Master Subscription Agreement
Current as of: March 25, 2024
THIS MASTER SUBSCRIPTION AGREEMENT GOVERNS ACCESS AND USE OF THE SERVICES PROVIDED BY HACKERRANK. THIS AGREEMENT IS ENTERED INTO BY THE CUSTOMER ENTITY ENTERING INTO A SERVICE ORDER FOR OR REGISTERING TO USE HACKERRANK SERVICES AND INTERVIEWSTREET INCORPORATION OR SUCH OTHER HACKERRANK ENTITY ENTERING INTO A SERVICE ORDER WITH CUSTOMER (EACH, “HACKERRANK”).
BY ACCEPTING THIS AGREEMENT, EITHER BY EXECUTING A SERVICE ORDER THAT REFERENCES THIS AGREEMENT OR BY CLICKING A BOX INDICATING ACCEPTANCE, THE INDIVIDUAL DOING SO AGREES TO THE TERMS OF THIS AGREEMENT. THIS AGREEMENT APPLIES AS OF THE "CURRENT AS OF" DATE ABOVE AND IS EFFECTIVE AS OF THE DATE THE CUSTOMER ACCEPTS THE AGREEMENT. IF AN INDIVIDUAL ACCEPTS THIS AGREEMENT ON BEHALF OF AN ENTITY, THAT INDIVIDUAL REPRESENTS THAT THEY HAVE THE AUTHORITY TO BIND THE ENTITY TO THE TERMS OF THIS AGREEMENT, IN WHICH CASE “CUSTOMER” WILL REFER TO THE ENTITY. IF AN INDIVIDUAL DOES NOT HAVE SUCH AUTHORITY OR DOES NOT AGREE TO THE TERMS OF THIS AGREEMENT, THEY MUST NOT ACCEPT THIS AGREEMENT AND THEY AND CUSTOMER MAY NOT USE THE SERVICES.
1. Definitions
“Affiliate” means an entity that, directly or indirectly, controls, is controlled by, or is under common control with the subject entity, with “control” meaning the direct or indirect control of more than fifty percent (50%) of the voting power of the subject entity or the power to direct the management of that entity.
“Agreement” means this Master Subscription Agreement, together with any Service Orders entered into between Customer and HackerRank and any documents or materials of any nature incorporated by reference into the foregoing.
“Candidate” means an individual invited by Customer to use the Services as the subject of an evaluation and/or assessment by Customer in connection with Customer’s use of the Services. A Candidate is not considered a “User” under this Agreement.
“Customer” means the company or other legal entity ordering or registering to use the Services pursuant to a Service Order, Free Trial use, or other agreement with HackerRank.
“Customer Data” means all data, information, and/or materials input, uploaded, or submitted to the Services by Customer or its Users or Candidates in connection with Customer’s use of the Services. Customer Data does not include any Usage Data (defined below).
“Documentation” means usage guides, technical documentation, and specifications for the Services that HackerRank makes available to Customer in connection with or through the Services.
“Services” means the products and/or services offered by HackerRank that are ordered by Customer.
“Service Order” means an online order or an ordering document entered into by Customer and HackerRank specifying the Services purchased by Customer and to be provided by HackerRank.
“Services Term” means the duration of Customer’s subscription to the Services as provided for by the applicable Service Order.
"Usage Data" means data derived from use or operation of the Services that exists in an aggregated and anonymized and/or de-identified format such that Customer and individual Users and Candidates are not identifiable.
“User” means Customer’s employees or contractors who are designated and granted access by Customer to use the Services under Customer's account as permitted by this Agreement.
2. Term and Service Orders
2.1. Term. This Agreement is effective as of the date Customer accepts the Agreement and will continue until the Services Terms of all Service Orders have expired or are terminated in accordance with this Agreement (the “Term”).
2.2. Service Orders. Customer will order the Services by executing a Service Order. Each Service Order will include terms detailing the applicable Services. Service Orders and the obligations under them are non-cancellable, except as may be provided for by this Agreement.
2.3. Adding Services. Customer may purchase additional Services during the Term by entering into an additional Service Order as HackerRank requires to add those Services. For additional subscription-based Services added: the Services Term will continue coterminous with Customer’s then-current Services Term; and Fees will be prorated commensurate with the remaining period of Customer’s then-current Services Term as of the start date of the additional Services.
3. Provision of Services
3.1. Access and Use. HackerRank will provide Customer and its Users access to and use of the Services and Documentation in accordance with the applicable Service Order. Customer and its Users will use the Services solely for Customer’s internal business purposes.
3.2. Hosting, Support, Service Levels. HackerRank will host, maintain, and support the Services in accordance with the service levels set forth in HackerRank’s Service Level Agreement, which is incorporated into this Agreement by reference and available at https://www.hackerrank.com/about-us/sla/.
3.3. AI Features. If Customer makes use of any features or functionality within the Services that HackerRank discloses to Customer as making use of artificial intelligence, machine learning, or similar technologies ("AI Features"), Customer's use of those AI Features are subject to the AI Feature Terms available at https://www.hackerrank.com/about-us/ai-feature-terms/.
3.4. Personal Data Processing. With respect to HackerRank’s processing of any personal data or personal information (as defined therein), HackerRank and Customer agree to the terms of HackerRank's Data Processing Addendum, incorporated into this Agreement available at https://www.hackerrank.com/about-us/data-processing-addendum/.
3.5. Feature Updates. HackerRank may periodically update and/or modify the features and functionality of the Services, provided that any update or modification will not materially diminish the features or functionality of the Services provided to Customer during the applicable Services Term.
4. Fees; Payment; Taxes
4.1. Fees. Customer will pay HackerRank the fees for the Services as specified in the applicable Service Order (“Fees”). All Fees are non-refundable except as provided for by this Agreement and are not subject to apportionment by Customer.
4.2. Invoicing and Payment. HackerRank will invoice Customer for all Fees due. Fees for each Services Term are due annually upfront and are payable the net number of days from the invoice date as stated in the Service Order. Fees are payable in U.S. dollars, unless Customer is registered under the laws of India in which case Fees are payable in INR. Overdue Fees will bear interest at the lesser rate of 1.5% per month or the highest rate permitted by applicable law, calculated daily and compounded monthly.
4.3. Taxes. Unless otherwise stated in the Service Order or if Customer provides HackerRank with a valid tax exempt certificate, all Fees are exclusive of taxes, levies, duties, or similar governmental assessments or charges that may be imposed by applicable authorities in connection with Customer’s purchase of the Services, all of which are the sole responsibility of Customer and will be charged to Customer if HackerRank is required by applicable law or regulation to collect or pay them. Customer’s foregoing payment responsibility excludes any taxes, levies, duties, or similar governmental assessments based on HackerRank’s revenue, income, number of employees, or corporate existence.
4.4. Trial Offers. If Customer registers for a free trial use of the Services to the extent offered by HackerRank (a “Free Trial”), HackerRank will make the applicable portion of Services available to Customer free of charge until the earlier of: (a) the end of the Free Trial period offered by HackerRank; or (b) the start date of any Service Order entered into between Customer and HackerRank for Customer’s paid use of the Services. Free Trials are subject to this Agreement and to any additional Free Trial terms presented in connection with the Free Trial registration, all of which are incorporated into this Agreement by reference. ANY CUSTOMER DATA PROCESSED BY HACKERRANK DURING A FREE TRIAL USE WILL BE PERMANENTLY LOST UNLESS CUSTOMER PURCHASES A SUBSCRIPTION TO THE SERVICES BEFORE THE END OF THE FREE TRIAL PERIOD.
5. Usage Requirements
5.1. User Types. Users may be designated different usage rights and limitations based on their User type as specified in the applicable Service Order. Customer may use the Services only in accordance with the User numbers, rights, and limitations permitted by the Agreement. User accounts: (a) must be designated to one unique individual and may not be shared or accessed by multiple individuals or of a generic nature; (b) may be re-assigned by Customer during a Services Term only on a permanent basis to a new User replacing one who will no longer use the Services; and (c) may only be used by the Customer entity entering into the applicable Services Order, unless this Agreement provides otherwise.
5.2. Acceptable Use Policy. In accordance with the following HackerRank “Acceptable Use Policy,” Customer and its Users may not, or allow any third party to, do any of the following in connection with use of the Services: (a) use the Services in violation of applicable law; (b) take, or attempt to take, any action to damage, disable, or interfere with the operation or security of the Services or circumvent any security, access controls, or use limits of the Service; (c) initiate a denial-of-service attack, software virus, or other harmful computer code, file, or program (including Trojan horses, worms, time bombs, cancelbots, malware, or spyware), unsolicited communication, spam, false source-identifying information (including “phishing” or “spoofing”); (d) use the Services in any manner, or post, upload, or transmit any material to the Services, that HackerRank deems libelous, discriminatory, abusive, harassing, obscene, fraudulent, offensive, or objectionable; (e) infringe upon or violate the rights of HackerRank or any third parties, including any copyright, trademark, trade secret, patent, or other intellectual property rights (whether or not registered or issued) (collectively, “Intellectual Property Rights”) or remove or alter any notices, attribution, or labels of Intellectual Property Rights published in connection with the Services or Documentation; (f) copy, distribute, resell, rent or lease, mirror, frame, publicly display, modify, compile or decompile, disassemble, reverse engineer, or create derivative works of any part of the Services; or (g) use the Services for competitive analysis or for the development or provision of a competing service or product.
5.3. Compliance Monitoring. Customer is solely responsible for ensuring its Users and its Customer Data comply with the terms of this Agreement. Any action taken by a User with respect to the Services will be deemed an action taken by Customer. HackerRank reserves the right (but will not have the obligation) to monitor use of the Services for compliance with this Agreement.
6. Intellectual Property Rights
6.1. Ownership. As between HackerRank and Customer, except for the rights granted by this Agreement: (a) Customer owns and retains all its rights, title, and interest in and to all Customer Data and all Intellectual Property Rights therein; and (b) HackerRank, its Affiliates, and its licensors, respectively, own and retain all rights, title, and interest in and to all Usage Data and the Services and all Intellectual Property Rights therein.
6.2. Customer Data License. Customer grants HackerRank and its Affiliates a worldwide, non-exclusive, royalty-free, sublicensable (solely to HackerRank's third party providers or licensors as necessary to provide the Services to Customer) license solely to use, host, process, copy, transmit, and display Customer Data in connection with HackerRank’s performance of its obligations under this Agreement.
7. Confidentiality
7.1. Confidential Information. “Confidential Information” means any information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is identified as confidential or should reasonably be understood to be confidential due to the nature of the information and the circumstances of the disclosure, including Customer Data, and any non-public information related to the Services or Documentation, software, know-how, processes, trade secrets, business and marketing plans, technology and technical information, product plans and designs, business and operational methods, and accounting and financial records. Confidential Information does not include any information that is: (a) known to the Receiving Party or within its possession prior to disclosure by the Disclosing Party; (b) made available to the public through no act or omission of the Receiving Party; (c) disclosed to the Receiving Party on a non-confidential basis by a third party having the right to make that disclosure; or (d) independently developed by the Receiving Party without reference to or reliance upon the Disclosing Party’s Confidential Information.
7.2. Confidentiality Obligations. The Receiving Party will keep the Disclosing Party’s Confidential Information confidential, exercising the same degree of care to do so that the Receiving Party exercises to keep confidential its own Confidential information of similar type and importance, but no less than reasonable care. The Receiving Party will not use or disclose to a third party any Confidential Information of the Disclosing Party, except: (a) with the Disclosing Party’s prior written consent; (b) to the employees, directors, officers, attorneys, accountants, agents, or contractors of the Receiving Party or its Affiliates who need to know the Confidential Information for purposes consistent with this Agreement and who have agreed to keep the Confidential Information confidential under terms no less protective thereof than the terms of this Agreement; or (c) as required by law or by order of a court or adjudicator of competent jurisdiction, in which case the Receiving Party will, prior to any disclosure, promptly provide the Disclosing Party with written notice of the required disclosure such that the Disclosing Party will have the opportunity to contest or limit the scope of the disclosure and, if disclosure is nonetheless required, will reasonably cooperate (at the Disclosing Party’s expense) with the Disclosing Party’s reasonable and lawful requests related thereto.
8. Representations and Warranties
8.1. Mutual. HackerRank and Customer each represent and warrant that it has full right and authority to enter into this Agreement and to perform all its obligations and grant all rights granted by it under this Agreement.
8.2. By HackerRank. HackerRank represents and warrants that the Services will materially conform to the specifications of the applicable Service Order and Documentation during the applicable Services Term.
8.3. By Customer. Customer represents and warrants that it has secured all rights in Customer Data as may be necessary for HackerRank to process the Customer Data in accordance with this Agreement.
8.4. Disclaimer. EXCEPT AS PROVIDED FOR BY THIS AGREEMENT, THE SERVICES ARE PROVIDED “AS-IS” AND AS AVAILABLE AND HACKERRANK DISCLAIMS AND DOES NOT MAKE ANY REPRESENTATION OR WARRANTY RELATED TO THE SERVICES, WHETHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, TITLE, OR THAT THE SERVICES WILL BE UNINTERRUPTED, COMPLETELY SECURE, ERROR-FREE, OR MEET ANY PARTICULAR REQUIREMENT OF CUSTOMER.
9. Indemnification
9.1. Indemnification by HackerRank. HackerRank will indemnify, defend, and hold harmless Customer and its Affiliates from and against any losses, damages, liabilities, suits, actions, costs, and expenses, including reasonable attorneys’ fees (together, “Losses”), arising out of or related to any third party claim alleging that the Services infringe on that third party’s Intellectual Property Rights. In the event of a claim giving rise to HackerRank’s indemnification obligation under this Agreement, HackerRank may, at its election and sole expense: (a) procure the right for Customer to continue using the applicable Services; (b) replace or modify the applicable Services so that they are no longer infringing; or (c) terminate the applicable Services on written notice to Customer and refund to Customer the pro-rata amount of any pre-paid Fees for the portion of the applicable Services remaining prospectively unused as a result of the termination. HackerRank’s obligation to indemnify Customer will not apply to Customer’s modification to Services or to Customer’s combination of the Services with third party products, services, or materials, which are not permitted by this Agreement or otherwise made or approved by HackerRank (“Unauthorized Changes”) or to a claim to the extent arising from or related to Customer’s violation of this Agreement. The indemnification obligations of this Section constitute HackerRank’s entire liability and Customer’s exclusive remedy with respect to any actual or alleged third party claim of infringement or misappropriation of Intellectual Property Rights.
9.2. Indemnification by Customer. Customer will indemnify, defend, and hold harmless HackerRank and its Affiliates from and against any Losses arising out of or related to any third party claim to the extent arising from or related to: (a) Customer Data; or (b) Customer’s Unauthorized Changes to the Services.
9.3. Indemnification Process. With respect to a claim subject to indemnification, the party seeking indemnification will provide the other party with prompt written notice of the claim, control over the defense and settlement of the claim, and information and assistance as may be reasonably requested by the indemnifying party to assist the indemnifying party in settling and/or defending the claim.
10. Limitation of Liability
10.1. Limitation of Certain Damages. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, NEITHER PARTY NOR ITS AFFILIATES WILL BE LIABLE TO THE OTHER PARTY OR ITS AFFILIATES FOR ANY INCIDENTAL, SPECIAL, INDIRECT, OR CONSEQUENTIAL DAMAGES, OR ANY LOST REVENUE, LOST PROFITS, LOSS OF TECHNOLOGY, LOSS OF DATA, REPLACEMENT GOODS OR SERVICES, OR INTERRUPTION OF BUSINESS.
10.2. Limitation of Liability Amount. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, EACH PARTY’S MAXIMUM AGGREGATE LIABILITY ARISING FROM OR RELATED TO THIS AGREEMENT OR THE SERVICES WILL BE LIMITED TO THE TOTAL AMOUNT PAID OR PAYABLE BY CUSTOMER TO HACKERRANK UNDER THIS AGREEMENT FOR THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRIOR TO THE DATE OF THE INCIDENT GIVING RISE TO THE LIABILITY, EXCEPT WITH RESPECT TO A PARTY’S INDEMNIFICATION OBLIGATIONS OR A PARTY’S FRAUD, GROSS NEGLIGENCE, OR WILLFUL MISCONDUCT.
THE LIMITATIONS SET FORTH IN THIS SECTION WILL APPY TO ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE AND EVEN IF THE PARTY IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND/OR ANY LIMITED REMEDY UNDER THIS AGREEMENT FAILS ITS ESSENTIAL PURPOSE.
11. Suspension of Services
HackerRank reserves the right to, immediately and without liability, suspend provision of the Services: (a) if any undisputed (in good faith) Fees or other amounts payable to HackerRank under this Agreement remain unpaid for more than 30 days following written notice to Customer thereof, until those Fees are paid in full; (b) permanently with respect to any individual User or Customer Data that violates the “Acceptable Use Policy” or the “Export Controls” section of this Agreement; and/or (c) as HackerRank deems necessary, at its sole discretion, to address an actual or reasonably suspected threat to the security, integrity, or availability of the Services, in which case HackerRank will use commercially reasonable efforts to provide Customer with prior notice of the suspension and limit the suspension to the affected portion of the Services, and HackerRank will resume provision of the Services promptly if and when the cause of the suspension is resolved to HackerRank’s sole satisfaction or this Agreement is otherwise terminated in accordance with its terms.
12. Export Controls.
Customer will comply with any export and re-export control laws and regulations that may be applicable to use of the Services, including the Export Administration Regulations maintained by the U.S. Department of Commerce and/or the U.S. Department of Treasury. Customer will not, directly or indirectly, sell, export, re-export, transfer, divert, or otherwise dispose of any part of the Services or its underlying code or technology to any country, entity, or individual subject to antiterrorism controls or any U.S. embargo, sanctions, government list of prohibited persons, or other similar prohibition under the laws or regulations of the United States.
13. Termination
13.1. Termination for Cause. Either party may terminate this Agreement or the applicable Service Order if the other party materially breaches this Agreement and fails to remedy that breach within 30 days after receiving written notice reasonably detailing the breach. Notwithstanding anything to the contrary in this Agreement, if Customer terminates this Agreement and/or a Service Order as a result of HackerRank’s material breach, then HackerRank will refund to Customer the pro-rata amount of any pre-paid Fees for the portion of the applicable Services remaining prospectively unused as a result of the termination.
13.2. Termination for Insolvency. Either party may terminate this Agreement upon written notice to the other party if the other party ceases business operations without a successor or seeks protection under, or has instituted against it, any bankruptcy, receivership, trust deed, creditors’ arrangement, composition, or comparable proceeding that is not dismissed within 60 days.
13.3. Effect of Termination. Upon the expiration or termination of this Agreement or a Service Order: (a) Customer’s right to use the terminated Services will cease; (b) Customer will return to HackerRank any Confidential Information in Customer’s possession and will delete all copies of Documentation Customer’s possession; and (c) for a period of 30 days immediately following expiration or termination, HackerRank will provide Customer the limited right to access applicable functionality of the Services solely for the purpose of extracting Customer Data from the Services in a manner reasonably offered by HackerRank, after which time Customer’s access to Customer Data will be discontinued.
14. Miscellaneous
14.1. Legal Compliance. HackerRank and Customer will each comply with all laws applicable to the respective party in connection with its performance under this Agreement.
14.2. Assignment. Neither party may assign this Agreement or its obligations under this Agreement, in whole or in part, by operation of law or otherwise, without the prior written consent of the other party, except in connection with a corporate reorganization, consolidation, merger, acquisition, or sale of all or substantially all of the assigning party’s assets and upon notice to the other party in each case. An attempted assignment in violation of the foregoing restrictions will be void. Subject to the restrictions of this Section, this Agreement will be binding on, and will inure to the benefit of, the parties and their respective successors and permitted assigns.
14.3. Notices. All notices required by this Agreement will be in writing and delivered by personal delivery, certified mail with return receipt requested, overnight courier, Email, or by any other method agreed upon by the parties in writing and will be delivered to: (a) if to Customer, to the administrator contact that Customer designates in Customer’s account within the Services; (b) if to HackerRank, to Interviewstreet Incorporation, dba HackerRank, Legal Dept., 10080 N Wolfe Road, SW3-200, Cupertino, CA 95014 or legal@hackerrank.com; or (c) to such other contact as may be designated by this Agreement for a specific type of notice.
14.4. Independent Contractors. HackerRank and Customer are independent contractors of each other. Nothing in this Agreement will be deemed to create an agency, employment, partnership, fiduciary, or joint venture between the parties nor the right of a party to make any representations or incur any obligations on behalf of the other party.
14.5. Severability. If any provision of this Agreement is determined by an adjudicator of competent jurisdiction to be illegal, invalid, or unenforceable, that provision will be enforced to the maximum extent permissible so as to effect the intent of the parties, and all other provisions of this Agreement will be unaffected and will remain in effect.
14.6. No Waiver. A party’s failure to exercise or its delay in exercising any right or remedy under this Agreement will not operate as a waiver thereof; nor will a party’s waiver of any right or remedy under this Agreement operate as a subsequent waiver of the same or any other right or remedy.
14.7. Governing Law; Jurisdiction. This Agreement will be governed by the laws of the State of California without regard to conflict of laws provisions, and any dispute arising from or relating to this Agreement will be adjudicated exclusively in the state or federal courts having jurisdiction over the matter located in Santa Clara County, California, unless Customer is a business registered under the laws of India, in which case, this Agreement will be governed by the laws of India and any dispute arising from or relating to this Agreement will be adjudicated exclusively in the courts having jurisdiction over the matter located in Bangalore, State of Karnataka, India.
14.8. Force Majeure. Neither Party will be liable under or in breach of this Agreement for any partial or total failure or delay in the performing its obligations under this Agreement on account of riots, fire, flood, earthquake, explosion, epidemics, war, strike or labor disputes (not involving the subject party), embargo, civil or military authority, act of God, governmental action, or other causes beyond its reasonable control and without the fault or negligence of the non-performing party (a “Force Majeure Event”). In the event of a Force Majeure Event, the non-performing party will resume performance as soon as practicable once the Force Majeure Event is eliminated. If a Force Majeure Event continues for more than 30 days, then the non-delaying party may terminate the affected Service Order and, if Customer is the terminating party, HackerRank will refund to Customer the pro-rata amount of any pre-paid Fees for the portion of the applicable Services remaining prospectively unused as a result of the termination.
14.9. Including. The word “including” as used in this Agreement means “including but not limited to,” unless otherwise stated in the Agreement.
14.10. Document Precedence. In the event of a conflict between the terms of a Service Order and the terms of this Master Subscription Agreement, the terms of the Service Order will control. The terms of this Agreement control over any additional or inconsistent terms or conditions contained in any corresponding purchase order or other purchasing or invoicing documentation provided by Customer, all of which are rejected and will be of no effect even if they state they supersede prior or contemporaneous agreements with respect to the subject matter thereof.
14.11. Survival. Any terms of this Agreement that expressly or by their nature are to continue in effect after the expiration or termination of this Agreement will survive expiration or termination and will continue in their effect.
14.12. Electronic Signature; Counterparts. Original signatures by electronic signature methods or by electronic transmission of a signed document are true and valid signatures for all purposes and will bind the parties to the same extent as that of handwritten signatures. This Agreement may be executed in counterparts, each of which is deemed an original and all of which together are deemed to be one and the same agreement.
14.13. Entire Agreement; Modification. All documents of any nature that incorporate or are incorporated into this Agreement will be read and interpreted together with, and made part of, this Agreement as a single document. This Agreement sets forth the complete and final agreement between the parties with respect to the subject matter hereof and supersedes all prior or contemporaneous agreements, understandings, negotiations, or discussions between the parties, whether oral or written, related to the subject matter of this Agreement. This Agreement may only be modified, amended, or any rights under it waived, by a written document executed by the party or parties to be bound.