SquadGurus Terms of Service
Effective Date: June 1, 2022
These Terms of Service (these “Terms”) govern the access to and use of the multi-sided IT solutions marketplace platform (the “Platform”) and the receipt of associated Services (defined below) made available by SquadGurus, Inc. (“SquadGurus”, “we”, or “us”) to Clients, Providers, and their respective Users (each as defined below).
Please read these Terms carefully, as they constitute a legal agreement between you and/or your organization, on the one hand, and SquadGurus, on the other hand. These Terms include an arbitration provision that requires most disputes to be resolved through binding arbitration.
1. Parties. As used in these Terms, (a) “You” means each of Client, Provider, and User, as applicable, as well as the individual accepting these terms on behalf of any of the foregoing, (b) “Client” means an individual or entity that accesses or uses the Platform and Services for the primary purpose of obtaining IT solutions from one or more Providers, (c) “Provider” means an individual or entity that access or uses the Platform and Services for the primary purpose of offering IT solutions to one or more Clients, and (d) “User” means an individual authorized by a Client or a Provider to access and use the Platform on Client’s or Provider’s behalf, as applicable. Client and Provider are responsible for Compliance with these Terms by their respective Users and for all acts and failures to act by their respective Users in connection with the Platform and the Services.
2. Acceptance of these Terms; Authorization. By accessing or using the Platform or Services, you confirm your agreement, on behalf of yourself (if you are an individual Client, Provider or User) and/or on behalf of the organization you represent (if your organization is a Client or Provider), to be bound by these Terms. You represent and warrant to SquadGurus that (a) you have read and understand all of the provisions of these Terms and (b) if you are accepting these Terms on behalf of your organization, you are legally authorized by your organization to do so, and you agree to provide evidence of such authorization to SquadGurus upon request. If you do not agree to these Terms or you are not so authorized, you must not access or use the Platform or Services. These Terms expressly supersede prior agreements or arrangements with you or your organization and us regarding the use of the Platform or Services.
3. Services; Roles.
3.1. Through the Platform, SquadGurus (a) enables Clients to [publish] technology development, engineering, technology implementation, support, or similar IT Solution opportunities (each, an “Opportunity” or, collectively, “Opportunities”) and identify Providers potentially suited to such Opportunities, (b) allows Providers to identify Clients and/or Opportunities within their fields of expertise, (c) facilitates the connection between Clients and Providers for contractual engagement of Providers by Clients for Opportunities (each, an “Engagement”), and (d) provides additional services to Clients and Providers in connection with Opportunities and Engagements as made available and further described on the Platform from time to time ((a) through (d), collectively, the “Services”). The Platform and the Services are provided on a commercially reasonable efforts basis.
3.2. An Engagement (or series of Engagements) may be established, at Client’s option, as a “Prime” Engagement or as a “Managed” Engagement (or series of such Engagements).
(a) A Prime Engagement is an Engagement established through a standard agreement provided and maintained by SquadGurus (a “Prime Contract”), under which, as part of the Services, SquadGurus (i) collects payment of the applicable fees and expenses related to the Engagement from Client on Provider’s behalf, and, subject to receipt of such payment, pays Provider for Provider’s services related to the Engagement after deducting the SquadGurus Platform Fee as defined in Section 6.1 below, and (ii) coordinates and facilitates the contracting process between Client and Provider.
(b) A Managed Engagement is an Engagement established through an agreement negotiated directly by Client and Provider (a “Managed Contract”), under which Client pays Provider directly for Provider’s services related to the Engagement, and Provider pays SquadGurus the SquadGurus Platform Fee as defined in Section 6.1 below.
(c) Each of Prime Contract and Managed Contract is sometimes referred to in these Terms as an “Engagement Contract”, and each Engagement Contract, regardless of type, will include one or more statements of work (each, an “SOW”) setting forth applicable business and technical terms specific to the Engagement (e.g., fees, specifications, deliverables, timeframes). While each of Client and Provider are bound under these Terms to certain obligations that relate to the offering, establishment and completion of Engagements generally, the rights and obligations of Client and Provider specific to a particular Engagement shall be between Client and Provider pursuant to the applicable Engagement Contract and SOW(s) for that Engagement. You expressly acknowledge and agree that SquadGurus is neither a purchaser of IT Solutions from Providers nor a provider of technology-development or similar solutions (of the type offered by Providers) to Clients.
4. License Grants; Restrictions.
4.2. You agree not to (a) reproduce, modify, distribute, license, sell, lease, resell, time-share, create derivative works based upon, link to, mirror, frame, scrape, mine, harvest or otherwise exploit the Platform or the Services except as expressly permitted by SquadGurus, (b) remove any copyright, trademark or other proprietary notices from the Platform or from any content or other materials you access or receive through the Platform or the Services, (c) decompile, reverse engineer, disassemble or otherwise attempt to access the source code of the Platform or any part thereof, (d) disable, circumvent or otherwise compromise any security features of or attempt to gain unauthorized access to or impair the functionality of or overwhelm the Platform, (e) use the Platform or Services to transmit any unsolicited, automated or repetitive communications or for any unlawful purpose, (f) introduce, transmit or store any computer virus, spyware, or other harmful code, or (g) permit others to do any of the foregoing.
4.3. You represent and warrant that you and each of your Users (a) are legally competent to enter into binding contracts, including these Terms and any Engagement Contract (or SOW), (b) will use the Platform and Services only in compliance with all laws and other legal requirements applicable to you or to your use of the Platform or Services or the performance of any Engagement Contract or SOW or to your disclosure, receipt or use of Confidential Information (defined below), (c) will not use the Platform or Services or offer or bid on Opportunities or enter into or perform Engagement Contracts or SOWs in contravention of any restriction or other obligation to which you are subject, including without limitation consulting or employment agreements, confidentiality and non-disclosure obligations, exclusivity or other non-competition obligations, codes of conduct or any other restriction or obligation, in each case without an express written consent for such use or performance or an express written waiver of such obligation or restriction by the party to which you are obligated.
5. Access to and use of the Platform.
5.1. Accounts; Profiles. Each Client and Provider and User must establish an account and profile on the Platform by following the procedures indicated in the Platform. You must not provide any false or misleading information in connection with your account or your profile. You acknowledge that your profile may be visible to others on the Platform and that SquadGurus has the right, but not the obligation, to verify any information you provide. You are responsible for ensuring the security of your account credentials, and you agree not to share your credentials with others. You are responsible for all unauthorized access to the Platform and Services through your account.
(a) “Your Content” means all information or materials provided by you (or by your Users on your behalf) in any form to SquadGurus or any other Clients, Providers or Users on or through the Platform or in connection with or as a result of the Services or any Opportunity or Engagement. You are solely responsible for Your Content, and you agree not to provide any such information or materials except in full compliance with these Terms.
(b) “Prohibited Content” means information or materials comprising or containing (i) payment card or other payment method data or confidential financial information, except as minimally necessary and specifically requested to facilitate payments required under these Terms or any Engagement Contract or SOW, (ii) health information, including without limitation “Protected Health Information” as that term is defined under the United States Health Insurance Portability and Accountability Act, (iii) “special categories” of personal data as described in Paragraph 1 of Article 9 of the EU General Data Protection Regulation, (iv) classified information under any applicable law, regulation or governmental authority, (v) information of or relating to minors, (vi) information the possession, transmission, disclosure or use of which, as contemplated by these Terms, would be illegal, (vii) any computer virus, spyware or other malicious code, spam or any other form of unsolicited advertising or promotion or repetitive communication, or (viii) language, images, messages or other forms of content that are or could reasonably be viewed as false, misleading, libelous, harmful, abusive, threatening, malicious, defamatory, obscene, pornographic or unlawful.
(c) By providing Your Content, you grant, and represent and warrant that you have all rights necessary to grant, to us (and our service providers solely in connection with their services to us) a non-exclusive, fully paid, worldwide license to use, copy, perform, display, distribute, and prepare derivative works of Your Content for the purpose of providing the Platform and Services to you and for any other purpose for which you provided Your Content.
(d) You must not provide, directly or indirectly, any Prohibited Content to us or to any other Client, Provider or User through or in connection with your use of the Platform or the Services or your performance of any Engagement Contract or SOW except solely to the extent that processing of Prohibited Content is specifically required as part of an Engagement, in which case Client and Provider may agree to such processing to the extent specified in the applicable SOW(s); provided, however, that in no event shall Client or Provider or any of their respective Users disclose or transfer any such Prohibited Content to or through SquadGurus, whether through the Platform or the Services or otherwise. You acknowledge and agree that SquadGurus is under no obligation to monitor Your Content or that of any other Client, Provider or User, but that it may do so and may remove any portion of Your Content from the Platform at any time. You also acknowledge that, subject to these Terms, portions of Your Content may be visible to, accessible by, or shared with others, in accordance with the purpose for which you provided it. You represent and warrant to SquadGurus that (i) except for the limited circumstance described in the first sentence of this Section 5.2(d),Your Content does not and will not include any Prohibited Content, and (ii) you own or have all rights in and to Your Content necessary for the use of Your Content as contemplated under these Terms and any Engagement Contract or SOW.
(a) Using the Platform and Services. The publication of Opportunities, profiles and qualifications and the bidding and engagement process and other features of the Platform and the Services shall be as enabled by and described in the Platform from time to time.
(b) Executing the Engagement Contract. Each Engagement Contract is a contractual relationship directly and solely between Client and Provider. SquadGurus is a third-party beneficiary to each Engagement Contract as to the applicable payment and information rights and obligations relating to the Engagement and not a party to the Engagement Contract or to any SOW.
(i) Each Prime Contract shall be in the form provided by SquadGurus unless otherwise agreed in writing by all parties including SquadGurus. The form of Prime Contract and SOW is provided by SquadGurus as a convenience to Client and Provider and does not constitute legal advice and may not be suitable for all Engagements or jurisdictions. Client and Provider are responsible for obtaining their independent legal advice in connection with the use of such forms, and SquadGurus assumes no responsibility for any consequences of using such forms.
(ii) A Managed Contract may be in the form provided by SquadGurus or such other form as Client and Provider may agree, subject to paragraph (iii) below.
(iii) Each Engagement Contract, whether a Prime Contract or a Managed Contract, must include (A) an obligation on the part of Provider (and permission from the Client) for Provider to provide to SquadGurus copies of any and all invoices at the same time as such invoices are provided to Client, (B) an obligation on the part of Client to pay the fees and other amounts owed to Provider in a manner consistent with Client’s payment obligations under Section 6 of these Terms, as applicable to the type of Engagement Contract, (C) non-solicitation terms substantially in the form set forth in Sections 8.1and 8.2 of these Terms (or the corresponding provisions in the form of Prime Contract made available by SquadGurus from time to time), and (D) an express statement that the parties agree that SquadGurus shall have no liability to either party or to any third party in connection with the subject matter of the Engagement Contract or any SOW thereunder; provided that in the case of a Prime Contract, such statement may include an exception for SquadGurus’ limited obligation (arising under these Terms and not under the Prime Contract) to pay Provider for its services under the Prime Contract following receipt of applicable payment(s) by Client for such services. Client and Provider agree to amend any Engagement Contract to comply with the foregoing requirements, to the extent SquadGurus determines that such contract does not comply. Client and Provider expressly agree that any terms of an Engagement Contract that conflict with or purport to supersede the foregoing requirements shall be null and void.
(c) Upon execution of any Engagement Contract or SOW, Client and Provider must inform SquadGurus of the fees and other amounts payable by Client thereunder, as well as the applicable payment terms and expected payment timeline(s) and other payment- and timing-related information as SquadGurus may reasonably request. Client and Provider agree to keep SquadGurus informed of any changes to such information from time to time during the performance of such Engagement Contract or SOW.
6. Fees; Payments.
6.1. SquadGurus Platform Fee. In exchange for the use of the Platform and Services, SquadGurus collects a fee from Providers on each Engagement (the “SquadGurus Platform Fee”). The SquadGurus Platform Fee may vary by Engagement and will be calculated as specified in a standard schedule published to all Providers unless otherwise agreed between SquadGurus and Provider. The manner of payment for the SquadGurus Platform Fee is outlined in Sections 3.2(a)and 3.2(b) above, as further specified below.
6.2. Payments under a Prime Contract. SquadGurus or its third-party payment processor will pay Provider the fees and other amounts owed to Provider pursuant to a Prime Contract or SOW thereunder “as and when” collected by SquadGurus from Client. Provider is responsible for requesting payment in connection with an Engagement by submitting invoices and appropriate supporting documentation in form and substance reasonably required by SquadGurus and Client. SquadGurus will, in turn, invoice Client for such Engagement. Client agrees to pay SquadGurus all amounts due under the applicable Prime Contract or SOW thereunder in accordance with the payment terms of the Prime Contract. Within five (5) business days of SquadGurus’ receipt of Client’s payment for such Engagement (or on such other schedule or in such increments as Client, Provider, and SquadGurus may agree in writing), SquadGurus will remit payment to Provider, less the SquadGurus Platform Fee, which will be deducted and retained by SquadGurus. Except as otherwise agreed in the Prime Contract, all payments shall be made in United States dollars, and the party requesting payment in another currency shall be responsible for any exchange transaction fees or exchange rate fluctuations.
6.3. Payments under a Managed Contract. Client agrees to pay Provider all amounts due under and in accordance with the applicable Managed Contract or SOW thereunder. Provider is responsible for requesting payment in connection with an Engagement by submitting invoices and appropriate supporting documentation in form and substance reasonably required by Client. Provider shall provide a copy of each such invoice to SquadGurus at the same time as such invoices are provided to Client. SquadGurus will then invoice Provider for the SquadGurus Platform Fee owed to SquadGurus relating to the Engagement. Provider agrees to notify SquadGurus at the time Provider receives payment from Client and to pay SquadGurus the SquadGurus Platform Fee within five (5) business days of receipt of payment from Client. Client and Provider may agree between themselves the currency for all invoices. SquadGurus’ invoice to Provider shall be in United States Dollars at the exchange rate in effect as of the date of the invoice. Provider is responsible for any exchange transaction fees or exchange rate fluctuations.
6.4. Taxes. Except for any forms required to be provided by SquadGurus to you under the U.S. Internal Revenue Code, you will be solely responsible for determining whether you are required by applicable law to file any U.S. or foreign tax forms or remit to the appropriate authorities any taxes or similar charges applicable to the amounts paid by or to you in connection with any Engagement. Provider acknowledges and agrees that Provider is solely responsible for (a) all tax liability associated with payments received from SquadGurus or Client in connection with an Engagement, and that neither SquadGurus nor (except as otherwise expressly agreed in a Managed Contract or SOW thereunder) Client will withhold any taxes from payments made to Provider. Client acknowledges and agrees that, as between Client and SquadGurus, Client will be solely responsible for all applicable sales, use, excise, value added or similar taxes, if any, payable with respect to Engagements, other than taxes on SquadGuru’s income.
6.5. Records. Until three (3) years following the completion of any Engagement you agree to keep complete and accurate books and records relating to such Engagement sufficient to demonstrate your compliance with these Terms and the terms of the applicable Engagement Contract or SOW. Subject to the confidentiality provisions of these Terms, you agree to make available such books and records, or applicable portions thereof, to SquadGurus or its independent auditors, upon reasonable notice and during normal business hours, in order to verify such compliance, in particular with respect to amounts owed, charged, or paid in connection with such Engagement.
6.6. Bank Fees. Each party shall be responsible for any bank fees, including intermediary bank fees, incurred by such party in the sending of payments or imposed on such party in the receiving of payments.
7. Limited Exclusivity.
7.1. You agree that, during the period described below in this Section (the “Exclusivity Period”), using the Platform and the Services is the exclusive means by which (a) Client may engage or solicit the services of any Providers identified to Client through the Platform and the Services and (b) Provider may provide or offer to provide services to any Clients identified to Provider through the Platform and the Services. For Client as to any particular Provider, and for Provider as to any particular Client, the Exclusivity Period remains in effect until twelve (12) months after the date either Client or Provider is identified to the other through the Platform or Services or until twelve (12) months after the completion of the last Engagement between Client and Provider, whichever is later.
7.2. Without limiting the generality of the foregoing restrictions, (a) for Prime Engagements, (i) Client agrees not to make any partial or complete payment in connection with any such Prime Engagement to any Provider, directly or indirectly, outside of SquadGurus’ invoicing and payment process, and (ii) Provider agrees not to solicit or accept partial or complete payment from or on behalf of Client for any such Prime Engagement outside of SquadGurus’ invoicing and payment process, and (b) for Managed Engagements, Provider agrees to keep SquadGurus informed of all invoicing and payment activity relating to any such Managed Engagement.
7.3. Notwithstanding the foregoing, the Exclusivity Period shall not apply if both Client and Provider declare and provide evidence to the effect that there is an active pre-existing relationship between them at the time either of them is identified to the other through the Platform and the Services. In this context, active shall mean the existence of an active documented sales pursuit or procurement action involving both parties, or a contractual relationship that is either pending, in effect, or has terminated within the twelve (12) months prior to such identification. For the avoidance of doubt, the listing of either party in a prospect or marketing database, stale opportunities that have expired or been awarded to another party, leads captured via marketing channels and similar types of data or connections shall not constitute an active pre-existing relationship.
7.4. You agree to notify SquadGurus immediately upon becoming aware of any breach or attempted breach of the restrictions in this Section 7 by any Client, Provider, or User.
8. Non-Solicitation of Personnel. Without limiting the restrictions on Client and Provider in Section 7, during the term of these Terms, and for a period of twelve (12) months following the termination of these Terms, no party shall employ, hire, engage, or solicit to employ, hire, or engage, or otherwise interfere with, procure or entice away, either directly or indirectly, alone or jointly with other entities, any employee or contractor of the other party, including Provider personnel who were involved in, or proposed by name to be involved in, the performance of any IT Services under this Agreement. Nothing in this Agreement shall prohibit the employment of any person who, independently and without any suggestion by the employing party, responds to a general and public advertisement for employment. However, in the case of Provider personnel introduced to Clients by either Provider or SquadGurus, the following terms shall apply:
8.1. In the event that Client (or any customer of Client that received services from Provider) employs, hires, engages, or solicits to employ, hire, or engage, or otherwise interferes with, procures or entices away, either directly or indirectly, alone or jointly with other entities, any Provider personnel who were involved in, or proposed by name to be involved in, the performance of any IT Services under this Agreement without express, written permission of Provider, Client shall pay SquadGurus (in the case of a Prime Engagement) or Provider (in the case of a Managed Engagement) liquidated damages equal to one hundred percent (100%) of twelve (12) months of the proposed, quoted, or actual rate of such Provider personnel. Any liquidated damages shall be subject to the SquadGurus Platform Fee as set forth above.
8.2. Notwithstanding the foregoing, SquadGurus acknowledges that Client may wish to negotiate with Provider to hire Provider personnel as an employee or otherwise permanently engage one or more Provider personnel in a non-employee role. In such a case, Client and Provider may mutually agree to any terms, including a Conversion Fee acceptable to both parties, and shall document such agreement in an applicable Statement of Work. Any Conversion Fee shall be subject to the SquadGurus Platform Fee as set forth above.
8.3. You agree to notify SquadGurus immediately upon becoming aware of any breach or attempted breach of the restrictions in this Section 8 by any Client, Provider, or User.
9.1. The Platform and the Services and all intellectual property rights in and to the Platform and the Services are and shall remain the exclusive property of SquadGurus and its licensors. Neither these Terms nor your use of the Platform or receipt of any Services conveys or results in the grant to you of any rights in or related to the Platform or the Services except for the license expressly granted above.
9.2. You own Your Content; provided, however, that, in addition to the limited license granted to us pursuant to Section 5.2(c) above, (a) ownership of Provider work product and deliverables relating to any Engagement shall be as agreed between Client and Provider, as further described in the applicable Engagement Contract and/or SOW, (b) any and all suggestions or other feedback relating to the Platform or the Services (except for reviews or similar, as may be enabled through the Platform) are and will remain owned by SquadGurus without obligation for attribution or compensation or otherwise, and you hereby assign all right, title and interest in and to any and all such suggestions or other feedback to SquadGurus, and (c), SquadGurus may (i) generate, collect, possess, and/or analyze data and information derived by or through your use of the Platform and/or Services and, subject to our confidentiality obligations under these Terms, use such data and information to evaluate and improve the Platform and Services and (ii) may de-identify and aggregate such data and information with other, similar SquadGurus data such that the de-identified and aggregated information is not capable of being associated or identified with you or any individual, and in such event may use such de-identified and aggregated data and information without restriction.
10. Confidentiality. The terms governing the use of Client confidential information by a Provider in connection with any Engagement will be as set forth in the applicable Engagement Contract. As between you and us:
10.1. “Confidential Information” means all confidential and proprietary information of a party (the “Disclosing Party”) disclosed to the other party (the “Receiving Party”) in connection with the provision or use of the Platform and Services, and which is designated as confidential or which a reasonable person would consider to be confidential under the circumstances. Confidential Information includes (except as and to the extent disclosed by you to others using applicable features of the Platform) , without limitation, information about Opportunities, Engagements and potential Engagements, the identity of Clients, the terms of Engagement Contracts and SOWs, Your Content and any other non-public, proprietary information. Confidential Information does not include any information that (a) is or becomes publicly available other than by breach of this Section 10 by the Receiving Party; (b) was known by the Receiving Party prior to its disclosure by the Disclosing Party or becomes available to the Receiving Party on a non-confidential basis from a third party without breach of any obligation owed to the Disclosing Party; or (c) is independently developed by the Receiving Party without reference to Confidential Information of the Disclosing Party.
10.2. The Receiving Party shall protect the confidentiality of the Disclosing Party’s Confidential Information using the same degree of care as Receiving Party uses to protect its own Confidential Information, but in no event less than reasonable care. The Receiving Party may disclose the Disclosing Party’s Confidential Information to those of the Receiving Party’s personnel and representatives who need to know such Confidential Information, and Receiving Party and such personnel and representatives may use the Disclosing Party’s Confidential Information, in each case solely in connection with the provision or use of the Platform and Services or the performance and enforcement of Engagement Contracts or these Terms and in compliance with all applicable law (including without limitation securities laws and data protection laws), provided that all such personnel and representatives are bound by confidentiality obligations at least as protective of the Disclosing Party’s Confidential Information as this Section 10.
10.3. If the Receiving Party is required by law or legal process to disclose Confidential Information of the Disclosing Party, it shall, to the extent legally permitted, provide the Disclosing Party with prior notice of such required disclosure and shall disclose only such Confidential Information as is legally required to be disclosed. Except where the Receiving Party and the Disclosing Party are adverse parties in the applicable proceedings, the Receiving Party shall, to the extent legally permitted, provide the Disclosing Party with reasonable assistance, at Disclosing Party’s expense, if the Disclosing Party undertakes to obtain a protective order or other appropriate remedy in connection with such Confidential Information.
10.4. You acknowledge and agree that any breach or threatened breach of this Section 10 will cause the Disclosing Party irreparable harm for which ordinary remedies are inadequate. Accordingly, in addition to any other remedies available to it, the Disclosing Party shall be entitled to seek injunctive relief to enjoin any breach or threatened breach of this Section 10 by the Receiving Party.
10.5. You and SquadGurus agree to comply with all data protection laws and regulations to the extent applicable your and our respective roles, rights, and obligations under these Terms and to our respective processing and transfer of personal data in the performance of these Terms and to your processing and transfer of personal data in the performance of any Engagement Contract or SOW. You and SquadGurus agree to negotiate in good faith and execute any supplemental agreements or addenda necessary or useful in complying with such laws and regulations.
11. Warranties; Disclaimers; Limitation of Liability.
11.1. You represent and warrant that (a) these Terms have been duly authorized, accepted by and constitute a valid and binding agreement enforceable against you in accordance with their terms; (b) the execution, delivery and performance of these Terms does not and will not violate (i) the terms or conditions of any other agreement to which you are a party or by which you otherwise are bound or (ii) any law or regulation applicable to you.
11.2. Except as expressly set forth in these Terms, SquadGurus makes no representations or warranties, whether express or implied, with regard to the Platform or the Services. To the fullest extent permitted by applicable law, SquadGurus and its licensors hereby disclaim all other warranties, including without limitation any warranties of merchantability, fitness for a particular purpose, and non-infringement. Except as expressly set forth in these Terms, the Platform and Services are provided “AS IS” and neither SquadGurus nor its licensors warrant that the Platform or the Services shall be uninterrupted or error free, or that any errors or defects can be corrected. SquadGurus does not make any representation or warranty as to (a) the availability, reliability, or qualifications of any Provider or to the nature, business, or legitimacy of any Client, Opportunity or Engagement, regardless of any ratings, rankings, order of presentation, comments, filtering or other functionality of the Platform or of any assistance provided by SquadGurus to Client or Provider as part of the Services, (b) any outcome of using the Platform and/or the Services, including without limitation that (i) any Opportunity will be matched with an appropriate (or any) Provider, (ii) any Provider will be engaged in connection with any Opportunity or earn any revenue, (iii) that any Engagement will be completed or paid for to Client’s or Provider’s satisfaction.
11.3. As between you and SquadGurus, to the maximum extent permitted by applicable law, in no event will you or SquadGurus be liable for any special, consequential, incidental, exemplary, punitive, indirect or similar losses or damages of any nature including, but not limited to, costs or damages due to loss of profits, business opportunities, revenue, goodwill, production or use, business interruption, procurement of substitute goods or services, or the loss or cost of recreating any data, arising out of or in connection with these Terms, and regardless of the cause of action or the theory of liability, whether in tort, contract or otherwise, and whether or not advised of the possibility of such loss or damages, and regardless of whether the remedies provided under these Terms fail of their essential purpose.
12.1. By Provider: You agree to indemnify, defend and hold harmless SquadGurus and its affiliates, officers, directors, employees, representatives and agents from any and all claims, actions, damages, liabilities, costs, and expenses (including, but not limited to, reasonable attorneys’ fees and all related costs and expenses) arising from or relating to (a) your use of the Platform and Services, (b) any services you provide to any Client in connection with any Engagement, Engagement Contract or SOW, (c) your violation or alleged violation of any antidiscrimination, anti-harassment, wage, tax, workers’ compensation, employment, export or other applicable law relating to any Engagement for which you have sought to provide services to a Client or any Engagement Contract or SOW to which you are a party, (d) Your Content, and (e) your violation of these Terms.
12.2. By Client: You agree to indemnify, defend and hold harmless SquadGurus and its affiliates, officers, directors, employees, representatives and agents from any and all claims, actions, damages, liabilities, costs, and expenses (including, but not limited to, reasonable attorneys’ fees and all related costs and expenses) arising from or relating to: (a) your use of the Platform and Services, (b) your violation or alleged violation of any antidiscrimination, anti-harassment, wage, tax, workers’ compensation, employment, export or other applicable law relating to any Engagement for which you have sought to engage a Provider or any Engagement Contract or SOW to which you are a party, (c) Your Content, and (d) your violation of these Terms.
12.3. By SquadGurus. We agree to indemnify, defend and hold harmless Client, Provider, and their respective Users, affiliates, officers, directors, employees, representatives and agents (collectively, “Infringement Indemnitees”) from any and all claims, actions, damages, liabilities, costs, and expenses (including, but not limited to, reasonable attorneys’ fees and all related costs and expenses) arising from or relating to a third-party claim asserted against Infringement Indemnitees alleging that the Platform or the Services infringe any United States [or European Union] intellectual property right of that third party. If any portion of the Platform or the Services becomes, or in our opinion is likely to become, the subject of such a claim, SquadGurus will, at its option and expense, (a) procure for Infringement Indemnitees the right to continue using the Platform and/or Services, as applicable, (b) modify the Platform and/or Services, or applicable portion(s) thereof, to render them non-infringing without materially impairing their functionality, or (c) replace the Platform and/or Services, or applicable portion(s) thereof, with non-infringing replacements that do not materially impair the functionality of the Platform and/or Services, as applicable. If none of the foregoing options (a), (b), or (c) is commercially feasible, however, then SquadGurus shall have the right to terminate use of the Platform and Services by Infringement Indemnitees. SquadGurus shall have no obligation to Infringement Indemnitees with respect to any such claim arising from or attributable to (i) third-party software or other materials not developed by SquadGurus, (ii) modification of the Platform or Services by you or on your behalf other than by SquadGurus, (iii) combination of the Platform or Services with any materials not provided by SquadGurus, or (iv) use of the Platform or Services in violation of these Terms. This Section 12.3 constitutes Infringement Indemnitees’ sole and exclusive remedy, and the entire liability of SquadGurus and its affiliates, officers, directors, employees, representatives and agents, for infringement claims.
13.1. Changes. SquadGurus may change the features and functionality of the Platform or the scope of the Services. SquadGurus may also revise these Terms from time to time. If we revise these Terms, we will provide you with notice of the revised Terms, such as by sending an email, providing a notice through the Platform, or updating the date at the top of these Terms. Except as otherwise set forth in such notice, the revised Terms will be effective immediately upon publication and your continued access to and use of the Platform and the Services after such notice will confirm your acceptance of the revised Terms. If you do not agree to the revised Terms, you must stop accessing and using the Platform; provided, however, that any Engagement Contract under which there is an active SOW shall not be affected, and the parties to such Engagement Contract shall continue to perform such Engagement Contract and SOW as set forth therein, subject to the applicable provisions of these Terms as in effect prior to such revisions.
13.2. Relationship of the Parties. You acknowledge and agree that (a) the relationship established between you and SquadGurus is that of independent contractors and that nothing in these Terms will be construed as creating a joint venture, partnership, franchise, agency or employment relationship between SquadGurus and any Client, Provider, or User, (b) neither you nor SquadGurus will have any power or authority to create any obligation or responsibility on behalf of each other, (c) SquadGurus does not purchase or perform Provider services, is not a party to any Engagement Contract or SOW and, except as expressly set forth in these Terms with respect to the provision of the Platform and the applicable Services, will have no obligations under any Engagement Contract or SOW, (d) SquadGurus does not control, supervise, or endorse any Client, Provider, User, or Engagement, and (e) Providers are not entitled to any compensation or employment-type benefits whatsoever from SquadGurus other than the payment of amounts collected by SquadGurus from Clients on Provider’s behalf in connection with Prime Contracts, less the applicable SquadGurus Platform Fee, and are solely responsible for compensation, insurance, taxes, benefits and other employment matters and compliance relating to their Users and other Provider personnel.
13.3. Dispute Resolution; Governing Law.
(a) This provision requires you and us to arbitrate certain disputes and limits the manner in which both parties can seek relief. Please read it carefully. Arbitration prevents either party from suing the other party in court or from having a jury trial. This provision applies only to these Terms and not to any Engagement Contract, unless expressly stated otherwise in such Engagement Contract.
(b) You and we agree to arbitrate any dispute, claim, or controversy arising from or related to these Terms, except that neither you nor we shall be required to arbitrate any dispute in which either party seeks equitable and/or other relief for the alleged unlawful use of intellectual property rights or alleged breach of the confidentiality provisions of these Terms. In the event of such a dispute, claim, or controversy, prior to submitting a demand for arbitration, the complaining party shall notify the other party in writing. Within thirty (30) days of such notice, representatives of both parties shall attempt to resolve the dispute in good faith. Should the dispute not be resolved within thirty (30) days after such notice, the complaining party shall seek remedies exclusively through arbitration.
(c) Arbitration will be conducted confidentially in English in Boston, Massachusetts by a single arbitrator selected by the American Arbitration Association and conducted in accordance with the rules of the American Arbitration Association. Except as expressly provided in these Terms, the arbitrator shall have the authority to grant any remedy that would otherwise be available in court. The arbitrator will render a written opinion including findings of fact and law, and the award and determination of the arbitrator will bind the parties and will not be subject to appeal. Judgment may be entered upon the award of the arbitrator in any court of competent jurisdiction. The parties will equally share the expenses of the arbitration unless the arbitrator determines to apportion fees and expenses differently.
(d) To the fullest extent permitted by applicable law, whether the dispute is heard in arbitration or in court, no arbitration or claim under these Terms will be joined to any other arbitration or claim, including any arbitration or claim involving any other current or former user of the Platform or the Services, and neither you nor we will commence against the other a class action, class arbitration, or other representative action or proceeding.
(e) You and we expressly intend that the Federal Arbitration Act, 9 U.S.C. § 1 et seq. and rules of the American Arbitration Association, will (i) govern the interpretation and enforcement of these Terms and any proceedings related to these Terms and (ii) preempt all state laws to the fullest extent permitted by law. If such Act and rules are found to not apply to any issue that arises under these Terms, then that issue shall be resolved under the laws of the United States and the State of Delaware.
13.4. Waiver of Jury Trial. You and we hereby waive to the fullest extent permitted by applicable law, any right you or we may have to a trial by jury in connection with any matter arising out of or relating to these Terms or the provision or use of the Platform or Services.
13.5. Entire Agreement; Order of Precedence. These Terms set forth the entire agreement and understanding of the parties relating to the subject matter of these Terms, provided that specific Engagements shall also be governed by the applicable Engagement Contracts and SOWs thereunder. In the event of any conflict between these Terms, on the one hand, and any Engagement Contract or SOW, on the other, these Terms shall control as between You and SquadGurus, provided that with respect to subject matter intended by the parties to be addressed in an Engagement Contract or SOW rather than in these terms, such as, by way of example and not of limitation, Engagement scope, timelines, deliverables, ownership of Provider work product and deliverables, and fees (other than as to the obligation to provide information to and to pay SquadGurus), shall be controlled by the applicable Engagement Contract or SOW.
13.6. Amendment and Waiver. The failure of either party to insist upon strict performance by the other party of any provision of these Terms or to exercise any right hereunder, or the waiver by a party of a breach by the other party of any such provision, shall not be construed as a waiver or relinquishment to any extent of such party’s right to assert or rely upon any such provision or right in that or any other instance, and the same shall be and remain in full force and effect. No amendment or modification of any provision of these Terms shall be valid unless in writing signed by both parties.
13.7. Headings. The descriptive headings of the sections of these Terms are for convenience only and do not control or affect the meaning or construction of any section.
13.8. Force Majeure. No party to these Terms shall be deemed in default of these Terms to the extent that performance of its obligations (other than payment obligations) is delayed or prevented by reason of Force Majeure. “Force Majeure” means, in the case of any party, any cause beyond such party’s reasonable control, including, without limitation, accident to equipment or personnel, fire, acts of nature, war, terrorism, civil unrest, act or decree of any governmental body, failure or unavailability of communications lines, utilities or the internet, labor or industrial disturbance, pandemic, quarantine, or other natural or artificial disaster.
13.9. Assignment. You must not assign these Terms or any of your rights or obligations under these Terms without our prior written approval, except to your affiliate or successor in connection with a merger, consolidation, reorganization, or acquisition of all or substantially all of your assets or business. Any assignment or attempted assignment other than to such affiliate or successor without such approval shall be void. These Terms shall be binding on and inure to the benefit of the parties hereto, their successors and permitted assigns.
13.10. Severability. If any provision of these Terms is held to be invalid or unenforceable, such provision shall be reformed and enforced as nearly as possible in accordance with the stated intention of the parties, and the remaining provisions shall be enforced to the fullest extent permitted under applicable law.