OPSON, INC.
PURCHASER AGREEMENT
Opson, Inc., a Delaware corporation ("Opson"), has created an online community that connects employers, employees, and consultants through personal networks built by its users (the "Opson Network"). If you are a company and wish to utilize the Opson Network to search for and employ employees and consultants you must read this Purchaser Agreement and indicate your acceptance of its terms by following the instructions on the "Create your Employer Account" page and checking the box labeled "I AGREE." This Purchaser Agreement sets out the legally binding terms of your use of the Opson website (the "Opson Site") and Opson Network (the Opson Site and the Opson Network are referred to collectively as the "Opson Services") and your membership in the Opson Network.
The terms of our Terms of Use and Privacy Statement are incorporated into and made a part of this Purchaser Agreement.
1. Description of the Opson Services. The Opson Network connects companies (Purchasers, as defined in Section 2(a) below) with service providers through personal referral networks populated by persons seeking employment and consulting opportunities.
2. Registration; Account; Profile; Password. To use the Opson Network to find employees and consultants for your organization, you must create an account, a profile, and a password by submitting a valid, current email address, address, telephone number, any other necessary contact details and your name on the Opson Site.
(a) Security of Account and Password. You are solely responsible for maintaining the confidentiality of your password and account, and agree not to transfer your email address or password, or lend or otherwise transfer your use of or access to the Opson Services, to any third party. You are also solely responsible for any and all activities that occur under your account. You may update your account information, job postings, or change your password at any time by following instructions available on your account page. You agree to immediately notify us of any unauthorized use of your account or any other breach of security related to your account or the Opson Services, and to ensure that you "log off" or exit from your account at the end of each session. You understand and agree that Opson is not liable for any loss or damage arising from your failure to comply with any of the foregoing obligations.
(b) No Ownership Rights in Account. You understand and acknowledge that you have no ownership rights in your account. If you cancel your account, all your account information, including job postings, saved searches, network contacts, questionnaires and email mailing lists, will be marked as deleted in Opson's databases and will be removed from any public area of the Opson Sites. Information may continue to be available for some period of time because of delays in propagating such deletion through Opson's web servers. In addition, third parties may retain copies of information regarding you or any job you have posted to the Opson Network.
(c) Accurate and Complete Information. In consideration for using the Opson Services, you agree to: (a) provide certain current, complete, and accurate information about you and your job postings when prompted to do so by the Opson Services, and (b) maintain and update this information as required to keep it current, complete and accurate. If any information provided by you during the Term of this Purchaser Agreement is inaccurate, Opson reserves the right to terminate your account immediately and your right to use the Opson Services.
3. Using the Opson Network. Once you have created an account and are a registered company on the Opson Network (a "Purchaser"), you may post descriptions of available employment positions ("Employment Position") or consulting projects (a "Consulting Project") within your organization on the Opson Site and you may search the Opson Network for Members (as defined in Section 3(b)) who may meet your requirements for employment or consulting opportunities.
(a) Employment Positions; Consulting Projects. Any Employment Positions or Consulting Projects you post on the Opson Network should describe the position or project, as well as the skills, experience, and education required and any other information you wish to include. The more information you provide the higher the quality of applicants for the position because Members will be better able to determine if they are suitable for the Employment Position or Consulting Project. All information that you submit will be used in accordance with Opson's Privacy Statement.
(b) Reviewing Member Profiles; Communications with Members. Each member of the Opson Network (a "Member") has created a profile ("Profile") describing his or her skills, experience, and salary requirements or hourly billing rate (the "Billing Rate"). Once you are a Purchaser on the Opson Network, you may search the Member Profiles for Members who may be suitable for open positions within your organization. Any and all communications you have with a Member regarding an Employment Position or Consulting Project, except face-to-face interviews or telephone interviews, shall be conducted via the Opson Services. You are prohibited from contacting a Member about an Employment Position or Consulting Project directly or from circumventing or attempting to circumvent the Opson Services to contact a Member about an Employment Position or Consulting Project. You are prohibited from using any means other than the Opson Services to enter a contract with or offer employment from a Member for an Employment Position or Consulting Project that is posted on the Opson Site or that was introduced through the Opson Services. Any attempt to contact a Member directly will be deemed a material breach of this Purchaser Agreement and Opson will terminate your access to the Opson Services immediately without prior notice and delete your account.
(c) Role of Opson. You understand and agree that (i) Opson is merely the venue or conduit to connect Purchasers and Members; (ii) Opson is not a party to any agreement between you and a Member and you are solely responsible for negotiating the terms and conditions under which you will offer a Member an Employment Position or Consulting Project; (iii) Opson shall have no liability or obligations under any agreement between you and a Member; (iv) Opson has no control over Members or over the services promised or rendered by such Members; and (v) Opson makes no representation as to the reliability, capability, or qualifications of any Member or the quality, security, integrity, or legality of the services provided by any Member.
(d) Terms and Conditions of Employment Positions or Consulting Projects. You and the Member shall determine the terms and conditions under which you will offer and the Member will accept an Employment Position or Consulting Project; provided however that the Billing Rate shall be the rate the Member posted in the Member's Profile. Such terms and conditions may include, but not be limited to, the Member's agreement to produce certain work product or deliverables or to assign the Member's work product to the Purchaser.
(e) Performance of Assignments. You understand and agree that you are solely responsible for screening Members, determining whether such Member meets your requirements, and supervising their work. Opson does not monitor its Members' performance and completion of Employment Positions or Consulting Projects. However, Opson and its Members recognize that their reputation would be adversely affected if a Member fails to use reasonable efforts to perform an Employment Position or Consulting Project. Accordingly, you agree that if a Member fails to perform an Employment Position or Consulting Project in a professional and workmanlike manner, you will promptly notify Opson; provided however that only you and the Member, not Opson, are responsible for rectifying such failure. If Opson receives three (3) or more complaints from Purchasers regarding a Member's performance of an Employment Position or Consulting Project, Opson may terminate that Member's access to the Opson Services. You further acknowledge that Opson is an intended third party beneficiary of any agreement you may enter with a Member and has the right to take such legal actions against the Member or you as Opson, in its sole discretion, deems necessary to protect the interests of Opson.
(f) Limitation of Liability. Please see Opson's Terms of Use for further limitations of Opson's liability. In addition to such limitations in Opson's Terms of Use, IN NO EVENT SHALL OPSON, ITS OFFICERS, DIRECTORS, EMPLOYEES, OR AGENTS, BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES WHATSOEVER RESULTING FROM ANY (I) ERRORS, MISTAKES, OR INACCURACIES IN THE QUALITY OF THE SERVICES OR WORK PERFORMED PROVIDED BY ANY MEMBER HIRED BY YOU FROM THE OPSON NETWORK, or (ii) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR HIRING OF ANY MEMBER OT PERFORM SERVICES FOR YOUR ORGANIZATION.
4. Fees; Cash Payments. You understand and agree that Opson, as the venue or conduit connecting Members and Purchasers, will receive a fee for each Member that accepts an Employment Position or Consulting Project from a Purchaser. Such fees will be paid by the Purchaser and are set forth in Opson's Billing Policy. Opson's fees may not be waived, reduced, or negotiated in any way by you. As set forth in Opson's Billing Policy, certain fees may be a one-time payment and other fees may be added to the amount of the Member's Billing Rate. Please review the Billing Policy carefully. This Billing Policy is subject to change with or without notice to you. The most current Billing Policy will always be posted on the Opson Site.
(a) Opson Fees (Employees). If you hire a Member for an Employment Position which you posted on the Opson Network, you shall pay Opson a one-time fee for such placement. The amount of such fee is set forth in Opson's Billing Policy and is due and payable as set forth in the Billing Policy.
(b) Opson Fees; Invoices (Consultants): If you hire a Member for a Consulting Project which you posted on the Opson Network, Opson shall act as the processor for all fees due and payable by you to the Member as set forth in the Billing Policy. Members will complete and file with Opson time sheets recording the number of hours they have worked on a particular Consulting Project in the format and according to the schedule requested by the Purchaser. The fee that Opson receives from you for such placement shall be added to the Member's hourly Billing Rate and charged to you. Opson will provide you with an invoice for the fees due and payable to Opson and the Member, as well as any reimbursable expenses due and payable to the Member by you. You must notify Opson in advance if you require a signed copy of the time sheets completed by Members in order to process payment for such Members.
(i) Payment of Invoices. You will pay the amount of the invoice in U.S. dollars within fifteen (15) days after the invoice date. If not paid timely, the amount due on any invoice shall accrue interest at the rate of 1.5% per month, or the highest rate permitted by law, whichever is less, until paid.
(ii) Disputes Regarding an Invoice. If you believe any invoice is incorrect, you must notify Opson within the time period set forth in the Billing Policy. Opson shall investigate the time sheets completed by the Member and shall determine, in its sole discretion, whether an adjustment is appropriate. You understand that Opson shall not mediate any disputes between you and a Member regarding the chargeable nature of the number of hours recorded on any time sheet by a Member or the quality of the services provided by the Member. Any such disputes must be settled between you and the Member.
(iii) No Direct Payments. You shall make all payments to Members relating to any Consulting Project (including expenses or bonuses) through Opson or through payment channels as directed by Opson. You shall not make any payments directly to any Member except as specifically authorized in advance by Opson. You shall immediately notify Opson if any Member requests that you make a payment directly to such Member or through any channels other than those specifically authorized by Opson.
(c) Opson Payments to Members. Opson's Members create personal referral networks by inviting other persons to become Members and to link to that Member's profile. When a Purchaser hires a Member (the "Hired Member"), whether for an Employment Position or a Consulting Project, Opson shares a portion of the fees it receives from the Purchaser for connecting the Hired Member with the Purchaser with certain of the Members who are linked to the personal referral network of the Hired Member. For details regarding Opson's fee sharing arrangement with its Members, please refer to the Billing Policy. As a result, one or more of your current employees and consultants may receive a portion of the fees you pay Opson for connecting you to a Hired Member if the Hired Member is a part of the personal referral network such employees or consultants have built on the Opson Site. If your policies or regulations do not allow your employees or consultants to accept fees for referring other employees or consultants to you, you must inform Opson and Opson will attempt, but cannot guarantee in all cases, to exclude your employees and consultants from sharing in the fee you pay Opson for connecting you to a Hired Member who happens to be a Member of the personal referral network built by your current employees and consultants on the Opson Site.
(d) Taxes. Opson shall have no responsibility for determining, remitting, or withholding any taxes applicable to the Member's Billing Rate (Billing Policy).
6. Term. This Purchaser Agreement will remain in full force and effect while you use the Opson Services and/or are a Purchaser. You may terminate your membership at any time, for any reason by following the instructions on your account page. Opson may terminate your membership for any reason, at any time.
(a) Consequences of Termination. Termination of this Agreement shall not relieve you of the obligation to pay any outstanding invoice, any fee due for fulfillment of an Employee Position prior to termination of this agreement, or for work performed on your behalf by a Member prior to termination of this Agreement but not yet billed to you. Such fees and expenses shall be billed to you after termination of this agreement pursuant to Section 4 herein.
(b) Survival. Even after this Agreement is terminated, certain sections of the Terms of Use, Privacy Statement and this Agreement, including Sections 1, 4, 6, and 7 will remain in effect.
7. General.
(a) Entire Agreement. This Agreement, including the Billing Policy, the Terms of Use, and the Privacy Statement, constitutes the entire agreement between you and Opson relating to the subject matter hereof, and supersedes all prior representations and agreements between the parties, whether oral or written.
(b) Relationship Between Parties; Expenses; No Employment. Opson and You will act hereunder as an independent contractor and will not act as, or be deemed to be, an agent, employee, partner or joint venturer of the other. Neither party hereto will in any way have authority to bind or obligate the other party hereto in any respect. Each party will be responsible for its own expenses in connection with this Agreement unless the parties specifically otherwise agree in writing. You acknowledge and agree that this Agreement does not constitute an employment agreement or an offer of employment or create an employment relationship between you and Opson.
(c) Applicable Law; Attorneys' Fees; Reimbursement. This Agreement will be deemed to have been made in the State of California, and the provisions and conditions of this Agreement will be governed by and interpreted in accordance with the laws of the State of California, without regard to conflict of laws principles thereof. In the event of any claim, dispute, litigation, arbitration or action concerning or related to this Agreement, or any alleged breach of this Agreement, the prevailing party will be entitled to reasonable attorneys' fees, costs of suit and disbursements in addition to any other remedies or damages which may be properly awarded.
(d) Amendments and Waivers. This Agreement may be amended only by a writing executed by the parties hereto. The observance of any term of this Agreement by a party hereto may be waived (either generally or in a particular instance and either retroactively or prospectively) only with the written consent of the other party hereto. Any amendment or waiver effected in accordance with this Section will be binding upon the parties. No delay in enforcing, or failure on the part of any party hereto to enforce, any provision hereof, or to exercise any right hereunder, will be deemed a waiver thereof or of any other right.
(e) Severability. If one or more provisions of this Agreement are held to be unenforceable under applicable law, such provision, or such portion of such provision as may be necessary, will be excluded from this Agreement and the balance of the Agreement will be interpreted as if such provision were so excluded and will be thereafter enforceable in accordance with its terms.
(f) Notices. Any notice or other communication required or permitted to be given by either party will be given in writing either personally or by registered or certified mail, postage prepaid, addressed (i) to you at the email address listed in your Profile; or (ii) to Opson at the email address provided in the last paragraph of this Agreement, or to such other address as either party will indicate by proper notice to the other in the same manner as provided above. All notices will be deemed effective either upon sending via email.
You acknowledge that you have read this Agreement, understand it and agree to be bound by its terms and conditions as well as the terms and conditions of the Billing Policy, the Terms of Use, and the Privacy Statement, each of which is incorporated herein. You are advised to review each of these documents carefully as each effects your rights and obligations.
You further agree that this Agreement (including the Billing Policy, the Terms of Use, and the Privacy Statement) is the complete and exclusive statement of the agreement between you and Opson with respect to the Opson Service and supercedes any proposal or prior agreement, oral or written, and any other communications between us in relation to the subject matter of this Agreement
We suggest you print out a copy of this Agreement for your records. Should you have any questions concerning this Agreement, you may contact Opson by writing to Opson, Inc., 100 Century Center Court, Suite 501, San Jose, California 95112, telephone:(408)922-9568,facsimile (253)369-8374, or via www.opson.com.
