These Surehand Terms and Conditions (these “Terms”) are entered into by and between Surehand, Inc., a Delaware corporation having its principal place of business at Morgan Hill, California 95037 (“Surehand”) and the employer establishing an account with Surehand (“Employer“). These Terms forth the general terms and conditions under which Employer may access and use the Services (as defined below). By using the Services, Employer is agreeing to these Terms.
1.1 “Affiliate” means, with respect to a party, any entity which directly or indirectly Controls, is Controlled by, or is under common Control with such party.
1.2 “Aggregated Data” means Employer Data (i) anonymized, and not identifiable to any person or entity, (ii) combined with the data of other Surehand users or additional data sources, and (iii) presented in a manner from which Employer’s or Employer’s identity may not be derived.
1.3 “Control” means 50% or greater voting power, or otherwise having the power to govern the financial and the operating policies or to appoint the management of an organization.
1.4 “Documentation” means any user manuals or other documentation provided in writing by Surehand to Employer with respect to the Services in electronic or paper format, as amended from time to time by Surehand.
1.5 “Employer Data” means all information, data and other content, in any form or medium, that is (i) submitted by or on behalf of Employer to the Services, or (ii) generated specifically for Employer from its use of the Services.
1.6 “Employer Users” means employees, agents and other third parties authorized by Employer to access or use the Services.
1.7 “Fees” means any fees payable for the Services and Professional Services under the Order Form.
1.8 “Force Majeure Event” means an event which is unforeseeable, beyond the control of the party affected, and cannot be remedied by the exercise of reasonable diligence, including without limitation: acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes, computer, telecommunications, Internet service provider or hosting facility failures or delays involving hardware, software or power systems not within Surehand’s possession or reasonable control, and denial of service attacks.
1.9 “Intellectual Property Rights” means copyrights (including, without limitation, the exclusive right to use, reproduce, modify, distribute, publicly display and publicly perform the copyrighted work), trademark rights (including, without limitation, trade names, trademarks, service marks, and trade dress), patent rights (including, without limitation, the exclusive right to make, use and sell), trade secrets, moral rights, right of publicity, authors’ rights, contract and licensing rights, goodwill and all other intellectual property rights as may exist now and/or hereafter come into existence and all renewals and extensions thereof, regardless of whether such rights arise under the law of the United States or any other state, country or jurisdiction.
1.10 “Order Form” means any order form or subscription agreement, whether online or as a paper or electronic document, agreed by the parties that references these Terms and describes (i) the Services and Professional Services to be provided to Employer by Surehand, including any related target dates and milestones, and (ii) Fees payable by Employer to Surehand for the Services and Professional Services. All Order Forms will be governed by the terms and conditions in these Terms, except as otherwise stated in the Order Form.
1.11 “Platform” means Surehand’s proprietary platform of servers, software and technology used to provide the Services.
1.12 “Professional Services” means the additional professional services that Surehand will provide to Employer under these Terms as described in the Order Form. Professional Services relate to such matters as configuration, implementation, training, support and reporting.
1.13 “Services” means the search and matching services for Worker Candidates that Surehand will provide to Employer under these Terms as described in the Order Form.
1.14 “Surehand Materials” means all software, specifications, documentation and systems and any and all other information, data, documents, materials, works and other content, devices, methods, processes, hardware and other technologies and inventions, including any deliverables, technical or functional descriptions, requirements, plans or reports, that are provided or used by Surehand in connection with the Services or otherwise comprise or relate to the Services or the Platform. Surehand Materials do not include Employer Data or Third Party Materials.
1.15 “Third Party Materials” means software or other components that are licensed to Surehand by third parties for use in the Services, including but not limited to open source software.
1.16 “Worker Candidates” means the workers whose profiles and qualifications are posted on the Platform for review and consideration by Employer.
2. INTELLECTUAL PROPERTY RIGHTS AND OWNERSHIP
2.1 Employer Rights to the Services. Subject to the terms and conditions set forth in these Terms, Surehand grants to Employer a limited, non-transferable/non-assignable (except as set forth in the Agreement), non-exclusive right to access and use the Services during the Term (as defined in Section 8.1) for its internal business purposes.
2.2 Surehand Ownership Rights. All rights and title in and to the Platform, the Services, Surehand Materials and Documentation, including all Intellectual Property Rights inherent therein, belong exclusively to Surehand and its licensors. No rights are granted to Employer other than as expressly set forth in these Terms.
2.3 Employer Ownership Rights. All rights and title in and to the Employer Data, including all Intellectual Property Rights inherent therein, belong exclusively to Employer. No rights are granted to Surehand other than as expressly set forth in these Terms.
2.4 Consent to Use Employer Data. Employer hereby irrevocably grants to Surehand all such rights and permissions in or relating to Employer Data as are necessary or useful for Surehand (i) to perform the Services and (ii) to enforce these Terms and exercise its rights hereunder.
3. RESTRICTIONS, RESPONSIBILITIES AND RIGHTS
3.1 Employer Restrictions. Employer shall not (and will not allow any third party to): (i) modify, copy, display, republish or create derivative works based on the Services or Surehand Materials; (ii) reverse engineer the Services; (iii) access the Services in order to build a competitive product or service, or copy any ideas, features, functions or graphics of the Services; (iv) use the Services to send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (v) use the Services to post or send infringing, obscene, threatening, libelous, or otherwise unlawful material; (vi) use the Services to access blocked services in violation of applicable laws; (vii) upload to the Services or use the Services to send or store viruses, worms, time bombs, Trojan horses or other harmful or malicious code, files, scripts, agents or programs; (viii) use the Services to run automated queries to web sites; (ix) interfere with or disrupt the integrity or performance of the Services or the data contained therein; (x) attempt to gain unauthorized access to the Services or its related systems or networks; (xi) remove or alter any trademark, logo, copyright or other proprietary notices, legends, symbols or labels in the Services; or (xii) without the express prior written consent of Surehand, conduct any benchmarking or comparative study or analysis involving the Services for any reason or purpose except, to the limited extent absolutely necessary, to determine the suitability of the Services to interoperate with Employer’s internal systems. In addition, Employer agrees that it shall: (i) use the Services solely for its internal business purposes; (ii) only permit access to the Services by Employer Users; and (iii) not access or use the Services from an embargoed nation, including without limitation, Cuba, Iran, North Korea, Syria, Sudan, Crimea Region of Ukraine, or any other country/region that becomes an embargoed nation.
3.2 Employer Responsibilities. All rights and title in and to the Platform, the Services, Surehand Materials and Documentation, including all Intellectual Property Rights inherent therein, belong exclusively to Surehand and its licensors. No rights are granted to Employer other than as expressly set forth in these Terms.
3.2.1 Employer agrees and understands that (i) it is responsible for all activity of Employer Users and for Employer Users’ compliance with these Terms; (ii) it shall: (a) have sole responsibility for the accuracy, quality, integrity, legality, reliability and appropriateness of all Employer Data; (b) prevent unauthorized access to, or use of, the Services, and notify Surehand promptly of any such unauthorized access or use; and (c) comply with all applicable laws in using the Services. The Services shall not include Employer’s access connection to the Internet or any equipment necessary for Employer to make such connection, which shall be Employer’s sole responsibility. Employer shall be responsible for supplying Surehand with any technical data and other information Surehand may reasonably request to allow Surehand to provide the Services to Employer.
3.2.2 Employer shall provide Surehand with complete and accurate account, billing and payment information and keep such information up to date during the Term. Surehand will grant Employer the capability to add and remove Employer Users via one or more administrator accounts. Employer acknowledges and agrees that each Employer User accessing Employer’s account with Surehand must establish an individual sub-account for that Employer User’s access only, using his or her real name and not an alias. Employer agrees not to provide any person or entity with access to the Services using Employer’s user name, password or other security information except as permitted under these Terms and shall prevent Employer Users from sharing their Surehand account access or login information with any other party, including any other Employer employee or third-party contractor. Employer is responsible for maintaining the security and confidentiality of all passwords associated with Employer’s account. If Employer becomes aware of any unauthorized or illegal use of Employer’s account, Employer shall immediately notify Surehand.
3.3 SUREHAND RESPONSIBILITIES
3.3.1 Surehand shall not use, access, or modify the Employer Data except as set forth in these Terms;
3.3.2 Surehand shall use commercially reasonable measures to maintain the security and integrity of the Services and the Employer Data and to provide technical and organizational safeguards against accidental, unlawful or unauthorized access to or use of, destruction, transfer, disclosure or alteration of Employer Data; and
3.4 SUREHAND RIGHTS
3.4.1 Surehand reserves the right to suspend Employer’s access to or download of the Services in the event Employer’s use of the Services represents an imminent threat to Surehand’s network, or if so directed by a court or competent authority. In such cases, Surehand will (i) suspend the Services only to the extent reasonably necessary to prevent any harm to Surehand’s network (for example, blocking offending source IP addresses); (ii) use its best efforts to promptly contact Employer and give Employer the opportunity to promptly change the configuration of its server(s) accordingly and/or work with Employer to promptly resolve the issues causing the suspension of such the Services; and (iii) reinstate any suspended the Services immediately after any issue is abated. Without limiting the foregoing, Surehand reserves the right to manage bandwidth or route traffic across the Internet in a commercially optimal way, provided such actions do not compromise Surehand’s obligations regarding the Employer Data.
3.4.2 Surehand shall have the right to (i) take any action with respect to Employer Data, including deletion, that Surehand deems reasonably necessary or appropriate if Surehand concludes that any Employer Data violates these Terms, infringes any Intellectual Property Right or other right of any person or entity, threatens the personal safety of users of the Services or the public or could create liability for Surehand; (ii) take appropriate legal action, including without limitation, referral to law enforcement, for any illegal use of the Services; and (iii) terminate or suspend Employer’s access to all or part of the Services for any violation of these Terms. Notwithstanding the foregoing, Surehand does not undertake to review Employer Data before it is posted via the Services, and Surehand cannot ensure prompt removal of objectionable Employer Data after it has been posted. Accordingly, Surehand assumes no liability for any action or inaction regarding transmissions, communications or content provided by any Employer User or third party. Surehand disclaims all liability or responsibility for exercise or nonexercise of its rights under this Section 3.4.2.
3.4.3 Surehand shall have the right to (i) use or act upon any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Employer relating to the Services; (ii) utilize all other information provided by Employer (including Employer Data) relating to the Services for the purposes of (a) maintaining, improving and/or analyzing the Services, and/or (b) complying with all legal or contractual requirements; and (c) develop and commercialize benchmarks and measures based on Aggregated Data. The foregoing shall in no way limit Surehand’s confidentiality obligations set forth in these Terms.
4. THIRD PARTY MATERIALS
Employer acknowledges that the Services may include Third Party Materials. Surehand represents that these Third Party Materials will not diminish the license rights provided herein or limit Employer’s ability to use the Services in accordance with the applicable Documentation, and the use or inclusion of Third Party Materials in the Services will not create any obligation on the part of Employer to license Employer’s software or products under any open source or similar license. To the extent certain portions of the Services are distributed under and subject to open source licenses obligating Surehand to make the source code for such portions publicly available, Surehand will make such source code portions (including Surehand modifications, as appropriate) available to Employer upon request.
5. FEES; PAYMENT TERMS
5.1 Fees. Employer shall pay Surehand the Fees set forth in an Order Form in accordance with this Section 5. Employer agrees and understands that if Employer does not pay Surehand the Fees due for the Services within the agreed time period, Surehand reserves the right to suspend Employer’s access and use of the Services until such Fees are paid as provided in Section 5.4.
5.2 Taxes. All Fees and other amounts payable by Employer under these Terms are exclusive of taxes and similar assessments. Employer is responsible for all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state or local governmental or regulatory authority on any amounts payable by Employer hereunder, other than any taxes imposed on Surehand’s income.
5.3 Payment. Unless otherwise provided in an Order Form, Employer shall pay all Fees within thirty (30) days after the date of the invoice therefor. Employer shall make all payments hereunder in U.S. dollars by the payment method specified by Surehand. Employer shall make payments to the account specified in the applicable Order Form or such other account as Surehand may specify in writing from time to time.
5.4 Late Payment. If Employer fails to make any payment when due then, in addition to all other remedies that may be available, Surehand may charge interest on the past due amount at the rate of 1.5% per month calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable law. If such failure continues for five (5) days following written notice thereof, Surehand may suspend performance of the Services until all past due amounts and interest thereon have been paid, without incurring any obligation or liability to Employer by reason of such suspension.
6.1 Mutual Warranty. Each party represents and warrants that it has the legal power and authority to enter into these Terms.
6.2 Services Warranty. Surehand warrants that the Services will be provided in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services and substantially conform to the Documentation. If Employer believes that the warranty stated in this Section has been breached, Employer must notify Surehand of the breach no later than ten (10) days following the date the warranty was allegedly breached, and if Surehand determines that a defect exists, Surehand will promptly correct the non-conformity at its own expense.
6.3 Professional Services Warranty. Surehand warrants that any Professional Services will be performed in a professional manner in accordance with industry standards for similar services. If Employer believes that the warranty stated in this Section has been breached, Employer must notify Surehand of the breach no later than ten (10) days following the date that the Professional Services were performed. If Surehand determines that a breach of this warranty occurred, Surehand will promptly correct or re-perform the Professional Services at its own expense.
6.4 Sole Remedies. The remedies stated in Sections 6.2 and 6.3 above are the sole remedies, and Surehand’s sole obligation, with respect to the Services that fail to comply with the foregoing warranties.
6.5 Disclaimer of Warranties. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH HEREIN, ALL SERVICES ARE PROVIDED ON AN “AS IS” BASIS WITHOUT ANY WARRANTY WHATSOEVER. SUREHAND EXPRESSLY DISCLAIMS, TO THE MAXIMUM EXTENT PERMISSIBLE UNDER APPLICABLE LAW, ALL WARRANTIES, EXPRESS, IMPLIED AND STATUTORY, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, NONINFRINGEMENT, OR ARISING FROM COURSE OF PERFORMANCE, DEALING, USAGE OR TRADE. SUREHAND ALSO MAKES NO WARRANTY REGARDING NONINTERRUPTION OF USE OR FREEDOM FROM BUGS, AND MAKES NO WARRANTY THAT SERVICES WILL BE ERROR-FREE.
WITHOUT LIMITING THE FOREGOING DISCLAIMER, EMPLOYER ACKNOWLEDGES AND AGREES THAT (I) SUREHAND MAKES NO REPRESENTATIONS, WARRANTIES OR GUARANTEES WITH REGARD TO THE QUALIFICATIONS OR PERFORMANCE OF ANY WORKER CANDIDATE WHOSE PROFILE IS MADE AVAILABLE ON THE PLATFORM, AND (II) UNDER NO CIRCUMSTANCES WILL SUREHAND BE LIABLE TO EMPLOYER OR TO ANY THIRD PARTY FOR ANY ACT OR OMISSION OF A WORKER CANDIDATE, WHETHER BEFORE OR AFTER A WORKER CANDIDATE IS CONTACTED AND/OR RETAINED BY EMPLOYER. EMPLOYER IS SOLELY RESPONSIBLE FOR ANY DECISION TO INVESTIGATE, COMMUNICATE WITH, RECRUIT, HIRE OR DISMISS ANY WORKER CANDIDATE.
7. CONFIDENTIAL INFORMATION
7.1 Definition of Confidential Information. As used herein, “Confidential Information” means all confidential and proprietary information of a party (“Disclosing Party“) disclosed to the other party (“Receiving Party“), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information or the circumstances of disclosure, including the terms and conditions of these Terms (including pricing and other terms reflected in the Order Form hereunder), the Employer Data, the Services, the Surehand Materials, and each party’s respective business and marketing plans, technology and technical information, product designs, and business processes. The obligations in this Section shall not apply to any information that: (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party and without an obligation of confidentiality; (iii) was independently developed by the Receiving Party without the use of or reference to the Confidential Information of the Disclosing Party; or (iv) is lawfully received from a third party without breach of any obligation owed to the Disclosing Party and without an obligation of confidentiality.
7.2 Confidentiality. The Receiving Party shall not disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of these Terms, except with the Disclosing Party’s prior written permission. Either party may disclose Confidential Information to its personnel and its auditors who are subject to the same confidentiality obligations.
7.3 Protection. Receiving Party will use at least the same level of care to prevent unauthorized use of the Confidential Information as it uses for its own confidential and proprietary information of like kind, but in no event less than a reasonable standard of care.
7.4 Compelled Disclosure. If the Receiving Party is compelled by law to disclose Confidential Information of the Disclosing Party, it shall provide the Disclosing Party with prior notice of such compelled disclosure, to the extent legally permitted, and reasonable assistance, at Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure.
7.5 Remedies. If the Receiving Party discloses or uses (or threatens to disclose or use) any Confidential Information of the Disclosing Party in breach of the confidentiality protections hereunder, the Disclosing Party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts.
8. TERM AND TERMINATION
8.1 Agreement Term. This Agreement shall commence on the Effective Date and continue for the period specified in the Order Form (the “Term”), unless otherwise terminated in accordance with these Terms or the Order Form. In the case of a monthly subscription to the Services, the Term shall be one month; in the case of an annual subscription to the Services, the Term shall be one year. This Agreement shall automatically renew for successive periods of the agreed Term (the “Renewal Term”), unless either party provides written notice of non-renewal to the other party as follows: (i) in the case of a monthly subscription, either party cancels the subscription to the Services online before the monthly renewal date; and (ii) in the case of an annual subscription, either party provides the other party with written notice of non-renewal at least sixty (60) days prior to the end of the then-current Term or Renewal Term.
8.2 Termination for Material Breach. Either party may terminate these Terms (i) if the other party breaches any terms and conditions of these Terms and does not cure such breach within thirty (30) days of receiving notice of such breach (the “Cure Period”); or (ii) if the other party becomes the subject of a petition in bankruptcy or any proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. Notwithstanding the foregoing, these Terms and any Order Form shall terminate automatically in the event Employer has breached any license restriction set forth in Section 3.1 and, in Surehand’s determination, that breach cannot be adequately cured within the Cure Period.
8.3 Effect of Termination. The following provisions shall survive the termination of these Terms and all Order Forms: Section 2 (Intellectual Property Rights and Ownership), Section 3 (Restrictions, Responsibilities and Rights), Section 5 (Fees; Payment Terms), Section 6.5 (Disclaimer of Warranties), Section 7 (Confidential Information), Section 8.3 (Effect of Termination), Section 9 (Indemnity), Section 10 (Limitation of Liability), Section 11 (Export Control and U.S. Government Restricted Rights), and Section 12 (General Provisions).
9.1 Surehand will indemnify and hold Employer harmless from and against any claim against Employer by reason of Employer’s use of the Services as permitted hereunder brought by a third party alleging that the Services or Surehand Materials infringe or misappropriate a third party’s Intellectual Property Rights. Surehand shall, at its expense, defend such claim and pay damages finally awarded against Employer in connection therewith, including the reasonable fees and expenses of the attorneys engaged by Surehand for such defense. If the Services, or parts thereof, become, or in Surehand’s opinion may become, the subject of an infringement claim, Surehand may, at its option: (a) procure for Employer the right to continue using the Services as set forth herein; (b) replace or modify the Services to make it non-infringing; or (c) if options (a) or (b) are not commercially and reasonably practicable as determined by Surehand, terminate these Terms and the applicable Order Form and refund Employer, on a pro-rated basis, any pre-paid Fees for any Services not received. THIS SECTION 9.1 STATES SUREHAND’S ENTIRE LIABILITY AND EMPLOYER’S SOLE REMEDY WITH RESPECT TO ANY INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS BY THE SERVICES OR SUREHAND MATERIALS.
9.2 Surehand will have no liability or obligation under this Section with respect to any claim if such claim is caused in whole or in part by (i) compliance with data, instructions or specifications provided by Employer; (ii) modification of the Services by anyone other than Surehand or its authorized agents; or (iii) the combination, operation, or use of the Services with other hardware or software not provided by Surehand or its authorized agents where the Services would not by itself be infringing.
9.3 Employer will indemnify and hold Surehand harmless from and against any claim brought by a third party against Surehand arising from or related to (i) Employer’s violation of Section 3.1 of these Terms or (ii) any Employer Data.
9.4 The indemnification obligations in this Section shall be subject to the indemnified party: (i) promptly notifying the indemnifying party in writing upon receiving notice of any threat or claim of such action; (ii) giving the indemnifying party exclusive control and authority over the defense and/or settlement of such claim (provided any such settlement unconditionally releases the indemnified party of all liability); and (iii) providing reasonable assistance requested by the indemnifying party, at the indemnifying party’s expense.
10. LIMITATION OF LIABILITY
10.1 Waiver of Consequential Damages. IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES OF ANY KIND, INCLUDING BUT NOT LIMITED TO ANY LOST PROFITS AND LOST SAVINGS, HOWEVER CAUSED, WHETHER FOR BREACH OR REPUDIATION OF CONTRACT, TORT, BREACH OF WARRANTY, NEGLIGENCE, OR OTHERWISE, WHETHER OR NOT SUCH PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES.
10.2 Limitation of Monetary Damages. NOTWITHSTANDING ANY OTHER PROVISIONS OF THIS AGREEMENT OR ANY ORDER FORM, EACH PARTY’S TOTAL LIABILITY ARISING OUT OF THIS AGREEMENT AND ANY ORDER FORM SHALL BE LIMITED TO THE TOTAL AMOUNTS PAID OR PAYABLE TO SUREHAND UNDER THE APPLICABLE ORDER FORM DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE FIRST OCCURRENCE OF THE EVENT(S) GIVING RISE TO SUCH LIABILITY.
10.3 Exclusions to Limitations of Liability. The above limitations of liability will not apply to the following: (i) the parties’ indemnification obligations under Section 9; (ii) damages caused by a party’s gross negligence, fraud, or willful misconduct; or (iii) Employer’s violation of Section 3.1.
11. EXPORT COMPLIANCE AND U.S. GOVERNMENT RESTRICTED RIGHTS
11.1 Export Compliance. The Services and other software or components of the Services which Surehand may provide or make available to Employer may be subject to United States export control and economic sanctions laws and other foreign trade controls. Employer agrees to comply with applicable laws in connection with its performance hereunder, including without limitation, applicable U.S. and foreign export controls, economic sanctions, and other trade controls. Employer agrees to indemnify Surehand for any breach of this provision.
11.2 U.S. Government Restricted Rights. The Services and Documentation are “commercial items,” “commercial computer software” and “commercial computer software documentation,” pursuant to DFAR section 227.7202 and FAR section 12.212, as applicable. All the Services and Surehand Materials are and were developed solely at private expense. Any use, modification, reproduction, release, performance, display or disclosure of the Services, Surehand Materials and Documentation by the United States Government shall be governed solely by these Terms and shall be prohibited except to the extent expressly permitted by these Terms.
12. DISPUTE RESOLUTION
12.1 Governing Law. These Terms and any disputes arising out of or related hereto shall be governed by and construed in accordance with the laws of the State of California, without giving effect to its conflicts of laws rules, the United Nations Convention on the International Sale of Goods, or the Uniform Computer Information Transactions Act.
12.2 Arbitration. Any dispute, controversy, or claim arising out of, relating to, or having any connection with these Terms, including any question regarding the validity, interpretation, scope, performance, or enforceability of this dispute resolution provision, that are not resolved by mutual agreement or through mediation will be exclusively and finally settled by arbitration to be conducted by J.A.M.S./Endispute, Inc. before a single arbitrator mutually agreed upon by the parties, or if the parties cannot so mutually agree, a single arbitrator appointed by J.A.M.S./Endispute, Inc. The arbitration will be conducted in Santa Clara County, California, unless the parties agree on another location. The parties will be entitled to engage in reasonable discovery, including requests for production of relevant non-privileged documents. The arbitrator may order depositions and interrogatories upon a showing of need. It is the parties’ intent that the discovery proceedings be conducted in a cost-effective manner.
All decisions, rulings, and awards will be in accordance with applicable law, will be in writing, and will state the reasons upon which it is based. The arbitrator will have no power to modify or abridge these Terms. The award of the arbitrator will be final, and judgment on the award may be entered by any court having jurisdiction to do so.
12.3 Class Action Waiver. Any arbitration under these Terms will take place on an individual basis; class arbitrations and class/representative/collective actions are not permitted. THE PARTIES AGREE THAT A PARTY MAY BRING CLAIMS AGAINST THE OTHER ONLY IN EACH’S INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PUTATIVE CLASS, COLLECTIVE AND/ OR REPRESENTATIVE PROCEEDING, SUCH AS IN THE FORM OF A PRIVATE ATTORNEY GENERAL ACTION AGAINST THE OTHER. Further, unless both parties agree otherwise, the arbitrator may not consolidate more than one person’s claims and may not otherwise preside over any form of a representative or class proceeding.
13. GENERAL PROVISIONS
13.1 Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties.
13.2 Notices. All notices required to be sent hereunder shall be in writing, addressed to receiving party’s current business contact, if known, with a cc: to the Legal Department of the receiving party, and sent to the party’s address as specified in these Terms, or as updated by either party by written notice. Notices shall be effective upon receipt and shall be deemed to be received as follows: (i) if personally delivered by courier, when delivered; (ii) if mailed by first class mail, or the local equivalent, on the fifth business day after posting with the proper address; or (iii) if sent by email, upon confirmation of transmission.
13.3 Waiver and Cumulative Remedies. No failure or delay by either party in exercising any right under these Terms shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.
13.4 Severability. If any provision of these Terms is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of these Terms shall remain in full force and effect.
13.5 Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, either party may assign these Terms in their entirety (including any Order Forms), without the consent of the other party, to (i) an Affiliate; or (ii) in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets not involving a direct competitor of the other party. Any attempt by a party to assign its rights or obligations under these Terms in breach of this Section shall be void and of no effect. Subject to the foregoing, these Terms shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
13.6 Force Majeure. Neither party shall be liable for delay or non-performance of its obligations hereunder (or part thereof) if the cause of delay or non-performance is due to a Force Majeure Event. The party affected shall be relieved from its obligations (or part thereof) as long as the Force Majeure Event lasts and hinders the performance of said obligations (or part thereof). The party affected shall promptly notify the other party and make reasonable efforts to mitigate the effects of the Force Majeure Event.
13.7 Entire Agreement. This Agreement, including the Order Form, constitutes the entire agreement between the parties, and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. The parties are not relying and have not relied on any representations or warranties whatsoever regarding the subject matter of these Terms, express or implied, except for the representations and warranties set forth in these Terms. No modification, amendment, or waiver of any provision of these Terms shall be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted. No terms or conditions set forth on any purchase order, preprinted form or other document shall add to or vary the terms and conditions of these Terms, and all such terms or conditions shall be null and void.
Surehand Terms and Conditions (For Employers), version 1.1. Effective as of March 1, 2021.