SmartRank® Inc. Terms of Use Agreement

Date of last revision: January 24, 2024

This terms of use agreement (“Agreement”) is between SmartRank® Inc., a Colorado corporation (“we,” “us,” “our,” or “ourselves”) and the person or entity (“you” or “your”) that has decided to use our services; any of our websites or apps; or any features, products, graphics, text, images, photos, audio, video, location data, computer code, and all other forms of data and communications (collectively, “Services”).

By using the Services in any way, you agree to be bound by this Agreement. If you do not accept and agree to be bound by all of the terms of this Agreement, including the Privacy Policy and incorporated by reference herein, do not use the Services. If you entered into a separate written Master Service Agreement with us, you also agree to be bound by those terms in conjunction with our Terms of Use and Privacy Policy. In the case of a conflict between the Terms of Use and Master Service Agreement, the Master Service Agreement is controlling.

The terms of this Agreement are subject to change at any time. It is your responsibility to check periodically for any changes. Continued use of the Services shall constitute acceptance of any changes.

I. Description of the Services

SmartRank® provides a job applicant screening and tracking solution that enables hiring organizations to create job requisitions and manage job applicants. 

A. How SmartRank® is Used

SmartRank® uses proprietary technology called SmartMatch™ that provides quantified match scores to assist its customers in identifying suitable matches for job openings. To ensure fairness and reduce the risk of human or machine bias, only applicant responses to the role-specific, multiple-choice questions within an application are used to compute the match score. SmartRank® provides a suite of bias review and approval tools to assist its customers in ensuring that question wording does not introduce bias or discrimination unrelated to the job qualifications. All screening and hiring decisions are made by the hiring organization through their own internally-established processes.

II. Your Use of the Services

A. Your Representations and Eligibility to Use Services

By registering and using the Services, you represent and warrant you: (i) have the authority and capacity to enter this Agreement; (ii) are at least 18 years old; and, (iii) are not precluded or restricted in any way from using the Services, either by law or due to previous suspension from the Services.

B. Truthfulness of Information

You represent and warrant that all information you submit when using the Services is complete, accurate, and truthful. You are responsible for maintaining the completeness, accuracy, and truthfulness of such information.

C. Limited Use of Services

The Services are only for the uses specified in this Agreement. You agree that you will not use our proprietary information or materials in any way whatsoever except for use of the Services in compliance with this Agreement. We reserve the right to investigate and take legal action in response to illegal and/or unauthorized uses of the Services.

  1. You agree that our Services contain proprietary information and material that we own and is protected by applicable intellectual property and other laws, including but not limited to trademark, copyright, patent, and trade secret laws.
  2. Our ownership extends to all content, features, and functionality on the website or app, and in our communications, that is protected or protectable under the law.
  3. You agree that you will not use our proprietary information or materials in any way whatsoever except for use of the Services in compliance with this Agreement.
  4. In no way should your use of the Services be construed to diminish our intellectual property rights or be construed as a license or the ability to use the Services in any context other than as expressly permitted under this Agreement.
  5. Unless you obtain express written permission from SmartRank, you will not share SmartRank IP or SmartRank Proprietary Information with or grant access to any competitors of SmartRank or any third party working in the field of job applicant screening or selection

D. Permitted Activities

You may engage in the following activities:

  1. Create and manage job requisitions;
  2. Create and manage hiring manager / position questions and answer options;
  3. Generate reports;
  4. Manage templates and settings with the application;
  5. Manage job applications and applicants; and,
  6. Correspond with job applicants and hiring managers.

E. Prohibited Activities

You shall not engage in the following activities:

  1. Reproduce any portion of the Services in any form or by any means, except as expressly permitted in this Agreement or otherwise in writing by our authorized agent;
  2. Modify, rent, lease, loan, sell, distribute, or create derivative works based on the Services in any manner, and you shall not exploit the Services in any unauthorized way;
  3. Use the Services for any unlawful activities or in violation of any laws, regulations, or contractual provisions, or to induce others to do or engage in the same;
  4. Use the Services to promote violence, degradation, subjugation, discrimination or hatred against individuals or groups based on race, ethnic origin, religion, disability, gender, age, veteran status, sexual orientation, or gender identity;
  5. Use the Services to spam or harass;
  6. Access another’s account without permission of us or that person;
  7. Publish or allow to be published malicious code intended to damage any mobile device, browser, computer, server, or network hardware;
  8. Spam any comments section with offers of goods and services, or inappropriate messages;
  9. Use manual or automated software, devices, or other processes to “crawl,” “scrape,” or “spider” any portion of the Services;
  10. Decompile, reverse engineer, or otherwise attempt to obtain the source code of the Services;
  11. Make public, through social media or any other form, any of our Services or any other person’s personally identifiable information; and,
  12. Solicit passwords or personal identifying information for commercial or unlawful purposes from others or disseminate another person’s personal information without that person’s permission.

III. Disclaimers, Waivers, and Indemnification

A. No Guarantees, Endorsements, or Investigation

We are not responsible for any content from or relating to a job application, including any related messages or communications. We do not and have no obligation to investigate any third party or the information applicants provide. We do not verify or guarantee a job application’s accuracy of the information provided to us. You are solely responsible for verifying the above and should not take any action in reliance on the information provided through our Services, including taking any action that would affect an applicant’s employment. 

You agree not to hold us liable for, and waive any claim based upon, your use of our Services in contradiction to the above. You accept all risks associated with any user or third-party, and its content, links, or related information. You agree not to hold us liable for any conduct or content of third parties or other users.

B. Disclaimer of Warranties

Unless otherwise expressly stated in a master service agreement, all information and services are provided on an “as is” basis without warranty of any kind, either express or implied, including, but not limited to, the implied warranties of merchantability, fitness for a particular purpose, and non-infringement. In addition, we do not make any warranty that access to the Services will be uninterrupted, secure, complete, error free, or meet your particular requirements.

C. Waiver of Liability

You waive any liability of or claims against us for any injuries or damages (including compensatory, punitive, special, or consequential damages) you sustain as a result of or associated with using the Services. You waive any claim or liability stemming from our negligence. 

Where our Services incorporate or utilize any information, software, or content of a third party, you waive any liability or claim against us based upon that information, software, or content—including based upon the negligence of that third party.

D. Scope of Waiver

You understand and agree the above waiver extends to any claim of any nature or kind, known or unknown, suspected or unsuspected, regardless of when the claim first existed.

E. California-Specific Waiver and Notices

You understand and agree the above waiver includes waiver of a claim of the type identified under California Civil Code, Section 1542, which provides: “A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor.” 

The following notice is for California users: Pursuant to California Civil Code Section 1789.3: If you have a question or complaint about us, our products, or our Services please contact us at privacy@smartrank.ai.  You may also contact the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer affairs by telephone at (800) 952-5210 or by mail at the Department of Consumer Affairs, Consumer Information Division, 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834.

  1.   Customer Compliance with Laws and Regulations relating to AI

Some jurisdictions have or are considering laws that regulate how automated employment decision tools (“AEDTs”) are used in hiring and promotion processes. For instance, New York City has regulations on the use of AEDTs through Local Law 144 (NY Admin. Code, Title 20, Subchapter 25). This is a new area of regulations and SmartRank will reasonably work with you at your direction to assist you in compliance with these regulations. Please be aware that, in doing so, SmartRank is not offering legal or compliance advice and SmartRank’s involvement should not be viewed as such.

These laws are currently focused on the specific use of AEDTs. You acknowledge here that it is your responsibility to comply with all laws, regulations, and requirements that may apply in relation to your use of artificial intelligence for hiring and promotions or the general use of automated employment decision tools. As a new area of law, you may be required to update or tailor your procedures on an ongoing basis as legal requirements change. SmartRank is not legal counsel and does not provide legal or compliance advice relating to the regulation of AEDTs. Nothing SmartRank provides is or should be construed as legal or compliance advice.

G. Indemnification

If we are subject to a complaint, a demand, mediation, arbitration, litigation, or other pursuit based upon your conduct relating to, relying on, or from use of our Services, you agree to defend, indemnify, and hold us harmless for all costs, expenses, and fees (including attorneys’ fees by the attorneys of our choice) we expend in defending ourselves against or otherwise addressing such pursuit. Such conduct or use includes, but is not limited to, your violation of this Agreement; your use of the Services and any consequence that produces; your use of intellectual property on or through the Services; and, any such actions performed by your agent or representative, or at your direction. You agree to indemnify us as soon as we incur the costs, expenses, and fees, whether those are billed by event, or in week, month, or some other interval.

IV. Limitation of Services and Termination

A. Right to Remove Content

We reserve an unrestricted right to remove content at any time without advance notice. Nonetheless, we are not responsible for any third-party content and make no commitment or assurances that we will remove, monitor, or assess any specific third-party content, regardless of its content or character.

B. Right and Grounds to Terminate Access

To protect us and our users, we reserve an unrestricted right to refuse, terminate, block, or cancel your application to, account with, or access to the Services at any time, with or without cause. You acknowledge here that you have no right: to use the Services should we terminate or suspend your account. Primary reasons warranting termination include (and primary reasons leading to suspension pending investigation of claims or evidence of the following):

  1. You violating any of the provisions of this Agreement;
  2. You violating any of the provisions of the Master Service Agreement or Order Agreement signed by you;
  3. You hindering or interfering with us in providing our Services;
  4. You making misrepresentations, lying, or deceiving us; and,
  5. You using the Services in violation of: any international, federal, state, or local law; or applicable regulation, rule, or order by any regulatory, governing, or private authority, or a court of competent jurisdiction.

C. No Right to Services or Content

You neither possess nor retain any ownership of or rights to the Services, regardless of who generated the content. Upon termination, you have no right to access, retain, or have returned any such information.

D. Grant of License to User-Generated Content

You hereby grant to us a worldwide, non-exclusive, royalty-free license to use in any manner the information and content you provide us for the purpose of providing our Services, subject to the terms of our Privacy Policy and your Master Service Agreement.

E. Survival

After termination, we retain all rights to content as specified in this Agreement. Sections III—V of this Agreement survive after termination.

V. General Provisions

A. DMCA Violations

If you believe any of our content infringes on your copyright, you may request removal by contacting the following address: privacy@smartrank.ai. We will respond to all requests promptly and to the best of our ability.

B. Successors and Assignees

We may assign this Agreement to an affiliate or in connection with a merger or sale of all or substantially all of our corresponding assets. You may not assign this Agreement.

You agree that any waiver or protections afforded to us are also provided to our affiliates, directors, officers, principals, employees, agents, and successors in their roles and relationship with us. You also acknowledge that all waivers and agreements bind not only you, but any successors, heirs, agents, and other representatives.

C. Arbitration

The exclusive means of resolving any dispute or claim arising out of or relating to this Agreement (including any alleged breach thereof), any related agreements, or the Service shall be binding arbitration administered by the American Arbitration Association. You may not under any circumstances commence or maintain against us any class action, class arbitration, or other representative action or proceeding. You understand and accept that, by agreeing to arbitration, you are foregoing your access to a trial by jury.

D. Limitation of Liability

Unless otherwise set forth in a Master Service Agreement, to the maximum extent permitted by law, in no event shall we or our agents be liable to you or any other person or entity for any direct, punitive, incidental, special, consequential, or exemplary damages.

E. Governing Law and Venue

This Agreement will be governed by and construed in accordance with the laws of the State of Colorado. The venue for any disputes including mediation, arbitration, or litigation shall be Denver, Colorado. You agree to waive the following defenses to any action brought in Colorado: forum non conveniens and lack of personal jurisdiction.

F. Waiver

If one party waives any term or provision of this Agreement at any time, that waiver will only be effective for the specific instance and specific purpose for which the waiver was given. If either party fails to exercise or delays exercising any of its rights or remedies under this Agreement, that party retains the right to enforce that term or provision at a later time.

G. Severability

If any provision of this Agreement is invalid or unenforceable, whether by the decision of an arbitrator or court, by passage of a new law, or otherwise, the remainder of this Agreement will remain in effort and be construed and enforced consistent with the purpose of this Agreement, to the fullest extent permitted by law. Furthermore, if a provision is deemed invalid or unenforceable, you agree that provision should be enforced to the fullest extent permitted under the law, consistent with its purpose.

H. Understanding of Agreement

You acknowledge that you understand the terms and conditions of this Agreement. You also acknowledge that you could discuss these provisions with a lawyer at your own expense prior to entering into this Agreement, and have either done so or chosen not to do so in entering this Agreement. Regardless of your choice, you intend to be fully bound by this Agreement.

I. Entire Agreement

This Agreement, together with the Privacy Policy, constitutes the entire agreement between us, and supersedes all prior agreements, representations, and understandings, oral or written, between us.