Employer Terms of Service Agreement
Last updated: July 11, 2022
This Employer Terms of Service Agreement (“Agreement”) governs the use by Employers (defined below) of BetterLeap’s Platform and Services (defined below), which enables Employers or other organizations (like You) to work with BetterLeap, either directly or through Recruiters, to find Candidates for Open Positions. These terms apply only to the receipt of services as an Employer; to provide Recruiter Services as a Recruiter (defined below), You must agree to BetterLeap’s Recruiter Terms of Service Agreement, which can be found here.
TO ACCESS AND USE BETTERLEAP’S PLATFORM AND SERVICES AS AN EMPLOYER, YOU MUST REVIEW AND ACCEPT THE TERMS OF THIS AGREEMENT BY CLICKING ON THE “I ACCEPT” BUTTON AT THE END OF THE INTAKE TYPEFORM. ONCE ACCEPTED, THIS AGREEMENT BECOMES A BINDING LEGAL COMMITMENT BETWEEN YOU AND BETTERLEAP, INC. (“BETTERLEAP”, “WE”, “OUR” OR “US”). YOU REPRESENT THAT (1) YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT, (2) YOU ARE OF LEGAL AGE TO FORM A BINDING CONTRACT WITH BETTERLEAP, AND (3) YOU HAVE THE AUTHORITY TO ENTER INTO THE AGREEMENT ON BEHALF OF THE EMPLOYER YOU HAVE NAMED AS THE ACCOUNT HOLDER, AND TO BIND THAT COMPANY TO THE TERMS OF THIS AGREEMENT. THE TERM “YOU” REFERS TO THE INDIVIDUAL OR LEGAL ENTITY, AS APPLICABLE, IDENTIFIED AS THE USER WHEN YOU REGISTER. IF YOU DO NOT AGREE TO BE BOUND BY THESE TERMS, YOU SHOULD NOT CLICK THE “I ACCEPT” BUTTON.
Modifications. BetterLeap may modify this Agreement at any time, at our sole discretion. If we do so, we’ll let You know either by posting the modified Agreement on the BetterLeap website available at https://betterleap.com/employer-terms or through other communications. It’s important that You review the modified Agreement terms because if You continue to use the Services after we’ve let You know that the Agreement has been modified, You are indicating to us that You agree to be bound by the modified Agreement. If You don’t agree to be bound by the modified Agreement, then You may no longer use the Services. Because our Services are evolving over time, we may change or discontinue all or any part of the Services, at any time and without notice, at our sole discretion.
1. DEFINITIONS. The following terms shall have the meanings set forth below. Capitalized terms not defined in this Section shall have the meanings assigned to them where used in this Agreement.
1.1. “Candidates” means potential candidates for Open Positions.
1.2. “Employers” means individuals or entities who use the Platform to submit Open Positions and request Recruiter Services.
1.3. “Engagement” means the provision of Recruiter Services for a particular Open Position.1.4. “Open Position” means an open job position submitted to BetterLeap by Employer, including without limitation by posting on the Platform.
1.5. “Placement” means the employment or engagement by an Employer of a Candidate referred in connection with Recruiter Services.
1.6. “Placement Fee” means the compensation owed by an Employer in connection with a Placement.
1.7. “Platform” means BetterLeap’s platform through which (i) Employers can submit Open Positions and (ii) Recruiters can view and select Open Positions for which they would like to perform Recruiter Services.
1.8. “Recruiter” means an individual or entity who provides Recruiter Services and refers Candidates through BetterLeap.
1.9. “Recruiter Services” means the referral and recommendation of potential job Candidates for Open Positions, and related services such as interview scheduling and offer negotiations, as provided by BetterLeap directly or through Recruiters on behalf of BetterLeap.
1.10. “Recruiting Fees” means the compensation owed by an Employer for Recruiter Services.
1.11. “Services” means the service provided by BetterLeap to Employer hereunder, including without limitation access to the Platform and the Extension (as defined in Section 4.1 below) and the provision of Recruiter Services.
2. SERVICES. The Services enable Employers to engage BetterLeap for the provision and receipt of Recruiter Services (which may be provided by Recruiters on behalf of BetterLeap) for Open Positions. Subject to the terms and conditions set forth in this Agreement, BetterLeap will use commercially reasonable efforts to provide You with the Services, as further described and mutually agreed to by You and BetterLeap, through the Platform and/or otherwise mutually agreed upon in writing (email acceptable). You can submit to BetterLeap descriptions of the Open Positions for which You are seeking Recruiters, via email at [email protected] or through the proper functionality on the Platform (each, a “Submission”). BetterLeap reserves the right to refuse any and all Submissions at any time. Submissions must be expressly accepted by BetterLeap. BetterLeap does not guarantee that any matches will be made or any Open Positions filled through the Services.
3.1 Registration. In order to use the Services, You must register for an account to use the Platform (“Account”). In registering an Account, You agree to (a) provide true, accurate, current, and complete information, which may include without information Your name, information from Your LinkedIn profile, Your email address, and any other information as may be requested by BetterLeap (“Registration Data”) and (b) maintain and promptly update the Registration Data to keep it true, accurate, current, and complete. You agree not to provide any false or misleading information about Your identity or location, business, or services and to correct any such information that is or becomes false or misleading. You acknowledge and agree that Registration Data may be shared with other parties in connection with the Services (such as Recruiters and Candidates), and You hereby grant BetterLeap a non-exclusive, worldwide, royalty free license to use, display, perform, transmit, and otherwise exploit Your Registration Data in connection with the Services. You are responsible for all activities that occur under Your Account and may not share Account or password information with anyone. You agree to notify BetterLeap immediately of any unauthorized use of Your password or any other breach of security. If You provide any information that is untrue, inaccurate, not current or incomplete, or BetterLeap has reasonable grounds to suspect that any information You provide is untrue, inaccurate, not current or incomplete, BetterLeap has the right to suspend or terminate Your Account and terminate this Agreement and/or access to the Services hereunder (including without limitation with respect to any in-progress searches and placements). You may not have more than one Account at any given time. You may not create an Account or otherwise access or use the Platform if You have been previously removed or terminated by BetterLeap. BetterLeap reserves the right to decline any registration or request for access or an Account for any lawful reason, including supply and demand, cost to maintain data, or other business considerations.
3.2 Account Verification. When You register for an Account and from time to time thereafter, Your Account will be subject to verification, which may include, but is not limited to, validation against third-party databases or verification of one or more official government or legal documents that confirm Your identity, location, and ability to act on behalf of Your business. You authorize BetterLeap, directly or through third parties, to make any inquiries necessary to validate Your identity, location, and ownership of Your email address or financial accounts, subject to applicable law. When requested, You must timely provide BetterLeap with complete information about You and Your business, which includes, but is not limited to, providing official government or legal documents.
3.3 Permitted Users. By granting any individuals or entities permissions under Your Account, including without limitation any of your employees, contractors, or agents, (each, a “Permitted User”), You represent and warrant that (a) the Permitted User is authorized to act on Your behalf, and (b) You are fully responsible and liable for any action or omission of any and all Permitted Users and any other person who uses the Account. If any Permitted User violates the terms of this Agreement, it may affect Your ability to use the Platform or Services.
3.4 Integrated Accounts. You may link Your Account with third-party accounts (“Third-Party Accounts”), by allowing BetterLeap to access your Third-Party Account, as is permitted under the applicable terms and conditions that govern your use of each Third-Party Account. You represent that you are entitled to disclose your Third-Party Account login information to BetterLeap and/or grant BetterLeap access to your Third-Party Account (including, but not limited to, for use for the purposes described herein) without breach by you of any of the terms and conditions that govern your use of the applicable Third-Party Account and without obligating BetterLeap to pay any fees or making BetterLeap subject to any usage limitations imposed by such third-party service providers. By granting BetterLeap access to any Third-Party Accounts, you understand that BetterLeap may access, make available and store (if applicable) any information, data, text, software, music, sound, photographs, graphics, video, messages, tags and/or other materials accessible through the Platform or the Extension (as defined below) (collectively, “Content”) that you have provided to and stored in your Third-Party Account (“Third-Party Account Content”) so that it is available on and through the Platform or the Extension via your Account. Unless otherwise specified in the Agreement, all Third-Party Account Content shall be considered to be Your content for all purposes of the Agreement. Depending on the Third-Party Accounts you choose and subject to the privacy settings that you have set in such Third-Party Accounts, personally identifiable information that you post to your Third-Party Accounts may be available on and through your Account on the Platform. Please note that if a Third-Party Account or associated service becomes unavailable, or BetterLeap’s access to such Third-Party Account is terminated by the third-party service provider, then Third-Party Account Content will no longer be available on and through the Platform. PLEASE NOTE THAT YOUR RELATIONSHIP WITH THE THIRD-PARTY SERVICE PROVIDERS ASSOCIATED WITH YOUR THIRD-PARTY ACCOUNTS IS GOVERNED SOLELY BY YOUR AGREEMENT(S) WITH SUCH THIRD-PARTY SERVICE PROVIDERS, AND BETTERLEAP DISCLAIMS ANY LIABILITY FOR PERSONALLY IDENTIFIABLE INFORMATION THAT MAY BE PROVIDED TO IT BY SUCH THIRD-PARTY SERVICE PROVIDERS IN VIOLATION OF THE PRIVACY SETTINGS THAT YOU HAVE SET IN SUCH THIRD-PARTY ACCOUNTS. BetterLeap makes no effort to review any Third-Party Account Content for any purpose, including but not limited to, for accuracy, legality or noninfringement, and BetterLeap is not responsible for any Third-Party Account Content.
3.5 Placement Guarantee. Subject to the terms and conditions of this Agreement, and unless otherwise mutually agreed to in writing between Employer and BetterLeap, BetterLeap offers the guarantee set forth in this Section 3.5 with respect to the placements of Candidates as a result of Engagements (each such Candidate, a “Placed Candidate”) for ninety (90) days from the date on which a Placed Candidate starts work for Employer (the “Guarantee Period”). Please note that Guarantee Periods may be reduced where discounts are applied to the applicable Placement Fee. If, during the applicable Guarantee Period, the Placed Candidate resigns or Employer reasonably determines that the Placed Candidate’s performance is unsatisfactory, and provided that Employer is in compliance with the terms of this Agreement (including the payment of all fees due hereunder), BetterLeap shall initiate (either directly or through services provided by a Recruiter) an additional one-time search to find a replacement Candidate (a “Replacement Hire”) for the same Open Position (at the same location) at no additional charge to Employer (the “Placement Guarantee”). In order to exercise its rights under the Placement Guarantee, Employer must provide written notice to BetterLeap of such exercise within five (5) business days of termination date or such other amount of time mutually agreed to by BetterLeap and Employer in advance (email acceptable). If a Replacement Hire will receive a higher annual salary, Employer shall be responsible for payment of the difference in the Placement Fee paid by Employer for the initial Placed Candidate and the Placement Fee owed by Employer for the Replacement Hire. If a Replacement Hire will receive a lower annual salary, BetterLeap shall refund to Employer the difference in the Placement Fee owed by Employer for the initial Replacement Hire and the Placement Fee paid by Employer for the initial Placed Candidate. For the avoidance of doubt, notwithstanding anything to the contrary set forth herein, the Placement Guarantee shall be BetterLeap’s sole liability , and Employer’s exclusive remedy, with respect to any Placed Candidates who resign or are terminated by Employer as described above during the Guarantee Period.
3.6 Exclusive Searches. To the extent You select “Exclusive Search” as an option for any Open Positions, You represent and warrant that You shall not solicit, hire, employ, engage, or otherwise involve any other recruiting service provider other than BetterLeap for the Open Position, including without limitation any Recruiters with whom you become acquainted as a result of your use of the Services.
3.7 Service Limitations. You, and not BetterLeap (or any Recruiters), are ultimately responsible for evaluating and determining the suitability of any Candidate for any Open Position; provided that BetterLeap reserves the right to reject any Candidate identified by any Recruiter for your Open Position(s). Any successful hiring of a Candidate by an Employer involves a direct relationship between the Candidate and the Employer. Neither BetterLeap nor Recruiters shall be responsible for verifying any information in any Candidate resumes, and all such verification shall be the sole responsibility of Employer unless otherwise agreed to between BetterLeap and Employer in writing. Betterleap is not responsible for any Recruiter Services, referrals, or Candidates. BetterLeap is not a party to any relationship among Recruiters, Employers and Candidates, and BetterLeap disclaims any and all liability relating thereto. BetterLeap will not have any liability or obligations under or related to Recruiter Services for any acts or omissions by Employer, any Recruiters, or any Candidates or potential Candidates.
3.8 Independent Contractor. Nothing in this Agreement is intended to or should be construed to create a partnership, joint venture, franchisor/franchisee or Employer-employee relationship between BetterLeap and You.
4. BROWSER EXTENSION AND THIRD-PARTY SITES.
4.1 Overview. BetterLeap offers a browser extension (“Extension”), that you may download onto your web browser (currently, we only support Google Chrome), permitting you to source Candidates directly for Open Positions from Third-Party Accounts without receiving Recruiter Services (“Internal Candidate Sourcing”).
4.2 Licensed Use and Restrictions. Subject to your compliance with the terms and conditions of this Agreement, BetterLeap grants you a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to access and use the Extension solely to perform Internal Candidate Sourcing. You may not modify, adapt, alter, translate, disassemble, reverse engineer, or create derivative works of the Extension, or otherwise use, copy or distribute the Extension for any other purpose except as expressly authorized herein. Further, you shall not remove or destroy any copyright notices or other proprietary markings contained on or in the Extension.
4.3 Ownership of Extension. As between You and BetterLeap, BetterLeap owns all right, title and interest in and to the Extension and all intellectual property rights related thereto. Except for the license granted in Section 4.2, this Agreement grants You no right, title, or interest in any intellectual property owned or licensed by us, including the Extension. You agree to abide by all applicable proprietary rights laws and other laws, as well as any additional copyright notices and restrictions contained in this Agreement.
4.4 Modifications. BetterLeap may release subsequent versions of the Extension and require You to download and use the most recent version. Your continued use of the Extension after such a release will be deemed Your acceptance of the modifications.
51 BetterLeap. BetterLeap and its suppliers own all rights, title and interest in the Services; all information and materials provided by or on behalf of BetterLeap to You in connection with the Services (excluding Your Data); and BetterLeap’s trademarks, and all related graphics, logos, service marks and trade names used on or in connection with the Services (collectively, “BetterLeap IP”). BetterLeap reserves all rights in BetterLeap IP not expressly granted herein.
5.2 Your Data. You own all rights, title and interest in, and You hereby grant BetterLeap a fully paid, royalty-free, worldwide, non-exclusive right and license to use, license, distribute, reproduce, modify, adapt, publicly perform, and publicly display, any information, data, text, software, and/or other materials provided by or on Your behalf to BetterLeap in connection with the Services (collectively, “Your Data”) for the purposes of operating, providing, and improving the Services. You are solely responsible for Your Data, including the accuracy thereof, and for any legal action that may be instituted as a result of or in connection with Your Data.
5.3 Feedback. You hereby grant to BetterLeap a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sublicensable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner (a) any and all feedback, suggestions, or ideas related to the Services or BetterLeap’s products, services, or business provided by You (collectively, “Feedback”) and to sublicense the foregoing rights, in connection with the operation, maintenance, and improvement of the Services and/or BetterLeap’s business and (b) any feedback, suggestions, ideas, responses, comments, information, and data, including survey responses, provided by You or on Your behalf related to any Recruiter Services, Open Positions, or Recruiters (“Service Assessments”), and to sublicense the foregoing rights, in connection with the operation, maintenance, and improvement of the Services and/or BetterLeap’s business, provided that BetterLeap shall not share any Service Assessments with any third parties in a manner that identifies You by name.
6. RESTRICTIONS. You represent, warrant, and covenant that You will not, and shall not permit any Permitted User or third party, to (a) use the Services to provide Services to third parties or otherwise provide access to the Services to third parties; (b) modify any documentation, or create any derivative product thereof; (c) modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any part of the Services; (d) assign, sublicense, sell, resell, lease, rent, or otherwise transfer or convey, or pledge as security or otherwise encumber BetterLeap’s rights under this Section; (e) harvest, collect, gather or assemble information or data regarding other parties you have contact with through the Services without their consent; (f) use the Services to solicit, advertise for, or contact in any form, parties you contact with through the Services for employment or any other purpose not related to the Open Positions advertised through the Services; (g) use the Services or any information or data received through or in connection with the Services in a manner that (i) may infringe or violate the intellectual property or other rights of any individual or entity, including without limitation the rights of publicity or privacy; (ii) may violate applicable laws or governmental regulations; (iii) is unlawful, threatening, abusive, harassing, misleading, false, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy, tortious, obscene, offensive, profane or racially, ethnically, or otherwise discriminatory; (iv) constitutes unauthorized or unsolicited advertising, junk or bulk e-mail; (v) impersonates any person or entity, including any employee or representative of BetterLeap; (vi) interferes with or attempts to interfere with the proper functioning of the Services or uses the Services in any way not expressly permitted by this Agreement; or (vii) attempts to engage in or engages in, any potentially harmful acts that are directed against the Services; or (g) permits any third party to do any of the foregoing, directly or indirectly.
7. INTERACTIONS. You are solely responsible for Your interactions with all parties with whom You interact in connection with the Services; provided, however, that BetterLeap reserves the right, but has no obligation, to intercede in such disputes. You agree that BetterLeap will not be responsible for any liability incurred as the result of such interactions. While BetterLeap may, in BetterLeap’s sole discretion, help facilitate the resolution of disputes through various programs, BetterLeap does not guarantee the Recruiter Services; the truth or accuracy of Your content or listings; Your ability to procure Services; Recruiters’ ability to provide Recruiter Services; or that a Recruiter and You will actually complete a transaction. BetterLeap reserves the right to refer any matter to, and to cooperate with, any and all applicable legal authorities, if BetterLeap believes that any criminal activity has occurred. BetterLeap is entitled, except to the extent prohibited by applicable law, to disclose any information or materials in BetterLeap’s possession related to this Agreement or the Recruiter Services, including without limitation all Registration Data or Your Data to (a) comply with applicable laws, legal process or governmental request; (b) enforce the Agreement; (c) respond to any claims that Your content, acts, or omissions violates the rights of third parties; (d) respond to requests for customer service; or (e) protect the rights, property or personal safety of BetterLeap, its customers, users, or the public, and all enforcement or other government officials, as BetterLeap in its sole discretion believes to be necessary or appropriate.
8. CONFIDENTIAL INFORMATION.
8.1 Confidentiality. BetterLeap and You each agree as follows: (a) to use information received from the other party (including through Recruiters) that would be reasonably understood to be confidential or proprietary (“Confidential Information”) disclosed by the other party only for the purposes expressly permitted herein; (b) that such party will not reproduce Confidential Information disclosed by the other party, and will hold in confidence and protect such Confidential Information from dissemination to, and use by, any third party; (c) that neither party will create any derivative work from Confidential Information disclosed to such party by the other party; (d) to restrict access to the Confidential Information disclosed by the other party to such of its personnel, agents, and/or consultants, who have a need to have access and who have been advised of, and have agreed in writing to treat such information in accordance with, the terms of this Agreement; and (e) to the extent practicable, return or destroy all Confidential Information disclosed by the other party that is in its possession upon termination or expiration of this Agreement. Both parties agree that all items of Confidential Information are proprietary to the disclosing party, and as between the parties, will remain the sole property of the disclosing party.
8.2 Confidentiality Exceptions. Notwithstanding the foregoing, the provisions of Section 8.1 will not apply to Confidential Information that (a) is publicly available or in the public domain at the time disclosed; (b) is or becomes publicly available or enters the public domain through no fault of the recipient; (c) is rightfully communicated to the recipient by persons not bound by confidentiality obligations with respect thereto; (d) is already rightfully in the recipient’s possession free of any confidentiality obligations with respect thereto at the time of disclosure; (e) is independently developed by the recipient without use of or reference to the other party’s Confidential Information; or (f) is approved for release or disclosure by the disclosing party without restriction. Notwithstanding the foregoing, each party may disclose Confidential Information to the limited extent required (i) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the party making the disclosure pursuant to the order shall first have given written notice to the other party (to the extent legally permitted) and made a reasonable effort to obtain a protective order; or (ii) to establish a party’s rights under this Agreement, including to make such court filings as it may be required to do.
9.1 Restriction. For the term of this Agreement and the Wind Down Period (defined below) (the “Non-Circumvention Period”), You shall not, and shall not permit any of Your employees, contractors, agents, or other service providers to, solicit any recruiting services from any Recruiter You were introduced to through BetterLeap, the Platform, or the Recruiter Services (the “BetterLeap Relationship”) or for any Open Position You submit to BetterLeap without BetterLeap’s prior written consent. For the avoidance of doubt, if You were not initially introduced to another party by BetterLeap, e.g. if You and a Recruiter worked together before being introduced or matched through the Services, then the Non-Circumvention Period does not apply with respect to You and such Employer other than for the specific Open Position(s) posted on the Platform (i.e. You cannot transact with a Recruiter outside of the Platform and without BetterLeap for any Open Position that is listed on the Platform or otherwise submitted to BetterLeap for the Services). Without limiting the generality of the foregoing, You agree not to (a) solicit or submit proposals to parties identified through the Platform or BetterLeap to contract, hire, work with, or pay outside of the Recruiter Services, Platform, or BetterLeap; (b) accept proposals or solicit parties identified through the Platform or BetterLeap to contract, invoice, or receive payment outside the Recruiter Services or BetterLeap; or (c) refer any party identified on the Platform or through BetterLeap to a third-party for any purpose related to or competitive with the Services. You shall notify BetterLeap immediately upon becoming aware of a breach or potential breach of this non-circumvention provision. If You receive the Services as an employee, agent, or representative of another business, then the Non-Circumvention Period applies to You and other employees, agents, or representatives of the business when acting in that capacity.
9.2 Connection Fee. The non-circumvention obligation in this Section 9 will not apply to You with respect to a BetterLeap Relationship only if the applicable Recruiter or You pays BetterLeap a fee for such relationship (the “Connection Fee”), including if You want to commence or continue working with any Recruiter who is a BetterLeap Relationship during the Non-Circumvention Period. The Connection Fee is computed as follows: the greater of (a) one hundred thousand dollars ($100,000); or (b) the amount that is equal to 3 times (3x) the anticipated compensation paid to You, plus (c) ten percent (10%) of any one-time signing bonus or similar additional compensation.
10.1 Payment to BetterLeap. You agree to pay all fees or charges to your Account in accordance with the fees, charges and billing terms in effect at the time a fee or charge is due and payable and in accordance with the terms as set forth on the Platform, the BetterLeap website and/or otherwise agreed to between You and BetterLeap in writing (email acceptable). You may be required to provide BetterLeap with a valid credit card (Visa, MasterCard, or any other issuer accepted by us) or bank account information for ACH transfers as a condition to signing up for certain services under the Platform. Your payment provider agreement governs your use of the designated credit card, and you must refer to that agreement, not this Agreement, to determine your rights and liabilities. By providing BetterLeap with your credit card number, you agree that BetterLeap is authorized to immediately invoice your Account for all fees and charges due and payable to BetterLeap hereunder and that no additional notice or consent is required. You agree to immediately notify BetterLeap of any change in your billing address or the credit card used for payment hereunder. BetterLeap reserves the right at any time to change its prices and billing methods, either immediately upon posting on the Platform, the BetterLeap website or by e-mail delivery to you.
10.2 Fees. All fees and other payments, including without limitation the Placement Fees, must be made to BetterLeap in accordance with the terms set forth on the Platform and/or otherwise agreed to between You and BetterLeap in writing (email acceptable). If no payment terms are otherwise agreed to between You and BetterLeap, or for any payment terms not specified in writing between the parties, the following terms apply to Your use of the Services: Employer agrees to pay BetterLeap a Placement Fee equal to twenty percent (20%) of the total annual compensation (excluding bonus, commission, benefits, and stock/equity) of any Placed Candidate who is hired or engaged by Employer or any of its subsidiaries or affiliates within two (2) years of introduction, whether as an employee, as an independent contractor, or as a contract employee through a supplemental agency or other staffing firm. If the Candidate has already submitted a resume directly to Employer and interviewed with Employer prior to introduction through the Services, or Candidate was referred to Employer through another staffing firm or agency, in each case within the last six (6) months prior to referral by BetterLeap, BetterLeap will not be entitled to a fee as long as Employer notifies BetterLeap in writing before reconnecting with the Candidate or asking BetterLeap or any Recruiter to provide any information or perform any Services in connection with the Candidate. All fees are payable within thirty (30) days of invoice date (which shall be generally seven (7) days after a Candidate’s offer acceptance date). In the event Employer fails to pay invoices by the due date, BetterLeap may, at its option, charge late fees on any overdue amounts at a rate of ten percent (10%) per annum. Upon nonpayment of any invoice, BetterLeap may employ an attorney to enforce its rights and Employer will be responsible for reasonable attorney fees. BetterLeap shall not be responsible for any errors, or other payment disputes or issues. No fees or payments shall be due to BetterLeap for Candidates placed by you for your Open Positions via Internal Candidate Sourcing.
10.3 Expenses. BetterLeap shall not be responsible for any expenses incurred by You or any Recruiters in connection with any Open Positions. If You agree to reimburse a Recruiter for expenses incurred in connection with an Open Position, such reimbursement will be handled directly between You and the Recruiter in accordance with the terms mutually agreed to in writing between You and such Recruiter.
10.4 No Refunds; Non-Payment. All fees and other amounts paid hereunder are nonrefundable except to the extent BetterLeap expressly agrees to in writing (email acceptable) to provide you with a refund. Furthermore, BetterLeap reserves the right to seek reimbursement from You, and You will reimburse BetterLeap, if BetterLeap (a) suspects fraud or criminal activity associated with Your payment, withdrawal, or any Open Position or receipt of Recruiter Services; (b) discovers erroneous or duplicate transactions; or (c) is unable to collect from the payment source You provided (if applicable).
10.5 Automatic Renewal. If you have a subscription for any Services, your subscription will continue indefinitely until terminated in accordance with the Agreement. After your initial subscription period, and again after any subsequent subscription period, your subscription will automatically commence on the first day following the end of such period (each a “Renewal Commencement Date”) and continue for an additional equivalent period, at BetterLeap’s then-current price for such subscription. You agree that your Account will be subject to this automatic renewal feature unless you cancel your subscription at least thirty (30) days prior to the Renewal Commencement Date (or in the event that you receive a notice from BetterLeap that your subscription will be automatically renewed, you will have thirty (30) days from the date of the BetterLeap notice), by logging into your Account and cancelling the subscription. If you do not wish your Account to renew automatically, or if you want to change or terminate your subscription, please contact BetterLeap at [include phone number and/or email address] or log in to your Account and change/cancel the subscription. If you cancel your subscription, you may use your subscription until the end of your then-current subscription term; your subscription will not be renewed after your then-current term expires. However, you will not be eligible for a prorated refund of any portion of the subscription fee paid for the then-current subscription period. By subscribing, you authorize BetterLeap to charge your payment provider now, and again at the beginning of any subsequent subscription period. Upon renewal of your subscription, if BetterLeap does not receive payment from your payment provider, (a) you agree to pay all amounts due on your Account upon demand and/or (b) you agree that BetterLeap may either terminate or suspend your subscription and continue to attempt to charge your payment provider until payment is received (upon receipt of payment, your Account will be activated and for purposes of automatic renewal, your new subscription commitment period will begin as of the day payment was received).
11. TAXES. The amounts paid under this Agreement do not include any taxes or withholdings (“Taxes”) that may be due in connection with any Services provided under this Agreement. If BetterLeap determines it has a legal obligation to collect Tax from You in connection with this Agreement, BetterLeap shall collect such Tax in addition to the amounts required under this Agreement. If any Services, or payments for any Services, under the Agreement are subject to Tax in any jurisdiction and You have not remitted the applicable Tax to BetterLeap, You will be responsible for the payment of such Tax and any related penalties or interest to the relevant Tax authority and will indemnify BetterLeap Parties for any liability or expense incurred. Upon BetterLeap’s request, You will provide official receipts issued by the appropriate taxing authority, or such other evidence or documents reasonably requested. You will provide a Form 1099-MISC for each Recruiter to BetterLeap; and BetterLeap (and not You) will report the Recruiting Fees paid to each Recruiter by filing the applicable Form 1099-MISC’s with the Internal Revenue Service as required by law.
12. RECORDS. You will create and maintain records to document satisfaction of obligations under this Agreement and provide copies of such records to BetterLeap upon request.
13. INDEMNIFICATION. You agree to defend, indemnify and hold BetterLeap, its parents, subsidiaries, affiliates, officers, employees, agents, partners, suppliers, and licensors (each, a “BetterLeap Party” and collectively, the “BetterLeap Parties”) harmless from any losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of any and all of the following: (a) Your Data; (b) Your use of the Services; (c) any Agreements or arrangements agreed to between You and any Recruiter; (d) payment or nonpayment of amounts incurred in connection with the Services; (e) Your violation of the Agreement or of any rights of another party; or (f) Your violation of any applicable laws, rules or regulations. BetterLeap reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by You, in which event You will fully cooperate with BetterLeap in asserting any available defenses. For purposes of this Section 13, You includes any of Your agents or any person who has apparent authority to access or use Your Account.
14. DISCLAIMER OF WARRANTIES.
14.1 AS IS. YOUR USE OF THE SERVICES AND PARTICIPATION IN ANY TRANSACTIONS OR ARRANGEMENTS MADE IN CONNECTION THEREWITH ARE AT YOUR SOLE RISK. THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. BETTERLEAP PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. THE BETTERLEAP PARTIES MAKE NO WARRANTY, REPRESENTATION OR CONDITION THAT THE SERVICES OR ANY SERVICES OBTAINED OR TRANSACTIONS MADE IN CONNECTION THEREWITH WILL MEET YOUR REQUIREMENTS.
14.2 THIRD PARTIES OR OTHER USERS. YOU AGREE TO TAKE REASONABLE PRECAUTIONS IN ALL INTERACTIONS WITH CANDIDATES OR RECRUITERS, PARTICULARLY IF YOU MEET ANY RECRUITER OR CANDIDATE OFFLINE OR IN PERSON. YOU ARE SOLELY RESPONSIBLE FOR YOUR INTERACTIONS WITH RECRUITERS AND CANDIDATES. YOU UNDERSTAND THAT BETTERLEAP IS UNDER NO OBLIGATION TO SCREEN EMPLOYERS, RECRUITERS, OR APPLICANTS. YOU ARE SOLELY RESPONSIBLE FOR, AND WILL EXERCISE CAUTION, DISCRETION, COMMON SENSE AND JUDGMENT IN USING THE SERVICES AND DISCLOSING PERSONAL INFORMATION, INCLUDING THE PERSONAL INFORMATION OF CANDIDATES TO ANY RECRUITERS. YOUR USE OF THE SERVICES AND RECEIPT OF RECRUITER SERVICES ARE AT YOUR SOLE RISK AND DISCRETION AND BETTERLEAP HEREBY DISCLAIMS ANY AND ALL LIABILITY TO YOU OR ANY THIRD PARTY RELATING THERETO. YOU ACKNOWLEDGE AND AGREE THAT BETTERLEAP PARTIES ARE NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD BETTERLEAP PARTIES LIABLE, FOR THE CONDUCT OF THIRD PARTIES, AND THAT THE RISK OF INJURY FROM SUCH THIRD PARTIES RESTS ENTIRELY WITH YOU. YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH OTHER PARTIES THROUGH OR IN CONNECTION WITH THE SERVICES. NEITHER BETTERLEAP NOR ITS AFFILIATES OR LICENSORS IS RESPONSIBLE FOR THE CONDUCT OF ANY RECRUITER, EMPLOYER, OR CANDIDATE. BETTERLEAP DOES NOT PROVIDE ANY WARRANTIES OR GUARANTEES REGARDING ANY RECRUITER’S, EMPLOYER’S OR CANDIDATE’S PROFESSIONAL ACCREDITATION, REGISTRATION, OR LICENSE. YOU ACKNOWLEDGE AND AGREE THAT BETTERLEAP DOES NOT MAKE ANY REPRESENTATIONS OR WARRANTIES AS TO THE QUALIFICATIONS OF ANY EMPLOYER, RECRUITER, OR CANDIDATE. IN ADDITION, WE DO NOT GUARANTEE THAT BY USING THE SERVICES, YOU WILL SUCCESSFULLY HIRE ANY CANDIDATE, AND THAT ANY CANDIDATE HIRED BY YOU WILL BE SUCCESSFUL.
15. LIMITATION OF LIABILITY. TO THE FULLEST EXTENT PROVIDED BY LAW, EXCEPT WITH RESPECT TO BREACHES OF CONFIDENTIALITY AND INDEMNIFICATION OBLIGATIONS HEREUNDER, IN NO EVENT SHALL EITHER EMPLOYER OR ANY OF THE BETTERLEAP PARTIES BE LIABLE FOR (A) ANY INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, OR DAMAGES OR COSTS DUE TO LOSS OF PRODUCTION OR USE, BUSINESS INTERRUPTION, OR PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, IN EACH CASE WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OF SERVICE OR ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH OTHER USERS, ON ANY THEORY OF LIABILITY OR (B) TOTAL, CUMULATIVE LIABILITY GREATER THAN THE SUM OF THE TOTAL AMOUNT PAID AND PAYABLE TO BETTERLEAP BY EMPLOYER DURING THE TWELVE-MONTH PERIOD PRIOR TO THE ACT, OMISSION OR OCCURRENCE GIVING RISE TO SUCH LIABILITY. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN BETTERLEAP AND YOU.
16. RELEASE. BetterLeap expressly disclaims any liability that may arise between parties involved in the provision or receipt of the Services. You release BetterLeap, its parents, subsidiaries, affiliates, officers, employees, investors, agents, partners and licensors (collectively, the “BetterLeap Parties”) from any and all claims, demands, or damages (actual or consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such disputes. You hereby waive California Civil Code Section 1542, or any similar law of any other jurisdiction which states in substance, “A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party.”
17. TERM AND TERMINATION.
17.1 Term. The Agreement commences on the date you accept the Agreement and remains in full force and effect until terminated by either party in accordance with this Agreement.
17.2 Termination for Breach. Either party may terminate this Agreement upon written notice to the other party if the other party breaches this Agreement and does not cure such breach within fifteen (15) days of receiving notice thereof. Furthermore, without limiting BetterLeap’s other rights or remedies, BetterLeap may, but is not obligated to, temporarily or indefinitely revoke access to the Services, Your registration, or permanently revoke Your access to the Services if BetterLeap suspects or becomes aware that You have provided false or misleading information to BetterLeap or if BetterLeap believes, in BetterLeap’s sole discretion, that Your actions may cause legal liability for BetterLeap or any BetterLeap Parties; may be contrary to the interests of the Services; or may involve illicit or illegal activity. If Your Account is temporarily or permanently closed, You may not use the Services under the same Account or a different Account or reregister under a new Account without BetterLeap’s prior written consent.
17.3 Termination for Convenience. Either party may terminate this Agreement for its convenience at any time for any reason or no reason at all by providing the other party with at least thirty (30) days prior written notice; provided that Employer will remain responsible for all payment obligations incurred prior to the termination effective date, including without limitation any and all Engagements commenced during the term of the Agreement.
17.4 Effect of Termination. Upon any termination or expiration of this Agreement, and for a period of six (6) months thereafter (such period the “Wind Down Period”), BetterLeap shall continue providing You with the Services with respect to all Engagements commenced during the term of the Agreement until each such Engagement concludes, but no longer than the end of the Wind Down Period. You agree (a) You will continue to be bound by this Agreement until the end of the Wind Down Period or as otherwise expressly set forth herein; (b) BetterLeap will continue to perform the Services necessary to complete any in-progress Engagements until the end of the Wind Down Period; and (c) You will continue to be obligated to pay to BetterLeap any amounts accrued but unpaid, including for any and all Services provided during the Wind Down Period. Any provisions that by their nature would be expected to survive any termination or expiration of this Agreement will survive such termination or expiration.
17.5 Notification. If BetterLeap decides to temporarily or permanently close Your Account, BetterLeap has the right where allowed by law but not the obligation to: (a) notify Recruiters who have commenced Engagements to inform them of Your closed Account status, and (b) provide those Recruiters with a summary of the reasons for Your Account closure. You agree that BetterLeap will have no liability arising from or relating to any notice that it may provide to any other party regarding closed Account status or the reason(s) for the closure.
18. DISPUTE RESOLUTION. Governing Law; Arbitration. This Agreement and any action related thereto will be governed, controlled, interpreted, and defined by and under the laws of the State of Delaware, without giving effect to any conflicts of laws principles that require the application of the law of a different state. In the event a dispute arises between the parties hereto arising out of or in connection with or with respect to this Agreement or any breach thereof, such dispute shall be determined and settled by arbitration in San Francisco, California, in accordance with the rules of the American Arbitration Association (“AAA”). The award rendered thereon by the arbitrator shall be final and binding on the parties thereto, and judgment thereon may be entered in any court of competent jurisdiction. Nothing in this Section shall prevent either party from applying to a court of competent jurisdiction for equitable or injunctive relief.
19. CONSTRUCTION. Section headings are included in this Agreement merely for convenience of reference; they are not to be considered part of this Agreement or used in the interpretation of this Agreement. When used in this Agreement, “including” means “including without limitation.” No rule of strict construction will be applied in the interpretation or construction of this Agreement.
20. GENERAL PROVISIONS. The Agreement, and Your rights and obligations hereunder, may not be assigned, subcontracted, delegated or otherwise transferred by You without BetterLeap’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void. BetterLeap may freely assign this Agreement in whole or in part without Your consent. BetterLeap shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, natural disasters, disease, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials. You may give notice to BetterLeap at the following address: BetterLeap Inc., 595 Pacific Ave Floor 4, San Francisco, CA 94133. Such notice shall be deemed given when received by BetterLeap by letter delivered by nationally recognized overnight delivery Service, first class postage prepaid mail at the above address, or confirmed receipt when delivered via email to [email protected] Any waiver or failure to enforce any provision of the Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion. If any portion of this Agreement is held invalid or unenforceable, that portion shall be construed in a manner to reflect, as nearly as possible, the original intention of the parties, and the remaining portions shall remain in full force and effect. The Agreement is the final, complete and exclusive Agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter.