Terms of Service
StaffGeek shall have the right to modify the Terms of Service at any time by providing written notice to Customer, and such modifications to the Terms of Service shall be effective upon the conclusion of the applicable subscription period in-effect following StaffGeek providing notice of the same to Customer. By executing this Agreement, Customer is agreeing to be bound by the Terms of Service, and agrees to periodically review the Terms of Service and to be aware of such modifications to this Agreement.
These Terms of Service are made a part of the SaaS Services Agreement (the “Agreement”) executed by and between Customer and StaffGeek and incorporated by reference.
NOW, THEREFORE, in consideration of the premises set forth therein and herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and intending to be legally bound, the parties agree to as follows:
The Agreement consists of the Terms of Service and the Policies (as defined below, and incorporated herein by reference).
Site, Application and Other Services
Customer is engaging StaffGeek to provide access to and use of the StaffGeek Software on a “Software as a Service” (“SaaS”) basis via the Web Application and the Site (as applicable), as well as any other Services (as defined below) requested or necessary to generate and deliver the Deliverables.
The method and means of providing the Services shall be under the exclusive control, management, and supervision of StaffGeek, giving due consideration to the requests of Customer. Currently, the Services are provided solely from within the United States and, where applicable, on computing and data storage devices physically located within the United States.
In addition to the terms defined elsewhere in the Agreement and these Terms of Service, the following terms shall have the following meanings:
Means each person who is authorized by Customer to have administrative privileges on the Site and the Web Application, and who accesses or uses any Master Accounts (as defined below) of Customer with StaffGeek. An Authorized User may be an employee, contractor, consultant, or other agent of Customer.
Means an individual employee or prospective employee of Customer who accesses and uses the Platform to complete the applicable questionnaires utilized for performing assessment and matching Services for Customer by StaffGeek. Candidates do not have administrative privileges unless also an Authorized User.
Means all information of whatsoever kind or nature belonging to or in the possession or control of a party (“disclosing party”) which is of a confidential, proprietary or trade secret nature that is furnished or disclosed to the other party (“receiving party”) under the Agreement, either orally, in writing or in electronic formats, and which has been marked “confidential”.
Means a Service provided by StaffGeek for the modification of the Site and/or Web Application or other Services pursuant to specific requests by Customer.
Means information provided by or for Customer. There are several different types of Data:
Means any Data owned or provided by Customer directly or indirectly to StaffGeek, including, without limitation, information about Customer’s Users, whether or not hosted by StaffGeek.
Means Customer Data that StaffGeek stores on servers or other computers owned or controlled by StaffGeek.
Means Data that is not Hosted Data, including any Data on Customer’s servers or third-party servers.
Means any Data that does not contain Personal Information.
The date in which the Customer has agreed to these terms through use of the StaffGeek Software.
Means a reproducible failure of the StaffGeek Software to perform in substantial conformity with the intended functionality of the Site, the Web Application, and any Customizations.
Means a trademark, service mark or other brand associated with the Services, in accordance with applicable law.
Means the StaffGeek Software hosted by StaffGeek, accessed and used by Customer, Customer’s Authorized Users, and Customer’s Candidates, and operated by StaffGeek to process Customer Data on a SaaS basis.
Means any information that is not Personal Information.
Open Source Software
Means computer programs that are (1) not public domain, (2) subject to some form of intellectual property ownership such as copyright or patent protection, (3) are made freely available at no charge to the general public by their owner, and (4) are licensed pursuant to a written document that may list one or more limitations on how licensees may use, modify and share the programs and derivative works (new versions) of the programs.
Means non-public information that identifies an individual person.
Means the SaaS Services provided to Customer through the Site and the Web Application.
Means StaffGeek’s Policy regarding data privacy practices.
Means those services provided by StaffGeek to Customer pursuant to the Agreement, which may include access and use of the StaffGeek Software offered through the Web Application and Site (if applicable), as well as ancillary services performed by StaffGeek which may include Storage, Support, further analysis of Customer Data, and training.
Means the StaffGeek website.
Means computer programs. There are several different types of Software:
Means any Software developed and/or owned by StaffGeek, including, without limitation, underlying the Site, the Web Application, and any Customizations.
Third Party Software
Means Software owned, distributed or operated by third parties.
Means a Service provided by StaffGeek for the hosting of Customer Data by StaffGeek.
Means a Service provided by StaffGeek to assist Customer and its Authorized Users upon specific request by Customer regarding the use of the Services.
Means Customer’s employees, representatives, consultants, contractors or agents who are authorized to use the Service and have been supplied user identifications and passwords by Customer or on Customer’s behalf, including, without limitation, each Authorized User and Candidate.
StaffGeek shall provide Customer, Customer’s Authorized Users, and Customer’s Candidates access to and use of all or a portion of the StaffGeek Software through the Site and the Web Application.
Pursuant to the Agreement, StaffGeek shall provide Customer with two levels of accounts:
The administrative functionality of the Platform is designed to be administered only by Authorized Users. Upon execution of the Agreement, StaffGeek shall provide Customer with one or more account and login that grants full, unrestricted access to the Services for one or more specified Authorized Users (“Master Account”).
At the Customer’s discretion, Customer may assign Candidates with an account and login that grants each such User access to the StaffGeek Software to enter data and complete assessment surveys, but which restricts access to administrative aspects of the Services (“Candidate Account,” together, with the Master Account, the “Customer Account(s)”). Candidates are only granted access to a Candidate Account upon specific invitation by Customer, and each Candidate must acknowledge and agree to the terms of StaffGeek’s applicable Policies.
Limiting Access to Accounts
StaffGeek requires a unique account and login for each User for greater security, and Customer hereby covenants that Customer will provide and assign a unique password and user name for each User. Customer is responsible for all actions attributable to its Users and for each Customer Account. Customer will be responsible for the confidentiality and use of Customer’s (including its employees’) passwords and user names. Customer understands and agrees that in order for the Services to be most effective, it should only grant management-level employees access to the Master Account, and that every other User that needs access to the Services should be provided with a unique Candidate Account. Allowing Users to share accounts increases the potential for inaccurate data tracking, security issues and trouble with terminated employees continuing to have access to the Services. Customer hereby acknowledges and agrees that StaffGeek shall not be responsible for any liability, actions, claims, or damages arising out of or in connection with inaccuracies of Data, any Data Breaches, or other problems or Errors with the Services as a result of Customer allowing multiple Users to share any single account. Customer agrees to notify StaffGeek if Customer becomes aware of any loss or theft or unauthorized use of any of Customer’s passwords, user names, and/or account number(s).
Grant of License
Subject to StaffGeek’s continued timely receipt of Subscription Fees (defined below) during the Term of the Agreement, StaffGeek grants Customer a limited, revocable, non-exclusive, non-transferable, and worldwide right and license for Customer and Customer’s Users to access and use the Platform in accordance with the terms of the Agreement and StaffGeek’s Policies, as amended from time to time, solely in connection with the Services and solely for Customer’s own internal business purposes (“SaaS License”).
All StaffGeek Software and Services are and shall remain the property of StaffGeek, and will be protected as StaffGeek’s Confidential Information. All templates, survey questions and formats, and the results of Customization Services will be owned by StaffGeek. This Section shall survive any termination of the Agreement.
Open Source Software
StaffGeek may use Open Source Software as part of the StaffGeek Software or to provide any of the Services. StaffGeek’s use of Open Source Software does not affect either StaffGeek’s ownership of the StaffGeek Software or Customer’s ownership of the Customer Data.
The Services may permit Customer to link to other websites, resources or online services (collectively, “Third-Party Sites”). StaffGeek does not own or control any of the Third-Party Sites. StaffGeek does not endorse or vouch for any StaffGeek users, third parties, or the information they share on the Platform or the Third-Party Sites. Customer is responsible for all information that it receives, posts, shares or analyzes on or via the Platform, or otherwise. StaffGeek does not verify the accuracy of any information provided by Third-Party Sites or other users. Any agreement between Customer and a Third-Party Site is not modified nor affected by the Agreement with StaffGeek. Customer hereby acknowledges and agrees that StaffGeek shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with Customer’s use of or reliance on any Third-Party Site, and Customer waives any claim against StaffGeek with respect to Third-Party Sites.
Data and Storage Services
The Services may include the allocation of Storage of information for Customer on StaffGeek’s servers.
Customer Data shall be treated by StaffGeek as Customer’s Confidential Information. Customer Data shall include: (a) Data collected, used, processed, stored, or generated as the result of the Customer’s use of the Services and its Users’ use of the Platform; and (b) Personal Information (including Personal Information about Customer’s Candidates and Authorized Users) collected, used, processed, stored, or generated as the result of the use of the Platform, including without limitation any information that identifies an individual. Customer Data is and shall remain the sole and exclusive property of Customer and all right, title, and interest in the same is reserved by Customer. This Section shall survive the termination of the Agreement.
StaffGeek Use of Customer Data
Customer grants StaffGeek a limited, worldwide, non-exclusive license to receive, store, process, modify, create derivative works of, and/or display Customer Data for the sole and exclusive purpose of providing the Services for Customer’s purposes during the term of the Agreement (“Customer Data License”). In addition, Customer grants StaffGeek a limited, worldwide, non-exclusive, transferable, perpetual, irrevocable license to anonymize the Customer Data by removing Personal Information from the Customer Data, and adding the anonymized Data to other NPI Data developed or maintained by StaffGeek (the “NPI License”). For clarity, anonymized versions of the Customer Data are added to the NPI Data only after the Customer Data has been scrubbed of any Personal Information. The remainder of the NPI Data includes metadata about how the Services are used and other Non-Personal Information. StaffGeek shall keep and maintain Customer Data in strict confidence as Customer’s Personal Information, using such degree of care as is appropriate and consistent with its obligations as further described in the Agreement and applicable law to avoid unauthorized access, use, disclosure, or loss, and in no event less than a reasonable standard of care. This Section shall survive the termination of the Agreement.
Extraction of Hosted Data
Upon notice by Customer at any time during the Term of the Agreement, the Customer may request, at additional cost, an extract of the Hosted Data in a format reasonably specified by Customer and supported by StaffGeek, which such extract shall be provided by StaffGeek in accordance with StaffGeek’s then-current hourly fees within sixty (60) days following the date of request. Following any termination of the Agreement, for a period of up to one (1) year after the date of termination, upon written request by Customer StaffGeek shall, within sixty (60) calendar days of Customer’s request and without charge, provide an extract of the Hosted Data in a format reasonably specified by Customer and supported by StaffGeek.
Backup and Recovery
As a part of the Services, StaffGeek is responsible for maintaining a backup of any Hosted Data and for an orderly and timely recovery of Hosted Data in the event that the Services may be interrupted.
Loss of Data
In the event of any act, error or omission, gross negligence, or breach directly caused by StaffGeek that compromises the security, confidentiality, or integrity of the Hosted Data, or the physical, technical, administrative, or organizational safeguards put in place by StaffGeek for the protection, security, confidentiality, or integrity of Hosted Data (“Data Breach”), unless prohibited by applicable law StaffGeek shall: (a) notify Customer as soon as practicable after becoming aware of such occurrence; (b) cooperate with Customer in investigating the occurrence, including making available all relevant records, logs, files, data reporting, and other materials required to comply with applicable law; and (c) in the case of Personal Information, at Customer’s sole election, notify the affected individuals whose Personal Information was compromised as soon as practicable but no later than is required to comply with applicable law. StaffGeek shall have no liability to Customer for a Data Breach caused by a third party, provided reasonable security measures and safeguards were put in place by StaffGeek and were functional as of the date such Data Breach occurred.
Upon reasonable request of Customer, StaffGeek shall provide certain Support Services to Customer’s Authorized Users and Candidates.
Ownership and Use of Deliverables
Customer Data entered by the Customer and Customer’s Candidates shall be used by StaffGeek to perform assessments and generate surveys, Candidate profiles, and final Candidate evaluation reports for the Customer (each, a “Deliverable,” and collectively, the “Deliverables”). Subject to Customer’s ownership and license of Customer Data pursuant to Section 3.3 above, Deliverables are and shall remain the sole and exclusive property of StaffGeek and all right, title, and interest in the same is reserved by StaffGeek; provided, however, that StaffGeek grants to the Customer a nonexclusive, royalty-free, fully-paid, perpetual, irrevocable, transferable, worldwide license to make, use, import, copy, reproduce, distribute, modify, adapt, prepare derivative works of, display, perform, and otherwise exploit the Deliverables. Customer acknowledges and agrees that Customer’s use of the Deliverables, including, without limitation, any action or decisions made by the Customer in reliance on the analysis contained in the Deliverables is at the Customer’s sole discretion, and StaffGeek makes no representations, warranties, or covenants of any kind with respect to the Customer’s use of Deliverables for Customer’s business purposes.
Subscription Plans, Fees and Payment
StaffGeek currently offers paid-subscription offerings (“Subscription(s)”), on a monthly or annual basis, (each, a “Subscription Plan”) granting access to the Customer to use the StaffGeek Software via the Web Application or Site (as applicable). StaffGeek may, in its sole discretion, add, adjust, or remove all or a portion of its Subscription Plans. Customer hereby authorizes StaffGeek to charge either the Customer’s credit card or use ACH for the payment of Subscription Fees upon the renewal of an applicable Subscription Plan period (“Recurring Charges”). In case of ACH, payments will be processed using a PCI-compliant third-party merchant services provider. Each Subscription Plan includes restrictions and requirements that outline the features of the Platform and Services the Customer may access, as well as the applicable Subscription Fees, and termination policies (the “Subscription Terms”). Any violation by the Customer of the Subscription Terms may result in the immediate termination of the Subscription Plan and use of the Platform, as well as any other potential liability for violation of these Terms of Service.
As consideration for the Services provided by StaffGeek, the Customer agrees to pay to StaffGeek the applicable subscription fees (“Subscription Fees”). Subscription Fees are due at the beginning of each subscription period (i.e., annually or monthly) and are not refundable. Subscription Plans shall automatically renew upon the conclusion of a subscription period unless the Customer provides StaffGeek with appropriate notice of cancellation. If StaffGeek does not receive a Subscription Fee from the Customer when due, then StaffGeek may consider the Subscription Plan terminated by the Customer for the Customer’s convenience. StaffGeek may charge other expenses and/or fees upon notice to the Customer if and when such additional fees and expenses become applicable. StaffGeek may, in its sole discretion change applicable fees for its Subscription Plans from time to time; provided, however, that any such changes to Subscription Fees shall not take effect until the start of the next subscription period for the Customer’s applicable Subscription Plan.
Changes or Cancellation of Subscription Plan
The Customer may switch to a different Subscription Plan at any time. The effective date of the new Subscription Plan will commence on the day immediately following the final day of the preceding subscription period. If the Customer wishes to cancel an existing Subscription Plan in its entirety, the Customer may do so upon providing StaffGeek with notice of the cancellation. The cancelled Subscription Plan shall terminate as of the final day of the subscription period in effect on the date of Customer’s notice of cancellation. For clarity, if Customer voluntarily cancels its Subscription prior to the end of a current subscription period, the Customer shall owe the full amount of the current Subscription Plan’s Subscription Fees through the completion of the current subscription period. Upon the effective date of a cancelled Subscription, the Customer shall have no further access to the Platform, and the Agreement shall be deemed terminated as of the effective date of the cancellation.
StaffGeek will add to each invoice any sales or other taxes assessed or required by applicable taxing authorities. Customer will provide StaffGeek any exemption certificates or other documentation regarding the amount or applicability of particular taxes.
The term “Confidential Information” is defined above, but will be deemed to exclude any particular information that: (i) is already known to the receiving party without restrictions at the time of its disclosure by the disclosing party; (ii) after its disclosure by the disclosing party, is made known to the receiving party without restrictions by a third party having the right to do so without restriction; (iii) is or becomes publicly known without violation of the Agreement; or (iv) is independently developed by the receiving party without reference to the disclosing party’s Confidential Information.
Confidential Information will remain the property of the disclosing party (or its licensors), and the receiving party will not be deemed by virtue of the Agreement or any access to the disclosing party’s Confidential Information to have acquired any right, license, or interest in or to any such Confidential Information. The receiving party agrees: (i) to limit disclosure of the disclosing party’s Confidential Information to those employees of the receiving party who have a need to know the information for the purposes of the Agreement; (ii) not to disclose any such Confidential Information to any third party, without the disclosing party’s prior written consent; (iii) to use the disclosing party’s Confidential Information solely and exclusively in accordance with the terms of the Agreement in order to carry out its obligations and exercise its rights under the Agreement; (iv) to afford the disclosing party’s Confidential Information at least the same level of protection against unauthorized disclosure or use as the receiving party normally uses to protect its own information of a similar character, but in no event less than reasonable care; and (v) to notify the disclosing party promptly of any unauthorized use or disclosure of the disclosing party’s Confidential Information and cooperate with and assist the disclosing party in every reasonable way to stop or minimize such unauthorized use or disclosure.
Notwithstanding the foregoing, if the receiving party receives a subpoena or other validly issued administrative or judicial notice requiring the disclosure of the disclosing party’s Confidential Information, unless prohibited by law the receiving party will promptly notify the disclosing party and, if so requested, will provide reasonable cooperation to the disclosing party in resisting the disclosure. Subject to its obligations stated in the preceding sentence, the receiving party will be entitled to comply with any binding subpoena or other process to the extent required by law, but will in doing so make every reasonable effort to secure confidential treatment of any materials it is compelled to disclose.
Return of Confidential Information
Upon termination or expiration of the Agreement, the receiving party, at the disclosing party’s option, will return or destroy all Confidential Information of the disclosing party that the receiving party does not possess under a valid license; provided that each party may retain one (1) electronic copy of all of its work products (including deliverables, presentations, working papers, but excluding software and documentation) produced under the Agreement for archival purposes. The party’s obligations hereunder will continue to apply to such archival copies.
No Reverse Engineering
In no event shall Customer use StaffGeek’s Confidential Information to reverse engineer or otherwise develop products or services functionally equivalent to the Platform, the StaffGeek Software, or any other Services of StaffGeek.
The receiving party agrees that if a court or tribunal of competent jurisdiction determines that the receiving party has breached, or attempted or threatened to breach, its confidentiality obligations to the disclosing party or the disclosing party’s proprietary rights, the disclosing party will be entitled to seek appropriate injunctive relief and other measures restraining further, attempted or threatened breaches of such obligations. Such relief or measures will be in addition to, and not in lieu of, any other rights and remedies available to the disclosing party.
Representations and Warranties
Each party warrants to the other party that it: (a) does not have any obligation that restricts their ability to enter into the Agreement and to perform their obligations set forth in the Agreement; (b) has all rights necessary and appropriate to grant the licenses and other rights stated in the Agreement and perform its obligations under the Agreement; (c) has complied with their duties to all applicable governing authorities; and (d) will be solely responsible for complying with all laws, regulations and rules applicable to its respective performance under the Agreement, including without limitation complying with the laws, regulations and rules of any foreign countries in which it (or, where applicable, its employees) reside or perform their obligations or performance under the Agreement.
Each party represents and warrants to the other party that it is an independent contractor for purposes of federal, state, and local taxes. Accordingly, neither party is responsible to collect or withhold any such taxes, including income tax withholding and social security contributions, for the other party.
Limited Services Warranty
During the term of the Agreement, StaffGeek warrants that it shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions and shall perform the implementation of the Services in a professional and workmanlike manner. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by StaffGeek or by third-party providers, or because of other causes beyond StaffGeek’s reasonable control, but StaffGeek shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. Temporary service interruptions shall not be deemed a material Error. The rights and remedies stated in this Section are the Customer’s sole remedy and StaffGeek’s sole liability for any allegation of Errors or other defects in the Services.
StaffGeek does not warrant that the Service will be will be free of non-material Errors, bugs, or minor interruption, or that all such Errors will be corrected. StaffGeek shall not be responsible for defects or “bugs” in software components of the Services (a) where such non-material Errors, bugs, or minor interruptions do not have a material effect on the functionality of the Services or StaffGeek Software, (b) where such components are not provided by StaffGeek, or (c) which defects or bugs result from (i) modifications to computer code not performed by StaffGeek, (ii) additional requirements not known at the time of development, (iii) integration into components not delivered by StaffGeek, or (iv) new data or functionality entered dynamically or through formal release process by Customer or third parties, or changes in or upgrades to operating systems, that were not available for testing and not documented in the requirements during the course of StaffGeek’s development and testing cycles.
StaffGeek will have no obligation or liability to Customer for any claim, liability or allegation that arises from (a) any modification to the Services or Deliverables by anyone other than StaffGeek; (b) modification or Customizations made by StaffGeek based on Customer provided Data; (c) use of the Services other than as specified in the Agreement or in applicable documentation; (d) use of the Services in combination with third party software, hardware or data, including, without limitation, third-party merchant services, other than as provided in the Agreement.
Disclaimer of Warranties and Limitation of Liabilities
EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THE AGREEMENT, INCLUDING, WITHOUT LIMITATION, THESE Terms of Service, THE STAFFGEEK SOFTWARE, PLATFORM, AND SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE.” STAFFGEEK DISCLAIMS ALL OTHER REPRESENTATIONS OR WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, FREEDOM FROM VIRUSES OR OTHER HARMFUL CODE, ACCURACY, TIMELINESS AND ERROR-FREE OR UNINTERRUPTED OPERATION. IN NO EVENT WILL STAFFGEEK, ITS LICENSORS, SUPPLIERS OR THIRD-PARTY SERVICE PROVIDERS BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY INDIRECT, CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES, OR FOR ANY LOSS OF PROFITS, BUSINESS, REVENUE OR DATA, IN CONNECTION WITH THE SOFTWARE OR SERVICES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES.
IN NO EVENT SHALL STAFFGEEK, ITS AFFILIATES OR ITS LICENSORS BE LIABLE HEREUNDER TO CUSTOMER OR CUSTOMER’S USERS, FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR PUNITIVE DAMAGES, OR DAMAGES FOR LOST PROFITS, LOST INCOME, OR LOST SAVINGS, OR ANY OTHER FORM OR MEASURE OF DAMAGES OTHER THAN DIRECT DAMAGES, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES. NOTWITHSTANDING ANY OTHER PROVISION OF THE AGREEMENT TO THE CONTRARY, THE MAXIMUM LIABILITY OF STAFFGEEK, ITS AFFILIATES AND ITS LICENSORS UNDER ANY THEORY OF RECOVERY, AND CUSTOMER’S MAXIMUM REMEDY, SHALL BE LIMITED TO THE AMOUNT OF THE PAYMENTS WHICH STAFFGEEK HAS RECEIVED FROM CUSTOMER PURSUANT TO THE AGREEMENT FOR THE SERVICES PROVIDED DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT, ACT OR OMISSION GIVING RISE TO SUCH LIABILITY. STAFFGEEK’S PRICING FOR THE SERVICES REFLECTS THE DISCLAIMER OF WARRANTIES AND LIMITATION OF LIABILITIES, EACH OF WHICH FORMS THE BASIS OF THE BARGAIN BETWEEN THE PARTIES.
It is the express intention of the parties that for the purposes of the Agreement StaffGeek is an independent contractor, and is not an employee, agent, joint venturer, or partner of Customer. Nothing in the Agreement will be interpreted or construed as creating or establishing an employment relationship between the parties, or between one party and the employees or contractors of the other party. StaffGeek acknowledges and agrees that StaffGeek is obligated to report as income all compensation received by Customer pursuant to the Agreement and that StaffGeek is solely responsible for all taxes, withholdings, and other similar statutory obligations including, but not limited to, any self-employment taxes and workers’ compensation insurance.
Customer, including, without limitation, Customer’s Users, agrees to defend, indemnify and hold StaffGeek harmless from and against any claims, liabilities, damages, losses, and expenses, including without limitation, reasonable attorney’s fees and costs, arising out of or in any way connected with any of the following alleged activities: (i) Customer’s access to or use of the Platform and other Services, including, without limitation, any Deliverables; (ii) any alleged breach by Customer or Customer’s Users of the Agreement, including, without limitation, a breach of these Terms of Service; (iii) any breach, infringement, misappropriation or violation of any third-party right including without limitation any intellectual property right, publicity right, confidentiality, property right or privacy right; (iv) Customer’s violation of any laws, rules, regulations, codes, statutes, ordinances or orders of any governmental and quasi-governmental authorities, including, without limitation, any regulatory, administrative and legislative authorities; or (v) any misrepresentation made by Customer. Customer agrees to cooperate as reasonably requested by StaffGeek in the defense of any claim. StaffGeek reserves the right to assume the exclusive defense and control of any matter subject to indemnification by Customer, and Customer will not in any event settle any claim against StaffGeek without the prior written consent of StaffGeek, which consent StaffGeek may refuse in its sole discretion.
Term and Termination
The initial term of the Agreement shall begin on the Effective Date and continue until the end of the first subscription period (e.g., annual or month-to-month) in accordance with the Customer’s Subscription Plan (the “Initial Term”), and shall automatically renew for additional one (1) month or one (1) year periods (as applicable) unless and until otherwise terminated by either party in accordance with these Terms of Service (each, a “Renewal Term”, and collectively with the Initial Term, the “Term”).
Either party may terminate the Agreement at any time and for any reason upon notice to the other party. Termination of the Agreement shall cause the cancellation of the applicable Subscription Plan, and shall take effect on the last day of the subscription period in effect upon one party giving notice to the other party. Any and all pre-paid Subscription Fees for the Subscription Plan in-effect upon a party’s delivery of notice of termination shall be owed in-full to StaffGeek (i.e., Subscription Fees are non-refundable).
Termination for Cause
StaffGeek may terminate the Agreement “for cause”, effective immediately, unless StaffGeek elects, in its sole discretion, to provide the Customer with notice and an opportunity to cure the cause for such termination. As used in this Agreement, “for cause” shall mean: (i) a material breach of any provision of the Agreement, including any breach of these Terms of Service; (ii) fraud, misrepresentation, gross negligence, or willful misconduct; (iii) any action which causes damage or injury to StaffGeek’s reputation; or (iv) non-payment of Subscription Fees for a Renewal Term. In the event of a for cause termination, the Customer hereby waives all notice requirements and StaffGeek may immediately cease providing the Services. Any and all pre-paid Subscription Fees for the Subscription Plan period in-effect upon StaffGeek’s delivery of notice of termination for cause shall be owed in-full to StaffGeek (i.e., Subscription Fees are non-refundable).
The Agreement shall be governed by and construed in accordance with the law of the Commonwealth of Pennsylvania and the federal law of the United States of America, without reference to conflicts of laws policies or provisions.
All communications concerning the Agreement, including payments, notices, demands or requests required or permitted hereunder shall be given in writing, including without limitation, in email communications. The addresses to be used for all payments, notices, demands or requests shall be the address for each of the parties stated on the signature page to the Agreement, unless and until changed by either party by providing written notice to the other party pursuant to this Section.
The Agreement shall inure to the benefit of and is binding upon each of the parties hereto and their respective successors and permitted assigns. It may not be assigned in whole or in part by the Customer without the prior written consent of StaffGeek. StaffGeek may transfer or assign its rights under the Agreement without consent of Customer effective on sending written notice to Customer.
Force Majeure; Excused Performance
Neither party shall be liable for delays or any failure to perform its rights or responsibilities pursuant to the Agreement due to causes beyond its reasonable control (a “force majeure event”). Such delays include, but are not limited to, fire, explosion, flood or other natural catastrophe, governmental legislation, acts, orders, or regulation, strikes or labor difficulties, to the extent not occasioned by the fault or negligence of the delayed party. Any such excuse for delay shall last only as long as the event remains beyond the reasonable control of the delayed party. However, the delayed party shall use its commercially reasonable efforts to minimize the delays caused by any such event beyond its reasonable control. The delayed party must notify the other party in writing promptly upon the occurrence of any such event, or performance by the delayed party will not be considered excused pursuant to this Section, and inform the other party of its plans to resume performance.
StaffGeek and Customer mutually agree, to the extent permitted by law, to refrain from soliciting for employment, directly or indirectly, any employee of the other party during the term of the Agreement and for six (6) months after termination. Solicitation shall not include any general advertisements.
The failure of either party at any time to require performance by the other party of any provision of the Agreement shall in no way affect that party’s right to enforce such provisions, nor shall the waiver by either party of any breach of any provision of the Agreement be taken or held to be a waiver of any further breach of the same provision.
The Agreement may not be altered, amended, or modified except by a written instrument signed by the duly authorized representatives of both parties.
StaffGeek shall maintain commercially reasonable administrative and technical safeguards designed for the protection, confidentiality and integrity of Customer Data.
The parties shall first attempt to amicably resolve all disputes in connection with the Agreement through informal means. Any and all controversies, claims and disputes which may arise between Customer and StaffGeek, at any time including during or after the expiration or termination of the Agreement, which arise or relate directly or indirectly to the Agreement, its interpretation, performance, non-performance, or otherwise, which are not amicably resolved by the parties, shall be settled by one (1) arbitrator in an arbitration proceeding conducted in accordance with the rules of an accredited arbitration association (“AAA”), with the award determined to be appropriate by the arbitrator therein to be final, non-appealable and binding on the parties hereto, and with judgment upon such award as is rendered in any such arbitration proceedings available for entry and enforcement in any court having jurisdiction of the parties hereto.
CUSTOMER HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHTS TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATED TO THE AGREEMENT OR THE SERVICES.
Use of Trademarks; Rights of Self-Promotion
Customer hereby grants to StaffGeek a non-exclusive, non-transferable, non-sublicenseable (except to a subsidiary or affiliate of StaffGeek), royalty-free irrevocable license, without compensation to Customer, to disclose, including without limitation, in advertisements, on its web site, and in other promotional and marketing materials, that Customer is a user of StaffGeek’s services and may display Customer’s name, logo and other trademark(s) in connection with such disclosure, provided that such disclosure is reasonably acceptable to Customer. In the event Customer publishes information regarding the Services it shall acknowledge the support of StaffGeek in all such publications.
The Agreement, including these Terms of Service, the Order Form, and the Policies, constitute the entire agreement between the parties and supersede any and all previous representations, understandings, or agreements between the parties as to the subject matter hereof. There are no third-party beneficiaries to the Agreement. The Agreement may only be amended by an instrument in writing signed by the parties. The Agreement shall be construed without regard to the party that drafted it. Any ambiguity shall not be interpreted against either party and shall, instead, be resolved in accordance with other applicable rules concerning the interpretation of contracts.
These Terms of Service were last updated on 12 April 2022.