Terms of Service

TERMS OF SERVICE

By accessing or using any part of the Site, you agree to become bound by the terms and conditions of this agreement. If you do not agree to all the terms and conditions of this agreement, then you may not access the Site or use any of our services.  This agreement is effective as of October 19, 2015.  Your continued use of the Site after that date will signify your agreement to the terms of this agreement.  To the extent permitted by applicable law, we may modify this agreement without prior notice to you. Revisions to this agreement will be posted on the Site, so please check back often for updates.  Revisions to this agreement will take effect when posted to the Site unless otherwise stated.  This agreement incorporates all terms, conditions, rules, policies, and guidelines on the Site.  

1.                   Definitions. 

1.1.             Affiliate.  The term “Affiliate” means any person or entity which, directly or indirectly through one (1) or more intermediaries, controls or is controlled by, or is under common control with another person or entity.  A person or entity that possesses direct or indirect power to vote greater than thirty percent (30%) of the outstanding voting securities or other voting interests of another person or entity is conclusively presumed to have control of such other person or entity.

1.2.             Annualized Base Compensation.  The term “Annualized Base Compensation” means with respect to any Employee, such Employee’s hourly pay rate, as reflected on the Employee’s most recent pay stub, multiplied by Two Thousand and Eighty (2,080). 

1.3.             Assigned Employee.  The term “Assigned Employee” means, with respect to any Client, any Employee whose name is disclosed to such Client through the Site.

1.4.             Assignment. The term “Assignment” means the specific services, as detailed in an accepted Proposal, to be provided by an Assigned Employee to a Client.

1.5.             Client.  The term “Client” refers to Users who submit offers (“Proposals”) to solicit Employees through the Service to provide services to such person.  Please see Section 5.1 for more information about Assignments, Proposals, and Clients.

1.6.             Colergo.  The terms “Colergo,” “We,” and “Us” refer to Neptis LLC, as well as our Affiliates, directors, subsidiaries, contractors, licensors, officers, agents, and employees.  No Users or Employees are part of Colergo.

1.7.             Confidential Information.  The term “Confidential Information” is defined in Section 9.2. 

1.8.             Content.  The term “Content” refers to content featured or displayed through the Website, including without limitation text, documents, information, data, articles, opinions, 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 User.

1.9.             Employee.  The term “Employee” refers to any employee of an Employer who has been posted on the Site by such Employer.

1.10.          Employer.  The term “Employer” refers to Users who may make Employees available to Clients or who communicate with Clients via the Site. Employers are not employees or agents of Colergo.

1.11.          Service.  The term “Service” refers to the services provided by Colergo, including without limitation access to Colergo’s online community; communication tools; and payment services. Colergo does not provide a referral service. We provide a venue for our Users to meet and exchange information with one another.

1.12.          Site.  The term “Site” refers to Colergo’s website located at http://www.colergo.com, all subpages and subdomains, and all content, services, and products available at or through the Site.

1.13.          Third Party Content.  The term “Third Party Content” means any content from third parties on the Site, including, without limitation, blog posts written by other users or links to other websites.

1.14.          User.  The terms “User,” “You” and “Your” refer to the person, company, or organization that has visited or is using the Site and/or the Service.  A User may be an Employer, a Client, both, or neither.

1.15.          User-Generated Content.  The term “User-Generated Content” is defined in Section 17.

1.16.          Terms of Service.  The terms “Agreement” and “Terms of Service” refer, collectively, to all the terms, conditions, and notices contained or referenced in this document, the Privacy Policy and the Employee Consent. 

2.                   About the Site.  The Site is a platform for peer-to-peer collaboration between businesses seeking to purchase and sell labor man-hours.  The Site provides a service where such businesses can meet, but does not imply any endorsement of any Employer, Assigned Employee or any Client.  From time to time, Clients may submit reviews of Assigned Employees; these reviews do not constitute a guarantee, warranty, or prediction regarding the outcome of any future services.  Colergo will have no responsibility or liability of any kind for any User-Generated Content or Third Party Content you encounter on or through the Site, and any use or reliance on User-Generated Content or Third Party Content is solely at your own risk.  Colergo is not an employment agency or referral service.  The creation and maintenance of the Site are provided at great expense to Colergo.   Colergo is not a party to the dealings between any Employer and Client.  Colergo merely makes the Site available to enable Employers to identify Clients and to enable Clients to identify Employers and Assigned Employees; thereafter, the parties may determine the suitability of one another on their own.  Colergo is not required to and typically will not verify any User Content, including information regarding Employees, nor does Colergo perform background checks on Employers, Clients or Employees. 

3.                   User Acknowledgements.  Each User has the sole responsibility for such User’s account and any activities with respect to such User’s account; the security of each User’s account is the sole responsibility of the account owner.  Because we cannot guarantee the fitness of any Assigned Employee, Employer or Client, we encourage Users to research their counterparties with respect to any prospective Assignment prior to making a Proposal, in the case of a Client, or accepting a Proposal, in the case of an Employer. 

4.                   Assigned Employees.  Employer agrees that it shall cause each of its Assigned Employees who performs services to, for, or on behalf of any Client to execute the Employee Consent prior to allowing any such Employee access to any information available to the Employer on account of a Proposal or Assignment. No party other than an authorized employee of Employer may provide services hereunder.  Each Assigned Employee will continue to be solely an employee of Employer and shall not at any time become an employee of the Client.  Assigned Employees shall continue to be subject to the personnel policies and other terms and conditions of employment administered by Employer with respect to its employees generally.  Assigned Employees shall not be entitled to receive any compensation, benefits, perquisites or privileges from Client.

5.                   Proposals and Assignments; Fees and Payment.

5.1.                 Proposals and Assignments.  Employers may post Employees on the Site by completing an employee profile, which shall include the hourly charges for each such Employee.  Clients may submit Proposals to Employers proposing details of Assignments and Employers may accept, reject or negotiate details of Assignments before accepting any Proposal.  If an Employer fails to respond to a Proposal within four (4) calendar days, the Proposal is automatically rejected.  Upon acceptance of a Proposal, a Reservation is created; and Colergo will generate and present to the Client a summary invoice detailing the fees payable by the Client.  The Site will also generate and present to the Employer a separate Reservation summary detailing the Assignment as well as the fees to be paid to the Employer. Upon the creation of a Reservation, the hourly charges for the Assigned Employee shall be fixed for the duration of the Assignment described in such Reservation; any changes by the Employer to the Assigned Employee’s hourly charges shall be effective with respect to all Reservations created thereafter.

5.2.                 Placement Fees. In addition to any hourly charges, a Placement Fee will be chargeable to Client in the event (i) an Employee’s employment relationship with the Employer having posted such Employee on the Site is terminated by the Employee, and (ii) a Client, directly or indirectly through any Affiliate, enters into an employment or other services agreement, relationship or other arrangement, outside of the Service, with an Assigned Employee within twelve (12) months of the later of (X) the date such Assigned Employee’s name is first disclosed to the Client through the Site or (Y) the last date upon which the Employee performed services to Client through the Service.  The “Placement Fee” shall be composed of two parts, a fee payable to the relevant Employer equal to 100% of the Assigned Employee’s Annualized Base Compensation immediately prior to the termination of his or her employment and a fee payable to Colergo equal to 50% of the Assigned Employee’s Annualized Base Compensation immediately prior to the termination of his or her employment.  Client’s obligation to pay a Placement Fee shall survive the termination of this Agreement. 

5.3.            Expenses. Except as otherwise provided herein or as expressly set forth pursuant to the terms of a Reservation, Employer shall be responsible for the payment of all expenses incurred by Employer or any Assigned Employee in connection with any Assignment.  Employer shall be fully responsible for payment of all payroll, payroll taxes and withholdings, tax collection, unemployment insurance, Affordable Care Act requirements, and other fees, charges, taxes or sums payable with respect to any Assigned Employees as a result of or in connection with the Services provided pursuant to this Agreement.

5.4.                 Payment Process.  Each Employer hereby appoints Colergo as the Employer’s limited payment collection agent solely for the purpose of accepting hourly charges and Placement Fees from Clients. 

5.4.1.     For full or partial day Assignments, unless Colergo has provided the Client with alternative payment terms in writing, payment for an Assigned Employee’s hourly charges will be processed on a daily basis; Colergo will have the right to charge the Client's credit card, bank account, and/or PayPal account for such charges one business day prior to the date upon which any Assigned Employee is to provide services.  The Client may submit disputes over payment to support@colergo.com. 

5.4.2.     For on-going Assignments, Colergo shall have the right to process payment for an Assigned Employee’s hourly charges on or after the day following the day upon which the Assigned Employee or applicable Employer submits the pertinent time cards or other agreed system for documenting time worked by Assigned Employees; provided however, if the Client disputes the time sheets prior to the time at which payment is processed, Colergo may process the undisputed portion of all charges immediately upon receipt of any notice of dispute.

5.4.3.     Charges for Placement Fees or Liquidated Damages may be charged to the Client’s credit card, bank account, and/or PayPal account at any time after Colergo determines such amounts are payable by Client.

5.5.                 Responsibility for Payment.  Users are responsible for all fees, including taxes (if any), associated with their use of the Service.  By using the Service, Clients agrees to pay Employers, via the Service, the amount agreed upon in an applicable Reservation, unless such amount or invoice is disputed by sending an email to support@colergo.com.  Clients and Employers are responsible for providing us with a valid means of payment.  Colergo does not guarantee payments to Employers for amounts that have not been successfully collected from Clients. 

5.6.                 Colergo’s Role and Responsibility.  Each Employer appoints Colergo as its limited payment collection agent solely for the purpose of accepting hourly charge fees and Placement Fees from Clients.  Colergo agrees to present Clients with a summary of charges in advance of charging their credit card, bank account, PayPal account or such other payment account or method Colergo may elect to accept in its sole discretion.  Colergo agrees to pay Employers the amount received with respect to each Reservation, less Colergo’s fees (including any third party fees payable by Colergo), within ten (10) business days of receiving payment. 

5.7.                 Payment Authorization. By agreeing to these terms, you are giving Colergo permission to charge your on-file credit card, bank account, PayPal account, or other approved methods of payment for fees that you authorize.  Depending on your Proposal specifications, Colergo may charge you on a one-time or recurring basis. You authorize Colergo to charge you the full amount owed to Colergo or to any other User via the Service.

5.8.                 Processing Fee Authorization.  A processing fee(s) (as described in more detail on a summary invoice, a “Processing Fee”) will be applied to transactions originating on or processed through the Site. By agreeing to these terms, you are giving Colergo permission to charge a Processing Fee and are fully aware that it is part of each transaction between a Client and an Employer.

5.9.                 Additional Payment Terms.  Colergo uses Braintree, a division of PayPal, Inc. for payment processing services. By using the Braintree payment processing services you agree to the Braintree Payment Services Agreement available at https://www.braintreepayments.com/legal/gateway-agreement, and the applicable bank agreement available at https://www.braintreepayments.com/legal/cea-wells.  If you have questions regarding the MSA, please contact Braintree at 877.434.2894.  

6.                   Employee Services.  Employer shall make available to Client the Assigned Employees described in an accepted Proposal for the purposes of providing the types of services detailed in such Assigned Employee’s profile on the Site.  Prior to the commencement of any services with respect to an Assignment, either Employer or Client may cancel such Assignment upon notice of no less than one full Business Day.  In the event that prior to the commencement of an Assignment either Employer or Client provides notice of less than one full Business Day of the cancelation of an Assignment, then such cancelling User shall be obligated to pay a cancellation fee equal to Fifty Percent (50%) of the total fees and charges that would have been otherwise payable with respect to the first day of the Assignment.  Following commencement of an Assignment, Employer may refuse to continue to make an Assigned Employee available to Client or Client may refuse additional services from Employer or any particular Assigned Employee upon no less than 12-hours’ notice.   In the event that following the commencement of an Assignment, either Employer refuses to make an Assigned Employee available to Client or Client refuses additional services from Employer or an Assigned Employee upon less than 12-hours’ notice, then such party shall be obligated to pay a cancellation fee equal to Fifty Percent (50%) of the total fees and charges that would have been otherwise payable with respect to the first day of the Assignment.  In the event an Assigned Employee believes the work conditions to be unsafe or unsatisfactory for any reason, such Assigned Employee may refuse to provide additional services with respect to the Assignment and exit the worksite in such manner as not to endanger any other person or property; and, in such case, Client shall be liable to Employer for the payment of the agreed upon hourly rate of such Assigned Employee multiplied the greater of the time spent by the Assigned Employee providing services to Client or four (4) hours.  Each User expressly agrees that any Assigned Employee services are provided pursuant to the terms and conditions set forth in the Employee Consent and each party expressly agrees to, and accepts, the terms thereof.  At all times, including during the course of Assignments, Employer shall retain the sole responsibility and authority for any decisions regarding the hiring, compensation, discipline, and firing of Assigned Employees.  While on Assignment, Client shall have the sole and exclusive right and authority to supervise, manage and/or otherwise control the services provided by an Assigned Employee to such Client.

7.                       Title and Ownership.  All deliverables or other work product arising out of work performed by an Assigned Employee in connection with an Assignment and any inventions, ideas or original works of authorship in whole or in part conceived or made by an Assigned Employee which arise from or result from the work performed by an Assigned Employee in connection with an Assignment shall belong exclusively to Client, whether or not fixed in a tangible medium of expression. Without limiting the foregoing, Employer agrees that any such deliverables or original works (collectively, “Works”) shall be deemed to be “works made for hire,” provided that in the event and to the extent that such Works are determined not to constitute “works made for hire” as a matter of law, Employer hereby irrevocably assigns and transfers such property, and all right, title and interest therein, including patents and copyrights, to Client and its successors and assigns. Employer grants Client all rights including, without limitation, moral rights (to the extent permitted by law), worldwide with respect to such Works. Works shall be deemed Client’s Confidential Information. Employer and Assigned Employees shall deliver all Works to Client promptly upon their completion or the sooner termination of any services hereunder.  Employer agrees to execute any and all documents as requested by Client to further evidence any of the transfers or assignments provided for herein, and further agrees to cooperate with Client to cause each Assigned Employee to execute the same, if necessary.

8.                       Workers’ Compensation.  Employer shall obtain, and for so long as Employer has any Employee listed on the Site shall maintain, workers’ compensation insurance coverage for all its Employees in such amounts as are required by applicable law and such coverage shall apply and cover Assigned Employees while engaged in any and all Assignments.  Employer shall be responsible for the management of workers’ compensation claims, claims filings, and related procedures for Assigned Employees for services that they perform hereunder; provided, however, Client shall cooperate with Employer with respect to the foregoing obligations.  Employer expressly waives, to the fullest extent permitted by law, any and all subrogation rights against Client with respect to any claims relating to injuries covered by workers’ compensation.  Regardless of whether Employer’s costs and expenses relating to workers’ compensation insurance coverage are separately stated in any employee profile, Proposal or elsewhere, such amounts are, and shall be deemed, a component of the hourly charges payable with respect to any Assigned Employee.     

9.                   Confidentiality.

9.1.          Confidentiality.  Each User (the “Recipient Party”) who may receive Confidential Information  (as defined below) from another User (the “Disclosing Party”) agrees that, except as expressly authorized in writing by the Disclosing Party, such Recipient Party (a) will not use or permit the use of Disclosing Party’s Confidential Information in any manner or for any purpose not expressly set forth in the Terms of Service; (b) will not disclose or permit others to disclose any Confidential Information to any third party without first obtaining the Disclosing Party’s express written consent; and (c) will limit access to the Disclosing Party’s Confidential Information to the Recipient Party’s personnel who need to know such information in connection with such party’s obligations under the Terms of Service.

9.2.             Confidential Information.  Confidential Information” means with respect to either party, all information related to such party’s business and prospects, including, without limitation: (i) company materials; (ii) trade secrets, inventions, ideas, processes, computer source and object code, formulae, data, programs, other works of authorship, know-how, improvements, discoveries, developments, designs, and techniques; (iii) information regarding products or plans for research and development, marketing and business plans, budgets, financial statements, contracts, prices, suppliers, and customers; (iv) information regarding such party’s employees, contractors, and any other service providers; (v) information designated by such party, either in writing or orally, as Confidential Information, (vi) the existence of any business discussions, negotiations, or agreements between such party and any third party; and (vii) all such information related to any third-party that is disclosed to such party during the course of or in connection with any Services provided under this Services Agreement.  Notwithstanding the foregoing, it is understood that either party is free to use information that is generally known in the trade or industry, information that is not gained as a result of a breach of this Agreement, and such party’s own skill, knowledge, know-how, and experience.  Confidential Information does not include information regarding one party that was known to the second party prior to any disclosure hereunder or that becomes publicly available through no fault of the second party. 

9.3.             Employee Confidential Information.  Notwithstanding any provision of the Terms of Service to the contrary, the parties expressly agree that information relating to the identities, approximate rates of compensation, names, addresses, other contact information, skills and experience of Assigned Employees (“Employee Confidential Information”) is Confidential Information belonging to the relevant Employer and Colergo.  

9.3.1.        Non-Solicitation.   For the duration of any Assignment pursuant to which any Assigned Employee provides services to Client and for a period of one (1) year after the termination of any such Assignment, Client will not in any manner, directly or indirectly solicit, induce or attempt to induce, or assist others to solicit, induce or attempt to induce, any Assigned Employee to either (i) leave or terminate his or her employment relationship with his or her Employer, or (ii) breach his or her employment agreement with his or her Employer.

9.3.2.        LIQUIDATED DAMAGES FOR BREACH RESULTING IN TERMINATION OF EMPLOYMENT RELATIONSHIP.  In the event of Client’s unauthorized use or disclosure of Employee Confidential Information resulting in the termination of an Employer’s employment relationship with any Assigned Employee, Client shall be responsible for the payment of liquidated damages described in this Section 9.3.1.  The parties agree that it would be impracticable and extremely difficult to ascertain the amount of actual damages incurred by Employer or Colergo resulting from Client’s unauthorized use or disclosure of Employee Confidential Information resulting in the termination of Employer’s employment relationship with an Assigned Employee.  Therefore, the parties agree that, in the event of such a breach, Client shall pay (i) to Employer, as liquidated damages, an amount equal to One Hundred Percent (100%) of such Employee’s Annualized Base Compensation; and (ii) an additional amount to Colergo, as liquidated damages, equal to Fifty Percent (50%) of such Employee’s Annualized Base Compensation; the parties further agree that the foregoing amounts of liquidated damages represent reasonable compensation for the loss that would be incurred by Employer and Colergo, respectively, due to any such breach by Client; losses which may be incurred by the relevant Employer resulting from any such breach include, but are not limited to, (X) costs incurred to locate and hire a new employee, (Y) costs to train such replacement employee, and (Z) lost productivity during the period of time between the loss of the Assigned Employee and the date upon which the replacement employee is fully trained; and losses which may be incurred by Colergo resulting from any such breach include, but are not limited to, lost profits with respect to future Processing Fees and/or Placement Fees and impairment of Colergo’s brand.  Notwithstanding the foregoing, in the event that Client is responsible for payment of a Placement Fee and Client does in fact make timely payment of the full amount of the Placement Fee to Employer and Colergo, no liquidated damages shall be payable pursuant to this Section 9.3.1.

10.               User Representations and Warranties.

Each User represents, warrants and agrees:

10.1.          to use the Service to make and receive all payments (whether first-time, repeat, or follow-on) to or from any other User identified through the Service as a potential purchaser or seller of labor man-hours, for a period of thirty-six (36) months from the date upon which either of such Users is first identified through the Service by the other as a potential purchaser or seller of labor man-hours; and it further agrees not to circumvent the Service or any associated fees for the foregoing period and to notify Colergo immediately, by sending an email message to support@colergo.com, if another User improperly contacts such person or suggests making or receiving payments outside of the Service.

10.2.          to grant access to its Colergo account only to persons authorized to act on behalf of the User and only in accordance with the Terms of Service.

10.3.          to be fully responsible and liable for any action of any person who uses such User’s Colergo account.

10.4.          not to use the Colergo account, username, or password of another User unless expressly authorized to do so.

10.5.          not to allow any third party who is not authorized to do so to use such User’s Account at any time.

10.6.          not to use any device, software or routine, including but not limited to any viruses, Trojan horses, worms, time bombs, robots or denial-of-service attacks, intended to damage or interfere with the operation of the Site or any transaction being conducted through the Site.

10.7.          not to intercept or expropriate any system, data or personal information from the Site.

10.8.          not to take any action that imposes an unreasonable or disproportionately large load on the Site infrastructure, including but not limited to “spam” or other such unsolicited mass emailing techniques.

10.9.          that they have the right and authority to enter into the Terms of Service and to transact business hereunder.

10.10.      that they are using the Site solely for the purpose of entering into one or more bona fide business transactions with other Users.

10.11.      that they will not use the Site or its services to defraud or mislead any person or entity, including without limitation Colergo or any other User.

10.12.      that they will not use the Site to violate any law or regulation of the United States of America or any international law or treaty.

10.13.      that they are not a resident national of, or, an entity located in Cuba, Iran, Sudan, Burma (Myanmar), Democratic Republic of the Congo, North Korea, Syria or any other country subject to economic sanctions imposed by the government of the United States of America.

10.14.      that they are not currently and have never been listed as a Specially Designated National by the United Stated Department of Treasury’s Office of Foreign Assets Control (“OFAC”).

10.15.      that they will not use the Website in connection with any “prohibited transaction” as defined under the Cuban Assets Control Regulations, 31 C.F.R. Part 515; Iranian Transactions Regulations, 31 C.F.R. Part 560; or Sudanese Sanction Regulations, 31 C.F.R. Part 538; Former Liberian Regime of Charles Taylor Sanctions Regulations, 31 C.F.R. Part 593; Burmese Sanctions Regulations, 31 C.F.R. Part 537; Foreign Assets Control Regulations as they relate to North Korea, 31 C.F.R. Part 500; Executive Order 1338; or any other law, regulation or executive order of the United States of America.

11.               Employer Representations and Warranties.

Employer represents and warrants that:

11.1.             No Conflicts. Its performance pursuant to this Agreement and/or the rights herein granted to Client will not conflict with or result in a breach or violation of any of the terms or provisions, or constitute a default under any organizational instrument of Employer or any agreement to which Employer is a party or to which it is bound, and Employer will not enter into a contract or accept an obligation, inconsistent or incompatible with Employer’s obligations under this Agreement.

11.2.             Compliance with Laws. It has and will comply with all applicable federal, state and local laws, statutes, acts, ordinances, rules, codes and regulations, executive orders and other official releases of or by any government, or any authority, department or agency thereof, in any jurisdiction from or in which the Services are provided or received.

11.3.             Workers’ Compensation.  From time to time and upon request, Employer shall submit to Colergo a certificate of insurance as evidence of Employer’s workers’ compensation coverage.  In the event of any amendment, revision, cancellation, substitution or other change with respect to Employer’s workers’ compensation insurance coverage, Employer shall promptly notify Colergo of such change and submit a new certificate of insurance to Colergo. 

11.4.             Employee Information and Qualification.   All information regarding Employer’s Employees posted on the Site, provided through the Service, or otherwise provided to any Client or Colergo (“Employee Information”) is complete, true and accurate in all respects.  Employer shall be responsible for any liability, loss, damages or harm resulting from any incomplete or inaccurate Employee Information.  Each of Employer’s Assigned Employees shall have all appropriate certifications and licenses required by law to complete a specified Assignment.

11.5.             Collective Bargaining.  No union is presently serving as the collective bargaining agent for any of its employees.  

12.               Client Representations and Warranties

                  Client represents, warrants and/or covenants, that

12.1.          Rules of Conduct.  It will maintain compliance with the Client Rules of Conduct for the duration of each any every Assignment.

12.2.          Health and Safety.  It shall comply with all applicable health and safety laws, regulations, and ordinances, and shall immediately report any accident, injury or complaint concerning an Assigned Employee to the relevant Employer.

12.3.          Promotion of Trade.  It understands and acknowledges that the Service promotes its ability and the ability of Employees to engage in their respective professions, trades or businesses by (i) increasing the likelihood that Assigned Employees are able to maintain full-time employment with their respective employers, (ii) providing Assigned Employees opportunities to learn new skills and gain additional experience, (iii) helping Assigned Employees build their respective professional networks, (iv) keeping Assigned Employees active and productive within their respective professions or trades, and (v) allowing Clients access to individuals employed by peer firms who provide a distinct advantage to such Client over all alternative sources of temporary, seasonal or other short-term service providers.

12.4.          Intent.  It intends to use Assigned Employees only for the discrete purposes detailed in the applicable Proposal and does not intend to hire or engage any such Assigned Employees on a full-time basis unless disclosed in writing contemporaneously with any Proposal; further, Client acknowledges its hiring or other engagement of an Assigned Employee absent payment of the Placement Fee would (i) unfairly and wrongfully interfere with Colergo’s relationship with the relevant Employer, (ii) unfairly and wrongfully interfere with the relevant Employer’s relationship with such Assigned Employee, and (iii) damage Colergo’s reputation in the marketplace.

12.5.             No Conflicts. Its performance pursuant to this Agreement and/or the rights herein granted to Employer will not conflict with or result in a breach or violation of any of the terms or provisions, or constitute a default under any organizational instrument of Client or any agreement to which Client is a party or to which it is bound, and Client will not enter into a contract or accept an obligation, inconsistent or incompatible with Client’s obligations under this Agreement.

12.6.             Compliance with Laws. It has and will comply with all applicable federal, state and local laws, statutes, acts, ordinances, rules, codes and regulations, executive orders and other official releases of or by any government, or any authority, department or agency thereof, in any jurisdiction from or in which the Services are provided or received.

12.7.             Collective Bargaining.  No union is presently serving as the collective bargaining agent for any of its employees.

12.8.             Benefits Plans.  Any and all benefit plans, policies, and practices offered by Clients to its regular employees shall include appropriate terms excluding Assigned Employees, and Client shall not make any offer or promise relating to any Assigned Employee’s compensation or benefits.

12.9.             Employee.  It has classified all of its Employees posted on the Site as employees for all purposes and not as independent contractors.

13.               Indemnification.

13.1.              Employer Indemnification. Employer, at its own expense, shall defend, indemnify and hold Colergo and Client, and each of their respective Affiliates, officers, directors, employees, agents, successors and assigns harmless from and against all suits, claims, demands, penalties, fines, charges, proceedings, causes of action, damages, losses, liabilities, costs and expenses of any nature whatsoever (including attorneys’ fees) (“Losses”), arising from the actual or alleged (a) breach of any representation, warranty or covenant hereunder, or any other failure to perform its obligations hereunder, (b) employment, payroll or other claims of Assigned Employees based on any action or omission on the part of Employer; or (c) any claim by Assigned Employees (or their dependents or beneficiaries) arising out of or in connection with the operation, administration, funding or termination of any of the employee benefit plans or programs applicable to the Assigned Employees that arise prior to, during or after the term hereof.

 

13.2.              Client Indemnification.  Client, at its own expense, shall defend, indemnify and hold Colergo and Employer, each of their respective Affiliates, officers, directors, employees, agents, successors and assigns harmless from and against all Losses whatsoever arising from the actual or alleged (a) breach of any representation, warranty or covenant hereunder, or any other failure to perform its obligations hereunder (including any breach of the Client Rules of Conduct); (b) claims (exclusive of any claims covered by workers’ compensation) of any Assigned Employees based upon (i) conditions over which Client, directly or indirectly, has sole control or (ii) any actions of Client; or (c) claims of any third parties arising in connection with the acts, errors or omissions of any Assigned Employee while under the supervision of Client (including any Works produced, in whole or in part, by any Assigned Employee for Client).

 

13.3.              Procedures. The indemnified party will give the indemnifying party prompt written notice of any such claim and shall give reasonable cooperation and assistance, at no cost, with respect to such defense.

 

13.4.              Defense. The indemnifying party shall have the full responsibility for and control of the defense (including any settlement) of any such suit or proceeding; provided, however, that (a) such defense shall be conducted at the indemnifying party’s sole cost and expense, (b) the indemnifying party shall keep the indemnified party informed of, and consult with the indemnified party in connection with, the progress of such litigation and settlement, and (c) the indemnifying party shall not have the right to settle any such claim without the prior written approval of an officer of the indemnified party if such settlement arises from or is part of any criminal action, suit or proceeding or contains a stipulation to, or admission or acknowledgment of, any wrongdoing (whether in tort or otherwise) on the part of the indemnified party or any Affiliate.

14.               Limitation of Employer Liability.  Employer does not warrant or guarantee that the Assigned Employee(s) will produce any particular result or any solution to Client’s particular needs, or that any Assigned Employee will perform services in any particular manner.  Accordingly, Client acknowledges and agrees that Employer is not responsible for any aspects of any Assigned Employees work or the Client’s project, including, without limitation, any deadlines or work product. 

15.               Copyright Infringement and DMCA Policy. If you believe that material located on or linked to by Colergo violates your copyright, please notify Colergo in accordance with our Digital Millennium Copyright Act Policy.

15.1.          Termination of Repeat Infringer Accounts. Colergo respects the intellectual property rights of others and requests that our Users do the same. Pursuant to 17 U.S.C. 512(i) of the United States Copyright Act, we will terminate a User’s access to and use of the Service if, under appropriate circumstances, the User is determined to be a repeat infringer of the copyrights or other intellectual property rights of Colergo or others.  Colergo may terminate access for Users who are found repeatedly to provide or post protected Third Party Content without necessary rights and permissions.

15.2.          DMCA Take-Down Notices. If you are a copyright owner or an agent of a copyright owner and believe, in good faith, that any materials provided on the Site infringe upon your copyrights, you may submit a notification pursuant to the Digital Millennium Copyright Act (see 17 U.S.C 512) (“DMCA”) by sending a properly formatted take-down notice in writing to Colergo’s designated copyright agent at Colergo, Attn:  Copyright Agent, 350 Tenth Ave, Suite 1300, San Diego, CA 92101.

15.3.          Response To DMCA Take-Down Notices. If Colergo takes action in response to an infringement notice, it will make a good faith attempt to contact the party that made such content available by means of the most recent email address, if any, provided by that party to Colergo. Any DMCA infringement notice may be forwarded to the party that made the content available or to third parties.

15.4.               Counter-Notices. If you believe that your User-Generated Content that has been removed from the Site is not infringing, or that you have the authorization from the copyright owner, the copyright owner's agent, or pursuant to the law, to post and use the content you submitted to the Site, you may send a properly formatted counter-notice to Colergo’s copyright agent using the contact information set forth above.

15.5.               Response to DMCA Counter-Notices. If a counter-notice is received by Colergo’s copyright agent, Colergo may send a copy of the counter-notice to the original complaining party informing such person that it may reinstate the removed content in 10 business days. Unless the copyright owner files an action seeking a court order against the content provider, member or user, the removed content will be reinstated on the Site in 10 to 14 business days after receipt of the counter-notice.

16.               Intellectual Property Notice.

                Colergo retains all ownership of our intellectual property, including our copyrights, patents, and trademarks.

16.1.          No Transfer. Colergo retains ownership of all intellectual property rights of any kind related to the Site and Service, including applicable copyrights, patents, trademarks and other proprietary rights. Other trademarks, service marks, graphics and logos used in connection with the Site and the Service may be the trademarks of other third parties. This Agreement does not transfer from us to you any Colergo or third party intellectual property, and all right, title, and interest in and to such property will remain (as between the parties) solely with Colergo. Colergo reserves all rights that are not expressly granted to you under this Agreement.

16.2.          Colergo IP.  Specifically, Neptis, Colergo, colergo.com, and all other trademarks that appear, are displayed, or are used on the Site or as part of the Service are registered or common law trademarks or service marks of Colergo. These trademarks may not be copied, downloaded, reproduced, used, modified, or distributed in any way without prior written permission from Colergo, except as an integral part of any authorized copy of the Content.

17.               User Content.   Users may create content, written or otherwise, while using the Service (“User-Generated Content”). Users are solely responsible for the content of, and any harm resulting from, any User-Generated Content that they post, upload, link to or otherwise make available via the Site, 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 such User’s use of the Service is solely such User’s responsibility. Colergo is not responsible for any public display or misuse of your User-Generated Content.  Except for Content that originates from Colergo, Colergo does not claim ownership of any Content that is transmitted, stored, or processed through any User account.  Each User (i) represents and warrants that such User has the right, power, and authority to post all Content posted by such User without violation of any third-party rights of any kind; and (ii) retains all ownership of, control of, and responsibility for all Content generated and/or posted to the Site by such User.  Solely to allow Colergo to use Content uploaded to the Site by Users reasonably without violating any rights any such User may have in such Content, each User grants Colergo the following rights: a perpetual, worldwide, sublicenseable, fully-paid and royalty-free, and non-exclusive license to use, reproduce, display, modify, adapt, distribute, and perform the Content in connection with Colergo’s business purpose. This license does not grant Colergo the right to sell User-Generated Content or otherwise distribute it outside of the Site.  Colergo has the right (though not the obligation) to, in its sole discretion, determine whether or not any User-Generated Content is appropriate and complies with the Terms of Service, or refuse or remove any User-Generated Content that, in Colergo’s reasonable opinion, violates any Colergo policy or is in any way harmful, inappropriate, or objectionable.  Colergo further reserves the right to make formatting and edits and change the manner any User-Generated Content is displayed on the Site.

18.               Third Party Content. There may be content from third parties on the Site, such as blog posts written by other Users or links to other websites. Because we cannot control that content, we are not responsible for that content or for the websites that content may link to.

18.1.          Access to Third Party Content.  By using the Service, Users will be able to access Content belonging to or originating from third parties (“Third Party Content”). Users (i) acknowledge use of the Site is consent for Colergo to present this Content to Users and (ii) accept all responsibility for, and assume all risk for, their use of Third Party Content.

18.2.          No Responsibility for Third Party Content.  As part of the Service, Colergo may provide Users with convenient links to third party website(s) as well as other forms of Third Party Content. These links are provided as a courtesy to Users.  Colergo has no control over third party websites or content or the promotions, materials, information, goods or services available on them. By linking to such content, Colergo does not represent or imply that Colergo adopts or endorses, nor is Colergo responsible for, the accuracy or reliability of any opinion, advice, or statement made by parties other than Colergo.  Colergo is not responsible for any Third Party Content accessed through the Site. If you decide to leave the Site and access Third Party Content, you do so at your own risk and you should be aware that our terms and policies no longer govern. You should review the applicable terms and policies, including privacy and data gathering practices, of any such content.

18.3.          No Authorization to Use Third Party Content. You are not authorized to distribute, publicly display, publicly perform, make available, alter, or otherwise use any Third Party Content except as expressly provided in the Terms of Service.

19.               Electronic Communications.   

19.1.          Consent to Electronic Communications.  Each User (i) consents to receive communications from Colergo in an electronic form via the email address or cellular phone number you have submitted or via the Site; and (ii) agrees that all the Terms of Service, agreements, notices, disclosures, and other communications that Colergo provides to you electronically satisfy any legal requirement that such communications would satisfy if such communications were in writing. This section does not affect your non-waivable rights.

19.2.          Legal Notices to Colergo.  Communications made through email or the Site’s messaging or other communications systems will not constitute legal notice to Colergo or any of our officers, employees, agents or representatives in any situation where notice to Colergo is required by contract or any law or regulation.

20.               Disclaimer of Colergo Warranties; Limitation of Colergo Liability.

20.1.          YOU EXPRESSLY UNDERSTAND AND AGREE THAT YOUR USE OF THE SITE AND ANY SERVICES OBTAINED THROUGH THE SITE IS AT YOUR SOLE RISK AND THAT THE SITE IS PROVIDED "AS IS" AND "AS AVAILABLE" WITHOUT WARRANTY OF ANY KIND, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.

20.2.          YOUR USE OF THE SITE AND ANY SERVICES OBTAINED THROUGH THE USE OF THE SITE IS AT YOUR OWN DISCRETION AND RISK AND YOU ARE SOLELY RESPONSIBLE FOR ANY HARM OR DAMAGE THAT RESULTS FROM SUCH USE.

20.3.          TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, COLERGO FURTHER EXPRESSLY DISCLAIMS ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE WARRANTY OF MERCHANTABILITY, FITNESS FOR PARTICULAR PURPOSE AND NON-INFRINGEMENT, WITH RESPECT TO ANY SERVICES OBTAINED THROUGH THE SITE AS WELL AS THE SITE ITSELF.  COLERGO MAKES NO WARRANTIES ABOUT THE ACCURACY, RELIABILITY, COMPLETENESS, OR TIMELINESS OF ANY CONTENT, SERVICES, SOFTWARE, TEXT, GRAPHICS, AND LINKS CONTAINED ON THE SITE OR OBTAINED THROUGH THE SITE.

20.4.          YOU EXPRESSLY UNDERSTAND AND AGREE THAT COLERGO AND ITS SUBSIDIARIES AND AFFILIATES SHALL NOT BE LIABLE TO YOU UNDER ANY THEORY OF LIABILITY (WHETHER CONTRACT, TORT INCLUDING NEGLIGENCE OR OTHERWISE) FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES THAT MAY BE INCURRED BY YOU THROUGH YOUR USE OF THE SITE OR ANY SERVICES OBTAINED FROM THE SITE, WHETHER OR NOT COLERGO OR ITS REPRESENTATIVES HAVE BEEN ADVISED OF OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF ANY SUCH LOSSES ARISING.

20.5.          In addition to the recognition that Colergo is not a party to any contract between Client and Employer, you hereby release Colergo, our Affiliates, and our respective officers, directors, employees, attorneys, agents, subsidiaries, joint ventures, and our and their respective successors and assigns from claims, demands, and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with any dispute you have with another User or Employee, whether it be at law or in equity. This release includes, for example and without limitation, any disputes regarding the provision, functions, and quality of the services provided to Client by any Employer or Assigned Employee and requests for refunds based upon any disputes.  This release will not apply to a claim that Colergo failed to meet our obligations under the Terms of Service.

TO THE EXTENT APPLICABLE, YOU HEREBY WAIVE CALIFORNIA CIVIL CODE § 1542 (AND ANY ANALOGOUS LAW IN ANY OTHER APPLICABLE JURISDICTION) WHICH SAYS: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.”

21.               Assignability.  Colergo may assign or delegate any or all of the terms of this Agreement, in whole or in part, to any person or entity at any time with or without your consent.  No Employer, Assigned Employee or Client may assign any rights or obligations under the Terms of Service, whether in whole or in part, without the prior written consent of Colergo; and any unauthorized assignment and delegation by you is void. Subject to the foregoing, the Terms of Service shall be binding upon and shall inure to the benefit of the parties and their respective permitted successors and assigns.

22.               Promotion.  Neither Client nor Employer shall acquire any right under this Agreement to use, and shall not, directly or indirectly, assist any other party to use any trade names, fanciful characters or designs of any other party or such other party’s Affiliates (a) in any advertising, publicity or promotion or other disclosure, (b) in any in-house publication, (c) to express or imply any endorsement of any product or service, or (d) in any other manner or for any purpose whatsoever (whether or not similar to any of the foregoing).

23.               Modification of Terms of Service.  Colergo may amend this Agreement at any time by posting a revised version on the Site.  Each revised version will state its effective date, which will be on or after the date posted by Colergo. If the revised version materially reduces your rights or increases your responsibilities, we may post it in advance of the effective date in order to give you notice.  Your continued use of the Site after the effective date of a revised version of this Agreement constitutes your acceptance of its terms.

24.               Miscellaneous.

24.1.              Relationship.  Nothing in this Agreement shall constitute, or be deemed or construed to create, a partnership, joint venture or similar relationship between any Employer and any Client. No User shall be deemed to be the agent of any other User by virtue of this Agreement, it being understood and agreed that each Employer and each Client are independent parties contracting for services. No User has, and no User shall hold itself out as having, any authority to enter into any contract or create any obligation or liability on behalf of any other User. Employer, at its sole cost and expense, will maintain appropriate insurance in accordance with generally accepted industry standards.

24.2.              Severability.  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 Colergo 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.

24.3.              Headings.  The section headings used in this Agreement are provided solely for reference and the convenience of the parties, form no part of this Agreement and shall not affect its interpretation.

24.4.              Limitation of Term of Action. You agree that any cause of action related to or arising out of your relationship with Colergo must commence within one (1) year after the cause of action accrues.  Otherwise, such cause of action is permanently barred.

24.5.              Dispute Resolution.

24.5.1. Mediation.  Any dispute, controversy or claim arising out of or relating to the Terms of Service, or the breach hereof, shall be referred to senior management of the parties for good faith discussion and resolution. If any such dispute, controversy or claim cannot be resolved by such good faith discussion between the parties, the parties agree first to try in good faith to settle the dispute by mediation administered by the American Arbitration Association under its Commercial Mediation Procedures before resorting to arbitration, litigation, or some other dispute resolution procedure. 

24.5.2. Mandatory Arbitration.  You and Colergo agree that any dispute, claim or controversy arising out of or relating to the Terms of Service or the breach, termination, enforcement, interpretation or validity thereof, or to the use of the Service, the Site or the use or services of any Assigned Employee (collectively, “Disputes”) will be settled by binding arbitration, except that each party retains the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents, or other intellectual property rights. You acknowledge and agree that you and Colergo are each waiving the right to a trial by jury or to participate as a plaintiff or class member in any purported class action or representative proceeding.  Further, unless the parties to the dispute otherwise agree in writing, the arbitrator may not consolidate more than one person's claims, and may not otherwise preside over any form of any class or representative proceeding; notwithstanding the foregoing any Dispute amongst Colergo, any particular Employer and any particular Client relating to the nonpayment of any fees, charges or expenses with respect  to any particular Assigned Employee or Assignment may be consolidated into a single proceeding.  If this specific paragraph is held unenforceable, then the entirety of this “Dispute Resolution” section will be deemed void.  Except as provided in the preceding sentence, this “Dispute Resolution” section will survive any termination of the Terms of Service.

24.5.3. Arbitration Rules and Governing Law. The arbitration will be administered by the American Arbitration Association (“AAA”) in accordance with the Commercial Arbitration Rules (the “AAA Rules”) then in effect, except as modified by this “Dispute Resolution” section. (The AAA Rules are available at http://www.adr.org/arb_med or by calling the AAA at 1-800-778-7879.) The Federal Arbitration Act will govern the interpretation and enforcement of this section.

24.5.4. Arbitration Process. A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the AAA Rules. (The AAA provides a form Demand for Arbitration at http://www.adr.org/aaa/ShowPDF?doc=ADRSTG_004175 and a separate form for California residents at http://adr.org/aaa/ShowPDF?doc=ADRSTG_004314.) The arbitrator will be either a retired judge or an attorney licensed to practice law in the state of Delaware and will be selected by the parties from the AAA’s roster of arbitrators. If the parties are unable to agree upon an arbitrator within seven (7) days of delivery of the Demand for Arbitration, then the AAA will appoint the arbitrator in accordance with the AAA Rules.

24.5.5. Arbitration Location and Procedure.  The arbitration will be conducted in the County of Sussex, State of Delaware.  If your claim does not exceed $10,000, then the arbitration will be conducted solely on the basis of documents the relevant parties submit to the arbitrator and there shall be no in-person hearing, unless the arbitrator determines that a hearing is necessary.  If your claim exceeds $10,000, your right to a hearing will be determined by the AAA Rules.  Subject to the AAA Rules, the arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration.

24.5.6. Arbitrator’s Decision. The arbitrator will render an award within the time frame specified in the AAA Rules. The arbitrator’s decision will include the essential findings and conclusions upon which the arbitrator based the award.  Judgment on the arbitration award may be entered in any court having jurisdiction thereof.  The arbitrator’s award damages must be consistent with the terms of the “Disclaimer of Colergo Warranties; Limitation of Colergo Liability” section above as to the types and the amounts of damages for which a party may be held liable. The arbitrator may award declaratory or injunctive relief only in favor of the claimant and only to the extent necessary to provide relief warranted by the claimant’s individual claim. To the maximum extent permitted by AAA Rules and applicable rules, the prevailing party will be entitled to an award of attorneys’ fees and expenses.

24.5.7. Fees. Your responsibility to pay any AAA filing, administrative and arbitrator fees will be solely as set forth in the AAA Rules.  However, the failure or refusal of either party to pay its required share of the deposits for arbitrator compensation or administrative charges shall constitute a waiver by that party to present evidence or cross-examine witness.  In such event, the other party shall be required to present evidence and legal argument as the arbitrator may require for the making of an award.  Such waiver shall not allow for a default judgment against the non-paying party in the absence of evidence presented as provided for above.

24.5.8. Changes. Notwithstanding the provisions of the “Modification of Terms of Service” section above, if Colergo changes this “Dispute Resolution” section after the date you first accepted the Terms of Service (or accepted any subsequent changes to the Terms of Service), you may reject any such change by sending us written notice (including by email to support@Colergo.com) within 30 days of the date such change became effective, as indicated in the effective date in the preamble above or in the date of Colergo’s email to you notifying you of such change. By rejecting any change, you are agreeing that you will arbitrate any Dispute between you and Colergo in accordance with the provisions of this “Dispute Resolution” section as of the date you first accepted the Terms of Service (or accepted any subsequent changes to the Terms of Service).

24.6.              Governing Law.  The laws of the State of Delaware and the laws of the United States shall govern the interpretation and enforcement of this Agreement, without giving effect to principles of conflicts of law.  Any action or proceeding brought by a party against any other party arising out of or related to this Agreement, other than such controversies subject to arbitration as provided in Section 24.5 hereof, shall be brought exclusively in a state or federal court of competent jurisdiction located in Sussex County, Delaware. THE PARTIES HEREBY WAIVE TRIAL BY JURY WITH RESPECT TO ANY SUCH ACTION OR PROCEEDING.   

24.7.              Remedies. No remedy herein conferred is intended to be exclusive of any other remedy, and each and every such remedy shall be cumulative and shall be in addition to every other remedy given hereunder or now or hereafter existing at law or in equity or by statute or otherwise.

24.8.              Termination and Survival.  You may cancel this Agreement and close your Account at any time.  If you wish to terminate this Agreement or your Account, you may simply discontinue using Colergo.  If you wish to delete your User account data, please contact Colergo at support@colergo.com. We will retain and use your information as necessary to comply with our legal obligations, resolve disputes, and enforce our agreements, but barring legal requirements, we will delete your full profile within 30 days.  Colergo may terminate your access to all or any part of the Site at any time, with or without cause, with or without notice, effective immediately.  All provisions of this Agreement which by their nature should survive termination will survive termination, including, without limitation, payment provisions, ownership provisions, warranty disclaimers, dispute resolution provisions, indemnities and limitations of liability.