Terms of Service
User Agreement Effective Date: May 22, 2020 This User Agreement (this “Agreement”) is a contract between you (“you” or “User”) and TalentNear. (“TalentNear”, “we,” or “us”) and, to the extent expressly stated in this Agreement. You must read, agree to, and accept all of the terms and conditions contained in this Agreement in order to use our website located at www.talentnear.com, all affiliated websites owned and operated by us, our predecessors or successors in interest, or our Affiliates (collectively, the “Site”), all services, applications and tools that are accessible through the Site and all TalentNear mobile applications that link to or reference this Agreement (“Site Services”), whether provided by us or our Affiliates. To the extent permitted by applicable law, TalentNear may amend this Agreement without prior notice to you at any time by posting a revised version on the Site. Any revisions to this Agreement will take effect when posted on the Site unless otherwise stated. Your continued use of the Site or the Site Services after the effective date of a revised version of this Agreement constitutes your acceptance of its terms and agreement to be bound by its terms. This Agreement includes and hereby incorporates by reference the agreements and Site usage polices linked from http://www.talentnear.com/term or elsewhere on the Site, as such agreements and policies may be modified by TalentNear from time to time in our sole discretion (collectively, the “Terms of Service”). In the event of a conflict between this Agreement and the other Terms of Service, this Agreement will control. Capitalized terms are defined throughout this Agreement and in Section 23 (Definitions). YOU UNDERSTAND THAT BY USING THE SITE OR SITE SERVICES, YOU AGREE TO BE BOUND BY THIS AGREEMENT. IF YOU DO NOT ACCEPT THIS AGREEMENT IN ITS ENTIRETY, YOU MUST NOT ACCESS OR USE THE SITE OR THE SITE SERVICES. IF YOU AGREE TO THIS AGREEMENT ON BEHALF OF AN ENTITY, YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO BIND THAT ENTITY TO THIS AGREEMENT. IN THAT EVENT, “YOU” AND “YOUR” WILL REFER AND APPLY TO THAT ENTITY.
- DIGITAL SIGNATURE By registering for an TalentNear account on the Site (an “Account”), you are deemed to have executed this Agreement electronically, effective on the date you register your Account, pursuant to U.S. Electronic Signatures in Global and National Commerce Act (the E-Sign Act) (15 U.S.C. § 7001, et seq.). Your Account registration constitutes an acknowledgement that you are able to electronically receive, download, and print this Agreement.
- CONSENT TO USE ELECTRONIC RECORDS In connection with this Agreement, you may be entitled to receive certain records, such as contracts, notices, and communications, in writing. To facilitate your use of the Site, you give us permission to provide these records to you electronically instead of in paper form.
2.1 Your Consent and Your Right to Withdraw Consent By registering for an Account, you consent to electronically receive and access, via email or the Site, all records and notices for the services provided to you under this Agreement that we would otherwise be required to provide to you in paper form. However, we reserve the right, in our sole discretion, to communicate with you via Postal Service and other third-party mail services using the address under which your account is registered. Your consent to receive records and notices electronically will remain in effect until you withdraw it. You may withdraw your consent to receive further records and notices electronically at any time by contacting Customer Support. If you withdraw your consent to receive such records and notices electronically, we will revoke your access to the Site and the Site Services, and you will no longer be able to use the Site or the Site Services. Any withdrawal of your consent to receive records and notices electronically will be effective only after we have a reasonable period of time to process your request for withdrawal. Please note that your withdrawal of consent to receive records and notices electronically will not apply to records and notices electronically provided by us to you before the withdrawal of your consent becomes effective.
2.2 Keeping Your Email Address Current With Us In order to ensure that we are able to provide records and notices to you electronically, you must notify us of any change in your email address by updating your Account information on the Site or by contacting Customer Support.
2.3 Hardware and Software You Will Need to Use the Site Services for Your Business To access and retain the records and notices we provide to you electronically, you will need: (a) a valid email address; (b) a computer system that operates on a platform like Windows or Mac; (c) a connection to the Internet; (d) Current Versions of the software, browsers, plug-ins, or other computer applications and programs identified on the Site (Users utilizing other browsers may experience compatibility difficulties); (e) a Current Version of a program that accurately reads and displays PDF files, such as Adobe Acrobat Reader version 7 or higher; (f) a computer or device and an operating system capable of supporting all of the above; and (g) a printer to print out and retain records and notices in paper form or electronic storage to retain records and notices in an electronic form. By “Current Version,” we mean a version of the software that is currently being supported by its publisher. We may change these requirements from time to time and will update this Agreement accordingly. You should retain a copy of all of the records and notices we send to you electronically. By accepting and agreeing to this Agreement electronically, you represent that (x) you have read and understand the above consent to receive records and notices electronically; (y) you satisfy the minimum hardware and software requirements specified above; and (z) your consent will remain in effect until you withdraw your consent as specified above.
- TALENTNEAR ACCOUNTS
3.1 Account Eligibility To use certain Site Services, you must register for an Account. TalentNear offers the Site Services for your business purposes, and not for personal, household, or consumer use. Unless you use the Site solely as a team member and who is an employee of a registered agency, you must have, and hereby represent that you have, an independent business (whether it be as a self-employed individual/sole proprietor or as a corporation or other entity). To register for an Account, you must be and hereby represent that you are a legal entity or an individual 18 years or older who can form legally binding contracts. When you register for an Account, you also must agree to the terms of this Agreement. By registering for an Account, you agree to: (a) abide by this Agreement and the processes, procedures, and guidelines described on the Site; (b) be financially responsible for your use of the Site and the purchase and/or delivery of Freelancer Services; and (c) perform your obligations as specified by any Service Contract that you accept, unless such obligations are prohibited by applicable law or this Agreement. TalentNear reserves the right, in our sole discretion, to refuse, suspend, or revoke your access to the Site and Site Services upon discovery that any information you provided on any form or posted on the Site is not true, accurate, or complete, or otherwise violates this Agreement, or for any other reason or no reason in TalentNear’s sole discretion. You represent that you are not: (x) a citizen or resident of a geographic area in which access or use of the Site is prohibited by applicable law, decree, regulation, treaty, or administrative act; .
3.2 Account Registration
You agree to provide true, accurate, and complete information on all registration and other forms you access on the Site or provide to us and to update your information to maintain its truthfulness, accuracy, and completeness. You must not provide false or misleading information about your location. You must not provide false or misleading information about your business or the services your business provides. You must not register for more than one Client Account without express written permission from us . Solely for purposes of the foregoing sentence, “you” means you, any member of your immediate family, and any entity directly or indirectly controlled by you or any member of your immediate family.
3.3 Identity Verification When you register for an Account and from time to time thereafter, your Account will be subject to verification, including, but not limited to, validation against third-party databases or the verification of one or more official government or legal documents that confirm your identity. You authorize TalentNear, directly or through third parties, to make any inquiries necessary to validate your identity and confirm your ownership of your email address or financial accounts, subject to applicable law. Failure to provide us information about you and your business when requested is a violation of this Agreement.
3.4 Email Address and Passwords When you register for an Account, you will be asked to provide an email address and password for the Account. You are entirely responsible for safeguarding and maintaining the confidentiality of your Account username and password. You authorize TalentNear to assume that any person using the Site with your username and password is you or is authorized to act for you. You agree to notify us immediately if you suspect or become aware of any unauthorized use of your account or any unauthorized access to your password or the password of any User of your Account (or any related Agency Account).
3.6 Marketplace Feedback For the benefit of other Users TalentNear encourages you to leave objective balanced feedback about Users with whom you have transacted. You acknowledge and agree that feedback results for you will consist of comments and ratings left by other Users and that TalentNear will make available to other users a composite feedback number based on these individual ratings. TalentNear provides its feedback system as a means through which Users can share their opinions publicly and TalentNear does not monitor or censor these opinions. TalentNear does not investigate any remarks posted by Users for accuracy or reliability unless a User requests that TalentNear do so. You may be held legally responsible for damages suffered by other Users or third parties as a result of your remarks if a court finds that your remarks are legally actionable or defamatory. TalentNear is not legally responsible for any feedback or comments posted or made available on the Site by any Users or third parties, even if that information is defamatory or otherwise legally actionable. In order to protect the integrity of the feedback system and protect Users from abuse, TalentNear reserves the right (but is under no obligation) to remove posted feedback or information that in TalentNear’s sole judgment violates the Terms of Service or negatively affects our community or operations.
- PURPOSE OF THE SITE AND SITE SERVICES The Site is a marketplace where Clients and Freelancers can identify each other and buy and sell Freelancer Services online. Subject to the terms of this Agreement, TalentNear provides the Site Services to Clients and Freelancers, including hosting and maintaining the Site. If a Client and Freelancer agree on terms of the Freelancer Services, a Service Contract is formed directly between such Client and Freelancer, and TalentNear will not be a party of such a contract.
4.1 Service Fee Talentnear.com at its sole discretion reserves the right to charge a fee for the continued use of the site.
4.2 Introduction of Clients TalentNear does not introduce Clients to Freelancers and does not help Freelancers secure Engagements. TalentNear merely makes the Site Services available to enable Freelancers to do so themselves.
4.3 Non-payment If Client fails to pay the Freelancer Fees or any other amounts due under this Agreement TalentNear will not be held reliable and reserves the right to either interfere in the matter or remain just an observer.
4.4 No Return of Funds If and when TalentNear starts to charge for certain services rendered on this site, no refunds of such fees will be made to any user under any circumstances.
4.5 Formal Invoices and Taxes Talentnear.com will not be responsible for calculating taxes due as a result of income generated from usage of this site. The user agrees to legally declar all such revenues to the proper government authorities for the purpose of taxation.
4.6 Payment Methods In order to use certain Site Services, Client must provide account information for at least one valid Payment Method. The Site makes the following methods of payment available: credit cards, debit cards, and PayPal. Client hereby authorizes TalentNear and its Affiliates to run credit card authorizations on all credit cards provided by Client, to store credit card and banking details as Client’s method of payment for Services, and to charge Client’s credit card (or any other form of payment authorized by TalentNear or mutually agreed to between Client and TalentNear). Credit cards and PayPal accounts in most countries will be charged by EEC.
By providing Payment Method information through the Site, Client represents, warrants, and covenants that: (a) Client is legally authorized to provide such information to us; (b) Client is legally authorized to perform payments using the Payment Method(s); and (c) such action does not violate the terms and conditions applicable to Client’s use of such Payment Method(s) or applicable law. When Client authorizes a payment using a Payment Method via the Site, Client represents, warrants, and covenants that there are sufficient funds or credit available to complete the payment using the designated Payment Method. To the extent that any amounts owed under this Agreement cannot be collected from Client’s Payment Method(s), Client is solely responsible for paying such amounts by other means. We reserve the right to seek reimbursement from you, and you will reimburse us, if we suspect fraud or criminal activity associated with your payment, withdrawal, or Engagement, if we discover erroneous or duplicate transactions, or if we have supplied our services in accordance with this Agreement yet we receive any chargeback from the credit card company, bank, PayPal or other payment method as used by you, or as used by your Client if you are a Freelancer. You agree that we have the right to obtain such reimbursement by instructing EEC to (and EEC will have the right to) charge an applicable Escrow Account, and any other accounts you hold with us, offsetting any amounts determined to be owing, deducting amounts from future payments or withdrawals, charging your credit card, or obtaining reimbursement from you by any other lawful means. Failure to pay for reimbursements of chargebacks is cause for termination of the applicable Escrow Account.
4.7 Foreign Currency Conversion the Site and the Site Services operate in several countries currency converted by the USD rate. If Client’s Payment Method is denominated in a currency other than USD and requires currency conversion to make payments. These foreign currency conversion rates adjust regularly based on market conditions. Please note that the wholesale currency conversion rates at which we obtain foreign currency will usually be different than the foreign currency conversion rates offered on the Site. Client, at its sole discretion and risk, may authorize the charge of its Payment Method in a supported foreign currency and the conversion of the payment to USD at the foreign currency conversion rate displayed on the Site.
4.8 Services Freelancer will perform the Freelancer Services in a professional and workmanlike manner and will timely deliver any agreed upon Work Product. The manner and means of performing the Freelancer Services will be determined and controlled by Freelancer. 5 Dispute Resolution All Disputes will be resolved between the parties involved and TalentNear may not be involved.
5.1 Termination of a Service Contract The conditions of termination of agreement that exists between the Client and the freelancer will be set by both parties outside the TalentNear platform.
5.2 Worker Classification Client assumes all liability for determining whether Freelancers are independent contractors or employees and engaging them accordingly; TalentNear disclaims any liability for such determination or the related Engagement. This Agreement does not create a partnership or agency relationship between Client and Freelancer. Freelancer does not have authority to enter into written or oral (whether implied or express) contracts on behalf of TalentNear or Client.
5.3 . Relationship with TalentNear
TalentNear is not a party to the dealings between Client and Freelancer, including posts, proposals, screening selection, contracting, and performance of Freelancer Services. TalentNear does not introduce Freelancers to Clients or help Freelancers find Engagements. TalentNear merely makes the Site Services available to enable Freelancers to identify and determine the suitability of Clients for themselves and to enable Clients to identify and determine the suitability of Freelancers for themselves. TalentNear does not, in any way, supervise, direct, or control Freelancer or Freelancer’s work. TalentNear does not set Freelancer’s work hours, work schedules, or location of work, nor is TalentNear involved in determining if the Freelancer Fees will be set at an hourly or fixed rate for a Service Contract. TalentNear will not provide Freelancer with training or any equipment, labor, or materials needed for a particular Service Contract. TalentNear does not provide the premises at which the Freelancer will perform the work. TalentNear makes no representations about, and does not guarantee the quality, safety, or legality of, the Freelancer Services; the truth or accuracy of Freelancer’s listings on the Site; the qualifications, background, or identities of Users; the ability of Freelancers to deliver the Freelancer Services; the ability of Clients to pay for the Freelancer Services; or that a Client or Freelancer can or will actually complete a transaction. TalentNear does not deduct any amount for withholding, unemployment, Social Security, or other taxes for Client or Freelancer; each of which is solely responsible for all tax returns and payments required to be filed with or made to any federal, state, or local tax authority in any nation with respect to Freelancer’s performance, and Client’s acceptance, of Freelancer Services. TalentNear is not required to and may not verify any feedback or information given to us by Freelancers or Clients, nor does TalentNear perform background checks on Freelancers or Clients. You hereby acknowledge and agree that TalentNear may provide information on the Site about a Freelancer or Client, such as feedback, a strength or risk score, geographical location, or verification of identity or credentials. However, such information is based solely on data that Freelancer or Client voluntarily submits to TalentNear and does not constitute and will not be construed as an introduction, endorsement, or recommendation by TalentNear; TalentNear provides such information solely for the convenience of Users.
- Entire Agreement The terms and conditions set forth in this agreement and any additional or different terms expressly agreed by Client and Freelancer will constitute the entire agreement and understanding of Client and Freelancer with respect to each Service Contract and will cancel and supersede any other prior or contemporaneous discussions, agreements, representations, warranties, and/or other communications between them.
6.1. TalentNear’s Role
6.2 Service Contracts
You expressly acknowledge, agree, and understand that: (a) the Site is merely a venue where Users may act as Clients and/or Freelancers; (b) TalentNear is not a party to any Service Contracts between Clients and Freelancers; (c) you are not an employee of TalentNear and that TalentNear does not, in any way, supervise, direct, or control the Freelancer or Freelancer Services; (d) TalentNear will not have any liability or obligations under or related to Service Contracts or any acts or omissions by you or other Users; (e) TalentNear has no control over Freelancers or the Freelancer Services offered or rendered by Freelancers; and (f) TalentNear makes no representations as to the reliability, capability, or qualifications of any Freelancer or the quality, security, or legality of any Freelancer Services, and TalentNear disclaims any and all liability relating thereto.
- LICENSES AND THIRD-PARTY CONTENT
7.1 Site License and Intellectual Property Rights Subject to and conditioned on compliance with this Agreement, TalentNear grants you a limited license to access and, if you have created an Account, to use the Site for the purpose using the Site Services. You must not access (or attempt to access) the Site or Site Services by any means other than the interface provided, and you will not use information from the Site or Site Services for any purposes other than the purposes for which it was made available. You agree not to use the Site or Site Services for offering any goods or services other than Freelancer Services as permitted by this Agreement. You must not sell, reproduce, distribute, modify, display, publicly perform, prepare derivative works based on, repost, or otherwise use any content of the Site or Site Services in any way for any public or commercial purpose without TalentNear’s prior written consent. You must not use any content of the Site or Site Services on any other website or in a networked computer environment for any purpose except your own viewing. You must not frame or link to the Site or Site Services except as permitted in writing by TalentNear. You must not attempt to reverse engineer, modify, adapt, translate, prepare derivative works from, decompile, attempt to interfere with the operation of, or otherwise attempt to derive source code from any part of the Site or Site Services unless expressly permitted by applicable law. You will not access Site Services in order to build a similar service or application, or publish any performance, or any benchmark test or analysis relating to the Site Services. TalentNear and our licensors retain all right, title, and interest in and to all Intellectual Property Rights related in and to the Site and the Site Services. The TalentNear logos and names are trademarks of TalentNear and may be registered in certain jurisdictions. All other product names, company names, marks, logos, and symbols on the Site or Site Services may be the trademarks of their respective owners. Except as expressly stated in this Agreement, nothing in this Agreement confers any license under any of TalentNear’s or any third party’s Intellectual Property Rights, whether by estoppel, implication, or otherwise.
7.2 User Content License
7.3 Unauthorized Access and Use; Site Interference; Malicious Software
The Site contains robot exclusion headers. You agree that you will not use any robot, spider, scraper, or other automated means to access the Site for any purpose without our express written permission. You will not access the audiovisual content available on the Site for any purpose or in any manner other than streaming. You agree that you will not: (a) take any action that imposes or we believe may impose (in our sole discretion) an unreasonable or disproportionately large load on the Site’s infrastructure; (b) copy, reproduce, modify, create derivative works from, distribute, or publicly display any content (other than content you have submitted to the Site) from the Site, any software code that is part of the Site, or any services that are offered on the Site without the prior express written permission of TalentNear and the appropriate third party, as applicable; (c) interfere or attempt to interfere with the proper operation of the Site or any activities conducted on the Site; (d) bypass any measures we may use to prevent or restrict access to the Site or any subparts of the Site, including, without limitation, features that prevent or restrict use or copying of any content or enforce limitations on use of the Site or the content therein; (e) transmit spam, chain letters, or other unsolicited communications; (f) attempt to interfere with or compromise the system integrity or security or decipher any transmissions to or from the servers running the Site; (g) collect or harvest any personally identifiable information, including Account names, from the Site; (h) access any content on the Site through any technology or means other than those provided or authorized by the Site; or (i) directly or indirectly, advertise or promote another website, product, or service or solicit other Users for other websites, products, or services. Additionally, you agree that you will not post or introduce any invalid data, virus, worm, or other harmful or malicious software code, agent, hidden procedure, routine, or mechanism through or to the Site or the Site software that is designed to cause to cease functioning, disrupt, disable, harm, or otherwise impair in any manner, including aesthetic disruptions or distortions, the operation of (or to allow you or any other person to access or damage or corrupt data, storage media, programs, equipment, or communications or otherwise interfere with operations of or on) the Site or any other software, firmware, hardware, computer system, or network of TalentNear or any third party.
7.4 Third-Party Verification
The Site makes available various services provided by third parties to verify a User’s credentials and provide other information. Any information or content expressed or made available by these third parties or any other Users is that of the respective author(s) or distributor(s) and not of TalentNear. TalentNear neither endorses nor is responsible for the accuracy or reliability of any opinion, advice, information, or statement made on the Site by anyone other than TalentNear’s authorized employees acting in their official capacities.
7.5 Links and Applications
The Site may contain links to third-party websites. The Site may also contain applications that allow you to access third-party websites via the Site. Such third-party websites are owned and operated by the third parties and/or their licensors. Your access and use of third-party websites, including online communication services, such as chat, email, and calls will be governed by the terms and policies of the applicable third-party websites. You acknowledge and agree that TalentNear is not responsible or liable for: (a) the availability or accuracy of third-party websites; or (b) the content, advertising, or products on or available from third-party websites. You are responsible for deciding if you want to access third-party websites by clicking on a link or installing an application. The inclusion of any link or application on the Site does not imply that we endorse the linked site or application. You use the links and third-party websites at your own risk and agree that your use of an application or third-party website via the Site is on an “as is” and “as available” basis without any warranty for any purpose.
7.6 Mobile and Other Devices
When using our mobile applications, please be aware that your carrier’s normal rates and fees, such as text messaging and data charges, will still apply. Our mobile applications may not contain the same functionality available on the Site. We may from time to time in our sole discretion develop and provide Site Services updates, 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. You agree that we do not have any obligation to provide any Updates or to continue to provide or enable any particular features or functionality. You will promptly download and install all Updates and acknowledge and agree that Site Services or portions thereof may not work properly should you fail to do so. You further agree that all Updates will be subject to the terms of this Agreement, unless otherwise provided in terms associated with such Update. TalentNear reserves the right, at any time, to modify, suspend, or discontinue Site Services or any part thereof without notice. You agree TalentNear will not be liable to you or any third party for any modification, suspension, or discontinuance of Site Services or any part thereof.
- CONFIDENTIAL INFORMATION
To the extent a Client or Freelancer provides Confidential Information to the other, the recipient will protect the secrecy of the discloser’s Confidential Information with the same degree of care as it uses to protect its own Confidential Information, but in no event with less than due care, and will: (a) not disclose or permit others to disclose another’s Confidential Information to anyone without first obtaining the express written consent of the owner of the Confidential Information; (b) not use or permit the use of another’s Confidential Information, except as necessary for the performance of Freelancer Services for the relevant Service Contract (including, without limitation, the storage or transmission of Confidential Information on or through the Site for use by Freelancer); and (c) limit access to another’s Confidential Information to its personnel who need to know such information for the performance of Freelancer Services for the relevant Service Contract.
If and when Confidential Information is no longer needed for the performance of the Freelancer Services for a Services Contract or at Client’s or Freelancer’s written request (which may be made at any time at Client’s or Freelancer’s sole discretion), the party that received Confidential Information, will, at its expense, promptly destroy or return the disclosing party’s Confidential Information and any copies thereof contained in or on its premises, systems, or any other equipment otherwise under its control. The party that received Confidential Information agrees to provide written certification to the party disclosing the Confidential Information of compliance with this subsection within ten days after the receipt of disclosing party’s written request for such certification.
Without limiting Section 13.1 (Confidentiality), Client, Freelancer, and TalentNear will not publish, or cause to be published, any other party’s Confidential Information or Work Product, except as may be necessary for performance of Freelancer Services for a Services Contract.
- WARRANTY DISCLAIMER
YOU AGREE NOT TO RELY ON THE SITE, THE SITE SERVICES, ANY INFORMATION ON THE SITE OR THE CONTINUATION OF THE SITE. THE SITE AND THE SITE SERVICES ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS. TALENTNEAR MAKES NO EXPRESS REPRESENTATIONS OR WARRANTIES WITH REGARD TO THE SITE, THE SITE SERVICES, WORK PRODUCT, OR ANY ACTIVITIES OR ITEMS RELATED TO THIS AGREEMENT. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, TALENTNEAR DISCLAIMS ALL EXPRESS AND IMPLIED CONDITIONS, REPRESENTATIONS, AND WARRANTIES INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF MERCHANTABILITY, ACCURACY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. SOME JURISDICTIONS MAY NOT ALLOW FOR ALL OF THE FOREGOING LIMITATIONS ON WARRANTIES, SO TO THAT EXTENT, SOME OR ALL OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. SECTION 20 (TERM AND TERMINATION) STATES USER’S SOLE AND EXCLUSIVE REMEDY AGAINST TALENTNEAR WITH RESPECT TO ANY DEFECTS, NON-CONFORMANCES, OR DISSATISFACTION.
- LIMITATION OF LIABILITY
TalentNear is not liable, and you agree not to hold us responsible, for any damages or losses arising out of or in connection with this Agreement, including, but not limited to:
- your use of or your inability to use our Site or Site Services;
- delays or disruptions in our Site or Site Services;
- viruses or other malicious software obtained by accessing, or linking to, our Site or Site Services;
- glitches, bugs, errors, or inaccuracies of any kind in our Site or Site Services;
- damage to your hardware device from the use of the Site or Site Services;
- the content, actions, or inactions of third parties’ use of the Site or Site Services;
- a suspension or other action taken with respect to your account;
- your reliance on the quality, accuracy, or reliability of Job postings, freelancer profiles, ratings, recommendations, and feedback (including their content, order, and display), or metrics found on, used on, or made available through the Site; and
- your need to modify practices, content, or behavior or your loss of or inability to do business, as a result of changes to the Terms of Service.
ADDITIONALLY, IN NO EVENT WILL TALENTNEAR, OUR AFFILIATES, OUR LICENSORS, OR OUR THIRD-PARTY SERVICE PROVIDERS BE LIABLE FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, OR INDIRECT COSTS OR DAMAGES, INCLUDING, BUT NOT LIMITED TO, LITIGATION COSTS, INSTALLATION AND REMOVAL COSTS, OR LOSS OF DATA, PRODUCTION, PROFIT, OR BUSINESS OPPORTUNITIES. THE LIABILITY OF TALENTNEAR, OUR AFFILIATES, OUR LICENSORS, AND OUR THIRD-PARTY SERVICE PROVIDERS TO ANY USER FOR ANY CLAIM ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT WILL NOT EXCEED THE LESSER OF: (A) $2,500; OR (B) ANY FEES RETAINED BY TALENTNEAR WITH RESPECT TO SERVICE CONTRACTS ON WHICH USER WAS INVOLVED AS CLIENT OR FREELANCER DURING THE SIX-MONTH PERIOD PRECEDING THE DATE OF THE CLAIM. THESE LIMITATIONS WILL APPLY TO ANY LIABILITY, ARISING FROM ANY CAUSE OF ACTION WHATSOEVER ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH COSTS OR DAMAGES AND EVEN IF THE LIMITED REMEDIES PROVIDED HEREIN FAIL OF THEIR ESSENTIAL PURPOSE. SOME STATES AND JURISDICTIONS DO NOT ALLOW FOR ALL OF THE FOREGOING EXCLUSIONS AND LIMITATIONS, SO TO THAT EXTENT, SOME OR ALL OF THESE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO YOU.
In addition to the recognition that TalentNear is not a party to any contract between Client and Freelancer, you hereby release TalentNear, our Affiliates, and our respective officers, directors, agents, subsidiaries, joint ventures, and employees from claims, demands, and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with any dispute you have with another User, whether it be at law or in equity. This release includes, for example and without limitation, any disputes regarding the performance, functions, and quality of the Freelancer Services provided to Client by a Freelancer and requests for refunds based upon disputes. Procedures regarding the handling of certain disputes between Users are discussed in subsection 8.4 (Dispute Resolution). TO THE EXTENT APPLICABLE, YOU HEREBY WAIVE THE PROTECTIONS OF ANY LAW IN ANY APPLICABLE JURISDICTION WHICH SAYS: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.”) This release will not apply to a claim that TalentNear failed to meet our obligations under this Agreement.
You will indemnify, defend, and hold harmless TalentNear, our Affiliates, and our respective directors, officers, employees, representatives, and agents (each an “Indemnified Party”) from any and all claims, damages, liabilities, costs, losses, and expenses (including, but not limited to, reasonable attorneys’ fees and all related costs and expenses) arising from or relating to any claim, suit, proceeding, demand, or action brought by you or a third party against an Indemnified Party relating to: (a) use of the Site and the Site Services by you or your agents, including any payment obligations incurred through use of the Site Services; (b) any Service Contract entered into by you or your agents, including, but not limited to, the classification of a Freelancer as an independent contractor; the classification of TalentNear as an employer or joint employer of Freelancer; any employment-related claims, such as those relating to employment termination, employment discrimination, harassment, or retaliation; and any claims for unpaid wages or other compensation, overtime pay, sick leave, holiday or vacation pay, retirement benefits, worker’s compensation benefits, unemployment benefits, or any other employee benefits; (c) failure to comply with this Agreement by you or your agents; (d) failure to comply with applicable law by you or your agents; (e) negligence, willful misconduct, or fraud by you or your agents; and (f) defamation, libel, violation of privacy rights, unfair competition, or infringement of Intellectual Property Rights or allegations thereof to the extent caused by you or your agents.
- AGREEMENT TERM AND TERMINATION
This Agreement will become effective upon your first visit to the Site and will remain in effect for the duration of your use of the Site. Unless both you and TalentNear agree otherwise in writing, either of us may terminate this Agreement in our sole discretion, at any time, without explanation, upon written notice to the other. You may provide written notice to legalnotices@Talentnear.com. If you are using TalentNear Payroll, you must legally terminate your relationship with Client or Freelancer, as applicable, before terminating this Agreement. In the event you properly terminate this Agreement, your right to use the Site is automatically revoked, and your Account will be closed; however, (i) if you have any open Engagements when you terminate this Agreement, you will continue to be bound by this Agreement until all such Engagements have closed on the Site; (ii) TalentNear will continue to perform those Site Services necessary to complete any open Engagement or related transaction between you and another User; and (iii) you will continue to be obligated to pay any amounts accrued but unpaid as of the date of termination or as of the completion of any open Engagements, whichever is later, to TalentNear for any Site Services and to any Freelancers for any Freelancer Services. Without limiting any other provisions of this Agreement, the termination of this Agreement for any reason will not release you, any User with whom you have entered into a Service Contract, or TalentNear from any obligations incurred prior to termination of this Agreement or that thereafter may accrue in respect of any act or omission prior to such termination. Those portions of the Terms of Service necessary to implement the foregoing survive termination of this Agreement for any reason. Without limiting TalentNear’s other remedies, we may temporarily suspend, indefinitely suspend, or permanently revoke your access to the Site and refuse to provide any or all Site Services to you if: (a) you breach the letter or spirit of any terms and conditions of this Agreement or other parts of the Terms of Service; (b) we suspect or become aware that you have provided false or misleading information to us; or (c) we believe, in our sole discretion, that your actions may cause legal liability for you, our Users, or TalentNear or our Affiliates; may be contrary to the interests of the Site or the User community; or may involve illicit activity. Once your Account is suspended or closed, you must not continue to use the Site under the same Account or a different Account or reregister under a new Account without TalentNear’s prior written consent. Without limiting TalentNear’s other remedies, if you engage in actions or activities that circumvent the Site or otherwise reduce fees owed TalentNear or our Affiliates under this Agreement, you must pay TalentNear for all fees owed to TalentNear and our Affiliates and reimburse TalentNear for all losses and costs (including any and all time of TalentNear’s employees) and reasonable expenses (including attorneys’ fees) related to investigating such breach and collecting such fees. In addition, violations of this Agreement may be prosecuted to the fullest extent of the law and may result in additional penalties and sanctions. When your Account is closed for any reason, you will no longer have access to data, messages, files, and other material you keep on the Site. If practicable, TalentNear will retain this information along with all your previous posts and proposals for a period of one year from the date of termination to give you ample time to institute an appeal of our decision through the process described in the subsection titled “Disputes with TalentNear.” If you appeal our decision through that process within one year, TalentNear will retain your information until such dispute is resolved. If you fail to appeal our decision within one year, TalentNear may delete your information including data, messages, files, and other material you keep on the Site.
12.1 Enforcement of Agreement
TalentNear has the right, but not the obligation, to suspend or revoke your access to the Site and Site Services if we believe that you have violated or acted inconsistently with the letter or spirit of this Agreement or violated our rights or those of another party. Without limiting TalentNear’s other remedies, we may suspend or close your Account, use self-help in connection with our rights to reclaim funds, and refuse to provide any further access to the Site or the Services to you if (a) you breach any terms and conditions of this Agreement or other Terms of Service; (b) we are unable to verify or authenticate any information you provide to us; or (c) we believe that your actions may cause legal liability for you, other Users, or TalentNear. Once we suspend or close your Account, you may not access any parts of the Site, including data, messages, files, and other material saved on the Site and you may not continue to use the Site under a different Account or reregister under a new Account. If you attempt to use the Site under a different Account, we reserve the right to reclaim available funds in that Account and/or use an available Payment Method to pay for any amounts owed by you to the extent permitted by applicable law. You understand that any closure of your Account may involve deletion of any content stored in your Account for which TalentNear will have no liability whatsoever.
12.2 Consequences of Agreement Termination
Termination of this Agreement and/or closing of your Account will not relieve Client of the requirement to pay for Freelancer Services performed prior to the effective date of the termination or thereafter for any Service Contracts executed before termination of this Agreement, which fees and expenses, together with any applicable taxes, Client hereby authorizes TalentNear to charge to its Payment Method pursuant to Section 6 (Payment Terms). Subject to the applicable Dispute Resolution Policies, TalentNear will pay Freelancer, in accordance with the provisions of Section 6 (Payment Terms) for all time recorded in the Time Logs incurred prior to the effective date of the termination or thereafter for any Service Contracts executed before termination of this Agreement. Except as otherwise required by applicable law, we will notify you if we close your Account, unless we believe, in our sole judgment, that giving notice may cause damage. You acknowledge and agree that the value, reputation, and goodwill of the Site depend on transparency of User’s Account status to all Users, including both yourself and other Users who have entered into Service Contracts with you. You therefore agree as follows: IF TALENTNEAR DECIDES TO SUSPEND OR CLOSE YOUR ACCOUNT, TALENTNEAR HAS THE RIGHT BUT NOT THE OBLIGATION TO: (A) NOTIFY OTHER USERS THAT HAVE ENTERED INTO SERVICE CONTRACTS WITH YOU TO INFORM THEM OF YOUR SUSPENDED OR CLOSED ACCOUNT STATUS, AND (B) PROVIDE THOSE USERS WITH A SUMMARY OF THE REASONS FOR YOUR ACCOUNT SUSPENSION OR CLOSURE.
After this Agreement terminates, the terms of this Agreement that expressly or by their nature contemplate performance after the Agreement terminates or expires will survive and continue in full force and effect. For example, the provisions protecting Confidential Information, requiring arbitration,permitting audits, protecting intellectual property, requiring non-circumvention, indemnification, payment of fees, reimbursement and setting forth limitations of liability each, by their nature, contemplate performance or observance after this Agreement terminates.
- CANCELLATIONS, REFUNDS, AND DISPUTES
13.1 Dispute Process
If a dispute arises between you and TalentNear or our Affiliates, our goal is to resolve the dispute quickly and cost-effectively. Accordingly, you, TalentNear, and our Affiliates agree to resolve any claim, dispute, or controversy that arises out of or relates to this Agreement or the Site Services (each, a “Claim”) in accordance with this Section.
13.2 Choice of Law and Forum for Disputes
This Agreement and any Claim, including without limitation any dispute relating to a Service Contract, will be governed by and construed in accordance with the laws of the country having jurisdiction over us, without regard to its conflict of law provisions and excluding the United Nations Convention on Contracts for the International Sale of Goods (CISG); provided, however, that any Claims made by any Freelancer located within the country having jurisdiction over us will be governed by the law of the state in which such Freelancer resides. You agree that any Claim must be resolved as described in the subsections below titled “Informal Dispute Resolution” and “Mandatory Binding Arbitration and Class Action/Jury Trial Waiver.”
13.3 Informal Dispute Resolution
Before serving a demand for arbitration of a Claim, or otherwise seeking relief, you agree to first notify TalentNear of the Claim and seek informal resolution of the Claim. The Notice must include your name, pertinent account information, a brief description of the Claim, and your contact information, so that we may evaluate the Claim and attempt to informally resolve the Claim. TalentNear will have 60 days from the date of its receipt of the Notice to informally resolve the Claim, which, if successful, will avoid the need for further action. However, TalentNear reserves the right to not get involved in the dispute resolution.
14.1 Entire Agreement
This Agreement, together with the other Terms of Service and any other legal notices and agreements published by TalentNear on the Site, sets forth the entire agreement and understanding between you and TalentNear relating to the subject matter hereof and thereof and cancels and supersedes any prior or contemporaneous discussions, agreements, representations, warranties, and other communications between you and us, written or oral, to the extent they relate in any way to the subject matter hereof and thereof. The section headings in this Agreement are included for ease of reference only and have no binding effect. Even though TalentNear drafted this Agreement, you represent that you had ample time to review and decide whether to agree to the terms of this Agreement. If an ambiguity or question of intent or interpretation of this Agreement arises, no presumption or burden of proof will arise favoring or disfavoring you or TalentNear because of the authorship of any provision of this Agreement.
14.2 Side Agreements
Notwithstanding subsection 19.1 (Entire Agreement), Clients and Freelancers may enter into any supplemental or other written agreements that they deem appropriate (e.g., confidentiality agreements, work for hire agreements, Engagement of rights, etc.). The terms and conditions of this Agreement, however, will govern and supersede any term or condition in a side agreement that purports to expand TalentNear’s obligations or restrict TalentNear’s rights under this Agreement.
User will not violate any applicable foreign, federal, state, or local laws or third-party rights on or related to the Site. Without limiting the generality of the foregoing, User agrees to comply with all applicable laws and regulations, including, but not limited to, import and export control laws and third parties’ Intellectual Property Rights.
No modification or amendment to this Agreement will be binding upon TalentNear unless in a written instrument signed by a duly authorized representative of TalentNear. For the purposes of this subsection, a written instrument will expressly exclude electronic communications, such as email and electronic notices, but will include facsimiles.
14.5 No Waiver
The failure or delay of either party to exercise or enforce any right or claim does not constitute a waiver of such right or claim and will in no way affect that party’s right to later enforce or exercise it, unless such party issues an express written waiver, signed by a duly authorized representative of such party.
User may not assign this Agreement, or any of its rights or obligations hereunder, without TalentNear’s prior written consent in the form of a written instrument signed by a duly authorized representative of TalentNear (and, for the purposes of this subsection, a written instrument will expressly exclude electronic communications such as email and electronic notices, but will include facsimiles). TalentNear may freely assign this Agreement without User’s consent. Any attempted assignment or transfer in violation of this subsection will be null and void. Subject to the foregoing restrictions, this Agreement will inure to the benefit of the successors and permitted assigns of the parties.
If and to the extent any provision of this Agreement is held illegal, invalid, or unenforceable in whole or in part under applicable law, such provision or such portion thereof will be ineffective as to the jurisdiction in which it is illegal, invalid, or unenforceable to the extent of its illegality, invalidity, or unenforceability and will be deemed modified to the extent necessary to conform to applicable law so as to give the maximum effect to the intent of the parties. The illegality, invalidity, or unenforceability of such provision in that jurisdiction will not in any way affect the legality, validity, or enforceability of such provision in any other jurisdiction or of any other provision in any jurisdiction.
14.8 Force Majeure
The parties to this Agreement will not be responsible for the failure to perform or any delay in performance of any obligation hereunder due to labor disturbances, accidents, fires, floods, telecommunications or Internet failures, strikes, wars, riots, rebellions, blockades, acts of government, governmental requirements and regulations or restrictions imposed by law or any other similar conditions beyond the reasonable control of such party. The time for performance of such party will be extended by the period of such delay. Irrespective of any extension of time, if an event of Force Majeure occurs and its effect continues for a period of 60 days, either the party may give to the other a 30-day notice of termination. If, at the end of the 30 day period, the effect of the Force Majeure continues, the Agreement will terminate.
14.9 Prevailing Language and Location
The English language version of this Agreement will be controlling in all respects and will prevail in case of any inconsistencies with translated versions, if any. The Site is controlled and operated from our facilities in the United States. TalentNear makes no representations that the Site is appropriate or available for use in other locations. Those who access or use the Site from other jurisdictions do so at their own volition and are entirely responsible for compliance with all applicable foreign, United States, state, and local laws and regulations, including, but not limited to, export and import regulations, including the Export Administration Regulations maintained by the United States Department of Commerce and the sanctions programs maintained by the Department of the Treasury Office of Foreign Assets Control. You must not directly or indirectly sell, export, re-export, transfer, divert, or otherwise dispose of any software or service to any end user without obtaining any and all required authorizations from the appropriate government authorities. You also warrant that you are not prohibited from receiving U.S. origin products, including services or software. You may not use or access the Site if you are: (a) a resident of a geographic area embargoed by the United States; (b) subject to United States economic sanctions that prohibit your use or access to the Site; or (c) a foreign person or entity blocked or denied by the United States government. Unless otherwise explicitly stated, all materials found on the Site are solely directed to individuals, companies, or other entities located in the United States.
14.10 Communications from you to TalentNear
All notices to TalentNear or our Affiliates intended to have a legal effect must be in writing and delivered either (a) in person; (b) by a means evidenced by a delivery receipt, to one of our country representative address; or (c) in writing via email to email@example.com. All such notices are deemed effective upon documented receipt by TalentNear. TalentNear does not accept service of any legal process by email or mail; all such service should occur by hand delivery on TalentNear or its registered agent for service of process.
“Affiliate” means any entity that, directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with TalentNear. “Client” means any authorized User utilizing the Site to seek and/or obtain Freelancer Services from another User. From time to time, TalentNear may act as a Client, and the terms and conditions of this Agreement applicable to Clients will apply to TalentNear when TalentNear acts in this way. “Client Deliverables” means requests, intellectual property, and any other information or materials that a Freelancer receives from a Client for a particular Service Contract. “Confidential Information” means Client Deliverables, Freelancer Deliverables, Work Product, and any other information provided to, or created by, a User for a Service Contract, regardless of whether in tangible, electronic, verbal, graphic, visual, or other form. Confidential Information does not include material or information that: (a) is generally known by third parties as a result of no act or omission of Freelancer or Client; (b) subsequent to disclosure hereunder, was lawfully received without restriction on disclosure from a third party having the right to disseminate the information; (c) was already known by User prior to receiving it from the other party and was not received from a third party in breach of that third party’s obligations of confidentiality; or (d) was independently developed by User without use of another person’s Confidential Information. “Fixed Price Contract” means a Service Contract for which Client is charged a fixed fee agreed between a Client and a Freelancer, prior to the commencement of a Service Contract, for the completion of all Freelancer Services contracted by Client for such Service Contract. “Engagement” means an engagement for Freelancer Services that a Freelancer provides to a Client under a Service Contract on the Site. “Freelancer” means any authorized User utilizing the Site to advertise and provide Services to Clients. A Freelancer User is also a customer of TalentNear with respect to use of the Site and the limited Site services. “Freelancer Deliverables” means requests, intellectual property, and any other information or materials that a Client receives from a Freelancer for a particular Service Contract. “Freelancer Fees” means: (a) for an Hourly Rate Contract, an amount equal to the number of hours recorded by Freelancer in the Time Logs, multiplied by the Hourly Rate set by the Freelancer; (b) for a Fixed Price Contract, the fixed fee agreed between a Client and a Freelancer; and (c) any bonuses or other payments made by a Client for a Service Contract. “Freelancer Services” means all services performed for or delivered to Clients by Freelancers. “Hourly Rate Contract” means a Service Contract for which Client is charged based on the hourly rate set by the Freelancer. “Intellectual Property Rights” means all patent rights, copyright rights, mask work rights, moral rights, rights of publicity, trademark, trade dress and service mark rights, goodwill, trade secret rights and other intellectual property rights as may now exist or hereafter come into existence, and all applications therefore and registrations, renewals and extensions thereof, under the laws of any state, country, territory or other jurisdiction. “Job” means the services that a Freelancer provides to a Client under a Service Contract on the Site. “TalentNear Team Software” means the online platform accessed using TalentNear’s downloaded team software that enables time tracking and invoicing, chat, and screenshot sharing with other Users. “Payment Method” means a valid credit card issued by a bank acceptable to TalentNear, a bank account linked to your Account, a PayPal account, or such other method of payment as TalentNear may accept from time to time in our sole discretion. “Service Contract” means the contractual provisions between a Client and a Freelancer governing the Freelancer Services to be performed by a Freelancer for Client for an Engagement. “Site Services” means all services that are accessible through the Site. “Time Logs” means the hours recorded for a stated period by a Freelancer for the Freelancer Services performed for a Client under a Service Contract. “Work Product” means any tangible or intangible results or deliverables that Freelancer agrees to create for, or actually delivers to, Client as a result of performing the Freelancer Services on a particular Service Contract, including, but not limited to, configurations, computer programs, or other information, or customized hardware, and any intellectual property developed in connection therewith. “User Content” means any data, feedback, content, text, video, music, or other information that you post to any part of the Site.
- CONTACTING US
If you have questions or need assistance, please contact Customer Support at firstname.lastname@example.org