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Terms of Service Agreement
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IMPORTANT: Please read this Employer Service Agreement (“Agreement”)
before using the Services (as defined below). This Agreement applies to the services
provided by Wellhire, Inc. (“Wellhire”). By using the Services in any way, you represent
and warrant that you have the authority to bind the entity identified as the organization
(“Customer”) on the sign-up page to these terms, and are unconditionally consenting
to be bound by and become a party to this Agreement with Wellhire. In addition,
you represent and warrant that you are who you purport to be and you are not seeking
access to the Services for the benefit of a third party or to enable a third party
to breach any of the terms of this Agreement. Wellhire does not agree to any other
terms, including without limitation any terms on Customer’s purchase order.Wellhire
and Customer may be referred to individually as a “Party” and collectively as the
THIS AGREEMENT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE
DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS, AND ALSO LIMITS THE REMEDIES
AVAILABLE TO YOU IN THE EVENT OF A DISPUTE.
Certain capitalized terms, not defined above, have the meanings set forth below.
(a) “Authorized User” shall mean any individual who is a potential
employee of Customer or such other entity as may be authorized, by virtue of such
individual’s relationship to, or permissions from, Customer, to access the Services
pursuant to Customer’s rights under this Agreement.
(b) “Confidential Information” shall mean all written or oral information,
disclosed by either Party to the other, related to the operations of either Party
or a third party that has been identified as confidential. Customer Confidential
Information includes Customer Content.
(c) “Customer Content” shall mean the data, media and content provided
by Customer through the Services.
(d) “Candidate Profile” shall mean (i) all data provided to Wellhire
by or for Customer or the applicable job candidate, about a job candidate, and (ii)
all evaluations, assessments, profiles, or other output from any services provided
by Wellhire regarding such job candidate.
(e) “Services” shall mean the services requested by Customer and
provided by Wellhire by means of access to certain content and use of the features
and functionality of software applications available and accessible within the Web
sites accessible at the URL www.wellhire.com and any successors thereto.
(a) Provision of Access. Subject to the terms and conditions contained
in this Agreement, Wellhire hereby grants to Customer a non-exclusive, non-transferable
right to access the features and functions of the applicable Service requested during
the Term for the number of Authorized Users enabled. On or as soon as reasonably
practicable after the Effective Date, Wellhire shall provide to Customer the necessary
passwords, security protocols and policies and network links or connections (the
“Access Protocols”) to allow Customer to access the Services.
(b) Responsibility for Application and Content Hosting. Wellhire
shall, at its own expense, host the online based Services, provided that nothing
herein shall be construed to require Wellhire to provide for, or bear any responsibility
with respect to, the development, or with respect to any telecommunications or computer
network hardware required by Customer to provide access from the Internet to the
(c) Usage Restrictions. Customer will not (i) decompile, disassemble,
reverse engineer or otherwise attempt to obtain or perceive the source code from
which any software component of the Services are compiled or interpreted, and Customer
acknowledges that nothing in this Agreement will be construed to grant Customer
any right to obtain or use such code; (ii) create any derivative product from any
of the foregoing; or (iii) allow third parties other than Authorized Users to gain
access to the Services. Customer will ensure that its use of the Services complies
with all applicable laws, statutes, regulations or rules and will not use any feature
of the Services that is not permissible under applicable law.
(d) Candidates. Wellhire will make its online assessment service
http://www.wellhire.com/privacy. Wellhire will develop the Candidate Profiles for
Customer and Customer will be given access to each Candidate Profile.
(e) Candidate Profiles. Wellhire will have the right to (i) use
any de-identified data or information within all Candidate Profiles; and (ii) disclose
and cannot be associated with Customer or Customer Content.
(a) Authorized Users Access to Services. Customer may permit any
Authorized User to access and use the features and functions of the Services as
contemplated by this Agreement. Customer will ensure that any such Authorized Users
will be bound by a contractual, enforceable agreement, which agreement, will, by
its terms, provide substantially the same or greater protections for Wellhire’s
Confidential Information and the Services as are provided by the terms hereof. User
IDs cannot be shared or used by more than one Authorized User at a time. If Customer
wishes to add additional Authorized Users, Customer may request such additional
Authorized Users at any time and such Additional Users shall be added upon the Parties’
mutual written agreement. Customer shall use commercially reasonable efforts to
prevent unauthorized access to, or use of, the Services, and notify Wellhire promptly
of any such unauthorized use known to Customer.
(b) Customer Responsibility for Data and Security. Customer and
its Authorized Users shall have access to the Customer Content and shall be responsible
for all Customer Content and the security of all passwords and other access protocols
required in order to access the Services. Customer shall have the sole responsibility
for the accuracy, quality, integrity, legality, reliability, and appropriateness
of the all Customer Content.
(c) Services Rules and Guidelines. Customer shall use the Services
solely for its internal business purposes as contemplated by this Agreement and
shall not use the Services to: (i) harvest, collect, gather or assemble information
or data regarding other users without their consent; (ii) transmit through or post
on the Services unlawful, immoral, libelous, tortuous, infringing, defamatory, threatening,
vulgar, or obscene material or material harmful to minors; (iii) transmit material
containing software viruses or other harmful or deleterious computer code, files,
scripts, agents, or programs; (iv) interfere with or disrupt the integrity or performance
of the Services or the data contained therein; (v) attempt to gain unauthorized
access to the Services, computer systems or networks related to the Services; or
(vi) interfere with another user’s use and enjoyment of the Services.
(a) Fees. In consideration for the access rights granted to Customer
and the Services performed by Wellhire under this Agreement, Customer will pay to
Wellhire the fees listed below. All fees will be due and payable in advance. Unless
Wellhire in its discretion determines otherwise, all fees will be billed in U.S.
* A “Completed Test” is defined as any test which a job candidate fully completes
and is reportable to Customer within the Services.
(b) Disputed Fees. If Customer disputes any fees, taxes, or other
charges billed by Wellhire, Customer shall notify Wellhire, in writing, of the disputed
amount and any relevant information regarding the circumstances of the dispute.
Wellhire shall acknowledge receipt of the dispute information in writing to Customer.
All parties agree to work cooperatively to resolve any such disputed amounts. If
the Customer fails to provide Wellhire with a notice of such a disputed amount within
twenty (20) business days following receipt of Wellhire’s invoice for such disputed
charge, then such amount is deemed undisputed and due to Wellhire.
(c) Taxes. Customer will be responsible for payment of any applicable
sales, use and other taxes and all applicable export and import fees, customs duties
and similar charges (other than taxes based on Wellhire’s income), and any related
penalties and interest for the grant of access rights hereunder, or the delivery
of related services. Customer will make all required payments to Wellhire free and
clear of, and without reduction for, any withholding taxes. Any such taxes imposed
on payments to Wellhire will be Customer’s sole responsibility, and Customer will,
upon Wellhire’s request, provide Wellhire with official receipts issued by appropriate
taxing authorities, or such other evidence as Wellhire may reasonably request, to
establish that such taxes have been paid.
(a) Ownership of Confidential Information. The Parties acknowledge
that during the performance of this Agreement, each Party will have access to certain
of the other Party’s Confidential Information or Confidential Information of third
parties that the disclosing Party is required to maintain as confidential. Both
Parties agree that all items of Confidential Information are proprietary to the
disclosing Party or such third party, as applicable, and will remain the sole property
of the disclosing Party or such third party.
(b) Mutual Confidentiality Obligations. Each Party agrees as follows:
(i) to use Confidential Information disclosed by the other Party only for the purposes
described herein; (ii) that such Party will not reproduce Confidential Information
disclosed by the other Party, and will hold in confidence and protect such Confidential
Information from dissemination to, and use by, any third party; (ii) that neither
Party will create any derivative work from Confidential Information disclosed to
such Party by the other Party; (iii) to restrict access to the Confidential Information
disclosed by the other Party to such of its personnel, agents, and/or consultants,
if any, who have a need to have access and who have been advised of and have agreed
in writing to treat such information in accordance with the terms of this Agreement;
and (iv) to the extent practicable, return or destroy, all Confidential Information
disclosed by the other Party that is in its possession upon termination or expiration
of this Agreement. Notwithstanding the foregoing, Customer agrees that Wellhire
may collect aggregated statistical data regarding Customer’s use of the Services
and provide such aggregated statistical data to third parties.
(c) Confidentiality Exceptions. Notwithstanding the foregoing,
the provisions of Sections 5 will not apply to Confidential Information that (i)
is publicly available or in the public domain at the time disclosed; (ii) is or
becomes publicly available or enters the public domain through no fault of the recipient;
(iii) is rightfully communicated to the recipient by persons not bound by confidentiality
obligations with respect thereto; (iv) is already in the recipient’s possession
free of any confidentiality obligations with respect thereto at the time of disclosure;
(v) is independently developed by the recipient; or (vi) is approved for release
or disclosure by the disclosing Party without restriction. Notwithstanding the foregoing,
each Party may disclose Confidential Information to the limited extent required
(x) in order to comply with the order of a court or other governmental body, or
as otherwise necessary to comply with applicable law, provided that the Party making
the disclosure pursuant to the order shall first have given written notice to the
other Party and made a reasonable effort to obtain a protective order; or (y) to
establish a Party’s rights under this Agreement, including to make such court filings
as it may be required to do.
Each Party hereby represents and warrants (i) that it is duly organized, validly
existing and in good standing under the laws of its jurisdiction of incorporation
or organization; (ii) that the execution and performance of this Agreement will
not conflict with or violate any provision of any law having applicability to such
Party; and (iii) that this Agreement, when executed and delivered, will constitute
a valid and binding obligation of such Party and will be enforceable against such
Party in accordance with its terms. Customer represents and warrants that it will
use Service Information only as a component (and not the sole or predominant factor)
in any hiring or employment termination decision or action. “Service Information”
means information that is the result of any analysis or processing by Wellhire or
is provided to Customer by Wellhire.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ALL SERVICES PERFORMED BY WELLHIRE
ARE PROVIDED “AS IS,” AND WELLHIRE DISCLAIMS ANY AND ALL OTHER CONDITIONS, REPRESENTATIONS
AND WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED
WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT,
QUIET ENJOYMENT, SYSTEM INTEGRATION AND/OR DATA ACCURACY. WELLHIRE DOES NOT WARRANT
THAT ANY SERVICES PROVIDED BY WELLHIRE WILL MEET CUSTOMER’S REQUIREMENTS OR THAT
THE OPERATION OF THE APPLICATION SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE, OR
THAT ALL ERRORS WILL BE CORRECTED.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL WELLHIRE BE
LIABLE TO CUSTOMER FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL OR PUNITIVE
DAMAGES, REGARDLESS OF THE NATURE OF THE CLAIM, INCLUDING, WITHOUT LIMITATION, LOST
PROFITS, COSTS OF DELAY, ANY FAILURE OF DELIVERY, BUSINESS INTERRUPTION, COSTS OF
LOST OR DAMAGED DATA OR DOCUMENTATION, OR LIABILITIES TO THIRD PARTIES ARISING FROM
ANY SOURCE, EVEN IF WELLHIRE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
THE CUMULATIVE LIABILITY OF WELLHIRE TO CUSTOMER FOR ALL CLAIMS ARISING FROM OR
RELATING TO THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY CAUSE OF ACTION SOUNDING
IN CONTRACT, TORT, OR STRICT LIABILITY, WILL NOT EXCEED THE GREATER OF (A) FIFTY
DOLLARS ($50) AND (B) TOTAL AMOUNT OF ALL FEES PAID TO WELLHIRE DURING THE TWELVE
(12)-MONTH PERIOD PRIOR TO THE ACT, OMISSION OR OCCURRENCE GIVING RISE TO SUCH LIABILITY.
NOTWITHSTANDING THE FOREGOING OR ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT,
THE LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION 8 SHALL NOT APPLY TO EITHER
PARTY’S OBLIGATIONS UNDER SECTION 5 (CONFIDENTIALITY) OR SECTION 10 (INDEMNIFICATION).
Customer acknowledges and understands that the disclaimer and limitations of liability
set forth in Sections 7 and 8 form an essential basis of the agreement between the
Parties, that the Parties have relied upon such disclaimer and limitations of liability
in negotiating the terms and conditions in this Agreement, and that absent such
disclaimers, exclusions and limitations of liability, the terms and conditions of
this Agreement would be substantially different.
(a) By Wellhire. Wellhire agrees to defend Customer against any
and all claims by any third party that the Services infringe or misappropriates
such third party’s intellectual property rights and pay any damages awarded therefore
or settlement amounts therefore that are agreed by Wellhire, provided that Customer
promptly notifies Wellhire in writing of the claim, cooperates with Wellhire, and
allows Wellhire sole authority to control the defense and settlement of such claim.
If such a claim is made or appears possible, Customer agrees to permit Wellhire,
at Wellhire’s sole discretion, to enable it to continue to use the Services, or
to modify or replace any such infringing material to make it non-infringing. If
Wellhire determines that none of these alternatives is reasonably available, Wellhire
may terminate the services that are the subject of the infringement claim. This
Section shall not apply if the alleged infringement arises, in whole or in part,
from (i) modification of the Services by Customer, or (ii) combination, operation
or use of the Services with other software, hardware or technology not provided
by Wellhire, or (iii) related to the Customer Content (any of the foregoing circumstances
under clauses (i), (ii), and (iii) a “Customer Indemnity Responsibility”).
(b) By Customer Customer agrees to defend Wellhire against any
claim based on a Customer Indemnity Responsibility or any Customer use (including
hiring and firing decisions) of any output (including Candidate Profiles) from any
Services, and pay any damages awarded therefore or settlement amounts agreed by
Customer, provided that Wellhire promptly notifies Customer in writing of the claim,
cooperates with Customer, and allows Customer sole authority to control the defense
and settlement of such claim, and provided further that Customer will not settle
any third-party claim against Wellhire unless such settlement completely and forever
releases Wellhire from all liability with respect to such claim or unless Wellhire
consents to such settlement, and further provided that Wellhire will have the right,
at its option, to defend itself against any such claim or to participate in the
defense thereof by counsel of its own choice.
(a) Term. The term of this Agreement will commence on the Effective
Date and will continue for as long as Customer is using the Services (the “Term”).
(b) Termination for Breach. If a Party breaches any material term,
condition, or obligation of this Agreement, the non-breaching Party may terminate
if the breaching Party fails to cure the breach within thirty (30) days after receiving
written notice thereof from the non-breaching Party.
(c) Termination for Convenience Wellhire may terminate this Agreement
for convenience upon thirty (30) days’ written notice to the other Party. Customer
may terminate this Agreement for convenience at any time by visiting Customer’s
account page and canceling Customer’s account.
(d) Effect of Termination Upon any termination of this Agreement,
Customer will (i) immediately discontinue all use of the Services and any Wellhire
Confidential Information; and (ii) promptly pay to Wellhire all amounts due and
payable under this Agreement. Within thirty (30) business days after the effective
date of any termination of this Agreement, Wellhire shall make available to Customer
a comma-separated text file of Customer Content. After such thirty (30) day period,
Wellhire shall have no obligation to maintain or provide any Customer Content to
(e) Survival. The provisions of Sections 2(d), 2(f), 6 - 12 will
survive any termination of this Agreement.
(f) Suspension of Services If Customer fails to pay undisputed
amounts in accordance with the terms and conditions hereof, Wellhire shall have
the right, in addition to any of its other rights or remedies, to suspend the Services
to Customer, without liability to Customer until such amounts are paid in full.
(a) Entire Agreement This Agreement, when read together with Wellhire’s
supersedes in its entirety any and all oral or written agreements previously existing
between Customer and Dispersive Technologies with respect to the subject matter
hereof. In the event that here is a conflict between this Agreement and the aforementioned
modified by a writing signed by both Parties.
(b) Independent Contractors In making and performing this Agreement,
Customer and Wellhire act and will act at all times as independent contractors,
and, except as expressly set forth herein, nothing contained in this Agreement will
be construed or implied to create an agency, partnership or employer and employee
relationship between them. Except as expressly set forth herein, at no time will
either Party make commitments or incur any charges or expenses for, or in the name
of the other Party.
(c) Notices All notices or other communications required by or
relating to this Agreement shall be in writing and shall be delivered by personal
delivery, certified overnight delivery, or registered mail (return receipt requested)
and shall be deemed given upon personal delivery or upon confirmation of receipt.
(d) Assignment; Delegation This Agreement, and Customer’s rights
and obligations herein, may not be assigned by Customer without Wellhire’s prior
written consent, and any attempted assignment in violation of the foregoing will
be null and void. Wellhire may assign this Agreement in its discretion.
(e) No Third Party Beneficiaries The Parties acknowledge that the
covenants set forth in this Agreement are intended solely for the benefit of the
Parties, their successors and permitted assigns. Nothing herein, whether express
or implied, will confer upon any person or entity, other than the Parties, their
successors and permitted assigns, any legal or equitable right whatsoever to enforce
any provision of this Agreement.
(f) Severability; Waiver If any provision of this Agreement is,
for any reason, held to be invalid or unenforceable, the other provisions of this
Agreement will remain enforceable and the invalid or unenforceable provision will
be deemed modified so that it is valid and enforceable to the maximum extent permitted
by law. Any waiver or failure to enforce any provision of this Agreement on one
occasion will not be deemed a waiver of any other provision or of such provision
on any other occasion.
(g) Force Majeure Except with respect to payment obligations hereunder,
neither Party shall be liable hereunder by reason of any failure or delay in the
performance of its obligations under this Agreement on account of strikes, shortages,
riots, insurrection, fires, flood, storm, explosions, acts of God, war, governmental
action, labor conditions, earthquakes, material shortages or any other cause that
is beyond the reasonable control of such Party, provided, however, that if such
Party is prevented or delayed from performing for more than ninety (90) days, the
other Party may terminate this Agreement upon thirty (30) days’ written notice.
(h) Governing Law and Dispute Resolution This agreement will be
governed by and interpreted in accordance with the laws of the State of Colorado,
consistent with the Federal Arbitration Act, without regard to its conflicts of
law principles or to the United Nations Convention on the International Sale of
Goods. In the event of a dispute, each party will designate a representative (each
a “Representative”) to meet in good faith to settle any dispute arising under or
related to this Agreement. The Representatives will negotiate in an effort to resolve
the dispute without the necessity of any formal proceeding. Formal proceedings for
the resolution of the dispute may not be commenced until the earlier of: (i) either
party concluding that resolution through continued negotiation does not appear likely;
or (ii) the passage of thirty (30) calendar days since the initial request to negotiate
the dispute was made; provided, however, that a party may file earlier to avoid
the expiration of any applicable limitations period, to preserve a superior position
with respect to other creditors, or to apply for interim or equitable relief. If
such dispute remains unsettled for more than thirty (30) days after either party
gives the other written notice thereof, then such dispute shall be submitted to
the American Arbitration Association (“AAA”) in Denver, Colorado for arbitration
pursuant to the AAA’s then current rules of commercial arbitration. THE PARTIES
AGREE THAT ANY SUCH ARBITRATION SHALL BE CONDUCTED ON AN INDIVIDUAL BASIS AND NOT
IN A CLASS, CONSOLIDATED OR REPRESENTATIVE ACTION. If for any reason a claim proceeds
in court rather than in arbitration, the dispute shall be exclusively brought in
state or federal court in Denver County, Colorado and you and Wellhire consent to
the exclusive jurisdiction of the courts in Denver County, Colorado. Notwithstanding
the foregoing, either party may go directly to court to file for interim, equitable,
or other relief in connection with confidentiality or intellectual property matters.
(i) U.S. Government End-Users. Each of the software components
that constitute the Services are a “commercial item” as defined in 48 CFR 2.101
and their use is subject to the policies set forth in 48 CFR 12.211, 48 CFR 12.212
and 48 CFR 227.7202, as applicable.