Last Updated: October 19, 2021
PLEASE REVIEW THESE TERMS OF SERVICE CAREFULLY AS THEY AFFECT YOUR LEGAL RIGHTS AND
CONTAIN A MANDATORY ARBITRATION PROVISION AND A WAIVER OF CLASS ACTION REMEDIES.
Welcome to Espresso! These Terms of Service (these “Terms”) form a binding legal agreement between Try Espresso, Inc., a Delaware corporation (“we”, “us”, or “our”) and you regarding the use of the website and online platform located at www.tryespresso.co and our services and offerings available here (collectively, the “Platform”).
THESE TERMS APPLY TO OUR CUSTOMERS USING THE PLATFORM TO SOURCE AND EVALUATE JOB CANDIDATES.
These Terms do not apply to job candidates and applicants (“Candidates”), whose use of the Platform is instead subject to the then-current Candidate Terms.
Please review these Terms carefully. By executing an Order referencing these Terms, registering a hiring account through the Platform, or otherwise accessing or using the Platform, you agree to be bound by these Terms. We may update these Terms from time to time in our discretion. We will always keep the current version of these Terms posted on this website. By using the Platform after a new version of these Terms have been posted, you agree to the terms and conditions of such version of these Terms. If you do not agree to these Terms, you must immediately cease your use of the Platform.
ORDERS; PLATFORM ACCESS
These Terms govern the Platform access and other services (“Services”) provided pursuant to the applicable order form executed by both parties (the “Order”). Each Order will describe one or more Candidate sourcing campaigns (“Campaigns”) to be carried out thereunder.
Campaigns will commence on the date of the applicable Order, and will continue for 90 days from launch (unless a different period is indicated in the applicable Order). After such period, we may deactivate the Campaign and disable corresponding Platform access unless we agree to extend it.
Subject to your continued compliance with these Terms, we grant you a non-sublicensable and non-transferable right to access and use the Platform during the applicable Campaign period, solely for your internal business purposes. We own the Platform and retain ownership of all right, title, and interest thereto (including all intellectual property rights). We reserve the right to modify the Platform at any time without notice.
We will enable you to access the Platform through one or more user accounts. You are solely responsible for ensuring that your users’ login credentials (usernames and passwords) remain secure and confidential and will notify us immediately if it suspects any unauthorized use of any user account. You will be responsible for any actions taken using your user accounts.
RESTRICTIONS; ACCEPTABLE USE POLICY
You may not, directly or indirectly: (a) sell, lease, license, sublicense, or otherwise make available the Platform to any third party; (b) decompile, disassemble, or reverse engineer the Platform or attempt to access its source code; (c) remove any trademark or copyright notices contained in the Platform or any content, or create derivative works or write or develop any software based upon the Platform; (d) upload, transmit, or submit any viruses, malware, or other malicious code or harmful materials to the Platform, or otherwise interfere with the operation of the Platform; (e) attempt to bypass any security measures or gain any unauthorized access to the Platform or any other systems or information; (f) impersonate any other person or entity, or behave in any manner that is discriminatory, abusive, harassing, threatening, fraudulent or infringes any rights of any person; or (g) use the Platform in violation of applicable laws or any posted rules, policies, or guidelines.
CONTENT; YOUR CONTENT; FEEDBACK
All images, photos, video, text, and other content on the Platform (collectively, “Content”) other than Your Content (as defined below) is owned by us or our third-party licensors and is protected by applicable copyright, trademark, and/or other intellectual property laws. Nothing contained on the Platform should be construed as granting any license or right to use any of the Content without our written permission other than as set forth herein. Subject to your continued compliance with these Terms, we hereby grant you a personal, non-exclusive, revocable, non-transferable, and non-sublicensable license to access and use the Platform and Content for your internal Candidate evaluation and hiring purposes. Any use of the trademarks included in the Content will inure to our (or the applicable licensor’s) benefit. “Candidate Content” means any Content provided by a Candidate. You may use Candidate Content for your internal evaluation and hiring purposes, but may not disclose or distribute Candidate Content to any person or entity outside of your company or organization. “Your Content” means any Content submitted to us or the Platform by you. We have the right, but no obligation, to monitor or screen Your Content and remove any of Your Content in our discretion, including if we deem it objectionable or inappropriate in any way. You own Your Content. By submitting any of Your Content, you: (i) represent and warrant that you have all right, title, and interest to do so; (ii) acknowledge that Your Content will not be treated as confidential, and may be publicly visible via the Platform (or, as relates to job postings, on the third-party sites we publish the postings on); and (iii) grant us and our affiliates a non-exclusive, worldwide, perpetual, irrevocable, fully paid, royalty-free, and fully transferable and sublicensable license to use, reproduce, display, perform, modify, transmit, distribute and create derivative works of Your Content for purposes of providing the Platform and Services to you.
If you provide feedback, suggestions, improvements, or requests for additional functionality related to the Platform or Services (collectively, “Feedback”), you grant us an unrestricted, perpetual, irrevocable, royalty-free, worldwide license to use, reproduce, display, perform, modify, transmit, distribute and create derivative works of such Feedback in any way we deem reasonable, without any attribution or accounting to you. This paragraph will survive any termination or expiration of these Terms or of your account on the Platform.
Personal information will be handled by us in accordance with applicable laws and our then-current Privacy Policy, available at [tryespresso.co/privacy-policy].
FEES AND PAYMENT
Except as otherwise set forth in the Order, all fees specified in the Order are payable in advance. A late payment charge of 1.5% per month, or the maximum rate allowed by law (whichever is less), will be added to all overdue amounts. Fees are non-cancellable and non-refundable, except as otherwise expressly set forth in the Order or agreed in writing by us.
By providing us a payment card or other payment method information, you authorize use to charge the applicable payment method for the designated amounts. You acknowledge and agree that we may use one or more third-party payment processors to facilitate payments made through the Platform, and that such payment processors will receive sufficient information regarding you and your payment method as needed to process such payments.
All fees are exclusive of, and you are solely responsible for payment of, all applicable value-added, sales, use, right of use and other taxes and all applicable export and import fees, customs duties, and similar charges (other than taxes based on our net income) arising from the transactions hereunder.
TERMINATION; SUSPENSION; EFFECT
Either party may terminate an Order immediately for cause if the other party materially breaches these Terms or such Order and does not cure such breach within 30 days from receipt of written notice thereof. Termination is without prejudice to any other remedies that may be available to the terminating party. We may suspend your access to the Platform if you: (i) materially breach any obligations under these Terms or the Order; or (ii) we determine in good faith that such suspension is necessary to avoid possible harm to our, your, or any third party’s property, systems, or information. We will notify you of the suspension and reason therefor as soon as commercially practicable. Upon the expiration or termination of an Order or these Terms, your right to access the Platform will immediately end. The provisions of these Terms that are by their nature intended to survive (including, without limitation, provisions regarding our intellectual property rights, payment of accrued fees, feedback, restrictions and acceptable use of the Platform, disclaimers, third-party sites and content, limits on liability, indemnification, confidentiality, governing law, arbitration, and the “General” terms below) will so survive any expiration or termination. Termination or expiration of the applicable Order or these Terms will not affect any already-accrued obligations or liabilities.
DISCLAIMERS
YOU ARE SOLELY RESPONSIBLE FOR EVALUATING, SELECTING, AND HIRING CANDIDATES. WE DO NOT ENDORSE OR SCREEN CANDIDATES AND MAKE NO REPRESENTATIONS, WARRANTIES, OR GUARANTEES AS TO THE BACKGROUND, QUALIFICATION, OR SUITABILITY OF ANY CANDIDATES. WE DO NOT GUARANTEE ANY PARTICULAR RESULTS ARISING FROM ANY CAMPAIGN, INCLUDING THAT ANY PARTICULAR NUMBER OF CANDIDATES WILL APPLY OR BE ACCEPTABLE TO YOU. FEES ARE NOT CONDITIONAL OR BASED ON NUMBER OF CANDIDATES SOURCED OR ON A SUCCESSFUL HIRING.
WE PROVIDE THE PLATFORM “AS IS” AND “AS AVAILABLE” AND MAKE NO WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY REGARDING ANY OF THE FOREGOING, INCLUDING ANY IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, OR NON-INFRINGEMENT, AND DOES NOT GUARANTEE THAT THE PLATFORM WILL BE UNINTERRUPTED OR ERROR-FREE. WE WILL HAVE NO LIABILITY FOR THE OPERATION OR FAILURE OF ANY THIRD-PARTY SITES OR YOUR USE OF OR RELIANCE OF SUCH THIRD-PARTY SITES. WE DO NOT GUARANTEE ANY PARTICULAR RESULTS FROM USE OF THE PLATFORM AND IS NOT RESPONSIBLE FOR ANY ACTIONS TAKEN BY YOU BASED ON USE OF THE PLATFORM. WE WILL NOT BE LIABLE FOR YOUR FAILURE TO BACK-UP FILES AND DATA UNDER ANY CIRCUMSTANCES NOR WILL WE BE LIABLE FOR ANY LOSS OF DATA. THE FOREGOING LIMITATIONS SHALL APPLY EVEN IF THE ABOVE-STATED WARRANTY FAILS OF ITS ESSENTIAL PURPOSE.
LIMIT ON LIABILITY
WE WILL NOT BE LIABLE FOR: (A) ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND IN CONNECTION WITH THESE TERMS, WHETHER ARISING OUT OF CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER LEGAL OR EQUITABLE THEORY, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; OR (B) ANY TOTAL AMOUNTS EXCEEDING THE FEES PAID BY YOU UNDER THE APPLICABLE ORDER.
THIRD PARTY SITES AND CONTENT
The Platform may contain marketing materials provided by or promoting, and links to websites owned or operated by, various third parties and their products and services. We do not control or endorse such parties, websites, products, or services, and we are not responsible for their content (whether included on a third-party site or the Platform), nor are we responsible for the accuracy or reliability of any information, data, opinions, advice, or statements contained within such content. We have the right, but not the obligation, to review and modify or delete any content provided by third parties (including other users of the Platform). Any views expressed in third-party content are the views of the applicable author and do not necessarily align with our views. We will not be liable for any causes of action (including slander, libel, or invasion of privacy) relating to such third-party content.
CONFIDENTIALITY
“Confidential Information” means: (a) as to you, any non-public notes, strategic plans, or other sensitive business information you provide to us directly or through the Platform; (b) as to us, any non-public information regarding the Platform and its features and functionality, or other sensitive business information made available to you, and the pricing and other terms of any applicable Orders.
“Discloser” means the party making Confidential Information available to the other party (“Recipient”). Notwithstanding the foregoing, information included in any job postings will not be considered either party’s Confidential Information hereunder. Confidential Information also does not include information that: (a) is already known to Recipient without obligation of confidentiality prior to its disclosure by Discloser; (b) is in or enters the public domain through no fault of the Recipient; (c) is or was lawfully received by Recipient from a third party without confidentiality obligations; or (d) was independently developed by Recipient without access to the Confidential Information, as established by written documentation.
Recipient will only use Confidential Information to perform its obligations or exercise its rights under the Order and these Terms. Recipient will not disclose Confidential Information to any individuals or entities except for its and its affiliates’ officers, employees, agents, and representatives who have a need to know such Confidential Information for the purposes of the Order and these Terms and who are bound by confidentiality obligations at least as protective as those set forth herein. Recipient will maintain the Confidential Information in confidence using the same degree of care as it uses to protect its own similarinformation (but no less than reasonable care) and will be liable for any unauthorized use or disclosure of the Confidential Information, including by any of its personnel.
The protections set forth herein will continue to apply to any Confidential Information disclosed hereunder for the greater of five years, or so long as such Confidential Information is protected as a trade secret under applicable law. If Recipient is legally required to disclose any Confidential Information of Discloser, Recipient will, if legally permitted, provide Discloser with prompt written notice sufficient to allow it an opportunity to appear and object to such disclosure. If such objection is unsuccessful, then Recipient may produce only such Confidential Information as is required by the court order or governmental action.
“Usage Data” means anonymized or aggregated technical or usage data relating to the use and performance of the Platform. We own Usage Data and may use and disclose it to improve and market our offerings and for other legitimate purposes, provided we do not disclose it in a manner that could be used to identify your company or any individual.
INDEMNIFICATION
You will release, defend, indemnify, and hold us, our past, present, and future affiliates, licensors, licensees, marketing partners, and suppliers, together with their respective officers, directors, employees, and agents, harmless from and against any damages, losses, claims, actions or demands, liabilities and settlements including without limitation reasonable legal and accounting fees, resulting from your use of the Platform, Your Content, your violation of these Terms, or any claims arising from any agreements, transactions, or other relationships between you and other users of the Platform. We may opt to defend such claims at our sole discretion, in which case you will indemnify us for the costs of such defense.
California residents hereby waive 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.”
GOVERNING LAW; MANDATORY ARBITRATION
The Order and these Terms will be governed by the laws of the State of Texas, without regard to its conflicts of law rules. Any dispute arising out of the Order or these Terms will be settled exclusively through binding arbitration administered by the American Arbitration Association in Travis County, Texas in accordance with its Commercial Arbitration Rules, and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction. Notwithstanding the foregoing, either party may seek injunctive or other equitable relief from any court having jurisdiction for any alleged or threatened misappropriation of intellectual property rights or breach of confidentiality. The prevailing party in any such dispute will be entitled to recover its reasonable attorney’s fees and costs.
THE PARTIES HERETO EXPRESSLY WAIVE THE RIGHT TO TRIAL BY JURY AND ANY RIGHT TO PARTICIPATE IN CLASS-ACTION PROCEEDINGS.
GENERAL
You may provide notice to us by contacting us as set forth below. We may provide notice to you by email or postal mail at the addresses listed in the Order or your account profile, or through messages displayed or sent via this website or the Platform.
We may include your company’s name and logos in our publicly facing customer lists. Any additional publicity efforts must be approved by both parties in advance. The parties are independent contractors, and nothing herein will be construed to create the relationship of employer and employee, principal and agent, partnership, or joint venture.
We will not be liable for any delays or failures to perform to the extent due to a cause beyond such party’s reasonable control, which may include natural disasters or acts of God, strikes or work stoppages, acts or war or terrorism, telecommunications disruptions, pandemics or epidemics, quarantines, or other government orders.
Neither the Order, these Terms, nor any rights or responsibilities hereunder may be assigned, delegated, or otherwise transferred by you, whether voluntarily or by operation of law, without our prior written consent, which will not be unreasonably withheld. Subject to the foregoing, the Order and these Terms will be binding upon and will inure to the benefit of the parties and their respective successors and assigns.
If any provision of these Terms is held to be void, invalid or inoperative, the remaining provisions of these Terms will not be affected and will continue in effect and the invalid provision will be deemed modified or severed to the least degree necessary to remedy such invalidity.
These Terms and any applicable Orders contain the entire agreement between the parties relating to the subject matter hereof and thereof and supersedes any prior agreements, oral or written, between the parties regarding such subject matter. No waiver of a breach of any provision of these Terms by either party will constitute a waiver of any subsequent breach of the same or any other provision hereof, and no waiver will be effective unless made in writing and signed by a duly authorized representative of the waiving party.
CONTACT
For more information or for help in answering any questions, please contact us at [hello@tryespresso.co].
