Effective May 10, 2007
1. Introduction
These Terms of Use explain and establish the contractual, legally binding agreement between Blue Chip Expert, a California corporation having its principal place of business in San Mateo, California ("BCE"), and you the Member (each individually a "Party" and collectively the "Parties") governing each Member’s use of BlueChipExpert.com and all other Web sites operated by BCE and its legal affiliates (the "BCE Web Sites") and the services provided by BCE, either through the BCE Web Sites or otherwise ("BCE Services"). As used herein, "you" and "Member" refer to the person or entity that is using the BCE Services or BCE Web Sites, including without limitation those registering with BCE as an Expert, Hiring Manager, Networker, or combination thereof as the case may be.
Your use of the BCE Web Sites or BCE Services indicates your acceptance of these Terms of Use. If you do not agree to these Terms of Use or if you do not have the right to legally enter into this agreement, you may not use the BCE Web Sites or BCE Services.
BCE may amend these Terms of Use at any time by updating this page. Any changes to these Terms of Use will also be binding on you. You agree that your continued use of the BCE Web Sites or BCE Services shall constitute your agreement to such amendments to these Terms of Use
A Hiring Manager includes anyone who registers on the BCE Sites whether as Hiring Manager, Expert or Networker, and regardless of registration, anyone who utilizes the BCE Services in any way to locate individuals for various purposes, including the purpose of facilitating in any way that individual’s providing services to a company, person or entity of any type ("Hiring Manager"). Hiring Manager hereby represents and warrants that it has full right and authority necessary to enter into these Terms of Use on behalf of itself, its employer, its employer’s corporate or partnership affiliates, the entity utilizing the Expert’s services or otherwise employing the Expert, and the corporate and partnership affiliates of the entity utilizing the Expert’s services or otherwise employing the Expert (collectively, the "Hiring Manager Affiliates"), and that the Hiring Manager Affiliates shall be legally bound by all obligations of the Hiring Manager set forth in these Terms of Use.
If you have any questions about these Terms of Use, you may send an email to us at info@bluechipexpert.com.
2. Services, Generally
As more fully described below, BCE assists Hiring Managers in finding the best candidates among the Experts registered on the BCE Web Sites by (i) giving Hiring Managers access to the database of Experts on the BCE Web Sites and (ii) facilitating introductions and interviews between Hiring Managers and Experts. By registering, Experts have the opportunity to be selected by Hiring Managers for job assignments on an independent contractor, non-employee basis ("Assignments"), or for part-time or full-time employment ("Employment"). Please note that BCE does not employ Experts. Instead, BCE facilitates the search and evaluation process between Hiring Managers and Experts. Finally, BCE provides an opportunity for Networkers (who may or may not be Experts or Hiring Managers themselves) to earn referral fees in the event that Members they refer to BCE become involved in Assignments or Employment as an Expert or Hiring Manager.
3. Introduction, Engagement and Payment Process; BCE’s Fees
A Hiring Manager may select one of two methods to meet and engage an Expert for an Assignment or Employment:
- Full Service Introduction Process
- Automated Introduction Process
The Hiring Manager may initiate contact with an Expert by submitting a request to BCE, either through the BCE Web Sites, by phone, by email or by other means for a full service introduction to the Expert ("Full Service Introduction"). Upon receipt of the request, a BCE account manager will pre-screen the Expert by contacting the selected Expert, which includes confirming his/her availability and level of interest in the Assignment. With the Expert’s consent, the BCE account manager will present the Expert’s profile and resume to the Hiring Manager. Once the Expert’s identity and/or contact information is disclosed to the Hiring Manager, the Hiring Manager is no longer eligible for the Automated Process set forth in part (b) below with respect to such Expert, and any engagement of such Expert by the Hiring Manager is subject to the terms governing the Full Service Introduction Process as set forth in this part (a).
After the Full Service Introduction, BCE’s account manager or BCE’s third party administrator (BCE or the third party administrator acting in this capacity and/or otherwise as the employer of record hereinafter referred to as the "TPA") will arrange the initial and follow–up interviews between the Hiring Manager and Expert. If the Hiring Manager wishes to engage the Expert on the Assignment and the Expert wishes to accept the Assignment, the Hiring Manager will notify BCE’s account manager. BCE and the Hiring Manager will negotiate the hourly cost to the Hiring Manager’s company for the Expert’s services (the "Bill Rate"). The agreements required to facilitate the Expert’s Assignment will then be executed between the required parties, including without limitation as the case may be, you, the Hiring Manager, the Expert, BCE, the TPA, and others (the "Assignment Agreements").
The TPA may act as the employer-of-record of the Expert and may issue a Form W-2 or Form 1099 with summary of payments paid to the Expert in connection with the Assignment, as determined by BCE. The TPA will also provide certain invoicing and collection services in connection with an Assignment, as set forth below. You acknowledge and agree that BCE is entitled to a fee for its services rendered (the "BCE Engagement Fee"), that the TPA is entitled to a fee for its services rendered (the "TPA Fee"), and that when BCE acts as the TPA, BCE will be entitled to both fees. Hiring Manager hereby acknowledges and agrees that, although BCE or the TPA may provide these services in connection with an Assignment, Hiring Manager is responsible for managing Expert’s work during an Assignment and for paying the Bill Rate.
You acknowledge and agree that BCE is a third party beneficiary of the Assignment Agreements for purposes of amounts owed to BCE including the BCE Engagement Fee, the TPA Fee, the Employment Fee, and the Outside Fee (as such terms are defined in these Terms of Use). Hiring Managers hereby acknowledge and agree that the BCE Engagement Fee, as well as any applicable TPA Fee, Employment Fee or Outside Fee, shall be due and owing to BCE, notwithstanding BCE not being a party to one or more of the Assignment Agreement(s). Hiring Manager agrees to all fees it owes under these Terms of Use, and agrees that this obligation cannot be altered other than through a signed written agreement between Hiring Manager and BCE. In the event that BCE must sue or otherwise exercise its legal rights in order to obtain payment of any amounts due to BCE, including without limitation the BCE Engagement Fee, TPA Fee, Employment Fee, or Outside Fee, from a Hiring Manager, the Hiring Manager shall be liable for BCE’s costs and expenses in doing so, including without limitation BCE’s attorneys’ fees, consultant and expert witness fees.
Upon the Expert’s completion of the defined Assignment milestones or time periods, the Expert will complete a timesheet in the format specified by the TPA ("Timesheet") and submit it to the TPA. The Expert will also submit expense reports for any applicable out of pocket expenses that were directly related to performing the duties of the Assignment. BCE ENCOURAGES ALL EXPERTS TO ENSURE TIMESHEET HOURS ARE ACCURATE PRIOR TO SUBMISSION. BCE AND THE TPA SHALL HAVE NO LIABILITY FOR THE ACCURACY OR COMPLETENESS OF TIMESHEETS.
Upon receipt of the Timesheet, the TPA will send an invoice to the Hiring Manager for collection of payment (the "Invoice"). Within fifteen (15) days of the Hiring Manager’s receipt of the Invoice, the Hiring Manager shall pay the Invoice amount to the TPA. The TPA will pay the Expert after withholding the appropriate sums due BCE, the TPA and any other parties. The TPA reserves the right to pay Expert only after receipt of payment from Hiring Manager (and funds clearance in the case of checks). Expert acknowledges and agrees that BCE and the TPA shall have no responsibility for a Hiring Manager’s failure to pay or late payment, and Expert agrees to solely seek recourse against the Hiring Manager for the performance of any obligation of the Hiring Manager under the Assignment Agreement(s), including without limitation payment for services rendered. Hiring Manager hereby expressly agrees to indemnify, defend and hold BCE and the TPA harmless from and against any and all claims, demands, actions, liability, damages, costs or expenses (including without limitation attorneys’ fees), whether in tort, contract, or otherwise, arising out of or related to the terms of the Expert’s Assignment with Hiring Manager or the performance thereof, or for Hiring Manager’s failure to pay the Bill Rate and any related Expert expenses.
The Hiring Manager hereby acknowledges and agrees that the payment of the Invoice constitutes the Hiring Manager’s acknowledgement of completion of all work covered by such Invoice and the quality, accuracy and thoroughness of the work under the applicable Assignment. If a Hiring Manager disputes any component of the Invoice amount, the Hiring Manager shall pay all undisputed amounts within the time frame set forth above, and the Hiring Manager and Expert will cooperate in good faith to promptly verify any disputed amounts. The Expert hereby agrees that any invoiced amounts disputed by the Hiring Manager will not be payable to Expert until such dispute is resolved. In the event of nonpayment by a Hiring Manager of any Invoice when due that has not been reasonably disputed by the Hiring Manager (even where such non–payment occurs on account of Hiring Manager’s bankruptcy or insolvency), BCE may suspend providing BCE Services or access privileges to such Hiring Manager’s account ("Suspension") until such time as the past due Invoices have been paid in full to the TPA pursuant to the terms of the applicable Invoice. In the event of Suspension, BCE shall not incur any liability whatsoever for any delay affecting any Member arising therefrom.
Due to the nature of hiring requirements and the policies of different corporations, an Expert may be presented with an opportunity to work with a Hiring Manager’s company under payment or invoicing terms that differ from the process described above. Any such terms are subject to the prior written consent of BCE and/or the TPA. Notwithstanding the foregoing, in no event shall any such payment, invoicing or other terms or conditions limit or restrict BCE’s right to the BCE Engagement Fees, Employment Fees, Outside Fees, or the TPA’s or BCE’s right to the TPA Fees, or the Hiring Manager’s obligation to pay such fees.
The Hiring Manager shall notify BCE in the event that a Hiring Manager or the Hiring Manager Affiliates desire to hire an Expert as a part-time employee, a full–time employee, a full time contractor, or on any other full time basis at any time during either of the following time periods (collectively, the "Covered Period"): (a) the twelve (12) months after the date of either the Full Service Introduction between such Hiring Manager and Expert or any other event or occurrence by which the Hiring Manager becomes aware of the Expert through direct or indirect use of the BCE Web Site or BCE Services, or (b) the twelve (12) months after the end of the last Assignment involving such Hiring Manager and Expert. Within fifteen (15) days after the date of such hire (the "Employment Date"), the Hiring Manager shall pay to BCE a sum equal to twenty-five (25%) percent of the cash compensation, including but not limited to base salary and bonus, that the Expert will receive during or which is attributable to the twelve (12) month period following the Employment Date ("Employment Fee"). You further agree to provide BCE within fifteen (15) days of the Employment Date a copy of the offer letter and all similar documents (employment contracts, payment stubs, etc.) setting forth all forms of compensation (base salary, bonuses, incentives) to be paid to the Expert during the Covered Period so that BCE may calculate the Employment Fee. BCE will warrantee the Expert’s duration in the position for sixty (60) days after the Employment Date. Should Expert permanently cease working in all capacities for Company and all Company Affiliates within sixty (60) days after the Employment Date, BCE will at no additional charge provide up to 8 additional qualified candidates. Notwithstanding anything to the contrary on the BCE Web Site or otherwise, and to avoid potential conflicts of interest, employees, agents or representatives of Company or a Company Affiliate who are involved in any respect in the hiring or other placement of an Expert into a position in or for Company or the Company Affiliate, on a full-time employee or other basis, are not eligible for Referral Fees under BCE’s Referral Fee Program. Due to a strategic relationship with Callidus corporation, no referral fees are payable in conjunction with anyone who has been employed by Callidus within the prior 12 months. BCE will not refund any Employment Fees for any reason, including without limitation if the Company or Company Affiliate is not satisfied with the Expert’s performance. You acknowledge and agree that BCE may be involved in the negotiation of the cash compensation that the Expert will receive. You further acknowledge and agree that BCE and the TPA shall have no responsibilities in connection with any such Employment. Without limiting the generality of the foregoing, in no event shall BCE or the TPA be responsible for any invoicing, payment collection and disbursement or Form 1099 or W–2 services in connection with such Employment. Hiring Manager hereby agrees to indemnify, defend and hold BCE and the TPA harmless from and against any and all claims, demands, actions, liability, damages, costs or expenses (including without limitation attorneys’ fees) arising out of or related to such Employment. Hiring Manager further agrees that Employment will not be governed by the terms of the Assignment Agreement(s) and shall instead be governed by the terms of a separate employment agreement between the Hiring Manager and the Expert, subject, however, to the Hiring Manager’s obligation to pay BCE the Employment Fee and/or Outside Fee as set forth in these Terms of Use.
Hiring Managers and Hiring Manager Affiliates are required to notify BCE and pay BCE the applicable BCE Engagement Fee or Employment Fee if they engage or employ an Expert on an independent contractor, temporary, part-time employee, full-time employee or other basis, during the Covered Period. Notwithstanding anything to the contrary in these Terms of Use or otherwise, in the event that the Hiring Manager or Hiring Manager Affiliates have engaged or employed the Expert, on an independent contractor, temporary, part-time employee, full–employee or other basis, during the Covered Period without notifying BCE and paying BCE the applicable BCE Engagement Fees or Employment Fee, the Hiring Manager hereby agrees to pay to BCE, as liquidated damages and not a penalty, an amount ("Outside Fee") equal to the Outside Fee Percentage (defined below) multiplied by the greater of (i) all payments made to such Expert during the Covered Period or (ii) the cash compensation, including but not limited to base salary and bonus, that the Expert will receive during or attributable to the twelve (12) month period following the Employment Date. The "Outside Fee Percentage" is defined as the greater of either thirty-three (33%) percent or the most recent BCE Engagement Fee percentage applicable to an Assignment involving the Hiring Manager and Expert. You agree to provide BCE within fifteen (15) days of the Employment Date a copy of the offer letter and all similar documents (employment contracts, payment stubs, etc.) setting forth all forms of compensation (base salary, bonuses, incentives) to be paid to the Expert during the Covered Period so that BCE may calculate the fees it is owed.
You acknowledge and agree that if BCE does not receive the BCE Engagement Fee, Employment Fee or Outside Fee in accordance with the foregoing, the applicable Hiring Manager and Expert shall forfeit their right to participate in the Referral Fee Program described below, including without limitation forfeiting their right to any Referral Fees already earned as well as the right to earn further Referral Fees. In addition, Members do not earn Referral Fees with respect to such Hiring Managers and Experts in their Referral Fee Network.
BCE makes no representation or warranty regarding an Expert’s willingness to accept or perform an Assignment or other employment, or a Hiring Manager’s willingness to engage or employ an Expert for an Assignment or other employment. The decision to work, the decision to engage or employ, and the acceptance of the terms of the engagement or employment are solely the responsibility of the Expert and Hiring Manager. BCE will not refund any BCE Engagement Fees, TPA Fees, Employment Fees or Outside Fees for any reason, including without limitation if the Hiring Manager is not satisfied with the Expert’s performance or for any other reason.
All payments described in these Terms of Use shall be paid in U.S. currency unless otherwise agreed by BCE.
The Hiring Manager may instead initiate contact with an Expert by submitting a request on the BCE Web Sites for an automated introduction to the Expert ("Automated Introduction"). Please note that only certain Experts as determined by BCE in its sole discretion will be eligible to participate in an Automated Introduction. Upon submission of an Automated Introduction request, BCE will contact the selected Expert to confirm his/her availability and level of interest in the proposed Assignment. If the Expert is interested in the assignment he/she will apply through the site, and the hiring manager will be presented with the Expert’s contact information. From that point forward, the relationship of the hiring company with the Expert is a direct relationship, without BCE involvement. When an Expert who applied through BCE is hired, the hiring company pays a fee of 3% of first year’s compensation, or $3,000 USD, whichever is greater. Payment may be made by check to BCE at the headquarters in San Mateo, CA. or payment can be made online through PayPal.
BCE makes no representation or warranty regarding the Expert’s willingness to accept or perform the Assignment or a Hiring Manager’s willingness to engage an Expert on the Assignment. The decision to work, the decision to engage or employ, and the acceptance of the terms of the engagement or employment are solely the responsibility of the Expert and Hiring Manager. BCE will not refund the Hire Fee for any reason once the Expert has begun his/her first day of work.
4. Referral Fee Program
BCE’s referral fee program provides incentives in the form of referral fees ("Referral Fees") for Members to invite Networkers, Hiring Managers with Assignment or Employment opportunities, and Experts who are seeking to fill those opportunities, to participate in the BCE Services. All Members, including Experts, Networkers and Hiring Managers, are eligible to participate in the program. To participate, you must ensure that the Networker, Expert or Hiring Manager that you invite ("Invited Member") enters the invitation code set forth in your invitation when they initially register on the BCE Web Sites. Each Invited Member that initially registers on the BCE Web Sites using your invitation code will join your referral fee network ("Referral Fee Network"). If an Invited Member does not input your invitation code when they first register on the BCE Web Sites, they will not be part of your Referral Fee Network and you will not be entitled to receive Referral Fees with respect to such Invited Member. Invited Members receiving multiple invitations to participate in the BCE Services must use the invitation code of the Member whose Referral Fee Network they prefer to join.
The Referral Fees you earn are based upon the BCE Engagement Fees, Employment Fees, Outside Fees or Introduction Fees paid to BCE in connection with an Assignment, Employment or Automated Introduction involving a Member in your Referral Fee Network ("Eligible Fees"). As further explained below, Referral Fees may be earned by up to three levels of Members who participated in inviting the Expert and Hiring Manager involved in a particular Assignment or Employment. Members more than three levels away from such Expert or Hiring Manager are not entitled to Referral Fees.
For each Assignment or Employment, BCE will pay as Referral Fees up to twenty–eight (28%) of the Eligible Fees paid to BCE in connection with such Assignment or Employment:
ENGAGEMENT PROCESS:
- The Referral Fees for the Member ("Level 1 Member") that invited the Expert or Hiring Manager involved in the Assignment or Employment and whose Referral Fee Network such Expert or Hiring Manager joined is eight (8%) percent of the Eligible Fees.
- The Referral Fees for the Member ("Level 2 Member") that invited the Level 1 Member and whose Referral Fee Network such Level 1 Member joined is four (4%) percent of the Eligible Fees.
- The Referral Fees for the Member ("Level 3 Member") that invited the Level 2 Member and whose Referral Fee Network such Level 2 Member joined is two (2%) percent of the Eligible Fees.
BCE WILL MAIL YOUR REFERRAL FEE PAYMENT CHECK TO YOU WITHIN THIRTY (30) DAYS AFTER THE CALENDAR QUARTER IN WHICH THE PAYMENT OF RECRUITING FEES IS RECEIVED FROM THE HIRING ENTITY. IT IS YOUR RESPONSIBILITY TO KEEP YOUR EMAIL ADDRESS, PHYSICAL MAIL ADDRESS AND OTHER CONTACT INFORMATION IN YOUR ONLINE ACCOUNT CURRENT AND YOUR EMAIL APPROPRIATELY REGISTERED WITH ANY REQUIRED SPAM FILTERS OR SIMILAR APPLICATIONS TO ENSURE THAT YOU CAN RECEIVE CORRESPONDANCE FROM BCE. IF YOU DO NOT NEGOTIATE YOUR REFERALL FEE PAYMENT CHECK FROM BCE FOR PAYMENT (I.E., CASH YOUR CHECK, DEPOSIT IT, ETC.) WITHIN NINETY (90) DAYS OF ITS ISSUE DATE, THE PAYMENT CHECK AND APPLICABLE REFERRAL FEES WILL EXPIRE AND BCE WILL THEREAFTER HAVE NO RESPONSIBILITY TO PAY YOU SUCH REFERRAL FEES.
THE REFERRAL FEE TERMS DESCRIBED ABOVE, INCLUDING WITHOUT LIMITATION THE PERCENTAGES AND PAYMENT TERMS, MAY BE MODIFIED AT ANY TIME BY BCE IN ITS SOLE DISCRETION. ANY SUCH CHANGES SHALL BE EFFECTIVE UPON THE EARLIER OF AN UPDATE TO THESE TERMS OF USE OR OTHER NOTICE TO YOU. CHANGES MADE BY BCE TO THE REFERRAL FEE TERMS DESCRIBED ABOVE SHALL NOT AFFECT ANY REFERRAL FEES ALREADY EARNED BY YOU.
5. Member Conduct
You agree to strictly comply with all applicable local, state, national and international laws, statutes, rules, ordinances, regulations and common law, including without limitation those governing antitrust, privacy, unfair competition, non–discrimination, employment, false advertising, taxation and export control, in connection with the BCE Services and BCE Web Sites and your use thereof, including without limitation with respect to: (i) your ordering or posting of services or offers on the BCE Web Sites; (ii) your retrieval and use of information on the BCE Web Sites, and (iii) your employment, contractor or other relationship with another Member. Without limiting the generality of the foregoing, you agree to comply with all applicable laws regarding the transmission of technical data exported from the United States or the country in which you reside, as well as all local rules regarding online conduct and acceptable conduct.
You are solely responsible for paying all applicable fees and taxes incurred in connection with access to BCE servers and the BCE Web Sites, including without limitation the cost of internet service. In addition, you are solely responsible for any and all information that you post on the BCE Web Sites, including but not limited to any posting or listing in any public message area or through any email feature. You are further responsible for and you shall provide accurate, current and complete information about yourself to BCE and on the BCE Web Sites and maintain and update such information to keep it accurate, current and complete.
You shall strictly adhere to the BCE Privacy Policy, which is hereby incorporated by reference into these Terms of Use and is viewable on the BCE Web Sites. The BCE Privacy Policy terms and conditions shall be subject to change at any time by updating the Privacy Policy page on the BCE Web Sites. Member expressly agrees that his/her continued use of the BCE Web Sites or BCE Services after such change shall constitute the Member’s consent to such changes in the BCE Privacy Policy.
You are responsible for protecting and maintaining the confidentiality of your password and registration information related to your use of the BCE Services and BCE Web Sites. You are also responsible for all uses of your password and registration information, whether or not authorized by you. If others use your password or registration information to post information, material or other content on the BCE Web Sites that is prohibited by these Terms of Use, BCE may limit or restrict your access to the BCE Services and BCE Web Sites and/or terminate your account. You agree to notify BCE immediately if you know of or suspect any unauthorized use of your password or registration information.
You agree that you will NOT do any of the following, nor use the BCE Services or BCE Web Sites to do any of the following:
- upload, post, email, transmit or otherwise make available any information, material or other content (collectively "Content") that is unlawful, harmful, threatening, abusive, harassing, tortuous, defamatory, vulgar, obscene, indecent, pornographic, libelous, invasive of another’s privacy, false, inaccurate, misleading, incomplete, stale, hateful, or racially, ethnically or otherwise objectionable, offensive or inappropriate;
- harm minors in any way;
- impersonate any person or entity, including but not limited to a BCE employee or another Member, or falsely state or otherwise misrepresent your affiliation with a person or entity;
- forge headers or otherwise manipulate identifiers in order to disguise the origin of any Content transmitted through the BCE Services or BCE Web Sites;
- upload, post, email, transmit or otherwise make available any Content that you do not have a right to make available under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements);
- upload, post, email, transmit or otherwise make available any Content that infringes any patent, trademark, trade secret, copyright, or other proprietary rights, publicity rights, privacy rights or other rights of BCE, another Member, or any third party;
- upload, post, email, transmit or otherwise make available any unsolicited or unauthorized advertising;
- upload, post, email, transmit or otherwise make available any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;
- interfere with or disrupt the BCE Services, BCE Web Sites or servers or networks connected to the BCE Services or BCE Web Sites, or disobey any requirements, procedures, policies or regulations of networks connected to the BCE Services or BCE Web Sites;
- provide material support or resources (or to conceal or disguise the nature, location, source, or ownership of material support or resources) to any organization(s) designated by the United States government as a foreign terrorist organization pursuant to section 219 of the Immigration and Nationality Act;
- "stalk" or otherwise harass another Member;
- collect or store personal data about other Members for purposes other than consideration of a Member for a potential employment or contracting relationship;
- send email in violation of the CAN-SPAM Act or any other applicable anti-"spam" law to BCE, other Members, or any third party;
- use any device, software or routine, including but not limited to any viruses, spyware, malware, trojan horses, worms, time bombs, cancelbots or denial-of-service attacks, intended to damage or interfere with the proper working of the BCE Web Sites or any transaction being conducted on our site, or to surreptitiously intercept or expropriate any system, data or personal information from the BCE Web Sites;
- "frame" or "mirror" the BCE Web Sites or any portion thereof;
- take any action that imposes an unreasonable or disproportionately large load on the BCE infrastructure, including but not limited to "spam" or other such unsolicited mass emailing techniques;
- respond to postings by other Members for any purpose or in any manner other than that which is expected (i.e. to apply for the Assignment or Employment in the case of an Expert, or to initiate further discussion with an Expert in the case of a Hiring Manager);
- use the BCE Services or BCE Web Sites in any manner if you are a competitor of BCE, including without limitation soliciting Experts, Networkers or Hiring Managers for any purpose whatsoever;
- resell or make available to any non-Member any of the BCE Services, the BCE Web Sites or any content on the BCE Web Sites, or use the BCE Services or BCE Web Sites for any unlawful, commercial, research or information gathering purposes; or
- delete or revise any material posted by another Member on the BCE Web Sites, access data not intended for you on the BCE Web Sites, or log into an account which you are not authorized to access.
Please report any prohibited conduct by other Members to info@bluechipexpert.com.
BCE is under no obligation to monitor the conduct of Members on the BCE Web Sites or any materials posted thereon, but it may respond when violations are reported. You acknowledge and agree that Company has the right (but not the obligation) to monitor the BCE Web Sites and BCE Services, including without limitation all Member postings. Without limiting BCE’s other rights as set forth in these Terms of Use, BCE reserves the right, with or without notice to the applicable Member, to remove content posted by a Member on the BCE Web Sites, remove any Member from the BCE Web Sites, and/or take any other technical or legal action BCE deems necessary in the event that BCE believes, in its sole discretion, that the Member is creating problems, possible legal liabilities, violating these Terms of Use, or otherwise acting inconsistently with the letter or spirit of BCE’s policies. BCE also reserves the right to report any wrongdoing of which BCE becomes aware to the applicable government or law enforcement agencies or otherwise.
6. Prohibited Expert Conduct
Expert is prohibited from providing any misleading or inaccurate information to BCE, other Members, or any other party. Expert warrants that all information provided about Expert or otherwise, through the BCE Web Sites or any other means or medium, to BCE or any other Member or party, including without limitation Hiring Managers, is complete and accurate. Expert shall not enter any personally identifiable information or contact information, including without limitation name, address, phone numbers, email address, etc. anywhere within the BCE Web Sites or other systems, other than where that specific piece of personally identifiable information is requested by BCE.
7. Relationship of BCE and Members
No Member shall be considered the employee, agent, partner or joint venturer of BCE, and BCE shall not be considered the employer, agent, partner or joint venturer of any Member. BCE and the Members are to act as independent contractors in relation to each other and are not authorized to make any contract, agreement, warranty or representation on behalf of each other. You agree that BCE, by providing the BCE Services, does not accept liability as an employer, either singularly or jointly, of any Expert and that the Expert is an independent contractor. BCE is not an employment agency or recruiting firm.
You agree and understand that, except with respect to the determination of the BCE Engagement Fee, TPA Fee, Employment Fee or Outside Fee, BCE will not in any way be involved in the terms and conditions of the employment or contracting arrangement between a Hiring Manager and an Expert, and that any services for which you engage an Expert or for which you are engaged by a Hiring Manager are provided by and under the applicable Assignment Agreement(s) or other employment agreement. BCE is not responsible for and will not control the means, methods or manner in which an Expert performs his/her services for the Hiring Manager, and BCE is not involved in the hiring, firing, discipline or working conditions of the Expert. BCE makes no warranties, representations or guarantees that the BCE Web Sites or content thereon will result in Experts being hired or that Assignment or Employment openings will be filled. BCE is not responsible for any employment or contracting decisions made by Members. BCE is under no obligation to ensure the timeliness, accuracy, completion or workmanship of any Assignment or other Employment. BCE will not provide any Expert with any materials or tools with which to complete any projects for which a Hiring Manager engages an Expert. Any problems, complaints or questions regarding the work environment, performance or other terms and conditions of employment and/or contracting is a matter to be resolved solely between the Expert and Hiring Manager.
Because BCE is not the employer of Experts, BCE will not be responsible for any payment, salary, tax or other withholding obligations, whether federal, state, local, or otherwise, for the services being performed through BCE by an Expert. The Expert, TPA and the Hiring Manager shall be liable for all such withholding obligations, and you agree to resolve any dispute regarding such obligations with the Expert, TPA and Hiring Manager, as applicable.
8. License
You hereby grant BCE a non-exclusive, worldwide, perpetual, royalty-free, irrevocable right and license to use, distribute, disclose, reproduce and display any information, materials or content you post on the BCE Web Sites or otherwise provide to BCE, and to exercise all copyright and publicity rights with respect thereto, subject to the BCE Privacy Policy. Without limiting the generality of the foregoing, you authorize BCE to disclose your information to other Members as described in these Terms of Use and elsewhere on the BCE Web Sites, subject to the BCE Privacy Policy. In addition, you hereby grant BCE permission to display your logo, trademarks and company name on the BCE Web Sites and in press or other public releases or filings. By submitting any information, materials or content on the BCE Web Sites or otherwise to BCE, you acknowledge, represent and warrant that you have all right and authority to grant such rights to BCE.
9. Term and Termination
These Terms of Use shall become effective upon the date of a Member’s registration and shall continue with respect to such Member until terminated by either Party as provided below.
A Member may terminate at any time for any reason by completing the deregistration process provided for on the BCE Web Sites (the "Deregistration Process"). Upon completion of the Deregistration Process, BCE will remove the deregistering Member’s account and BCE will owe no further obligation to such Member. However, you agree that BCE may still contact you by phone or email to resolve any outstanding issues between you and BCE, if applicable.
BCE may effect such termination by canceling such Member’s account. Each Member’s use of the BCE Web Sites and BCE Services is a privilege. BCE reserves the right to revoke or suspend that privilege and cancel any Member’s account for any reason at any time, in BCE’s sole discretion.
Any termination of these Terms of Use shall not affect any obligations established between a Hiring Manager and an Expert, including without limitation a Hiring Manager’s obligation to pay Experts for Assignments or Employment. In addition, any termination of these Terms of Use shall not affect a Hiring Manager’s obligation to timely pay BCE the BCE Engagement Fee, TPA Fee, Employment Fee, Outside Fee or Introduction Fee in accordance with the above. In the event that BCE has agreed to provide invoicing services in connection with an Assignment, BCE shall continue to perform such invoicing services to the extent necessary to complete any Assignment pending on the date of termination. Termination of a Member’s account shall not affect that Member’s right to earn Referral Fees, subject to the terms and conditions of these Terms of Use.
10. Disclaimers and Limitations of Liability
THE BCE WEB SITES AND BCE SERVICES ARE PROVIDED "AS IS," WHERE IS, AND WITHOUT ANY WARRANTIES, REPRESENTATIONS OR CONDITIONS (EXPRESSED OR IMPLIED, ARISING BY STATUTE OR OTHERWISE IN LAW OR FROM A COURSE OF DEALING OR USAGE OR TRADE). TO THE FULLEST EXTENT PERMITTED BY LAW, BCE DISCLAIMS ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE WARRANTIES OF MERCHANTIBILITY, TITLE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS, AND FITNESS FOR PARTICULAR PURPOSE. NO ADVICE, OPINION OR STATEMENT OF BCE OR ITS AGENTS OR EMPLOYEES SHALL CREATE ANY WARRANTY.
WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, BCE MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED: (I) AS TO THE QUALITY, IDENTITY OR RELIABILITY OF ANY MEMBER OR THIRD PARTY; (II) AS TO THE ACCURACY, RELIABILITY, COMPLETENESS OR TIMELINESS OF THE BCE SERVICES OR THE BCE WEB SITES; (III) AS TO THE QUALITY, ACCURACY, RELIABILITY, COMPLETENESS, SAFETY OR LEGALITY OF ASSIGNMENTS OR EMPLOYMENT, ANY POSTINGS MADE BY ANY MEMBER, OR ANY OTHER INFORMATION, MATERIALS OR CONTENT PROVIDED BY A MEMBER; OR (IV) AS TO THE RESULTS TO BE OBTAINED FROM USE OF THE BCE WEB SITES OR BCE SERVICES.
IN ADDITION, BCE MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, THAT THE BCE WEB SITES WILL BE UNINTERRUPTED, ERROR-FREE OR SECURE, OR THAT THE BCE WEB SITES AND ITS SERVERS ARE FREE OF COMPUTER VIRUSES OR OTHER HARMFUL MECHANISMS. YOU ACKNOWLEDGE THAT YOU ARE RESPONSIBLE FOR OBTAINING AND MAINTAINING ALL TELEPHONE, COMPUTER HARDWARE AND OTHER EQUIPMENT NEEDED TO ACCESS AND USE THE BCE WEB SITES, AND ALL CHARGES RELATED THERETO. IF YOUR USE OF THE BCE WEB SITES OR THE CONTENT THEREON RESULTS IN THE NEED FOR SERVICING OR REPLACING EQUIPMENT OR DATA, BCE IS NOT RESPONSIBLE FOR THOSE COSTS. YOU ASSUME ALL RESPONSIBILITY AND RISK FOR YOUR USE OF THE BCE SERVICES, THE BCE WEB SITES AND THE INTERNET GENERALLY.
BCE makes no warranties, representations or guarantees regarding the effectiveness or timeliness of the BCE Web Sites or the content thereof, including without limitation with respect to meeting the hiring or employment objectives of Members. BCE does not warrant, represent or guarantee that a Member’s resume or job posting will be viewed by any other Member or by a specific number of Members.
BCE does not routinely conduct background checks on any Members and thus cannot guarantee that their profiles match their true identity, educational or work experience, or other attributes of the Members. BCE assumes no responsibility or liability for any Member selected by another Member for a particular Assignment or Employment. You acknowledge that there may be certain risks, including without limitation the risk of physical harm and of dealing with strangers, underage persons or people acting under false pretenses, associated with pursuing relationships begun on the Internet. You assume all risks related to dealing with other Members with whom you have had contact through the BCE Web Sites or BCE Services.
BCE does not control, evaluate, censor or endorse any information posted by Members on the BCE Web Sites or otherwise provided to BCE by Members, and BCE accepts no liability for any such information, including but not limited to any information posted about any Member or non-member. Information on the BCE Web Sites is provided "AS IS" and may contain technical inaccuracies or typographical errors. Such information may also be offensive, harmful, inaccurate, mislabeled or deceptively labeled, or otherwise in violation of these Terms of Use. BCE further accepts no liability for the acts, omissions or conduct of any Member. You assume sole responsibility for any information you post on the BCE Web Sites and for your conduct on and off the BCE Web Sites. Nothing on the BCE Web Sites or elsewhere shall be considered a representation, endorsement or warranty by BCE with respect to any Member or third party, whether regarding its products, services, web site, hiring, employment or recruiting practices, or otherwise.
The BCE Web Sites may contain links to third-party web sites not under the control or operation of BCE. When BCE includes such links, BCE does so only as a convenience and does not endorse and is not responsible for the content or privacy policy or practices of any linked site a Member may choose to visit. If you decide to access a linked third-party web site, you do so at your own risk.
BCE makes no representation that materials on the BCE Web Sites are appropriate or available for use in other jurisdictions outside the United States, and accessing them from territories where their contents are illegal is prohibited. If you choose to access the BCE Web Sites from such other jurisdictions, you do so on your own initiative at your own risk, and you are responsible for compliance with local laws.
BCE is not registered as a lawyer referral service in any state or jurisdiction and does not operate for the purpose of referring potential clients to lawyers. If you are a lawyer, you agree not to use the BCE Web Sites for the purpose of seeking potential clients.
IN NO EVENT SHALL BCE BE LIABLE TO YOU OR ANY OTHER MEMBER FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES IN CONNECTION WITH THESE TERMS OF USE, THE BCE SERVICES OR BCE WEB SITES, INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS, LOSS OF BUSINESS OPPORTUNITIES, OR LOSS OF GOODWILL, WHETHER BASED ON WARRANTY, CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL THEORY, AND EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOUR SOLE REMEDY FOR DISSATISFACTION WITH THE BCE WEB SITES OR BCE SERVICES IS TO STOP USING THE BCE WEB SITES AND BCE SERVICES. SOME JURISDICTIONS DO NOT THE PERMIT THE EXCLUSION OR LIMITATION OF LIABILITY FOR CERTAIN TYPES OF DAMAGES. IF THE LIMITATIONS IN THIS PARAGRAPH ARE HELD TO BE INAPPLICABLE OR UNENFORCEABLE FOR ANY REASON BY A COURT OF COMPETENT JURISDICTION, THEN BCE’S LIABILITY TO YOU OR ANY OTHER MEMBER SHALL BE LIMITED AS SET FORTH IN THE FOLLOWING PARAGRAPH.
Notwithstanding anything to the contrary in these Terms of Use or otherwise, in no event will BCE be liable to you in connection with the BCE Web Sites or BCE Services, whether based on warranty, contract, tort, strict liability, negligence, or any other theory of liability, exceeding the greater of: (A) $1000.00 or (B) the aggregate amount of the BCE Engagement Fees or Employment Fees actually collected by BCE related to the Assignment or Employment to which the liability relates during the six (6) month period immediately preceding the determination of such liability.
BCE’s contracts with certain of its suppliers provide for scheduled maintenance, preventative maintenance, and emergency maintenance work. BCE will have no liability whatsoever for any unavailability of the BCE Web Sites, including without limitation any unavailability caused by BCE’s suppliers’ performance or lack of performance of the maintenance work needed to keep the BCE Web Sites operable.
BCE 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 BCE, any third party acts or omissions, the acts or omissions of any web services provider, or problems with the Internet infrastructure or networks external to the BCE Web Sites.
Neither of the Parties to these Terms of Use 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, subject to the terms regarding termination above..
The limitations of liability provided in these Terms of Use inure to the benefit of BCE, BCE’s affiliates and all of their respective officers, directors, employees, attorneys and agents.
11. Ownership
The BCE Services, BCE Web Sites (including all content thereon) and all intellectual property rights in or related to the BCE Services and the BCE Web Sites, including but not limited to copyrights, patents, trademarks, service marks and any feedback left by Members on the BCE Web Sites, are owned and/or licensed by BCE, and all right, title and interest in the BCE Web Sites, the BCE Services and the related intellectual property rights, are and shall remain BCE’s sole property. This includes, without limitation, the "BlueChipExpert.com" URL, the Blue Chip Expert design logo, and certain other names and logos used by BCE, all of which are service marks or trade marks of BCE. This also includes, without limitation, the "look and feel" of the BCE Web Sites (including design, layout, color combinations, button shapes and other graphical elements), which is protected by BCE’s service marks, trade marks and copyrights.
You may not reproduce, reverse engineer, decompile, disassemble, modify or create derivative works of or with respect to the BCE Services, BCE Web Sites or the related intellectual property, and these Terms of Use do not grant you permission to do so. You may not reproduce, modify, display, sell or distribute the content on the BCE Web Sites or use it in any other way for public or commercial purpose. BCE authorizes you to view and download a single copy of the content on the BCE Web Sites solely for your personal, noncommercial use. Certain content on the BCE Web Sites may be 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 BCE Web Sites, including any BCE Web Sites content.
Without limiting any other rights or remedies BCE may have under these Terms of Use or otherwise, BCE may limit, suspend, or terminate the BCE Services and/or Member accounts, limit or prohibit access to the BCE Web Sites, modify or remove content on the BCE Web Sites, including without limitation eliminating or discontinuing any content or feature thereon or thereof, or restrict the hours of availability of the BCE Web Sites.
12. Indemnification
You agree to indemnify, defend, and hold harmless BCE and its affiliates, officers, directors, employees and agents from and against any and all claims, demands, actions, losses, costs, expenses (including without limitation reasonable attorneys’ and experts’ and consultants’ fees), damages or other liabilities, of any kind or nature, (collectively "Liabilities") which arise out of, result from, allege, or otherwise relate to: (i) your use of the BCE Web Sites or the BCE Services, (ii) any information, materials or content you post on the BCE Web Sites or otherwise provide to BCE or another Member, (iii) your breach of these Terms of Use, (iv) any Assignment, Employment or other relationship you establish with another Member or the performance thereof, including without limitation payment and withholding obligations, or (v) any other act or omission by you.
Any such indemnification shall be conditioned on BCE’s: (a) notifying you in writing of any such Liabilities; (b) cooperating with you in the defense or settlement thereof at your expense; and (c) allowing you to control such defense or settlement, unless BCE is not fully and properly defended or indemnified or unless such settlement or result will adversely affect BCE’s operations. BCE shall be entitled to participate in such defense through BCE’s own counsel at BCE’s own cost and expense.
13. Governing Law, Jurisdiction, and Dispute Resolution
The BCE Web Sites (excluding linked sites) are operated by BCE from offices within the State of California, United States of America. They 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 California, by accessing the BCE Web Sites or utilizing the BCE Services, you agree that these Terms of Use and your use of the BCE Web Sites and BCE Services shall be governed in all respects by the internal substantive laws of the State of California, without regard to conflict of laws provisions, and shall not be governed by the United Nations Convention on the International Sale of Goods.
If a dispute arises between you and BCE, you agree that you will first contact BCE directly to attempt to resolve such dispute before initiating legal action. You agree that any claim or dispute that you may have against BCE or that BCE may have against you, and that is not resolved by the parties, shall be resolved by the Superior Court of San Mateo County, California. You hereby submit to jurisdiction and venue of the San Mateo County Superior Court, California for the purpose of litigating all such claims or disputes. Any cause of action you may have with respect to the BCE Web Sites or the BCE Services shall be commenced within one year after it arises, or the cause of action shall be barred. The prevailing party in any dispute between you and BCE shall be entitled to recover their reasonable attorney’s fees, expert and consultant fees and costs of suit. You understand and agree that, due to the nature of these Terms of Use and the BCE Services, damages may be difficult or impossible to ascertain. As a result, BCE shall be entitled to equitable relief including injunctive relief in the event that money damages are inadequate, in addition to any other remedies BCE may have at law or in equity.
Any disputes between Hiring Managers and Experts shall remain between such Hiring Managers and Experts. You acknowledge and agree that BCE will not be a party to any such dispute or be obligated to take any action or refrain from taking any action toward resolving any such dispute. BCE may, at its sole option, but shall not be required to, withhold or delay payment in the event of dispute between a Hiring Manager and Expert.
In the event that you have a dispute with another Member, you hereby release BCE and its directors, officers, agents and employees from any claims, demands, actions, losses, costs, expenses (including without limitation reasonable attorneys’ and experts and consultants’ fees), damages (actual, consequential and punitive) and other liabilities of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with the BCE Web Sites, the BCE Service, or such dispute. You hereby knowingly and voluntarily waive any and all rights and benefits conferred by any state law limiting or prohibiting a general release, including without limitation the provisions of Section 1542 of the California Civil Code, whether enacted or in force in California or any other State of the United States. Section 1542 provides as follows:
"A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor."
14. General
These Terms of Use, and all writings, web pages, agreements and policies set forth on the BCE Web Sites or otherwise provided by BCE to a Member, including, but not limited to, the BCE Privacy Policy and the Referral Fee Program, which are all hereby incorporated by reference into these Terms of Use, contain the entire Terms of Use between the parties and supersede any prior agreement, negotiation or understanding of the parties, whether oral or in writing, with respect to the subject matter of such Terms of Use. Any representations, promises or conditions not incorporated herein shall not be binding upon BCE or a Member or their respective successors and assigns.
If any provision of these Terms of Use 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 his/her or its respective rights under these Terms of Use 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. Any heading, caption or section title contained in these Terms of Use is inserted only as a matter of convenience and in no way defines or explains any section or provision hereof.
BCE has the right to transfer or assign these Terms of Use and the rights hereunder to any other person or entity without the Members’ consent. The Members do not have the right to assign, delegate or transfer these Terms of Use or any rights or obligations hereunder to any other person or entity without BCE’s prior written consent, which may be withheld in BCE’s sole discretion. Subject to the foregoing, these Terms of Use will be binding upon and will inure to the benefit of the successors and permitted assigns and delegates of the Parties hereto.
All notices required or permitted to be given under these Terms of Use, shall be in writing and shall be deemed to have been duly given if delivered personally or mailed first-class, postage pre-paid, by registered or certified mail to the addresses set forth below or to such other address as any party shall designate by notice in writing. Those notices so mailed shall be deemed to have been given ten (10) business days after mailing.
Notices to BCE: 411 Borel Avenue, Suite #550, San Mateo, CA 94402; Attention: Chief Financial Officer
Notices to Member: the Member’s designated mailing address as indicated in the Member’s online account profile
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: Blue Chip Expert, located in San Mateo, California is the provider of the electronic commercial service on this site. Members 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 these Terms of Use sent to you by email. Please feel free to contact BCE to resolve a complaint regarding any aspect of service relating to the BCE Web Sites or BCE Services by writing to the above address, or contact us at info@bluechipexpert.com.
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