- Access to the Site and/or Services; Account Profile
- Certain Restrictions.
- User Responsibilities.
You are responsible for evaluating and determining the suitability of any project, Client, or Fractional Candidate on their own. You acknowledge and agree that (i) Company is not a hiring entity, an agent of a Client, or employer of any Fractional Candidates; (ii) Company does not guarantee that any Fractional Candidate will be available to provide services to Users; (iii) Company is not a party to the relationship or any dealings between Clients and a Fractional Candidate; and (iv) You are solely responsible for: (A) ensuring the accuracy and legality of any User Content; (B) entering into any agreements with other Users. Fractional Candidates (whether they are individuals or entities) are independent contractors who use the Platform to offer and provide services to Clients and are solely responsible for (i) determining which projects to accept; (ii) the time, place, and manner of providing any Fractional Candidate services and (iii) the price they charge for their services. Shiny does not make any representations about or guarantee the truth or accuracy of any Fractional Candidate’s or Your listings or other User Content on the Site and/or Platform. In the event that Clients are entities such as, for example, venture capital or private equity firm, that retain Fractional Candidates on behalf of third parties, such Clients shall be solely responsible for such third parties’ compliance with these terms and the Fractional Candidate Terms.
For any agreement entered into by Client and the Fractional Candidate, Company receives 15% of the total fees invoiced for the contract term (the “Fees”). Any payment processing fees through the Platform may be paid by Client or the Fractional Candidate in our sole discretion. In the event that Client seeks to directly engage Company’s Fractional Candidates, Client will pay Company a fee of 15% of the annual compensation including bonuses and any other cash compensation (the “Conversion Fee”) which shall be payable within 45 days of Fractional Candidate’s start date, provided the Fractional Candidate remains employed with Client for 6 months from the Start Date. If such a Fractional Candidate voluntarily terminates the employment with Client before 6 months, we will refund Client the Conversion Fee (less any payment processing fees). Fees and Conversion Fees shall be automatically charged through our Platform.
Fractional Candidates shall provide Clients invoices solely through the Platform. Fractional Candidates, or any subsidiaries, parent companies, partnerships, holdings, or investors related to Fractional Candidates, shall not seek to invoice Clients without using Company’s Platform as the intermediary of the transaction, or in any way otherwise circumvent, or attempt to circumvent, Company’s ability to facilitate invoices to Client through its Platform. In the event that such circumvention occurs, Company in its sole discretion may remove the parties from the Platform for any time period determined by the Company, including, indefinitely, or terminate the Agreement between the Company and the parties. The parties may be reinstated upon payment of a Reinstatement Fee equal to fifteen percent (15%) of the invoices invoiced outside of the Platform.
- Ownership/Intellectual Property.
- User Content.
You may not represent or imply to others that your User Content is in any way provided, sponsored, or endorsed by Company. By posting your information and other content (“User Content”) on or through the Site and/or Services, You grant Company a worldwide, non-exclusive, perpetual, irrevocable, royalty-free, fully paid, sublicensable and transferable license to use, modify, reproduce, distribute, display, publish and perform User Content in connection with the Site and/or Services. Company has the right, but not the obligation, to monitor the Site and User Content. Company may remove or disable any User Content at any time for any reason, or for no reason at all. We reserve the right to disclose User Content and any information related to Your User Content, to third parties in connection with the operation and provision of the Services, to enforce the terms of any agreement that we have with You, to comply with legal obligations and requests from governmental authorities, law enforcement agencies, court orders, or subpoenas, and to protect the interests of the Company where necessary. For the avoidance of doubt, You agree that we have the right to disclose your identity to a third party who is claiming that any User Content You posted, provided, or uploaded is fraudulent, false, or misleading or constitutes a violation of the law, or a violation of their intellectual property or ownership rights, or of their right to privacy. You hereby release the Company from any liability under any legal theory in connection with the use, modification, sale, or disclosure of any of your User Content.
- Links to Third Party Sites.
Sites linked through the Services are not under the control of the Company and the Company is not responsible for the contents of any linked site, any link contained in a linked site, or any changes or updates to such sites. The Company is not responsible for webcasting or any other form of transmission received from any linked site. The Company is providing these links to you only as a convenience, and the inclusion of any link does not imply endorsement of the site by the Company.
- Relationship of the Parties.
- THE SITE AND SERVICES ARE PROVIDED ON AN “AS-IS” AND “AS AVAILABLE” BASIS, AND COMPANY (AND OUR SUPPLIERS) EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING ALL WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, ACCURACY, OR NON-INFRINGEMENT. WE (AND OUR SUPPLIERS) MAKE NO WARRANTY THAT THE SITE OR SERVICES WILL MEET YOUR REQUIREMENTS, WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE BASIS, OR WILL BE ACCURATE, RELIABLE, FREE OF VIRUSES OR OTHER HARMFUL CODE, COMPLETE, LEGAL, OR SAFE. IF APPLICABLE LAW REQUIRES ANY WARRANTIES WITH RESPECT TO THE SITE OR SERVICES, ALL SUCH WARRANTIES ARE LIMITED IN DURATION TO NINETY (90) DAYS FROM THE DATE OF FIRST USE.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU. SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
- TO THE MAXIMUM EXTENT PERMITTED BY LAW, NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, OUR LIABILITY TO YOU FOR ANY DAMAGES ARISING FROM OR RELATED TO THIS AGREEMENT (FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION), WILL AT ALL TIMES BE LIMITED TO A MAXIMUM OF FIFTY US DOLLARS (U.S. $50). THE EXISTENCE OF MORE THAN ONE CLAIM WILL NOT ENLARGE THIS LIMIT. YOU AGREE THAT OUR SUPPLIERS WILL HAVE NO LIABILITY OF ANY KIND ARISING FROM OR RELATING TO THIS AGREEMENT.
SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.
You (the “Indemnifying Party”) shall indemnify, defend, and hold Company, its licensors and their respective parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys and agents (the “Indemnitees”) harmless from and against any and all claims, costs, damages, losses, liabilities and expenses, including reasonable legal fees and costs, (the “Losses”) arising out of or in connection with: (a) any claim based on any alleged misuse of the Platform, the Site or Services by You, or a claim that any User Content infringes the copyright, trademark, or patent rights of any third party; (b) any alleged conduct which would constitute a breach of Your representations and warranties set forth herein; (c) any violation of law; and (d) where the Indemnifying Party is the Client, the Client shall indemnify, defend, and hold Company and its Indemnitees harmless for Losses resulting from, or in connection with, Fractional Candidate’s provision of services to, and/or agreement with, Client, including any claims by by Client’s third parties, or any third party or government agency.
- Term and Termination.
- COPYRIGHT ACT OF 1998 (DMCA).
Company respects the intellectual property of others and asks that users of our Site and/or Services do the same. In connection with our Site and/or Services, we have adopted and implemented a policy respecting copyright law that provides for the removal of any infringing materials and for the termination, in appropriate circumstances, of users of our online Site and/or Services who are repeat infringers of intellectual property rights, including copyrights. If you believe that one of our users is, through the use of our Site and/or Services, unlawfully infringing the copyright(s) in a work, and wish to have the allegedly infringing material removed, the following information in the form of a written notification (pursuant to 17 U.S.C. § 512(c)) must be provided to our designated Copyright Agent:
- your physical or electronic signature;
- identification of the copyrighted work(s) that you claim to have been infringed;
- identification of the material on our services that you claim is infringing and that you request us to remove;
- sufficient information to permit us to locate such material;
- your address, telephone number, and e-mail address;
- a statement that you have a good faith belief that use of the objectionable material is not authorized by the copyright owner, its agent, or under the law; and
- a statement that the information in the notification is accurate, and under penalty of perjury, that you are either the owner of the copyright that has allegedly been infringed or that you are authorized to act on behalf of the copyright owner.
- Please note that, pursuant to 17 U.S.C. § 512(f), any misrepresentation of material fact (falsities) in a written notification automatically subjects the complaining party to liability for any damages, costs and attorney’s fees incurred by us in connection with the written notification and allegation of copyright infringement.
You must submit your written notice containing the above information by, email, or postal to the following Designated Agent: email@example.com.
If content You posted on the site was removed due to a claim(s) of copyright infringement and You would like to dispute that removal, the process for counter-notifications is governed by Section 512(g) of the DMCA, You must provide a written communication that sets forth the items specified below. Please note that under Section 512(f) of the DMCA, any person who knowingly materially misrepresents that material or activity was removed or disabled by mistake or misidentification may be subject to liability. Please also be advised that we enforce a policy that provides for the termination in appropriate circumstances of users (and removal of content from users) who are infringers. Accordingly, if you are not sure whether certain material infringes the copyrights of others, we suggest that You first contact an attorney.
To expedite our ability to process your counter-notification, please use the following format:
- Identify the specific URLs of material that the Company has removed or to which the Company has disabled access.
- Provide your full name, address, telephone number, email address, and, if You are a registered User, the Username of your Account.
- Provide a statement that You consent to the jurisdiction of the courts of the state of New York, and that You will accept service of process from the person who provided notification to the Company in accordance with the process outlined above or an agent of such person.
- Include the following statement: “I swear, under penalty of perjury, that I have a good faith belief that the material was removed or disabled as a result of a mistake or mis-identification of the material to be removed or disabled.”
If You are providing notice by email, a scanned physical signature or a valid electronic signature will be accepted. Send the communication to the address at the end of this Agreement.
Disputes concerning patents, copyrights, moral rights, trademarks, and trade secrets and claims of piracy or unauthorized use of the Site, Platform, and/or Services shall not be subject to arbitration, and the notice and 30-day negotiation period required by this paragraph shall not apply to these types of Disputes.
Except as otherwise specifically set forth below, any Dispute of any kind, if unresolved through informal discussions within 30 days of the sending of the notice described above, shall be resolved by binding arbitration to be held in New York. THE PARTIES HEREBY WAIVE THEIR CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY, instead electing that all claims and disputes shall be resolved by arbitration under the Arbitration terms herein. You agree to submit to the personal jurisdiction of any state or federal court in New York, New York to compel arbitration, stay proceedings pending arbitration, or to confirm, modify, vacate, or enter judgment on the award entered by the arbitrator(s). Arbitration procedures are typically more limited, more efficient and less costly than rules applicable in a court and are subject to very limited review by a court.
You have the right to opt out and not be bound by the provisions requiring arbitration by sending written notice of your decision to opt out to firstname.lastname@example.org.
All aspects of the arbitration proceeding, including but not limited to the award of the arbitrator and compliance therewith, shall be strictly confidential. The parties agree to maintain confidentiality unless otherwise required by law. This paragraph shall not prevent a party from submitting to a court of law any information necessary to enforce this Agreement, to enforce an arbitration award, or to seek injunctive or equitable relief.
If any part or parts of these arbitration terms are found under the law to be invalid or unenforceable by a court of competent jurisdiction, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the arbitration terms shall continue in full force and effect.
- Waiver of Jury Trial.
In the event any litigation should arise between You and the Company in any state or federal court in a suit to vacate or enforce an arbitration award or otherwise, YOU AND THE COMPANY WAIVE ALL RIGHTS TO A JURY TRIAL, instead electing that the dispute be resolved by a judge.
- Waiver of Class or Consolidated Actions.
ALL CLAIMS AND DISPUTES MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS, AND CLAIMS OF MORE THAN USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER USER.
- Small Claims Court. Notwithstanding the foregoing, either You or the Company may bring an individual action in small claims court.
Notwithstanding the foregoing, either party may seek emergency equitable relief before a state or federal court in order to maintain the status quo pending arbitration. A request for interim measures shall not be deemed a waiver of any other rights or obligations under this Arbitration Agreement.
The Site and/or Services may be subject to U.S. export control laws and may be subject to export or import regulations in other countries. You agree not to export, reexport, or transfer, directly or indirectly, any U.S. technical data acquired from Company, or any products utilizing such data, in violation of the United States export laws or regulations.
- Electronic Communications.
The communications between You and Company use electronic means, whether You use the Site and/or Services or send us emails, or whether Company posts notices on the Site or communicates with You via email. For contractual purposes, You (a) consent to receive communications from Company in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Company provides to You electronically satisfy any legal requirement that such communications would satisfy if it were in a hardcopy writing. The foregoing does not affect your non-waivable rights.
- Entire Agreement.
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