Last Revised: May 13, 2021
Welcome! You are entering into this Agreement with YourMauka LLC. When You (individually or the entity that You represent) use Our Services, You are agreeing to the Terms of Service (the “Agreement”) below. By accessing the Services, You agree to be bound by this Agreement, and any additional terms referenced herein, including Our Privacy Notice and Data Processing Agreement which sets out the terms in which We process any Personal Data collected from You, or provided to Us. If You do not agree to this Agreement, the Privacy Notice, the Data Processing Agreement, and any other referenced agreements or documentation, You must not access the Services. In agreeing, You also represent that You have the authority to bind Yourself and/or the company You represent, and have disclosed all information to YourMauka as necessary to perform the Services. Capitalized terms are as defined throughout this Agreement.
This Agreement applies to all YourMauka services including: (a) www.YourMauka.com (the “YourMauka Site” and/or the “YourMauka Marketplace”);(b) the YourMauka Match Service (“YourMauka Match”); and (c) other YourMauka related sites, apps, communications and other services that state that they are offered under this Agreement (all of the prior services referred to in this Agreement as the “Service(s)”). This Agreement applies to all registered users of Our Services (“User(s),” or as used herein, “You,” “Your”, “Yourself”), including, but not limited to, Users who are seeking employment and/or contractor opportunities (“Candidates”) and companies interested in hiring or engaging Candidates (“Clients”).
In order to use Our Services, You must register for an account. In registering, You agree to provide accurate, current, and complete information about Yourself ("Registration Data") and update it as necessary. If YourMauka has reason to believe that Your Registration Data is inaccurate, outdated, or incomplete, YourMauka may suspend or terminate Your account. You agree You will not: (a) create an account using a false identity or information that is not your own; (b) have more than one account; or (c) create an account or use the Services if You have been previously removed from the Services. We reserve the right, in Our sole discretion, to accept or reject Your registration to use Our Services, as well as suspend or terminate Your account for any reason, or no reason at all. You are responsible for maintaining the confidentiality of Your password and account and will be fully responsible for any and all activities that occur under Your account. You agree to immediately notify Us of any unauthorized use of Your account or any other breach of account security.
You are responsible for Your use of the Services and for any use of the Services made using Your account, including by any third parties. When using Our Services, You agree that You will not: (a) copy or distribute any part of the Services, including by way of automated or non-automated "scraping"; (b) use any automated systems including "robots" and "spiders"; (c) interfere with or compromise Our systems’ integrity or decipher any server transmissions; (d) impose any unreasonably large load on Our infrastructure; (e) upload viruses or worms to the Service; (f) collect or retain any personally identifiable information contained in the Service beyond the permitted use hereunder; (g) access the Service by any means other than authorized herein including virtual private networks which are Service by any means other than authorized herein, including virtual private networks which are expressly forbidden; (h) stalk, harass, bully or harm others; (i) impersonate any person or entity; or (j) hack, spam, phish, or otherwise provide fraudulent, manipulative, or inflammatory content. Your continued access to Our Services are contingent on Your agreement to act in a professional manner. You agree, represent, and warrant that any personally identifiable information of third parties You provide or upload to YourMauka pursuant to Your use of Our Services, including the Assessments or YourMauka Match Services, will be provided with all complete and legal consents and permissions to provide YourMauka with such information. In the event of a Covered Offer, You will provide YourMauka with its key terms, including employment start date and compensation, as may be requested by YourMauka.
Clients may permit third-party agents to use the Service on their behalf (“Third-Party Agents”) but will remain fully responsible for their Third-Party Agents’ actions, and any breach of this Agreement by a Third-Party Agent shall be deemed to be a breach by the Client. The Service is to be accessed by Clients and its designated Users only and only for Clients’ internal business purposes, not for resale or unauthorized distribution to any third-party.
YourMauka may provide to You, or provide Your Content to, certain third-party services or third-party service providers (collectively, "Third-Party Service(s)") which may also provide to You links to sites, job postings, email and telephone correspondence and other offers outside of the YourMauka network. Such Third-Party Services are provided "AS IS" without indemnification, support, or warranty of any kind, and this Agreement does not apply to Your use of any such provided Third-Party Services. You are responsible for evaluating whether You want to access or use such Third-Party Services, and, in certain circumstances where required or applicable, may opt-out from such Third-Party Services available outside of the YourMauka network, or may choose to not utilize such Third-Party Services at any time. We reserve the right to suspend Third-Party Services at any time. You should review any applicable terms and/or privacy policies of a Third-Party Service before using it or sharing any information with it, because You may give the operator permission to use Your information outside of what You have agreed to herein. YourMauka is not responsible for, nor endorses any features, content, advertising, products or other materials on or available from such Third-Party Services.
As Users of Our Services, all information You post, transmit, or submit through Our Services (“Content”) is intended to be shared with other Users. By submitting any Content to Us, You hereby represent and warrant that You own all rights to the Content and/or, alternatively, that You have the right to give Us the license described below, including the correct and legal permissions and consents for any personally identifiable information You may provide to, or upload by way of, the YourMauka Service(s). You further represent and warrant that the Content does not infringe on the intellectual property rights, privacy rights, publicity rights, or other legal rights of any third-party. We are not under any obligation to review any Content posted by Our Users on Our Services, although We reserve the right to do so with or without notice, to prevent or rectify any alleged violations of this Agreement or any applicable law. We reserve all defenses made available to Us by the Communications Decency Act and any other applicable laws, rules, or regulations. We may refuse to accept or display the Content, and may remove or delete all or any portion of the Content at any time. You understand that YourMauka is not responsible for the accuracy, usefulness, safety, or intellectual property rights of or relating to such Content, and that such Content is not the responsibility of YourMauka. You further understand and acknowledge that You may be exposed to Content that is inaccurate, offensive, indecent, or objectionable, and You agree to waive, and hereby do waive, any legal or equitable rights or remedies You have or may have against the YourMauka Parties with respect thereto. Any and all Content You upload is not considered confidential by YourMauka, will be treated as public information, and You agree and understand is intended to be shared with other Users of Our Services as well as third parties, all in YourMauka’s sole discretion, and YourMauka has no control or liability over what other Users do with Your Content. You understand and agree that YourMauka will not be liable for any treatment of Your Content as confidential and waive all rights with respect to any such claims of confidentiality. If You do not agree that Your Content will be considered public and will not be considered confidential, You must not use the Service.
Users will retain all rights to the Content they upload or create on or through the Services. You hereby grant to YourMauka and its owners, affiliates, representatives, licensees, licensors and assigns (the "YourMauka Parties") a non-exclusive, fully paid, royalty-free, world-wide, universal, transferable license to display, modify, publicly perform, distribute, store, broadcast, transmit and reproduce Your Content, logo(s), service marks, trademarks and trade names in conjunction with the Services, including in developing, enhancing, and supporting the Services. You waive and agree never to assert any and all moral rights in and to all of the materials licensed in this Section. We reserve the right to display advertisements in connection with the Content.
YourMauka is not liable for: (a) any Content posted on Our Services; (b) contracts or other obligations that may arise between Users; (c) any damages that result through Your use of Our Services in violation of this Agreement; (d) any negative or critical comments that may be posted by other Users through the Services; (e) any of the Third-Party Service(s) You may be provided pursuant to Your use of the Services; or (f) any third-party personally identifiable information You upload or provide to YourMauka pursuant to the Services.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, YOU UNDERSTAND AND AGREE THAT IN NO EVENT SHALL YOURMAUKA BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE SERVICE, WHETHER OR NOT YOURMAUKA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY DAMAGES FOR PERSONAL OR BODILY INJURY OR EMOTIONAL DISTRESS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, OR FROM ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH OTHER USERS OF THE SERVICE, ON ANY THEORY OF LIABILITY (INCLUDING CONTRACT, TORT INCLUDING NEGLIGENCE, OR HOWSOEVER OTHERWISE) ARISING OUT OF, IN CONNECTION WITH, OR RESULTING FROM: (i) THE USE OR INABILITY TO USE THE SERVICES; (ii) STATEMENTS OR CONDUCT OF ANY THIRDPARTY ON THE SERVICES; OR (iii) ANY OTHER MATTER RELATED TO THE SERVICES
TO THE MAXIMUM EXTENT PERMITTED BY LAW, UNDER NO CIRCUMSTANCES WILL YOURMAUKA BE LIABLE TO A USER, REGARDLESS OF WHETHER THE CLAIM IS BASED IN CONTRACT, TORT INCLUDING NEGLIGENCE, STRICT LIABILITY, OR OTHERWISE, FOR MORE THAN THE GREATER OF: (A) THE TOTAL AMOUNT PAYABLE BY THE USER TO YOURMAUKA FOR THE TWELVE (12) MONTH PERIOD PRECEDING THE DATE THE CAUSE OF ACTION FIRST AROSE; OR (B) ONE HUNDRED DOLLARS ($100).
THE LIMITATIONS OF THIS SECTION WILL NOT APPLY TO ANY LIABILITY THAT CANNOT BE EXCLUDED OR LIMITED BY LAW.
Our licensors and service providers will have no liability of any kind under this Agreement. You may not bring any claim under this Agreement more than twelve (12) months after the cause of action arises.
The entirety of the Services, along with any logos, features, trademarks, designs, or the like contained therein ("Marks"), are owned by or licensed to YourMauka, subject to copyright and other intellectual property rights under United States and foreign laws and international conventions. YourMauka reserves all rights in and to the Services. You agree You will not use, copy, or distribute any content contained within the Services beyond the authorized use hereunder.
SERVICES ARE PROVIDED TO YOU AS IS. YOURMAUKA PARTIES EXPRESSLY DISCLAIM ALL IMPLIED WARRANTIES AND REPRESENTATIONS SUCH AS WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY OF DATA, AND NONINFRINGEMENT.
YOURMAUKA PARTIES MAKE NO GUARANTEE THAT: (A) THE SERVICES WILL MEET YOUR REQUIREMENTS; (B) YOUR USE OF THE SERVICES WILL BE UNINTERRUPTED, SECURE, OR ERROR-FREE; (C) THE SERVICES WILL BE ACCURATE OR RELIABLE; OR (D) ANY ERRORS IN THE SERVICES WILL BE CORRECTED.
YOU AGREE THAT YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF OUR SERVICES. YOU UNDERSTAND AND ACKNOWLEDGE THAT ANY COMMUNICATION SENT THROUGH THE SERVICE MAY BE VIEWED BY THIRD PARTIES AND, AS SUCH, ARE NOT CONSIDERED CONFIDENTIAL AND YOURMAUKA HAS NO RESPONSIBILITY, CONTROL OVER, OR LIABILITY FOR THE CONTENT OF THOSE MESSAGES, ANY ATTACHMENTS TO THOSE MESSAGES, OR THE CHOSEN RECIPIENTS BY THE SENDER, WHETHER SENT THROUGH THE SERVICE, OR VIA YOUR PREFERRED E-MAIL SERVICE.
IF YOU ARE A RESIDENT OF A JURISDICTION THAT REQUIRES A SPECIFIC STATEMENT REGARDING RELEASE, THEN THE FOLLOWING APPLIES. FOR EXAMPLE, CALIFORNIA RESIDENTS MUST, AS A CONDITION OF THIS AGREEMENT, WAIVE THE APPLICABILITY OF CALIFORNIA CIVIL CODE SECTION 1542, WHICH STATES, "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE AND THAT, IF KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY." YOU HEREBY WAIVE THIS SECTION OF THE CALIFORNIA CIVIL CODE. YOU HEREBY WAIVE ANY SIMILAR PROVISION IN LAW, REGULATION, OR CODE THAT HAS THE SAME INTENT OR EFFECT AS THE AFOREMENTIONED PROVISION.
You agree to defend and indemnify the YourMauka Parties from and against any third-party claim, including reasonable attorney’s fees, court costs, settlements, and disbursements, from or relating to: (a) Your Content; (b) Your use of and access to the Services in violation of this Agreement; (c) Your violation of this Agreement; (d) Your violation of any law, rule, or regulation, or the rights of any third-party, including Your upload or provision of personally identifiable information through the Service; (e) Your use of any Third-Party Services; and (f) claims alleging that the YourMauka Parties and the Client are joint employers.
13.1. DMCA Notices
We take copyright infringement very seriously, and We have registered a Registered Copyright Agent with the United States Copyright Office, which limits Our liability under the Digital Millennium Copyright Act. It is Our policy to terminate the account of any User who repeatedly infringes copyright upon prompt notification to YourMauka by the copyright owner or the copyright owner’s legal agent. Without limiting the foregoing, if You believe that Your work has been copied and posted through Our Service in a way that constitutes copyright infringement, please provide Our Copyright Agent with the following information: (a) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; (b) a description of the copyrighted work that You claim has been infringed; (c) a description of the material that You claim is infringing and a description of the location on Our Services of the material that You claim is infringing; (d) Your address, telephone number and e-mail address; (e) a written statement by You that You have a good faith belief that the disputed use is not authorized by the copyright owner, its agent or the law; and (f) a statement by You, made under penalty of perjury, that the above information in Your notice is accurate and that You are the copyright owner or authorized to act on the copyright owner’s behalf. Contact information for the Company’s Copyright Agent for notice of claims of copyright infringement is as follows: YourMauka, LLC. (Attn: Copyright Agent), 1942 Broadway St., STE 314C Boulder , CO 80302
13.2. Compliance and Choice Of Law
Each party will comply with all laws applicable to this Agreement. This Agreement shall be governed by the laws of the State of Florida without giving effect to its principles regarding conflicts of law. All disputes shall be resolved exclusively in state or federal court in Duval County, Florida. You acknowledge that the Services are of United States origin and agree to comply with all export laws and regulations of the United States.
13.3. Dispute Resolution
PLEASE READ THIS SECTION CAREFULLY
Any dispute shall be settled by binding and confidential arbitration. Arbitration shall be subject to the Federal Arbitration Act. The arbitration will be governed by the AAA’s Commercial Arbitration Rules and, if applicable, the Supplementary Procedures for Consumer Related Disputes. Each party shall bear its own costs (including attorney fees). Notwithstanding the foregoing, the Company may seek injunctive or other equitable relief to protect its intellectual property rights in any court of competent jurisdiction. YOU ARE HEREBY GIVING UP YOUR RIGHT TO GO TO COURT. Arbitrator decisions are as enforceable as any court order and are subject to VERY LIMITED REVIEW BY A COURT. Any claims brought by You must be bought in an individual capacity, not as a class member in any representative proceeding. An arbitrator may not consolidate individuals’ claims. The arbitrator will not have authority to award damages in excess of the amount allowed by this Agreement The arbitrator have authority to award damages in excess of the amount allowed by this Agreement. The arbitrator also shall be authorized to grant any equitable remedy or relief it deems just and equitable and within the scope of the Agreement. The arbitration award shall be final and binding upon the parties without appeal or review except as permitted by Florida law or United States federal law.
13.4. Force Majeure
We will not be liable for any failure or delay in performance to the extent caused by any circumstances beyond Our reasonable control.
13.5. Severability; Headings
The unenforceability of any provision of this Agreement will not affect the enforceability of any other provision. If any provision of this Agreement is deemed to conflict with another, YourMauka will have the sole right to elect which provision remains in force. Headings are provided for convenience only.
We reserve all rights under applicable law. Our non-enforcement of any provision of this Agreement or under applicable law will not be construed as Our waiver of any enforcement rights under the same or different circumstances at any time in the future.
We may suspend or terminate the Services or Your account at Our discretion without explanation and notice, though We will strive to provide a timely explanation. If you are a Client, in the event of Your breach of this Agreement, We will notify You of such breach, and in the event the breach can be cured, provide You thirty (30) days to cure such breach. If such breach remains uncured, We will terminate this Agreement with You as set forth herein. If You are a Candidate, You may terminate this Agreement by closing Your account for the Service. YourMauka will not have any liability whatsoever to You for any suspension or termination. All provisions of this Agreement which by their nature should survive termination shall survive termination, including ownership, success fees, warranty disclaimers, indemnity and limitations of liability.
All fees for YourMauka Services are due and payable net fifteen (15) days from the date indicated on each invoice as sent to Client by YourMauka unless otherwise indicated in writing by YourMauka or in Your Agreement. Should any Success Fees, Subscription Service Term fees, or other fees incurred by Client pursuant to Client’s use of the Services remain unpaid more than ten (10) days after the fifteen (15) day payment requirement set forth herein, YourMauka will, as a genuine assessment of its damages, assess a late payment fee on Client’s invoice equal to five percent (5%) of the amount overdue for each month OR FRACTION THEREOF, OR SUCH LESSER AMOUNT AS MAY BE THE MAXIMUM AMOUNT PERMITTED BY LAW, outstanding until paid, beginning with the due date of the late payment. If You are on a monthly payment plan for YourMauka Marketplace any payment default of sixty (60) or more days are on a monthly payment plan for YourMauka Marketplace, any payment default of sixty (60) or more days will result in a charge of eighteen percent (18%) of Candidate's base salary for any Covered Offers accepted prior to or during the delinquency period.
You agree and understand that You are liable for the assessment and payment of any and all applicable taxes with respect to Your payment for YourMauka Services. YourMauka may change its fees and billing methods at any time (including to begin charging for services that it is currently providing free of charge) by providing notice to You as set forth in the Notice section herein.
13.9. Professional Services
Clients may have the option to purchase certain professional services including sourcing and recruiting assistance from YourMauka to source Candidates through the Service on Clients’ behalf (the “Professional Service(s)”). Client acknowledges and understands that any decisions by Client pursuant to such Professional Services including any and all final determinations as to the Candidates sourced, any hiring or employment decisions, or otherwise, are the sole and exclusive determination of the Client, and YourMauka will not be responsible for any decisions made by Client. YourMauka makes no representations, warranties, or guarantees with respect to the Professional Services. The term of these Professional Services will be as purchased or set forth on an applicable Subscription Agreement or Order Form and may not be terminated early by Client. YourMauka disclaims all liability for actions taken by Client pursuant to the Professional Services offered.
Except as set forth below, neither party may assign or transfer this Agreement including any rights or obligations hereunder without the prior written consent of the other party. Any such attempted assignment will be deemed null and void. However, we may assign this Agreement including all rights therein, without Your consent, to an entity that acquires all or substantially all of Our business and/or assets. This Agreement shall inure to the benefit of and be binding upon each party and its respective successors and permitted assigns.
You agree that We will provide notices and messages to You either within the Services or sent to the contact information that You provided Us. You are responsible for providing YourMauka with Your most current e-mail address. If You have provided an invalid email, or such address is not capable of receiving YourMauka notices, YourMauka’s dispatch of such email will nonetheless constitute effective notice. You may give notice to YourMauka at the following address: YourMauka, 4363 S Quebec St, Denver-80237,CO. Notices shall be deemed given when received by YourMauka delivered by overnight delivery service or first-class postage prepaid mail.
13.12. Entire Agreement
This Agreement contains the entire agreement of the parties and supersedes all other agreements and understandings with respect to the matters contained herein.
13.13. Electronic Communications
Any communication between You and YourMauka under or in connection with the Services may be made by electronic mail or other electronic means. You consent to receive communications from YourMauka electronically, and agree that all terms, conditions, or otherwise, provided to Your electronically satisfy any legal requirement that would be satisfied if they were in writing.
13.14. California Users And Residents
Pursuant to California Civil Code Section 1789.3, questions about pricing, complaints, or inquiries must be addressed to Our agent for notice and sent via certified mail to: YourMauka LLC, 4363 S Quebec st, Denver-80237. California Users are also entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 North Market Blvd., Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210.
THIS AGREEMENT IS SUBJECT TO CHANGE BY YOURMAUKA IN ITS SOLE DISCRETION AT ANY TIME. When changes are made, We will make a new copy of the Agreement available by posting on the YourMauka Site. We will also update the "Last Revised" date at the top of the Agreement. If We make any material changes, and You have registered to use the Services, We may also notify You via email or through the Services. Changes will be effective immediately. YourMauka may require You to provide consent to the updated Agreement. If You do not agree to any change(s) You agree to stop using the Services. Your continued use of the Services constitutes Your acceptance of such change(s). YOU AGREE TO REGULARLY CHECK THE SERVICES TO VIEW THE THEN-CURRENT TERMS OF YOUR AGREEMENT WITH US.
13.16. Beta or Evaluation Usage
If YourMauka indicates any features of functionality as a beta or evaluation (referred to as the "Beta Service"), then You may use the Beta Service for a period of time as indicated by YourMauka, pursuant to YourMauka’s then current fees for the Beta Service, if applicable. NOTWITHSTANDING ANY OTHER PROVISION OF THE TERMS OF SERVICE OR ANY AGREEMENT YOU MAY HAVE DIRECTLY WITH YOURMAUKA, YOUR USE OF THE BETA SERVICE WILL BE PURSUANT TO YOURMAUKA’S THEN CURRENT TERMS OF SERVICE AND PRIVACY NOTICE. YOURMAUKA PROVIDES THESE BETA SERVICE(S) "AS IS" WITHOUT ANY REPRESENTATIONS, WARRANTIES, REFUNDS, OR INDEMNIFICATION OF ANY
KIND. YourMauka may discontinue, modify, or begin to charge for use of a Beta service at any time, and at their sole discretion.
The YourMauka Marketplace is owned and operated by YourMauka and provides a platform to both Clients and Candidates to connect regarding relevant potential employment or contract opportunities. YourMauka serves only as the platform provider, and any communication, hiring, or other decisions are solely those of the Client and Candidate, not YourMauka.
14.2. Client Specific Terms
Once a Client registered for the Service, the Client will be able to browse the Candidates on the Service, communicate with these Candidates, and submit non-binding interview requests (“Interview Request(s)”). YOU UNDERSTAND THAT YOURMAUKA DOES NOT INQUIRE INTO THE BACKGROUNDS OF ITS USERS OR ATTEMPT TO VERIFY THE STATEMENTS OF ITS USERS. YOU AGREE TO CONDUCT ANY BACKGROUND CHECKS, REFERENCE CHECKS, OR OTHER DUE DILIGENCE THAT YOU MAY REQUIRE BEFORE ENGAGING ANY CANDIDATE.
Once a Client has discovered a Candidate on the Service, the Client agrees to submit all Interview Requests exclusively through the Service. The Client and the Candidate may use other means of communication as agreed upon between Client and Candidate after such Interview Request has been submitted. The Client agrees not to circumvent the Service by independently attempting to communicate and hire the Candidate through alternative means after discovering the Candidate on the Service.
14.3. Limited Exclusivity for Candidates
Candidates discovered on the YourMauka Service are exclusive Candidates of YourMauka for a period of ninety (90) days from view date by Client on the YourMauka Service. Such exclusivity, for clarity, means that for any Candidate YourMauka by Client from the YourMauka Marketplace Client will be charged YourMauka’s then-current Success Fee for any accepted Covered Offers (defined below) (unless otherwise covered by an active Subscription Agreement) if such Covered Offer is provided to Candidate within the above noted ninety (90) day period. If a Client circumvents the Service after discovering a Candidate and subsequently hires that Candidate by means other than the Service during or within ninety (90) days after expiration or termination of this Agreement, the Client will pay YourMauka a Fee equal to twenty-five percent (25%) of the 1st year base salary or prorated contractor compensation of the Candidate and YourMauka may, in its sole discretion, terminate the Client’s account.
14.4. Subscription Agreements
Clients engaged in a Subscription Agreement with YourMauka (individually a "Subscription Client" and collectively "Subscription Clients") will be charged a Subscription fee as agreed upon between the Client and YourMauka for the period as agreed upon between the parties (the "Subscription Period"). During the Subscription Period, the Subscription Client will be able to browse, request, contact (through the Service) and extend Covered Offers to Candidates listed on the Service. All Covered Offers must be made for positions located in the territories set forth in Your Subscription Agreement All other made for positions located in the territories set forth in Your Subscription Agreement. All other territories are excluded. Contractor Engagements will count towards the number of Full-Time Hires set forth on the Order Form.
If Your Subscription Agreement contains payment obligations for Covered Offers Client agrees to pay the Committed Success Fee for such Covered Offers as indicated in such Subscription Agreement. In the event of a dispute regarding Committed Success Fees, if Client can show that within the three (3) months prior to discovery on the YourMauka Marketplace, Client had active back and forth communications with a Candidate regarding the relevant employment opportunity, YourMauka may, in its sole discretion, determine if such Committed Success Fee remains due and owed. In the event You have paid a Success Fee and a Candidate is terminated or discontinues their employment or contractor engagement with You within ninety (90) days of start date, YourMauka will provide You a credit for additional YourMauka Marketplace services corresponding to the Committed Success Fees paid for such Candidate. Any applied credit will expire twelve (12) months from date issued. YOUR OBLIGATION TO PAY ANY SUCCESS FEES SHALL SURVIVE ANY TERMINATION OF THIS AGREEMENT.
14.5. Authorized Users and Devices
Client will be provided a number of “Premium” and “Standard” seats (each, an “Authorized User”). “Premium” seats will be those Users able to interact with Candidate on the Service, including sending Interview Requests. “Standard” seats will be those Users able to view Candidates on the Service but will not be able to interact with, or send Interview Requests, to Candidates.
Client will designate one Client User for each seat it purchases and will not permit a Client User to share a Client User’s access to the Service with any other individual. If a Client User ceases employment, takes leave or vacation, or transfers work function, Client may transfer the Client User's seat to a different Client User. YourMauka reserves the right to limit the number of transfers of each seat. If YourMauka discovers that Client Users are sharing seat access to the Service with other Client employees or contractors who have not been provisioned access (each, an “Unauthorized User”), this will be deemed a material breach of this Agreement. YourMauka will have the right to assign any unused seats purchased by Client to the Unauthorized Users to remedy Client’s breach. If there are no unused purchased seats, YourMauka reserves the right to assess a fee equal to 1.5 times the prorated cost of the Additional Premium Seat.
Each Authorized User may be logged into Our Service from up to three (3) different browsers or computers (the “Devices”) at the same time. Should Client exceed the Device limit, Client will be notified through the Service and prompted to log out of at least one (1) other active session before proceeding.
Client may add additional seats at any time during an applicable Service Term. For clarity, additional seats will be added only for the duration of the applicable Service Term and the associated fee set forth on the applicable Order Form will be prorated accordingly. Upon Client’s notice of intent to add additional seats and immediate payment of invoice, YourMauka will add the number of seats requested.
14.6. Candidate Specific Terms
A Candidate is required to promptly notify YourMauka if the Candidate: (a) accepts a Client’s offer of employment whether for an indefinite or fixed term; (b) accepts an offer to engage as a contractor employment, whether for an indefinite or fixed term; (b) accepts an offer to engage as a contractor, whether for an indefinite or fixed term (each, a "Contractor Engagement"); or (c) accepts a Client’s employment offer during or within twelve (12) months after termination of a Contractor Engagement with such Client (each, a "Covered Offer"). You agree that: (i) if You receive a Covered Offer, You shall promptly notify YourMauka of Your Start Date and the key terms of such Covered Offer (and notify YourMauka promptly should that Start Date or offer terms change at any time); and (ii) You will promptly notify YourMauka after termination of Your employment as a Candidate, intern, coop Candidate, consultant or contractor in the event that: (A) a Client terminates Your engagement based on unsatisfactory performance within ninety (90) days of the date on which Your Employment commenced; or (B) You voluntarily terminate Your engagement within ninety (90) days of the date on which Your engagement commenced.
The Candidate agrees not to attempt to circumvent the Service by independently attempting to communicate with a
Client that contacted or communicated with him or her on the Service. 14.7. Contractor Engagements
Client and Candidate are responsible for any contracts or agreements they may form with respect to such Contractor Engagements. YourMauka does not control, manage, or provide any guidance with respect to the determination of independent contractor or employee status, subsequent agreements between Client and Candidate, or services performed by or payments made to the Client pursuant to a Contractor Engagement. Candidate and Client expressly agree that no joint venture, partnership, employment, or agency agreement exists between them and YourMauka as a result of this Agreement or any use of the YourMauka Service, and that YourMauka is not a joint employer for purposes of this Agreement.
14.7.2. Classification and Relationship
Client and Candidate assume all liability for proper classification of Candidates as independent contractors or employees based on applicable legal guidelines. Candidate and Client acknowledge that YourMauka does not, in any way, supervise, direct, or control the manner, means, or conditions of any work or services performed. Client and Candidate will be solely responsible for all tax returns and payments required to be filed with or made to any federal, state, or local tax authority, in any nation, with respect to a contractor engagement.
In addition to the indemnification obligations set forth herein, Client and Candidate agree to indemnify, hold harmless and defend YourMauka from any and all claims, demands, causes of action, losses, damages, liabilities, costs, and expenses, including attorneys’ fees, arising out of or related to their engagement, including but not limited to any breach of any of Contractor’s representations and warranties, from the death or injury of any person or persons, including employees of Client or Contractor, or from damage or destruction of any work or properties, attributable to or resulting from Contractor Engagement with Client, claims misclassification of a Client as an independent contractor, any liabilities arising from a determination by a court, arbitrator, government agency or other body that Candidate was misclassified, any claim that YourMauka was an employer or joint employer of Candidate, as well as breach of agreement, action, inaction, omission or any claims under any employment-related laws, such as those relating to termination of employment, employment discrimination harassment or retaliation as those relating to termination of employment, employment discrimination, harassment or retaliation, as well as any claims for overtime pay, sick leave, holiday or vacation pay, minimum wages, payroll taxes, social security or unemployment taxes, or disability insurance, retirement benefits, worker's compensation benefits, unemployment benefits, or any other employee benefits required by law.
The Assessment Service is owned and operated by YourMauka and provides a collection of programming challenges and courses that are designed to prepare or assess a Candidate for a job interview and a platform for Clients to create custom challenges through the Assessment Service.
15.2. Authorized Users
Client will designate one (1) Client User for each seat it purchases and will not permit a Client User to share a Client User’s access to the Service with any other individual. If a Client User ceases employment, takes leave or vacation, or transfers work function, Client may transfer the Client User's seat to a different Client User. YourMauka reserves the right to limit the number of transfers of each seat. If YourMauka discovers that Client Users are sharing seat access to the Service with other Client employees or contractors who have not been provisioned access (each, an “Unauthorized User”), this will be deemed a material breach of this Agreement. YourMauka will have the right to assign any unused seats purchased by Client to the Unauthorized Users to remedy Client’s breach. If there are no unused purchased seats, YourMauka reserves the right to assess a fee equal to 1.5 times the prorated cost of the additional seat.
Client may add additional seats at any time during the applicable Service Term. For clarity, additional seats will be added only for the duration of the applicable Service Term and the associated fee set forth on an applicable Order Form will be prorated accordingly. Upon Client’s notice of intent to add additional seats and immediate payment of invoice, YourMauka will add the number of seats requested.
15.3. Use, Representations, and Warranties
Client represents and warrants that: (a) Client’s use of the Assessments service will at all times be compliant and allowable by all applicable law, rule, and regulation, including the provision of third-party information (including personally identifiable information) by Client to YourMauka; (b) Client has all necessary permissions and consents from potential candidates in its provision of information to YourMauka for use with the Assessments Service; and (c) Client will at all times be liable for the continued oversight of such information provided to YourMauka, including the deletion of any data as may be necessary or legally required. Client understands that YourMauka is not responsible for any hiring decisions, or Third Party Services utilized (including any browsers or applicant tracking services) in connection or Third-Party Services utilized (including any browsers, or applicant tracking services), in connection with the Assessments Service.
The YourMauka Match Service is owned and operated by YourMauka and provides a utility for Clients to connect certain Third-Party Services to the Match utility and upload certain information in order to process potential candidates for employment opportunities outside of the YourMauka Marketplace.
16.2. Use, Representations, and Warranties
Client represents and warrants that: (a) Client’s use of the YourMauka Match service will at all times be compliant and allowable by all applicable law, rule, and regulation, including the provision of third-party information (including personally identifiable information) by Client to YourMauka; (b) Client has all necessary permissions and consents from potential candidates in its provision of information to YourMauka for use with YourMauka Match; and (c) Client will at all times be liable for the continued oversight of such information provided to YourMauka, including the deletion of any data as may be necessary or legally required. Client understands that YourMauka is not responsible for any hiring decisions, or Third-Party Services utilized (including any browsers, or applicant tracking services), in connection with the YourMauka Match service.
17.1. Clients And Candidates In The United Kingdom
17.1.1. The Following Sub-Section 4.1 Is Added To Section 4 "Your Responsibilities":
4.1 Conduct of Employment Agencies and Employment Businesses Regulations 2003. YourMauka, the Client, and the Candidate, agree that for the purposes of the Conduct of Employment Agencies and
Employment Businesses Regulations 2003 (the "Conduct Regulations"), YourMauka shall be an 'employment agency' and the Client shall be a 'hirer', and the Candidate shall be a ‘work-seeker’ as defined in the Conduct Regulations and Employment Agencies Act 1973.
By accepting the terms set out in this Agreement the Candidate agrees to provide YourMauka with such By accepting the terms set out in this Agreement, the Candidate agrees to provide YourMauka with such information as YourMauka may reasonably request, including (without limitation) as to the identity of the Candidate and information in relation to the Candidate’s experience, training, qualifications and authorizations as are necessary to undertake the work. The Candidate accepts that YourMauka may not be able to introduce the Candidate to a Client if any of the information requested is required and has not been provided.
By accepting the terms set out in this Agreement, the Client agrees to provide all the information needed by YourMauka to enable YourMauka to comply with its obligations under the Conduct Regulations. The Client shall notify YourMauka as soon as reasonably practicable if any of this information changes. The Client accepts that YourMauka may not be able to introduce a Candidate if any of the information referred to above has not been provided.
The Client shall indemnify and keep indemnified the YourMauka Parties and their respective officers, directors, employees and agents from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to reasonable legal fees) arising from the Client's breach of any of its obligations under this Section, including as a result of the Client's failing to provide the information required or providing information which is inaccurate or incomplete.
17.1.2. Replace Section 13.1 “DMCA Notices” With The Following:
13.1 Trademark Infringement. We take copyright and trademark infringement very seriously. Without liability to any User and in accordance with paragraph 19 of the Electronic Commerce (EC Directive) Regulations 2002 (SI2002/2013) and Article 14 of the E-Commerce Directive (2001/31/EC) We reserve the right to, at any time, with or without notice and in Our sole discretion, terminate the account of any User and/or remove any content posted by any User that infringes intellectual property right(s) upon prompt notification to YourMauka by the intellectual property right(s) owner or their legal representative.
Without limiting the foregoing, if You believe that any material within Services infringes Your copyright and/or trade mark rights, please provide the following information to YourMauka,4363 S Quebec St, Denver-80237,CO: (a) a description of the copyright work and/or trade mark that You claim has been infringed; (b) a description of the location within Services of the material that You claim is infringing Your right(s); and (c) a description of the infringement.
17.1.3. Replace Section 13.2 “Compliance and Choice of Law” With The Following:
13.2 Applicable Law and Jurisdiction. This Agreement shall be governed by the laws of England and Wales. Save as otherwise set out in the Section entitled Dispute Resolution, the English courts shall have exclusive jurisdiction over any claim arising under or in connection with this Agreement.
17.1.4. Replace the Monetary Threshold for Dispute Resolution Section 13.3 “Dispute Resolution” For
All Disputes Based In The United Kingdom With Three Thousand British Pounds (£3,000.00)
17.2. Clients and Candidates in Canada
17.2.1. Replace Section 13.2 “Compliance and Choice of Law” With The Following:
13.2 Governing Law. This Agreement shall be governed by the laws of Toronto, Canada. Save as otherwise set out in the Section entitled Dispute Resolution, the courts sitting in Toronto, Canada shall have exclusive jurisdiction over any claim arising under or in connection with this Agreement.
17.2.2. Add The Following Paragraph To The End Of That Section 13.3 “Dispute Resolution”:
To the extent permitted by the applicable law, any claim or dispute (excluding claims for injunctive or other equitable relief as set forth below) in connection with the Agreement where the total amount of the award sought is less than Five Thousand Canadian Dollars (C$5,000.00) may be resolved in a cost-effective manner through binding nonappearance-based arbitration, at the option of the party seeking relief. Such arbitration shall be initiated through an established alternative dispute resolution provider (“ADR Provider”) that offers arbitration as set forth in this section and under the rules of such ADR Provider, except to the extent such rules are in conflict with the Agreement. The party demanding arbitration will propose an ADR Provider and the other party shall not unreasonably withhold consent to use such ADR Provider.
17.3. Clients and Candidates in France
17.3.1. Replace Section 13.1 “DMCA Notices” With The Following:
13.1 Trademark Infringement. We take copyright and trademark infringement very seriously. Without liability to any User and in accordance with Article 14 of the E-Commerce Directive (2001/31/EC) as implemented in France by the Law for confidence in the digital economy We reserve the right to, at any time, with or without notice and in Our sole discretion, terminate the account of any User and/or remove any content posted by any User that infringes intellectual property right(s) upon prompt notification to YourMauka by the intellectual property right(s) owner or their legal representative. Without limiting the foregoing, if You believe that Your work has been copied and posted within Services in a way that constitutes copyright infringement, please provide Our Copyright Agent with the following information: (a) the date of Your notification; (b) Your names, job, address, citizenship, date and place of birth if You are a natural person or Your legal form, name and registered address and legal body acting on Your behalf if You are a legal person; (c) the names and address of the author of the litigious material or its name and registered address if it is a legal person; (d) a description of the infringement and a description of the location within Services of the material that You claim is infringing Your right(s); (e) a description of the legal grounds based upon which the litigious material must be withdrawn; and (f) a copy of the notice addressed to the author of the litigious material or its publisher requiring the cease and desist of the litigious material or any document which would demonstrate that the author or the publisher could not be reached.
17.3.2. Replace Section 13.2 “Compliance and Choice of Law” With The Following:
13.2 Governing Law. This Agreement shall be governed by the laws of France.
17.3.3. Replace Section 13.3 “Dispute Resolution” With The Following:
13.3 Dispute Resolution. If You are a Candidate and are unhappy with the Service which You have received from Us, please contact YourMauka at help@YourMauka.com. If We do not succeed to resolve the clam or dispute amicably, any of the party can pursue any matter before the competent courts.
If You are a Client: If We do not succeed to resolve the clam or dispute amicably, any claim or dispute (excluding claims for injunctive or other equitable relief as set forth below) in connection with the Agreement where the total amount of the award sought is less than Three Thousand Euros (EUR. 3,000) may be resolved in a cost-effective manner through binding, confidential non-appearance based arbitration. Such arbitration shall be initiated under the rules of the Association Française d’Arbitrage (AFA), except to the extent such rules are in conflict with the Agreement. The arbitration seat shall be Paris, held in English, and subject to French law, with the award rendered binding on both parties. The judgement may be entered in any court having jurisdiction over the parties. The prevailing party as determined by the arbitrator will be entitled to reimbursement for reasonable attorney’s fees, expenses and costs of investigation, litigation, and arbitration from the other party. This section shall not limit either party to seek an injunction or other equitable relief as applicable. For more information on AFA, its Rules and Procedures, and how to file an arbitration claim, You may call AFA at +33 1 53 77 24 31or visit the AFA website at http://www.afa-arbitrage.com
17.3.4. Replace Section 13.4 “Force Majeure” With The Following:
13.4 Force Majeure. In case of a Force Majeure event as defined by Article 1218 of the French Civil Code resulting in a temporary impediment in the performance of one party’s obligations, parties’ respective obligations will be suspended without liability for the parties. Either party may terminate the Agreement as of rights and with no liability by sending a notice to the other party by registered letter with acknowledgment of receipt, if: (a) the Force Majeure event has continued for a minimum period of one (1) month; and/or (b) when the Force Majeure event occurred, it resulted in a permanent impediment in the performance of one (1) party’s obligations. The termination will be effective at the date of receipt of such registered letter.
17.3.5. Replace Section 13.10 “Assignment” With The Following:
13.10 Assignment. We may assign Our rights and/or obligations under this Agreement to any other entity that succeeds to all or substantial part of Our business or assets to which this Agreement relates. Clients and/or Candidates already consent to such assignment which shall, as of principle, take effect upon YourMauka notifying the assignment to the Client and/or Candidate. Upon the effective date of the assignment of this Agreement, in the conditions mentioned above: (a) the YourMauka assignor entity shall be relieved of all rights, obligations and/or liabilities vis-àvis the Client and/or the Candidate under the Agreement; and (b) the assignee entity shall replace the YourMauka assignor entity for the performance of the Agreement entered into the Client and/or the Candidate.
17.3.6. Add The Following As An Additional Section 13.15:
13.15 Exclusion of Article 1123 of the Civil Code Parties hereby agree and Client expressly consents
13.15 Exclusion of Article 1123 of the Civil Code. Parties hereby agree, and Client expressly consents, to waive its right to seek a proportional price reduction in case of partial performance of this Agreement as per the meaning of Article 1223 of the Civil Code.
17.3.7. Replace the second sentence of Section 13.8 “Payment” With The Following:
If any of the Success Payments, Subscription Fees, or other charges owed by the Client as a result of the use of Services remain unpaid on the due date of the payment as described herein, penalties late payment amount corresponding to the highest of the sums between three (3) times the legal interest rate in force and five percent (5%) of the amount due will apply as well as a lump sum indemnity for recovery costs of Forty Euros (EUR. 40). Where the recovery costs incurred exceed the amount of this lump sum indemnity, YourMauka may request additional compensation, upon justification.
17.3.8. Modify the Termination or Discontinuation Time in the Second Paragraph of Section 14.4 “Subscription Agreements” From Ninety (90) Days to One Hundred and Twenty (120) Days.