CROSSCIRCLES INC. Terms of Service
Welcome to TalentSeer (a.k.a. “we” or “us” or “the Company”). Any user of TalentSeer is hereinafter referred to as “you” or “user”.
We are excited to have you as a user and member of the community. The following terms and conditions (collectively, these “Terms of Service”) apply to your use of www.talentseer.com (the “Site”) including any content, functionality, services offered, widgets, data, software, and other tools or services offered on or via the Site (the “Service”).
1. ACCEPTANCE OF THE TERMS OF SERVICE
The TalentSeer Services are designed for three types of users, and certain additional terms ("Additional Terms") will separately apply to each type of user, which additional terms are incorporated herein by reference and take precedence over these Terms if there is any conflict. These include (i) an "Employer", who posts available Jobs on TalentSeer seeking candidates for employment (each, a "Job"); (ii) a "Referrer", who recommends and puts forward candidates to fill the Jobs; and (iii) a "Candidate", who is a prospective employee put forward by Referrers to fill a Job and be hired by Employers. Employers, Referrers, and Candidates may all be referred to as "Users." All Users are required to agree to the Terms and the Additional Terms applicable to them.
2. CHANGES TO THE AGREEMENT
TalentSeer reserves the right to update, change, replace, amend or modify these Terms from time to time, at our discretion and without notice. The most recent modification date will be reflected at the end of the respective Terms on the Website. You are solely responsible to check for updates of the Terms on the Website. If we, in our sole discretion, deem the proposed changes to be material, we will notify you about such changes by sending a message to your registered TalentSeer account and/or an email to the most current email address registered to your account. Changes to the Agreement will take effect on the date specified in the said notice, but will not affect any Job existing prior to the date of such notice. Your continued use of the Service following the effective date of updates to the Terms will constitute your acceptance of the revised Agreement. Please regularly check the Site to view the then-current Terms. If you object to the revision, your sole and exclusive remedy will be to cease use of the Service for all future Jobs and Submissions.
3. ACCESS, SECURITY AND PRIVACY
TalentSeer grants you a personal, worldwide, royalty-free, non-exclusive, non-transferable license to use the Service solely for the purpose of enabling you to enjoy the benefit of the Service in the manner permitted by these Terms, for your internal business purposes, for the duration of the Term as defined below.
5. LIMITATIONS ON YOUR USE OF THE SERVICE
In connection with your use of the Platform, you agree (a) not to post content or take any action that infringes or violates someone else’s rights or violates the law. (b) You may not adapt, copy, republish, make available or otherwise communicate to the public, display, perform, transfer, share, distribute or otherwise use or exploit any Content on or from the Platform, except (i) where such Content is Your Content. (c) You may not, and must not permit any third party to copy or adapt the source or object code of the Platform, or reverse engineer, modify or attempt to discover any source or object code of any part of the Platform. Moreover, you (or any third party under your permission) must not copy, circumvent or attempt to copy or circumvent any data protection mechanism. (d) You must not participate, solicit or promote, any conduct that may constitute a criminal offence, give rise to civil liability or otherwise violate any law or regulation. (e) You must not impersonate any person or entity and may not register an account under another’s name. (f) You must not sell or transfer your account to any third party or permit any third party access to the Service. (g) You must not collect or attempt to collect information about other users without their prior consent. (h) Cover or obscure any page or part of the Service via HTML/CSS, scripting, or any other means. Except as expressly set forth herein, no express or implied license or right of any kind is granted to you regarding the Service or any part thereof. You agree not to use, or encourage or permit others to use, the Site or Service to (h) stalk and/or harass another; (i) harm minors in any way; (j) impersonate any person or entity, or falsely state or otherwise misrepresent your affiliation with a person or entity; or (k) engage in any chain letters, contests, junk email, pyramid schemes, spamming, surveys or other duplicative or unsolicited messages (commercial or otherwise).
When you register to use TalentSeer, you will provide us with your email address and will choose a username and password for your account. You will provide true, accurate, current and complete information about yourself when registering on the Service and creating an "Account", and will ensure that your email address remains valid. You will not create an Account on behalf of someone other than yourself, or using a false identity or information. You will not have more than one Account at any given time. You will not create an Account or use the Service if your Account was previously removed or you were banned from the Service by TalentSeer. Notwithstanding anything to the contrary herein, you acknowledge and agree that you will have no ownership or other property interest in your Account, and you further acknowledge and agree that all rights in and to your Account, other than Your Content as defined below, are and will forever be owned by and inure to the benefit of TalentSeer.
7. COPYRIGHT TRADEMARK AND IP
All rights, title, and interest in and to the Service, including software, hardware, products, processes, algorithms, user interfaces, technologies, designs and other tangible or intangible material or information, excluding user generated Content, are the exclusive and sole property of TalentSeer and its licensors or assigns. The Platform is protected by copyright, trademark, and other laws, and all rights are reserved unless otherwise specified. Ownership of all work product, developments, inventions, technology or materials provided by TalentSeer under these Terms will be solely owned by TalentSeer. TalentSeer, in its sole discretion, may utilize all comments and suggestions, whether written or oral, furnished by you to TalentSeer in connection with the Service (all such comments and suggestions, collectively, "Feedback"). You hereby grant TalentSeer a worldwide, non-exclusive, irrevocable, perpetual, royalty-free right and license to incorporate the Feedback into TalentSeer products and services.
8. THIRD PARTY PLATFORMS
As part of the functionality of the Service, you may link your Account with a valid account on a Third Party social networking Platform ("TPP") through which you have connected to the Services (each such account, a "TPP Account"). You represent that you are entitled to grant TalentSeer access to your TPP Account for the purposes described herein without breach by you of any of the terms and conditions that govern your use of the applicable TPP Account and without obligating TalentSeer to pay any fees or subjecting TalentSeer to any usage limitations imposed by such third party service providers. By granting TalentSeer access to any TPP Accounts, you understand that TalentSeer may access, make available and store (if applicable) any Content that is stored in your TPP Account ("TPP Content") so that it may be available on and through the Service via your Account. All TPP Content shall be considered to be Your Content (as defined below) for all purposes of the Terms. Please note that if a TPP Account or associated service becomes unavailable or TalentSeer's access to such TPP Account is terminated by the third party service provider, then TPP Content will no longer be available on and through the Services. You have the ability to disable the connection between your Account and your TPP Accounts at any time through the Service. YOUR RELATIONSHIP WITH THE THIRD PARTY SERVICE PROVIDERS ASSOCIATED WITH YOUR TPP ACCOUNTS IS GOVERNED SOLELY BY YOUR AGREEMENT(S) WITH SUCH PROVIDERS.
9. TALENTSEER’S ROLE
TalentSeer provides a technology platform to be used by Employers, and Referrers to fill job vacancies. You understand that TalentSeer takes no part in any hiring decisions, and that Employers control all decision with respect to selection and hiring of Candidates. TalentSeer does not guarantee that any Employer will fill a job, that Referrers will successfully place Candidates with Employers, or that Referrers will generate any revenue though use of the Service.
You acknowledge that all content, information, data, text, files, images, or other materials ("Content") is the sole responsibility of the party from whom such Content originated. This means that you, and not TalentSeer, are entirely responsible for all Content you provide or make available through the Service ("Your Content"), and other Users are similarly responsible for Content they make available ("Other User Content"). Except as set forth in any Additional Terms, you may not distribute or sell, rent, lease, license or otherwise make any Other User Content available to others. TalentSeer has no obligation to pre-screen Content (including Your Content and Other User Content), although TalentSeer reserves the right in its sole discretion to monitor, pre-screen, refuse or remove any Content. By entering into the Terms, you hereby provide your irrevocable consent to such monitoring. TalentSeer will have the right to remove any Content in our sole discretion, for any reason whatsoever. You should keep and maintain your own copy of all Your Content that is provided to the Service and TalentSeer as TalentSeer is not obligated to store or back up any Content that is posted on the Service.
11. USE OF YOUR CONTENT
You grant TalentSeer a non-exclusive, worldwide, royalty-free and fully paid license to use Your Content, as necessary, for purposes of providing the Service to the Users, including the right to analyze, process, and review Your Content. All rights in and to Your Content not expressly granted to TalentSeer in these Terms are reserved by you. You will procure all rights and privileges to obtain and transfer all Your Content to TalentSeer under these Terms. You will provide Your Content in compliance with all applicable laws and regulations, including all privacy laws and regulations. You represent and warrant that Your Content will not: (i) contain any viruses, worms or other malicious computer programming codes; or (ii) otherwise violate the rights of a third party. You provide Your Content at your own risk and acknowledge that TalentSeer cannot and does not control how other Users use Your Content once viewed on or through the Service. You acknowledge such potential unauthorized use of Your Content as a condition of using the Service.
12. AGGREGATE DATA
You hereby grant TalentSeer the right to use Your Content to create anonymized aggregated data, industry reports and/or statistics ("Aggregate Data") to be used for TalentSeer's business purposes and industry reporting and education; provided, however, that such Aggregate Data will not: (a) personally identify you, any other User or any other individual; or (b) otherwise enable a third party to determine which portion of the Aggregate Data is attributable to you. As between the parties, TalentSeer will own all right, title and interest in and to the Aggregate Data.
13. USER RESPONSIBILITY
You will comply at all times with all applicable laws and regulations of any jurisdiction where you act in performance of these Terms, including laws related to: (a) background checks; (b) data protection; (c) U.S. and foreign anti-corruption, including the U.S. Foreign Corrupt Practices Act (FCPA) and (d) all applicable laws concerning the transmission of technical data exported from the United States or the country you reside in.
14. OTHER USERS CONTENT
TalentSeer is not responsible for and does not control Other User Content. TalentSeer has no obligation to review or monitor, and does not approve, endorse or make any representations or warranties with respect to Other User Content. You use all Other User Content and interact with other Users at your own risk.
15. USER INTERACTIONS
You are solely responsible for your interactions with other Users of the Service and any other parties with whom you interact through the Services; provided, however, that TalentSeer reserves the right, but has no obligation, to intercede in any disputes. You agree that TalentSeer will not be responsible for any liability incurred in connection with such interactions. TalentSeer will, in its sole discretion, make final determinations as to the outcome of any dispute related to the Service. You will indemnify TalentSeer from a claim by any third party (including any User) related to your breach of these Terms.
Certain features of our Service require the payment of fees which may change from time to time. All fees are described and set forth in the Additional Terms based on the type of User you are, or in separate Service Level Agreement. Where applicable, you agree to provide TalentSeer with complete and accurate billing and contact information. This information includes your legal company name, street address, email address and name and telephone number of an authorized billing contact. You agree to update this information within thirty (30) days of any change to it. If the contact information you have provided is false or fraudulent, TalentSeer may terminate your access to the Service in addition to any other legal remedies.
17. TERM AND TERMINATION
This Agreement becomes effective in relation to you when you create an account or when you start using the TalentSeer Service and will remain effective until terminated by you or TalentSeer. You may terminate your account and these Terms at any time by deleting your account, removing all Content stored under your account, and by ceasing to use the Services thereafter. You acknowledge and agree that TalentSeer reserves the right to suspend your access to the Service and/or terminate your account and this Agreement at any time, in its sole discretion and without prior notice, if (1) you are violate these Terms; (2) TalentSeer decides, in its sole discretion, to cease providing access to the Service to the location where you are attempting to access the Service, (3) TalentSeer is required to do so by law, or (4) for any other reason that TalentSeer determines in its sole discretion.
TalentSeer reserves the right to terminate any Jobs as a result of any termination. Should the Employer terminate the Agreement or should TalentSeer terminate the Agreement for cause related to your conduct, Employers will not be refunded any payments already made to TalentSeer, including those made for hires or for access to the site ("Seat Licenses"). Should TalentSeer terminate the agreement for reasons unrelated to your conduct, any payments already made for Seat Licenses will be refunded to Employers on a prorated basis, however, any payment obligations you have to TalentSeer related to the Jobs and hires will survive termination and remain due and payable.
18. COPYRIGHT POLICY
TalentSeer respects the intellectual property rights of others and expects users of the Platform to do the same. We will investigate notices of alleged copyright infringement that comply with applicable law and are properly proved, and will take appropriate actions under applicable law, which may entail the termination of accounts. If you believe that your copyrighted work has been used, copied, or distributed in a manner that constitutes copyright infringement, and that such infringement occurs on the Website or Services, please provide us with the following information: (1) a description of the copyrighted work that you claim to have been infringed; (2) a description of the Content that you claim to be infringing and the TalentSeer URL(s) where such Content can be located; (3) a statement by you that you have a good faith belief that the use of the Content in the manner complained of has not been authorized by the copyright owner, its agent or by law; (4) your full name, address and telephone number, a valid email address on which you can be contacted, and your TalentSeer user name if you have one; (5) a statement by you that the information in your notice is accurate, and, under penalty of perjury, that you are authorized to act on behalf of the owner of the exclusive right that is allegedly infringed; (6) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright of the work alleged to have been infringed, which may be a scanned copy.
TalentSeer reserves the right to remove Content alleged to be infringing without prior notice, at our sole discretion, and without liability to you. In appropriate circumstances, TalentSeer will also terminate a user’s account if the user is determined to be a repeat infringer.
Our designated copyright agent for notice of alleged copyright infringement appearing on the Platform is:
Attn. Copyright Agent
Address: 4500 Great America PKWY, Santa Clara, CA 95054
EXCEPT AS EXPRESSLY PROVIDED HEREIN AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICE IS PROVIDED "AS IS," AND TALENTSEER MAKES NO (AND HEREBY DISCLAIMS ALL) WARRANTIES, REPRESENTATIONS, OR CONDITIONS, WHETHER WRITTEN, ORAL, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NONINFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO THE USE, MISUSE, OR INABILITY TO USE THE SERVICE (IN WHOLE OR IN PART) OR ANY OTHER PRODUCTS OR SERVICES PROVIDED TO YOU BY TALENTSEER. TALENTSEER DOES NOT WARRANT THAT ALL ERRORS CAN BE CORRECTED, OR THAT OPERATION OF THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE.
a. ANY CONTENT DOWNLOADED FROM OR OTHERWISE ACCESSED THROUGH THE SERVICE IS ACCESSED AT YOUR OWN RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY OR PERSON, INCLUDING YOUR COMPUTER SYSTEM AND ANY DEVICE YOU USE TO ACCESS THE SERVICE, OR ANY OTHER LOSS THAT RESULTS FROM ACCESSING SUCH CONTENT.
20. LIMITATION OF LIABILITY
TO THE EXTENT LEGALLY PERMITTED UNDER APPLICABLE LAW, IN NO EVENT WILL TALENTSEER BE LIABLE TO ANY PARTY FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, COSTS OF COVER OR PROCUREMENT, INCLUDING DAMAGES OR COSTS DUE TO LOSS OF PROFITS, DATA, USE OR GOODWILL, PERSONAL OR PROPERTY DAMAGE RESULTING FROM OR IN CONNECTION WITH TALENTSEER'S PERFORMANCE HEREUNDER OR THE USE, MISUSE, OR INABILITY TO USE THE SERVICE OR OTHER PRODUCTS OR SERVICES HEREUNDER, REGARDLESS OF THE CAUSE OF ACTION OR THE THEORY OF LIABILITY, EVEN IF TALENTSEER HAS BEEN NOTIFIED OF THE LIKELIHOOD OF SUCH DAMAGES.
21. AMOUNT OF DAMAGES
THE MAXIMUM LIABILITY OF TALENTSEER ARISING OUT OF OR IN ANY WAY CONNECTED TO THESE TERMS WILL NOT EXCEED THE GREATER OF: (A) ONE HUNDRED DOLLARS ($100.00); OR (B) IF YOU ARE AN EMPLOYER, TALENTSEER’S SHARE OF THE FEES PAID BY YOU TO TALENTSEER DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE CLAIM. THE EXISTENCE OF ONE OR MORE CLAIMS UNDER THESE TERMS WILL NOT INCREASE TALENTSEER'S LIABILITY. TALENTSEER'S SUPPLIERS WILL HAVE NO LIABILITY ARISING OUT OF OR IN ANY WAY CONNECTED TO THESE TERMS.
The Users shall indemnify and hold harmless TalentSeer, its officers, directors, employees, and agents, as well as TalentSeer Employers, their affiliates, officers, directors, employees, and agents from any and all claims, demands, causes of action, liabilities, loss or damage (including reasonable attorney’s fees and expenses) arising out of or related to: (a) any breach of your representations, warranties, or obligations under this Agreement, (b) any negligent acts or omissions or willful misconduct of you, your employees, agents, subcontractors and representatives, (c) any illegal act, including all Federal and local laws governing you, TalentSeer, the Candidate, or the Employer, or (d) a claim by any third party in connection with you conduct under this Agreement.
23. ADDITIONAL RIGHTS
Certain states and/or jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental, consequential or certain other types of damages, so the exclusions set forth above may not apply to you.
24. GOVERING LAW AND VENUE
These Terms, and any claim, dispute or controversy of whatever nature relating thereto, will be governed by the laws of the State of California, without giving effect to any conflicts of laws principles that require the application of the laws of a different jurisdiction. Any action or proceeding arising from these Terms must be brought in the state or federal courts located in Santa Clara City. You and TalentSeer each irrevocably submits to the exclusive jurisdiction and venue of any such court in any such action or proceeding.
25. ELECTRONIC COMMUNICATION
The communications between you and TalentSeer use electronic means, whether you visit the Site or send TalentSeer e-mails, or whether TalentSeer posts notices on the Service or communicates with you via e-mail. For contractual purposes, you (1) consent to receive communications from TalentSeer in an electronic form; and (2) agree that all terms and conditions, agreements, notices, disclosures, and other communications that TalentSeer provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect your statutory rights.
26. NO ASSIGNMENT
You will not assign, or otherwise transfer these Terms, or your rights and obligations herein, without obtaining the prior written consent of TalentSeer, and any attempted assignment, or transfer in violation of the foregoing will be null and void. TalentSeer may assign or otherwise transfer these Terms for any reason whatsoever, in its sole discretion, and without the consent of any party.
These Terms are the final, complete and exclusive agreement of the parties with respect to the subject matters hereof. Except as otherwise expressly specified in these Terms, the rights and remedies provided to each party are cumulative and in addition to any other rights and remedies available to such party at law or in equity. All waivers must be in writing. Any waiver or failure to enforce any provision of these Terms on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion. If any provision of these Terms is unenforceable, such provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions will continue in full force and effect. The headings of Sections of these Terms are for convenience and are not to be used in interpreting these Terms. As used herein, the word "including" means "including but not limited to." All notices required or permitted hereunder will be in writing, delivered personally, by email, or by nationally recognized overnight courier (e.g., FedEx) and to each of our respective addresses set forth on the Service. All notices will be deemed effective upon personal delivery, or when received if sent by email or overnight courier. Either party may change its address by giving notice of the new address to the other party. Any delay in the performance of any duties or obligations of either party will not be considered a breach of these Terms if such delay is caused by a labor dispute, shortage of materials, fire, earthquake, flood, or any other event beyond the control of such party, provided that such party uses reasonable efforts, under the circumstances, to notify the other party of the circumstances causing the delay and to resume performance as soon as possible. Your relationship to TalentSeer is that of an independent contractor, and neither party is an agent or partner of the other. You will not have, and will not represent to any third party that it has, any authority to act on behalf of TalentSeer.
28. NOTICE FOR CALIFORNIA USERS
Under California Civil Code Section 1789.3, California users of the Website are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 400 R Street, Suite 1080, Sacramento, California 95814, or by telephone at (916) 445-1254 or (800) 952-5210.Disclosures and 30. CONTACT INFORMATION
ADDITIONAL TERMS APPLICABLE TO EMPLOYERS
1. EMPLOYERS USE OF THE SERVICE
Employers must only post Jobs for which they are genuinely hiring. Employer will communicate to TalentSeer the progress of Jobs through reports from the Employer's Applicant Tracking System or a communication with equivalent information about specific Candidates' progress through the hiring process (e.g., when Candidates are contacted, first interview complete, offer made, etc.). Employer will also disclose the details of any hires (such as start date and First Year Salary) in a timely manner. Employer may communicate directly with Candidates who have been submitted and the Referrers who have submitted such Candidates, and may require Candidates to submit applications through Employer’s website and/or Applicant Tracking System provided that Ownership of the Candidate is still retained by TalentSeer. Notwithstanding anything to the contrary in the Terms, Employers may use and disclose to service providers, agents, and vendors any Other User Content solely in connection with fulfilling a Job (including as part of background checks).
2. EMPLOYER ACCOUNTS
Employer may create sub-accounts on the Service for one or more employees or other personnel authorized to use the Service on Employer's behalf ("Authorized User"). In such Event, an administrative user of Employer will create and manage the Authorized User credentials. Employer will not permit any party to access and/or use the Service, other than the Authorized Users. Employer will ensure that each username and password issued to an Authorized User will be used only by that Authorized User. Employer alone is responsible for maintaining the confidentiality of all Authorized Users' login credentials and is solely responsible for all activities that occur under these usernames. Employer will ensure all Authorized Users agree to and comply with the Terms and Employer is solely responsible for any act or omission by such Authorized User.
3. EMPLOYER FEES
If Employer or any of its affiliates hires a Candidate submitted to their Job through the Service at any time within one hundred eighty (180) days of the date of the Candidate's entry onto the Site (for the Job or any other position), Employer will pay TalentSeer a percentage of the Candidate's First Year Salary (the "Employer Placement Fee"), which is payable in full within thirty (30) days of the Candidate's start date at the Employer.
A. First Year Salary.
A Candidate’s "First Year Salary" shall be defined as the greater of Candidate’s:
a. base salary, OR
b. the top-end of the total estimated commission and bonus in the Job, OR
c. hourly wage multiplied by 2000 hours, OR
d. the top-end of the compensation indicated in the Job, if the Employer does not disclose the hired Candidate’s actual compensation.
B. Exceptions to the Fee.
Notwithstanding the foregoing, an Employer Placement Fee will not be owed only if Employer can demonstrate:
a. Employer had prior communication (other than outreach by Employer to the Candidate, to which Employer does not have a documented response) with a Candidate within one hundred eighty (180) days prior to the posting of the Job, provided that Employer will immediately notify TalentSeer of such fact upon becoming aware thereof; or
b. The Candidate is hired through an independent search by a different hiring manager to a legally independent subsidiary within the same corporate family, which does not share a common Applicant Tracking System or Candidate Database.
4. BACKDOOR HIRES
Should Employer locate a Candidate that was introduced to Employer through a Job and initiate communication without informing TalentSeer, which ultimately leads to the hire of the Candidate within one hundred eighty (180) days of Candidate's submission to the Job, TalentSeer will still be owed an Employer Placement Fee.
5. CIRCUMVENTION OF WORKFLOW
Should the Candidate be introduced to the Employer's position through a Job and fail to confirm their interest through the Site, but instead contact and apply to the Employer directly, TalentSeer will still be owed an Employer Placement Fee provided that TalentSeer can provide timestamped evidence that the Candidate received notification about the position through the Site prior to applying directly with the Employer.
6. MASTER COLLECTOR/MASTER PAYOR
TalentSeer is solely responsible for collecting all fees from the Employer, and paying all fees owed to Referrers in connection with any Job and related placements made by the Employer, including those payments owed to Legacy Referrers.
7. OTHER RESPONSIBILITIES
Employer is responsible for all the costs and effort associated with recruiting, background checking, on-boarding, and training a Candidate found through a Job.
8. DEFAULT OF PAYMENT
If Employer fails to pay undisputed amounts in accordance with these Terms, TalentSeer may suspend any outstanding Jobs.
If a Candidate is hired by Employer and his or her employment is terminated for any reason during the first sixty (60) days following the start date, Employer may, at its option: (i) request a refund of the Employer Placement Fee; or (ii) repost the same Job at no additional charge until the position is filled. In the event that a re-posted Job results in a Candidate being hired at a different salary, the Employer Placement Fee will be appropriately adjusted (and Employer will pay, or TalentSeer will refund, the applicable difference).
10. EMPLOYER NAME; LOGO
TalentSeer may use the Employer’s company name, logo, or other marks for the purposes of providing the services described herein.
11. MUTUAL INDEMNIFICATION
TalentSeer and the Employer shall indemnify and hold harmless the other party and their officers, directors, and employees from any and all claims, demands, causes of action, liabilities, loss or damage (including reasonable attorneys fees and expenses) due to the negligent acts or omissions or willful misconduct of that party’s employees.
12. CANDIDATE INDEMNIFICATION
TalentSeer is not directly involved in the hiring of Candidates by the Employer. Therefore, Employer shall indemnify and hold harmless TalentSeer, their officers, directors, and employees from any and all claims, demands, causes of action, liabilities, loss or damage (including reasonable attorney’s fees and expenses) due to the actions, services, or claims of Candidates before or after hire by the Employer.
ADDITIONAL TERMS APPLICABLE TO REFERRERS
1. CANDIDATES AND SUBMISSIONS
From time to time, Referrer may submit through the Service information about Candidate(s) whose qualifications match the requirements for the Job (each, a "Submission" and the act of making a Submission to "Submit").
2. VETTING AND CANDIDATE OPT-IN
Prior to making any Submission, Referrer must have matched the Candidate's general qualifications to those stated for the applicable Job and obtained consent from the applicable Candidate: (a) for Referrer to make such Submission; and (b) to the fact that personal data about the Candidate, whether obtained from the Candidate or the Referrer, may be retained and used by Employer and neither TalentSeer nor Referrer controls such Employer or how it uses such data (or where such data is stored by the Employer).
3. YOUR CONTENT
As a Referrer, the contents of any Submission will be considered Your Content for purposes of the Terms, even if subsequently confirmed by Candidate. However, an individual Candidate may control the content relating to him or her and may have certain rights in such content (as opposed to you or TalentSeer having such rights), notwithstanding anything to the contrary in the Terms.
4. SUBMISSION CRITERIA; CONFIRMATION
A Submission will be completed when the Candidate has directly confirmed their interest in the position through TalentSeer. Referrer may not confirm interest on behalf of Candidates.
5. CANDIDATE OWNERSHIP
A Referrer has "Ownership" of a Candidate, and will have the rights to Placement Fees associated with that Candidate, for a period of one hundred eighty (180) days for the Job that the Referrer got a completed Submission. Different Referrers may submit and own the same Candidate for different Jobs on TalentSeer as well as for different Jobs at the same Employer, and will be owed Placement Fees only when the Referrer has Ownership of a Candidate for that Job.
6. CANDIDATE REJECTION
A Candidate may be "Rejected" for Ownership if it is subsequently determined that: (i) the Employer communicated with such Candidate in the one hundred eighty (180) days prior to the Submission regarding the position referenced in the applicable Job; or (ii) such Candidate was Submitted by multiple Referrers to the same Job, in which event Ownership will be granted to the Referrer who received the first confirmation of interest, not the Referrer who first entered the Candidate into the Services.
7. OWNERSHIP DISPUTES
If there is any dispute related to Ownership of a Candidate (including the validity of any Rejection), the final determination will be made solely by TalentSeer.
If you are associated with a firm or entity ("Your Company"), all of Your Content, your Candidates, points, and any applicable Placement Fees (defined below), will belong to Your Company and not to you individually. You acknowledge and agree that we may work with Your Company to effect the foregoing and you grant us all necessary consents. In addition, you will not take any action in using our Service that violates any policy of Your Company or any condition of your affiliation with Your Company. Without limiting the foregoing, you will not submit Candidates that have been sourced by Your Company or your current or former employing firm or using resources provided by this firm without the firm's express knowledge and permission to do so on the firm's behalf.
9. Recruitment Fees.
There is currently no payment owed by a Referrer to Submit a Candidate for a Job.
B. Fee Criteria.
Subject to this Section 3.2, Section 3.3, and Section 3.4, placement fees for Submitted Candidates who are not Rejected will be paid to Referrer made in accordance with TalentSeer's standard Fee Schedule ("Placement Fees"). A Placement Fee will be owed and paid only if the Job was filled by a Successful Candidate for a Referrer on TalentSeer. A "Successful Candidate" for a Referrer is a Candidate: (i) submitted by such Referrer; (ii) for whom the Submission was completed and was not Rejected as set forth above; (iii) who is ultimately hired by Employer during the period of time such Referrer Owned the Candidate; and (iv) who remains employed by Employer for at least sixty (60) days from his or her start date.
C. Fee Schedule.
Placement Fees will be paid to the Referrer on the first business day of the month after the Candidate satisfies all of the Fee Criteria set forth in Section 3.2, provided that TalentSeer has collected the fee from the Employer.
D. Fee Rates.
Referrer payments are made at the following rate: 10% of the Candidate's First Year Salary (as described in Section 3.1 of the Additional Employer Terms) to the Referrer that Owns the placed candidate. TalentSeer may choose to pay additional bonus fees, as defined in the Job posting, for other actions on the site, but is not obligated to do so. Bonus payments will also be transferred on the first business day of the month after they are earned.
Payment of the Placement Fee is contingent upon TalentSeer's receipt of the applicable fees from the Employer for the Job. Should an Employer withhold payment, TalentSeer will delay payment to the Referrer until receipt of payment from the Employer. Should the Employer refuse to or be unable to pay the Placement Fee, TalentSeer is NOT responsible for paying the fee. Referrer will not hold TalentSeer liable for any such fees and agrees to hold harmless TalentSeer for any damages and costs incurred as a result of unpaid fees.
TalentSeer will endeavor to collect payment from the Employer in a timely manner. Referrer is not to contact the Employer for the purposes of collecting fees, and any attempts to do so will result in the termination of Referrer's membership on the Site and Service.
11. NET PAYMENTS
All payments will be paid to Referrer net any banking or wire fees incurred by TalentSeer.
12. INTERNATIONAL PAYMENTS
Payments under $250 will not be transferred internationally unless requested in writing, where the Referrer acknowledges their responsibility for international banking fees. International balance transfers above $250 will be paid automatically on the first business day of the month after they are earned, net any bank or wire fees.
Referrer is solely responsible for filing all tax returns and submitting all payments as required by any federal, state, local, or foreign tax authority arising from payments to Referrer under these Terms, and Referrer agrees to do so in a timely manner. If applicable, TalentSeer will report the payments paid to Referrer under these Terms by filing Form 1099-MISC with the Internal Revenue Service as required by law.
14. SCOPE OF SUBMISSION
The Terms cover only Submissions and does not cover (and no fees will be paid for) any candidate or resume that a Referrer may provide outside of the foregoing process (including Candidates referred via email to the Employer or directly to hiring managers by resume or in any other form).
15. INDEPENDENT CONTRACTORS
Nothing in this Agreement is intended or should be construed to create a partnership, joint venture, or employer-employee relationship between TalentSeer and Referrer. Referrer will take no position with respect to or on any tax return or application for benefits, or in any proceeding directly or indirectly involving TalentSeer that is inconsistent with Referrer being an independent contractor (and not an employee) of TalentSeer. Referrer is not the agent of TalentSeer and is not authorized, and must not represent to any third party that Referrer is authorized, to make any commitment or otherwise act on behalf of TalentSeer. Without limiting the generality of the foregoing:
16. NO BENEFITS
Referrer is not entitled to or eligible for any benefits that TalentSeer may make available to its employees. Because Referrer is an independent contractor, TalentSeer will not withhold or make payments for social security or payroll taxes, make unemployment insurance or disability insurance contributions, or obtain workers' compensation insurance on Referrer's behalf, nor will Referrer be entitled to any of the foregoing. If, notwithstanding the foregoing, Referrer is reclassified as an employee of TalentSeer, or any affiliate of TalentSeer, by the U.S. Internal Revenue Service, the U.S. Department of Labor, or any other federal, state or foreign agency as the result of any administrative or judicial proceeding, Referrer agrees that Referrer will not, as the result of such reclassification, be entitled to or eligible for, on either a prospective or retrospective basis, any employee benefits under any plans or programs established or maintained by TalentSeer. In addition, Referrer waives any and all rights, if any, to participation in any fringe benefit plans or programs including, but not limited to, health, sickness, accident or dental coverage, life insurance, disability benefits, severance, accidental death and dismemberment coverage, unemployment insurance coverage, or any other coverage or benefit(s) provided by TalentSeer to its employees. Referrer will comply with all applicable federal, state, local, and foreign laws governing self-employed individuals, including laws requiring the payment of taxes, such as income and employment taxes, and social security, disability and other contributions.
17. JOB CONFIDENTIALITY
Material posted on TalentSeer by Employers may not be republished, reproduced, transmitted, downloaded, or distributed by any means, whether electronic or mechanical at any time. An Employer's logo, company name, names of hiring managers or any other Employer staff member may not be used publicly in writing or in private solicitation of prospective Candidates. Referrer will not share any confidential or personal information surrounding such new hires to any third parties (including but not limited to Employer or TalentSeer competitors) and may only retain and use such information in the aggregate form (i.e. de-identified) for their internal business purposes only and only for so long as allowed by applicable law.
18. REFERRER WARRANTIES
Referrer represents and warrants that it will not:
a. Initiate contact with Employers outside of the Site or Services (including in a dispute, for any inquiries about active Jobs or solicitations for the use of the Referrer's direct services or placement of the Referrer's Candidates outside of TalentSeer), provided that the foregoing will not prohibit communication initiated by the Employer;
b. Make claims to be a direct representative, employee, or agent of either TalentSeer or the Employer, and will not identify themselves as such in writing or via phone when communicating with Candidates;
19. OFCCP; EEOC COMPLIANCE
Should the Employer be a federal contractor, they will have certain obligations regarding record retention with respect to job applicants, including "Internet Applicants" (as defined by the OFCCP and the EEOC). These record retention requirements are set forth in 41 CFR §60-1.12. Due to the services Referrer provides to Employer through TalentSeer, Referrer will comply with 41 CFR §60-1.12 with respect to all searches performed for Employer, which includes: (a) maintaining a record of the position for which each search of a database was made; (b) corresponding to each search, the substantive search criteria used; (c) the date of the search; and (d) the resumes of jobseekers who met the basic qualifications for the particular position. These records will be made available to Employer upon request.
20. REFERRER INDEMNIFICATION
Referrers shall indemnify and hold harmless TalentSeer and Employers, their affiliates, officers, directors, employees, and agents from any and all claims, demands, causes of action, liabilities, loss or damage (including reasonable attorneys fees and expenses) arising out of or related to: (a) their breach of representations, warranties, or obligations under this Agreement, (b) the negligent acts or omissions or willful misconduct of the Referrer, their employees, agents, subcontractors and representatives, (c) any illegal act, including all Federal and local laws governing the Referrer, TalentSeer, the Candidate, or the Employer, or (d) a claim by any third party (including TalentSeer, Employers, Candidates, regulators, and governmental authorities) directly or indirectly related to their provision of services through TalentSeer.
ADDITIONAL TERMS APPLICABLE TO CANDIDATES
1. CANDIDATE CONTENT
2. MODIFICATION OF CONTENT
TalentSeer reserves the right to reformat, remove, modify or otherwise amend certain components of Your Content to enable Your Content to be used in the Service.