These terms of services (“Terms”) govern access to the Website of Xtramile and/or use of the services provided by Xtramile SAS to Employers (referred to as “Customer” “You” and “Your” throughout these Terms).
Specific conditions may also be agreed between Xtramile and the Customer. In case of discrepancies or contradiction between these Terms and the specific conditions agreed between the Customer and Xtramile, the specific conditions shall prevail.
“Candidate”: Any person using the Xtramile services and/or the Website to search for a job, consult the job offers, apply for a job, or review Employers’ careers pages.
“Contract”: the specific terms and conditions agreed between Xtramile and a Customer.
“Xtramile”: a French limited liability company (SAS or Société par Actions Simplifiée) with an equity capital of 156,100.00 euros, headquartered 11 Rempart Saint Thiébault, 57000 METZ (France), registered with the Metz Companies and Trade Register (RCS) under the number 808 982 037.
“Customer”: Person or entity, registered on the Website in the Employers category, using the Services offered by Xtramile as an employer.
“Referent”: Someone designated by the Employer and who is to be jointly responsible with the Employer for the password use for access on the Website.
'Search Engine': The integrated tool on the Website, property of Xtramile, which allows users of Xtramile services to facilitate on demand access to relative sources of information regarding job offers and job applications whether the user is a Candidate or Employer.
“Services: All services proposed by Xtramile to Customers, as detailed in section 2.1.
“Terms”: the present general terms and conditions of Services of Xtramile.
“Customer Data”: shall have the meaning given in Section 2.1.
“Website”: the following website, operated by the Xtramile and proposing online the Xtramile Services: www.myxtramile.com
Acceptance - Provision of Services by Xtramile
1.1. Acceptance. These Terms are published online by Xtramile on the Website. Every connection and subscription by a Customer to the Website is subject to compliance and acceptance of the present Terms. By acceptance of these Terms during first registration, the Customer acknowledges that he has read, fully understood and accepted these Terms. The Terms shall supersede any of the terms and conditions of any Customer. For the Customer, the mere access to the Website implies full and irrevocable acceptance of all terms and conditions described herein.
1.2. Services. Xtramile will make available to Customer the Services identified in a Contract during the time period (the “Subscription Term”) identified in the Contract. The Services offered by Xtramile are defined in more details in Section 2 below. Customer agrees that its purchases under these Terms and each Contract are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written comments made by Xtramile regarding future functionality or features.
1.3. Provision of Services. Xtramile will provide Customer with a list of information on the Contract necessary to provision Customer’s access to the Services. Xtramile will complete provisioning, setup and, if applicable, customization after receipt of the signed Contract. If Customer has ordered customized implementation Services, Customer shall pay amounts due for such Services as set forth on the Contract. If the Customer does not provide accurate or timely information specified on the Contract, additional fees may be due in order to complete provisioning and set up in a timely manner.
1.4. Third-Party Sites, Website and Services. The Services may rely on or require that the Customer access or enable access to services made available by third parties, which may include online, Web-based application subscription services, and any associated offline products (collectively, “Third Party Offerings”). Customer represents that such access shall comply with the terms of service governing Third Party Offerings and is solely responsible for such compliance. Customer understands and agrees that the availability of the Website and/or Services, or certain features and functions of the Services, are dependent on the corresponding availability of Third Party Offerings or specific features and functions of Third Party Offerings. Accordingly, Xtramile shall not be liable to Customer or any third party in the event that changes in Third Party Offerings cause the unavailability of the service or any feature or function of the Service.
1.5. Availability. Xtramile will use commercially reasonable efforts to make the Services and Website available 24 hours a day, 7 days a week, with minimal downtime, except for: (a) planned downtime not to exceed 2 hours per week (b) planned downtime exceeding 2 hours a week of which Customer will be notified in advance (b) any unavailability caused by third parties or by circumstances beyond Xtramile`s control.
1.6. Enhancements and New Features. Subsequent enhancements to the Website and the Services made generally-available to all subscribing customers without additional charge will be made available to Customer so long as Customer is in compliance with these Terms and the Contract. However, the availability of new features to the Xtramile Website or Services may require the payment of additional fees, and Xtramile will determine at its sole discretion whether access to any other such new features will require an additional fee. Unless otherwise set forth in a Contract, these Terms will apply to any updates, upgrades and new offerings subsequently provided by Xtramile to Customer as part of any purchased Services.
2. Use of Services
2.1. Use of Services. Customer understands and agrees that depending on what Services Customer purchases, the Services may include: (i) the publication of job listings on Facebook, Instagram, on The Website, and/or on other social media platforms; and/or (ii) products and/or features and/or services that drive traffic, applications and referrals to those sites and/or specific job listings; and/or products and/or services to create content including but not limited images, videos, articles on behalf of the Customer. Customer is solely responsible for the accuracy of the content of such listings and information and for any other material (including but not limited to articles, images, advertisements, personal messages, and discussion posts) either made available by Customer or created by Xtramile on behalf of the Customer through the Services (collectively, “Customer Data”). Customer acknowledges that Xtramile does not screen employers or Candidates and that Xtramile is not an employer or employment agency.
2.2. Customer Responsibility. Customer is sole responsible to ensure that Customer’s employees, independent contractors, and agents who have access to the Services and the Website comply with these Terms, and maintain the confidentiality of their passwords and user names.
2.3. Intended and Lawful Purposes. Customer agrees to use the Services and the Website only for purposes that are permitted by these Terms in compliance with applicable law, regulation, and generally accepted practices or guidelines in the relevant jurisdictions (including any laws regarding the export of data or software to and from the United States or other relevant countries). Customer agrees that it shall not use the Services and the Website to post or disseminate any material that is infringing, obscene, threatening, libellous, or otherwise unlawful or tortious material, including material that is harmful to children or violates the rights of any third party.
2.4. Temporary Suspension. Xtramile may temporarily suspend Customer’s or its Referents’ access to the Services in the event that: (i) Customer fails to pay amounts when due; or (ii) Xtramile determines, in its sole discretion, that Customer or any User is engaged in any unauthorized conduct or is in any violation of these Terms. Xtramile will attempt to contact Customer prior to such suspension, provided, however, that Xtramile’s exercise of the suspension rights will not be conditioned upon Customer’s receipt of any notification. Customer agrees to notify Xtramile immediately of any unauthorized use of any password or account or any other known or suspected breach of security impacting the Services.
3. Proprietary Rights
3.1. Reservation of Rights. Each party will maintain all rights, title and interest in and to all respective patents, inventions, copyrights, trademarks, domain names, trade secrets, know-how and any other intellectual property and proprietary rights (collectively, “Intellectual Property Rights”). The rights granted to use the Services and the Website under these Terms do not convey any additional rights in the Services or in the Website or in any Intellectual Property Rights associated therewith.
3.2. Xtramile License. Subject to these Terms, Xtramile hereby grants Customer a non-exclusive license limited to the right to use and access the Services and the Website during the Subscription Term solely for Customer’s own use.
3.3. Xtramile Marks. Xtramile™ and other product and service names, and logos used or displayed on the Website are registered or unregistered trademarks of Xtramile (collectively, “Marks”) and Customer may only use such Marks to identify itself as a customer and user of the Services. Customer acknowledges that Xtramile may display a “Powered by Xtramile” or similar language on publications generated through the Services.
3.4. Competitive Services. Customer will not access the Services for the purpose of building a similar or competitive product or service or for the purpose of obtaining unauthorized access to the Services. Customer will not copy, translate, create a derivative work of, reverse engineer, reverse assemble, disassemble, or decompile the Services or the Website or the Search Engine or any part thereof or otherwise attempt to discover any source code or modify the Services or the Website or the Search Engine.
3.5. Customer License. Customer grants Xtramile a worldwide, royalty-free, and non-exclusive license to reproduce, adapt, modify, translate, publish, publicly perform, publicly display, and distribute any material or Customer Data which the Customer and its Referents submit, post, or display on or through, the Services or which is required for Xtramile to provide the Services. This license is for the sole purpose of enabling Xtramile to operate, display, distribute, and promote jobs posted by Customer and to provide the Services. Customer acknowledges that some promotion of Customer job openings, such as through Twitter®, may not be removed after publication. If Customer has elected to provide Xtramile with access to Customer systems, through an API or otherwise, Customer hereby grants to Xtramile all necessary rights to implement and maintain such connections during the Subscription Term.
3.6. Feedback. Any feedback provided by Customer or Referents regarding the Services (“Feedback”) is the proprietary and Confidential information of Xtramile, and Customer hereby assigns all right, title and interest in and to such Feedback, including all intellectual property rights therein, to Xtramile.
4. Data and Content
4.1. Customer Data. Customer exclusively owns all right, title and interest in and to all Customer Data. Customer Data also includes resumes and other information provided to Customer through the Services by applicants. Customer Data is the Confidential Information of Customer under these Terms.
4.2. Safeguarding of Customer Data. Xtramile will maintain reasonable administrative, physical and technical safeguards for the protection, confidentiality and integrity of Customer Data (the same as Xtramile uses to protect its data); and provide the Services in accordance with applicable laws and government regulations. However, Customer shall be responsible for maintaining backups, on systems other than those of Xtramile, of any important files and content; and Xtramile shall not be liable for unavailability of Customer Data through the Services if Customer has not made such backups.
5. Fees and Payment Terms
5.1. Fees. Customer agrees to pay to Xtramile in due time all fees specified in all Contracts. Except as otherwise specified in the Contract, (i) fees are quoted and payable in Euros on a monthly or a yearly basis or any other period as agreed with the Customer, (ii) fees are based on Services purchased, (iii) payment obligations are non-cancellable and non-refundable, and (iv) the Services purchased cannot be decreased during the relevant Subscription Term. Subscription pricing may change on renewal or once a year upon thirty (30) days’ prior written notice. All amounts payable under these Terms will be made without setoff or counterclaim, and without any deduction or withholding.
5.2. Invoices and Payment. All fees will be invoiced in advance and in accordance with the applicable Contract. Except as otherwise set forth in the applicable Contract, Customer agrees to pay all invoiced amounts within thirty (30) calendar days of the invoice date.
5.3. Overdue Amounts. If Xtramile does not receive fees by the due date, then at Xtramile’s discretion, (i) Xtramile may charge a late fee equal to 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is higher, from the date such payment was due until the date paid; and/or (ii) Xtramile may, without limiting Xtramile’s other rights and remedies, suspend Customer’s and its Referents’ access to the Services and Website until such amounts are paid in full. Xtramile may also charge additional fixed administrative costs of EUR 40 for any overdue amount.
5.4. Taxes. All fees payable are exclusive of all sales, use, value added, and all other similar taxes imposed by any federal, state, or local governmental entity for items and/or services provided under the Contract, all of which shall be the responsibility of the Customer, excluding taxes based solely on Xtramile income or property.
Each party acknowledges that it will have access to certain information and materials concerning the other party’s business, services and products that are confidential, including but not limited to the terms of the Contract, non-public financial information, information about future and proposed services and products, technologies and know-how, and proprietary business processes (“Confidential Information”). Each party agrees that it will not use the Confidential Information of the other party except in performance of the Contract, or disclose such Confidential Information to third parties except (i) as required by applicable law and provided the receiving party uses reasonable efforts to give the disclosing party advance notice of such required disclosure; and (ii) to its parent company or its parent company’s majority-owned subsidiaries (“Affiliates”) that have a need to know such information and have agreed to protect the Confidential Information in a manner no less protective than this Agreement. The receiving party will also take every reasonable precaution to protect the Confidential Information of the disclosing party with the same care it uses to protect its own Confidential Information, but no less than reasonable care. For purposes of the foregoing obligations, Confidential Information does not include information which (i) was rightfully known to the receiving party prior to its receipt, (ii) is or becomes publicly available without breach of this Agreement or wrongful act of the recipient, (iii) is received by the recipient without an obligation of confidentiality and without breach of this Agreement, or (iv) is developed independently by the recipient without using Confidential Information of the other party.
7.1. Warranties. Each party represents and warrants that (a) it has the requisite corporate power and authority to enter into and perform its obligations under these Terms and any Contract; and (b) it shall comply with all applicable privacy, consumer and other laws and regulations. In addition, Xtramile represents and warrants that it shall use reasonable commercial efforts to maintain availability of the Services.
7.2. General Disclaimers. EXCEPT AS EXPRESSLY STATED HEREIN, (I) NEITHER PARTY MAKES ANY WARRANTY, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT; AND (II) THE SERVICES ARE PROVIDED ON AN “AS IS” BASIS AND XTRAMILE MAKEs NO REPRESENTATION OR WARRANTY THAT THE SERVICES OR THE WEBSITE SHALL BE COMPLETELY SECURE OR OPERATE WITHOUT DEFECT, LOSS OF DATA, ERROR OR INTERRUPTION.
8.1. Intellectual Property Indemnification. Xtramile will defend and pay any settlement amounts and damages, costs and expenses awarded by a court of final jurisdiction arising out of any third party claim, suit or proceeding alleging that Customer’s use of the Services in accordance with these Terms infringes a third party’s copyright or patent issued as of the Subscription Start Date (defined in Section 10.1 below). Xtramile retains the option to settle any such claim at any point. The foregoing obligation will not apply with respect to a claim of infringement if such claim arises out of (i) Customer’s use of infringing Customer Data (ii) use of the Services in combination with any software, hardware, network or system not supplied by Xtramile where the alleged infringement relates to such combination, (iii) any modification or alteration of the Services by the Customer (iv) if Customer continues the allegedly infringing activity after being informed of modifications that would have avoided the alleged infringement, or (v) Customer’s violation of applicable law or this Agreement.
8.2. Customer Data. Customer, at its expense, will defend and pay any settlement amounts or damages awarded by a court of final jurisdiction arising out of any third party claim, suit or proceeding (i) alleging that the Customer Data infringes any third party trade secret, trademark, copyright, or patent issued as of the Subscription Start Date; (ii) or arising from occurrence of the conditions set forth in Section 8.1(i)-(v) above. Customer will also indemnify Xtramile against any violation of these Terms or the Contract by Customer’s Affiliate.
8.3. Conditions. The parties’ obligations under this Section 8 are contingent upon the indemnified party (i) giving prompt written notice to the indemnifying party of any claim under this Section, (ii) giving the indemnifying party sole control of the defense or settlement of the claim, and (iii) cooperating in the investigation and defense of such claim(s), at the indemnifying party’s expense. The indemnifying party will not enter into any settlement which requires an admission of liability of the indemnified parties or imposes monetary obligations on the indemnified party, without the prior express written consent of the indemnified party. The rights and remedies set forth in this Section 8 are subject to the limitations and exclusions set forth in Section 9 below, and are the sole obligations of the indemnifying party and exclusive remedies available to the indemnified party in the event of infringement of third party rights by the indemnifying party.
9. Limitation of Liability
9.1. Limitation of Liability. IN NO EVENT WILL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THESE TERMS, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE TOTAL AMOUNT PAID BY AND DUE FROM CUSTOMER HEREUNDER IN THE 6 MONTHS PRECEDING THE INCIDENT GIVING RISE TO THE CLAIM.
9.2. Exclusion of Consequential Damages. IN NO EVENT WILL XTRAMILE BE LIABLE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF PROFIT OR LOSS OF OPPORTUNITY) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THE SERVICES AND/OR THESE TERMS AND/OR THE CONTRACT, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE SERVICES OR THE WEBSITE, OR FOR ANY LOSS OF CUSTOMER DATA OBTAINED FROM OR THROUGH THE SERVICES, ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION, REGARDLESS OF CAUSE, EVEN IF XTRAMILE AND/OR ITS LICENSORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR COULD HAVE REASONABLY FORESEEN THEM.
10. Term and Termination
10.1. Initial Subscription Term. For all Xtramile products and services subscriptions, the Initial Subscription Term begins 15 days after the date the Contract is executed by the parties (the “Subscription Start Date”) and continues for the period set forth in the Contract (each a “Subscription Term”). The Customer is solely responsible for providing the required information and documents to get the product or Services live, no later than 2 days after the date Contract is executed by the parties.
10.2. Acceptance Period. On or before the Subscription Start Date, Xtramile will notify the Customer in writing (email to suffice) stating that the deliverables outlined in the Contract have been completed and delivered. Delivery is defined by Xtramile as the time at which the Services are fully operational and ready to be used by the Customer without consideration of the Customer’s internal processes or availability of third party accounts (Facebook®, Google®, Twitter®, etc.), such as advertising, hosting, branding, and other third party services. The deliverables are deemed accepted by the Customer within 5 days from the date of Xtramile’s notice unless rejected by the Customer within such 5-day period, in which case the Customer shall itemize and detail in written notice (email to suffice) to Xtramile each deliverable which is not operational and ready to be used by the Customer. Xtramile will use diligent efforts to make corrections and promptly deliver the deliverables for re-test and acceptance subject to the foregoing process.
10.3. Renewal Term. The Contract will automatically renew for successive Subscription Terms of the same duration unless either party provides written notice of its intent not to renew at least sixty (60) days prior to the end of the then-current Subscription Term.
10.4. Termination for Cause. These Terms may be terminated by either party: (i) for cause upon thirty (30) days written notice if the other party breaches or defaults under any material provision of these Terms or the Contract and does not cure such breach prior to the end of such thirty (30) day period; and (ii) effective immediately and without notice if the other party ceases to do business, or otherwise terminates its business operations.
10.5. Effect of Termination. If Xtramile and the Customer have issued a single Order pursuant to these Terms, termination of that Contract will automatically terminate these Terms. If Xtramile and the Customer have issued multiple Contracts pursuant to these Terms, termination of one Contract will not terminate any other Contract or these Terms.
10.6. Survival. Except to the extent expressly provided to the contrary herein, all payment obligations and the terms of Sections 3.1, 3.6, 4.1, 5.4, 7, 8, 9, 10.6 and 11 will survive the expiration or termination of these Terms.
11. General Provisions
11.1. Complete Agreement. These Terms, the General conditions of Use of Xtramile (both available on the Website) and all Contracts issued hereunder set forth the entire agreement between the parties and supersede all prior proposals, marketing materials, negotiations and other written or oral communications between the parties with respect to the subject matter of these Terms and Contracts. To the extent of any conflict or inconsistency between the provisions in the body of these Terms and any Contract, the Contract will prevail. Notwithstanding any language to the contrary therein, no terms or conditions stated in Customer’s purchase order or in any other ordering documentation (excluding Contracts) will be incorporated into or form any part of these Terms, and all such terms or conditions will be null and void. These Terms may be modified or amended only by a writing signed by the parties with the exception of unilateral written notice-address changes.
11.2. Relationship. The parties are independent contractors. Nothing in these Terms will be deemed or construed to create or imply any agency, representative, joint venture, partnership, or employer-employee relationship between the parties for any purpose, including but not limited to taxes or employee benefits.
11.3. Public Use. Customer acknowledges and agrees that Xtramile products will be installed on Customer’s public Facebook page and the fact that the Customer uses the Service is public information. Xtramile may reference Customer and its use of the Services in private customer and prospect communications and on Xtramile′s Website. Customer also agrees that Xtramile may reference Customer’s use of Services or Website in marketing and public relations materials, including a press release announcing a Customer as a new customer. Customer grants Xtramile a non-exclusive, worldwide license, during the Term, to use and display its trademarks, trade names and logos solely in connection with the foregoing uses.
11.4. Governing Law and Venue. These Terms will be exclusively governed by and construed under the laws of France without regard to its conflict of law rules. The courts located in Metz, France, will have exclusive jurisdiction to adjudicate any dispute relating to these Terms. Each party hereby irrevocably consents to the exclusive jurisdiction of such courts.
11.5. Assignment. Either party may assign these Terms in its entirety (including all Contracts), without consent of the other party, to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets not involving a direct competitor of the other party. A party’s sole remedy for any purported assignment by the other party in breach of this paragraph will be, at the non-assigning party’s election, termination of these Terms upon written notice to the assigning party. Subject to the foregoing, these Terms will bind and inure to the benefit of the parties, their respective successors and permitted assigns.
11.6. Force Majeure. Neither Party nor any Affiliate will be liable to the other for non-performance or delay in performance caused by anything beyond its reasonable control, including without limitation, acts of God, acts or omissions of the other, acts of government, war, strikes, lockouts or embargoes.
11.7. Notice. Any notice, report, approval or consent required under these Terms will be in writing and will be deemed to have been given upon receipt (i) delivered personally, by courier or by express service or (ii) mailed by registered or certified mail postage prepaid to the respective addresses of the parties. The Customer’s address will be the Customer address on record in Xtramile account information.
The Xtramile address will be the address of record at the time, currently:
Email Address : firstname.lastname@example.org
11 Rempart Saint Thiébault,
57000 Metz (France)