Standard Contract
This Standard Contract (“Agreement”) is between you (“you” or “Customer”) and iTalent Digital from which you are procuring subscription licenses for Chama and governs your use of the product.
This Agreement is the parties’ entire agreement on this subject and merges and supersedes all related prior and contemporaneous agreements. By agreeing to these terms, you represent and warrant that you have the authority to accept this Agreement, and you also agree to be bound by its terms. This Agreement applies to all Orders entered into under this Agreement.  Capitalized terms have the meanings given under “Definitions.”
I.	License to Chama
a. License grant.  The use of Chama is granted via license subscriptions and not sold.  Upon iTalent Digital’s acceptance of an Order, and subject to Customer’s compliance with this Agreement, iTalent Digital grants Customer a nonexclusive and limited license to use Chama.  These licenses are solely for Customer’s own use and business purposes and are nontransferable except as expressly permitted under this Agreement or applicable law.
b. Duration of licenses.  The licenses subscription period is set forth in the Order and will automatically renew on the anniversary date unless the subscription is cancelled by the Customer.
c.	End Users.  Customer will control access to and use of the Offerings by End Users and is responsible for any use of the Offerings that does not comply with this Agreement.
d. Affiliates.  Customer may order Chama license subscriptions for use by its Affiliates. If it does, the licenses granted to Customer under this Agreement will apply to such Affiliates, but Customer will have the sole right to enforce this Agreement against iTalent Digital. Customer will remain responsible for all obligations under this Agreement and for its Affiliates’ compliance with this Agreement and any applicable Order(s).
e. Reservation of Rights.  iTalent Digital reserves all rights not expressly granted in this Agreement. Chama is protected by copyright and other intellectual property laws and international treaties. No rights will be granted or implied by waiver or estoppel.  Rights to access or use Chama on a device does not give Customer any right to implement iTalent Digital’s patents or other intellectual property in the device itself or in any other software or devices.
f.	Restrictions.  Except as expressly permitted in this Agreement, Documentation or an Order, Customer must not (and is not licensed to):
1)	copy, modify, reverse engineer, decompile, or disassemble any Offering, or attempt to do so;
2)	install or use any third-party software or technology in any way that would subject iTalent Digital’s intellectual property or technology to any other license terms;
3)	work around any technical limitations;
4)	separate and run parts of Chama on more than one device;
5)	upgrade or downgrade parts of Chama at different times;
6)	use Chama for any unlawful purpose;
7)	transfer parts of Chama separately; or
8)	distribute, sublicense, rent, lease, or lend Chama, in whole or in part, or use it to offer hosting services to a third party.
g. License transfers. Customer may only transfer fully-paid, perpetual licenses to (1) an Affiliate or (2) employees to whom the licenses have been assigned as part of (A) a divestiture of all or part of an Affiliate or (B) a merger involving Customer or an Affiliate.  Upon such transfer, Customer must discontinue using Chama. Customer must notify iTalent Digital of a License transfer and provide the
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transferee a copy of this Agreement and any other documents necessary to show the scope, purpose, and limitations of the licenses transferred.  Attempted license transfers that do not comply with this section are void.
h. Feedback.  Any Feedback is given voluntarily, and the provider grants to the recipient, without charge, a non-exclusive license under provider’s owned or controlled non-patent intellectual property rights to make, use, modify, distribute, and commercialize the Feedback as part of any of recipient’s products and services, in whole or in part and without regard to whether such Feedback is marked or otherwise designated by the provider as confidential. The provider retains all other rights in any Feedback and limits the rights granted under this section to licenses under its owned or controlled non-patent intellectual property rights in the Feedback (which do not extend to any technologies that may be necessary to make or use any product or service that incorporates, but are not expressly part of, the Feedback, such as enabling technologies).
II. 	Privacy.
a.	EU Standard Contractual Clauses.  To the extent applicable, the parties will abide by the requirements of European Economic Area and Swiss data protection law regarding the collection, use, transfer, retention, and other processing of Personal Data from the European Economic Area and Switzerland. All transfers of Customer Data out of the European Union, European Economic Area, and Switzerland will be governed by the Standard Contractual Clauses, as designated by the European Commission, made available by the Publisher at the applicable URL for such terms or as otherwise communicated to Customer.
b.	Personal Data.  Customer consents to the processing of Personal Data by iTalent Digital and its Affiliates, and their respective agents and Subcontractors, as provided in this Agreement.  Before providing Personal Data to iTalent Digital, Customer will obtain all required consents from third parties (including Customer’s contacts, partners, distributors, administrators, and employees) under applicable privacy and Data Protection Laws.
c.	Processing of Personal Data;  GDPR.  To the extent iTalent Digital is a processor or subprocessor of Personal Data subject to the GDPR, the Standard Contractual Clauses govern that processing and the parties also agree to the following terms in this subsection (“Processing of Personal Data;  GDPR”):
1)	Processor and Controller Roles and Responsibilities.  Customer and iTalent Digital agree that Customer is the controller of Personal Data and iTalent Digital is the processor of such data, except when (a) Customer acts as a processor of Personal Data, in which case iTalent Digital is a subprocessor or (b) stated otherwise in any Offering-specific terms. iTalent Digital will process Personal Data only on documented instructions from Customer. In any instance where the GDPR applies and Customer is a processor, Customer warrants to iTalent Digital that Customer’s instructions, including appointment of Processor as a processor or subprocessor, have been authorized by the relevant controller.
2)	Processing Details.  The parties acknowledge and agree that:
a.	the subject-matter of the processing is limited to Personal Data within the scope of the GDPR;
b.	the duration of the processing will be for the duration of the Customer’s right to use Chama and until all Personal Data is deleted or returned in accordance with Customer instructions or the terms of this Agreement;
c.	the nature and purpose of the processing will be to provide Chama pursuant to this Agreement;
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d.	the types of Personal Data processed by Chama include those expressly identified in Article 4 of the GDPR; and
e.	the categories of data subjects are Customer’s representatives and end users, such as employees, contractors, collaborators, and customers, and other data subjects whose Personal Data is contained within any data made available to Publisher by Customer.
3)	Data Subject Rights;  Assistance with Requests. iTalent Digital will make information available to Customer in a manner consistent with the functionality of Chama and iTalent Digital’s role as a processor of Personal Data of data subjects and the ability to fulfill data subject requests to exercise their rights under the GDPR. iTalent Digital will comply with reasonable requests by Customer to assist with Customer’s response to such a data subject request. If iTalent Digital receives a request from Customer’s data subject to exercise one or more of its rights under the GDPR in connection with chama for which iTalent Digital is a data processor or subprocessor, iTalent Digital will redirect the data subject to make its request directly to Customer. Customer will be responsible for responding to any such request including, where necessary, by using the functionality of Chama. iTalent Digital will comply with reasonable requests by Customer to assist with Customer’s response to such a data subject request.
4)	Use of Subprocessors.  Customer consents to iTalent Digital using the subprocessors listed at the applicable iTalent Digital URL or as otherwise communicated to Customer. iTalent Digital remains responsible for its subprocessors’ compliance with the obligations herein. ITalent Digital may update its list of subprocessors from time to time, by providing Customer at least 14 days’ notice before providing any new subprocessor with access to Personal Data. If Customer does not approve of any such changes, Customer may terminate any subscription of Chama without penalty by providing, prior to expiration of the notice period, written notice of termination that includes an explanation of the grounds for non-approval.
5)	Records of Processing Activities.  iTalent Digital will maintain all records required by Article 30(2) of the GDPR and, to the extent applicable to the processing of Personal Data on behalf of Customer, make them available to Customer upon request.
III. 	Confidentiality.
a.	Confidential Information.  “Confidential Information” is non-public information that is designated “confidential” or that a reasonable person should understand is confidential, including, but not limited to, Customer Data, the terms of this Agreement, and Customer’s account authentication credentials.  Confidential Information does not include information that: (1) becomes publicly available without a breach of a confidentiality obligation; (2) the receiving party received lawfully from another source without a confidentiality obligation; (3) is independently developed; or (4) is a comment or suggestion volunteered about the other party’s business, products or services.
b.	Protection of Confidential Information.  Each party will take reasonable steps to protect the other’s Confidential Information and will use the other party’s Confidential Information only for purposes of the parties’ business relationship.  Neither party will disclose Confidential Information to third parties, except to its Representatives, and then only on a need-to-know basis under nondisclosure obligations at least as protective as this Agreement.  Each party remains responsible for the use of Confidential Information by its Representatives and, in the event of discovery of any unauthorized use or disclosure, must promptly notify the other party.
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c.	Disclosure required by law.  A party may disclose the other’s Confidential Information if required by law, but only after it notifies the other party (if legally permissible) to enable the other party to seek a protective order.
d.	Duration of Confidentiality obligation.  These obligations apply: (1) for Customer Data, until it is deleted by iTalent Digital; and (2) for all other Confidential Information, for a period of five years after a party receives the Confidential Information.
IV.	SLAs.
iTalent Digital may offer further availability and support obligations for Chama.  Such service level agreement (“SLA”) will be made available by the iTalent Digital at the applicable URL for such SLA or as otherwise communicated to Customer.
V.	Verifying compliance.
Customer must keep records relating to Chama and its Affiliates use or distribute. At iTalent Digital’s expense, iTalent Digital may verify Customer’s and its Affiliates’ compliance with this Agreement at any time upon 30 days’ notice. To do so, iTalent Digital may engage an independent auditor (under nondisclosure obligations) or ask Customer to complete a self-audit process. Customer must promptly provide any information and documents that iTalent Digital or the auditor reasonably requests related to the verification and access to systems running Chama. If verification or self-audit reveals any unlicensed use, Customer must, within 30 days, order sufficient licenses to cover the period of its unlicensed use.  Without limiting iTalent Digital’s other remedies, if unlicensed use is 5% or more of Customer’s total use of all Offerings, Customer must reimburse iTalent Digital for its costs incurred in verification and acquire sufficient licenses to cover its unlicensed use at 125% of the then-current Customer price or the maximum allowed under applicable law, if less. All information and reports related to the verification process will be Confidential Information and used solely to verify compliance.
Nothing in this section limits Customer’s right to audit iTalent Digital under the GDPR provisions.
VI.	Representation and warranties.
iTalent Digital continuously represents and warrants that:
a.	it has full rights and authority to enter into, perform under, and grant the rights in, this Agreement;
b. its performance will not violate any agreement or obligation between it and any third party;
c. Chama will substantially conform to the Documentation;
d. Chama will not:
1)	to the best of ITalent Digital’s knowledge, infringe or violate any third party patent, copyright, trademark, trade secret, or other proprietary right; or
2)	contain viruses or other malicious code that will degrade or infect any products, services, software, or Customer’s network or systems, and
e. while performing under this Agreement, iTalent Digital will comply with law, including Data Protection Laws and Anti-Corruption Laws, and will provide training to its employees regarding Anti-Corruption Laws.
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Disclaimer. Except as expressly stated in this Agreement, Chama is provided as is. To the maximum extent permitted by law, iTalent Digital disclaims any and all other warranties (express, implied or statutory, or otherwise) including of merchantability or fitness for a particular purpose, whether arising by a course of dealing, usage or trade practice, or course of performance.
VII. 	Defense of third-party claims.
a.	By Customer. Customer will defend iTalent Digital and its Affiliates from and against any and all third party claims, actions, suits, proceedings arising from or related to Customer’s or any authorized user’s violation of this Agreement or user terms (a “Claims Against iTalent Digital”), and will indemnify iTalent Digital and its Affiliates for all reasonable attorney’s fees incurred and damages and other costs finally awarded against iTalent Digital or its Affiliates in connection with or as a result of, and for amounts paid by iTalent Digital or its Affiliates under a settlement Customer approves of in connection with a Claim Against iTalent Digital. iTalent Digital must provide Customer with  prompt written notice of any Claims Against iTalent Digital and allow Customer the right to assume the exclusive defense and control of the claim, and cooperate with any reasonable requests assisting Customer’s defense and settlement of such matter.
b.	By iTalent Digital. iTalent Digital will defend Customer from and against any and all third party claims, actions, suits, proceedings, and demands alleging that the use of the Offering as permitted under the Contract infringes or misappropriates a third party’s intellectual property rights (a “Claim Against Customer”), and will indemnify Customer for all reasonable attorney’s fees incurred and damages and other costs finally awarded against Customer in connection with or as a result of, and for amounts paid by Customer under a settlement iTalent Digital approve of in connection with a Claim Against Customer;  provided, however, that iTalent Digital has no liability if a Claim Against Customer arises from: (1) Customer Data or non-iTalent Digital products, including third-party software; and (2) any modification, combination or development of the Chama that is not performed or authorized in writing by iTalent Digital, including the use of any application programming interface (API). Customer must provide iTalent Digital with prompt written notice of any Claim Against Customer and allow iTalent Digital the right to assume the exclusive defense and control and cooperate with any reasonable requests assisting iTalent Digital’s defense and settlement of such matter. This section states iTalent Digital sole liability with respect to, and Customer’s exclusive remedy against iTalent Digital for, any Claim Against Customer.
c.	Notwithstanding anything contained in the above subsections (a) and (b), (1) an indemnified party will always be free to choose its own counsel if it pays for the cost of such counsel; and (2) no settlement may be entered into by an indemnifying party, without the express written consent of the indemnified parties (such consent not to be unreasonably withheld), if: (A) the third party asserting the claim is a government agency; (B) the settlement arguably involves the making of admissions by the indemnified parties; (C) the settlement does not include a full release of liability for the indemnified parties; or (D) the settlement includes terms other than a full release of liability for the indemnified parties and the payment of money.
VIII. 	Limitation of liability.
Each party’s maximum, aggregate liability to the other under this Agreement is limited to direct damages finally awarded in an amount not to exceed the amounts Customer was required to pay for Chama licenses during the term of the applicable licenses, subject to the following:
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a.	Subscriptions.  iTalent Digital’s maximum liability to Customer for any incident giving rise to a claim will not exceed the amount Customer paid for Chama license subscriptions during the 12 months before the incident.
b.	Free Offerings.  For offerings provided free of charge, iTalent Digital’s liability is limited to direct damages finally awarded up to US$5,000.
c.	Exclusions. In no event will either party be liable for indirect, incidental, special, punitive, or consequential damages, or loss of use, loss of profits, or interruption of business, however caused or on any theory of liability.
d.	Exceptions. No limitation or exclusions will apply to liability arising out of either party’s: (1) confidentiality obligations (except for liability related to Customer Data, which will remain subject to the limitations and exclusions above); (2) defense obligations; or (3) violation of the other party’s intellectual property rights.
IX.	Pricing and payment.
Customer’s pricing and payment terms for a given order are set forth and governed by the iTalent Digital Services Agreement and applicable Order.
X.	Term and termination.
a.	Term.  This Agreement is effective until terminated by a party, as described below. The term for each Order will be set forth therein.
b.	Termination without cause.  Unless otherwise set forth in an Order, either party may terminate this Agreement or any Order without cause on 60 days’ notice.  Termination without cause will not affect Customer’s perpetual licenses, and licenses granted on a subscription basis will continue for the duration of the subscription period(s), subject to the terms of this Agreement. iTalent Digital will not provide refunds or credits for any partial subscription period(s) if the Agreement or an Order is terminated without cause.
c.	Termination for cause.  Without limiting other remedies it may have, either party may terminate this Agreement or any Order immediately on notice if (i) the other party materially breaches the Agreement or an Order, and fails to cure the breach within 30 days after receipt of notice of the breach;  or (ii) the other party becomes Insolvent.  Upon such termination, the following will apply:
1)	All licenses granted under this Agreement will terminate immediately except for fully-paid, perpetual licenses.
2)	All amounts due under any unpaid invoices will become due and payable immediately. For metered Offerings billed periodically based on usage, Customer must immediately pay for unpaid usage as of the termination date.
3)	If iTalent Digital is in breach, Customer will receive a credit for any subscription fees, including amounts paid in advance for unused consumption for any usage period after the termination date.
a.	Suspension. iTalent Digital may suspend use of the Offering without terminating this Agreement during any period of material breach. iTalent Digital will give Customer reasonable notice before suspending the Offering. Suspension will only be to the extent reasonably necessary.
b.	Survival. The terms of this Agreement, including the applicable Order, that are likely to require performance, or have application to events that may occur, after the termination or expiration of this Agreement or any Order, will survive termination or expiration, including all indemnity obligations and procedures.
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XI. 	Miscellaneous.
a. Entire Agreement.  This Agreement supersedes all prior and contemporaneous communications, whether written or oral, regarding the subject matter covered in this Agreement. If there is a conflict between any parts of this Agreement, the following order of precedence will apply:
1)	Order;
2)	this Agreement;
3)	Service Level Agreement (SLA);  and
4)	Documentation.
b. Independent contractors.  The parties are independent contractors. Customer and ITalent Digital each may develop products independently without using the other’s Confidential Information.
c. Agreement not exclusive.  Customer is free to enter into agreements to license, use, and promote the services of others.
d. Amendments.  Unless otherwise agreed in a writing signed by both parties, iTalent Digital will not
change the terms of this Agreement, including privacy terms, during the term of this Agreement.
e. Assignment.  Either party may assign this Agreement to an Affiliate, but it must notify the other party in writing of the assignment. Customer consents to the assignment to an Affiliate or third party, without prior notice, of any rights iTalent Digital may have under this Agreement to receive payment and enforce Customer's payment obligations, and all assignees may further assign such rights without further consent.  Furthermore, either party may assign this Agreement without the consent of the other party in connection with a merger, reorganization, acquisition, or other transfer of all or substantially all of such party’s assets.  Any other proposed assignment of this Agreement must be approved by the non-assigning party in writing.  Assignment will not relieve the assigning party of its obligations under the assigned Agreement.  Any attempted assignment without required approval will be void.
f.	Severability.  If any part of this Agreement is held to be unenforceable, the rest of the Agreement will remain in full force and effect.
g. Waiver.  Failure to enforce any provision of this Agreement will not constitute a waiver.  Any waiver must be in writing and signed by the waiving party.
h. No third-party beneficiaries.  This Agreement does not create any third-party beneficiary rights except as expressly provided by its terms.
i.	Notices.  Notices must be in writing and will be treated as delivered on the date received at the address, date shown on the return receipt, email transmission date, or date on the courier confirmation of delivery. Notices to iTalent Digital must be sent to the address stated in the Order. Notices to Customer will be sent to the individual at the address Customer identifies on its account as its contact for notices. iTalent Digital may send notices and other information to Customer by email or other electronic form.
j. Applicable law.
1)	United States and Canada. If you acquired the Offering in the United States or Canada, the laws of
the state or province where you live (or, if a business, where your principal place of business is located) govern the interpretation of these terms, claims for breach of them, and all other claims (including consumer protection, unfair competition, and tort claims), regardless of conflict of law principles.
2)	Outside the United States and Canada.  If you acquired the Offering in any other country, the laws of that country apply.
k.	Order of precedence. The body of this Agreement will take precedence over any conflicting terms in other documents that are part of this Agreement that are not expressly resolved in those documents.
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Terms in an amendment control over the amended document and any prior amendments concerning the same subject matter.
l.	Government procurement rules. By accepting this Agreement, Customer represents and warrants that:
(1)	it has complied and will comply with all applicable government procurement laws and regulations;
(2)	it is authorized to enter into this Agreement; and (3) this Agreement satisfies all applicable procurement requirements.
m. Compliance with laws. iTalent Digital will comply with all laws and regulations applicable to its provision of the Chama. iTalent Digital will obtain and maintain any approvals, licenses, filings, or registrations necessary to its performance, and will comply with all law (including law related to export, corruption, money laundering, or any combination of these). Customer must also comply with laws applicable to their use of Chama.
n. Construction.  Neither party has entered this Agreement in reliance on anything not contained or incorporated in it. This Agreement is in English only.  Any translation of this Agreement into another language is for reference only and without legal effect. If a court of competent jurisdiction finds any term of the Agreement unenforceable, the Agreement will be deemed modified as necessary to make it enforceable, and the rest of the Agreement will be fully enforced to effect the parties’ intent.  Lists of examples following “including”, “e.g.”, “for example”, or the like are interpreted to include “without limitation,” unless qualified by words such as “only” or “solely.” This Agreement will be interpreted according to its plain meaning without presuming that it should favor either party.  Unless stated or context requires otherwise:
1)	all internal references are to this Agreement and its parties;
2)	all monetary amounts are expressed and, if applicable, payable, in U.S. dollars;
3)	URLs are understood to also refer to successors, localizations, and information or resources linked from within websites at those URLs;
4)	a party’s choices under this Agreement are in its sole discretion, subject to any implied duty of good faith;
5)	“written” or “in writing” means a paper document only, except where email is expressly authorized;
6)	“days” means calendar days;
7)	“may” means that the applicable party has a right, but not a concomitant duty,
8)	“partner,” if used in this Agreement or related documents, is used in its common, marketing sense and does not imply a partnership;
9)	“current” or “currently” means “as of the Effective Date” but “then-current” means the present time when the applicable right is exercised or performance rendered or measured;
10)	“notify” means to give notice under subsection (i) above;  and
11)	a writing is “signed” when it has been hand-signed (i.e., with a pen) or signed via an electronic signature service by a duly authorized representative of the signing party.
XII. 	Definitions.
“Affiliate” means any legal entity that controls, is controlled by, or is under common control with a party.
“Anti-Corruption Laws” means all laws against fraud, bribery, corruption, inaccurate books and records, inadequate internal controls, money-laundering, and illegal software, including the U.S.  Foreign Corrupt Practices Act.
“Control” means ownership of more than a 50% interest of voting securities in an entity or the power to direct the management and policies of an entity.
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“Confidential Information” is defined in the “Confidentiality” section.
“Customer Data” means all data, including all text, sound, software, image or video files that are provided to ITalent Digital or its Affiliates by, or on behalf of, Customer and its Affiliates through use of the Offering. Customer Data does not include Support Data. “Support Data” means all data, including all text, sound, video, image files, or software, that are provided to ITalent Digital by or on behalf of Customer (or that Customer authorizes ITalent Digital to obtain from an Offering) through an engagement with ITalent Digital to obtain technical support for the Offering covered under this Agreement.
“Data Protection Law” means any law applicable to ITalent Digital or Customer, relating to data security, data protection and/or privacy, including Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to processing of personal data and the free movement of that data (“GDPR”), and any implementing, derivative or related legislation, rule, regulation, and regulatory guidance, as amended, extended, repealed and replaced, or re-enacted.
“Documentation” means all user manuals, handbooks, training material, requirements, and other written or electronic materials ITalent Digital makes available for, or that result from use of, the Offering.
“End User” means any person Customer permits to use an Offering or access Customer Data.
“Feedback” means ideas, suggestions, comments, input, or know-how, in any form, that one party provides to the other in relation to recipient’s Confidential Information, products, or services. Feedback does not include sales forecasts, future release schedules, marketing plans, financial results, and high-level plans (e.g., feature lists) for future products.
“Insolvent” means admitting in writing the inability to pay debts as they mature;  making a general assignment for the benefit of creditors;  suffering or permitting the appointment of a trustee or receiver for all or any of its (i.e., the non-terminating party’s) assets, unless such appointment is vacated or dismissed within 60 days from the date of appointment;  filing (or having filed) any petition as a debtor under any provision of law relating to insolvency, unless such petition and all related proceedings are dismissed within 60 days of such filing;  being adjudicated insolvent or bankrupt;  having wound up or liquidated; or ceasing to carry on business.
“Order” means an ordering document used to transact the Offering via the Marketplace. “ Personal Data” means any information relating to an identified or identifiable natural person. “Representatives” means a party’s employees, Affiliates, contractors, advisors and consultants.
“Standard Contractual Clauses” means the standard data protection clauses for the transfer of personal data to processors established in third countries which do not ensure an adequate level of data protection, as described in Article 46 of the GDPR.
“Subcontractor” means any third party: (1) to whom ITalent Digital delegates its obligations under this Agreement, including a ITalent Digital Affiliate not contracting directly with Customer through an Order; or (2) who, in performing under a contract between it and ITalent Digital or a ITalent Digital Affiliate, stores, collects, transfers or otherwise processes Personal Data (obtained or accessed in connection with performing under this Agreement) or other Customer Confidential Information.
“use” means to copy, download, install, run, access, display, use or otherwise interact with.
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