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| 1. |
AGREEMENT
These Terms and Conditions ("the Agreement") constitute a legally binding agreement by and between ESalesGuru Ventures, Ltd. ("ESalesGuru") and you or your company (in either case, "You" or "Your") concerning Your use of EsalesGuru's website (the "Website") and the services available through the Website (the "Services"). By using the Website and clicking the "I Agree" checkbox on the registration form, You represent and warrant that You have read and understood, and agree to be bound by, the Agreement and ESalesGuru's Privacy Policy (the "Privacy Policy"). IF YOU DO NOT UNDERSTAND THIS AGREEMENT, OR DO NOT AGREE TO BE BOUND BY IT OR THE PRIVACY POLICY, YOU MUST IMMEDIATELY LEAVE THE WEBSITE AND CEASE USING THE SERVICES.
As used in the Terms and Conditions: |
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"Member" means a person or legal entity that registers for an Account with ESalesGuru for use of the Services available from the Website. |
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"User" means (1) a person who is a Member, using the Website on his or her own behalf, or (2) a person who is using the Website on behalf of a Member that is a company or organization. |
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"Professional" means a Member that promotes and provides certain Interactive Advertising and Marketing Services at ESalesGuru. |
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"Employer" means a Member that posts Interactive Advertising and Marketing Projects and recruits and/or secures ESalesGuru Professionals to perform those Projects. |
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"ESalesGuru Marketplace" means the open platform where Professionals and Employers connect to post projects, submit bids and manage Interactive Advertising and Marketing Projects. |
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| 2. |
PRIVACY POLICY
By using the Website, You consent to the collection of certain information about You, as specified in the Privacy Policy and incorporated herein by reference. ESalesGuru encourages Users of the Website to frequently check ESalesGuru's Privacy Policy for changes. |
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| 3. |
CHANGES TO AGREEMENT AND PRIVACY POLICY
Internet and wireless technology and the applicable laws, rules, and regulations change frequently. ACCORDINGLY, ESalesGuru RESERVES THE RIGHT TO CHANGE THIS AGREEMENT AND ITS PRIVACY POLICY AT ANY TIME UPON NOTICE TO YOU, TO BE GIVEN BY THE POSTING OF A NEW VERSION OR A CHANGE NOTICE ON THE WEBSITE. IT IS YOUR RESPONSIBILITY TO REVIEW THIS AGREEMENT AND THE PRIVACY POLICY PERIODICALLY. IF AT ANY TIME YOU FIND EITHER UNACCEPTABLE, YOU MUST IMMEDIATELY LEAVE THE WEBSITE AND CEASE USING THE SERVICES. Unless ESALESGURU obtains Your express consent, any revised Privacy Policy will apply only to information collected by ESALESGURU after such time as the revised Privacy Policy takes effect, and not to information collected under any earlier Privacy Policies. |
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| 4. |
MEMBER ELIGIBILTY
BY USING THE WEBSITE OR SERVICES, YOU REPRESENT AND WARRANT THAT YOU ARE AT LEAST 18 YEARS OLD, ARE A RESIDENT OF THE UNITED STATES, AND ARE OTHERWISE LEGALLY QUALIFIED TO ENTER INTO AND FORM CONTRACTS UNDER APPLICABLE LAW. Any individual using the Website or Services on behalf of a company further represents and warrants that they are authorized to act and enter into contracts on behalf of that company. To register for an Account with ESalesGuru and become a Member, You must accept all of the terms and conditions in the Agreement. The Agreement is void where prohibited. |
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| 5. |
USER INFORMATION/PASSWORD PROTECTION
To become a Member and use the Services available from the Website You must register for an "Account." You represent and warrant that all information You provide on any registration form or otherwise in connection with Your use of the Website and Services will be complete and accurate, and that You will update that information as necessary to maintain its completeness and accuracy by visiting your personal profile in the Account Manager folder of your Members Account. For additional information, see the section concerning User Ability To Access, Update, And Correct Personal Information in ESalesGuru's Privacy Policy.
You are entirely responsible for maintaining the confidentiality of the user name and password You use to access the Website. You may not use the Account, user name, or password of someone else at any time. You agree to notify ESalesGuru immediately on any unauthorized use of Your Account, user name, or password. ESalesGuru shall not be liable for any loss that You incur as a result of someone else using Your password, either with or without Your knowledge. You may be held liable for any losses incurred by ESalesGuru, its affiliates, officers, directors, employees, consultants, agents, and representatives due to someone else's use of Your Account or password. You must also promptly notify ESalesGuru if any credit card, Pay-Pal and/or other financial institution information that You have provided to us is lost, stolen or used without permission. |
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| 6. |
SCOPE OF SERVICES
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ESalesGuru Marketplace
ESalesGuru provides a user-friendly online platform that connects Internet Marketing Specialists (Professionals) seeking contract work with Web Businesses (Employers) seeking outsource elements of their Interactive Advertising and Marketing efforts. ESalesGuru's web-based solution offers a variety of project management tools to track and manage project activity and correspondence between Employers and Professionals. |
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| b |
Professional Services
ESalesGuru provides the following services for Professional Members: |
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An open venue to review and submit bids for projects in the Professional's specialized skill area. |
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Project management tools to manage bids, project activity and overall client base. |
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A Personal Message Board to communicate and track all correspondence with Employers. |
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A billing system to submit and monitor all project invoices submitted to Employers. |
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A Professional Profile Directory to promote updated profiles to prospective Employers. |
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An Online Career Center with up-to-date job postings in the Professional's skill areas. |
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A Help Desk System to assist with all bidding and project management needs. |
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| c |
Employer Services
ESalesGuru provides the following services for Employer Members: |
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An open venue to post an unlimited number of Interactive Advertising and Marketing projects across ten skill-specific areas, and to receive quotes (bids) from Professionals. |
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The Elite and Elite Plus Member Pre-Screening Process that pre-screens Elite Professional Member applicants. Based solely on the information provided in the Elite and Elite Plus Professional Member's application, ESalesGuru will review the following items during the Elite pre-screening process: |
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Professional's years of accumulated experience in their skill area; |
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Quality and professionalism of application and profile; |
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Review of related work experience and references; |
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Established web presence and client base; and |
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Fulfillment of a checklist of skill requirements in their respective skill areas. |
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Access to a Professional Profile Directory to recruit skilled professionals for their given projects. |
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Project management tools to track the Employer's projects from start to completion. |
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A Personal Message Board to communicate and track all correspondence with Professionals. |
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A billing system to receive and manage project invoices from Professionals. |
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A Help Desk system to assist with all project posting and management needs. |
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| 7. |
RELATIONSHIP AND OBLIGATION OF PARTIES
We do not accept duplicate postings across different skill categories. For example; a project related to Search Engine Marketing must just be posted in that respective skill category. |
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Contracts between Professionals and Employers
ESalesGuru provides Services to Members of the Website. By registering as a Member, You acknowledge and agree that You enter contracts directly with other Members of the Website to purchase or provide interactive advertising and marketing services. ESalesGuru is not a party to any contract for interactive advertising and marketing services, and is not involved in the contracting between Professionals and Employers. All rights and obligations for interactive advertising and marketing services are solely between Professionals and Employers. Each Member is solely responsible for the enforcement and performance of its rights and obligations for the interactive advertising and marketing services. ESalesGuru has no control over and does not guarantee the quality, safety or legality of the services advertised, the truth or accuracy of the listings, the qualifications, background, or abilities of Members (with the exception of the qualifications, background, or abilities of its Elite Professional Members as provided below), and the ability of Professionals to deliver services, the ability of Employers to pay for services, or that a Professional or Employer will complete the transaction. Each Professional and Employer must look solely to the other for enforcement and performance of all the rights and obligations pursuant to the interactive advertising and marketing services, and any other terms, conditions, representations, or warranties associated with such dealings. |
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| b |
Contracts between Elite and Elite Plus Member Professionals and Employers
To become an Elite and Elite Plus Professional Member, applicants must participate in the Elite Member Pre-Screening Process and provide to ESalesGuru certain information regarding their professional qualifications. ESalesGuru relies on its Elite Professional Member applicants to provide truthful and accurate information, and ESalesGuru does not and cannot exhaustively investigate each application. Accordingly, ESalesGuru must assume that the information contained in each Elite Professional Member application is truthful and accurate, and ESalesGuru will only assess the qualifications of each applicant based on the information as provided.
ESalesGuru ONLY GUARANTEES THE QUALIFICATIONS, BACKGROUND, OR ABILITES OF ITS ELITE AND ELITE PLUS PROFESSIONAL MEMBERS WHO PROVIDE TRUTHFUL AND ACCURATE INFORMATON. ESALESGURU IS NOT RESPONSIBLE AND HEREBY DISCLAIMS ALL RESPONSILBITY FOR ANY UNTRUTHFUL OR INACCURATE STATEMENTS MADE BY AN ELITE PROFESSIONAL MEMBER DURING THE COURSE OF THE ELITE and ELITE PLUS MEMBER PRE-SCREENING PROCESS. |
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| c |
Taxes, Reporting and Legal Responsibilities
Employers are solely responsible for satisfying all income tax, payroll tax, payroll withholding, sales and use tax, governmental reporting and other legal requirements under applicable law, including without limitation those applicable to the interactive advertising and marketing services from and by independent contractors.
Professionals are solely responsible for satisfying all income tax, including estimated taxes, sales and use tax, governmental reporting and other legal requirements under applicable law, including without limitation those applicable to the interactive advertising and marketing services from and by independent contractors. |
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| 8. |
THIRD-PARTY SERVICES
Certain of the Services offered through the Website are provided, in whole or in part, by third parties ("Third-Party Services" as provided by "Third-Party Service Providers"). In order to use Third-Party Services, You may be required to enter into additional terms and conditions with Third-Party Service Providers. IF YOU DO NOT UNDERSTAND OR DO NOT AGREE TO BE BOUND BY THOSE ADDITIONAL TERMS AND CONDITIONS, YOU MUST NOT USE THE RELATED THIRD-PARTY SERVICES. In the event of any inconsistency between terms and conditions relating to Third-Party Services and the terms and conditions of this Agreement, those additional terms and conditions will control, although only with respect to such Third-Party Services. The providers of Third-Party Service Providers may collect and use certain information about you, as specified in the Third-Party Service Providers' privacy policies. Prior to providing information to any Third-Party Service Provider, you should review their privacy policy. IF YOU DO NOT UNDERSTAND OR DO NOT AGREE TO THE TERMS OF A THIRD-PARTY SERVICE PROVIDER'S PRIVACY POLICY, YOU MUST NOT USE THE RELATED THIRD-PARTY SERVICES. |
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| 9. |
THIRD-PARTY WEBSITES
The Website is linked with the websites of a number of third parties ("Third-Party Websites"), some of whom have established relationships with ESalesGuru (Third-Party Service Providers or ESalesGuru marketing affiliates, for example) and some of whom do not. ESalesGuru does not have control over the content and performance of Third-Party Websites. ESalesGuru HAS NOT REVIEWED, AND CANNOT REVIEW OR CONTROL, ALL OF THE MATERIAL, INCLUDING COMPUTER SOFTWARE OR OTHER GOODS OR SERVICES, MADE AVAILABLE ON OR THROUGH THIRD-PARTY WEBSITES. ACCORDINGLY, ESALESGURU DOES NOT REPRESENT, WARRANT OR ENDORSE ANY THIRD-PARTY WEBSITE, OR THE ACCURACY, CURRENCY, CONTENT, FITNESS, LAWFULNESS OR QUALITY OF THE INFORMATION MATERIAL, GOODS OR SERVICES AVAILABLE THROUGH THIRD-PARTY WEBSITES. ESALESGURU DISCLAIMS, AND YOU AGREE TO ASSUME, ALL RESPONSIBILITY AND LIABILITY FOR ANY DAMAGES OR OTHER HARM, WHETHER TO YOU OR TO THIRD PARTIES, RESULTING FROM YOUR USE OF THIRD-PARTY WEBSITES.
YOU AGREE THAT, WHEN LINKING TO OR OTHERWISE ACCESSING OR USING A THIRD-PARTY WEBSITE, YOU ARE RESPONSIBLE FOR: (I) TAKING PRECAUTIONS AS NECESSARY TO PROTECT YOU AND YOUR COMPUTER SYSTEMS FROM VIRUSES, WORMS, TROJAN HORSES, MALICIOUS CODE AND OTHER HARMFUL OR DESTRUCTIVE CONTENT; (II) ANY DOWNLOADING, USE OR PURCHASE OF MATERIAL THAT IS OBSCENE, INDECENT, OFFENSIVE, OR OTHERWISE OBJECTIONABLE OR UNLAWFUL, OR THAT CONTAINS TECHNICAL INACCURACIES, TYPOGRAPHICAL MISTAKES AND OTHER ERRORS; (III) ANY DOWNLOADING, USE OR PURCHASE OF MATERIAL THAT VIOLATES THE PRIVACY OR PUBLICITY RIGHTS, OR INFRINGES THE INTELLECTUAL PROPERTY AND OTHER PROPRIETARY RIGHTS OF THIRD PARTIES, OR THAT IS SUBJECT TO ADDITIONAL TERMS AND CONDITIONS, STATED OR UNSTATED; (IV) ALL FINANCIAL CHARGES OR OTHER LIABILITIES TO THIRD PARTIES RESULTING FROM TRANSACTIONS OR OTHER ACTIVITIES; AND (V) READING AND UNDERSTANDING ANY TERMS OF USE OR PRIVACY POLICIES THAT APPLY TO THOSE THIRD-PARTY WEBSITES. |
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| 10. |
PROJECT POSTING POLICY
It is essential that Employers review the Project Posting Policy to ensure that a project posting follows the standards of the ESalesGuru Marketplace. The ESalesGuru team closely evaluates all projects posted in the marketplace and reserves the right to remove those projects that do not adhere to the following guidelines. Any violation of the policy may result in suspension or termination of Your ESalesGuru Account. For additional information, see the section concerning Posting Information or Content, below. |
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Pornographic, Adult-Themed, or Internet Gambling projects are Prohibited. ESalesGuru strictly prohibits any pornographic, adult-themed or Internet gambling project postings, bid proposals, or message board correspondence in the ESalesGuru Marketplace. |
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Part-Time or Full-Time Employment is Prohibited. ESalesGuru does not accept postings in our marketplace for part-time or full-time employment. ESalesGuru only accepts project postings that seek freelance or contract-based positions. Project postings for ongoing or long-term contract positions are permitted, but Employers must NOT perform the following tasks for ESalesGuru Professionals: |
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Withhold Income Tax, Social Security or Medicare |
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Provide Medical, Dental and Other Benefits |
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Pay Social Security, Medicare, Unemployment, and/or Workers Comp |
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Those activities would imply an "employment" relationship that falls outside the scope of the permitted activities on the Website. |
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One Hundred Percent Commission is Prohibited. ESalesGuru does not accept 100% commission project postings. Employers must provide an appropriate hourly, weekly or monthly rate to go along with the proposed commission. Where appropriate, Employers may provide an hourly, weekly or monthly rate plus a commission percentage. In addition, barter or other non-fee arrangements in exchange for services will not be permitted. |
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Project Postings must be Reasonable and Proportionate. Project postings must include reasonable and realistic budgets that are in proportion to the work and skills involved. Professionals will not accept unreasonable project budgets that fall well below the true value of the skills and services being provided. Employers that are unsure of a project's budget requirements should select "uncertain" or "prefer not to disclose" in the Budget Amount Field in the project posting form. For additional information and guidance, Employers can click on the "Question Mark" besides the Budget Amount field or contact our Helpdesk. |
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Bids must be Formally Accepted. Employers that decided to use an ESalesGuru Professional for their project must formally select the Professional's bid by selecting the "Accept Bid" button in the ESalesGuru Marketplace. This action formalizes the Employer/Professional contractor relationship. Once the bid has been accepted, an Employer is able to contact a Professional through their personal message board to commence with the project. |
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Fake or Misleading Projects are Prohibited. All fake or misleading projects, or postings that indicate intent to never accept a bid or complete the project, will be immediately removed from the ESalesGuru Marketplace. |
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Projects must be Posted in Only One Skill Category. ESalesGuru does not accept duplicate postings across different skill categories. For example, a project related to Search Engine Marketing must just be posted in that respective skill category. |
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All Projects Must Provide Adequate Detail. ESalesGuru does not accept project postings that contain insufficient explanation or detail or vague requirements or expectations. Employers that need assistance with project posting should contact our Help Desk. |
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| 11. |
PROJECT BIDDING POLICY
It is essential that Professionals review the Project Bidding Policy to ensure that a bid or proposal follows the standards of the ESalesGuru Marketplace. The ESalesGuru team closely evaluates all bids posted in the marketplace and reserves the right to remove those bids/proposals that do not adhere to the following guidelines. Any violation of the policy may result in suspension or termination of your ESalesGuru Account. For additional information, see the section concerning Posting Information or Content, below. |
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Inappropriate or Fraudulent Bids are Prohibited. Bids that are unreasonably low or appear to be a joke will be removed from the ESalesGuru Marketplace. Any bids submitted with the intent to commit fraud will result in the permanent termination of Your Account. |
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Free Services Are Prohibited. Professionals are strictly prohibited from offering their services free of charge in exchange for other services or benefits. ESalesGuru only accepts fee-for-service agreements in our marketplace. Where appropriate, a Professional may propose a commission in addition to an hourly, weekly or monthly rate. However, 100% commission projects are not permitted. |
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All Bids Must Be Reasonably Accurate. Professionals are responsible for submitting bids that reasonably and accurately relate to the project requirements. Professionals that require further information or have questions regarding the project should post a message to the Employer seeking clarification. If the Employer has a closed message board, Professionals should put together a preliminary bid that includes a request seeking further information. Professionals should review our "Bidding Tips" before submitting a bid. |
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Professionals must Accurately Asses their Qualifications. Professionals are responsible for assessing their qualifications, and for deciding whether their qualifications and experience fit the project expectations. |
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Professionals must accept only Contract-based Positions. ESalesGuru only accepts freelance or contract-based positions in our marketplace. Professionals must not accept a position of employment through our marketplace which requires that the Employer perform and of the following tasks: |
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Withhold Income Tax, Social Security or Medicare |
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Provide Medical, Dental or Other Benefits |
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Pay Social Security, Medicare, Unemployment, and/or Workers Comp |
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Those activities would imply an "employment" relationship that falls outside the scope of the permitted activities on the Website. |
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| 12. |
BILLING AND PAYMENT |
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Membership Fees
The Premium Membership Package (annual or monthly) includes the following features: |
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Access to a database of Internet Marketing and related projects. |
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The ability to bid on projects in up to four skill categories. All accepted bids are free - NO lead charges |
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Promotion of profile (up to a maximum of 4 profiles) in the ESalesGuru Professional Directory. |
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Email alert notification for new projects in selected skill categories. |
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A secure Members Account to manage bids, project activity and invoice process. |
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Internet Marketing resources/tools to aid in developing business. |
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Access to the Online Career Center that targets the most current positions in the Internet Marketing Industry. |
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The Elite and Elite Plus Membership Packages(annual or monthly) include ALL the same features as the Premium Membership Package, plus the following: |
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The ability to bid on projects in up to Six skill categories(Elite) and unlimited categories (Elite Plus). |
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Promotion of profile(s) in the ESalesGuru Professional Directory (up to a maximum of 6 profiles for Elite and unlimited categories for Elite Plus). |
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Unrestricted Bidding Status - full access to closed bids for high quality and high value Elite projects. |
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The ESalesGuru Evaluation Team's pre-qualification process for all applicants. Successful applicants receive full endorsement by ESalesGuru and will showcase the Elite Logo in their profile and bid listings. |
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Top positioning in ESalesGuru Professional Directory and the project bid listings viewed by Employers. |
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ESalesGuru also offers the "Access Professional Membership which is Free of charge and includes 1 complimentary profile, weekly email alert of latest projects and access to career center and pertinent Internet Marketing resources. Access members are ONLY able to bid on projects if they are first invited by an Employer. Access Members can chose upgrade to a paid membership at any point.
Professionals have the choice between our Access, Premium, Elite and Elite Plus Membership Packages. The Paid packages are billed on a reoccurring basis, either monthly or annually. Professionals can choose to stop the reoccurring billing process by simply contacting the HelpDesk prior to their expiration date and communicating that they do not want to renew their membership at this time. Otherwise their Credit Card (Visa, MasterCard or American Express) will automatically be rebilled once their membership expires. Please refer to ESalesGuru.com for the current membership pricing. If you are a Professional, You hereby represent and warrant that your Billing Information will be complete and accurate, and that You will update that information as necessary to maintain its completeness and accuracy. |
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Project Fees
Employers that have formally selected a Professional's bid will automatically receive via email or our message board an invoice for a $15 Project Fee. All Project fees must be paid by 30 days from the invoice date. If the Project Fee is paid within 5 days of receiving the invoice, the fee will be reduced to $10. Employers that accept more than one bid will only be charged one $15 Project Fee. Employers have the choice of paying invoices via credit card (Visa, MasterCard, or American Express) or Pay-Pal. |
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Billing System for Professionals
The ESalesGuru billing system enables Professionals to create, submit and track all project invoices in an easy to follow format. Professionals that have completed a project or specific milestones must create and submit an invoice through the "Finance Manager" feature of their Members Homepage. The ESalesGuru Payment System (EPS) enables Employers to review invoices. Employers are required to process and send payment within 30 days upon receipt of the invoice. |
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Payment System for Employers
The ESalesGuru Payment System enables Employers to track and process payment for all invoices received from Professionals. Professionals that have completed a project or specific milestones must send an invoice through the ESalesGuru billing system, and all invoices cam be effectively tracked and archived through the "Finance Manager" feature of their Members Homepage. |
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| 13. |
POSTING INFORMATION OR CONTENT
You agree to provide true, accurate and complete information whenever you post any information or content on the Website, including without limitation project postings, project bids, personal profiles and feedback.
You represent and warrant that you shall not use the Website or Services to upload, post, transmit, display, perform or distribute any content, information or materials that: (a) are libelous, defamatory, abusive, or threatening, excessively violent, harassing, obscene, lewd, lascivious, filthy, pornographic, may constitute child pornography, may solicit personal information from or exploit in a sexual or violent manner anyone under the age of 18, or are otherwise objectionable; (b) advocate or encourage conduct that could constitute a criminal offense, give rise to civil liability, or otherwise violate any applicable local, state, national, or foreign law or regulation; (c) violate any provision of this Agreement or any other ESalesGuru agreement or policy (collectively, "Objectionable Content"). ESalesGuru may monitor the Website for Objectionable Content. Without limiting any of its other remedies, ESalesGuru reserves the right to terminate Your use of the Website and Services or Your uploading, posting, transmission, display, performance or distribution of Objectionable Content. ESalesGuru, in its sole discretion, may delete any Objectionable Content from its servers. ESalesGuru intends to cooperate fully with any law enforcement officials or agencies in the investigation of any violation of this Agreement or of any applicable laws. |
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| 14. |
FEEDBACK SYSTEM
The Feedback System allows Employers and Professionals to send, receive and track all relevant feedback through the "Project Manager" feature of their Members Homepage. You understand and agree that the Website will contain public feedback from Users with whom you have transacted. This built-in feedback system provides the necessary accountability and quality control for both Employers and Professionals using the ESalesGuru Marketplace, and ESalesGuru provides the Feedback System as means through which Users can express their feedback publicly. ESalesGuru does not monitor or censor this feedback or investigate any remarks posted by Users for accuracy or reliability unless a User brings a posting to ESalesGuru's attention. You agree to report violations or abuses of our feedback system immediately by contacting the Help Desk, and agree not to take any actions that undermine the integrity of the feedback system, including without limitation the following: |
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The submission of feedback that contains profane, vulgar or racist language. Feedback that contains insulting, threatening or derogatory language or content is not acceptable and may be removed. |
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The submission of inaccurate feedback with the intent to harm another Member's credibility and reputation. |
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The use of "dummy" memberships or other Members' accounts to submit illegitimate feedback about Yourself or another member. |
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The improper solicitation of positive feedback, e.g. a Professional offering FREE services in exchange for a positive rating and/or feedback. Any bogus feedback will be removed. |
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The exchange of feedback with another Member for the purpose of enhancing Your overall rating. |
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ESalesGuru reserves the right to remove feedback that contains any of the above elements. In addition, ESalesGuru may also choose to remove feedback under the following circumstances: |
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Where both the Employer and Professional send an email requesting that the Feedback record be removed; or |
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Where a court ruling or settlement dispute agreement (provided by a recognized and certified dispute resolution service) has deemed that the disputed feedback is slanderous, libelous, defamatory or otherwise illegal. |
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Please contact our Help Desk if you would like to report a potential abuse or violation of the ESalesGuru feedback system. |
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| 15. |
CONSENT TO RECEIVE EMAIL
By using the Website and the Services, You consent to receive periodic email communications in connection with the Services. If you sign up for any ESalesGuru email alert or other email publications, you thereby consent to receive periodic email communications from ESalesGuru regarding Internet marketing resources, special announcements regarding upcoming industry events, new product offers and other matters. |
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| 16. |
USE OF SOFTWARE
ESalesGuru may make certain software available to You from the Website. If You download software from the Website, the software, including all files and images contained in or generated by the software, and accompanying data (collectively, "Software") are deemed to be licensed to You by ESalesGuru, for Your personal, noncommercial use only. ESalesGuru does not transfer either the title or the intellectual property rights to the Software, and ESalesGuru and ESalesGuru's licensors retain full and complete title to the Software as well as all intellectual property rights therein. Except as specifically provided in this Agreement, You may not sell, redistribute, or reproduce the Software, nor may You decompile, reverse-engineer, disassemble or otherwise convert the Software to a human-perceivable form. |
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| 17. |
REFUND POLICY
Purchases of Services will not be refunded except as specifically set forth on the Website or in any other agreement between You and ESalesGuru or between You and any provider of Third-Party Services. All purchases or service fees are final. |
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| 18. |
PROHIBITED USES
ESalesGuru imposes certain restrictions on Your use of the Website and the Services. You represent and warrant that you will not: (a) violate or attempt to violate any security features of the Website or Services; (b) access content or data not intended for You, or log onto a server or account that You are not authorized to access; (c) attempt to probe, scan, or test the vulnerability of the Services, the Website, or any associated system or network, or breach security or authentication measures without proper authorization; (d) interfere or attempt to interfere with the use of the Website or Services by any other user, host or network, including, without limitation by means of submitting a virus, overloading, "flooding," "spamming," "mail bombing," or "crashing"; (e) use the Website or Services to send unsolicited e-mail, including without limitation promotions or advertisements for products or services; (f) forge any TCP/IP packet header or any part of the header information in any e-mail or in any uploading or posting to, or transmission, display, performance or distribution by means of, the Website or Services; or (g) attempt to modify, reverse-engineer, decompile, disassemble or otherwise reduce or attempt to reduce to a human-perceivable form any of the source code used by the ESalesGuru Parties in providing the Website or Services. Any violation of this section may subject You to civil and/or criminal liability. |
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| 19. |
INTELLECTUAL PROPERTY |
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Compliance with Law
You represent and warrant that, when using the Website and Services, You will obey the law and respect the intellectual property rights of others. Your use of the Website and Services is at all times governed by and subject to laws regarding copyright ownership and use of intellectual property generally. You agree not to upload, post, transmit, display, perform or distribute any content, information or other materials in violation of any third party's copyrights, trademarks, or other intellectual property or proprietary rights. YOU SHALL BE SOLELY RESPONSIBLE FOR ANY VIOLATIONS OF ANY LAWS AND FOR ANY INFRINGEMENTS OF THIRD-PARTY RIGHTS CAUSED BY YOUR USE OF THE WEBSITE AND SERVICES. THE BURDEN OF PROVING THAT CONTENT, INFORMATION OR OTHER MATERIALS DO NOT VIOLATE ANY LAWS OR THIRD-PARTY RIGHTS RESTS SOLELY WITH YOU. |
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Trademarks
ESalesGuru, the ESalesGuru logo and (the "ESalesGuru Marks") are trademarks or registered trademarks of ESalesGuru. Other trademarks, service marks, graphics, logos and domain names appearing on the Website may be the trademarks of third parties. Neither Your use of the Website and Services nor this Agreement grant You any right, title or interest in or to, or any license to reproduce or otherwise use, the ESalesGuru Marks or any third-party trademarks, service marks, graphics, logos or domain names. You agree that any goodwill in the ESalesGuru Marks generated as a result of Your use of the Website and Services will inure to the benefit of ESalesGuru, and You agree to assign, and hereby do assign, all such goodwill to ESalesGuru. You shall not at any time, nor shall You assist others to, challenge ESalesGuru's right, title, or interest in or to, or the validity of, the ESalesGuru Marks. |
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| c |
Copyrighted Materials; Copyright Notice
All Content and other materials available through the Website and Services, including without limitation the ESalesGuru logo, design, text, graphics, and other files, and the selection, arrangement and organization thereof, are either owned by ESalesGuru or are the property of Third-Party Service Providers or ESalesGuru's other licensors and suppliers. Except as explicitly provided, neither Your use of the Website and Services nor this Agreement grant You any right, title or interest in or to any such materials. Copyright © 2006 to the present, ESalesGuru, Inc. ALL RIGHTS RESERVED. |
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| d |
DIGITAL MILLENNIUM COPYRIGHT ACT (DMCA) POLICY
As ESalesGuru asks others to respect ESalesGuru's intellectual property rights, ESalesGuru respects the intellectual property rights of others. If you have evidence, know, or have a good faith belief that your rights or the rights of a third party have been violated and you want ESalesGuru to delete, edit, or disable the material in question, you must provide ESalesGuru with all of the following information: (a) a physical or electronic signature of a person authorized to act on behalf of the owner of the exclusive right that is allegedly infringed; (b) identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works are covered by a single notification, a representative list of such works; (c) identification of the material that is claimed to be infringed or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit ESalesGuru to locate the material; (d) information reasonably sufficient to permit ESalesGuru to contact you, such as an address, telephone number, and if available, an electronic mail address at which you may be contacted; (e) a statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and (f) a statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. For this notification to be effective, you must provide it to ESalesGuru's designated agent at:
DMCA AGENT
ESalesGuru Ventures, Ltd.
230-120 Summit Drive
Kamloops, BC V2C 6M1
Canada
abuse@esalesguru.com |
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| 20. |
DISCLAIMERS; LIMITATION OF LIABLITY |
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NO WARRANTIES
ESalesGuru, ON BEHALF OF ITSELF AND ITS THIRD-PARTY SERVICE PROVIDERS, LICENSORS AND SUPPLIERS, HEREBY DISCLAIMS ALL WARRANTIES. THE WEBSITE AND SERVICES ARE PROVIDED "AS IS" AND "AS AVAILABLE." TO THE MAXIMUM EXTENT PERMITTED BY LAW, ESG, ON BEHALF OF ITSELF AND ITS THIRD-PARTY SERVICE PROVIDERS, LICENSORS AND SUPPLIERS, EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE WEBSITE, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT. NEITHER ESG NOR ITS THIRD-PARTY SERVICE PROVIDERS, LICENSORS OR SUPPLIERS WARRANTS THAT THE WEBSITE OR THE SERVICES WILL MEET YOUR REQUIREMENTS OR THAT THE OPERATION OF THE WEBSITE OR THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. NEITHER ESG NOR ITS THIRD-PARTY SERVICE PROVIDERS, LICENSORS OR SUPPLIERS HAS ANY LIABILITY WHATSOEVER FOR YOUR USE OF THE WEBSITE OR SERVICES. |
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YOUR RESPONSIBILITY FOR DAMAGE
YOU AGREE THAT YOUR USE OF THE WEBSITE AND SERVICES IS AT YOUR SOLE RISK. YOU WILL NOT HOLD ESG OR ITS THIRD-PARTY SERVICE PROVIDERS, LICENSORS AND SUPPLIERS, AS APPLICABLE, RESPONSIBLE FOR ANY DAMAGE THAT RESULTS FROM YOUR ACCESS TO OR USE OF THE WEBSITE, INCLUDING WITHOUT LIMITATION ANY DAMAGE TO ANY OF YOUR COMPUTERS OR DATA. THE INFORMATION AND SERVICES MAY CONTAIN BUGS, ERRORS, PROBLEMS OR OTHER LIMITATIONS. |
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YOUR RESPONSIBILITY FOR DEFAMATORY COMMENTS
YOU AGREE AND UNDERSTAND THAT YOU MAY BE HELD LEGALLY RESPONSIBLE FOR DAMAGES SUFFERED BY OTHER ESALESGURU USERS OR THIRD PARTIES AS THE RESULT OF ANY REMARKS, INFORMATION, FEEDBACK OR OTHER CONTENT POSTED OR MADE AVAILABLE ON THE WEBSITE THAT IS DEEMED DEFMATORY OR OTHERWISE LEGALLY ACTIONABLE. UNDER THE FEDERAL COMMUNICATIONS ACT OF 1996, ESALESGURU IS NOT LEGALLY RESPONSIBLE, NOR CAN IT BE HELD LIABLE FOR DAMAGES OF ANY KIND, ARISING OUT OF OR IN CONNECTION TO ANY DEFAMATORY OR OTHERWISE LEGALLY ACTIONABLE REMARKS, INFORMATION, FEEDBCK OR OTHER CONTENT POSTED OR MADE AVAILABLE ON THE WEBSITE. |
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LIMITATION OF LIABILITY
THE LIABILITY OF ESALESGURU AND ITS THIRD-PARTY SERVICE PROVIDERS, LICENSORS AND SUPPLIERS IS LIMITED. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL ESG OR ITS THIRD-PARTY SERVICE PROVIDERS, LICENSORS OR SUPPLIERS BE LIABLE FOR DAMAGES OF ANY KIND (INCLUDING, BUT NOT LIMITED TO, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, LOST PROFITS, LOST DATA OR CONFIDENTIAL OR OTHER INFORMATION, LOSS OF PRIVACY, FAILURE TO MEET ANY DUTY INCLUDING WITHOUT LIMITATION OF GOOD FAITH OR OF REASONABLE CARE, NEGLIGENCE, OR OTHERWISE, REGARDLESS OF THE FORESEEABILITY OF THOSE DAMAGES OR OF ANY ADVICE OR NOTICE GIVEN TO ESG OR ITS THIRD-PARTY SERVICE PROVIDERS, LICENSORS AND SUPPLIERS) ARISING OUT OF OR IN CONNECTION WITH YOUR USE OF THE WEBSITE OR SERVICES. THIS LIMITATION SHALL APPLY REGARDLESS OF WHETHER THE DAMAGES ARISE OUT OF BREACH OF CONTRACT, TORT, OR ANY OTHER LEGAL THEORY OR FORM OF ACTION. ADDITIONALLY, THE MAXIMUM LIABILITY OF ESALESGURU AND ITS THIRD-PARTY SERVICE PROVIDERS, LICENSORS AND SUPPLIERS TO YOU UNDER ALL CIRCUMSTANCES WILL BE EQUAL TO THE AGGREGATE PRICE YOU PAID TO ESALESGURU DURING THE YEAR PRECEDING THE INCIDENT OR INCIDENTS GIVING RISE TO SUCH LIABILITY. YOU AGREE THAT THIS LIMITATION OF LIABILITY REPRESENTS A REASONABLE ALLOCATION OF RISK AND US A FUNDAMENTAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN ESG AND YOU. THE WEBSITE AND SERVICES WOULD NOT BE PROVIDED WITHOUT SUCH LIMITATIONS. |
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APPLICATION
THE ABOVE DISCLAIMERS, WAIVERS AND LIMITATIONS DO NOT IN ANY WAY LIMIT ANY OTHER DISCLAIMER OF WARRANTIES OR ANY OTHER LIMITATION OF LIABILITY IN ANY OTHER AGREEMENT BETWEEN YOU AND ESALESGURU OR BETWEEN YOU AND ANY OF ESALESGURU'S THIRD-PARTY SERVICE PROVIDERS, LICENSORS AND SUPPLIERS. SOME JURISDICTIONS MAY NOT ALLOW THE EXCLUSION OF CERTAIN IMPLIED WARRANTIES OR THE LIMITATION OF CERTAIN DAMAGES, SO SOME OF THE ABOVE DISCLAIMERS, WAIVERS AND LIMITATIONS OF LIABILITY MAY NOT APPLY TO YOU. UNLESS LIMITED OR MODIFIED BY APPLICABLE LAW, THE FOREGOING DISCLAIMERS, WAIVERS AND LIMITATIONS SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED, EVEN IF ANY REMEDY FAILS ITS ESSENTIAL PURPOSE. ESALESGURU'S THIRD-PARTY SERVICE PROVIDERS, LICENSORS AND SUPPLIERS ARE INTENDED THIRD-PARTY BENEFICIARIES OF THESE DISCLAIMERS, WAIVERS AND LIMITATIONS. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU THROUGH THE WEBSITE OR OTHERWISE SHALL ALTER ANY OF THE DISCLAIMERS OR LIMITATIONS STATED IN THIS SECTION. |
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| 21. |
GENERAL REPRESENTATION AND WARRANTY
You represent and warrant that Your use of the Website and Services will be in accordance with this Agreement and any other ESalesGuru policies, and with any applicable laws or regulations. |
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| 22. |
IDEMNITY BY YOU
You agree to defend, indemnify and hold harmless ESalesGuru and its officers, directors, employees, agents, affiliates, representatives, sublicensees, successors, assigns, contractors and Third-Party Service Providers (collectively, the "ESalesGuru Parties") from and against any and all claims, actions, demands, causes of action and other proceedings (collectively, "Claims"), including but not limited to legal costs and fees, arising out of or relating to: (i) Your breach of this Agreement, including without limitation any representation or warranty contained in this Agreement; (ii) Your access to or use of the Website or Services; (iii) Your provision to ESalesGuru or any of the ESalesGuru Parties of information or other data; or (iv) Disputes between Professionals and Employers. The ESalesGuru Parties will have the right, but not the obligation, to participate through counsel of their choice in any defense by You of any Claim as to which You are required to defend, indemnify or hold harmless the ESalesGuru Parties. You may not settle any Claim without the prior written consent of the concerned ESalesGuru Parties. |
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| 23. |
GOVERNING LAW; JURISDICTION AND VENUE
The Website, Services, all advertising relating thereto and this Agreement, including without limitation this Agreement's interpretation, shall be treated as though this Agreement were executed and performed in [Kamloops], [British Columbia, Canada] and shall be governed by and construed in accordance with the laws of the State of [British Columbia] without regard to its conflict of law principles. ANY CAUSE OF ACTION BY YOU ARISING OUT OF OR RELATING TO THE WEBSITE, SERVICES, ALL ADVERTISING RELATING THERETO, OR THIS AGREEMENT MUST BE INSTITUTED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION AROSE OR BE FOREVER WAIVED AND BARRED. ALL ACTIONS SHALL BE SUBJECT TO THE LIMITATIONS SET FORTH IN ABOVE. The language in this Agreement shall be interpreted in accordance with its fair meaning and not strictly for or against either party. THE PROPER VENUE FOR ANY JUDICIAL ACTION ARISING OUT OF OR RELATING TO THE WEBSITE, SERVICES, ALL ADVERTISING RELATING THERETO, OR THIS AGREEMENT WILL BE THE STATE AND FEDERAL COURTS LOCATED IN OR NEAREST TO [KAMLOOPS] [BRITISH COLUMBIA, CANADA]. THE PARTIES HEREBY STIPULATE TO, AND AGREE TO WAIVE ANY OBJECTION TO, THE PERSONAL JURISDICTION AND VENUE OF SUCH COURTS, AND FURTHER EXPRESSLY SUBMIT TO EXTRATERRITORIAL SERVICE OF PROCESS. |
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| 24. |
SPECIAL ADMONITIONS FOR INTERNATIONAL USE
Use of the Website and Services is subject to United States export controls. You agree that you will not directly or indirectly (i) provide or otherwise make available Services; or (ii) download or otherwise export, re-export or knowingly permit the export or re-export of Software to: |
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A national resident of (or into) Cuba, Iraq, Libya, North Korea, Iran, Syria or any other country to which the U.S. has embargoed goods; or |
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Anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Commerce Department's Table of Deny Orders. |
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By using the Website or Services, you represent and warrant that you are not located in, under the control of, or a national or resident of any such country or on any such list. |
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| 25. |
TERMINATION |
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BY ESalesGuru
WITHOUT LIMITING ANY OTHER PROVISION OF THIS AGREEMENT, ESG RESERVES THE RIGHT TO, IN ESalesGuru'S SOLE DISCRETION AND WITHOUT NOTICE OR LIABILITY, DENY USE OF THE WEBSITE AND/OR SERVICES TO ANY PERSON FOR ANY REASON OR FOR NO REASON AT ALL, INCLUDING WITHOUT LIMITATION FOR ANY BREACH OR SUSPECTED BREACH OF ANY REPRESENTATION, WARRANTY OR COVENANT CONTAINED IN THIS AGREEMENT, OR OF ANY APPLICABLE LAW OR REGULATION. |
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AUTOMATIC TERMINATION UPON BREACH BY YOU
This Agreement shall automatically terminate in the event that You breach any of this Agreement's representations, warranties or covenants. Such termination shall be automatic, and shall not require any action by ESalesGuru. |
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BY YOU
You may terminate this Agreement and Your rights hereunder at any time, for any or no reason at all, by providing to ESalesGuru notice of Your intention to do so, in the manner required by this Agreement. |
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EFFECT OF TERMINATION
Any termination of this Agreement automatically terminates all rights and licenses granted to You under this Agreement, including all rights to use the Website and Services. Upon termination, ESalesGuru may, but has no obligation to, in ESalesGuru's sole discretion, delete from ESalesGuru's systems Your Personal Information and any other files or information that You made available to ESalesGuru or that otherwise relate to Your use of the Website or Services. Subsequent to termination, ESalesGuru reserves the right to exercise whatever means its deems necessary to prevent Your unauthorized use of the Website and Services, including without limitation technological barriers such as IP mapping and direct contact with Your Internet Service Provider.
Upon termination, ESalesGuru will delete from ESalesGuru's systems Your pending project postings and bids. In addition, ESalesGuru will contact each Employer or Professional with which You are currently in a contractual relationship and notify them of Your termination. Work on uncompleted or on-going projects must continue outside the ESalesGuru Marketplace. If You are an Employer, and upon notification of a Professional's termination, You wish to sever the existing contractual relationship, You hereby agree to pay to the Professional the fees for any services performed before the effective date of termination on a time and materials basis. If the fees for the applicable services are to be paid on a milestone basis, such fees will not exceed the amount associated with the next uncompleted milestone. |
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LEGAL ACTION
If ESalesGuru, in ESalesGuru's discretion, takes legal action against You in connection with any actual or suspected breach of this Agreement, ESalesGuru will be entitled to recover from You as part of such legal action, and You agree to pay, ESalesGuru's reasonable costs and attorneys' fees incurred as a result of such legal action. The ESalesGuru Parties will have no legal obligation or other liability to You or to any third party arising out of or relating to any termination of this Agreement. |
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SURVIVAL
Upon termination, all rights and obligations created by this Agreement will terminate, except that Sections 1-3, 5, 8-9, 19-25 and 27-28 will survive any termination of this Agreement. For clarification, termination of this Agreement will not relieve You of Your obligation to pay any fees owed ESalesGuru or any Third-Party Service Provider. |
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| 26. |
GENERAL |
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ENTIRE AGREEMENT; AMENDMENT
This Agreement constitutes the entire agreement between ESalesGuru and You concerning Your use of the Websites. This Agreement and any other written agreements executed between You and ESalesGuru or any Third-Party Service Providers constitute the entire agreement concerning Your use of the Services. This Agreement may only be modified by a written amendment signed by an authorized executive of ESalesGuru or by the unilateral amendment of this Agreement by ESalesGuru and by the posting by ESalesGuru of such amended version. |
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SEVERABILITY; WAIVER
If any part of this Agreement is held invalid or unenforceable, that part will be construed to reflect the parties' original intent, and the remaining portions will remain in full force and effect. A waiver by either party of any term or condition of this Agreement or any breach thereof, in any one instance, will not waive such term or condition or any subsequent breach thereof. |
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ASSIGNMENT
This Agreement and all of Your rights and obligations hereunder will not be assignable or transferable by You without the prior written consent of ESalesGuru. This Agreement will be binding upon and will inure to the benefit of the parties, their successors and permitted assigns. |
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RELATIONSHIP
You and ESalesGuru are independent contractors, and no agency, partnership, joint venture or employee-employer relationship is intended or created by this Agreement. |
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THIRD-PARTY BENEFICIARIES
Except for the ESalesGuru Parties as and to the extent set forth in Sections 12, 14, 18 and 20(e), and ESalesGuru's Third-Party Service Providers, licensors and suppliers as and to the extent expressly set forth in Section 16, there are no third-party beneficiaries to this Agreement. |
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IRREPARABLE INJURY
You acknowledge and agree that any actual or threatened breach of this Agreement or infringement of proprietary or other third party rights by You would cause irreparable injury to ESalesGuru and ESalesGuru's Third-Party Service Providers, licensors and suppliers, and would therefore entitle ESalesGuru or ESalesGuru's Third-Party Service Providers, licensors or suppliers, as the case may be, to injunctive relief. |
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NOTICE
All notices required or permitted to be given under this Agreement must be in writing. ESalesGuru shall give any notice by email sent to the most recent email address, if any, provided by the intended recipient to ESalesGuru. YOU BEAR THE SOLE RESPONSIBILITY OF ENSURING THAT YOUR EMAIL ADDRESS ON FILE WITH ESalesGuru IS ACCURATE AND CURRENT, AND NOTICE TO YOU SHALL BE DEEMED EFFECTIVE UPON THE SENDING BY ESG OF AN EMAIL TO THAT ADDRESS. You shall give any notice to ESalesGuru by means of: (i) hand delivery; (ii) certified U.S. mail, return receipt requested, postage prepaid; or (iii) overnight courier, each as send to All notices to ESalesGuru will be deemed received as follows: (i) if by hand-delivery, on the date of delivery; (ii) if delivery by U.S. mail, on the date of receipt appearing on a return receipt card; or (iii) if by overnight courier, on the date the receipt is confirmed by such courier service. You agree that any notice received from ESalesGuru electronically satisfies any legal requirement that such notice be in writing. | | |
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