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PLEASE READ THIS DOCUMENT CAREFULLY BEFORE PROCEEDING.  BY CLICKING “ACCEPT” YOUR ARE AGREEING TO THE TERMS OF THIS SOFTWARE AS A SERVICE USER AGREEMENT AND CREATING A LEGALLY BINDING AGREEMENT BETWEEN YOU AND RALLY REGARDING THE RALLY SOFTWARE YOU ARE USING PURSUANT TO A SUBSCRIPTION (“SOFTWARE”).  IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY,  (“COMPANY”) YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS.  IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, DO NOT PROCEED OR USE THE RALLY SOFTWARE.

INTENDED USE: THE SOFTWARE IS INTENDED TO BE USED TO ASSIST THE COMPANY IN IMPROVING ITS ABILITY TO ATTRACT CANDIDATES. IT IS NOT INTENDED TO BE USED IN ANY ACTUAL EMPLOYMENT OR SCREENING DECISIONS.

PLEASE NOTE THAT FOR THE FREE VERSION OF RALLY SOFTWARE, THE PROVISIONS BELOW REGARDING THE PAYMENT OF FEES ARE NOT APPLICABLE AND NOT PART OF THIS AGREEMENT. RALLY’S LICENSE GRANT IS GRATUITOUS, AND THE OBLIGATIONS OF THE USER SPECIFIED HEREIN ARE CONDITIONS FOR USE OF THE SOFTWARE. YOUR “SUBSCRIPTION” TERM IS THE DURATION OF YOUR USE OF THE SOFTWARE, WHICH RALLY MAY TERMINATE AT ANY TIME UPON THIRTY DAYS NOTICE OR AS OTHERWISE PROVIDED HEREIN.

Software as a Service
User Agreement

This Software as a Service User Agreement (the “Agreement”), is made by and between Rally Inc. (“Rally” or  “Licensor”), with its principal place of business located at 9C Medway Road #233, Milford, MA 01757 USA and the Company or individual who clicks to “accept” the terms.  This Agreement is effective as of the last date that the company or user accepts this User Agreement (the “Effective Date”).

1.  Subscription and License Grant.

1.1  For and in consideration of the fees paid by Company and/or other good and valuable consideration, Rally grants Company the following license rights (“Subscription”) during the Term, (as defined below):

1.1.1  Company Users (as defined below) may log in to the Rally site (the “Rally Site”) and use the Software on the Rally Site (“Site Software”), in accordance with the written description provided by Rally (“Documentation”), in order to perform the tasks and functions for which the Software is intended;

1.1.2  Company may store information, reports and other data generated by its use of the Software (“Reports”) on the Rally Site. Rally will retain Reports for access by Company for the duration of the period specified in the description of Company’s Subscription; and

1.2  Company’s use of the Software is limited to the scope (“Scope”) of license use and Report storage that Company has purchased in Company’s Subscription.  Scope includes both the number and identity of users who may log in and use the Software (“Users”) and the duration of Report availability on the Rally Site.  The license Scope is  defined on Rally’s website as part of the Subscription sign-up process.

1.3  Company may use the Software for its own internal business operations.  Company may not use the Software to perform services for third parties, nor shall it allow third parties to access the Software, except as part of providing services exclusively for Company.

1.4  Company may not use the Software for employment decisions such and screening candidates or making hiring decisions.

1.5  Rally retains all ownership rights in and to the Software.  Except as expressly permitted by law without the possibility of waiver, Company shall not attempt to reverse engineer, decompile or reverse assemble the Software or otherwise seek to gain access to source code or underlying algorithms for the Software.  Company may not modify or create derivative works from the Software, nor shall it delete, modify or obscure any trademark, copyright notice or other proprietary notice on the Software. 

2.0  Security.  

2.1  Pursuant to the Subscription process, Company and its Users shall have access to use of the Software through the user name and password assigned to their Subscription.  Company and its Users are responsible to maintain the security of their account information.  Company shall be responsible for any actions occurring in its account through any persons who obtain access through user name(s) and password(s) obtained from Company or any of its Users.

2.2  Rally represents that it has implemented and will maintain during the Term, data security features in accordance with industry standards for the type of data processed by the Software.  Rally further represents that in providing the Software and Service, it collects only routine, (albeit confidential) business information and it does not, at any time collect (i) personally identifiable data or information from or about the Company’s job candidates or customers or (ii) any highly sensitive personal information from Company.

2.3  Company understands and acknowledges that Rally shall use data from Company’s use of the Software, in an aggregated and de-identified form, to create industry benchmarks and standards (“Benchmarks”).  Company acknowledges that the creation of Benchmarks is a significant part of the value created by Rally and that use of de-identified and aggregated Company data is a material part of the consideration that is received by Rally.  Company may have access to various levels of such Benchmarks, depending on the level of Service to which Company subscribes.

3.0  Term and Termination.

3.1  Company’s subscription and license to use the Software shall extend for so long as the Company continues to pay the Subscription fees.

3.2  Either party may terminate this Agreement if the other party (i) commits a material breach of its obligations hereunder and does not cure such breach within ten days of notice by the other party, or (ii) files for bankruptcy protection, has an involuntary petition of bankruptcy filed against it, which is not dismissed within thirty days or ceases to do business as a going concern.  Rally may terminate this Agreement if Company attempts to assign this Agreement without Rally’s written permission. 

3.3  Upon expiration or termination of this Agreement Company’s right and license to use the Software shall cease and Company shall no longer have access to Reports produced by the Software.  Rally shall continue to maintain and use Company’s usage data, in a de-identified and aggregated form, for Benchmarking purposes.  

4.  Payment.  Company is responsible for paying the subscription fee, as specified by Rally, in accordance with the periodic payment plan chosen by Company.  If Company ceases to pay the Subscription fee, Rally may provide notice and may terminate Company’s subscription if Company does not pay within an additional five days.  Rally may suspend Company’s access to the Rally Site during any period that Company’s payment is overdue.

5.  Warranty, Maintenance and Limitation of Liability.

5.1  Rally represents and warrants that it has all necessary rights, approvals and licenses to perform its obligation under this Agreement.  Rally further warrants that during the Term, Software will conform in all material respects to the Documentation.  If Company notifies Rally that the Software is not performing in accordance with the Documentation, Rally will use commercially reasonable efforts to remedy or fix such defect.  Rally will continually update the Software with new versions and releases and make available any new versions and releases of the client-side Software.  In addition, Rally represents and warrants that the Rally Software will not contain any computer instructions, circuitry or other technological means such as viruses, Trojan horses, worms or like destructive code, whose purpose or effect is to disrupt, damage or interfere with use of the Software or Company’s computer and communications facilities and Rally will use commercially reasonable efforts to prevent the introduction of such Harmful Code to the Rally Software during the Term.

5.2  EXCEPT FOR THE EXPRESS WARRANTIES MADE IN THIS AGREEMENT, LICENSOR DOES NOT MAKE ANY WARRANTIES, EXPRESS OR IMPLIED, CONCERNING THE SUBJECT MATTER OF THIS AGREEMENT. LICENSOR DISCLAIMS ANY AND ALL IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND/OR FITNESS FOR A PARTICULAR PURPOSE.

5.3  EXCEPT FOR LICENSOR’S INDEMNITY OBLIGATIONS BELOW (1) IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY DAMAGES RESULTING FROM LOSS OF USE, DATA, PROFIT OR BUSINESS, OR FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, WHETHER ARISING IN AN ACTION OF CONTRACT, TORT OR OTHER LEGAL THEORY(S) AND (2) EACH PARTY'S LIABILITY FOR DAMAGES FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF ACTION (IN CONTRACT OR TORT), SHALL BE LIMITED TO THE AMOUNT ACTUALLY PAID OR PAYABLE BY COMPANY DURING THE TWELVE MONTHS PERIOD PRIOR TO WHICH THE CAUSE OF ACTION ACCRUED.

6.  Indemnity.

6.1  Rally agrees to defend, indemnify and hold Company harmless from and against any and all claims, charges or legal actions, ("Claims"), alleging that the Software infringes or violates any third party's copyright, patent, trade secret, trademark, or other intellectual property right and will pay all liabilities, judgments, costs, and expenses (including reasonable attorneys' fees) awarded pursuant to such Claim.  If seeking indemnification, Company will give prompt written notice to Rally, allow Rally the exclusive right to direct the defense and settlement of any Claim and provide Rally, at Rally's expense, with information and assistance reasonably necessary for such defense.

6.2  In the event that the Software, or any portion thereof, is held, or in Rally's reasonable opinion is likely to be held, to be infringing, Rally may, at its option and sole expense, either: (i) secure for Company the right to continue the use of such infringing item; or (ii) modify or replace such item with a functionally equivalent non-infringing item or, if neither of the foregoing is reasonable available, (iii) Rally may discontinue Company’s subscription and refund the fees paid by Company for the Software for the remaining balance of the Term.

6.3  Rally shall have no obligation hereunder to indemnify Company to the extent that a Claim is based on (i) Company’s combination or use of the Software with items not supplied by Rally; (ii) the modification of the Software by anyone other than Rally; and any use of the Software other than the Intended Use.

7.0  U.S. Government Restricted Rights.  The Rally Software is a commercial product, developed at private expense, and provided with Restricted Rights.  Use, reproduction, release, modification or disclosure of the Rally Software, or any part thereof, including technical data, by the Government is restricted in accordance with Federal Acquisition Regulation ("FAR") 12.212 for civilian agencies and Defense Federal Acquisition Regulation Supplement ("DFARS") 227.7202 for military agencies.

8.0  Miscellaneous.

8.1  Neither party may assign this Agreement, or its rights or obligations hereunder without the prior written consent of the other party, except that either party may assign all of its rights and obligations hereunder to a successor party in the event that such party merges or sells its relevant assets to such successor party, or engages in a similar type transaction, and provided that such successor party agrees to be bound by all of the terms and conditions of this Agreement.

8.2  Each party shall comply with all applicable laws and regulations in its performance under this Agreement or use of the Software.

8.3  This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts (excluding its choice of law rules.)  The exclusive jurisdiction for any implementation of arbitral award regarding this Agreement shall be in the state or federal courts located in the Commonwealth of Massachusetts and each party hereto expressly submits to the jurisdiction of said courts and hereby waives any objection to the venue in such courts.  Any dispute arising under or related to this Agreement shall be solely and finally resolved by arbitration, to be conducted in Boston Massachusetts, by a single arbitrator appointed by the American Arbitration Association.  The arbitration shall be conducted pursuant to the Commercial Arbitration Rules of the American Arbitration Association. Nothing herein shall preclude either party from applying for emergency or interim relief, in any court of competent jurisdiction in Massachusetts, to prevent irreparable harm to such party, or to preserve the status quo pending arbitration.  

8.4  Neither party shall, by lapse of time or inaction, be deemed to waive any breach by the other party of this Agreement.  No waiver shall be effective unless in writing and signed by the party against which enforcement of such waiver is sought.  The waiver by either party of a particular breach of this Agreement shall not be a continuing waiver of such breach, or of other breaches of this Agreement.  Neither party shall be in default if failure to perform any obligation hereunder is caused by conditions beyond that party’s control, including acts of God, civil commotion, strikes, labor disputes, and governmental demands or requirements.

8.5  If any provision of this Agreement shall be held unenforceable or illegal, the validity of the remaining portions or provisions hereof shall not be affected thereby.  The parties agree that this Agreement is the complete and exclusive statement of their agreement and supersedes all proposals (oral or written), understandings, representations, conditions, warranties, covenants and all other communications between the parties relating thereto.  The Parties may amend this Agreement only by a written instrument that refers to this Agreement and is duly signed by both parties.

THE PARTIES INTEND THAT THE FOREGOING IS A LEGALLY BINDING AGREEMENT BETWEEN THE COMPANY OR INDIVIDUAL WHICH HAS CLICKED TO ACCEPT THESE TERMS AND UTILIZE THE SOFTWARE. 

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