THIS ONLINE SERVICE AGREEMENT ("AGREEMENT") IS A BINDING LEGAL CONTRACT BETWEEN YOU ("YOU" OR "USER") AND TALENTEARTH, INC. ("WE", "US" OR "TALENTEARTH"). BY DOWNLOADING, INSTALLING, ACCESSING OR USING THE SOFTWARE, SERVICES, AND ANY OTHER MATERIALS MADE AVAILABLE ON THIS SITE (COLLECTIVELY, THE "SERVICES"), YOU (A) AGREE TO BE BOUND BY THIS AGREEMENT; (B) ACKNOWLEDGE AND AGREE YOU HAVE INDEPENDENTLY EVALUATED THE DESIRABILITY OF USING THE SERVICES AND ARE NOT RELYING ON ANY REPRESENTATION, GUARANTEE, OR STATEMENT OTHER THAN AS EXPRESSLY PROVIDED IN THIS AGREEMENT; AND (C) REPRESENT YOU ARE LAWFULLY ABLE TO ENTER INTO CONTRACTS AND ARE OF THE LEGAL AGE OF MAJORITY IN THE JURISDICTION IN WHICH YOU RESIDE (AT LEAST EIGHTEEN YEARS OF AGE IN MANY COUNTRIES). IN ADDITION, IF THIS AGREEMENT IS BEING AGREED TO BY A COMPANY OR OTHER LEGAL ENTITY, THEN THE PERSON AGREEING TO THIS AGREEMENT ON BEHALF OF THAT COMPANY OR ENTITY REPRESENTS AND WARRANTS THAT HE OR SHE IS AUTHORIZED AND LAWFULLY ABLE TO BIND THAT COMPANY OR ENTITY TO THIS AGREEMENT. YOU SHOULD PRINT AND RETAIN A COPY OF THIS AGREEMENT FOR YOUR RECORDS BY USING THE PRINT FUNCTIONALITY IN YOUR BROWSER. IF YOU DO NOT AGREE TO THIS AGREEMENT, YOU MAY NOT USE THESE SERVICES.
1. Services. Subject to the terms and conditions of this Agreement, we grant you a personal, non-exclusive, non-transferable, limited license to access and use the hosted software services (the "Services"), and to install on your cell phone and use the Services, in each case for your internal use only. The Services covered by this Agreement include both free services that we make available for no fee ("Free Services") and services that we make available for a fee ("Paid Services"). The Services we provide allow users to display their skills and talents and connects those individuals and businesses ("Talent Providers") with other individuals and businesses looking to hire individuals for certain services and projects ("Talent Contractors"). Talent Providers and Talent Contractors are referred to hereunder collectively as "Users", and individually as a "User". The agreement and contractual relationship between a Talent Provider and a Talent Contractor is referred to hereunder as the "User Agreement". For clarity, we are not a party to the User Agreement or a guarantor of any User's obligations to another User. The available Services are described more fully on our website talentearth.com (the "Site"), as amended and updated from time to time. The specific Services are ordered by the Users during the account setup process and through our online ordering process. We may change, modify, or discontinue all or any portion of the Services at any time, with or without prior notice.
2. Third Party Services. Certain third party services may have their own terms and conditions, which will be presented to you in connection with your use of the Services. Your use of those third party services will indicate your acceptance of the additional terms and conditions. In connection with the Services, we may afford you the ability to interface and interoperate with certain third party software and to upload data from that software. This functionality is dependent on the operation of the third party software and is provided on an entirely as-is basis.
3. Restrictions. You agree and acknowledge that the Services contain valuable, confidential, trade secret information owned by TalentEarth, and understand that in providing the Services, TalentEarth may disclose to you certain confidential, proprietary trade secret information of TalentEarth (the "Confidential Information"). Confidential Information may include, but is not limited to, the Services, the software associated with the Services, computer programs, flowcharts, diagrams, manuals, schematics, development tools, specifications, design documents, marketing information, financial information, and business plans. You agree and acknowledge that you may only use the Services as described in the current documentation, if any, we make generally available to users of the Services (the "Documentation"). Except as expressly authorized by this Agreement, you will not (and will not allow any third party to): (i) permit any third party to access and use the Services; (ii) decompile, disassemble, or reverse engineer the Services, except to the extent expressly authorized under the law; (iii) use the Services or any of our Confidential Information to develop a competing product or service; (iv) use the Services, or allow the transfer, transmission, export, or re-export of the Services, including by way of a "deemed export," in violation of any export control laws or regulations administered by the U.S. Commerce Department or any other government agency; or (v) remove any copyright, trademark, proprietary rights, disclaimer or warning notice included in or embedded in any part of the Services or Documentation. Under no circumstances, will we be liable or responsible for any use, or any results obtained by the use, of the Services in conjunction with any other software or third party products. All such use will be at your sole risk.
4. User Agreement / Relationship. You agree and acknowledge that all User Agreements shall: (i) name TalentEarth as an express third party beneficiary; and (ii) make no representations or warranties, or enter into any contracts, on behalf of TalentEarth, except as may be otherwise provided for herein. Nothing in the User Agreement will in any way limit or modify TalentEarth's rights and obligations.
4.1 Legal Counsel. We strongly encourage you to seek legal counsel before entering into a User Agreement. Your legal rights, whether you are acting as a Talent Provider or Talent Contractor, as well as the economics of the transaction you may enter into and your potential liability in connection therewith will be affected by the legal terms of the User Agreement and whether or not you do business through a legal entity. We are not a party to the User Agreements, nor are we a guarantor of the services provided or payments owed under User Agreements. We will not approve or disapprove of any terms and conditions offered or negotiated in connection with a User Agreement.
4.2 No Agency. TalentEarth is not the agent, fiduciary, trustee, or other representative of you.
5. TalentEarth Not Responsible for User Agreements. The dealing, contracting and fulfillment of a User Agreement are between the Users who are parties thereto. You expressly acknowledge, agree and understand that: (i) the Site is merely a venue where Users may act as Talent Providers or Talent Contractors; (ii) TalentEarth is not a party to any User Agreements between Talent Providers and Talent Contractors; (iii) Users are not employees of TalentEarth and TalentEarth does not, in any way, supervise, direct, or control any User's work or services; (iv) TalentEarth shall not have any liability or obligations under or related to User Agreements or any acts or omissions by Users; (v) TalentEarth has no control over Talent Providers or over the services promised or rendered by Talent Providers; (vi) TalentEarth is not responsible to Talent Provider for Talent Contractor’s failure to pay amounts due under any User Agreement or otherwise owed by Talent Contractor to Talent Provider; (vi) TalentEarth makes no representations as to the reliability, capability, or qualifications of any Talent Contractor or the quality, security or legality of the services of any Talent Provider, and TalentEarth disclaims any and all liability relating thereto. We encourage every User to get to know every other User they wish to do business with before entering into a User Agreement with such party, sufficient to know such other User’s business acumen and ability to perform its obligations under the User Agreement.
6. Fees for TalentEarth Services. In consideration of your use of any of the Paid Services, you agree to pay the applicable fee for the Paid Services in the amounts set forth on the Site (including any minimum subscription fees or facilitation fees). "Facilitation fees" refer to the fees payable to us in connection with a transaction between a Talent Provider and Talent Contractor. Fees for any new Service or new Service feature will be effective upon posting of such fee by us on the Site for the applicable Service. We may increase or add new fees for any existing Service or Service feature, or implement a fee for any previously Free Service or Free Service feature, by giving you 30 days' advance notice. Such notice will be posted on the Site on the Service detail page for the affected Service. You agree that you are responsible for checking the Site each month to confirm whether there are any new fees and their effective date(s). With respect to fees owed to TalentEarth in connection with services rendered under a User Agreement, Talent Contractor (and not Talent Provider) shall be liable for and shall pay such facilitation fees to TalentEarth. All fees payable by you are exclusive of applicable taxes and duties, including, without limitation, VAT and applicable sales tax. If applicable, you will provide such information to us as reasonably required to determine whether we are obligated to collect VAT from you, including without limitation, your VAT identification number.
7. Manner of Payment. Initially we will accept payment through "First Data Services", Escrow.com, and "Stripe", however, we may from time to time specify a different or alternative manner in which you will pay any fees. Any such payment shall be subject to our general accounts receivable policies from time to time in effect. All amounts payable by you under this Agreement will be made without setoff or counterclaim and without deduction or withholding. If any deduction or withholding is required by applicable law, you shall notify us and shall pay such additional amounts to us as necessary to ensure that the net amount that we receive, after such deduction and withholding, equals the amount we would have received if no such deduction or withholding had been required. Additionally, you shall provide us with documentation that the withholding and deducted amounts have been paid to the relevant taxing authority.
8. Taxes; Information Filings. User shall pay or reimburse TalentEarth for all sales, use, transfer, privilege, tariffs, excise, and all other taxes and all duties, whether international, national, state, or local, however designated, which are levied or imposed by reason of the TalentEarth Services under this Agreement; excluding, however, income taxes on profits which may be levied against TalentEarth. User shall be solely responsible for preparing, providing and filing any and all informational returns or reports required to be made or prepared by persons making payments to third parties pursuant to applicable federal, state, local or foreign law (including, without limitation, IRS Form 1099) relating to any payments made by Users pursuant to a User Agreement or otherwise attributable to the Services.
9. Information Security. Consistent with any law or regulation applicable to the Services and our then current practices and procedures, we will maintain and enforce administrative, technical, and physical safeguards to reasonably protect the confidentiality, availability, and integrity of the Customer Content (as defined below).
10. User Accounts and Passwords. When you register and open an account, access to portions of the Site will be limited requiring a user ID and password ("Protected Areas"), you agree to access Protected Areas using only your user ID and password as provided to you by TalentEarth. You agree to protect the confidentiality of your user ID and password, and not to share or disclose your user ID or password to any third party. Your access to the Site may be revoked by TalentEarth at any time with or without cause. You agree to defend, indemnify and hold TalentEarth harmless from and against all third party claims, damages and expenses (including reasonable attorneys' fees) against or incurred by TalentEarth arising out of your use or access of the Site, or any breach of this Agreement.
11. Proprietary Rights. You acknowledge that all Services are protected by intellectual property rights, as applicable, of TalentEarth and its vendors/licensors and that you have no rights to transfer or reproduce the Services or prepare any derivative works with respect to, or disclose Confidential Information pertaining to, the Services. Under no circumstances will you be deemed to receive title to any portion of any Services, title to which at all times will vest exclusively in us and our licensors. This is not a "work made for hire" a greement, as that term is defined in Section 101 of Title 17 of the United States Code (the "Copyright Act"). You will preserve all Services from any liens, encumbrances, and claims of any individual or entity. You will not use any of our information or data to contest the validity of any of our intellectual property or our licensors. Any such use of our information and data will constitute a material, non-curable breach of this Agreement. To the extent you provide us with any content (e.g., graphics, logos, artwork, text, data) for use in connection with the Services (collectively, the "Customer Content"), you grant us a non-exclusive, world-wide, royalty-free license to use the Customer Content for purposes of performing this Agreement. You are responsible for obtaining all rights, permissions, licenses, and consents required to furnish the Customer Content to us for use as described above. You are also responsible for preserving and making adequate backups of the Customer Content and will not rely on us to preserve or make adequate backups of data used in connection with the Services, or to maintain a record of your usage of any part or all of the Services.
12. Feedback. You may provide us with suggestions, comments or other feedback (collectively, "Feedback") with respect to our products and services, including the Services. Feedback is voluntary and we are not required to hold it in confidence. We may use Feedback for any purpose without obligation of any kind. To the extent a license is required under your intellectual property rights to make use of the Feedback, you grant us an irrevocable, non-exclusive, perpetual, royalty-free license to use the Feedback in connection with our business, products, and services, including the enhancement of the Services.
13. Aggregated Data. You grant us a non-exclusive, perpetual, irrevocable, fully-paid-up, royalty free license to use data derived from your use of Services (the "Aggregated Data") for our business purposes, including the provision of products and services to our customers; provided the Aggregated Data is combined with similar data from our other customers. "Aggregated Data" does not include (directly or by inference) any information identifying you or any identifiable individual. You further grant us the right to (i) use the Aggregated Data in any aggregate or statistical products or reports, (ii) transfer and/or disclose the Aggregated Data upon a sale of our company or its assets or other form of reorganization, (iii) disclose Aggregated Data in a summary report that does not show, display or indicate customer specific or customer identifying information, (iv) provide Aggregated Data to a third party service provider, for analytical purposes, and (v) use the Aggregated Data (without personally identifiable information) to compare with other organizations within the same industry or group. The Aggregated Data will not be considered your Confidential Information.
14. Privacy. This Agreement incorporates by reference our privacy practices and policies posted on talentearth.com.
15. Your Warranties. You represent and warrant that (i) you have full power, capacity, and authority to enter into this Agreement and to grant the license in Section 111 (Proprietary Rights); and (ii) your use of the Services will be in compliance with all applicable local, state, and federal laws and regulations.
16. Indemnification. You will defend and indemnify TalentEarth and hold it and its affiliates, officers, directors, employees, and agents harmless from any and all claims, actions, proceedings, losses, deficiencies, damages, liabilities, costs, and expenses (including but not limited to reasonable attorneys' fees and all related costs and expenses) incurred by them as a result of any claim, judgment, or adjudication related to or arising from any or all of the following: (i) your use of the Services; (ii) breach of any of your obligations, representations, or warranties in this Agreement; (iii) your failure to comply with applicable laws and regulations; and (iv) any claim brought against TalentEarth by another User, including a Client or Contractor, as applicable, arising out of or relating to your acts or omissions.
17. Suspension or Termination of Services and Removal of Customer Content. We may, in our sole discretion, suspend your access to the Services for any of the following reasons (i) to prevent disruption of or damages to, or degradation of, the Services and our systems; (ii) to comply with any law, regulation, court order, or other governmental request; (iii) to otherwise protect us from potential legal liability; or (iv) to remove Customer Content that is illegal, offensive, or otherwise inappropriate, in our sole discretion. We will restore access to the Services as soon as the event giving rise to suspension has been resolved. This Section will not be construed as imposing any obligation or duty on us to monitor use of the Services. Additionally, this Agreement may be terminated by either party upon written notice to the other, if the other party breaches any material obligation provided hereunder and the breaching party fails to cure such breach within thirty (30) days of receipt of the notice.
18.1 Treatment of Confidential Information. You recognize the importance of our Confidential Information. In particular, you recognize and agree that the Confidential Information of the other is critical to our business and that we would enter into this Agreement without assurance that the information will be protected as provided in this Section 18.1 and elsewhere in this Agreement. Accordingly, you agree: (a) to hold any and all Confidential Information in strictest confidence; and (b) to disclose or provide access to such Confidential Information only to your employees and agents only as permitted under this Agreement (e.g., Section 22), and may make copies, of Confidential Information only to the extent permitted under this Agreement.
18.2 Non-Exclusive Equitable Remedy. You acknowledge and agree that due to the unique nature of the Confidential Information there can be no adequate remedy at law for any breach of your obligations hereunder, and therefore, that upon any such breach or any threat thereof, we will be entitled to appropriate equitable relief from a court of competent jurisdiction in addition to whatever remedies either of them might have at law or equity.
19. Limited Warranty; Exclusive Remedy. During the Term, TalentEarth warrants the Services will materially comply with the requirements of this Agreement and Documentation. In the event of a breach of the foregoing warranty, TalentEarth's sole and exclusive liability and your sole and exclusive remedy will be to use reasonable efforts to correct the non-conformity. In the event TalentEarth is unable through reasonable efforts to correct the defective Service, you may elect to terminate this Agreement and receive a prorated refund of any pre-paid, unused recurring fees, if any.
20. Disclaimer of Warranties. EXCEPT AS PROVIDED IN SECTION 19 (LIMITED WARRANTY), THE SERVICES ARE PROVIDED "AS IS" AND "AS-AVAILABLE," WITH ALL FAULTS, AND WITHOUT WARRANTY OF ANY KIND. TALENTEARTH AND ITS VENDORS AND LICENSORS DISCLAIM ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT, QUALITY OF INFORMATION, OR TITLE/NON-INFRINGEMENT AND ALL SUCH WARRANTIES ARE HEREBY SPECIFICALLY DISCLAIMED. YOU EXPRESSLY AGREE AND ACKNOWLEDGE THAT USE OF SERVICES, IS AT YOUR SOLE RISK. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY TALENTEARTH OR ITS AUTHORIZED REPRESENTATIVES WILL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF TALENTEARTH'S OBLIGATIONS HEREUNDER. TALENTEARTH MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO ANY SERVICES PROVIDED BY TALENT PROVIDER OR THE ABILITY OF ANY TALENT CONTRACTOR TO PAY FOR SERVICES RENDERED. THE SERVICES MAY BE USED TO ACCESS AND TRANSFER INFORMATION OVER THE INTERNET. YOU ACKNOWLEDGE AND AGREE THAT TALENTEARTH AND ITS VENDORS AND LICENSORS DO NOT OPERATE OR CONTROL THE INTERNET AND THAT: (I) VIRUSES, WORMS, TROJAN HORSES, OR OTHER UNDESIRABLE DATA OR SOFTWARE; OR (II) UNAUTHORIZED USERS (E.G., HACKERS) MAY ATTEMPT TO OBTAIN ACCESS TO AND DAMAGE THE CUSTOMER CONTENT, WEBSITES, COMPUTERS, OR NETWORKS. WE WILL NOT BE RESPONSIBLE FOR THOSE ACTIVITIES.
21. Limitation of Liability and Damages. NEITHER TALENTEARTH NOR ITS VENDORS AND LICENSORS WILL HAVE ANY LIABILITY TO YOU OR ANY THIRD PARTY FOR ANY LOSS OF PROFITS, BUSINESS, DATA, OR OTHER INCIDENTAL, CONSEQUENTIAL, OR SPECIAL LOSS OR DAMAGE, INCLUDING EXEMPLARY AND PUNITIVE, OF ANY KIND OR NATURE RESULTING FROM OR ARISING OUT OF THIS AGREEMENT, INCLUDING USE OF THE SERVICES EVEN IF TALENTEARTH HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE TOTAL LIABILITY OF TALENTEARTH AND ITS VENDORS AND LICENSORS TO YOU OR ANY THIRD PARTY ARISING OUT OF THIS AGREEMENT OR USE OF THE SERVICES IN CONNECTION WITH ANY CLAIM OR TYPE OF DAMAGE (WHETHER IN CONTRACT OR TORT) WILL NOT EXCEED THE TOTAL FEES YOU PAID, IF ANY, DURING THE ONE (1) MONTH IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE LIABILITY. THIS LIMITATION OF LIABILITY WILL APPLY EVEN IF THE EXPRESS WARRANTIES PROVIDED ABOVE FAIL OF THEIR ESSENTIAL PURPOSE.
22. Links to Other Sites. TalentEarth makes no representations whatsoever about any other website that you may access through this Site. When you access a non-TalentEarth site, please understand that it is independent from TalentEarth, and that TalentEarth has no control over the content on that website. In addition, a link to a non- TalentEarth website does not mean that TalentEarth endorses or accepts any responsibility for the content, or the use, of the linked site. It is up to you to take precautions to ensure that whatever you select for your use or download is free of such items as viruses, worms, Trojan horses, and other items of a destructive nature. If you decide to access any of the third party sites linked to our Site, you do this entirely at your own risk.
23. Government Restrictions. Any software or other programming provided by us in connection with this Agreement is commercial computer software as described in DFARS 252.227-7014(a)(1) and FAR 2.101. If acquired by or on behalf of the United States Department of Defense or any component thereof, the United States Government acquires this commercial computer software and commercial computer software documentation subject to the terms of this Agreement as specified in DFARS 227.7202-3, Rights in Commercial Computer Software or Commercial Computer Software Documentation. If acquired by or on behalf of any civilian agency, the United States Government acquires this commercial computer software and commercial computer software documentation subject to the terms of this Agreement as specified in FAR 12.212, Computer Software.
24. USA Patriot Act Notice. The U.S. federal USA Patriot Act ("USA Patriot Act") provides generally for the operator of a communication host and law enforcement to be able to monitor any content, upon request of the operator. We anticipate fully complying with our obligations, and availing ourselves of all rights under the USA Patriot Act.
25. General. Except for the payment of fees, if any, neither party will be liable for any failure or delay in performance under this Agreement which is due to any event beyond the reasonable control of such party, including without limitation, fire, explosion, unavailability of utilities or raw materials, Internet delays and failures, telecommunications failures, unavailability of components, labor difficulties, war, riot, act of God, export control regulation, laws, judgments or government instructions. This Agreement provides the entire agreement between the parties with regard to its subject matter. We may, at any time and from time-to-time, change the terms of this Agreement or any of our policies. Any changes will be posted on our Site. In addition, we may also send you a notice about the amended terms or policies via email or, if the amendments are limited to a particular type of transaction, we may communicate such changes to you directly when you next enter into such type of transaction on our Site. If you do not accept the terms of any modification, your only recourse is to terminate this Agreement by sending a termination notice to us before the effective date of the amendments. The termination will be effective on the date we receive your notice. The most current version of the Agreement will be available on our Site and will supersede all previous versions of the Agreement. Your continued use of the Services will constitute your acceptance of the changes. This Agreement will be construed according to, and the rights of the parties will be governed by, the law of the State of California, without reference to its conflict of laws rules. Any action at law or in equity arising out of or directly or indirectly relating to this Agreement may be instituted only in the Federal or state courts located in San Francisco, California. You consent and submit to the personal jurisdiction of those courts for the purposes of any action related to this Agreement, and to extra-territorial service of process. No action, regardless of form, arising out of this Agreement, may be brought by either party more than one (1) year after the cause of action has arisen. You may not assign this Agreement without the prior written consent of TalentEarth. If any of the provisions of this Agreement are found or deemed by a court to be invalid or unenforceable, they will be severable from the remainder of this Agreement and will not cause the invalidity or unenforceability of the remainder of this Agreement. Neither party will by mere lapse of time without giving notice or taking other action hereunder be deemed to have waived any breach by the other party of any of the provisions of this Agreement. The following provisions will survive termination or expiration of this Agreement: 3 (Restrictions), 11 (Proprietary Rights), 16 (Indemnification), 18 (Confidentiality), 20 (Disclaimer of Warranties), 21 (Limitation of Liability and Damages), and 25 (General Provisions). This Agreement may be accepted in electronic form (e.g., by an electronic or other means of demonstrating assent) or by your use of the Services and your acceptance will be deemed binding between us. Nothing expressed or mentioned in or implied from this Agreement is intended or shall be construed to create any legal or equitable right in any third person. Neither of us will contest the validity or enforceability of this Agreement and any related documents, including under any applicable statute of frauds, because they were accepted or signed in electronic form.
* TalentEarth´s employment network currently only provides services for Employers and Talent in the U.S. Our network is growing every day and we will soon be expanding around the globe. If you would like to learn more about our future deployments, click here for more information.