This Agreement (hereinafter referred to as the " Agreement ") explains the contractual agreement between BlueGeckoNetwork.com, a New York business having its principle place of business in Binghamton, New York(" BlueGeckoNetwork.com ," " we ," " us ") and you ("Company," " you ," " your ") who agrees to the terms of this Agreement by clicking the " I AGREE " checkbox on the Employer Registration form under "Part D: Agreements." This Agreement is made to be effective as of the date accepted by BlueGeckoNetwork.com following your execution and submission of this Agreement by clicking the " I AGREE " checkbox on the Employer Registration form under "Part D: Agreements." This Agreement governs your use of the BlueGeckoNetwork.com Web Site (the " Web Site ") and transactions conducted through this Web Site including, but not limited to, the billing and payment services described herein. NOW, THEREFORE, in consideration of the mutual covenants and agreements of the parties contained herein and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties, intending to be bound, hereby agree as follows:
1. CLICK THE " I AGREE " CHECKBOX
By using the Web Site clicking the " I AGREE " checkbox on the Employer Registration form under "Part D: Agreements," you acknowledge your acceptance of the terms and conditions of this Agreement. By accepting the terms and conditions of this Agreement and completing the registration process, you are simultaneously (i) registering as a " Registered User " (as defined herein), (ii) designating yourself as a " Company " (as defined in Section 3) (iii) representing and warranting that you can legally enter into this Agreement, and (iv) agreeing to the terms and conditions of this Agreement. If you do not accept this Agreement, you are not authorized to use the Web Site. If you have any questions about this Agreement, please call us at (607) 468-9996 or contact info@BlueGeckoNetwork.com . The term "Registered Users" includes all individuals or entities who have registered through the BlueGeckoNetwork.com Web Site.
The Web Site provides a venue for Companies to post jobs and search for professionals. The Web Site also provides Companies with billing and payment services described in Section 4(A) (" Billing and Payment Service(s) "), thereby reducing the paperwork and time associated with invoicing and payment processes, tax reporting and filing services on Form 1099 as described in Section 4(B) (" 1099 Services "), as well as other services which BlueGeckoNetwork.com may offer to Companies from time to time, including, but not limited to, other tax filing services, which shall be subject to the terms and conditions of this Agreement and any supplement to this Agreement (" Other Services ") (together, with the Billing and Payment Services and 1099 Services, referred to as the Service(s) as defined herein). Via the Web Site, we provide certain information about our products, services and users, and certain other third party information. We may add, delete or modify some or all of our services and information at any time. BlueGeckoNetwork.com and you wish to enter into an Agreement wherein BlueGeckoNetwork.com agrees to provide to you, and, if applicable pursuant to the payment terms described in Section 9 hereof, you agree to pay for, certain specified services more fully described herein.
By clicking the " I AGREE " checkbox on the Employer Registration form under "Part D: Agreements" and registering with the BlueGeckoNetwork.com Web Site, you are designating yourself as a "Company." "Companies" are entities looking for professionals to perform a specific set of services on a part time and/or consulting basis.
4. SCOPE OF SERVICES
BlueGeckoNetwork.com shall provide services to both Professionals and Companies. "Professionals," as used in this Agreement, means individual professionals ("Individual Professionals") or vendors operating as corporations, partnerships or limited liability companies ("Corporate Vendors") with specific skill sets that are looking for part time and/or consulting opportunities.
A. BlueGeckoNetwork.com facilitates the preparation of " Invoices " (as defined in Section 7) by Professionals, submits such Invoices to you and other Companies on behalf of Professionals, collects the " Payment " (as defined in Section 7) and remits the Payment (less a Service Charge) to the applicable Professional (" Billing and Payment Services "). The Billing and Payment Services shall be provided to Registered Users via the BlueGeckoNetwork.com Web Site and shall be in the form deemed appropriate by BlueGeckoNetwork.com from time to time. BlueGeckoNetwork.com may add, delete, or modify some or all of the Services at any time. We do not control the actual transactions between Professionals and Companies. Accordingly, we do not set or endorse: (i) the price, contract terms, quality, conformance or legality of the services or jobs advertised or offered; (ii) the ability of Companies to offer employment or any other type of working relationship; or (iii) the ability of Professionals to offer services and/or perform accordingly. We cannot and do not control whether any Company will complete the payment they offer. We are not responsible for any transaction and/or contact, or the result of any such transaction and/or contact made by and between Registered Users. From time to time, we will provide features and services which either are or shall be set forth in separate sections of the Web Site, which are subject to the terms of this Agreement, but are also subject to the additional terms and pricing specified on the Web Site. With respect to these features and services provided on our Web Site, you will be charged, and agree to pay us any fees, as set forth in separate sections of the Web Site detailing such features and services.
B. At your request, BlueGeckoNetwork.com shall also issue to each Individual Professional whom you engage a summary on Form 1099 of Payments (less Service Charges) paid to such Individual Professional (" 1099 Services "). You hereby acknowledge that, although BlueGeckoNetwork.com may provide 1099 Services to Companies, your contract or agreement to obtain services and make payments is an agreement between you and a Professional. If it is determined by a court of competent jurisdiction that a contract exists between a Professional you have engaged and BlueGeckoNetwork.com for the Professional to provide any services pursuant to an Assignment (as defined in Section 7), you hereby expressly agree to indemnify BlueGeckoNetwork.com for any and all liability, under a theory of contract or any related legal obligation, for any amounts owed to a Professional you have engaged through the use of, or arising out of, our services.
5. SYSTEM INTEGRITY
You may not use any device, software or routine, including but not limited to any viruses, trojan horses, worms, time bombs, cancelbots or denial-of-service attacks, intended to damage or interfere with the proper working of the Web Site or any transaction being conducted on our site, or to surreptitiously intercept or expropriate any system, data or personal information from the Web Site. You may not take any action that imposes an unreasonable or disproportionately large load on our infrastructure, including but not limited to "spam" or other such unsolicited mass emailing techniques.
6. INFORMATION POSTED ON THE WEB SITE
A. You are solely responsible for information that you post on our Web Site, including but not limited to any posting or listing in any public message area or through any email feature. You grant us a non-exclusive, worldwide, perpetual, royalty free, irrevocable right to exercise all copyright and publicity rights with respect to this information. Your information must not: (a) infringe any third party's rights, including but not limited to intellectual property, publicity or privacy; (b) be defamatory, trade libelous, threatening or harassing; nor (c) be obscene, indecent or contain pornography. We do not endorse any information posted by Registered Users and we are not liable for any such information posted on our site, including but not limited to any information posted about you. We reserve the right to take any action with respect to information posted on our site which we believe is appropriate in our sole discretion with respect to such information, including but not limited to termination of this Agreement. However, we cannot, nor do we, control the information provided by you or other Registered Users or other content providers which is made available through our system. By its very nature, other people's information may be offensive, harmful, inaccurate, or in some cases may be mislabeled or deceptively labeled. Information on the BlueGeckoNetwork.com Web Site is provided "AS IS" and may contain technical inaccuracies or typographical errors.
B. The Web Site may contain links to third-party web sites not under the control or operation of BlueGeckoNetwork.com. When we provide links, we do so only as a convenience and do not endorse and are not responsible for the content of any linked site or any link contained in a linked site.
When a Professional completes an assignment for which you have engaged the Professional (or a portion of such an assignment) (" Assignment ") for a Company, such Professional will complete the electronic invoice form (the " Invoice ") and submit it to BlueGeckoNetwork.com via the BlueGeckoNetwork.com Web Site. The Professional will provide BlueGeckoNetwork.com with a list of items, including, but not limited to, hours worked, payment required and description of Assignment(s), to be included on the Invoice (" Invoice Details "). Such Invoice Details will not be final until and unless such Professional has authorized their inclusion or waived the right to review such Invoice Details. If a Professional waives his, her or its right to review the Invoice Details, all items in the Invoice Details will be included on the Invoice as received by BlueGeckoNetwork.com. BlueGeckoNetwork.com ENCOURAGES ALL PROFESSIONALS TO REVIEW INVOICE DETAILS PRIOR TO THEIR INCLUSION IN THE INVOICE TO BE SENT TO A COMPANY. However, due to the inherent nature of the Internet and electronic communication transactions, BlueGeckoNetwork.com cannot take responsibility for the accuracy of all transmissions of Professional Invoices. After the completion of the Invoice Detail process between the Professional and BlueGeckoNetwork.com as described above, BlueGeckoNetwork.com will then submit the Invoice to the Company and the Company shall submit the payment for a Professional's services with respect to the Assignment(s) specified in the Invoice (the " Payment ") to BlueGeckoNetwork.com to be processed by BlueGeckoNetwork.com according to the Payment Terms outlined in Section 9 of this Agreement.
8. RELATIONSHIP AND OBLIGATIONS OF PARTIES
A. BlueGeckoNetwork.com provides Services for Registered Users, including you, other Companies and Professionals. All parties are independent contractors vis-à-vis BlueGeckoNetwork.com with respect to all matters arising out of this Agreement. No Registered User shall be considered the employee, agent, partner or joint venturer of BlueGeckoNetwork.com and BlueGeckoNetwork.com shall not be considered the employer, agent, partner or joint venturer of any Registered User.
B. You agree and understand that BlueGeckoNetwork.com is simply acting to process Invoices to Companies on behalf of Professionals and to receive and process Payment for Professionals' services from Companies. BlueGeckoNetwork.com is not responsible for the timeliness or accuracy of the Invoices . BlueGeckoNetwork.com is under no obligation to ensure the timeliness, accuracy, completion or workmanship of any Assignment you give to a Professional.
C. You agree that BlueGeckoNetwork.com, by providing the Services hereunder, does not accept liability as an employer - either singularly or jointly - of any Professional and that the employment/independent contractor status of any Professional as such status pertains to such Professional's relationship with you is solely determined by an agreement between the Professional and you. You agree and understand that BlueGeckoNetwork.com will not in any way be involved in the terms and conditions of your employment or contracting arrangement with any Professional and that any services for which you engage a Professional are provided by and under separate agreement between you and such Professional. BlueGeckoNetwork.com is not responsible for and will not control the manner in which a Professional operates and is not involved in the hiring, firing, discipline or working conditions of the Professional. BlueGeckoNetwork.com will not provide any Professional with any materials or tools with which to complete any projects for which you engage a Professional. Any problems, complaints or questions regarding the work environment, performance or other terms and conditions of employment and/or contracting must be resolved by and between you and any Professional you engage.
D. You agree that you will abide by any and all applicable non-discrimination, employment, tax and other federal and state statute(s), regulation or common law. You agree to hold harmless and indemnify BlueGeckoNetwork.com for any and all liability arising from a violation of any such statute, regulation or common law.
9. PAYMENT TERMS
A. Companies do not pay BlueGeckoNetwork.com a fee for the SafePay Billing and Payment Services. Subject to compliance with the SafePay Non-Compliance Fee (as defined herein), Companies are solely responsible for submitting the Payment due to a Professional for the completion of an Assignment to BlueGeckoNetwork.com. All such Payments shall be payable to BlueGeckoNetwork.com in U.S. currency. Notwithstanding the above, BlueGeckoNetwork.com may, at a later date, and in its sole discretion, charge a fee to Companies for Services pursuant to this Agreement, provided Companies are given advance notice prior to any Company fee implementation.
A.1 SafePay Non-Compliance Fee Provision. You agree that in the event you decide to engage any Professional in a full or part-time employment situation or consulting contract for which the Professional is to be compensated outside BlueGeckoNetwork.com's SafePay invoicing and payment system, you will contact BlueGeckoNetwork.com at 1-888-678-0136 for the applicable Safepay Non-Compliance Fee.
B. Unless otherwise agreed to in writing between you and BlueGeckoNetwork.com, BlueGeckoNetwork.com shall provide you with Invoices for any Payment due to a Professional you engage. If you reasonably dispute any Invoice amount, you must pay all undisputed amounts within the time frames specified above and the parties will cooperate to verify any disputed amounts. BlueGeckoNetwork.com agrees that any Invoice amounts reasonably disputed by you will not be payable to a Professional until such dispute is resolved. If you have submitted Payment to BlueGeckoNetwork.com and such payment amount is then reasonably disputed by you before BlueGeckoNetwork.com has disbursed the disputed amount to a Professional, BlueGeckoNetwork.com agrees, at your written request, to hold such Payment on behalf of Company until the dispute is resolved. You hereby agree and acknowledge that paying any Invoice constitutes your acknowledgement of completion of all work covered by such Invoice and the quality, accuracy and thoroughness of such work.
C. You are responsible for payment and reporting of any taxes. Other than in connection with 1099 Services, BlueGeckoNetwork.com is not obligated to determine the applicability of any taxes or to remit, collect or report any such applicable taxes, unless otherwise agreed to by both parties pursuant to the terms of any provision of tax services provided to you by BlueGeckoNetwork.com. BlueGeckoNetwork.com reserves the right to change the Service Charge at any time. Any change in the Service Charge will be reflected on Invoices submitted after such change and after notice to you.
D. In the event of nonpayment by you of any Invoice amount when due, which has not been reasonably disputed by you (even where such non-payment occurs on account of your bankruptcy or insolvency), BlueGeckoNetwork.com may suspend providing Services pursuant to this Agreement to you and/or any Professional you engage until such time as the past due Invoices have been paid in full. In the event BlueGeckoNetwork.com stops providing Services pursuant to this Section, BlueGeckoNetwork.com shall not be penalized for delays and shall incur no liability to you caused by such cessation.
10. TERM AND TERMINATION
A. This Agreement shall become effective upon the execution hereof by the parties, as described above, and shall continue until terminated by BlueGeckoNetwork.com or you as provided for under the terms of Section 10(B) of this Agreement.
B. Unless otherwise agreed to in writing between the parties, either party may terminate the Service at any time upon notice to the other party. In such event, (i) BlueGeckoNetwork.com shall continue to perform the Service necessary to complete any invoicing and payment process or other process already set into motion (" Open Transaction "); and (ii) you shall continue to be obligated to pay all Professionals for any Assignment for which you have engaged such Professionals in order to complete any Open Transaction.
11. PRIVACY AND CONFIDENTIALITY
B. Any user identification (" User ID ") and password, and any authorization codes or similar verification identifiers provided to you by us should be maintained as confidential and should not be distributed or disclosed to third parties. It is your responsibility to notify us if you need to change or discontinue your User ID and password and/or authorization codes, if applicable. You may only do so by: (i) sending us a notice, or (ii) contacting us at info@BlueGeckoNetwork.com .
The Web Site and all intellectual property rights related to the Web Site, including but not limited to copyrights, trademarks,service marks and any feedback left by Registered Users on the Web Site, are owned or licensed by us, and all right, title and interest in the Web Site and the related intellectual property rights remain our property. You may not reproduce, reverse engineer, decompile, disassemble, modify or create derivative works with respect to the Web Site and the related intellectual property, including any services provided via the Web Site, and this Agreement does not grant you permission to do so. Certain content is licensed from third parties. All such third party content and all intellectual property rights related to that content belong to the respective third parties. You may not remove any copyright, trademark, or other intellectual property or proprietary notice or legend contained in the Web Site, including any Web Site content.
A. Each party warrants that it has the right and or full corporate power and authority to enter into this Agreement.
B. THE SERVICES PROVIDED HEREUNDER ARE PROVIDED "AS IS," WHERE IS, AND WITHOUT ANY WARRANTIES OR CONDITIONS (EXPRESSED OR IMPLIED, ARISING BY STATUTE OR OTHERWISE IN LAW OR FROM A COURSE OF DEALING OR USAGE OR TRADE). WE MAKE NO REPRESENTATIONS OR WARRANTIES, OF ANY KIND, EITHER EXPRESS OR IMPLIED, AS TO THE QUALITY, IDENTITY OR RELIABILITY OF ANY REGISTERED USER OR THIRD PARTY, OR AS TO THE ACCURACY OF THE POSTINGS MADE ON THE WEB SITE BY ANY REGISTERED USER.
A. You agree to defend, hold harmless and indemnify BlueGeckoNetwork.com from and against any and all losses, costs, expenses, damages or other liabilities incurred by BlueGeckoNetwork.com from and against any cause of action, claim, suit or proceeding brought by a third party against BlueGeckoNetwork.com in connection with your use of the Services including any payment obligations incurred through use of the Services. You further agree to indemnify, defend and hold BlueGeckoNetwork.com harmless from and against any and all claims, demands, actions, costs, liabilities, losses and damages of any kind (including attorneys' fees) resulting from: (i) your use of the Web Site (ii) your decision to supply credit information via the Web Site, including personal financial information; (iii) your decision to submit postings and accept offers from other Registered Users; (iv) any breach of contract or other claims made by Registered Users with which you conducted business through the Web Site; (v) your breach of any provision of this Agreement; (vi) any liability arising from the tax treatment of Payments or any portion thereof; (vii) any negligent or intentional wrongdoing by any Registered User; (viii) any act or omission of yours with respect to the Payment in respect of Professional Assignments; (ix) your dispute of or failure to pay any Invoice or any other Payment; and/or (x) your obligations to a Professional. Any such indemnification shall be conditioned on our: (a) notifying you in writing of any such claim, demand, action, cost, liability, loss or threat of any thereof; (b) cooperating with you in the defense or settlement thereof; and (c) allowing you to control such defense or settlement. We shall be entitled to participate in such defense through our own counsel at our own cost and expense. We reserve the right to report any wrongdoing of which we become aware to the applicable government agencies or otherwise.
B. In connection with your indemnification obligations as provided for above, BlueGeckoNetwork.com agrees to (a) notify you in writing promptly after learning of any such claim; (b) turn over to you all responsibilities and control with respect to such claim; and (c) reasonably cooperate with you in the defense thereof.
15. LIMITATION OF LIABILITY
A. IN NO EVENT SHALL BlueGeckoNetwork.com BE LIABLE TO YOU OR ANY OTHER REGISTERED USER FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL, OR PUNITIVE DAMAGES PURSUANT TO THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO, LOSS OF PROFITS, LOSS OF BUSINESS OPPORTUNITIES, OR LOSS OF GOODWILL, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
B. In the event that you have a dispute with one or more Registered Users, you release us (and our agents and employees) from claims, demands and damages (actual, consequential and punitive) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with the Web Site, the Services, or such dispute. You waive the provisions of any state law limiting or prohibiting a general release.
C. Notwithstanding any other provision of this Agreement, in no event will BlueGeckoNetwork.com's liability to you for any action or claim related to the Services provided under this Agreement, whether based on contract, tort, negligence, or any other theory of liability, exceed in the greater of: (A) $1000 or (B) the aggregate amount of Service Charges actually collected by BlueGeckoNetwork.com from you for the Services to which the liability relates during the six (6) month period immediately preceding the determination of such liability.
D. Our contracts with certain of our suppliers provide for scheduled maintenance, preventative maintenance, and emergency maintenance work. We will have no liability whatsoever for any unavailability of the Web Site caused by our supplier's performance or lack of performance of the maintenance work needed to keep the Web Site operable. We will also not have any liability for any loss of data or transactions resulting from delays, non-deliveries, mis-deliveries or service interruptions caused by us, any third party acts, the acts of any web services provider or problems with the Internet infrastructure and networks external to the Web Site. The limitations of liability provided in this Agreement inure to the benefit of us, our affiliates and all of our respective officers, directors, employees, attorneys and agents.
BlueGeckoNetwork.com has the right to transfer or assign this Agreement and the rights hereunder to any other person or entity without your consent. You do not have the right to assign or transfer this Agreement or any rights thereunder to any other person or entity without our prior written consent. Subject to the foregoing, this Agreement will be binding upon and will inure to the benefit of the successors and permitted assigns of the parties hereto.
17. GOVERNING LAW AND JURISDICTION
The BlueGeckoNetwork.com Web Site (excluding linked sites) is operated by us from our offices within the Commonwealth of Pennsylvania, United States of America. It can be accessed from all 50 states and from other countries around the world. As each of these places has laws that may differ from those of Pennsylvania, by accessing the Web Site, you agree that this Agreement and your use of the Web Site, and the services offered therein and thereby, shall be governed in all respects by the internal substantive laws of the Commonwealth of Pennsylvania, without regard to conflict of laws provisions and shall not be governed by the United Nations Convention on the International Sale of Goods. You further submit to jurisdiction and venue in the state and federal courts located in the Commonwealth of Pennsylvania, Allegheny County and further agree that any cause of action you may bring arising under your use of the Web Sites shall be brought by you exclusively in a state or federal court located in the Commonwealth of Pennsylvania, Allegheny County. We make no representation that materials on the Web Site are appropriate or available for use in other locations, and accessing them from territories where their contents are illegal is prohibited. Those who choose to access this site from other locations do so on their own initiative and are responsible for compliance with local laws.
18. STATE SPECIFIC LEGAL NOTICES
Pursuant to California Civil Code Section 1789.3 and California Business and Professions Code Section 17538, residents of California are hereby advised of the following: BlueGeckoNetwork.com, located in Pittsburgh, Pennsylvania, is the provider of the electronic commercial service on this site. Registered Users are notified in advance regarding any applicable service charges. The Complaint Assistance Unit of the Division of Consumer Services of the Department of Consumer Affairs in California may be contacted in writing at 400 R. Street, Suite 3090, Sacramento, CA 95814 or by calling 1-800-952-5210. Upon your request, you may have this Agreement sent to you by email. Please feel free to contact BlueGeckoNetwork.com to resolve a complaint regarding any aspect of service relating to this site by writing to the above address, or contact us at info@BlueGeckoNetwork.com .
B. If any provision of this Agreement is held to be invalid or unenforceable, such provision will be struck and the remaining provisions enforced. Headings are for reference purposes only. Failure of either party to act or exercise its respective rights under this Agreement upon the breach of any other terms hereof by the other party shall not be construed as a waiver of such a breach or prevent said party from thereafter enforcing strict compliance with any or all of the terms thereof.
C. This Agreement does not create a relationship of agency, partnership, or representation between BlueGeckoNetwork.com and you for any purpose whatsoever, it being understood between the parties hereto that BlueGeckoNetwork.com and Registered User are to act as an independent contractors and are not authorized to make any contract, agreement, warranty or representation on behalf of each other.
D. Neither of the parties to this Agreement shall be responsible for the failure to perform or any delay in performance of any obligation hereunder due to labor disturbances, accidents, fires, floods, telecommunications or Internet failures, strikes, wars, riots, rebellions, blockades, acts of government, governmental requirements and regulations or restrictions imposed by law or any other similar conditions beyond the reasonable control of such party. The time for performance of such party shall be extended by the period of such delay.
E. You must comply with all applicable laws, statutes, ordinances and regulations regarding: (i) your use of the Web Site and the Services and any Other Services provided thereby or therein; (ii) your ordering or posting of, services or offers, if applicable; and (iii) the posting and retrieval of information by you, including without limitation those governing antitrust, unfair competition, false advertising, taxation and export control. You are responsible for paying all applicable fees and taxes you incur in connection with access to our servers and our Web Site.
F. This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Pennsylvania without regard to its conflicts of laws provisions.
G. The provisions of Sections 1, 4, 5, 6, 8, 9, 11, 12, 13, 14, 15, 16, 17, 18 and 19 will survive any termination or expiration of this Agreement for any reason.
H. All notices required or permitted to be given under this Agreement, shall be in writing and shall be deemed to have been duly given if delivered personally or sent by pre-paid telex, telefax or telegram, or mailed first-class, postage pre-paid, by registered or certified mail (notices sent by telex or telefax, or telegram, shall be deemed to have been given on the date sent; those mailed shall be deemed to have been given ten (10) business days after mailing) to the addresses set forth below or to such other address as any party shall designate by notice in writing.
If to BlueGeckoNetwork.com:
Blue Gecko Network
P.O. Box 44
Binghamton, NY 13901
If to Registered User:
To the address associated with Registered User's access or login information.