Privacy Policy - ProboTalent

How we handle your information.

PROBOTALENT LLC Last updated: 2026. This policy describes how ProboTalent collects, uses, and protects your information.

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PROBOTALENT LLC

CUSTOMER TERMS AND CONDITIONS

Last Updated July 1, 2026

These Customer Terms and Conditions (“Terms and Conditions”) govern your use as a Customer of the ProboTalent Service (the “Service” or the “ProboTalent Service”). By using the Service as a Customer, you agree to these Terms and Conditions. If you do not agree to these Terms and Conditions, you may not use the Service.

The Service, among other things, enables customers (“Customers”) to request job candidates (“Candidates”) that have applied for employment or other positions with such Customers to complete assessments (“Assessments”) for use by the Customers in employment decisions.

The Service also enables Customers to request Candidates to request reference providers (“Reference Providers”) to provide Reference Assessments of the Candidates (called “Reference Assessments” or “Reference Checks”) for use by Customers in employment or similar decisions.

ProboTalent is not a hiring party and does not make hiring decisions. Rather, ProboTalent is a software provider that (i) makes the Service available to Customers for their use in connection with their employee search, recruitment, assessment and hiring activities, (ii) makes the Service available to Candidates that have elected to use the Service in connection with their participation in Customer recruitment, assessment and hiring activities, and (iii) makes the Service available to Reference Providers (that Candidates have identified and requested to provide Reference Assessments) that are willing to use the Service to provide assessments of Candidates.

To use the Service as a Customer, the Customer must agree to these Customer Terms and Conditions and must be located within the Territory (as defined below).

To use the Service on behalf of a Customer, a natural person must be at least 18 years of age and must be a designated user (“Designated User”) of the Customer.

To use the Service as a Candidate, the Candidate must agree to Candidate Terms and Conditions pertaining to the Service (the “Candidate Terms and Conditions”), must be at least 18 years of age, and must be located within the Territory.

To use the Service as a Reference Provider, the Reference Provider must agree to Reference Provider Terms and Conditions pertaining to the Service (the “Reference Provider Terms and Conditions”), must be at least 18 years of age, and must be located within the Territory.

We may change these Terms and Conditions and/or the Service from time to time. Your continued use of the Service after any such change will, without any further act or deed, be deemed your acceptance of any such change.

SECTION I – DEFINITIONS

Capitalized terms used and not otherwise defined in these Terms and Conditions shall have the meanings set forth below:

“Applicant” shall mean any employee or candidate for employment (including, without limitation, independent contractors) or other individual who is the subject of a Consumer Report or Investigative Consumer Report.

“Applicant Adverse Action Disclosure” shall mean any applicable pre-adverse action notice, adverse action notice or other similar notice required to be provided to any Applicant or other person under the Fair Credit Reporting Act or other applicable law.

“Applicant Consent” shall mean any consent or authorization required to be obtained from any Applicant or other person under the Fair Credit Reporting Act or other applicable law to the obtaining of a Consumer Report or Investigative Consumer Report for employment or other purposes.

“Applicant Notice” shall mean (i) any notice required to be provided to any Applicant or other person under the Fair Credit Reporting Act or other similar law that a Consumer Report or Investigative Consumer Report may be (or has been) obtained for employment or other purposes, and/or (ii) any notice required to be provided to any Applicant or other person under the Fair Credit Reporting Act or other similar law advising the Applicant or other person of their rights under the Fair Credit Reporting Act or other similar law (including the Summary of Consumer Rights).

“Assessment” means an assessment completed by a Candidate using the Service (such as a knowledge assessment, a skills assessment, a personality assessment, a culture fit assessment or a blended assessment). Assessments are generally provided in the form of a survey that is provided to the Candidate for completion. Customers must approve the Assessments that are used for their Candidates (including the questions to be responded to by Candidates in the Assessments).

“Candidate” means a Person who uses the Service for purposes of completing Assessments for Customers or having Reference Providers complete Reference Assessments regarding such Candidate for Customers.

“Candidate Account” means an account established by a Candidate to use the Service.

“Candidate App” means the computer website or application, as applicable, that a Candidate uses to access the Service.

“Consumer Report” shall mean any consumer report, as defined in the Fair Credit Reporting Act.

“Consumer Reporting Agency” or “CRA” shall have the meaning assigned to such term in the Fair Credit Reporting Act.

“Customer” means a Person who uses the Service to send requests to Candidates to establish Candidate Accounts so that the Candidates can, in turn, use the Service to complete Assessments, and/or ask Reference Providers to complete Reference Assessments of such Candidate, and the Reference Providers can, in turn, use the Service to provide Reference Assessments of such Candidate, which Assessments and Reference Assessments the Customer can then access through the Service for purposes of evaluating Candidates for employment and other purposes. For purposes of clarity, it is noted that you are a Customer.

“Customer Account” means an account established by a Customer to use the Service, including sending requests to Candidates, and accessing Assessments completed by Candidates and Reference Assessments provided by Reference Providers.

“Customer App” means the computer website or application that a Customer uses to use the Service.

“Fair Credit Reporting Act” or “FCRA” shall mean the Fair Credit Reporting Act promulgated by the Federal Government of the United States of America, 15 U.S.C. §1681 et seq.

“Investigative Consumer Report” shall mean any investigative consumer report, as defined in the Fair Credit Reporting Act or other applicable law.

“Our Software” means the computer software that we use to provide the Service, which software may be owned or licensed by us.

“Parties” means you and us.

“Permitted Third-Party Agent” means a Person that is both (a) authorized by a Customer to act on its behalf in connection with its interaction with Candidates, such as a third-party recruiter that is performing services for a given Customer, and (b) authorized by us to use the Service on behalf of such Customer.

“Person” means an individual or a corporation, limited liability company or other entity.

“Reference Assessment” or “Reference Check” means an evaluation of a Candidate that is provided by a Reference Provider through the Service. Reference Assessments are generally provided in the form of a survey that is provided to the Reference Provider for completion. Customers must approve the Reference Assessments that are used for their Candidates (including the questions to be responded to by Reference Providers in the Reference Assessments).

“Reference Provider” means a person who has been asked by a Candidate to provide a Reference Assessment of the Candidate.

“Representatives” means a Person’s officers, directors, members, managers, employees, agents and other legal representatives.

“Service” means the web-based service that we offer that Customers may use to send requests to one or more Candidates to establish Candidate Accounts so that (a) the Candidates can, in turn, use the Service to complete Assessments, (b) the Candidates can, in turn, use the Service to ask Reference Providers to provide Reference Assessments of such Candidate, and (c) the Reference Providers can, in turn, use the Service to provide Reference Assessments of such Candidate, which Assessments and Reference Assessments the Customer can then access through the Service for purposes of evaluating Candidates for employment and other purposes. The Service includes Our Software, the Customer App and your Customer Account.

“Summary of Consumer Rights” shall mean the notice entitled “Summary of Your Rights Under the Fair Credit Reporting Act (“September 2018)” published by the United States Consumer Financial Protection Bureau.

“Taxes” means all sales, use, excise, VAT and other taxes arising from your use of the Service (other than taxes based on our net income).

“Territory” means the United States of America.

“we”, “us”, “our” or “ProboTalent” means ProboTalent LLC, a New York limited liability company, with an address at 4 May Hill Lane, Dix Hills, NY 11746.

“you” or “your” means you as the Customer using the Service.

SECTION II – YOUR USE OF THE SERVICE

2.1 General. To use the Service as a Customer, you must first establish a Customer Account within the Service. To create a Customer Account, you will need to provide identifying information such as your name and address, and will need to provide contact information such as phone number and email address. You may also need to provide payment information to be used for the payment of service fees, as applicable. If you are a corporation, limited liability company or other entity, you will also need to designate one of your Representatives who is an individual as an administrator (“Administrator”) for your Customer Account. Your Administrator may then designate those of your Representatives who will have access to your Customer Account for purposes of using the Service (your Administrator, and your Representatives designated by your Administrator who have access to your Customer Account for purposes of using the Service, are referred to herein as “Designated Users”). All Designated Users must be 18 years of age or older. After you have created your Customer Account, you will be able to use the Service. You agree to provide full and accurate information when setting up your Customer Account, and to keep such information (including payment information) current.

2.2 Agreements and Release. As a condition to your use of the Service, you agree that we (and our licensors and service providers) shall have no liability with respect to any content that you post to your Customer Account. You further agree that we (and our licensors and service providers) shall have no responsibility for, and shall have no liability with respect to, any decisions you make concerning the selection or hiring of Candidates. You further agree that we (and our licensors and service providers) shall have no responsibility for, and shall have no liability with respect to, the content of any Assessment that is completed by any of your Candidates or any Reference Assessment that is provided by any of your Candidate’s Reference Providers, or any selection or hiring decisions taken or not taken based upon any such Assessments or Reference Assessments.

2.3 Restrictions. You agree that you will not in connection with your use of the Service: (a) copy, sell, resell, license or distribute any portion of the Service (except for the copying of Assessments and Reference Assessments for hiring and other permitted purposes in the manner contemplated herein), or allow the use of the Service by any third-party except for your Administrator, Designated Users and Permitted Third-Party Agents (if and as applicable); (b) offer to sell, lease or license any product, service or technology on or through the Service; (c) post or transmit any material that is unlawful, threatening, harassing, abusive, tortious, defamatory or libelous; (d) post or transmit, without permission, any confidential or personal information of any third-party; (e) post or transmit any content that infringes the intellectual property rights of any third-party; (f) attempt to use the Service for any unauthorized or unintended purpose; (g) attempt to circumvent any security feature of the Service; or (h) transmit any virus, corrupted files, or malicious code to the Service.

2.4 Release of Reference Providers. In connection with, and as a condition of, your use of the Service, you agree to, and hereby do, release any and all Reference Providers that provide Reference Assessments of any of your Candidates from any and all liability pertaining to the provision of, or the content of, any such Reference Assessments.

2.5 Release of Us for Candidate Assessments and Reference Provider Reference Assessments. In connection with, and as a condition of, your use of the Service, you agree to, and hereby do, to the fullest extent permitted by law, release us (and our licensors and service providers) from any and all liability pertaining to the provision of, or the content of, any Assessment or Reference Assessment, including any Assessment that is completed by any of your Candidates or any Reference Assessment that is provided by any of your Candidate’s Reference Providers.

2.6. Compliance with Law. You shall comply, in connection with your use of the Service, with all Federal, state, local and other laws and regulations that apply to you and your use of the Service including, as applicable, applicable employment laws (including, without limitation, equal employment opportunity laws), the Fair Credit Reporting Act, applicable laws governing the use of artificial intelligence and applicable privacy laws.

2.7. Compliance with Fair Credit Reporting Act. Without limiting the generality of Section 2.6, you shall comply with all applicable provisions of the Fair Credit Reporting Act, including by way of providing any applicable Applicant Notices, obtaining any applicable Applicant Consents and/or providing any applicable Applicant Adverse Action Disclosures, in each case to the extent you are required to do so by the Fair Credit Reporting Act or other applicable law.

2.8. Compliance with Applicable Privacy Law. Without limiting the generality of Section 2.6, you shall comply with all applicable privacy and data protection laws, including by way of adopting and making available a privacy policy (or policies) which describes your policies regarding the collection, use, sharing, maintenance and disposal of personal information, and implementing a policy (or policies) providing for the safeguarding of personal information in your possession, in each case to the extent you are required to do so by applicable law.

2.15 Prohibition Relating to Protected Health Information. You agree that you shall not use the Service for the purpose of uploading, saving, transmitting, disclosing, sharing, accessing or maintaining any Protected Health Information (as such term is defined under HIPAA and the rules and regulations thereunder). For purposes of the forgoing, (i) “HIPAA” shall mean the United States Health Insurance Portability and Accountability Act promulgated by the Federal Government of the United States of America, 42 U.S.C. §1320d et seq., and (ii) “Protected Health Information” shall have the meaning assigned to such term under HIPAA and the rules and regulations thereunder.

SECTION III – YOUR USE OF THE CUSTOMER APP

3.1. Use of the Customer App. Subject to these Terms and Conditions, and the payment of all applicable fees pertaining to the Service, you may, during the Term, access the Customer App on your computer(s) or mobile device(s) (as applicable) and may use the Customer App in connection with your use of the Service. In connection with your use of the Customer App, you consent to send and receive messages and other content via the Customer App, text message, email, and other electronic means provided for by the Service. You agree that you will comply with these Terms and Conditions in connection with your use of the Customer App, and will cause your Administrator, Designated Users and Permitted Third-Party Agents (if and as applicable) having access to the Customer App to comply with these Terms and Conditions in connection with their use of the Customer App.

3.2.  Protecting Your Account. You agree to not share your login information or password with any third-party (other than your Permitted Third-Party Agents (if and as applicable)). You further agree to not let any party access or use your Customer Account, except your Administrator, Designated Users and Permitted Third-Party Agents (if and as applicable). You further agree that you are responsible for protecting the confidentiality of your login information and password, and agree to promptly notify us if you believe that the confidentiality of your login information or password has been compromised or there has been unauthorized access to your Customer Account.

3.3. Third-Party Websites and Third-Party Content. The Customer App or other parts of the Service may contain links to third-party websites (“Third-Party Websites”) or third-party content, products or services (“Third-Party Content”). All Third-Party Websites are, and Third-Party Content is, the responsibility of the applicable third-party. We are not responsible for, make no representation or warranty with respect to, and shall have no liability pertaining to, any Third-Party Websites or Third-Party Content. All Third-Party Websites are, and Third-Party Content is, governed by the terms and conditions, privacy policies or other governing documents of the applicable third-party. You should review the terms and conditions, privacy policies and other governing documents that are applicable to such Third-Party Websites and Third-Party Content before use.

SECTION IV – USE OF ID VERIFICATION FEATURES

4.1. ID Verification Features. Certain features accessible through the Service (the “ID Verification Features”) enable Candidates to verify their identity by uploading an image of their driver’s license (or other acceptable government ID), as well as a photo or video selfie, for use in verifying their identity. The ID Verification Features are intended to provide Candidates with a method of verifying their identity, for the benefit of the applicable Customer, based upon inspection of the government ID and comparison of the photo on the government ID and the selfie.

4.2. Provision of ID Verification Services by Third-Party ID Verification Providers. ProboTalent does not, itself, provide identity verification services (“ID Verification Services”). Rather, the Service provides access to certain Third-Party ID Verification Providers (“Third-Party ID Verification Providers”) such as ID.me, LLC (“ID.me”) and Persona Identities, Inc. (“Persona”) that provide ID Verification Services.

4.3. Collection of Biometric Information in Connection with ID Verification Services. The processes used by the Third-Party ID Verification Providers may involve the collection of biometric data, including facial images and government-issued identification documents. Biometric data collected during identity verification is processed by the Third-Party ID Verification Providers and is not collected, processed or stored by ProboTalent or shared by ProboTalent with Customers or hiring decision-makers. Only the following information is collected and stored by ProboTalent and made available to Customers: Verification Outcome (ID verified/not verified), Verification Date and Liveness Check Result (confirming real person, not a deepfake). ProboTalent does not provide biometric data to Customers (or Customer authorized representatives) for use in connection with their employment decisions.

4.4. Third-Party ID Verification Provider Terms and Conditions and Privacy Policies. The Third-Party ID Verification Providers collect, process, use, retain, store and dispose of biometric data as provided in their terms and conditions, privacy policy and/or other governing documents, which are separately made available by such Third-Party ID Verification Providers.

4.5 Compliance with Additional Customer Terms Applicable to ID Verification Features. In addition to the general requirements set forth in these Terms and Conditions regarding your use of the Service, you agree to the Additional Customer Terms Applicable to ID Verification Features – ID.me Related Terms attached hereto as Annex D, if you use the ID Verification Features provided by ID.me, LLC (“ID.me, LLC”) and you agree to the Additional Customer Terms Applicable to ID Verification Features – Persona Related Terms attached hereto as Annex E, if you use the ID Verification Features provided by Persona Identities, Inc. (“Persona”).

4.6. Candidate Consent to Collection and Use of Biometric Information. In addition to the other requirements set forth in this Section IV regarding the collection and use of biometric information, you agree to require Candidates to acknowledge and consent to the collection and use of biometric information in the Service in form and substance meeting the requirements of applicable law. Customers may refer to the Consent to Collection and Use of Biometric Information form attached as Annex A to the Candidate Terms and Conditions for reference purposes.

4.7. Biometric Data Retention and Destruction Policy. A copy of our Biometric Data Retention and Destruction Policy is attached hereto as Annex I.

SECTION V – USE OF ARTIFICIAL INTELLIGENCE FEATURES

5.1. Use of Artificial Intelligence. Certain features of the Service utilize artificial intelligence (“AI”) (such features being referred to herein as the “AI Features”). The AI Features use generative AI to help Customers create content that Designated Users of Customers (who are, by definition, human beings) may use in their evaluation of Candidates. For example, the AI Features allow Designated Users to generate a suggested company profile for the Customer in question, generate a suggested job description for the job in question, generate a suggested skills taxonomy that relates to the job in question and generate suggested questions to be asked of Candidates and related answers. The suggested company profile, suggested job description, suggested skills taxonomy and suggested questions and related answers are all generated without any reference to or evaluation of any specific Candidate(s), and must be reviewed and approved by a Designated User (that is, a human user) before use. The suggested skills taxonomy and suggested questions and related answers are based upon validated industrial-organizational psychology methodologies (“IO Methodologies”) and are designed to protect against bias. The AI features also prompt Candidates to give full answers to questions by employing standard STAR Method prompts (Situation, Task, Action and Result Method prompts). These prompts are not based upon any substantive evaluation of Candidates or their responses. Rather, the prompts are generic and are intended and designed to simply prompt Candidates to give full answers to questions. The AI features also include certain resume scanning functionality to identify the presence of key words. This functionality does not use AI to evaluate the content of resumes or the Candidates in question. The AI features also include certain programmatic job advertising functionality, which enables Designated Users to use AI in making job posting advertising spend decisions. This functionality does not relate to the evaluation of Candidates. You agree to use the AI Features in accordance with the foregoing intended use cases.

5.2. Artificial Intelligence Features Not Intended to Make Hiring Decisions.

You acknowledge that the AI Features are not intended to use artificial intelligence to generate output relating to specific Candidates, are not intended to use artificial intelligence to score or rank specific Candidates, and are not intended to use artificial intelligence to make, recommend or participate in hiring decisions pertaining to specific Candidates. Rather, the AI Features are intended to use generative AI to produce general content that human users may use, in their judgement, along with other content, processes and interactions that humans commonly use in assessing employment candidates (such as interviews and references) and the human decision-makers' own judgment. The AI Features are generative in nature, not evaluative, and are not intended to use artificial intelligence to provide an evaluation of any specific Candidate. The AI Features are general in nature, and are intended to produce content that is designed for and based upon a given job classification. The AI Features are not intended to, and may not be used to, produce content that is designed for or based upon any specific Candidate(s). You agree to use the AI Features in accordance with the foregoing intended use cases.

5.3. Artificial Intelligence Features Not Intended to Replace Human Decision Making. You acknowledge that the AI Features included within the Service are not intended to be used, and may not be used, to replace human decision making or to make hiring decisions pertaining to specific Candidates. You further acknowledge and agree that all content generated by the AI Features is intended to be used, and must be used, by human users (recruiters, hiring managers, and other authorized personnel) and must be reviewed and approved by human users of before use. You agree to use the AI Features in accordance with the foregoing intended use cases.

5.4. Compliance with Artificial Intelligence Laws. Without limiting the generality of Section 2.6 above, you agree to comply with all laws pertaining to the use of artificial intelligence that apply to your use of the Service. Without limiting the generality of the foregoing, you agree to (i) not use the AI Features to discriminate against any Candidate, (ii) not use the AI Features to replace human decision making in hiring and other employment related decisions, and (iii) not use the AI Features in a manner that impersonates another for deceptive purposes or conceals the fact a user is interacting with AI.

5.5. Additional Provisions Relating to Compliance With Artificial Intelligence Laws. In addition to the general requirements set forth in these Terms and Conditions regarding your use of the Service, you agree to the Additional Provisions Relating to Compliance with Artificial Intelligence Laws attached hereto as Annex A.

5.6 Compliance with Special Customer Terms Applicable to AI Features. In addition to the general requirements set forth in these Terms and Conditions regarding your use of the Service, you agree to the Special Customer Terms Applicable to AI Features – IBM Related Terms attached hereto as Annex B and the Special Customer Terms Applicable to AI Features – Google Related Terms attached hereto as Annex C (collectively, the “Special Customer Terms Applicable to AI Features”).

5.7. Candidate Consent to Use of Artificial Intelligence. In addition to the other requirements set forth in this Section V regarding the use of AI Features, you agree to require Candidates to acknowledge and consent to the use of the artificial intelligence features in the Service in such form and substance as may be required under artificial intelligence laws that apply to you or your business. You may refer to the Consent to Use of Artificial Intelligence form attached as Annex B to the Candidate Terms and Conditions for reference purposes.

5.8. Use of Auto-Advance Feature. The Service has an auto-advance feature that allows Designated Users (who are, by definition, human beings) to auto-advance candidates that have provided a specified number of correct answers (which answers have previously been approved by the human users) to a given number of questions (which questions have previously been approved by the human users), and to not advance candidates that have not provided the specified number of correct answers. The auto-advance feature does not use AI. Rather, the auto-advance feature is a simple numerical filter that human users may use to advance candidates whose number of correct answers equals or exceeds the numerical value (if any) set in the filter by the user, and does not advance candidates whose number of correct answers does not equal or exceed the numerical value (if any) set in the filter. The AI Features are not involved in determining to use the auto-advance feature, or setting a given filter threshold to be used, or determining if the threshold has been met, or determining which Candidates advance and which Candidates do not advance based upon the threshold. Human users must choose to enable the auto-advance feature and set whatever threshold they choose to use. You hereby agree that if you elect to use the auto-advance feature, you will do so in compliance with the foregoing intended use case and will do so in compliance with all applicable laws.

SECTION VI – USE OF TALENT POOL FEATURES

6.1. Talent Pool Features. Certain features of the Service (the “Talent Pool Features”) may enable Candidates and Reference Providers (in this context, “Talent Pool Participants”) to elect to be included within a section of the Service referred to herein as the Talent Pool (the “Talent Pool”) and to store within the Talent Pool certain information and materials (“Talent Pool Information and Materials”) pertaining to such Candidates and Reference Providers (including, without limitation, in the case of Candidates, prior Assessments and Reference Assessments (“Talent Pool Assessments”) so that Customers (in this context, “Talent Pool Customers”) may consider such Talent Pool Participants for employment and other positions that such Talent Pool Customers are looking to fill (for which such Talent Pool Participants have not yet applied), and such Talent Pool Customers may, if desired, invite such Talent Pool Participants to apply for such position(s), and such Talent Pool Participants may, if desired, elect to apply for such position(s) (following such an invitation and such an application by such Talent Pool Participant for such a position, such Talent Pool Participant shall, with respect to such position, thereafter be considered a Candidate with respect to such position, such Talent Pool Assessments (if any) shall thereafter be considered Assessments relating to such position, and such Talent Pool Customer shall thereafter be considered a Customer with respect to such position and Candidate).

6.2.  Use of the Talent Pool Features. If you elect to use the Talent Pool Features, then you agree that you may use the Talent Pool Features, and review Talent Materials, for the limited purpose of considering Talent Pool Participants for employment and other positions that you are looking to fill, and inviting Talent Pool Participants that you wish to further consider to apply for such position(s), and if such Talent Pool Participants wish to apply for such position(s), thereafter treating such Talent Pool Participants as Candidates for such position(s).

SECTION VII – USE OF SALARY DATA

FEATURES, PROGRAMMATIC JOB ADVERTISING FEATURES

AND OTHER SPECIAL FEATURES OF THE SERVICE

7.1.  Use of Salary Data Features. Customer acknowledges that the Service may incorporate certain salary data features (“Salary Data Features”) that are based upon or utilize technology and content licensed by ProboTalent from Salary.com, LLC (“Salary”). The Sales Data Features are intended to provide information relevant to Customers to assist them in setting salaries for jobs they are looking to fill. If you elect to use the Salary Data Features, then, in addition to the general requirements set forth in these Terms and Conditions regarding your use of the Service, you agree to the Additional Customer Terms Applicable to Salary Data Features attached hereto as Annex F.

7.2.  Use of Programmatic Job Advertising Features. Customer acknowledges that the Service may incorporate certain programmatic job advertising features (“Programmatic Job Advertising Features”) that are based upon or utilize technology and content licensed by ProboTalent LLC from Joveo, Inc. (“Joveo”). If you elect to use the Programmatic Job Advertising Features, then, in addition to the general requirements set forth in these Terms and Conditions regarding your use of the Service, you agree to the Additional Customer Terms Applicable to Programmatic Job Advertising Features attached hereto as Annex G.

7.3.  Use of Other Additional and Special Features. Customer acknowledges that the Service may include certain other additional and/or special features, from time to time, and that Customer’s use of such features may require the payment of additional fees, or may require Customer to enter into additional or special terms and conditions, which additional or special terms and conditions may be attached as annexes or other attachments to these Terms and Conditions. Customer agrees that its use of any such additional and/or special features shall constitute its acceptance of any additional or special terms and conditions which apply to such additional and/or special features.

SECTION VIII – OUR PROVISION OF THE SERVICE

8.1. Provision of the Service. Subject to the payment of applicable Fees, we agree to provide you with access to the Service (including the Customer App and your Customer Account) during the Term in accordance with these Terms and Conditions and our Data Processing Addendum.

8.2. Cloud Service Provider. We (or our licensors or service providers) may during the Term maintain your Customer Account with a reputable independent “cloud” storage provider such as Microsoft Azure or Google Cloud Service (a “Cloud Service Provider”). If we use a Cloud Service Provider, then security for your Customer Account will be provided, in part, by the Cloud Service Provider. We cannot ensure, and will not be responsible for, the security measures employed by the Cloud Service Provider to protect your Customer Account. Except as otherwise required by law, or except as otherwise set forth in the Data Processing Addendum (as defined below), you hereby release us (and/or our licensors and service providers) from any and all liability, damages, losses, costs and expenses incurred by you as a result of any breach of the security measures employed by the Cloud Service Provider and/or any unauthorized access or use of the information contained in your Customer Account at the Cloud Service Provider unless due to our gross negligence or willful misconduct.

8.3 Updates, Upgrades and Maintenance. We may update or upgrade the Service from time to time. We may also perform planned or unplanned maintenance on the Service from time to time. As a result, the Service (including your Customer Account and the Customer App) may be unavailable from time to time. We (and/or our licensors and service providers) shall not be liable for any unavailability of the Service due to periodic updates and upgrades and planned and unplanned maintenance.

8.4 Service Notifications. Without limiting any other form of notice permitted under these Terms and Conditions, you agree to receive essential service updates and notifications pertaining to the ProboTalent Service via email.

SECTION VIII – OUR PROVISION OF THE SERVICE

SECTION IX – FEES

9.1. Fees. By using the Service and accepting these Terms and Conditions, you give us (and/or our licensors, service providers and payment processors) permission to charge your bank account, credit card or other payment mechanism that you provide for such fees, as may be applicable, to your use of the Service (“Fees”). You further agree that we may change the fees for the Service at any time upon not less than 30 days prior written notice.

9.2 Taxes. The Fees are exclusive of all applicable Taxes. By using the Service and accepting these Terms and Conditions, you give us (and/or our licensors, service providers and payment processors) permission to charge your bank account, credit card or similar payment mechanism for all Taxes that pertain to your use of the Service. You further agree to indemnify us (and our licensors, service providers and payment processors) for any claims relating to any Taxes due to any taxing authority as a result of your use of the Service (except Taxes based on our net income).

9.3  Refunds. We shall not be obligated to refund to you any Fees or Taxes paid with respect to any Candidate who withdraws from consideration or with respect to whom you decide to no longer consider for employment.

SECTION X – TERM AND TERMINATION

10.1 Term. Your access to the Service will begin on the date that you establish your Customer Account (the “Beginning Date”), and will terminate on the date that you close your Customer Account (the “Termination Date”), unless sooner terminated as set forth below in this section (collectively, the “Term”). You may close your Customer Account at any time and for any reason.

10.2. Termination for Failure to Pay Fees (if applicable). If your Customer Account involves the payment of a monthly, yearly or other fee (due to the services that you select), and you fail to pay the fee(s) when due, we may terminate the Term and your access to the Service at any time following the expiration of the last period for which you have paid.

10.3 Termination for Breach. We may terminate the Term and your access to the Service if you breach any provision of these Terms and Conditions, and fail to remedy the breach within 15 days after we provide written notice to you of the breach. If the breach cannot be cured, then we may terminate the Term and your access to the Service immediately upon the provision of notice to you. We shall not be required to refund any Fees or Taxes that you previously paid relating to your use of the Service if we terminate the Term and your access to the Service due to your breach.

10.4 Termination due to Bankruptcy. We may terminate the Term and your access to the Service by providing written notice to you if you file a petition for bankruptcy under any provision of federal or state law, or an involuntary bankruptcy petition is filed against you which is not dismissed within 60 days, or you are subject to the appointment of a receiver, or you make an assignment for the benefit of creditors, or you are otherwise insolvent or unable to pay your debts as due in the ordinary course of business.

10.5 Termination for Inactivity. We may terminate the Term and your access to the Service by providing not less than 30 days prior written notice to you if you do not access your Customer Account or use the Service for a period of 90 consecutive days.

SECTION XI – LICENSES AND PERMISSIONS

11.1 Permission to Use the Service, the Customer App and Your Customer Account. Subject to these Terms and Conditions, we hereby grant to you a limited, revocable, non-exclusive, non-sublicensable, non-assignable, license to use the Service, the Customer App and your Customer Account in the Territory during the Term, including to request Candidates located in the Territory to provide Assessments and to request Reference Providers located in the Territory to provide Reference Assessments in the manner contemplated in these Terms and Conditions, and for the purpose of using the Talent Pool if you elect to use the Talent Pool. The license provided for herein includes the right to access, review and print Assessments and Reference Assessments stored in your Customer Account. The license provided for herein does not include the right to resell, sublicense or otherwise use the Service for outsourcing or service bureau use or to use the Service for other than your internal business purposes.

11.2  Information Under Data Processing Addendum and Privacy Policy. In addition to the permissions contained in these Terms and Conditions, the processing of personal information about your Candidates and Reference Providers that you provide to us in connection with your use of the Service shall be governed by and subject to the provisions of our Data Processing Addendum (the “Data Processing Addendum”), and nothing herein shall limit our right to process personal information as set forth in the Data Processing Addendum. A copy of the Data Addendum is attached hereto as Annex H. In addition, our collection, use, sharing and disclosure of information about our Customers, Candidates, Reference Providers, Designated Users and website visitors is described in our Privacy Policy (the “Privacy Policy”), and nothing contained herein shall be construed to limit our collection, use, sharing and disclosure of information as set forth in our Privacy Policy. Customer is responsible for exporting and retaining its own copies of Assessments, Reference Assessments, and other records generated through the Service as necessary to satisfy Customer's own recordkeeping, employment-law and other legal requirements, and acknowledges that ProboTalent may delete, de-identify, or anonymize information in accordance with the Data Processing Addendum and ProboTalent's Privacy Policy, and has no obligation to retain such information beyond the periods described therein.

SECTION XII – INTELLECTUAL PROPERTY AND CONFIDENTIAL INFORMATION

12.1 Intellectual Property Rights. You acknowledge and agree that the Service and all of its features, components and functionality, and all documentation and materials relating thereto, and all improvements thereto and enhancements thereof, and all rights of ownership therein, including, without limitation, all patent, trade secret, copyright, trademark, proprietary information and other intellectual property rights, are our (and/or our licensors) sole and exclusive property. You further agree that you shall not attempt to reverse engineer, disassemble, decompile or create derivative works based upon the Service or any of Our Software.

12.2 Definition of Confidential Information. Each party understands that in the performance of this Agreement, each party may receive or have access to Confidential Information of the other party. For purposes of these Terms and Conditions, “Confidential Information” shall mean confidential or proprietary information of the other party, including, but not limited to, inventions, trade secrets, technology, technical information, software, documentation, data, and information pertaining to the method of delivery of the Service, provided, however, that the term “Confidential Information” shall not include information that (i) was known to the receiving party prior to the date of these Terms and Conditions (and not subject to an obligation of confidentiality), (ii) becomes known to the receiving party after rightful disclosure from a third party not under an obligation of confidentiality, (iii) becomes publicly available without breach of these Terms and Conditions. Furthermore, “Confidential Information” shall not include Candidate and Reference Provider personal information and personal data that is covered by the ProboTalent Data Processing Addendum (as such information is covered by the terms of the ProboTalent Data Processing Addendum, rather than this Section).

12.3 Use and Disclosure of Confidential Information. Each party agrees that it shall exercise reasonable care to maintain in confidence the Confidential Information of the other party. Each party further agrees that it shall not, except as authorized or contemplated hereunder, use or disclose the Confidential Information of the other party without the prior written consent of the other party. In the event that a party is required to disclose the Confidential Information of the other party by law or applicable legal process, the party required to disclose such information shall first, to the extent legally permissible, provide notice of such required disclosure to the other party so that the other party may seek a protective order if it wishes to do so, and the party required to disclose such information shall use commercially reasonable efforts to cooperate with the other party in such other party’s efforts to obtain a protective order.

12.4 Metadata and Anonymized Data. The term “Confidential Information” does not include metadata and anonymized data (that does not reveal confidential information or personal information or from which confidential information or personal information may be extracted or discerned) pertaining to or stored in the Service (collectively, “Depersonalized Information”). ProboTalent shall have the right to use Depersonalized Information in connection with its operation of the Service, including for testing, analytics and other business purposes.

SECTION XIII – INDEMNIFICATION AND LIMITATION OF LIABILITY

13.1 Indemnification. You agree to defend and indemnify us (and/or our licensors and service providers) and our affiliates, Representatives, successors and assigns (collectively, “Our Indemnified Persons”) from and against any and all claims, demands, losses, liabilities, damages, costs or expenses, including reasonable attorneys fees (collectively, “Losses “) resulting from or arising out of: (a) your breach of any provision of these Terms and Conditions; (b) your noncompliance with applicable law; and/or (c) your negligent or intentional misuse of the Service. Notwithstanding the foregoing, you shall not be liable for any Losses which result from our gross negligence or willful misconduct (as determined in a final and binding arbitration award or a final non-appealable judgment of a court of applicable jurisdiction).

13.2 Limitation of Liability.

(a) YOU ACKNOWLEDGE THAT (i) WE ARE PROVIDING THE SERVICE TO YOU ON AN “AS IS” AND “AS AVAILABLE” BASIS; (ii) THE SERVICE IS SUBJECT TO INTERRUPTIONS AND OUTAGES, INCLUDING, WITHOUT LIMITATION, DUE TO INTERNET, POWER, UTILITY AND NETWORK OUTAGES AND INTERRUPTIONS; (iii) EXCEPT AS OTHERWISE SET FORTH HEREIN, WE ARE PROVIDING NO WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE SERVICE, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE; AND (iv) IN NO EVENT SHALL WE (OR OUR LICENSORS AND SERVICE PROVIDERS) BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF PROFITS) ARISING UNDER THESE TERMS AND CONDITIONS AND/OR PERTAINING TO THE PROVISION OF THE SERVICE, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, OUR MAXIMUM LIABILITY ARISING UNDER THESE TERMS AND CONDITIONS, AND/OR PERTAINING TO THE SERVICE, WHETHER BASED UPON CONTRACT, TORT OR OTHERWISE, SHALL NOT EXCEED THE PAYMENTS RECEIVED BY US FROM YOU DURNG THE PRECEDING THREE (3) MONTHS. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL OUR LICENSORS AND SERVICE PROVIDERS, AS APPLICABLE, HAVE ANY LIABILITY TO YOU PERTAINING TO THE SERVICE, WHETHER BASED UPON CONTRACT, TORT OR OTHERWISE.

(b) You hereby agree to not bring any claim against us in any arbitration or other legal proceeding for any matter more than one year after the occurrence of the event giving rise to the claim.

SECTION XIV – MISCELLANEOUS

14.1 Arbitration. Except as otherwise set forth in Section 14.2 and/or Section 14.3, any dispute, controversy, or claim relating to the Service, these Terms and Conditions and/or the Data Processing Addendum (each of the foregoing, a “Legal Claim”) that cannot be resolved directly between ProboTalent and you, shall be settled by an individual (not class), confidential, binding arbitration proceeding administered by the American Arbitration Association (“AAA”) in New York, New York or such other location that is mutually agreed upon by the parties. A single arbitrator will be mutually selected by the parties who shall be (i) a practicing attorney licensed to practice law in the State of New York or a retired judge; and (ii) selected from the arbitrators listed on the AAA’s roster of commercial dispute arbitrators who have experience in online commerce law (or if there are no such arbitrators, then from the arbitrators on the AAA’s roster of commercial dispute arbitrators). If the parties cannot mutually agree upon an arbitrator within 30 days of the initiation of the Legal Claim (or such longer period as shall be mutually agreed to by the parties), then the AAA shall appoint a single arbitrator that satisfies the arbitrator requirements set forth above. The prevailing party shall be entitled to an award of the costs and expenses of the arbitration, including reasonable attorneys’ fees. The award rendered by the arbitrator shall be final and binding upon the parties. A judgment on the award may be entered and enforced in any court of competent jurisdiction.

14.2 Actions for Fees and Infringement of Intellectual Property Rights. ProboTalent may, in its sole discretion, commence an action in any state or federal court of competent jurisdiction within the State of New York, for any fees that you owe to ProboTalent, or for any infringement of ProboTalent’s intellectual property rights. You hereby waive any objection to jurisdiction or venue, or any defense claiming lack of jurisdiction or improper venue, in any such action brought by ProboTalent in such courts.

14.3 Waiver of Right to Trial by Jury and of Right to Class Action Proceeding. YOU ACKNOWLEDGE, UNDERSTAND, AND AGREE THAT YOU ARE WAIVING YOUR RIGHT TO A TRIAL BY JURY AS TO DISPUTES HEREUNDER AND THAT YOU ARE WAIVING YOUR RIGHT TO PARTICIPATE IN ANY CLASS ACTION PROCEEDING ARISING FROM THE TRANSACTIONS PROVIDED FOR UNDER THESE TERMS AND CONDITIONS.

SECTION XV – MISCELLANEOUS

15.1 Notices. All notices required under these Terms and Conditions shall be in writing and shall be addressed: in the case of notice to us, to anthony@probotalent.ai, and in the case of notice to you, to your contact information as set forth in your Customer Account. Notices shall be deemed given: (i) one business day after receipt if sent by e-mail; (ii) one business day after being sent by Federal Express or other nationally recognized overnight delivery service which maintains a record of delivery; or (iii) on the day of delivery if delivered personally. Either party may change its notice address by providing written notice to the other party in the manner set forth in this section.

15.2 Governing Law. These Terms and Conditions shall be governed by the laws of the State of New York, without reference to the conflicts of law provisions thereof.

15.3 Entire Agreement. These Terms and Conditions constitute the entire agreement of the parties with respect to the subject matter hereof, and supersede all prior or contemporaneous agreements with respect to the subject matter hereof.

15.4  Amendment. We may modify or amend these Terms and Conditions from time to time. Your continued use of the Service will constitute your acceptance of any such modification or amendment. If we modify or amend these Terms and Conditions, we will update the Last Updated date above.

15.5 Waiver. No waiver of any obligation under these Terms and Conditions shall be valid unless in writing and signed by the party to be charged. No delay or omission by either party in exercising any right or remedy under these Terms and Conditions shall be construed to be a waiver or such right or remedy.

15.6 Successors and Assigns. These Terms and Conditions shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns. Nothing in these Terms and Conditions shall confer upon any other Person any rights as a third-party beneficiary, except as otherwise provided herein.

15.7 Assignment. You may not assign these Terms and Conditions to any third-party without our prior written consent. Any attempted assignment contrary to the foregoing shall be void. We may assign these Terms and Conditions, without your consent, (i) to an affiliate of ours (that is, to an entity that controls, is controlled by, or is under common control with us), or (ii) in connection with a merger or acquisition transaction (including an asset sale, stock sale, merger or other similar transaction).

15.8 Conflicting Terms. These Terms and Conditions supersede any inconsistent terms contained in any invoice, purchase order or similar form. All inconsistent terms contained in any invoice, purchase order or similar form shall be void.

15.9 Severability. If any provision of these Terms and Conditions is held to be unenforceable under applicable law, the enforceability of the remaining provisions of these Terms and Conditions will not be affected.

15.10 No Legal Advice. Nothing contained in these Terms and Conditions or the exhibits, annexes or addenda hereto shall constitute legal, accounting or tax advice provided by ProboTalent. You shall consult with your own legal, accounting and tax advisors for legal, accounting and tax advice pertaining to your use of the Service.

15.11 Force Majeure. We will not be liable for any failures or delays in performance of our obligations under these Terms and Conditions which result from circumstances beyond our reasonable control, including, without limitation, acts of God; war or civil unrest; fire or other casualty; internet, power, utility and mobile network outages and interruptions; changes in law; and pandemics, epidemics and other public health matters.