequate compensation. Consequently, the non-breaching Party may institute an action to enjoin the breaching Party from any and all acts in violation of those provisions, which remedy shall be cumulative and not exclusive, and a Party may seek the entry of an injunction enjoining any breach or threatened breach of those provisions, in addition to any other relief to which the non-breaching Party may be entitled at law or in equity.

10.4 Entire Agreement and Modification. This Agreement, together with all Order Forms and all referenced and attached exhibits, contains the entire agreement between the Parties regarding this subject matter, and supersedes all prior agreements, arrangements, or understandings between the Parties and constitutes a complete and exclusive statement of the terms of the agreement between the Parties with respect to its subject matter. This Agreement may not be modified or amended except by a written agreement duly signed by persons authorized to act on behalf of the party to be charged with the amendment.
 
10.5 Force Majeure. Neither party will be liable to the other or be deemed to be in breach of this Agreement for any failure or delay in rendering performance arising out of causes beyond its reasonable control and without its fault or negligence. Such causes may include acts of God or of a public enemy, acts of terrorism, earthquakes, floods, fires, epidemics, riots, quarantine restrictions, strikes, freight embargoes, or unusually severe weather. Dates or times of performance will be extended to the extent of delays excused by this Section. The Parties will promptly inform and consult with each other as to the existence and nature of such delay. A force majeure event will not relieve existing payment obligations.

10.6 Severability. If any provision of this Agreement is held invalid or unenforceable by any court of competent jurisdiction, the other provisions of this Agreement will remain in full force and effect. Any provision of this Agreement held invalid or unenforceable only in part or degree will remain in full force and effect to the extent not held invalid or unenforceable.

10.7 Governing Law and Venue. This Agreement will be governed by and construed in accordance with the laws of the State of New York, other than its conflicts of laws provisions. The Parties irrevocably and unconditionally consent to venue in New York (and hereby waive any claims of forum non conveniens with respect to such venue) and to the exclusive jurisdiction of competent New York state courts or federal courts in New York for all litigation which may be brought with respect to the terms of, and the transactions and relationships contemplated by, this Agreement.
 
10.8 Counterparts. This Agreement may be executed in one or more counterparts, each of which will be deemed to be an original copy of this Agreement and all of which, when taken together, will be deemed to constitute one and the same instrument, and will become effective when there exist copies hereof (by facsimile, electronic mail, or otherwise) which, when taken together, bear the authorized signatures of each of the Parties.
 
 
 

Exhibit A

Earner Account Data Elements 

  • Credly Profile First Name
  • Credly Profile Last Name
  • Credly Profile Bio
  • Credly Profile URL
  • Credly Credentials
  • Earner preferred contact information
  • Supplemental information provided by Earner at Earner’s discretion