Terms of Service
Terms of Service Agreement
Effective Date November 2, 2020
Certain features of the Services may also have their own specific terms and conditions that you agree to when you sign up for that particular product, function, or service (“Specific Terms of Service”).
Which Services are Covered by this Agreement?
This Agreement applies to your interactions with EmergeSkilled through the following mechanisms, which are collectively referred to as the “Services”:
- On EmergeSkilled Websites or through a EmergeSkilled mobile application.
- Through email, SMS, chat or other online communications between you and EmergeSkilled.
- When you sign up for EmergeSkilled job notifications on a third party website where EmergeSkilled is a co-controller with the website operator.
- When you interact with a EmergeSkilled job search widget and/or banner and/or link contained in Job Advertisements that are located on a third-party website, where the third parties have hired EmergeSkilled to provide services to the third party and your interaction brings you to a EmergeSkilled Website.
Terms of Service
SECTION 14 OF THESE SPECIFIC TERMS OF SERVICE INCLUDES A MANDATORY AGREEMENT TO ARBITRATE, WHICH MEANS THAT YOU AGREE TO SUBMIT ANY DISPUTE RELATED TO YOUR USE OF ANY OF THE SERVICES TO BINDING INDIVIDUAL ARBITRATION RATHER THAN PROCEED IN COURT UNLESS YOU VALIDLY ELECT TO OPT OUT OF SUCH PROVISION. THE DISPUTES/ARBITRATION PROVISION ALSO INCLUDES A CLASS ACTION WAIVER, WHICH MEANS THAT YOU AGREE TO PROCEED WITH ANY DISPUTE INDIVIDUALLY AND NOT AS PART OF A CLASS ACTION. DO NOT ACCESS OR USE ANY OF THE SERVICES IF YOU DO NOT AGREE TO THESE TERMS IN THEIR ENTIRETY.
A Specific Terms of Service may supplement this Agreement, but if any term of this Agreement expressly conflicts with any term of a Specific Terms of Service, the conflicting term in the Specific Terms of Service will control but only with respect to the applicable product, function or service. All other terms and conditions in both this Agreement and the Specific Terms of Service will remain in force.
If you are using the Services as a Student, please review the terms of Section 6 carefully. If you are using the Services as a Client, please review the terms of Section 7 carefully.
- USE OF THE SERVICES
By using the Services, you acknowledge that we do not have control over the quality, accuracy, completeness, veracity or legality of content provided by third parties. In addition, you acknowledge that we do not have control over the integrity, responsibility or actions of Students or Clients.
You must be at least eighteen (18) years of age or the age of majority in the jurisdiction in which you reside to use the Services, so that you can form a binding contract with EmergeSkilled. If you are under the age of eighteen (18) or the age of majority, and you are permitted to work in the jurisdiction in which you reside, you represent that a parent or legal guardian has reviewed and agrees to this Agreement on your behalf. You may not use the Services if your use of the Services has been previously terminated or suspended by EmergeSkilled, unless we have provided you with specific written authorization to re-use the Services.
1.2 Contact by Telephone or SMS
When using the Services, you consent to us contacting you by telephone, including by SMS. By granting such consent, you authorize EmergeSkilled to contact you by telephone at the number(s) you have provided, and acknowledge that EmergeSkilled may do so using an automatic telephone dialing system or an artificial or prerecorded voice (to the extent permitted by the laws of the jurisdiction where you reside).
You may revoke consent to be contacted by telephone by emailing [email protected] and including the wording “Revocation of Telephone Consent” in the subject line. To stop receiving SMS messages from EmergeSkilled, you may reply “STOP” to any SMS message you receive. Consent to being contacted by telephone is not required as a condition of using the Services or of purchasing any other property, goods, or services from EmergeSkilled.
You agree that we may, but are not obligated to, monitor or record any of your telephone conversations with us for quality control purposes, for training our employees and for our own protection. You acknowledge that not all telephone lines or calls are recorded by us and that we do not guarantee that recordings of any particular telephone calls will be retained or are capable of being retrieved.
1.3 Contact with You by Email
By providing EmergeSkilled your email address, you consent to our using the email address to send you Service-related and other non-commercial notices, including any notices required by law, in lieu of communication by postal mail. We may also use your email address to send you other messages, such as changes to features of the Service and special offers (to the extent permitted by the laws of the jurisdiction where you reside). If you have consented to receive email job notifications or marketing communications from us, we will send you such communications until you opt-out. If you do not want to receive job alert emails and/or marketing communications from us, you may opt-out or change your preferences in your Account page or by following the opt-out and/or unsubscribe instructions in the email message, or by requesting to be opted-out by emailing [email protected]. Please note that opting out may prevent you from receiving email messages regarding updates, improvements, or offers.
Please note, that while you can opt-out of marketing messages and email job notifications, you cannot opt-out of service-related communications, including those related to security, legal notices, your account, your use of our Services, billing, and other transactional purposes unless you deactivate your account and stop using our Services.
1.4 User Accounts
The information in this section applies to all User accounts. If you sign up and/or create an account with EmergeSkilled (in accordance with Section 7C or Section 8 below), you may control your profile information and how you interact with the Services by changing the settings on your Settings page. When creating your account or uploading information to the Services through your account, you represent and warrant that you will provide accurate and complete information. You are solely responsible for the activity that occurs under your account. You are expected to use “strong” passwords (passwords that use a combination of upper and lowercase letters, numbers and symbols) with your account.
You must exercise caution when accessing your account from a public or shared computer so that others are not able to view or record your password or other personal information. You understand and agree that your account is personal to you and you agree not to provide any other person with access to the Services using your username, password, or other security information. You agree to notify us immediately of any unauthorized access to or use of your username or password or any other breach of security. You understand that even if you notify us, you will be totally responsible for all activities that occur under your account. You also agree to ensure that you logout from your account at the end of each session. You are responsible for any password misuse or any unauthorized access.
By connecting to the Services using a third-party service, you give us permission to access and use your information from that service as permitted by that service, and to store your log-in credentials for that service. For example, if you access the Services through a social networking site, you agree that EmergeSkilled can access, store, and make available on the Services, any information and data that you provide in your applicable social networking site account such that the same information is available in your EmergeSkilled account. You agree that we are not liable for any personal data that is made available to us in violation of your privacy settings with the applicable social networking site.
EmergeSkilled may suspend or terminate your account and/or your access to the Services, or any portion of the Services at any time without notice to you, for any reason, including if in our sole discretion we determine that you have violated the terms of this Agreement (including in accordance with Section 1E and/or 6F below). Upon any such termination, all the provisions of this Agreement shall continue to survive except for any provisions that grant you access to any of the Services. You agree that we will have no liability to you for any termination or suspension of your access to the Services or your account, or the deletion of information contained within such account.
1.5 General Rules for Use of Services
You agree not to engage in any of the following prohibited activities: (i) copying, distributing, or disclosing any part of the Services in any medium, including without limitation by any automated or non-automated “scraping”; (ii) using any automated system, including without limitation “robots,” “spiders,” “offline readers,” etc., to access the Services in a manner that sends more request messages to the EmergeSkilled servers than a human can reasonably produce in the same period of time by using a conventional on-line web browser (except that EmergeSkilled grants the operators of public search engines revocable permission to use spiders to copy materials for the sole purpose of, and solely to the extent necessary for, creating publicly available searchable indices of the materials, but not caches or archives of such materials); (iii) transmitting spam, chain letters, or other unsolicited communications; (iv) attempting to interfere with, compromise the system integrity or security or decipher any transmissions to or from the servers running the Services; (v) taking any action that imposes, or may impose, as determined in our sole discretion, an unreasonable or disproportionately large load on our infrastructure; (vi) uploading invalid data, viruses, worms, or other software agents through the Services; (vii) collecting or harvesting any personally identifiable information from the Services, except as expressly permitted by certain features of the Services; (viii) using the Services for any commercial solicitation purposes; (ix) impersonating another person or otherwise misrepresenting your affiliation with a person or entity, conducting fraud, hiding or attempting to hide your identity; (x) interfering with the proper working of the Services; (xi) accessing any content on the Services through any technology or means other than those provided or authorized by the Services; (xii) bypassing the measures we may use to prevent or restrict access to the Services, including without limitation, features that prevent or restrict use or copying of any content or enforce limitations on use of the Services or the content therein; (xiii) disclosing or sharing login credentials; (xiv) reverse engineering or decompiling any parts of the Services; (xv) frame or link to any information or content on the Services; (xvi) post or submit any inaccurate, incomplete, or false biographical information or another person’s information; or (xvi) post or submit any material that is unlawful, illegal, defamatory, offensive, discriminatory, threatening, or obscene as determined by EmergeSkilled.
We may, without prior notice, change any aspect of the Services; stop providing the Services or features of the Services; or create usage limits for the Services (for paid products and services). If any such change, cessation or limitation of the Services materially and adversely affects you, then you may terminate the Services on written notice to us. In the event of such termination, you will receive a pro-rata refund of any pre-paid fees pertaining to Services paid for, but not provided, for the balance of the applicable term of your then-current subscription plan. We may permanently or temporarily limit, condition, terminate or suspend your access to the Services or any features thereof, including if in our sole determination (acting reasonably) you breach or violate any provision of this Agreement, commit fraud or other abuse using the Services.
You are solely responsible for your interactions with other EmergeSkilled Users. We reserve the right, but have no obligation, to monitor disputes between you and other Users. EmergeSkilled shall have no liability for your interactions with other Users, or for any User’s action or inaction. EmergeSkilled shall have no obligation to you to enforce this Agreement against any other User.
- USER CONTENT AND USERS
2.1 Posting or Viewing User Content
The Services may allow Users to post and/or provide content that may be viewable by other Users, including, but not limited to, Job Advertisements, company information, a student’s application information, content of messages, resumes/CVs, logos, trademarks, comments, questions, and other content or information (“User Content”). Any Student account, to include but not limited to applicant information and a resume/CV, created by a Student on the EmergeSkilled platform may be shown to or shared with any Client on the EmergeSkilled Platform. User Content is the sole responsibility of the person or entity that provided the User Content. You shall be solely responsible for your User Content and the consequences of posting, providing or publishing it.
2.2 Prohibited Types of User Content
The following list is intended to be illustrative of the types of User Content that are prohibited, but this is not an exhaustive list: You agree not to post or provide User Content that (i) may create a risk of harm to any person or property; (ii) provides instructional information about illegal activities; (iii) involves the transmission of junk or unsolicited mail or other communications, ‘phishing’ or ‘scamming’; (iv) provides links to material that is illegal or offensive, or targets or solicits personal information from anyone under the age of 18; (v) contains any information or content that we deem to be unlawful, harmful, abusive, racially or ethnically offensive, defamatory, infringing, invasive of personal privacy or publicity rights, harassing, humiliating to other people (publicly or otherwise), libelous, threatening, profane, or otherwise objectionable; (vi) contains any information or content that is illegal (including, without limitation, the disclosure of insider information under securities law or of another party’s trade secrets); (vii) contains any information or content that you do not have a right to make available under any law or under contractual or fiduciary relationships; (viii) contains any information or content that is false, misleading, or otherwise deceptive; or (ix) violates the Intellectual Property Rights (as defined below) or rights of privacy of any third party. For the purposes of this Agreement, “Intellectual Property Rights” means 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. If you are a Client providing or submitting Job Advertisements, you further agree that such content will not contain any personally identifiable information.
2.3 No Warranties or Obligations
You agree that EmergeSkilled makes no representations, warranties, promises or guarantees regarding any content provided or generated by third parties, including, without limitation, the content of messages, Job Advertisements and resumés. You further agree that EmergeSkilled acts as a passive conduit for the distribution, provision, and publication of User Content, and has no obligation to screen or verify the accuracy, legality, legitimacy, truthfulness, or completeness of User Content, and accordingly, you accept that EmergeSkilled is not responsible and has no liability for User Content. You understand that you may be exposed to User Content that is inaccurate, incomplete, illegal, misleading, false, offensive, constitutes spam, or is otherwise unsuited to your purpose, and you accept that it is your responsibility to verify the quality, accuracy, truthfulness, legality or reliability of User Content, including, without limitation, resumes/CVs and Job Advertisements and content of messages. Your reliance on any User Content is at your own risk.
Notwithstanding the foregoing, although EmergeSkilled has no obligation to screen User Content, to the extent that EmergeSkilled becomes or is made aware of User Content that may or does (i) violate the terms of this Agreement or any other Agreement you have with EmergeSkilled, or (ii) violate any law or regulation, or (iii) violate the rights of third parties, or (iv) create liability for EmergeSkilled or otherwise negatively impact EmergeSkilled, EmergeSkilled reserves the right to reject and/or remove such User Content, and suspend and/or terminate any User Account associated with such User Content.
2.4 User Content and the U.S. Communications Decency Act
Please note Section 230 of the U.S. Communications Decency Act (“CDA”) is intended to exclude or limit the liability of online service providers such as EmergeSkilled, when such online service providers provide or make available access to third-party user generated content (see § 230 (c)(1) which states: No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider).
The decision by EmergeSkilled to remove or not post or distribute any User Content, does not by itself amount to participation in the creation of such User Content and, accordingly, does not constitute a waiver of the immunity afforded by the CDA. Additionally, § 230 (c)(2) of the CDA specifically provides: “No provider or user of an interactive computer service shall be held liable on account of (A) any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable whether or not such material is constitutionally protected…”
2.5 User Interactions and Assumption of Risk
You understand and agree that EmergeSkilled does not, and cannot, confirm that each User is who he/she/they claim to be. We are not responsible for authenticating Users and therefore it is your responsibility to conduct the appropriate due diligence before communicating or interacting with other Users, including, without limitation, Students, employers, staffing agencies, and recruiters. You assume all risks associated with Users with whom you come into contact. If you have any disputes or issues with any User you agree to pursue any remedies directly with the applicable User and you release EmergeSkilled, its subsidiaries, and their respective employees, directors and agents from all claims, demands and damages of every kind (actual and consequential and direct and indirect) known and unknown, suspected and unsuspected, disclosed and undisclosed, to the fullest extent permitted by law.
2.6 Content Disclosure
Scholar reserves the right to disclose User Content and any information related to the provider of such User Content, to third parties in connection with the operation and provision of the Services, to enforce the terms of any agreement that we have with you, to comply with legal obligations and requests from governmental authorities, law enforcement agencies, court orders, subpoenas, etc., and to protect the interests of EmergeSkilled where necessary. For the avoidance of doubt, you agree that we have the right to disclose your identity to a third party who is claiming that any User Content you posted, provided or uploaded is fraudulent, false, or misleading or constitutes a violation of the law, or a violation of their intellectual property or ownership rights, or of their right to privacy.
- USER CONTENT LICENSE GRANT
By posting, submitting, providing and/or otherwise making available any User Content, you expressly grant, and represent that you have a right to grant, to EmergeSkilled, a royalty-free, sub licensable (through multiple layers of sublicensees), perpetual, transferable, non-exclusive, worldwide license to use, sell, reproduce, adapt, translate, sublicense, publicly perform, publicly display, and make derivative works from and otherwise exploit, all such User Content in whole or in part, and in any form, media or technology, whether now known or hereafter developed, for the purposes of posting such User Content on the EmergeSkilled websites, distributing such User Content through the EmergeSkilled distribution and publishing network and in job notifications to students, and to promote EmergeSkilled and the Services. This license continues even if you stop using the Services.
You represent and warrant that you have the rights, power and authority necessary to grant the rights described in this section to User Content that you submit, provide, make available or post, via the Services, that the use by EmergeSkilled of your User Content will not violate any law or infringe the rights of any third party, and that your User Content and any other information that you provide to us is legal, complete, legitimate, truthful and accurate.
- OUR PROPRIETARY RIGHTS
This Agreement provides only a limited license to access and use the Services in accordance with the terms of this Agreement. Accordingly, you hereby agree that EmergeSkilled transfers no ownership or intellectual property interest or title in and to the Services or any materials used in connection with the Services, including, without limitation, software, (including source code), programs, products, information, documentation, images, text, graphics, user interfaces, visual interfaces, illustrations, logos, patents, trademarks, service marks, copyrights, photographs, audio, videos, music, and content (the, “EmergeSkilled Content”). All such EmergeSkilled Content as well as the design, structure, selection, coordination, expression, “look and feel,” and arrangement of any content contained on or available through the Services (except for Feedback) are exclusively owned, controlled, and/or licensed by EmergeSkilled or its members, parent(s) licensors, or affiliates. EmergeSkilled, the EmergeSkilled logo, and all other marks are proprietary trademarks of EmergeSkilled and any use of such marks, including, without limitation, as domain names, account identifiers, or in connection with any search engine optimization practice(s), without the prior written permission of EmergeSkilled is hereby strictly prohibited. Except as explicitly provided herein, nothing in this Agreement shall be deemed to create a license in or under, any such Intellectual Property Rights, and you agree not to sell, license, rent, modify, distribute, copy, reproduce, transmit, publicly display, publicly perform, publish, adapt, edit or create derivative works from any materials or content accessible on the Services. Use of the EmergeSkilled Content or materials on the Services for any purpose not expressly permitted by this Agreement is strictly prohibited.
If you participate in any evaluation regarding the Services or otherwise provide EmergeSkilled suggestions, comments, ideas, opinions, recommendations for the modification, correction, improvement, or enhancement of the Services, or other feedback regarding the Services (collectively, “Feedback”). Such Feedback will be deemed to include a royalty-free, perpetual, irrevocable, transferable, sub licensable, and non-exclusive right and license for EmergeSkilled to adopt, publish, reproduce, disseminate, transmit, distribute, copy, use, create derivative works of, and display (in whole or in part) worldwide, or act on any such Feedback without additional approval or consideration in any form, media, or technology now known or later developed for the full term of any rights that may exist in such content, and you hereby waive any claim to the contrary. To the extent permitted by applicable law, you waive any moral rights and irrevocably consent to any acts that would otherwise infringe your moral rights, in your Feedback. You agree not to provide any Feedback that is false or misleading or that breaches any agreement you have with a third party.
- FREE TRIALS AND PAID SERVICES FOR CLIENTS
EXCEPT AS OTHERWISE PROVIDED IN A WRITTEN AGREEMENT BETWEEN YOU AND EmergeSkilled, THE FOLLOWING TERMS WILL APPLY TO CLIENTS USING PAID SERVICES.
5.1 Billing Policies
Certain aspects of the Services may be provided for a fee. If you are a Client and elect to use a paid feature of the Services, you agree to the pricing and payment terms for the applicable Services, as we may update them from time to time. Any recurring charges are billed in advance of service. EmergeSkilled may (1) add new services and products for additional fees and charges, at any time in its sole discretion, or (2) amend fees and charges for existing services, at any time in its sole discretion upon notice.
We may also provide certain products or services via our third-party partners and you agree that your use of such third-party products or services is subject to the contractual (including payment) terms presented by such third parties should you wish to use their services. You further agree that EmergeSkilled has no responsibility for such third-party services and your use of such services is entirely at your own risk. Any change to the fees for paid services shall become effective in the billing cycle following notice of such change to you.
5.2 No Refunds for Paid Services
You may cancel your subscription to paid services at any time, pursuant to Section 6.E below, and you accept that you will not receive a refund of pre-paid fees for such cancellation, except where otherwise set out in this Agreement. In the event that EmergeSkilled suspends, limits, conditions, or terminates your access to the Services and/or your account due to your material breach of this Agreement or any other agreement that you have with EmergeSkilled, you understand and accept that you will not receive a refund for any unused time with respect to fees that you have pre-paid for a subscription plan, product or service, and to the extent that you have not paid the applicable fees, you will remain liable to pay EmergeSkilled the entire fees due for the subscription, product or service, as applicable.
5.3 Payment Information; Taxes; Delinquent Payments
If you are a Client, you authorize EmergeSkilled to provide any Authorized User associated with your account, or such other persons as you may hereafter specify in writing, access to view, change, and inquire, about bank, payment, tax or other information relating to your business relationship with EmergeSkilled.
All information that you provide in connection with a monetary transaction must be accurate, complete, and current. You agree to pay all charges incurred by users of your credit card, debit card, or other payment method used in connection with a purchase or transaction at the prices in effect when such charges are incurred. You will also pay any applicable taxes relating to such transactions. If at any time EmergeSkilled is required by a taxing authority to pay any taxes not previously collected from you, you will promptly submit such taxes (including applicable penalties and interest, if any) to EmergeSkilled upon written notice.
If you elect to add additional paid services or products to your selected subscription or upgrade your subscription, we will invoice you for such services, products and upgrades, and/or charge your credit or debit card (or other payment method) accordingly.
Delinquent payments may bear interest at the rate of one-and-one-half percent per month (eighteen percent per annum) or the highest rate permitted by law, if less, from the payment due date until paid in full. You will be responsible for all reasonable expenses (including legal fees and expenses) incurred by EmergeSkilled in collecting delinquent amounts, except where the delinquent amounts are due to billing inaccuracies. In addition, if you are late in payment of any fees, we reserve the right to either (i) immediately suspend or terminate your access to the applicable Services without notice, and in the event of any such suspension or termination, you will remain responsible for the entire amount of fees owing for such Services; or (ii) bill your credit/debit card on file with us under this or any other agreement. Unless your subscription plan is terminated timely and correctly, you will continue to accrue charges even if you don’t use the subscribed Services.
5.4 Credit and Debit Cards
In the event that you pay for any Services using a credit card or debit card, you authorize EmergeSkilled to charge your credit or debit card (or other acceptable payment method that you have chosen from those offered) (“Payment Method”), for the applicable fees for the duration of the applicable term of your selected subscription plan or other paid service or product, together with any applicable sales, use, excise, goods and services tax (GST), consumption or other similar tax applicable to the Services. You represent that you are authorized to use the Payment Method on your company’s behalf and you agree to accept an electronic record of a receipt. If at any time your Payment Method will not accept the charge for fees due, you agree that EmergeSkilled may suspend or terminate your access to the applicable Services and that you will continue to remain liable for the full payment for such Services even after your access to the Services has been terminated or suspended. By providing any Payment Method, you agree that applicable credit card, debit card and billing information may be shared with third parties such as payment processors and credit agencies, and/or collection agencies for the purposes of checking your credit, effecting payment, collecting payments and late fees if applicable, and for providing the applicable Services to you or in order to enforce our agreement with you. We may also share this information with law enforcement authorities and in response to subpoenas, court orders, and search warrants.
5.5 Free Trials and Subscription Services (for Clients that have not executed a paper contract)
EXCEPT AS OTHERWISE PROVIDED IN A WRITTEN AGREEMENT BETWEEN YOU AND EmergeSkilled, OR BETWEEN YOU AND ONE OF OUR THIRD-PARTY PARTNERS, YOU ACKNOWLEDGE AND AGREE THAT YOUR SUBSCRIPTION TO THE PAID SERVICES WILL AUTOMATICALLY RENEW UNLESS YOU CANCEL IT OR WE SUSPEND OR TERMINATE IT IN ACCORDANCE WITH THESE TERMS.
(i) Free Trial. If you have been offered a free trial to the job posting Services (“Free Trial”), you may be required to: (a) select a desired subscription plan (“Subscription Plan”), and (b) provide valid credit card/debit card and billing information. Your credit/debit card will not be charged until the expiration of the Free Trial. If you don’t cancel prior to the end of the Free Trial term, we will automatically charge your debit/credit card for the first 30 days (if you are on a monthly Subscription Plan) or the first year (if you chose an annual Subscription Plan) or other applicable recurring period depending on the selected Subscription Plan (“Initial Plan Term”). We will continue to charge your debit/credit card at the beginning of the applicable renewal period following the Initial Plan Term unless you notify EmergeSkilled that you do not wish to renew prior to the end of the Initial Plan Term.
(ii) Free Trial Cancellation. You can cancel at any time during the trial period by sending us an email at [email protected]. If you wish to cancel online, and such option is available, follow the instructions on the website to cancel your free trial immediately. It is your responsibility to timely cancel your Free Trial prior to the expiration of the term of the Free Trial to avoid any unwanted charges. Once your Free Trial is cancelled, you will lose access to information regarding candidates, Job Advertisements and other features of the applicable Subscription Plan.
(iii) Subscription Plans and Renewals. Subscription Plans will automatically renew for recurring periods depending on the duration of your selected Subscription Plan (e.g., every 1 day, 30 days, 3 months, 6 months, annual or other period), and, as authorized by you by agreeing to the automatic renewal of your Subscription Plan during the sign-up process, unless you notify EmergeSkilled of any changes or requests not to renew (i.e., to cancel), prior to the end of the Initial Plan Term (each, a “Renewal Plan Term”) or each Renewal Plan Term. Cancellation requests should be made in accordance with the instructions provided on the applicable EmergeSkilled website or in accordance with Section 6(E)(iii) below. At the time of the automatic renewal, the applicable subscription or other fees will be charged to the Payment Method provided and/or associated with your account, or you will be invoiced for payment.
(iv) Subscription Plan Cancellation. For paid Subscription Plans, you may cancel at any time effective at the end of the Initial Plan Term or any Renewal Plan Term by sending us an email at [email protected], and one of our representatives will contact you. Make sure you cancel prior to your next billing renewal date to avoid any unwanted charges. Your account will be cancelled effective on your next billing date. Once your account is cancelled you will lose access to all content and features under your selected Subscription Plan. You agree and accept that you will not receive any refund if you request a cancellation and that the cancellation request shall become effective at the end of the Initial Plan Term or Renewal Plan Term in which the cancellation notice is received by EmergeSkilled.
5.6 Suspension or Termination
(i) Suspension or Termination for Cause. EmergeSkilled may suspend or terminate your access to the Services and/or this Agreement in the following instances: (I) if you breach this Agreement and cannot correct the breach within that period required by EmergeSkilled if the breach is capable of cure; (II) immediately, if you fail to pay any monies owed to EmergeSkilled for paid services; (III) immediately if you become the subject of a bankruptcy, insolvency, receivership, liquidation, assignment for the benefit of creditors or similar proceeding; (IV) immediately in the event of violations of this Agreement; and/or (V) for any abuse, inappropriate behavior, or other conduct, which in our sole discretion adversely affects or has the potential to affect us, our employees or users of our Services. In the event of any suspension of your access to the Services and/or termination of this Agreement or any other agreement you have with EmergeSkilled (other than a termination for convenience by EmergeSkilled), you remain responsible for the entire amount of the fees (pre-paid and/or due), for the applicable Services. EmergeSkilled may also suspend your access to the Services without penalty and without notice, in the event of a suspected violation of this Agreement.
(ii) Suspension or Termination for Convenience. EmergeSkilled can terminate your access to the Services and/or this Agreement for convenience via email notification to you and, in the event of such termination for convenience, you will receive a pro-rata refund of any pre-paid fees pertaining to Services that will not be provided as a result of the termination.
(iii) Your Termination Rights. You may terminate this Agreement if EmergeSkilled materially breaches this Agreement and does not cure the breach within ten (10) days after receipt of written notice from you, which notice must be emailed to [email protected]. Pre-paid fees are non-refundable, except in the case of an uncured material breach by EmergeSkilled (and in the absence of any contributory act and/or omission to act by you), in which case you will receive a pro-rata refund of any pre-paid fees pertaining to Services paid for, but not provided, for the balance of the applicable term of your then-current Subscription Plan.
- ADDITIONAL TERMS THAT APPLY TO STUDENTS
As a Student you can (i) use the Services to search for jobs, (ii) apply for jobs, (iii) receive job alert emails or text messages, where such features are available to you (“Job Notifications”), and (iv) have your resume and other applicable information included in the Profile Database. You further agree that if you accept a full-time position with a Client that you met or interacted with through the EmergeSkilled platform, you will notify EmergeSkilled within seven (7) days of acceptance of the job.
As a Student, you agree that by using this Platform you have not been guaranteed and are not guaranteed that any invitations to interview will be extended to you by any Clients or that you will be offered employment or placed with any Client. The use of this Platform does not guarantee any internship or employment offers or opportunities.
For purposes of this Agreement, references to “resume” or “CV” shall also mean a curriculum vitae, profile, references, recommendations, and other similar written overviews or assessments of a person’s experience and qualifications.
If you have a EmergeSkilled account, provide your resume/CV to EmergeSkilled, and/or sign up for Job Notifications, you agree that we may (A) use the information you provide to send you information about Job Advertisements that may be of interest to you; and (B) display or provide your resume/CV and profile information to an employer or recruiter who may be interested in candidates like you.
To the extent that you wish us to share your information and resume/CV with potential employers, recruiters, or staffing agencies (including, where you have submitted your resume/CV to the Profile Database or because you have applied to a Job Advertisement on a EmergeSkilled website), you consent to our sharing your resume/CV, together with any additional information you provide to us during the application process. This means that you give us a perpetual, irrevocable, non-exclusive, royalty-free, worldwide license (and right to sub-license), of any rights, including intellectual property rights, in your resume/CV and any additional information you provide to us, to share or otherwise use such resume/CV and additional information as we reasonably require to fulfill the services we provide to you.
Any Student account, to include but not limited to applicant information and a resume/CV, created by a Student on the EmergeSkilled Platform may be shown to, viewed by or shared with any Client on the EmergeSkilled Platform.
6.1 Job Applications in General
By applying to a Job Advertisement on the Services, you give us permission to store your information on the Services and to share your information (including your resume/CV), with the entity that posted the Job Advertisement. Students agree that EmergeSkilled can use the information provided in EmergeSkilled’ discretion.
You may be able to choose how to submit your Job Application using the options offered through the Services. If an option and if you elect to apply through a third-party account, such as Facebook or LinkedIn.com, you will be asked to login to the applicable account, and the profile, resume and other information that you have provided as part of any of those accounts will then be provided to the entity that posted the applicable Job Advertisement.
Once you submit a Job Application, your resume and other applicable information will be shared with the entity that posted the Job Advertisement as long as any parameters selected by that entity are met, where applicable. You should therefore ensure that the information you provide is complete and accurate, and only contains information that you are comfortable sharing.
If you ask EmergeSkilled to submit a message to any employer or third party or if you apply for a job using the Services, you accept that EmergeSkilled does not guarantee that the recipient entity will receive, access, view, or respond to your requests or Job Applications, or that the transmission of data will be error-free. Any screener questions provided by the entity posting a Job Advertisement are entirely in the control of that entity and if you require alternate screener questions or application process, you must contact the applicable entity directly.
6.2 Applying to Job Advertisements on a EmergeSkilled Website
When you apply to a Job Advertisement on a EmergeSkilled website or through the app, if all parameters selected by the entity that posted the Job Advertisement are met, we will send the resume associated with your account (to the extent an account was created as described in Section 6C. below).
If you have manually logged out of your account or if you have been automatically logged out of your account because of inaction or some other reason, contact i[email protected] for assistance.
IMPORTANT: It is your responsibility to ensure that the resume associated with your account is always updated, current and accurate before you apply to a Job Advertisement or opt-in to the Profile Database, so an employer receives the most up-to-date information about you. In order to delete old resumes, edit your resume, or upload a new resume, please go to the Profile settings in your User account.
Additionally, although EmergeSkilled requests that companies maintain the confidentiality of the Job Applications and resumes/CVs they receive through the Services, EmergeSkilled cannot and does not guarantee that the information you provide will be held in confidence or properly secured by the applicable recipient.
6.3 Account Creation
Students will need to create a EmergeSkilled account in order to sign up for job notifications with EmergeSkilled or apply for a Job on a EmergeSkilled website. Students agree to upload a professional profile picture to be included with in their EmergeSkilled account. Students agree to honestly self report all academic statistics.
6.4 Job Notification
You will automatically receive a notification each time you have been invited by a Scholar Client to apply for a position. Students agree to accept or decline all invitations they receive. Students agree not to go around the EmergeSkilled platform and agree to only enter into internships with EmergeSkilled’ clients through the EmergeSkilled platform and in conformity with the Terms of Service and any other agreement you may enter into with EmergeSkilled. You may contact [email protected], if you have questions or need assistance.
6.5 Profile Database
EmergeSkilled has a feature which permits Students to include their resume/CV and other profile information in a profile database (the, “Profile Database”) to be stored on the Service. Your resume/CV will be available for viewing by any business that is a Client of EmergeSkilled.
6.6 Interactions with Other Users; Scams; Confidentiality
You are solely responsible for your interactions with Users whom you contact or who contact you. Note: there are risks, including, but not limited to, the risk of physical harm, that may arise when dealing with strangers, including persons who may be acting under false pretenses. You should therefore use caution with regard to the information you elect to share as part of your User Profile or Job Application or resume/CV that. Only list the contact information that you are comfortable disclosing to Clients and other Users of the Services.
In addition to carefully reviewing this section and Section 2 above, you should conduct your own due diligence on potential employers and Job Advertisements that may be of interest to you. As mentioned in Section 2, EmergeSkilled does not authenticate Users or guarantee that a Job Advertisement is suitable, legitimate or real.
- ADDITIONAL TERMS THAT APPLY TO CLIENTS
As a Client, you can use the Services to (i) search for prospective employees or candidates, (ii) view resumes, profiles, or curriculum vitae, and/or (iii) post and/or distribute Job Advertisements on behalf of yourself or your company only. Any Client on the EmergeSkilled Platform may view or access any Student account, to include but not limited to applicant information and a resume/CV, created by a Student on the EmergeSkilled Platform.
As a Client, you further agree (i) that an invitation extended to a Student does not guarantee an interview, (ii) that the interview of a Student does not guarantee the Student will be placed with Client, (iii) to allow Students to contact you or representatives of your company, (iv) to join an email list created by EmergeSkilled in order to permit EmergeSkilled to communicate with its Clients, (v) to not sell any student contact information, and (vi) to only use student contact information for purposes of communicating with the student with regard to hiring or discussing the position you have posted.
And, as a Client, if you hire a Student you met or interacted with through the EmergeSkilled platform, you agree to pay EmergeSkilled 15% of that Student’s first-year full-time position salary. Client agrees to make that 15% payment within sixty (60) days of Student’s first day of employment.
7.1 Content Rules
With respect to all Job Advertisements that you submit, make available, provide, post or distribute, in addition to the other requirements in this Agreement, you represent and warrant that (i) the content of Job Advertisements will be accurate and will not misrepresent the internship description, requirements or other terms, will comply with advertising standards and applicable laws, including, but not limited to, employment and privacy laws, in your jurisdiction and the jurisdictions in which the vacancies are located; (ii) you have the necessary rights to permit the publication and use of Job Advertisements by EmergeSkilled pursuant to this Agreement; (iii) the use, reproduction, distribution or transmission of Job Advertisements will not violate any applicable laws or any rights of any third parties, including, but not limited to, infringement of any copyright, trademark, or other proprietary right, false advertising, defamation, any other right of any person or entity; (iv) the content of Job Advertisements shall comply with the then-current versions of this Agreement and Job Posting Rules. You understand and agree that you are solely responsible for any liability arising out of publication of Job Advertisements or material to which users can link though such Job Advertisements. You agree to indemnify and hold EmergeSkilled and its subsidiaries, and their respective officers, directors, employees, and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys’ fees and costs) arising out of or in connection with Job Advertisements provided by you or any other content provided by you, or your breach of this Agreement.
You agree not to post or promote any Job Advertisements that: (i) contain inaccurate, false, or misleading information; (ii) contain “hidden” keywords or keywords that are irrelevant to the job opportunity being presented; (iii) sell, promote or advertise products or services; (iv) endorse a particular political party, political agenda, or political position or promote a particular religion; (v) advertise job openings located in countries subject to economic sanctions of the United States government, except where permitted by applicable law; (vi) require the applicant to provide information relating to his/her (a) racial or ethnic origin, (b) political beliefs, (c) religious beliefs, (d) membership of a trade union, (e) physical or mental health, (f) sexual orientation or life, (g) the commission of criminal offences or proceedings, or (h) age; (vii) contain content or links to content that exploit people in a sexual, violent or other manner, or solicits personal information from anyone under the age of 13; (viii) includes any screening requirement or criteria where such requirement or criteria is not a bona fide occupational requirement for the role; (ix) involves any franchise, pyramid scheme, “club membership”, distributorship, or multi-level marketing opportunity or requires recruitment of other members, sub-distributors or sub-agents; (x) requires applicants to pay to apply, pay for training, pay for training materials, or pay for samples; (xi) contain content that violates applicable laws; (xii) pays commissions only (except for postings that make clear that the available job pays commission only and clearly describes the product or service that the Student would be selling, in which case such Job Advertisements are permissible); (xiii) requires citizenship or lawful permanent residence in a country, unless that is required in order to comply with law, regulation, or a federal, state or local government contract; (xiv) contain links to any site competitive with EmergeSkilled other than to an actual job posting; or (xv) do not otherwise comply with the then-current Job Posting Rules.
Additionally, Job Advertisements must comply with applicable local and national laws, and regulations including, but not limited to, those relating to labor and employment, and anti-discrimination.
REPORTING VIOLATIONS OF THE CONTENT RULES: If you believe that any content on our Websites, violate the Content Rules, please contact us at [email protected] and state the following in the subject-line of your email: Violation of Content Rules. For content that allegedly violates your copyright, please see Section 10 below.
7.2 Distribution of Job Advertisements
EmergeSkilled will make reasonable efforts to distribute Job Advertisements to third-party services, publishers, job boards and/or other entities in our distribution network, or in job alert emails and texts (collectively, “Distribution Channels”). However, you acknowledge and accept that we have no control over the Distribution Channels or communication networks, and therefore we provide no guarantee that your Job Advertisements will actually be delivered over the Internet or via communication networks, be accepted by an entity in the Distribution Channels or be received and/or read by a Student. You accept that entities in the Distribution Channels have no obligation to use or display a Job Advertisement and may reject a Job Advertisement for any reason or no reason, whether you are on a paid job Subscription Plan, or a trial or free subscription, and even if you have paid for a “Premium Post.” You agree that EmergeSkilled is not liable to you or any third party if your Job Advertisement is rejected or not posted, and you will not be entitled to any refund for Job Advertisements not posted or distributed. By submitting a Job Advertisement, you give us permission to distribute that Job Advertisement in the Distribution Channels and on EmergeSkilled websites.
We make no guarantee as to the number or quality of candidates that you will receive as a result of your Job Advertisement. You are solely responsible for interviewing, performing background and reference checks on, verifying information provided by, and selecting an appropriate candidate. In certain cases, entities in the Distribution Channels may require that you agree to additional service policies in order to allow your Job Advertisement to be distributed on or via their services, and you hereby agree to such additional service policies as they apply to the distribution of your Job Advertisements.
7.3 Authorized Users
You are responsible for all activity, acts or omissions of any person or entity that is able to access the Services under your account and you will limit access to the number of users that are allowed under your account to those permitted under your selected Subscription Plan (each, an “Authorized User”). Additionally, you agree that: (i) you will not share log-in credentials and account information with third parties; (ii) you will not sell or sublicense access to your account or the Services; (iii) you will not charge, or receive payment, in cash or in kind, from any individual or entity for use of, or access to, any portion of the Services; (iv) you will ensure that Authorized Users comply with this Agreement and any other Specific Terms of Service or other agreement that you have with EmergeSkilled, (v) you will immediately notify EmergeSkilled of any suspected or alleged violation of this Agreement, including any unauthorized use of any password or account information, or any other known or suspected breach of security; and (vi) you will cooperate with EmergeSkilled with respect to investigation of any suspected or alleged violation of this Agreement and any action by EmergeSkilled to enforce this Agreement.
EmergeSkilled may suspend, limit, condition, or terminate an Authorized User’s access to the Services or any features thereof, in the event that EmergeSkilled reasonably determines that such Authorized User has violated this Agreement or appears likely to do so.
7.4 Removal of Advertisements; Enforcement; Termination
You acknowledge and agree that EmergeSkilled may, with no liability or penalty, remove any Job Advertisement or other content, communication or information posted, which in the sole judgment of EmergeSkilled, violates or may violate this Agreement, applicable laws, rules or regulations, or third party terms; or may adversely affect EmergeSkilled or is false, inaccurate, misleading, deceptive, fraudulent, libelous, defamatory, immoral, offensive, obscene, pornographic, disruptive, threatening, abusive or illegal; or which may violate or lead to the violation of the rights of, or harms or threatens the safety and privacy of any third party.
We also have the right to:
- Remove or refuse to post any User Content for any or no reason in our sole discretion.
- Disclose your identity or other information about you to any third party who claims that material posted by you violates their rights, including their intellectual property rights or their right to privacy.
- Take legal action, including without limitation, referral to law enforcement, for any illegal or unauthorized use of the Website or the Services.
Without limiting the foregoing, we have the right to cooperate fully with any law enforcement authorities or court order requesting or directing us to disclose the identity or other information of anyone posting any materials on or through the Website. YOU WAIVE AND HOLD HARMLESS THE COMPANY AND ITS SUBSIDIARIES, AND THEIR RESPECTIVE DIRECTORS, OFFICERS, AND EMPLOYEES, FROM ANY CLAIMS RESULTING FROM ANY ACTION TAKEN BY ANY OF THE FOREGOING PARTIES DURING, OR TAKEN AS A CONSEQUENCE OF, INVESTIGATIONS BY ALL SUCH PARTIES OR LAW ENFORCEMENT AUTHORITIES.
7.5 Profile Database
If your Free Trial or Subscription Plan includes access to the Profile Database, then (subject to the terms and conditions of this Agreement) EmergeSkilled hereby grants you a limited, revocable, non-transferable, non-sub licensable, non-exclusive right to access that database for the limited purpose of (1) searching the Profile Database; and/or (2) viewing and/or downloading the number of resumes/CVs permissible under your Free Trial or Subscription Plan, each for the sole purpose of seeking potential employment candidates for legitimate employment opportunities. You shall not use or access the Profile Database for any other purpose.
You shall not use any automated computer programs or software to download resumes/CV or to extract Data (defined below), and shall not resell or sub-license access to the Profile Database (or any portion thereof) or any resume (including Data). You further agree that you shall not use the Profile Database or its contents to market or sell products or services to the data subjects whose resumes comprise the Profile Database.
Notwithstanding anything to the contrary in this Agreement, EmergeSkilled reserves the right to limit the amount of information (including resume views and downloads), that may be accessed in any time period to mitigate any overload to the Services or in response to any abuse of the Services. The Profile Database shall not be used in any manner that adversely affects EmergeSkilled business, imposes an unreasonable or disproportionately large load on EmergeSkilled infrastructure, or interferes with the ability of others to access the Profile Database. EmergeSkilled reserves the right to suspend or terminate access to the Profile Database or terminate this Agreement in the event of any non-compliance with this Agreement or any other agreement you have with EmergeSkilled. You shall remain primarily responsible for ensuring that Authorized Users comply with the terms of this Agreement. If a Student opts out of the Profile Database at any time, EmergeSkilled reserves the right to block access to, and/or remove, the Student’s resume/CV from the Profile Database.
You accept that EmergeSkilled does not verify whether any telephone number contained within a resume/CV is a landline or a cell phone number, and it is your responsibility to ensure that any communication with the data subject of the resume/CV is in compliance with applicable laws related to telephone calls, automated dialing, SMS, spam, fax, and unsolicited communications.
You represent, warrant and promise that: (i) you will use the Profile Database and the personal information contained within any resumes/CVs (collectively, “Data”), in accordance with applicable communication, privacy and data protection laws; (ii) you shall not further disclose any Data from Profile Database to a third party, unless you are an authorized recruitment agency, staffing agency, or job advertising agency acting on behalf of a client, and you are accessing the resumes/CVs to source candidates on behalf of your clients for legitimate employment purposes, and such disclosure falls within the scope of the appropriate Free Trial or Subscription Plan for the Services; (iii) you will implement appropriate physical, technical, and administrative measures to protect Data obtained from the Profile Database from loss, misuse, unauthorized access, disclosure, alteration or destruction, and you will notify EmergeSkilled immediately in the event of any suspected or actual unauthorized access or disclosure of resumes/CVs; (iv) Authorized Users shall not share login credentials with any other party; (v) you will not use the contact information from resumes/CVs to send unsolicited mail, e-mails, phone calls, SMS, or faxes regarding promotions and/or advertising of your or a third party’s products or services, or to contact or source Students for careers fairs and business opportunities; and (vi) you will respect the privacy choices of Students.
EmergeSkilled makes no representations or warranties regarding any content provided or generated by third parties, including, without limitation, resumes/CVs. You accept that EmergeSkilled acts as a passive conduit for receipt of resumes/CVs and has no obligation to screen resumes/CVs, verify the identity of the person submitting a resume/CV, or verify the accuracy of the data or content contained in resumes/CV. It is your responsibility to conduct due diligence as regards the individual Student-subject of each resume/CV. We do not guarantee any response or the number of responses to your Job Advertisements or that any responses will be from individuals suitable for the job vacancy you advertised. It is your responsibility to carry out such checks and procedures as are necessary to ensure that individuals who respond to your Job Advertisements have the required qualifications to meet your requirements.
References to “resume” or “CV” as used herein, will include curriculum vitae, profile, references, recommendations, and other similar written overviews or assessments of a person’s experience and qualifications.
EmergeSkilled may inform Students that you have taken an action with respect to a resume/CV or a Job Application. You agree to deal fairly and professionally with individuals who may respond to your Job Advertisement and agree to indemnify us from and against any claim brought by an individual against EmergeSkilled arising from your breach of this Agreement or any other agreement you have with EmergeSkilled.
7.7 Data Protection.
You agree to implement appropriate physical, technical, organizational, and administrative measures (a) to prevent unauthorized or unlawful processing of any Personal Data; (b) to protect Personal Data against accidental loss, destruction or damage; (c) to include taking reasonable steps to ensure the reliability of the personnel having access to the Personal Data; and (d) having regard to the state of technological development and the cost of implementing those measures so as to ensure a level of security appropriate to: (i) the harm that may result from breach of those measures; and (ii) the nature of the Personal Data to be protected. You agree to comply with applicable data protection and privacy laws and regulations in applicable jurisdictions particularly as they relate to your operations and the residency of the applicable data subjects. You further agree to indemnify, hold harmless, and defend EmergeSkilled at your own expense against all costs, claims, damages or expenses incurred by EmergeSkilled or which we may become liable due to any failure by you or your personnel or agents to comply with any of your obligations under this section and applicable data protection and privacy laws and regulations.
For the purposes of this Agreement, ‘Personal Data’ means any information or pieces of information that could identify a natural person either directly (e.g. your name, email address, phone number) or indirectly (e.g. through pseudonymized data, such as a unique ID number). This means that personal data includes things like email/home addresses, usernames, profile pictures, personal preferences, financial information, and health information. It could also include unique numerical identifiers like your computer’s IP address.
- PRIVACY AND SECURITY
Unfortunately, the transmission of information over the Internet is not completely secure and we cannot, therefore, guarantee that unauthorized third parties will never be able to defeat our security measures or use your personal data for improper purposes. You acknowledge that you provide your personal data at your own risk. Any actual or attempted use of the Services by you in violation of this Agreement may result in criminal and/or civil prosecution, including, without limitation, punishment under the Computer Fraud and Abuse Act of 1986 under U.S. federal law. EmergeSkilled reserves the right in its sole discretion to review, monitor, and/or record any information relating to your use of the Services without any prior notice to or permission from you, including, without limitation, by archiving content and/or communications submitted to and/or sent by you through the Services.
- INFRINGING CONTENT
9.1 DMCA Notice Procedure (Copyrights)
It is the policy of EmergeSkilled to respond to alleged infringement notices that comply with the Digital Millennium Copyright Act of 1998 (“DMCA”), or if you reside outside the United States, any similar applicable law with respect to copyright infringement in the jurisdiction in which you are located.
If you believe that your copyrighted work has been copied in a way that constitutes copyright infringement and is accessible via the Services, please notify the EmergeSkilled copyright agent as set forth below. For your complaint to be valid under the DMCA, you must provide the following information in writing:
- An electronic or physical signature of a person authorized to act on behalf of the copyright owner;
- Identification of the copyrighted work that you claim has been infringed;
- Identification of the material that is claimed to be infringing and provide a link (where available) to where it is located on the Services;
- Information reasonably sufficient to permit EmergeSkilled to contact you, such as your address, telephone number, and, e-mail address;
- A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or law; and
- A statement, made under penalty of perjury, that the above information is accurate, and that you are the copyright owner or are authorized to act on behalf of the owner.
FAILURE TO INCLUDE ALL OF THE ABOVE INFORMATION, ESPECIALLY SPECIFIC URLS WHERE CONTENT MAY BE FOUND WILL RESULT IN A DELAY IN THE PROCESSING OF YOUR DMCA NOTIFICATION AND MAY RESULT IN YOU HAVING TO REPEAT SOME OR ALL OF THE ABOVE PROCESS. EmergeSkilled WILL NOT TAKE RESPONSIVE ACTION TO REMOVE CONTENT UNTIL ALL OF THE NECESSARY INFORMATION IS PROVIDED.
The above information must be submitted to the following DMCA Agent:
Attn: DMCA Agent
Emerge Consulting d/b/a EmergeSkilled
23906 Woodward Ave
Pleasant Ridge, MI 48069
Email: [email protected]
UNDER FEDERAL LAW, IF YOU KNOWINGLY MISREPRESENT THAT ONLINE MATERIAL IS INFRINGING, YOU MAY BE SUBJECT TO CRIMINAL PROSECUTION FOR PERJURY AND CIVIL PENALTIES, INCLUDING MONETARY DAMAGES, COURT COSTS, AND ATTORNEYS’ FEES.
Copyright Counter-Notices. If content you posted on the site was removed due to a claim(s) of copyright infringement and you would like to dispute that removal, the process for counter-notifications is governed by Section 512(g) of the DMCA:
- To file a counter-notification with us, you must provide a written communication that sets forth the items specified below.
- Please note that under Section 512(f) of the DMCA, any person who knowingly materially misrepresents that material or activity was removed or disabled by mistake or misidentification may be subject to liability. Please also be advised that we enforce a policy that provides for the termination in appropriate circumstances of users (and removal of content from users) who are infringers. Accordingly, if you are not sure whether certain material infringes the copyrights of others, we suggest that you first contact an attorney.
Elements of Counter-Notification. To expedite our ability to process your counter-notification, please use the following format (including section numbers):
- Identify the specific URLs of material that EmergeSkilled has removed or to which EmergeSkilled has disabled access.
- Provide your full name, address, telephone number, email address and, if you are a registered User, the User name of your account.
- Provide a statement that you consent to the jurisdiction of the courts of the state of Tennessee, and that you will accept service of process from the person who provided notification to EmergeSkilled in accordance with the process outlined above or an agent of such person.
- Include the following statement: “I swear, under penalty of perjury, that I have a good faith belief that the material was removed or disabled as a result of a mistake or mis-identification of the material to be removed or disabled.”
Sign the notice. If you are providing notice by email, a scanned physical signature or a valid electronic signature will be accepted. Send the communication to the following address:
Attn: DMCA Agent
Emerge Consulting d/b/a EmergeSkilled
23906 Woodward Ave
Pleasant Ridge, MI 48069
Email: [email protected]
After we receive your counter-notification, we will forward it to the party who submitted the original claim of copyright infringement. Please note that when we forward the counter-notification, it may include any of your identifying information set forth in the counter-notification. By submitting a counter-notification, you therefore consent to having such identifying information revealed in this way.
After we send out the counter-notification, the claimant must then notify us within ten (10) days that he or she has filed an action seeking a court order to restrain you from engaging in infringing activity relating to the material on the site. If we receive such notification, we will be unable to restore the items. If we do not receive such notification, we may, but are not obligated to, reinstate the disputed item(s).
General. In accordance with the DMCA and other applicable law, EmergeSkilled has adopted a policy of terminating, in appropriate circumstances, the accounts of Users who are deemed to be repeat infringers. EmergeSkilled may also at its sole discretion limit access to the Services and/or terminate the accounts of any Users who infringe any intellectual property rights of others, whether or not there is any repeat infringement.
9.2 Other Infringing Content (Trademarks)
If you believe in good faith that any content on the Services is illegal or infringes your or a third party’s intellectual property right or you wish to make us aware of any other illegal or infringing acts which relate to the Services, you can contact us via email at [email protected]. Any notice to us must contain: (a) a detailed description of the infringing or illegal material or activity including why it is infringing or illegal; (b) a detailed description specifying the location of the material that you claim is infringing or illegal (if applicable); and (c) your name, address, telephone number and e-mail address.
- THIRD-PARTY LINKS AND SERVICES
To the maximum extent permitted by applicable law, you agree to defend, indemnify and hold harmless EmergeSkilled and its subsidiaries, and their respective directors, officers, board members, employees, agents, successors and assigns, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to all legal fees and expenses) arising from: (i) your use of and access to the Services, including any data or content transmitted or received by you; (ii) your violation of any term of this Agreement and any other agreement that you have with EmergeSkilled, including without limitation your breach of any of the representations and warranties herein; (iii) your violation of any third-party rights, including without limitation any right of privacy or Intellectual Property Rights; (iv) your violation of any applicable law, rule or regulation, including, without limitation, your violation of the U.S. Fair Credit Reporting Act, or pursuant to applicable credit reporting laws, and any applicable data protection laws; (v) any claims or damages that arise as a result of your User Content; (vi) any other party’s access and use of the Services with your account or log-in information; and/or (vii) your intentional or willful misconduct, or negligence.
- NO WARRANTY
12.1 Disclaimer of Warranties
NOTHING IN THIS AGREEMENT SEEKS TO EXCLUDE ANY CONDITION, WARRANT OR GUARANTEE THAT CANNOT BE EXCLUDED UNDER APPLICABLE LAW.
EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EmergeSkilled DOES NOT GUARANTEE ANY RESULTS FROM USING THE SERVICES. THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. USE OF THE SERVICES ARE AT YOUR OWN OPTION AND RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES ARE PROVIDED WITHOUT WARRANTIES, GUARANTEES, CONDITIONS OR TERMS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PURPOSE OR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR ANY OTHER IMPLIED WARRANTY UNDER THE UNIFORM COMPUTER INFORMATION TRANSACTIONS ACT AS ENACTED BY ANY STATE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM EmergeSkilled, ITS EMPLOYEES, OR AGENTS, OR THROUGH THE SERVICES, WILL CREATE ANY WARRANTY, GUARANTEE, TERM OR CONDITION NOT EXPRESSLY STATED HEREIN. WITHOUT LIMITING THE FOREGOING, WE DO NOT WARRANT THAT (I) ANY CONTENT PROVIDED ON OR THROUGH THE SERVICES IS ACCURATE, LEGALLY COMPLIANT, UP-TO-DATE, RELIABLE OR CORRECT; (II) THE SERVICES WILL MEET YOUR REQUIREMENTS; (III) THE SERVICES WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION, OR WILL BE UNINTERRUPTED OR SECURE; (IV) ANY DEFECTS OR ERRORS WILL BE CORRECTED; OR (V) THAT THE SERVICES ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. ANY CONTENT DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICES IS DOWNLOADED OR AVAILABLE AT YOUR OWN OPTION AND RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA OR ANY OTHER TYPE OF LOSS THAT RESULTS FROM SUCH CONTENT OR YOUR USE OF THE SERVICES.
IF ANY SUCH WARRANTY OR GUARANTEE CANNOT BE EXCLUDED UNDER APPLICABLE LAW, THEN TO THE EXTENT PERMITTED BY APPLICABLE LAW, EmergeSkilled’ LIABILITY FOR BREACH OF ANY SUCH WARRANTY OR GUARANTEE IS LIMITED (AT EmergeSkilled’ OPTION) TO: (A) FOR GOODS, THE REPAIR OR REPLACEMENT OF THE GOODS, THE SUPPLY OF EQUIVALENT GOODS OR PAYMENT OF THE COST OF THE REPAIR OR REPLACEMENT OF THE GOODS OR SUPPLY OF EQUIVALENT GOODS; OR (B) FOR SERVICES, THE RESUPPLY OF THE SERVICES OR PAYMENT OF THE COST OF THE RESUPPLY OF THE SERVICES.
12.2 Universal Disclaimer
EmergeSkilled DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A USER OR THIRD PARTY THROUGH THE SERVICES OR ANY HYPERLINKED WEBSITE OR SERVICE, AND EmergeSkilled WILL NOT BE A PARTY TO OR IN ANY WAY MONITOR ANY TRANSACTION BETWEEN YOU AND A USER OR THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES.
EmergeSkilled DOES NOT WARRANT THAT YOUR USE OF THE SERVICES WILL SATISFY OR ENSURE COMPLIANCE WITH ANY LEGAL OBLIGATIONS OR LAWS OR REGULATIONS.
- LIMITATION OF LIABILITY
(A) TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND EXCEPT AS OTHERWISE EXPRESSLY STATED IN THIS AGREEMENT, IN NO EVENT SHALL EmergeSkilled, ITS SUBSIDIARIES, AND THEIR RESPECTIVE BOARD MEMBERS, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, SUCCESSOR AND ASSIGNS, BE LIABLE TO YOU, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), FOR BREACH OF STATUTORY DUTY, OR OTHERWISE FOR ANY (I) INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY DAMAGES OR LOSSES, OR ANY OTHER LOSS OR DAMAGE THAT DOES NOT ARISE NATURALLY AND ACCORDING TO THE USUAL COURSE OF THINGS FROM THE BREACH, ACT OR OMISSION RELATING TO THIS AGREEMENT AND GIVING RISE TO THAT LOSS, WHETHER OT NOT SUCH LOSS MAY REASONABLY BE SUPPOSED TO HAVE BEEN IN THE CONTEMPLATION OF THE PARTIES AT THE TIME THEY ENTERED INTO THIS AGREEMENT AS A PROBABLY RESULT OF THE BREACH, ACT OR OMISSION (ii) DIRECT OR INDIRECT; (II), LOSS OF PROFITS, GOODWILL, USE, DATA THAT RESULT FROM THE USE OF, OR INABILITY TO USE, THE SERVICES. UNDER NO CIRCUMSTANCES WILL EmergeSkilled BE RESPONSIBLE FOR ANY DAMAGE, LOSS OR INJURY RESULTING FROM HACKING, TAMPERING OR OTHER UNAUTHORIZED ACCESS OR USE OF THE SERVICES OR YOUR ACCOUNT OR THE INFORMATION CONTAINED THEREIN.
(B) TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EmergeSkilled ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT; (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO OR USE OF THE SERVICES; (III) UNAUTHORIZED ACCESS TO OR USE OF OUR SYSTEMS OR SERVERS AND/OR ANY PERSONAL INFORMATION STORED THEREIN; (IV) INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SERVICES; (V) BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE THAT MAY BE TRANSMITTED TO OR THROUGH THE SERVICES BY ANY THIRD PARTY; (VI) ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE THROUGH THE SERVICES; (VII) USER CONTENT OR (VIII) THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY USER OR THIRD PARTY.
(C) IN NO EVENT SHALL EmergeSkilled, ITS SUBSIDIARIES, AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS, SUCCESSORS AND ASSIGNS BE LIABLE TO YOU FOR ANY CLAIMS, PROCEEDINGS, LIABILITIES, OBLIGATIONS, DAMAGES, LOSSES OR COSTS IN AN AMOUNT EXCEEDING THE AMOUNT YOU PAID TO EmergeSkilled IN THE 3 MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT THAT GAVE RISE TO THE CLAIM OR USD $10, WHICHEVER IS LESSER.
(D) THIS LIMITATION OF LIABILITY SECTION APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, BREACH OF STATUTORY DUTY OR ANY OTHER BASIS AND EVEN IF EmergeSkilled HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
- AGREEMENT TO ARBITRATE
If you are located in, are based in, have offices in, or do business in a jurisdiction in which this Section is enforceable, the following mandatory arbitration provisions apply to you:
14.1 Binding Arbitration
This Section 14 is referred to in this Agreement as the “Agreement to Arbitrate”. Unless you opt-out pursuant to the opt-out procedures set forth below, you agree that any and all disputes or claims that have arisen or may arise between you and EmergeSkilled or its affiliates, whether relating to the Services, this Agreement (including any alleged breach thereof), or otherwise (each a “Dispute”), shall be resolved exclusively through final and binding arbitration, rather than a court in accordance with the terms of this Agreement to Arbitrate. Your rights will be determined by a neutral arbitrator, not a judge or jury. YOU UNDERSTAND THAT ABSENT THIS AGREEMENT TO ARBITRATE, YOU WOULD HAVE THE RIGHT TO SUE IN COURT AND HAVE A JURY TRIAL.
A party who intends to seek arbitration must first send a written notice of the dispute to the other party (“Notice”), by certified mail or Federal Express (signature required) or, in the event that we do not have a physical address on file for you, by electronic mail. EmergeSkilled’ address for Notice is: EmergeSkilled Inc., Attention: Legal Department 23906 Woodward Ave. Suite 4 Pleasant Ridge, MI 48069.
The Notice must (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought. We agree to use good faith efforts to resolve the claim directly, but if we do not reach an agreement to do so within 30 days after the Notice is received, you or EmergeSkilled may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by you or EmergeSkilled shall not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any.
Applicable to All Users: The arbitration shall be commenced and conducted under the Commercial Arbitration Rules of the American Arbitration Association (“AAA”), including the AAA’s Supplementary Procedures for Consumer-Related Disputes, each available at www.adr.org, or such other alternative dispute resolution body and arbitration rules that may be mutually agreed upon by you and EmergeSkilled. Your arbitration fees and your share of arbitrator compensation shall be governed by such rules. Any arbitration hearings will take place at a location to be agreed upon in Pleasant Ridge, MI, provided that if the claim is for $10,000 or less, you may choose whether the arbitration will be conducted (a) solely on the basis of documents submitted to the arbitrator; (b) submitted to the arbitrator; (b) through a non-appearance based telephonic hearing; or (c) by an in-person hearing as established by the AAA Rules in the county (or parish) of your billing address. The arbitrator must follow applicable law, and any award may be challenged if the arbitrator fails to do so. Except as otherwise provided in this Agreement, you and EmergeSkilled may litigate in court to compel arbitration, stay proceeding pending arbitration, or to confirm, modify, vacate or enter judgment on the award entered by the arbitrator. All aspects of the arbitration proceeding, and any ruling, decision or award by the arbitrator, will be strictly confidential for the benefit of all parties.
You and EmergeSkilled agree that any arbitration shall be limited to the Dispute between EmergeSkilled and you individually. To the full extent permitted by law, (1) no arbitration shall be joined with any other; (2) there is no right or authority for any Dispute to be arbitrated on a class-action basis or to utilize class action procedures; and (3) there is no right or authority for any Dispute to be brought in a purported representative capacity on behalf of the general public or any other persons.
14.3 Exceptions to Informal Negotiations and Arbitration
You and EmergeSkilled agree that the following Disputes are not subject to the above provisions concerning informal negotiations and binding arbitration: (1) any Disputes seeking to enforce or protect, or concerning the validity of, any of your or EmergeSkilled intellectual property rights; (2) any Dispute related to, or arising from, allegations of theft, piracy, invasion of privacy or unauthorized use; and (3) any claim for injunctive relief.
14.4 30 Day Right to Opt Out of Arbitration
You have the right to opt-out and not be bound by the arbitration provisions set forth in this Section 14 by sending written notice of your decision to opt-out to [email protected] or to EmergeSkilled at: Emerge Consulting d/b/a EmergeSkilled, 23906 Woodward Ave Suite 4 Pleasant Ridge, MI 48069. The notice must be sent to EmergeSkilled within thirty (30) days of your registering to use the Services or agreeing to these terms, otherwise you shall be bound to arbitrate disputes in accordance with the terms of those sections. If you opt-out of these arbitration provisions, they also will not bind us.
15.1 Governing Law and Location
The Services are controlled and operated by EmergeSkilled from within the United States of America. EmergeSkilled makes no representations that the Services or the materials available via the Services, are appropriate or available for use in locations outside of the United States. Those who choose to access the Services from other locations do so on their own initiative and are responsible for compliance with all United States of America laws (as applicable) as well as local laws, if and to the extent local laws are applicable.
Unless otherwise required by a mandatory law, this Agreement and any Disputes shall be governed by the internal substantive laws of the State of Tennessee, without respect to its conflict of laws principles. An arbitrator shall not be bound by rulings in prior arbitrations involving different Users, but is bound by rulings in prior arbitrations involving the same User to the extent required by applicable law. Except as otherwise expressly provided in this Agreement, all arbitration and other litigation in a court of competent jurisdiction of any dispute between you and EmergeSkilled related to this Agreement shall be located in Shelby County, Tennessee.
You may not use the Services if you are a resident of a country embargoed by the United States, or are a foreign person or entity blocked or denied by the United States government.
This Agreement shall be personal to you and you may not assign, transfer, sublet, lease or delegate all or any of your rights and obligations, without the prior written consent of EmergeSkilled. EmergeSkilled can assign this Agreement or delegate its obligations without restriction other than as required under applicable law.
15.3 Relationship of the Parties
Nothing in this Agreement shall be construed as making either party the partner, joint venturer, employer, contractor or employee of the other. Neither party shall have or hold itself out to any third party as having any authority to make any statements, representations or commitments of any kind, or to take any action, that shall be binding on the other, except as provided for herein or authorized in writing by the party to be bound.
Except as set out in this Agreement, only you and EmergeSkilled may enforce this Agreement as this contract is between you and EmergeSkilled; no other party shall be entitled to enforce the terms of this Agreement.
15.4 Notification Procedures
EmergeSkilled may provide notifications, whether such notifications are required by law or are for marketing or other business related purposes, to you via email notice, written or hard copy notice, or through conspicuous posting of such notice on our websites, as determined by EmergeSkilled in its sole discretion. EmergeSkilled reserves the right to determine the form and means of providing notifications to Users, provided that you may opt out of certain means of notification as described in this Agreement. EmergeSkilled is not responsible for any automatic filtering you or your network provider may apply to email notifications we send to the email address you provide us. We recommend that you add [email protected] to your email address book to help ensure you receive email notifications from us.
15.5 Entire Agreement
This Agreement, together with any amendments and any additional agreements you may enter into with EmergeSkilled in connection with the Services, shall constitute the entire agreement and understanding between you and EmergeSkilled concerning the Services. You acknowledge and agree that you have not relied upon any statement, promise or representation made or given by or on behalf of EmergeSkilled, which is not set out in this Agreement or any document expressly referred to herein.
15.6 Compliance with Laws
You agree to comply with all applicable laws, regulations and ordinances in the use of the Services and the conduct of your activities.
Pursuant to your use of the Services, you may receive information or be exposed to features and functionality that are not known or available to the general public, including, but not limited to, login credentials, technology, API Keys, dashboards, widgets, insertion codes, salary data and Salary Data Displays, and guidelines and documentation relating to the Services (“Confidential Information”). You agree that: (a) all Confidential Information will remain the exclusive property of EmergeSkilled; (b) you will use Confidential Information only as is necessary for your use of the Services and in accordance with this Agreement; (c) you will not disclose Confidential Information to any third party; and (d) you will take all reasonable measures to protect the Confidential Information against any use or disclosure that is not expressly permitted in this Agreement. You further agree not to share with, or otherwise disclose to, any third party, login credentials or any other mechanism that permits access to the Services or any other non-public area of the EmergeSkilled websites.
15.8 Equitable Relief
You acknowledge that a breach by you of any confidentiality or proprietary rights provision of this Agreement may cause EmergeSkilled irreparable damage, for which the award of damages would not be adequate compensation. Consequently, EmergeSkilled may institute an action to enjoin you from any acts in violation of those provisions, which remedy shall be cumulative and not exclusive, and additionally, EmergeSkilled may seek the entry of an injunction enjoining any breach or threatened breach of those provisions, in addition to any other relief to which we may be entitled at law or in equity.
15.9 No Publicity.
You shall not publicly disclose, issue any press release nor make any other public statement, nor otherwise communicate with the media, concerning the existence of this Agreement or the subject matter hereof, or the relationship with us without the prior written approval of our legal counsel. You further agree not to misrepresent or embellish your relationship with us. You agree to refer any inquiry that you receive from the media or other third parties, concerning this Agreement, the Services, and/or EmergeSkilled to our legal counsel at: [email protected]
15.10 Electronic Contracting.
Your use of the Services includes the ability to enter into agreements and/or to make transactions electronically. YOU ACKNOWLEDGE THAT YOUR ELECTRONIC SUBMISSIONS CONSTITUTE YOUR AGREEMENT AND INTENT TO BE BOUND BY THIS AGREEMENT, AND THAT YOUR INTENT TO BE BOUND BY ELECTRONIC SUBMISSIONS APPLIES TO ALL RECORDS RELATING TO TRANSACTIONS YOU ENTER INTO ON ANY EmergeSkilled WEBSITE, INCLUDING NOTICES OF CANCELLATION, POLICIES, CONTRACTS, AND APPLICATIONS.
Any waiver of any provision of this Agreement will be effective only if in writing and signed by EmergeSkilled. No failure by EmergeSkilled to exercise, or to delay in exercising, any rights hereunder shall operate as a waiver hereof, nor shall any single or partial exercise of any right hereunder by EmergeSkilled preclude any other or future exercise of that right or any other right hereunder by EmergeSkilled. If a court of competent jurisdiction holds any provision of this Agreement invalid or unenforceable, such invalidity shall not affect the validity or operation of any other provision and such invalid provision shall be deemed to be severed from this Agreement.
SAAS TERMS AND CONDITIONS
- SUBSCRIPTION TO THE SERVICE
Subject to the Agreement, Emerge Consulting d/b/a EmergeSkilled (“EmergeSkilled”) will use commercially reasonable efforts to provide Customer access to EmergeSkilled’ digital connectivity software as a service that connects students and/or recent graduates to business opportunities (the “Platform”), and all of the “Services” set forth herein and in Customer’s Order Form (as used herein, the “Services” shall include the Platform and the Software (defined below)). Access and use of the Platform shall be limited to the Service Capacity set forth on the Order Form. EmergeSkilled shall provide the Services to Customer, and provide Customer with training, implementation, and support services related thereto, on the terms and subject to the conditions set forth in this Agreement.
- RESTRICTIONS AND RESPONSIBILITIES
- Customer will not, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services (including the Platform) or any software, documentation or data related to the Services (“Software”); modify, translate, or create derivative works based on the Services or any Software (except to the extent expressly permitted by EmergeSkilled or authorized within the Services); use the Services or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third party; remove any proprietary notices or labels; and/or intentionally interfere in any manner with the operation of the Services or the Software.
- Further, Customer may not remove or export from the United States or allow the export or re-export of the Services, Software or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. As defined in FAR section 2.101, the Software and documentation are “commercial items” and according to DFAR section 252.2277014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.
- Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”). Customer shall also be responsible for maintaining the security of the Equipment, Customer account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer account or the Equipment with or without Customer’s knowledge or consent.
- Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Proprietary Information of EmergeSkilled includes non-public information regarding features, functionality and performance of the Service. Proprietary Information of Customer includes non-public data provided by Customer to EmergeSkilled to enable the provision of the Services (“Customer Data”). The Receiving Party agrees: (a) to take reasonable precautions to protect such Proprietary Information, and (b) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after five (5) years following the disclosure thereof or any information that the Receiving Party can document (i) is or becomes generally available to the public, or (ii) was in its possession or known by it prior to receipt from the Disclosing Party, or (iii) was rightfully disclosed to it without restriction by a third party, or (iv) was independently developed without use of any Proprietary Information of the Disclosing Party or (v) is required to be disclosed by law.
- INTELLECTUAL PROPERTY
- EmergeSkilled shall own and retain all right, title and interest in and to: (a) the Services; (b) the source code and object code underling the Services and the underlying structure, ideas, know-how or algorithms relevant to the Services; (c) any software, documentation, data (other than Customer Data), applications, inventions or other technology related to or developed in connection with the Services; (d) all improvements, enhancements, or modifications to any of the foregoing (whether or not based upon any suggestions, enhancement requests, recommendations or other feedback provided by Customer relating to the Services); and (e) all intellectual property rights related to any of the foregoing (collectively, “EmergeSkilled IP”), and such EmergeSkilled IP shall be EmergeSkilled’ sole and exclusive property. Customer shall have no proprietary interest in the EmergeSkilled IP, and will not seek, and will require its employees, agents, or subcontractors not to seek, patent, copyright, trademark, registered design, or other protection for any rights in any EmergeSkilled IP. Customer acknowledges that the EmergeSkilled IP is protected by intellectual property rights owned by or licensed to EmergeSkilled. Other than as expressly set forth in this Agreement, no license or other rights in any EmergeSkilled IP are granted to the Customer.
- Customer hereby grants EmergeSkilled a license to use all necessary intellectual property rights of Customer free of charge and on a non-exclusive, worldwide, non-transferable, non-sublicenseable, fully paid-up, royalty-free, and perpetual basis to the extent necessary to enable EmergeSkilled to provide the Services. Customer hereby agrees to provide the trademarks, logos, color schemes, and other intellectual property for use by EmergeSkilled upon request in order to provide the Services. Except as set forth in this Section 4, nothing in this Agreement shall grant or shall be deemed to grant EmergeSkilled any right, title or interest in or to the Customer’s intellectual property rights.
- DATA COLLECTION AND USE
- Customer shall own all right, title and interest in and to the Customer Data, as well as any data that is based on or derived from the Customer Data and provided to Customer as part of the Services. Subject to the terms of the Agreement, EmergeSkilled is provided a limited license to Customer Data for the purpose of providing the Services, including a license to collect, process, store, and display Customer Data to the extent appropriate in providing the Services. EmergeSkilled shall use and disclose Customer Data solely for the purpose of providing the Services, and shall not use, sell, rent, transfer, distribute, or otherwise disclose or make available Customer Data for the benefit of anyone other than Customer without Customer’s prior written consent.
- Notwithstanding the foregoing, EmergeSkilled may use certain Aggregated Data (defined below) in order to perform analysis and statistical reports and for auditing, research and analysis to operate and improve EmergeSkilled’ technologies and services. “Aggregated Data” means aggregated statistical information and data that is not identifiable to any person or entity. EmergeSkilled shall not disclose to any third party any Aggregated Data that reveals or discloses Customer’s Proprietary Information or the identity of the Customer. Without limiting the generality of the foregoing, EmergeSkilled shall have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (including, without limitation, information concerning Customer Data and Student Data and data derived therefrom), and EmergeSkilled will be free (during and after the Term) to use such information and data to improve and enhance the Services, the Platform, and the Software, and for other development, diagnostic and corrective purposes in connection with the Services and other EmergeSkilled offerings, and to disclose such data solely in aggregate or other de-identified form in connection with its business.
- PAYMENT OF FEES
- Customer will pay EmergeSkilled the then applicable fees described in the Order Form for the Services in accordance with the terms therein (the “Fees”). If Customer’s use of the Services exceeds the Service Capacity set forth on the Order Form or otherwise requires the payment of additional fees (per the terms of this Agreement), Customer shall be billed for such usage and Customer agrees to pay the additional fees in the manner provided on the Order Form. EmergeSkilled reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the Initial Service Term or thencurrent renewal term, upon thirty (30) days prior notice to Customer (which may be sent by email). If Customer believes that EmergeSkilled has billed Customer incorrectly, Customer must contact EmergeSkilled no later than 60 days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. Inquiries should be directed to [email protected]
- EmergeSkilled may choose to bill through an invoice, in which case, full payment for invoices issued in any given month must be received by EmergeSkilled 30 days after the mailing date of the invoice. Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection and may result in immediate termination of Service. Customer shall be responsible for all taxes associated with Services other than U.S. taxes based on EmergeSkilled’ net income.
- TERM AND TERMINATION
- Subject to earlier termination as provided below, this Agreement is for the Initial Service Term as specified in the Order Form. Unless otherwise set forth in an Order Form, each Order Form will renew for additional one-year terms unless either party gives written notice of non-renewal at least 30 days prior to the expiration of the then-current term. “Term” means collectively the initial term and each renewal term of this Agreement.
- In addition to any other remedies it may have, either party may also terminate this Agreement upon thirty (30) days’ notice (or without notice in the case of nonpayment). Customer will pay in full for the Services up to and including the last day on which the Services are provided. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.
- WARRANTY AND DISCLAIMER
EmergeSkilled shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by EmergeSkilled or by third-party providers, or because of other causes beyond EmergeSkilled’ reasonable control, but EmergeSkilled shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. EmergeSkilled DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES AND IMPLEMENTATION SERVICES ARE PROVIDED “AS IS” AND EmergeSkilled DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
- By EmergeSkilled. EmergeSkilled shall hold Customer harmless from liability to third parties resulting from infringement by the Service of any United States patent or any copyright or misappropriation of any trade secret, provided EmergeSkilled is promptly notified of any and all threats, claims and proceedings related thereto and given reasonable assistance and the opportunity to assume sole control over defense and settlement; EmergeSkilled will not be responsible for any settlement it does not approve in writing. The foregoing obligations do not apply with respect to portions or components of the Service (a) not supplied by EmergeSkilled, (b) made in whole or in part in accordance with Customer specifications, (c) that are modified after delivery by EmergeSkilled, (d) combined with other products, processes or materials where the alleged infringement relates to such combination, (e) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (f) where Customer’s use of the Service is not strictly in accordance with this Agreement. If, due to a claim of infringement, the Services are held by a court of competent jurisdiction to be or are believed by EmergeSkilled to be infringing, EmergeSkilled may, at its option and expense (i) replace or modify the Service to be non-infringing provided that such modification or replacement contains substantially similar features and functionality, (ii) obtain for Customer a license to continue using the Service, or (iii) if neither of the foregoing is commercially practicable, terminate this Agreement and Customer’s rights hereunder and provide Customer a refund of any prepaid, unused fees for the Service
- By Customer. If any action is instituted by a third party against EmergeSkilled arising out of or related to (a) Customer’s breach of this Agreement or failure to comply with its obligations hereunder, or (b) acts or omissions of Customer or any of its employees, contractors, affiliates, or agents (including physical injury of any person or damage to property caused by any such person), Customer shall indemnify and hold EmergeSkilled harmless with respect to such action. Customer shall defend such action at its own expense on behalf of EmergeSkilled and shall pay all damages attributable to such claim which are finally awarded against EmergeSkilled or paid in settlement of such claim.
- LIMITATION OF LIABILITY
NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT FOR BODILY INJURY OF A PERSON, EmergeSkilled AND ITS SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT AND TECHNOLOGY SUPPLIERS), OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND EmergeSkilled’ REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY CUSTOMER TO EmergeSkilled FOR THE SERVICES UNDER THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT EmergeSkilled HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
- FORCE MAJEURE
Any delay in the performance of any duties or obligations of either party (except the payment of money owed) will not be considered a breach of this Agreement if such delay is caused by an act, event, or occurrence beyond such party’s reasonable control, including, without limitation, acts of God, fires, floods, storms, landslides, epidemics, pandemics, lightning, earthquakes, drought, blight, famine, quarantine, blockade, governmental acts or inaction, orders or injunctions, war, insurrection or civil strife, sabotage, explosions, labor strikes, work stoppages, acts of terror, issues arising from bugs or other problems in the software, firmware or hardware of EmergeSkilled’ suppliers, or outages or issues with upstream providers or network carriers (any such event, a “Force Majeure Event”), provided that such party uses reasonable efforts, under the circumstances, to notify the other party of the cause of such delay and to resume performance as soon as commercially feasible.
- TECHNICAL SUPPORT
EmergeSkilled will provide technical support to Customer via electronic mail on weekdays during the hours of 9:00 am through 5:00 pm Eastern time, with the exclusion of Federal holidays. Customer may initiate a helpdesk ticket by emailing [email protected] EmergeSkilled will use commercially reasonable efforts to respond to all helpdesk tickets within 1 business day.
If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable or sublicensable by either party without the other party’s prior written consent, except in connection with a corporate reorganization or merger, acquisition, or sale of all or substantially all of its business and/or assets. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind EmergeSkilled in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. This Agreement shall be governed by the laws of the State of Tennessee without regard to its conflict of laws provisions. Customer hereby expressly consents to the exclusive personal jurisdiction and venue in the state and federal courts for the county in which EmergeSkilled’ principal place of business is located for any action arising from or related to this Agreement. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. Customer shall always comply with all international and domestic laws, ordinances, regulations, and statutes that are applicable to its purchase and use of the Services and Software.