G2i – Employer Terms of Service

Version: 1.0

Last Revised: October 31, 2018


Welcome

Welcome to G2i Inc. (“we”, “us” or “our”). We offer an online recruiting platform (our “Platform”) through our website, https://www.g2i.co (our “Site”), that vets and matches web and mobile developers (each, a “Candidate”) with companies that are hiring based on their talent and skills and assists Employers in the management of projects.

Please read these Employer Terms of Service (these “Terms”) carefully and in their entirety. Along with the Site Terms of Use applicable to your use of our Site (“Site Terms of Use”), they set forth the legally binding terms and conditions that govern your use of our Platform as an Employer and your hiring of Candidates. You ("you" or “Employer”) acknowledge that by clicking the “I Agree” button below and using or accessing our Platform as an Employer, you are accepting and consenting to be bound by these Terms. If you do not agree with all of the provisions of these Terms, you may not access or use our Platform as an Employer or hire Candidates you meet through our Platform. If you agree to these Terms on behalf of another party, you represent and warrant that you have valid authority to bind that party to these Terms, and your agreement to these Terms will be treated as the agreement of that other party. In that event, “you” and “your” refer herein to that other party.

The list below briefly summarizes the key provisions of these Terms, but you should read all of the Terms to understand fully all of your rights and obligations:

  • You may create an account and access all of the features of our Platform if you agree to these Terms.
  • Your use of our Platform alone is free of charge as long as you comply with these Terms, including payment obligations for hiring Candidates as employees and for work that Candidates do for you through our Platform.
  • You can only use our Platform for your internal hiring purposes, and you cannot use our Platform to offer services that compete with ours.
  • We cannot require Candidates to accept your offers or provide Services (as defined below) to you.
  • We make no warranties to you about our Platform.
  • Any disputes you have with us that cannot be resolved informally will be resolved through binding arbitration, which means that you waive your right to a jury trial.

1. Your Use of our Platform

(a) Your Account

You must create an Employer account with us to access and use our Platform as an Employer. In order to create your account, you must provide certain information about yourself, as prompted by our account registration page (“Account Information”), including without limitation your payment method and the information we need to process your payments. You alone are responsible for maintaining the confidentiality of your password and for all activities that occur under your account, including without limitation submissions of Statements of Work.

If you are an individual, you may only create an Employer account with us and use our Platform if you are at least eighteen (18) years of age and are otherwise capable of forming legally binding contracts under applicable law.

We are under no obligation to create an account for you, and we may delete or deactivate your account in our sole and complete discretion.

(b) Your Responsibilities

As a condition to using our Platform as an Employer, you hereby represent, warrant and covenant that:

  • you will promptly notify us if a Candidate does not commence working for you on a Project that is covered by a Statement of Work or stops working for you voluntarily or is terminated by you before the Project is completed, together with the date on which the Candidate stopped performing Services for you;
  • you will use our Platform and any information and content provided by our Platform in accordance with all applicable laws;
  • you will not disclose the names and identities of any Candidate you encounter on our Platform outside of your recruiting or hiring department; and
  • you will not attempt to circumvent our Platform by independently attempting to communicate and hire Candidates through alternative means after discovering the Candidates through our Platform.

(c) Restrictions on Your Use of Our Platform

You shall not, and shall not permit others to:

  • use our Platform for any unlawful purpose or for any commercial activities, including without limitation collecting data or market research, raising money, advertising, marketing, promoting and engaging in any pyramid scheme;
  • provide untruthful or inaccurate Account Information, information about a Project or any other information that Candidates may rely upon;
  • attempt to circumvent our Platform by initiating contact with Candidates or communicating with Candidates that contacted or communicated with you outside of our Platform;
  • impersonate any person or entity or falsely state or otherwise misrepresent your affiliation with a person or entity;
  • copy or reproduce our Platform, except as expressly permitted by these Terms;
  • modify, translate, adapt or otherwise create derivative works or improvements of our Platform;
  • reverse engineer, disassemble, decompile, decode or otherwise attempt to derive or gain access to the source code of our Platform, our list of Candidates and Projects or any part thereof;
  • remove, delete, alter or obscure any trademarks or any copyright, trademark, patent or other intellectual property or proprietary rights notices from or contained on our Platform, including any copy thereof;
  • rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make available our Platform or any features or functionality thereof, to any third party;
  • remove, disable, circumvent or otherwise create or implement any workaround to any copy protection, rights management or security features in or protecting our Platform;
  • upload, transmit or distribute to or through our Platform any computer viruses or any software intended to damage or alter a computer system or data; or
  • use software or automated agents or scripts to generate automated searches, requests or queries to, or strip, scrape, or mine data from, our Platform.

In addition, you agree not to use our Platform to collect, upload, transmit, display or distribute any content or material that we determine, in our sole discretion:

  • violates any third party’s right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity or any other intellectual property or proprietary right;
  • is unlawful, harassing, abusive, tortious, threatening, harmful, invasive of another’s privacy, profane, vulgar, defamatory, false, intentionally misleading, trade libelous, pornographic, obscene, patently offensive, promotes racism, bigotry, hatred or physical harm of any kind against any group or individual or is otherwise objectionable;
  • is harmful to minors in any way; or
  • is in violation of any law, regulation, obligation or other similar restrictions imposed by any third party, including any confidentiality obligations from former employers.

We reserve the right to delete or deactivate your account and deny you access to all or part of our Platform if we believe that you have violated or will violate these Terms.

(d) Third-Party Content on our Platform

Our Platform may contain links to third-party websites and services (“Third-Party Links”). We are not responsible for any Third-Party Links, and we do not approve, monitor, endorse, warrant or make any representations with respect to Third-Party Links. You use all Third-Party Links at your own risk and should apply a suitable level of caution, diligence and discretion in doing so. When you click on any of the Third-Party Links, the applicable third party’s terms and policies apply, including the third party’s privacy and information gathering practices.

(e) Your Privacy

All of the information we collect through or in connection with your use of our Platform is subject to our Privacy Policy, which is incorporated by reference into these Terms. Please read our Privacy Policy carefully before using our Platform.

We may record telephone calls between you and us for quality assurance and training purposes. You agree and consent to such use unless you expressly state otherwise during the telephone call.

We reserve the right to monitor the content of messages that you send through our Platform.

2. Direct Hires

If you or one of your affiliates identify a Candidate through our Platform that you wish to hire as an employee, you may do so by extending a job offer (a “Job Offer”) to that Candidate. If a Candidate accepts a Job Offer from you or your affiliate, you must inform us via email.

3. Hiring On A Project Basis

(a) Engaging Candidates for Projects

If you or one of your affiliates needs to hire someone to work on a project (“Project”) or you have identified a Candidate through our Platform that you wish to hire for a Project, either on a contract basis or a contract-to-hire basis, you may initiate discussions with Candidates via email.

Your interactions with Candidates may result in you wishing to extend an offer for a Project (a “Project Offer”) to a specific Candidate. You must do this via email to a hiring team member at G2i.

Please note that Candidates may, in their sole discretion, accept or reject a Project Offer, and any rejection of a Project Offer does not terminate an underlying Statement of Work if it has been submitted by you and accepted by us. Additionally, we may accept or reject Statements of Work in our sole discretion.

We and the applicable Candidate shall determine the manner and means of performing the Services once a Statement of Work has been accepted, provided that Candidates shall perform Services in accordance with the schedule set forth in the applicable Statement of Work. Notwithstanding the foregoing, you acknowledge and agree that the schedule set forth in any Statement of Work is an estimate only and is subject to change as the Project proceeds.

(b) Change Orders; Conflicts

In the event either you or Candidate requires a change to a Statement of Work, the requesting party shall provide a written proposal outlining the proposed change (“Change Order”). In the event a Change Order is agreed to in writing by both you and us, you acknowledge that the Change Order may alter the Services, the delivery and the fee schedule as set forth in the schedule the Statement of Work describing the Project. No Change Order will be binding upon either you or us unless said Change Order is in writing (including an email or message sent through our Platform) and is signed or approved by you and us. Any Change Order shall be governed by these Terms.

(c) Assistance

You shall provide us and Candidates performing Services for you with such resources, information and assistance as is reasonably requested in connection with the performance of the Services. Without limiting the generality of the foregoing, in the event a project requires us or a Candidate to perform Services on your premises, you shall provide safe and adequate space, power, network connections, materials, secretarial assistance, CPU time, access to its hardware, software and other equipment, assistance from qualified personnel familiar with your hardware, software and data processing requirements and other resources as reasonably requested by us or the applicable Candidate, whether requested during regular business hours or otherwise. You acknowledge and agree that our and Candidates’ ability to successfully perform the Services in a timely manner is contingent upon your compliance with this Section 3(c). We shall have no liability for deficiencies in Services provided by Candidates or us resulting from your acts or omissions or performance under a Statement of Work in accordance with your instructions.

(d) Your Materials

You acknowledge that in order to perform the Services, we and Candidates may require access to certain software or other information or material of yours or your suppliers (“Your Materials”). Accordingly, except to the extent prohibited under any third party license from your suppliers, you hereby grant to us and Candidates performing Services a non-exclusive, non-transferable license to use the Your Materials as necessary to perform the Services.

4. Fees and Payment

(a) Hiring Fee

When you hire a Candidate as an employee, you shall pay us a “Hiring Fee”. The Hiring Fee is set forth in the Statement of Work.

(b) Project Fees

When you hire a Candidate on a contract basis or contract-to-hire basis, you shall pay us all fees and compensation due to the applicable Candidate (“Compensation”) as well as a “Project Fee”. You hereby agree to pay us all fees due pursuant to Statements of Work entered into hereunder, as set forth in this Section 2 and on the terms of the applicable Statement of Work. Unless expressly specified otherwise in a Statement of Work, all work done by Candidates on a contract basis or contract-to-hire basis shall be performed at our then-current time and materials rates, as provided on our Employer Dashboard, and nothing in these Terms shall be deemed to imply an agreement for the performance of Services on a Project for a fixed price. All Compensation shall be considered earned as Services are performed. All fees due hereunder are non-refundable and are not contingent on any additional services or products to be provided unless expressly provided otherwise in the applicable Statement of Work.

You shall not owe us any fee if you hire a Candidate for a Project that you can prove with documentary evidence was already engaged in active discussions with you about that Project before you viewed such Candidate through our Platform. You agree to reasonably cooperate with our requests for documentation that proves the Candidate was known to you. However, this provision does not apply, and you shall owe fees as provided herein, if you submit a Project Offer to such Candidate through our Platform. We reserve the right, in our sole discretion, to determine whether you do or do not owe us fees under this provision.

(c) Deposit

While pricing and terms may vary by Statement of Work, we may require you to pay a nonrefundable deposit (“Deposit”) when you hire Candidates on a contract or contract-to-hire basis of no less than the Compensation due after forty (40) hours of work by a Candidate.

(d) Penalty Fee

If you do not disclose to us that you hired a Candidate that you met through our Platform, either as an employee or on a contract or contract-to-hire basis, or you attempt to circumvent your obligations under these Terms, you shall owe us the aggregate of: (1) all of the fees that would be due under a Statement of Work covering the hiring of the Candidate as an employee and/or the work performed by the Candidate for you, as determined by us in our sole discretion (the “Presumed Fees”); (2) a penalty fee (“Penalty Fee”) equal to 20% of the total Presumed Fees; and (3) a late fee equal to the total interest that has accrued at the rate of 1.5% per month (or if not legally permissible, then at the then maximum legal interest rate) on the unpaid Presumed Fees and Penalty Fee after the date upon which the initial Fees would have been due to us if you had properly submitted a Statement of Work until the date payment in full is actually received by us.

(e) Payments

Except as otherwise set forth herein or in a Statement of Work, we will invoice you on a periodic basis for amounts due hereunder through our Platform, and you shall pay all amounts invoiced as set forth in the applicable Statement of Work through your Employer Dashboard. All payments must be made in U.S. dollars. Unless expressly provided otherwise in the applicable Statement of Work, outstanding balances shall accrue interest at a rate equal to the lesser of one and one half percent (1.5%) per month and the maximum rate permitted by applicable law, from thirty (30) days after due date until paid, plus our reasonable costs of collection and attorney’s fees related to collection.

(f) Taxes

All fees due hereunder are exclusive of, and you shall pay, all sales, use and other taxes, export and import fees, customs duties and similar charges applicable to the transactions contemplated by these Terms, except for taxes based upon our net income.

(g) Refunds

Subject to the terms of the applicable Statement of Work, if you notify us within ten (10) days after receiving code or other Deliverables from a Candidate pursuant to a Statement of Work, we may grant you a refund:

  • of your entire Deposit if you are unsatisfied with the Candidate and you receive no code that is written and usable;
  • of 25% of your Deposit if you are unsatisfied with the Candidate and you receive some code that is written and usable; or
  • of 50% of your Deposit if you are unsatisfied with the Candidate and you receive substantially all of the code covered by the Project Offer in written and usable form.

We do not grant refunds of Hiring Fees, but we will provide you with an introduction to a new Candidate if the Candidate you hire voluntarily terminates his or her employment or you terminate his or her employment within ninety (90) days after his or her start date.

You acknowledge that the refund described above is your sole and exclusive remedy if you are unsatisfied with a Candidate or Services.

5. Licenses and Intellectual Property Rights

(a) Definitions

“Deliverables” means the items provided by us to you under a Statement of Work, including items specifically designated or characterized as deliverables in a Statement of Work.

“Intellectual Property” means all algorithms, application programming interfaces (APIs), apparatus concepts, Confidential Information, data, databases and data collections, designs, diagrams, documentation, drawings, flow charts, formulae, ideas and inventions (whether or not patentable or reduced to practice), know-how, materials, marketing and development plans, marks (including brand names, product names, logos, and slogans), methods, models, net lists, network configurations and architectures, procedures, processes, protocols, schematics, software code (in any form including source code and executable or object code), specifications, subroutines, techniques, test vectors, tools, uniform resource identifiers including uniform resource locaters (URLs), user interfaces, web sites, works of authorship, and other forms of technology.

“Intellectual Property Rights” means all past, present, and future rights of the following types, which may exist or be created under the laws of any jurisdiction in the world: (a) rights associated with works of authorship, including exclusive exploitation rights, copyrights, moral rights, and mask work rights; (b) trademark and trade name rights and similar rights; (c) trade secret rights; (d) patent and industrial property rights; (e) other proprietary rights in Intellectual Property of every kind and nature; and (f) rights in or relating to registrations, renewals, extensions, combinations, divisions, and reissues of, and applications for, any of the rights referred to in clauses (a) through (e) of this sentence.

“Work Product” means (a) Deliverables and (b) all Intellectual Property, in any stage of development, which we or Candidates conceive, create, develop or reduce to practice in connection with performing the Services and all tangible embodiments (including models, presentations, prototypes, reports, samples, and summaries) of each item of such Intellectual Property.

(b) Our Content

As between you and us, we own all right, title and interest in all Intellectual Property Rights found on, provided by or embodied in our Platform, and all Intellectual Property developed, acquired or otherwise obtained by us prior to, or independently of, these Terms, and any derivative works thereof (“Our Content”). Our Content is protected by copyright, trademark, and other intellectual property and related laws of both the United States and foreign countries. You may not distribute, modify, transmit, reuse, download, repost, copy or use Our Content, whether in whole or in part, for commercial purposes or for personal gain, without our prior, express written consent. We reserve all rights to Our Content not expressly granted in these Terms.

(c) Your Content and Work Product

As between you and us, you are the exclusive owner of all Intellectual Property Rights in all Your Materials and Work Product that is expressly identified as yours in a Statement of Work (collectively, “Your Content”); provided, however, that you give us (and those we work with, including third-party service providers) a worldwide, perpetual, irrevocable, transferrable, sublicensable license to use, host, store, reproduce, modify and create derivative works of Your Content. Our use of Your Content is subject to our Privacy Policy. When you submit Your Materials through our Platform or contract for the development of Work Product, you represent and warrant to us that Your Content is your original creation or that you otherwise have the right to provide Your Content or have Your Content developed by us and our Contractors, that you have the rights necessary to grant the foregoing license to Your Content and that our use of Your Content as permitted by the foregoing license does not and will not infringe or misappropriate the intellectual property or moral rights of any person.

We are not responsible for the accuracy, appropriateness or legality of Your Content. You acknowledge that we have no obligation to monitor any of Your Content. You bear sole responsibility for adequate security, protection and backup of Your Content. We will have no liability to you for any unauthorized access or use of any of Your Content or any corruption, deletion, destruction or loss of any of Your Content.

(d) Your Licenses

License to Use our Platform: Subject to, and conditioned upon, your compliance with the conditions and restrictions set forth in these Terms and our other guidelines and policies posted on our Site and those of our licensors and third party providers, we hereby grant you a limited, personal, revocable, non-exclusive, non-transferable, non-sublicensable license to use Our Content in connection with the use of our Platform, solely for your personal, non-commercial use. This license does not include: (1) any resale or commercial use of Our Content; (2) the distribution, public performance or public display of Our Content; (3) modifying or otherwise making any derivative works of Our Content or our Platform, or any portion thereof; or (d) any use of Our Content or our Platform except for their intended purposes. Any use of Our Content or our Platform that is not expressly authorized in these Terms or by us is strictly prohibited.

License to Use Work Product and Deliverables: Subject to your payment of all applicable fees hereunder, including without limitation fees related to each Statement of Work or Deliverable and direct hires of employees, we hereby grant you a non-exclusive, perpetual, irrevocable, worldwide, fully-paid right and license, under all of our Intellectual Property Rights, to any of Our Content that is incorporated into or necessary for you to fully utilize and capitalize Work Product and any Deliverable to be provided or actually provided by us to you (collectively, “Licensed IP”): (a) to reproduce, create derivative works of, distribute, transfer, publicly perform, publicly display, digitally transmit, and otherwise use the Licensed IP in any medium or format, whether now known or hereafter discovered, and (b) to reproduce, distribute and sublicense the Licensed IP to your customers solely as integrated with your products and services pursuant to an end user license agreement or similar agreement that contains terms at least as restrictive as those contained in these Terms with respect to the Licensed IP.

Your failure to comply with these Terms may have legal consequences for you, including without limitation liability under copyright and trademark laws and applicable communications regulations and statutes.

(e) Third Party Technology

The parties acknowledge that certain Intellectual Property licensed or obtained by us or Candidates from third parties (collectively, “Third Party Technology”) may be used by Candidates in the completion of Statements of Work and may be included in Deliverables provided to you, including without limitation software code licensed under the GNU GPL or LPGL license or similar “open source” licenses.

(f) Portfolio Display

Unless expressly provided otherwise in the applicable Statement of Work, we retain the limited right to use, display and distribute portions of Work Product, including without limitation code snippets and screenshots, as part of our portfolio for commercial, promotional purposes regardless of whether Work Product is expressly agreed to by the parties as being Your Content.

6. Term and Termination

(a) Term

These Terms shall go into force and be binding on you as of the date that you create your account and can access our Platform and shall be binding on you until terminated as set forth herein (the “Term”). The term of each Statement of Work shall be set forth in the Statement of Work.

(b) Termination

Unless specified in the applicable Statement of Work, you may terminate these Terms at any time by deleting your account, and you may terminate any uncompleted Statement of Work at any time upon at least thirty (30) days’ prior written notice. We may terminate these Terms and your access to our Platform at any time and in our sole discretion, and we may terminate any uncompleted Statement of Work then in effect, upon at least thirty (30) days’ prior written notice. Either party may terminate these Terms and all uncompleted Statements of Work by written notice in the event the other party is in material breach of any obligation under these Terms or any Statement of Work, which default is incapable of cure or which, being capable of cure, has not been cured within thirty (30) days after receipt of notice of such default. Notwithstanding the foregoing, we may also terminate these Terms and all uncompleted Statements of Work immediately upon written notice in the event (a) you fail to pay any amounts payable hereunder within ten (10) days after receiving written notice from us that payment is due, or (b) you breach any provision in Section 4 or 8. The termination or expiration of a single Statement of Work shall not cause the automatic termination of any other Statement of Work.

(c) Effect of Termination

Upon the expiration or termination of these Terms, (a) each party shall return the other’s Confidential Information (as defined below) in its possession or control, and (b) all amounts owed to us under these Terms which accrued before such termination or expiration, for Services and Deliverables that have been accepted by you in accordance with the applicable Statement of Work, will be immediately due and payable. Sections 1(c) (Restrictions on Your Use of Our Platform), 4 (Fees and Payments), 5 (Licenses and Intellectual Property), 6.3 (Effect of Termination), 8 (Confidentiality), 10(b) (Your Indemnification Obligations), 11(b) (Disclaimer of Warranties), 12 (Limitation of Liability), 13 (Non-Solicitation), 14 (Dispute Resolution), 15 (Notice) and 16 (General Terms) will survive the expiration or termination of these Terms for any reason. Upon the termination of these Terms, we will provide reasonable assistance to you for the transition of Services and Deliverables in accordance with your reasonable requirements.

Termination will not limit any of our rights or remedies at law or in equity. We shall not be liable to you or any third party for any claims or damages arising out of any termination or suspension or any other actions taken by us in connection with such termination or suspension of your account or these Terms.

7. Updates and Support

We may, from time to time and in our sole discretion, develop and provide updates to our Platform, which may include upgrades, bug fixes, patches and other error corrections and/or new features (collectively, including related documentation, “Updates”). Updates may also modify or delete in their entirety certain features and functionality presently on our Platform. You agree that all Updates will be deemed part of our Platform and be subject to these Terms.

Notwithstanding the above paragraph, you acknowledge and agree that we have no obligation to: (1) provide you with technical support in connection with your use of our Platform; (2) provide any Updates; or (3) continue to provide or enable any features or functionality of our Platform.

8. Confidentiality

“Confidential Information” means any non-publicly available information that you or we (the “Discloser”) disclose, whether orally or in written or digital media, to the other party (the “Recipient”) that is identified as “confidential” or with a similar legend at the time of disclosure or that the Recipient knows or should have known is the confidential or proprietary information of the Discloser, including without limitation all information related to a party’s business, financial affairs or operations, including but not limited to information related to business plans, technology, source code, product or service development plans, pricing, techniques and methods. For the avoidance of doubt, our Confidential Information includes our list of Candidates, the information about Candidates we make available to you, any content and materials we use to match you with Candidates and the specific pricing and terms of Statements of Work you enter into with us. Information is never Confidential Information if it can be shown that it (1) is already known by the Recipient without obligation of confidentiality; (2) is independently developed by the Recipient without access to or use of the Discloser’s Confidential Information; (3) is publicly known without breach of these Terms; or (4) is lawfully received from a third party without obligation of confidentiality.

For a period of two (2) years after the termination of these Terms and all Statements of Work hereunder: (a) the Recipient will not use or disclose any of the Discloser’s Confidential Information except as needed to exercise the rights provided to the Recipient in these Terms or to perform the Recipient’s obligations under these Terms (collectively, the “Permitted Purposes”); (b) the Recipient will only disclose the Discloser’s Confidential Information to its employees, agents and contractors who have a direct “need to know” for a Permitted Purpose and who are subject to obligations of confidentiality which are no less restrictive than those contained herein; and (c) the Recipient will protect the Discloser’s Confidential Information using the same degree of care that it uses with respect to its own Confidential Information of similar nature, but in no event with safeguards less than a reasonably prudent business would exercise under similar circumstances.

The Recipient will take prompt and appropriate action to prevent unauthorized use or disclosure of the Discloser’s Confidential Information. If any Confidential Information must be disclosed to any third party by reason of legal, accounting or regulatory requirements, the Recipient will promptly notify the Discloser of the order or request and permit the Discloser (at its own expense) to seek an appropriate protective order.

Each party acknowledges that a breach or threatened breach of this Section 8 would cause irreparable harm to the non-breaching party, the extent of which would be difficult to ascertain. Accordingly, each party agrees that, in addition to any other remedies to which a party may be legally entitled, the non-breaching party shall have the right to seek immediate injunctive or other equitable relief in the event of a breach of this Section 8 by the other party or any of its employees or agents.

9. Feedback

We appreciate hearing from you and welcome your comments regarding our Platform, including about the functionality of our Platform, any malfunctions, downtime or complaints (collectively, “Feedback”). You can submit Feedback to us by emailing us at hello@g2i.co. All of your Feedback shall be deemed Your Content.

10. Indemnification

(a) Our Indemnification Obligations

We will defend and indemnify any claim, suit, action, or proceeding (“Claim”) against you brought by a third party to the extent that such Claim is based upon an allegation that your use of our Platform or Licensed IP, excluding Your Content, Your Materials and Third Party Technology (collectively, “Provided IP”), infringes upon or misappropriates a third party’s Intellectual Property Rights, and we shall indemnify and hold you harmless from and against any and all liabilities, losses, damages, costs, and other expenses (including reasonable attorneys’) arising from or relating to such Claim. If any Provided IP becomes, or in our opinion is likely to become, the subject of an infringement claim, we shall, at our option, either (a) procure for you the right to continue using the Provided IP as contemplated by these Terms, (b) replace or modify the Provided IP in whole or in part, to seek to make the Provided IP (as so modified or replaced) non-infringing while providing materially equivalent features and functionality , or (c) accept return of the Provided IP, terminate your rights to the Provided IP and give you a refund of the fees paid by Employer for the Provided IP upon such return, computed according to a thirty-six (36) month straight-line amortization schedule beginning on the date the Provided IP was delivered to you.

Notwithstanding the foregoing, we will have no obligation under this Section or otherwise with respect to any infringement Claim arising out of or relating to:

  • any failure to timely implement any modifications, upgrades, replacements or enhancements made available to you;
  • any use of the Provided IP not in accordance with these Terms or for purposes not permitted by us;
  • any use of the Provided IP in combination with other products, equipment, software, system, materials or data not supplied or authorized in writing by us;
  • any modification of the Provided IP by any person other than us; or any act, omission or other matter for which you are obligated to indemnify us under these Terms.

THIS SECTION 10 SETS FORTH YOUR SOLE REMEDIES AND OUR SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED OR ALLEGED CLAIMS THAT THESE TERMS OR ANY SUBJECT MATTER HEREOF (INCLUDING THE SOFTWARE) INFRINGES, MISAPPROPRIATES OR OTHERWISE VIOLATES ANY THIRD PARTY INTELLECTUAL PROPERTY RIGHT.

(b) Your Indemnification Obligations

In addition to any indemnification obligations set forth in the Site Terms of Use, you agree to indemnify and hold us and our officers, employees and agents harmless and free from any costs, attorneys’ fees, claim or demand made by any third party due to or arising out of: (1) your use of our Platform; (2) your violation of these Terms or any Statement of Work issued hereunder; (3) your violation of applicable laws or regulations; (4) Your Content and Your Materials, including claims that Your Content or Your Materials infringe another party’s intellectual property rights; or (5) our compliance or a Candidate’s compliance with any specifications or directions provided by or on behalf of you to the extent prepared without any contribution by us or a Candidate (collectively, “Claims”). We reserve the right, at your expense, to assume the exclusive defense and control of any Claims, and you agree to cooperate with our defense of such Claims. You agree not to settle any Claims without our prior written consent. We will use reasonable efforts to notify you of any such Claim, action or proceeding upon becoming aware of it, but our failure to provide you with prompt notice shall not excuse your obligation to indemnify under these terms.

11. Warranties

(a) Limited Warranty

We warrant to you that: (a) the Services will be performed in a professional manner consistent with industry standards and (b) the Deliverables will materially conform to the specifications, requirements, and other terms in the applicable Statement of Work and these Terms. We shall, as our sole obligation and your sole and exclusive remedy for any breach of this warranty, connect you with a new Candidate who will re-perform the work which gave rise to the breach or, at our option, refund the Project Fees paid by you for the applicable Project; provided that you notify us in writing of the breach within ten (10) days following performance of the defective Services or Deliverables, specifying the breach in reasonable detail.

(b) Disclaimer of Warranties

EXCEPT FOR THE LIMITED WARRANTIES PROVIDED ABOVE, OUR PLATFORM AND ANY SERVICES PROVIDED BY US OUR CANDIDATES ARE PROVIDED TO YOU “AS IS” AND WITH ALL FAULTS AND DEFECTS WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, WE EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO OUR SITE AND OUR PLATFORM, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OR TRADE PRACTICE. WITHOUT LIMITATION TO THE FOREGOING, WE PROVIDE NO WARRANTY OR UNDERTAKING, AND MAKE NO REPRESENTATION OF ANY KIND THAT OUR SITE AND OUR PLATFORM WILL MEET YOUR REQUIREMENTS OR ACHIEVE ANY INTENDED RESULTS, THAT OUR SITE OR OUR PLATFORM WILL BE COMPATIBLE OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS OR SERVICES, OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS OR BE ERROR FREE OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED. WE DO NOT PERFORM OR HAVE PERFORMED FORMAL BACKGROUND CHECKS ON CANDIDATES AS PART OF THE ACCOUNT REGISTRATION PROCESS; YOU ARE RESPONSIBLE FOR PERFORMING ITS STANDARD BACKGROUND CHECKS REGARDING CANDIDATES AS PART OF THE ENGAGEMENT OR HIRING PROCESS.

12. Limitation of Liability

UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (WHETHER IN CONTRACT, TORT, OR OTHERWISE) SHALL WE BE LIABLE TO YOU OR ANY THIRD PARTY FOR THE FOLLOWING IN CONNECTION WITH YOUR USE OF OUR PLATFORM: (1) ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE DAMAGES, OR ANY LOSS OF DATA, OPPORTUNITIES, REPUTATION, PROFITS OR REVENUES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; (2) ANY AMOUNT IN EXCESS OF ONE HUNDRED U.S. DOLLARS ($100); OR (3) ANY MATTER BEYOND OUR REASONABLE CONTROL. THE PROVISIONS OF THIS SECTION ALLOCATE THE RISKS UNDER THESE TERMS BETWEEN YOU AND US, AND WE BOTH HAVE RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO ENTER INTO THESE TERMS. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, WHICH MEANS THAT SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. IN THESE JURISDICTIONS, OUR LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.

13. Non-Solicitation

You agree that neither you nor any of your affiliates shall directly or indirectly solicit for employment or otherwise induce, influence or encourage to terminate employment with our employees (as opposed to Candidates) or employ or engage as an independent contractor any of our employees while these Terms are in effect and for a period of twelve (12) months after the expiration or earlier termination of these Term without obtaining our prior written consent; provided that you may hire our employees who, without other solicitation, responds to advertisements or solicitations aimed at the general public.

14. Dispute Resolution

For any dispute you have with us, you agree to first contact us (by the means described in the “Notice” section of these Terms) and attempt to resolve the dispute informally. If we have not been able to resolve the dispute with you informally within thirty (30) days of both parties having notice of the dispute, we each agree to resolve any claim, dispute or controversy arising out of or in connection with or relating to these Terms by binding arbitration conducted under the JAMS Streamlined Arbitration Rules and Procedures that are in effect at the time the arbitration is initiated (the “JAMS Rules”) and under the rules set forth in these Terms. If there is a conflict between the JAMS Rules and the rules set forth in these Terms, the rules set forth in these Terms will govern. Unless the parties agree otherwise, the arbitration will be conducted in Dade County, Florida. Each party will be responsible for paying any filing, administrative and arbitrator fees in accordance with the JAMS Rules. The award rendered by the arbitrator shall include costs of arbitration, reasonable attorneys’ fees and reasonable costs for expert and other witnesses. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Nothing in this Section shall prevent either party from seeking injunctive or other equitable relief from the courts for matters related to data security, intellectual property or unauthorized access to the Services. ARBITRATION MEANS THAT YOU WAIVE YOUR RIGHT TO A JURY TRIAL; YOU AGREE THAT, BY ENTERING INTO THESE TERMS, YOU ARE WAIVING THE RIGHT TO A TRIAL BY JURY.

15. Notice

(a) Providing Notice to You

You agree that we may provide notices to you, including notice of any changes to these Terms, by means of: (1) a notice presented to you when you log into your account; (2) an email sent to the most recent email address that you have provided to us; or (3) any other means that we deem, in our sole discretion, sufficient to provide you with notice, including, without limitation, telephone or mail.

(b) Providing Notice to Us

You agree that the only way to provide us legal notice is by email message sent to the appropriate address provided in the “Feedback” section of these Terms.

16. General Terms

(a) Governing Law

These Terms and your use of our Platform shall be governed by the laws of the State of Florida, without regard to any conflict of law provisions.

(b) Changes to these Terms

We reserve the right to change these Terms at any time. We will provide you notice if we do, and we agree that changes cannot be retroactive. If you don’t agree to these changes, you cannot use our Platform.

(c) Relationship of You and Us

The relationship of you and us established under these Terms is that of independent contractors, and neither party is a partner, employee, agent or joint venture partner of or with the other, and neither party has the right or authority to assume or create any obligation on behalf of the other party.

(d) Publicity

You hereby grant to us the limited right to use your name and marks in marketing and publicity materials listing you as our customer.

(e) Severability

If any provision of these Terms is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that these Terms will otherwise remain in full force and effect and be enforceable.

(e) Entire Agreement

These Terms, together with our Site Terms of Use, our Privacy Policy and your Services Agreement are the complete and exclusive statement of the terms and conditions governing your use of our Platform as an Employer, and they supersede and cancel all previous written and oral agreements, communications and other understandings relating to the subject matter of these Terms.

(g) Waivers

Our failure to exercise or enforce any right or provision of these Terms shall not constitute a waiver of such right or provision.

(h) Assignments and Transfers

We may assign or transfer these Terms, in whole or in part, without restriction. You may not assign your rights or obligations under these Terms. If you are a living person, you agree that your account is non-transferable and your rights to the content within your account terminate upon your death. You shall require that any assignee, successor, licensee or sublicensee of your contractual obligations by virtue of a sale, exit or change of control transaction pay any Fees for any Candidates you discover through your use of our Platform.

(i) Electronic Signature; Counterparts

You acknowledge that these Terms may be executed electronically and in counterparts, each of which will be considered an original, but all of which together will constitute the same instrument. Once signed, any reproduction of these Terms, or any attachment or exhibit hereto, made by reliable means (for example, photocopy or facsimile) is considered an original and all Services ordered under these Terms will be subject to it.