Thank you for visiting TalentCheetah. These Terms of Service govern your access and use of www.talentcheetah.com (the “Site”) owned and operated by TalentCheetah, LLC (collectively, “TalentCheetah,” “we,” “us” or “our”) and all associated content (“Content”), services (“Services”), applications, features and products available at or through the Site.
By accessing the Site and/or using the Services, you are forming a binding contract as described herein with TalentCheetah and you attest that you are able to form a binding contract with TalentCheetah and are not a person barred from receiving services under the laws of the United States or other applicable jurisdiction.
If you are accepting these Terms on behalf of a company, organization, or other legal entity, you represent and warrant that you are authorized to do so. You may use the Services only in compliance with these Terms and all applicable local, state, national, and international laws, rules and regulations.
Glossary of Terminology. The terminology below is used throughout the Terms and have specific meanings in the Agreement. A close review and understanding of each term are recommended.
The term “Agreement” (which may also be referenced herein as the “Terms of Service” or “Terms”) refers, collectively, to all the terms, conditions, and notices contained or referenced in this document.
The term “Service” or “Services” refers to the services provided by TalentCheetah, including without limitation access to TalentCheetah’s online platform and professional network; communication and messaging tools; document management; time tracking and invoicing; and payment services.
The “Site” or “TalentCheetah Platform” refers to TalentCheetah’s website located at https://www.talentcheetah.com, all subpages and subdomains, and all content, services, and products available at or through the Site.
“TalentCheetah,” “We,” “Our” or “Us” refer to TalentCheetah, LLC, as well as our affiliates, directors, subsidiaries, officers, and employees.
“The User,” “You” or “Your” refer to the person, company, or organization that has accessed or is using the Site and/or the Service. A User may be registered or non-registered. They may be a Client and/or Business Entity, an Independent Consultant / Freelancer, both, or neither.
“Registered User” refers to a User that has signed up to use the TalentCheetah Services. A Registered User may be a Client or Independent Consultant / Freelancer.
“Independent Consultant” or “Freelancer” or “Professional” or “Independent Consultant User” refer to Users who sign up and register as an Independent Consultant User with the intent to provide consulting services to other Users. They may provide Professional Services or consulting services to Clients or fellow Independent Consultants via the Service.
“Client” or “Client User” refer to Users who sign up and register as a Client User with the intent of finding and hiring an Independent Consultant / Freelancer for project-based work. A Client may post projects (“Projects”) on the Site and communicate directly with Independent Consultants via the TalentCheetah Platform.
“Project” and “Projects” refer to open jobs or work opportunities that are posted to the TalentCheetah Site by Client Users in an effort to find and hire an Independent Consultant / Freelancer to perform consulting services.
"Content” refers to content displayed through the Site, including without limitation text, documents, information, data, images, photographs, graphics, software, applications, video recordings, audio recordings, sounds, designs, features, and other materials that are available on the Site. Content includes, without limitation, User-Generated Content, which may be submitted by any TalentCheetah User.
“Professional Services” refer to the consulting work performed and executed by Independent Consultants for Clients that they meet through the TalentCheetah Platform.
”Project Proposal” or “Proposal” refer to the document that TalentCheetah requires the Client and the hired Independent Consultant to submit prior to the commencement of any project work. The Proposal outlines project terms, including but not limited to, hourly rate or fixed fee, estimated number of hours per week, project location, and start date.
“User-Generated Content” refers to any feedback, content, text, photos, links, images, music, data or any information a User posts to the Site or provides directly to TalentCheetah.
1. TalentCheetah Platform Services
1.1 Electronic / Digital Signature
By registering for a TalentCheetah User account through the Site (an “Account), or by clicking to accept TalentCheetah’s Terms of Service when prompted on the Site, you are deemed to have executed this Agreement and any other Terms and and Conditions of Use electronically, effective on the date you register your account or click to confirm that you agree to and accept TalentCheetah’s Terms of Service, pursuant to the U.S Electronic Signatures in Global and National Commerce Act (the E-Sign Act) (15 U.S.C. § 7001, et seq).
1.2 TalentCheetah Service Overview
TalentCheetah Services are accessible online at www.talentcheetah.com. Only a Registered User (“Registered User”) is permitted to access the Services. Registration includes account creation on the TalentCheetah Platform. The TalentCheetah Platform is an online talent marketplace that connects Clients needing help with projects with Independent Consultant Users who have been prescreened and approved to join the TalentCheetah Network.
1.3 Agreement on Project Proposal Prior to the Commencement of Project Work
The Client and Independent Consultant are responsible for finalizing all Project Terms (“Project Terms”), required to perform the Professional Services prior to the start of any project work. This includes, without limitation, the methodology and details for performing the Professional Service, a description of the Scope of Services to be performed, the estimated project duration, the agreed to hourly rate or fixed fee, any required equipment and supplies needed to perform the professional service, work schedule, work location, availability and maximum/minimum hours billable per week. The Client and Independent Consultant are responsible for determining any onboarding or travel needs related to the scope of the Professional Service, as well as all associated costs, when applicable.
Project terms are documented by the Independent Consultant in a Project Proposal (“Proposal”) through the TalentCheetah platform. Client must review and approve terms prior to the commencement of work by the consultant. No payments shall be dispersed to an Independent Consultant without a valid Proposal on file. The Independent Consultant hired by the Client through the TalentCheetah Platform and named in the Proposal must be the Professional who delivers the Professional Service to the Client. Subcontracting a Project, in whole or in part, is not permitted.
TalentCheetah is not a Party to the Proposal contract but simply provides the software platform that enables the Client User and the Independent Consultant to connect and decide whether to engage.
1.4 Billable Hours.
Once a Client hires an Independent Consultant and a final Proposal is completed, Professional Services (“Professional Services”) may begin. Independent Consultants will bill Clients for all time incurred in rendering agreed upon Professional Services.
Client understands that Independent Consultants set their own rates, therefore, Independent Consultant rates may vary depending on skills, experience, sector, location, materials required to render Professional Services and the scope of the Professional Services sought by the Client. Hourly Rates (“Rates) or Fixed Fees ("Fixed Fees") for Professional Services are negotiated directly between the Client and the Independent Consultant and documented in the final Proposal prior to the start of any Project.
1.5 TalentCheetah is Not a Party to Contracts.
TalentCheetah is not a party, agent, representative, principal, employer, beneficiary, related entity, joint venturer, or partner with Clients or Independent Consultants and is not a party to any agreements entered into between Client and Independent Consultants. The TalentCheetah Service is a platform for collaboration and communication between project management experts and those seeking project management assistance.
1.6a Client Users. TalentCheetah Service is available only to legal entities and persons who are at least eighteen (18) years old and are otherwise capable of forming legally binding contracts under applicable law. Clients, by using the Services, represent and warrant that no applicable law or contractual obligation prohibits them from entering into contract to use the Services.
1.6b Independent Consultant User. TalentCheetah Service is available only to legal entities and persons who are at least eighteen (18) years old and are otherwise capable of forming legally binding contracts under applicable law. Independent Consultant Users, by using the Services, represent and warrant that no applicable law or contractual obligation prohibits them from entering into a contract to provide Services.
1.7 Background Checks not conducted.
As part of our rigorous prescreen process, TalentCheetah does not perform background checks on Independent Consultants. Should a Client User require a background check prior to hiring an Independent Consultant, they must work directly with the Independent Consultant to do so. Client User shall incur all costs related to conducting a background check.
1.8 User Accounts
TalentCheetah Users are solely responsible for protecting the security of their TalentCheetah platform account credentials, including their passwords. Users are solely responsible for any use or action taken through the use of such passwords on the TalentCheetah Platform. A User must notify TalentCheetah support at email@example.com immediately if they suspect that any of their passwords have been lost or stolen, or the security of their TalentCheetah Service has been otherwise compromised.
1.8a User Compliance with Laws. User represents and warrants that: (a) you have the authority to, and are of legal age in your jurisdiction to, bind yourself to this Agreement; (b) your use of the TalentCheetah Service will be solely for purposes that are permitted by this Agreement; (c) your use of the TalentCheetah Service will not infringe or misappropriate the intellectual property rights of any third party; and (d) your use of the TalentCheetah Service will comply with all local, state and federal laws, rules, and regulations, and with all other TalentCheetah policies.
1.8b No Liability for User Interactions; TalentCheetah May Monitor Interactions. Any liability, loss or damage that occurs as a result of any User interactions, including, without limitation, Project Postings, that are input or received through the use of the Service is solely a User’s responsibility. At our sole discretion, we, or technology we select, may monitor User general interactions with the Service to safeguard the User community and enforce compliance.
1.8c User Responsibilities. Users are solely responsible for ensuring that any information, solicitations, or advertisements they post or place on the Site, including without limitation, all User-Generated Content, and any communications they may have with other Users through the Site or the Service, fully comply with all applicable laws and rules of professional conduct, including those regulating the form, manner or content of communications with Users, advertising, privacy or other matters.
1.8d Right to Terminate Accounts. TalentCheetah reserves the right to, in our sole discretion, determine whether or not any User conduct is appropriate and complies with these Terms, or terminate or deny access to and use of the Service to any User for any reason, with or without prior notice.
1.10 Independent Consultant Status (Freelancer)
As a Freelance Professional, you acknowledge and agree that your relationship to TalentCheetah is that of an Independent Consultant /Contractor and vendor rendering Professional Services, and that (a) you have no authority to act on behalf of TalentCheetah; (b) TalentCheetah does not, in any way, supervise, direct, or control your performance of Professional Services; and (c) TalentCheetah is not a party to any contract(s) you may enter into with Clients outside of this Agreement and will not have any liability or obligations under any such contracts.
Furthermore, consistent with your status as an Independent Consultant/contractor/vendor of TalentCheetah, neither you nor any of your principals, employees or agents (if applicable) shall be entitled to participate in or receive any compensation or benefits from TalentCheetah, that TalentCheetah provides or makes available to its employees pursuant to legal requirements or otherwise including, without limitation, worker’s compensation insurance, travel accident insurance, medical/dental insurance, life insurance, short- term and/or state disability insurance or benefits, long-term disability insurance, holiday pay, sick pay, paid vacation, bonuses, salary continuation pay, leaves of absence (paid or unpaid), pension plan benefits, retirement savings plan benefits or lease vehicle benefits. You are solely responsible for:
compensating any of your principals, employees and agents who provide any services to TalentCheetah or Client on your behalf, including, without limitation, wages and employee benefits;
reporting to all applicable government agencies all amounts paid to such principals, employees and agents;
withholding and payment of all applicable taxes including, without limitation, unemployment insurance, Federal Insurance Contributions Act and Federal Unemployment Tax Act.
The TalentCheetah Independent Consultant acknowledges that, while working with a TalentCheetah Client on a Project, they may be in receipt of confidential and proprietary business information from a Client. The Independent Consultant understands that confidential information is the sole property of the Client. They agree to treat the Client’s Confidential Information as confidential and will not disclose it to any third party or use it for any purpose but to fulfill their obligations as detailed in the TalentCheetah Project Proposal. In addition, the Independent Consultant shall use due care and diligence to prevent the unauthorized use or disclosure of such information.
This restriction also applies to all employees, agents, and subcontractors of the Independent Consultant. At Project Completion, the Independent Consultant will promptly return to the Client, or certify destruction of, all copies of Confidential Information furnished by the Client and all material prepared for or in connection with the Project. This obligation of confidentiality shall survive completion of the Project.
Clients, at their sole discretion, may request that an Independent Consultant sign a Non-Disclosure Agreement that is separate from the confidentiality terms outlined in this section (1.11). TalentCheetah is not a Party to any separate Non-Disclosure Agreements.
1.12 Code of Conduct and Professionalism
Users agree they will conduct themselves in a professional, honest and courteous manner to other Users at all times. TalentCheetah maintains a zero-tolerance policy as it pertains to any type of discrimination, harassment or abuse. Users may not refuse to provide or accept Professional Services based on a person’s race, religion, national origin, disability, sexual orientation, sex, marital status, gender identity, age or any other characteristic protected under applicable federal or state law.
All reports of discrimination, harassment or abusive conduct are taken seriously and may result in permanent loss of access to the TalentCheetah Service. If you feel that you have been treated inappropriately by another User, please contact firstname.lastname@example.org and provide a brief description of your concern.
Clients should expect to engage with Independent Consultants producing high-quality work. TalentCheetah may temporarily or permanently deactivate an account, at our sole discretion, if a User repeatedly receives reviews, ratings, or complaints regarding a lack of professionalism or quality.
TalentCheetah reserves the right to request and Users agree to provide as requested all records and documentation related to User’s activities with respect to the TalentCheetah platform.
1.13 Work Product Owned by Client
All Work Product (“Work Product”), including but not limited to, documents, reports, presentations, plans, videos, software, hardware, products, graphics, or other materials created by the Independent Consultant for the Client during the Project, is owned exclusively by the Client. The Independent Consultant has no right or interest in any work or product resulting from the Professional Service they perform for the Client.
1.14 License to Use TalentCheetah Service
Contingent upon a User’s compliance with these Terms, TalentCheetah hereby grants a User with a personal, non-exclusive, non-transferable, revocable, limited license (without the right to sublicense) to access and use the TalentCheetah Platform for their internal business purposes only. The limited rights granted to Users to access and use the TalentCheetah Service comprise a limited license and do not constitute the sale of any software program or other intellectual property.
1.15 Exclusivity Period
Clients and Independent Consultants acknowledge that TalentCheetah uses substantial labor, cost and effort to match Clients with prescreened and thoroughly vetted Independent Consultants. As such, Clients and Independent Consultant Users agree to abide by the exclusivity terms detailed in 1.15a, 1.15b and 1.15c below.
1.15a Client: For a period of twenty-four (24) months from the start date of your first contract with an Independent Consultant hired through the TalentCheetah Platform (“Exclusivity Period”), you will use the TalentCheetah Platform as your exclusive method for receipt of all Professional Services from that Independent Consultant and make all payments, directly or indirectly, with that Independent Consultant. During the Exclusivity Period, you shall not make complete or partial payments to the Independent Consultant for Professional Services outside of the TalentCheetah Platform Services, or otherwise circumvent TalentCheetah’s role as payment processor or the TalentCheetah’s Platform Services’ payment methods, and any violation of the foregoing restrictions is a material breach of this Agreement.
By way of example and not in limitation of the foregoing or exhaustive in coverage, within the Exclusivity Period you will not: (a) accept proposals from, receive Professional Services from, or make payments to any Independent Consultants first identified through the TalentCheetah Platform Services except via TalentCheetah; or (b) pay or report on the TalentCheetah Platform Services a payment amount lower than that actually agreed between you and an Independent Consultant through the TalentCheetah Platform Services.
1.15b Independent Consultant: For a period of twenty-four (24) months from the start date of your first contract with a TalentCheetah Client (the “Exclusivity Period”), you agree to use the TalentCheetah Platform as your exclusive method for negotiating, executing and receiving payments for Professional Services with said Client. This includes all Projects and / or Services you execute for the Client within the Exclusivity Period, whether the Project originated on the TalentCheetah Platform or not.
During the Exclusivity Period with a Client, you shall not promote, solicit or accept complete or partial payment for Professional Services outside of the TalentCheetah Platform Services, or otherwise circumvent TalentCheetah’s role as payment processor with that Client. Any violation of the foregoing restrictions is a material breach of these Terms.
1.15c Exclusivity Period Violations: Any action that encourages or solicits complete or partial payment outside of the TalentCheetah Platform during the Exclusivity Period is a violation of these Terms. If a Client or Independent Consultant is found in violation of these Terms, TalentCheetah shall assess a fee with respect to each violation equal to the greater of (a) twenty five thousand dollars ($25,000.00); or (b) the applicable fees had the payments been processed through the TalentCheetah Platform, plus twenty-five percent (25%).
CLIENTS AND INDEPENDENT CONSULTANTS MUST NOTIFY TALENTCHEETAH IMMEDIATELY IF THEY KNOW OR SUSPECT THAT A USER IS IN BREACH OF THE EXCLUSIVITY TERMS BY EMAILING email@example.com. ALL NOTIFICATIONS WILL BE INVESTIGATED PROMPTLY BY TALENTCHEETAH. WHEN POSSIBLE, THE IDENTITY OF THE REPORTING PARTY WILL BE KEPT PRIVATE.
1.16 No Prior Restrictions
User represents and warrants that they are not a party to any other contract, agreement, restrictive covenant, non-compete or any other prior restrictions (“Prior Restrictions”) which would be violated by User’s access or use of the TalentCheetah Platform. User represents and warrants that there are no Prior Restrictions which would, in any manner whatsoever, prohibit, restrict or impact User’s ability to use or access the TalentCheetah Platform.
1.17 Conversion of a TalentCheetah Independent Consultants to a Full-Time Employee / Traditional Employment
If a Client offers traditional full-time employment (“Full-Time Employment) to an Independent Consultant engaged or first contacted through the TalentCheetah platform during the Exclusivity Period, the Client agrees to pay TalentCheetah a one-time Conversion Service Fee (“Conversion Service Fee”), equivalent to 15 percent of the annual employee salary or compensation payable to said Independent Consultant, as documented in an executed Offer Letter (“Offer Letter”) . Bonuses, commission, moving expenses, tuition reimbursement or any other compensation or type of allowance are excluded from this fee.
Clients may extend offers of traditional Full-Time Employment to an Independent Consultant during the twenty-four (24) month Exclusivity Period as follows:
Client will notify TalentCheetah, in writing, at firstname.lastname@example.org, with “read and received enabled”, with subject line “Conversion Fee”, of their intent to pay the Conversion Service Fee and the name of the Independent Consultant. An executed copy of the final employee offer letter must be provided by the Client within seven (7) days of acceptance by the Independent Consultant.
The Conversion Service Fee is non-refundable and payment in full is due within ten (10) days of acceptance of the offer by the Independent Consultant, regardless of the employee start date or length of employment.
Upon expiration of the Exclusivity Period, the Client and Independent Consultant are free to directly engage outside of the TalentCheetah Platform and independently from these Terms.
1.18 User Fraud and Misrepresentation
TalentCheetah requires all Users to present themselves truthfully and accurately and may permanently deactivate any account associated with fraudulent activity. Specifically:
All data and information contained in a User’s profile must be true and accurate. Users agree to provide TalentCheetah with accurate and complete biographical information, including job status and employment history, and to promptly update that information as it changes. TalentCheetah reserves the right to verify information provided by or about a User at any time. If requested, Users must assist TalentCheetah in the verification process.
Users may not impersonate any other person or entity (including creating an account under a fictitious or borrowed name).
Clients posting Projects must fully disclose context and information that is relevant and critical to an Independent Consultant’s ability to successfully complete a Project.
Independent Consultants must have legal and beneficial ownership of, and all rights and interest in, any materials underlying the work product created in connection with a Project. Work product must not include any misrepresentation or fraudulent data. Independent Consultants are required to disclose any sources used in work product creation in accordance with generally accepted research practices (i.e., proactively cite primary or secondary information sources that are not their own) as a matter of general practice and upon request from the Client or TalentCheetah.
1.19 User-Generated Content on the TalentCheetah Platform
Users are permitted to use the TalentCheetah Service contingent upon their compliance with all Terms. TalentCheetah Users are solely responsible for all of their Content (“User-Generated Content”), and agree not to upload any Content prohibited by applicable law or the restrictions in this Section. TalentCheetah reserves the right to investigate and take appropriate legal action against any Users who violate this Section. The following terms are specific to user content generated, shared or uploaded to the TalentCheetah platform:
1.19.1 Prohibited Content. User agrees that you will not under any circumstances transmit any Content (including software, text, images, or other information) that:
is unlawful or promotes unlawful activities
constitutes protected health information under the Health Information Portability and Accountability Act (HIPPA)
defames, harasses, abuses, threatens, or incites violence towards any individual or group or User
is tortious, violent, defamatory, vulgar, profane, obscene, libelous, or otherwise objectionable
is pornographic, discriminatory, or otherwise victimizes or intimidates an individual or group or User on the basis of religion, gender, sexual orientation, race, ethnicity, age, or disability
is spam, is machine- or randomly-generated, constitutes unauthorized or unsolicited advertising, chain letters, any other form of unauthorized solicitation, or any form of lottery or gambling
contains or installs any viruses, worms, malware, Trojan horses, or other content that is designed or intended to disrupt, damage, or limit the functioning of any software, hardware, or telecommunications equipment or to damage or obtain unauthorized access to any data or other information of any third party
infringes on any proprietary right of any party, including patent, trademark, trade secret, copyright, right of publicity, or other rights
impersonates any person or entity, including any TalentCheetah employees or representatives
violates the privacy of any third party
constitutes material, non-public information the disclosure of which would be in violation of securities laws
Constitutes or encourages conduct that would constitute a criminal offense, giving rise to civil liability or otherwise violate any city, state, national or international law or regulation or that fails to comply with accepted Internet protocol;
is copyrighted or otherwise owned by a third party unless you are the copyright owner or have the permission of the owner to post it;
reveals trade secrets, unless you own them or have the permission of the owner;
infringes on any other intellectual property, privacy or publicity right of another;
transmits or transfers (by any means) information or software derived from the Site to foreign countries or certain foreign nations in violation of United States export control laws; and
attempts to interfere in any way with the Site’s or TalentCheetah’s networks or network security, or attempting to use the Site’s service to gain unauthorized access to any other computer system
access the Services through any technology or means other than those provided or authorized by the Services (and access to the Services through virtual private network or proxy is expressly forbidden);
misrepresent or forge any TCP/IP packet header or any part of the header information in any email or posting, or in any way use the Services to send altered, deceptive or false source-identifying information; or
in the sole judgment of TalentCheetah, is objectionable or which restricts or limits any other person from using or enjoying the TalentCheetah Platform, or which may expose TalentCheetah or its users to any harm or liability of any kind. TalentCheetah has the right, but not the obligation, to monitor user use on the TalentCheetah Platform, including, but not limited to, user content and use of the Professional Services performed to confirm compliance with these Terms.
1.19.2 Responsibility for User-Generated Content. User may create Content, written or otherwise, while using the TalentCheetah Service. Users are solely responsible for the content of, and any harm resulting from, any User-Generated Content that they post, upload, share, link to or otherwise make available on the TalentCheetah Platform, regardless of the form of that content. Any liability, loss or damage that occurs as a result of the use of any User-Generated Content that a user makes available or accesses through their use of the TalentCheetah Platform is solely the User’s responsibility. We are not responsible for any public display or misuse of a User’s User-Generated Content.
1.19.3 TalentCheetah May Modify or Remove Content. TalentCheetah has the right, though not the obligation, to in our sole discretion, determine whether or not any User-Generated Content is appropriate and complies with these Terms, or refuse or remove any User-Generated Content that, in our reasonable opinion, violates any TalentCheetah policy or is in any way harmful, inappropriate, or objectionable. TalentCheetah further reserves the right to make formatting and edits and change the manner any User-Generated Content is displayed on the Site.
1.19.4 Ownership of User-Generated Content. Except for Content that originates from TalentCheetah, we do not claim ownership of any User-Generated Content that is transmitted, stored, shared or processed in a User’s account. Users retain all ownership of, control of, and responsibility for any User-Generated Content posted.
1.19.5 Reviews and Feedback Related to Independent Consultants. As part of the TalentCheetah Service, Client Users may provide a candid Review (“Review”) and feedback of their experience working with a TalentCheetah Independent Consultant at the conclusion of a Project.
TalentCheetah offers this option strictly as a benefit for other Clients and as a means for the Independent Consultant to strengthen their TalentCheetah profile and attract new Clients. Independent Consultant Reviews do not constitute a guarantee, warranty, or prediction regarding the outcome of any future projects. TalentCheetah will have no responsibility or liability of any kind for any User-Generated Content or project advice received on or through the Site, and any use or reliance on User-Generated Content or advice is solely at a User’s own risk.
When submitting an Independent Consultant Review Client Users will: (a) supply only the facts related to the Independent Consultant’s performance of the Professional Services agreed to in the Proposal for the Project (b) not include libelous, vulgar, tortious, violent, defamatory, profane, obscene, or otherwise objectionable language or innuendos (c) in good faith and using best professional judgement provide input that will assist other Clients in their review and consideration of the Independent Consultant
In the sole judgment of TalentCheetah, we reserve the right to alter, update, hide or remove any Review that we determine is objectionable, not compliant with these Terms or which restricts or limits any other person from using or enjoying the TalentCheetah Platform, or which may expose TalentCheetah or its Users to any harm or liability of any kind. TalentCheetah has the right, but not the obligation, to monitor User use on the TalentCheetah Platform, including, but not limited to, user-generated content.
1.19.6 Disclosure of User-Generated Content
User acknowledges and agrees that TalentCheetah and our successors and Affiliates have the irrevocable and perpetual license to preserve and/or disclose User-Generated Content, including any content deleted by a User, if required to do so by law or in the good faith belief that such preservation and/or disclosure is reasonably necessary to:
comply with legal process, applicable laws or government requests;
enforce these Terms;
respond to claims that any of your User-Generated Content violates the rights of third parties; or
protect the rights, property, or personal safety of TalentCheetah, its affiliates, officers, employees, representatives and agents, as well as Platform users and the general public.
1.20 Links from and to the Site
Users may be able to link to third party websites (“Linked Sites”) from the Site. Linked Sites are not, however, reviewed, controlled or examined by TalentCheetah in any way and TalentCheetah is not responsible for the content, availability, advertising, products, information or use of User information or other materials of any such Linked Sites, or any additional links contained therein. These links do not imply TalentCheetah’s endorsement of, or association with, the Linked Sites. It is a User’s sole responsibility to comply with the appropriate terms of service of the Linked Sites as well as with any other obligation under copyright, secrecy, defamation, decency, privacy, security and export laws related to the use of such Linked Sites and any content contained thereon.
In no event shall TalentCheetah be liable, directly or indirectly, to anyone for any loss or damage arising from or occasioned by the creation or use of the Linked Sites or the information or material accessed through these Linked Sites. You should direct any concerns to that site’s administrator or Webmaster. TalentCheetah reserves the exclusive right, at its sole discretion, to add, change, decline or remove, without notice, any feature or link to any of the Linked Sites from the Site and/or introduce different features or links to different Users.
Permission must be granted by TalentCheetah for any type of link to the Site. To request our permission, a User may email us at email@example.com. We reserve the right, however, to deny any request or rescind any permission granted by us to link through such other type of link and to require termination of any such link to the Site, at our discretion at any time.
1.21 Intellectual Property Rights and Copyright Infringement
TalentCheetah respects the intellectual property rights of others and works to ensure our own compliance at all times. TalentCheetah expects all Users to respect the Intellectual Property Rights of others and will seek to resolve any notices of violation received. If a User believes that material located on or linked to by TalentCheetah, or information posted by another User violates their copyright, User will notify TalentCheetah, in writing, by emailing firstname.lastname@example.org, with “read and received” enabled to confirm our receipt. The following information must be included:
Physical or electronic signature of the copyright owner or entity authorized to act on their behalf
Serial Number and / or any other identifying information related to the copyright, trademark or patent that will assist TalentCheetah in the verification process
Detailed description of copyrighted material allegedly infringed and
Information necessary to allow TalentCheetah the ability to locate alleged infringed material on the Site or applicable materials
Contact information of person reporting alleged infringement, including full name, physical address, contact telephone number and email address
Statement by the entity submitting the notice of infringement that the allegedly copyrighted material is not authorized for use by the Copyright Owner
Statement by the entity submitting the notice of infringement that the information they have submitted is true and accurate, and, under penalty of perjury, they are authorized to act on behalf of the Copyright Owner
1.21.1 TalentCheetah’s Rights
All right and interest in and to the Services (excluding User-Generated Content provided by Users) are and will remain the exclusive property of TalentCheetah. The information on the Site including, without limitation, all site design, text, graphics, interfaces, and the selection and arrangements is protected by law, including copyright law. Product names, logos, designs, titles, words or phrases may be protected under law as the trademarks, service marks or trade names of TalentCheetah or affiliated entities. Such trademarks, service marks and trade names may be registered in the United States and internationally. The TalentCheetah logos and service names are trademarks of TalentCheetah (the “TalentCheetah Marks”). Without TalentCheetah’s prior permission, User agrees not to display or use the TalentCheetah Marks in any manner. Nothing on the Site should be construed to grant any license or right to use any TalentCheetah Mark without the prior written consent of TalentCheetah. Requests for consent can be emailed to email@example.com.
1.21.2 User Rights
The Site, including all of its contents, such as text, images and the computer code used to generate the pages (“Site Content”), is the exclusive property of TalentCheetah or that of our suppliers or licensors and are protected by patent, trademark and/or copyright under United States and/or foreign laws. Except as otherwise provided herein, Users may not use, download, upload, copy, print, display, perform, reproduce, publish, modify, delete, add to, license, post, share, transmit, or distribute any Site Content from the Site in whole or in part, for any public or commercial purpose, including blog posts and user reviews, without the specific written permission of TalentCheetah. Requests can be sent to firstname.lastname@example.org for review and approval.
1.22 License to Use the TalentCheetah Platform
TalentCheetah grants registered Users a personal, non-exclusive, revocable, non-transferable license to access the TalentCheetah Platform and to use the information and Services contained in the Site. Users retain their rights to any User-Generated Content that they post or display on or through the TalentCheetah Platform; however, Users grant TalentCheetah a non-exclusive, royalty-free license (with the right to sublicense) to use, copy, reproduce, process, adapt, modify, publish, transmit, display, share and distribute any non-confidential content posted by a User on the Site for any purpose and at any time.
2. TalentCheetah Service Fees and Payment Processing
2.1 Service Fees
Clients. There is no Service Fee (“Service Fee”) to sign up as a TalentCheetah Client. It is free for a Client to post their Projects to the TalentCheetah Projects Board and free for a Client to review Independent Consultant profiles.
Independent Consultants. There is no Service Fee for a TalentCheetah Independent Consultant to sign up for an account and/or browse Project opportunities. A Service Fee is billed to the Independent Consultant only after they are hired by a Client and commence the delivery of Professional Services.
The Service Fee is automatically deducted by TalentCheetah from the gross payment to the Independent Consultant prior to payment disbursement for a given billing cycle. The Service Fee is applied through the completion of the Project and is not negotiable. All Service Fees are non-cancelable and non- refundable. If you have further questions about TalentCheetah’s Service Fee, please contact us at email@example.com.
2.2 Payment Processing and Late Fees
2.2.1 Client Responsibility.
TalentCheetah serves as the payment processor for Professional Services billed to a Client by a TalentCheetah Independent Consultant. TalentCheetah invoices Clients every other Monday for hours worked by their hired Professional in the two-week period ending on the preceding Sunday. TalentCheetah uses Stripe for all payment processing. Clients opting to pay by ACH will incur no payment processing fee.
Client agrees to pay TalentCheetah any fees they incur on the TalentCheetah Platform, and hereby authorizes TalentCheetah to charge them in the form of payment mutually agreed to between the Client and TalentCheetah for such fees. If a Client opts to pay by credit card, they authorize TalentCheetah to (a) run, or have run, credit card authorizations on all credit cards provided by them; (b) store their credit card details as their method of payment for Professional Services; and (c) charge their credit card (or any other form of payment authorized by TalentCheetah or mutually agreed to between Client and TalentCheetah) in payment of any fees they incur on the TalentCheetah Platform. All invoices are due net five (5) calendar days from the invoice receipt date and shall be in United States dollars.
A Client making a credit or debit card payment via the TalentCheetah
platform will be billed a 4% payment processing fee (the “Payment Processing Fee”) calculated on the gross payment amount for each payment made by the
Client. This processing fee will apply to all card payments made via TalentCheetah,
including those initiated automatically by the platform at the conclusion of
the 3-day invoice review window.
Client agrees and acknowledges it is solely and exclusively responsible for any applicable fees, surcharges, conversion fees and terms and conditions of their selected payment option, including any fees associated with resolving or disputing a chargeback regardless of the reason for the chargeback.
All transactions are final. Client shall review all invoices upon receipt. Notwithstanding the foregoing, Client shall bring any questions or concerns pertaining to billing/invoices to the attention of the Independent Consultant and, if necessary, TalentCheetah staff, within three (3) calendar days from the end of the billing period by emailing firstname.lastname@example.org.
If the Client has taken no action after three (3) calendar days from the end of a given billing period, TalentCheetah will charge the credit card, bank account, or other payment method associated with the Client’s account for the full amount of the undisputed final invoice. After the three (3) calendar days within a given billing period have elapsed, and except as set forth herein, any disputes for refunds will be handled directly between the Client and the Independent Consultant.
2.2.2 Client Late Payment and Fees. Any payment not received from a Client by the due date may accrue, at TalentCheetah’s discretion, late charges at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid. If a Client fails to pay amounts due, whether by cancelling the credit card on file in their account, or initiating an improper chargeback, or any other means, the Client’s TalentCheetah account will be suspended and any work-in-progress by Independent Consultants will be halted until payment in full is made.
Without limiting other available remedies, the Client must reimburse TalentCheetah for the full amount due upon demand, plus any applicable processing fees, charges or penalties, plus interest at the lesser of one and one-half percent (1.5%) per month or the maximum allowed by law, plus attorneys' fees and other costs of collection as allowed by law. In its sole discretion, TalentCheetah reserves the right to setoff amounts due against other amounts received from or held for the Client, make appropriate reports to credit reporting agencies and law enforcement authorities, and cooperate with them in any resulting investigation or prosecution.
2.2.3 Independent Consultant (Freelancer) Responsibility for Timely Payment Processing and Disbursement.
TalentCheetah serves as the payment processor for amounts Clients pay for Professional Services executed by TalentCheetah Independent Consultants. Independent Consultants are solely responsible for tracking and logging their billable hours. Should an Independent Consultant fail to log their hours worked for a given billing period, for any reason, TalentCheetah reserves the right to delay payment to the Independent Consultant until the next payment cycle. Payment is contingent upon submission of the delayed billable hours. Any payment owing will be disbursed the subsequent payment period.
2.2.4 Client Invoicing. Client Invoices will be automatically generated using the hours logged data submitted by the Independent Consultant for a given billing period and the hourly rate supplied in the final Project Proposal. TalentCheetah will automatically disburse funds to the Independent Consultant, minus any Service Fees. Unless otherwise agreed to, all disbursements to Independent Consultants shall be made in United States dollars. In cases of fraud, abuse or violation of these Terms, TalentCheetah reserves the right to set off against any amounts due to an Independent Consultant via the TalentCheetah platform any damages or costs TalentCheetah incurs as a result of such fraud, abuse or violation.
2.2.5 TalentCheetah’s Responsibility. TalentCheetah agrees to present Clients with a full invoice in advance of charging their preferred billing method. Likewise, TalentCheetah agrees to pay the applicable Independent Consultant the amount received, less any service fees.
2.3 Tax Reporting
2.3.1 For Clients. Client hereby agrees and acknowledges that it is solely and exclusively responsible for any tax obligations related to its business. Client agrees and acknowledges that TalentCheetah Freelancers are classified as Independent Contractors and, as such, neither they nor any of their principals, employees or agents (if applicable) shall be entitled to participate in or receive any compensation or benefits from a Client, that a Client provides or makes available to its employees pursuant to legal requirements or otherwise including, without limitation, worker’s compensation insurance, travel accident insurance, medical/dental insurance, life insurance, short- term and/or state disability insurance or benefits, long-term disability insurance, holiday pay, sick pay, paid vacation, bonuses, salary continuation pay, leaves of absence (paid or unpaid), pension plan benefits, retirement savings plan benefits or lease vehicle benefits.
2.3.2 For Independent Consultants / Freelancers. TalentCheetah serves as a third-party payment processor, and pursuant to Section 6050W of the Internal Revenue Code, TalentCheetah will submit a 1099-K tax form to the US Internal Revenue Service for any Independent Consultant who is paid over $600 in a single calendar year through the TalentCheetah Platform.
Otherwise, TalentCheetah will have no responsibility for determining the necessity of or for issuing any US or foreign tax forms, or for determining, remitting, or withholding any type of taxes or similar levies applicable to Independent Consultant fees. Independent Consultants are solely responsible for determining whether they are required by applicable law to file any US or foreign tax forms or remit to the appropriate authorities any taxes or similar charges applicable to the amounts TalentCheetah remits to you for Services, as well as filing any such tax forms and remitting any such taxes or charges to the appropriate US or foreign authorities.
3. DISPUTES AND DISPUTE RESOLUTION
3.1 Disputes Initiated by a Client Concerning an Independent Consultant
In the unlikely event that a Client has a good faith belief that the nature or quality of the Professional Services rendered by an Independent Consultant, in connection with a Project, are not consistent with industry standards or the provisions of the related Project Proposal or these Terms, or the amounts invoiced for the Professional Services provided by such Independent Consultant are not consistent with the Project Proposal (such matter, a “Professional Services-Related Disputed Matter”) or any other dispute related to an Independent Consultant, Client shall be permitted to withhold payment of any disputed amounts which are the subject of such matter (the “Withheld Payment Amounts”), subject to the following terms and conditions (the “Withheld Payment Amount Conditions”):
Within three (3) calendar days of the date of the related invoice (such period, the “Client Dispute Notice Period”), the Client shall provide written notice to TalentCheetah via email to email@example.com, with “read and received” enabled to confirm receipt by TalentCheetah. The written notice shall set forth, in reasonable detail, the facts which are the basis of the Professional Services-Related Disputed Matter (each, a “Professional Services-Related Dispute Notice”). The notice shall contain sufficient detail to permit TalentCheetah to assess and respond, if necessary, and attempt to work with the parties to resolve the dispute, controversy or claim with finality.
Client agrees to permit TalentCheetah to contact the Independent Consultant and obtain additional details related to the dispute, controversy or claim set forth by the Client. A Client’s failure to submit a Professional Services-Related Dispute Notice within the Client Dispute Notice Period shall constitute such Client’s permanent waiver of his or her right to dispute the Withheld Payment Amounts, which amounts will be charged to the Client’s on-file preferred payment method, in accordance with the Terms.
If a Client submits a Professional Services-Related Dispute Notice within the Client Dispute Notice Period, and such request contains the relevant information set forth in section 3.1.a above, TalentCheetah will work with the Client and Independent Consultant through an informal mediation process (such process, “Professional Services-Related Dispute Informal Mediation Process”) not to exceed 30 days from the date the Professional Services-Related Dispute Notice was received by TalentCheetah (such period, the “Professional Services-Related Dispute Informal Mediation Period”).
During the Professional Services-Related Dispute Informal Mediation Period, Independent Consultants and Clients will work in good faith with the TalentCheetah Mediator (“Mediator”) and provide all requested documentation, data or supporting materials to the Mediator within 48 hours of request. Any violation of this timeframe, for any reason, may result in an automatic decision in favor of the other party.
All decisions made by the TalentCheetah Mediator are final and may not be appealed nor resubmitted.
Decision In Favor of Client. Should the TalentCheetah Mediator find in favor of the Client, the Independent Consultant waives all rights to All Withheld Payment Amounts.
Decision In Favor of Independent Consultant. Should the TalentCheetah Mediator find in favor of the Independent Consultant, all Withheld Payment Amounts will be charged immediately to the Client using the preferred payment method on file in their User account and promptly disbursed to the Independent Consultant.
Dispute mediation through TalentCheetah is informal and does not result in binding legal judgments. In the event either party does not agree with the decision made by the TalentCheetah Mediator, both parties are free to pursue any and all legal actions and remedies that they see fit. TalentCheetah will not be liable for any fees or costs associated with legal actions between Clients and Independent Consultants.
In no event will any Professional Services-Related Disputed Matter be instituted more than 30 days after the cause of action arose.
3.2 Disputes initiated by an Independent Consultant Concerning a Client
In the unlikely event that an Independent Consultant has a dispute or claim concerning a Client (“Client-Related Dispute”), they will inform TalentCheetah about their concerns by emailing firstname.lastname@example.org, with a “read and received” confirmation enabled to verify receipt by TalentCheetah.
The written notice shall set forth, in reasonable detail, the facts which are the basis of the dispute or claim. The notice shall contain sufficient detail to permit TalentCheetah to assess and respond, if necessary, and attempt to work with the parties to resolve the dispute, controversy or claim with finality.
Independent Consultant agrees to permit TalentCheetah to contact the Client and obtain details of the Professional Services or dispute, controversy or claim set forth by the Independent Consultant. Depending on the nature of the dispute, TalentCheetah will make a good faith effort to resolve Client-Related Disputes within 14 business days of receipt.
In no event will any Client-Related Dispute or claim, be instituted more than 30 days after the cause of action arose.
3.3 Disputes between Users and TalentCheetah
3.2.1 Informal Dispute Resolution
In the event of a dispute or claim between a User and TalentCheetah, (“User Dispute with TalentCheetah”) the User agrees that they will contact TalentCheetah by emailing a detailed description of the dispute or claim to email@example.com, with “read and received” enabled to confirm TalentCheetah’s receipt. User will make a good faith effort to work with TalentCheetah directly to resolve the User Dispute with TalentCheetah to finality prior to moving toward arbitration under this Agreement. TalentCheetah will work to fully resolve User Disputes with TalentCheetah within 30 days of receipt.
3.2.2 Binding Arbitration
Any dispute or claim that remains unresolved after TalentCheetah’s informal dispute resolution process described in Section 3.2.1 concludes, except for disputes relating to the infringement of TalentCheetah’s intellectual property rights or the access or use of the TalentCheetah Platform in violation of these Terms, shall be resolved through binding arbitration in Santa Clara County, California under the Federal Arbitration Act.
Nothing in this arbitration provision is intended to prevent TalentCheetah or a User from filing charges with state or federal agencies. By using the Site, a User agrees that such arbitration shall be conducted on an individual basis only, not a class, collective or representative basis, and User waives all rights to bring class-wide, collective or representative claims before any arbitrator or in any forum. User understands that by agreeing to arbitrate disputes, all rights to a jury trial are waived. In any dispute, controversy or claim lodged by a User against TalentCheetah, the User is solely responsible for all arbitration, mediation and legal costs.
3.2.3 Limitation Period
In no event will any dispute or claim, or any other action or proceeding by a User (including arbitration per section 3.2.2) be instituted more than one (1) year after the cause of action arose.
4.TERMINATION OF SERVICES
4.1 CLIENT USER. A CLIENT User may discontinue using the TalentCheetah Platform and Services at any time, for any reason, provided the following conditions (“Client Termination Conditions”) are met:
4.1.1 Client User with No Professional Services / Projects Pending or In-Progress with TalentCheetah Independent Consultant(s):
Clients with no TalentCheetah Professional Services in progress (i.e., have not recently hired a Freelancer to commence Professional Services and / or are not currently working with a TalentCheetah Independent Consultant performing Professional Services), may terminate this legal Agreement with TalentCheetah and discontinue use of the TalentCheetah Service, at any time and for any reason.
Client User is not obligated to notify TalentCheetah of their intent to discontinue use of the TalentCheetah Platform; however, as part of our standard systems maintenance, TalentCheetah reserves the right to suspend an account due to extended and prolonged inactivity. To reactivate an account that has been suspended due to inactivity, send an email to firstname.lastname@example.org and include the email alias associated with the account and your full name as provided in your account settings with the subject “Please Reactivate.”
To permanently deactivate a Client User account, Client will send an email request to email@example.com, with “read and received” enabled, and the email subject “Request to Deactivate Client Account.”
Once TalentCheetah confirms (a) requestor has the authority to request cancellation of the Client Account (b) there are no in-progress Professional Services or other Client obligations with Independent Consultant(s) associated with the account (c) there are no outstanding invoices or payments owing to TalentCheetah, the Client User account will be deactivated.
For the avoidance of doubt, canceling, deactivating or discontinuing use of a TalentCheetah Client User account does not relieve a Client of their legal obligations with respect to the Exclusivity Period set forth in Section 1.15.
Notwithstanding termination of this Agreement by either party pursuant to this section or otherwise, all remaining provisions of this Agreement shall remain in full force and effect.
4.1.2 Client User with Pending and / or In-Progress Professional Services / Projects with a TalentCheetah Independent Consultant(s):
Prior to account termination and deactivation, Client must directly notify all TalentCheetah Independent Consultant(s) Users they are receiving Professional Services from, or whom they have hired with the intent to receive Professional Services from, of their intent to discontinue use of theTalentCheetah Services. Notification must be given to all impacted Independent Consultant(s), in writing via email, with “read and received” enabled to confirm receipt, a minimum of 5 calendar days in advance of a Client’s planned termination date.
Client is solely responsible for payment in full of all billable hours that will be provided by the Independent Consultant through the planned termination date, including the day of termination, even if the Client discontinues using the Service sooner.
Client will notify TalentCheetah, in writing, of their decision to terminate the Agreement, by emailing firstname.lastname@example.org, with “read and received” enabled and a description of their reason for termination.
Termination Notices must be emailed to TalentCheetah within 3 calendar days of Independent Consultant(s) notification of same.
Upon receipt of a Termination notice from a Client with In-Progress Professional Services, TalentCheetah will (a) confirm requestor has the authority to request termination of the Client User account (b) process a final Invoice to the Client, due immediately, to include all amounts owing through the planned termination date (c) confirm Independent Consultants with Professional Services in-progress with the Client are aware of the Client’s intent to terminate their TalentCheetah Service.
Following TalentCheetah’s completion of all items in Section 4.1.2e above, the Client User Account will be permanently deactivated. All User data associated with the account will no longer be available.
4.2 INDEPENDENT CONSULTANT USER. An Independent Consultant User may discontinue using the TalentCheetah Platform and Services at any time, for any reason, provided the following conditions (“Independent Consultant Termination Conditions”) are met:
4.2.1 Independent Consultant User with No Professional Services / Projects Pending or In-Progress with TalentCheetah Client(s):
Independent Consultants with no TalentCheetah Professional Services pending or in progress with Clients (i.e., have not negotiated a Project Proposal, or any other contract with a Client, with the intent to commence Professional Services and / or are not currently performing Professional Services for a TalentCheetah Client), may terminate this Agreement and discontinue use of the TalentCheetah Service, at any time and for any reason.
Independent Consultant User is not obligated to notify TalentCheetah of their intent to discontinue use of the TalentCheetah Platform; however, as part of our standard systems maintenance, TalentCheetah reserves the right to suspend an account due to extended and prolonged inactivity. To reactivate an account that has been suspended due to inactivity, send an email to email@example.com and include the email alias associated with the account and your full name as provided in your account settings with the subject “Please Reactivate.”
To permanently deactivate an Independent Consultant User account, Independent Consultant will send an email request to firstname.lastname@example.org, with “read and received” enabled, and the email subject “Request to Deactivate Independent Consultant User Account.”
Once TalentCheetah confirms (a) requestor has the authority to request cancellation of the Independent Consultant Account (b) there are no pending or in-progress Professional Services or other obligations with TalentCheetah or TalentCheetah Clients associated with the account, the Independent Consultant User account will be deactivated. The associated Independent Consultant Profile will be deleted.
For the avoidance of doubt, canceling, deactivating or discontinuing use of your TalentCheetah Independent Consultant User account does not relieve you of your legal obligations with respect to the Exclusivity Period set forth in Section 1.15.
4.2.2 Independent Consultant User with Pending and / or In-Progress Professional Services / Projects with a TalentCheetah Client(s):
Prior to account termination and deactivation, Independent Consultant must notify all TalentCheetah Client Users they are currently performing Professional Services for, or Client Users they have agreed to commence Professional Services for, of their intent to discontinue use of the TalentCheetah Service. Notification must be given to all impacted Client User(s), in writing via email, with “read and received” enabled to confirm receipt, a minimum of 10 calendar days in advance of an Independent Consultant’s planned termination date.
Independent Consultant is solely responsible for submission of outstanding billable hours to TalentCheetah for final payment processing prior to User account termination.
Independent Consultant will notify TalentCheetah of their decision to terminate the TalentCheetah Service, in writing, by emailing email@example.com, with “read and received” enabled and a description of their reason for termination.
A Termination Notice will be emailed to TalentCheetah by the Independent Consultant within 3 calendar days of the distribution of notifications to impacted Clients.
Upon receipt of a Termination Notice from an Independent Consultant with Pending or In-Progress Professional Services, TalentCheetah will (a) confirm requestor has the authority to request termination of the Independent Consultant User account (b) process a final payment to the Independent Consultant (c) confirm Clients impacted by the termination are aware of the Independent Consultant’s intent to terminate Service.
Following TalentCheetah’s completion of all items in Section 4.2.2e above, the Independent Consultant User Account will be permanently deactivated and the associated User Profile will be deleted.
4.3 Account Suspension or Termination by TalentCheetah. TalentCheetah may suspend or terminate a User account or cease providing all or part of the Services at any time for any reason, including, but not limited to, if we have reason to believe (a) User has violated these Terms; (b) User creates a risk or possible legal exposure for us; or (c) TalentCheetah’s provision of the Services to a User is no longer viable. If a User account is suspended or terminated, TalentCheetah will notify the User of reason for action and remediation, if any, using the email address associated with the User account.
5. LIMITATION OF LIABILITY
TalentCheetah provides the Site and the Services “as is,” without warranty of any kind. Without limiting the foregoing, TalentCheetah expressly disclaims all warranties, whether express, implied or statutory, regarding the Site and the Services including, without limitation, any warranty of merchantability, fitness for a particular purpose, title, security, accuracy and non-infringement.
TalentCheetah will not be liable for damages or losses arising from a User’s use of the TalentCheetah Platform or Services or arising under this Agreement.
To the extent permitted by applicable law, in no event will TalentCheetah be liable to any User for any loss of profits, use, or data, or for any incidental, indirect, special, consequential or exemplary damages, however arising, that result from (a) the use, disclosure, or display of your User-Generated Content; (b) your use or inability to use the Service; (c) the Service generally or the software or systems that make the Service available; or (d) any other interactions with TalentCheetah or any other User of the Service, whether based on warranty, contract, tort (including negligence) or any other legal theory, and whether or not TalentCheetah has been informed of the possibility of such damage, and even if a remedy set forth in this Agreement is found to have failed of its essential purpose. TalentCheetah will have no liability for any failure or delay due to matters beyond our reasonable control. Some jurisdictions limit or do not permit disclaimers of liability; hence, this provision may not apply to all Users.
6. RELEASE AND INDEMNIFICATION
User agrees to indemnify and hold harmless TalentCheetah and its affiliates, officers, employees, representatives and agents, from and against any and all claims and expenses, including attorneys’ fees, arising out of User’s use of the Site and the Service, including but not limited to their violation of this Agreement.
If a User has a dispute with one or more other Users, User releases TalentCheetah from claims, demands and damages (actual and consequential) of any kind, known and unknown, arising out of or in any way connected with such disputes. If a User is a California resident, User waives California Civil Code §1542, which states: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.”
7.2 Entire Agreement
7.3 Governing Law
This Agreement is controlled by Delaware law. A User is solely responsible for any obligations agreed to under this Agreement. If TalentCheetah is involved in a merger or an acquisition, we reserve the right to transfer this Agreement, and in good faith, to protect your User rights.
User further agrees that these Terms of Service and any controversy, dispute or claim arising out of or relating to their use of the Site or the Services are governed by the federal laws of the United States of America and the laws of the State of Delaware, without regard to conflict of law provisions or the User’s state or country of residence. User and TalentCheetah agree to submit to the exclusive jurisdiction and venue of the courts located in Delaware.
7.4 Force Majeure
Neither the User nor TalentCheetah is liable for any default or delay in the performance of any of its obligations under this Agreement (other than failure to make payments when due) if such default or delay is caused, directly or indirectly, by forces beyond such party's reasonable control, including without limitation fire, flood, acts of God, labor disputes, accidents, acts of war or terrorism, interruptions of transportation or communications, supply shortages or the failure of any third party to perform any commitment relative to the production or delivery of any equipment, software or material required for such party to perform its obligations hereunder.
7.5 Limitation of Term of Action
User agrees that any cause of action related to or arising out of their relationship with TalentCheetah must begin within one (1) year after the cause of action accrues. Otherwise, such cause of action is permanently barred.
User and TalentCheetah agree that the failure or delay of either party to exercise or enforce any right or claim shall not operate or be construed as a waiver of any rights to enforce this Agreement. No waiver of any breach or default hereunder shall be deemed a waiver of any subsequent breach or default.
If any part of this Agreement is held invalid or unenforceable, that portion of the Agreement will be construed to reflect the parties’ original intent. The remaining portions will remain in full force and effect. Any failure on the part of TalentCheetah to enforce any provision of this Agreement will not be considered a waiver of our right to enforce such provision. Our rights under this Agreement will survive any termination of this Agreement.
7.8 Modifications to TalentCheetah’s Terms of Service
TalentCheetah may amend these Terms of Service at any time, and in our sole discretion. User notifications will be provided for material changes to this Agreement as follows; (a) by TalentCheetah via email using the email address provided in the User’s account (b) directly and prominently displayed on the TalentCheetah Site Homepage (c) as requested by Users by emailing firstname.lastname@example.org.
Non-material changes to this Agreement will take effect immediately. Users are encouraged to keep themselves up-to-date on the contents of the Agreement. The most current version of the TalentCheetah Terms of Service can be found on the TalentCheetah Site. A User’s continued use of the Service after the effective date of a revised version of this Agreement constitutes their full acceptance of its terms. General questions related to this Agreement can be emailed to email@example.com.
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