About These Terms of Service
These Terms of Service (“Terms”) govern your use and access of the platform and website (collectively, “Platform”) owned and operated by TalNow, LLC (“TalNow,” “the Company,” “we,” “our,” or “us”). By using TalNow’s Platform and/or creating an account on TalNow’s website, you accept and agree to be bound by these Terms. TalNow may revise these Terms at any time by updating them as they are displayed on the TalNow website. We are not required to contact you prior to changing these Terms. You should visit this page periodically to review these Terms, because they are binding on you.
Use of Platform
TalNow provides users with access to the Platform on which business owners or other professionals (“Clients”) can obtain access to independent freelance experts (“Experts”) to assist with specific projects (each, a “Project”) at a fraction of the cost that would be charged by larger consulting firms, and on which Experts can apply for specific Projects that best suit their experience, education, geography and interests. At such time as a Client has selected an Expert for a Project, the Client and the Expert will be responsible for negotiating the terms of the consulting agreement or service contract (the “Service Contract”), which must provide, at a minimum, that all amounts owing by the Client to the Expert shall be paid to TalNow, who shall then be entitled to retain its percentage of any such amounts and distribute the remaining amounts to the Expert. TALNOW IS NOT A PARTY TO ANY SERVICE CONTRACT AND SHALL HAVE NO LIABILITY WITH RESPECT TO ANY SERVICE CONTRACT ENTERED INTO BY A CLIENT AND AN EXPERT.
Each Expert that uses the Platform hereby represents and warrants that such Expert will only: (a) upload information to TalNow’s website that accurately depicts such Expert’s background and experience; (b) accept Projects that do not present any conflict of interest and that do not violate any current contract, current employer’s policies, or non-competition or non-solicitation provisions applicable to such Expert; and (c) accept Projects where Expert has relevant first-hand experience to assist with such Project. An Expert shall promptly update his or her personal information to reflect any changes in the foregoing information.
While the Platform strives to provide accurate information and while TalNow conduct its own diligence on Experts and Clients, TalNow’s business model inherently requires that it rely upon certain information provided by the Experts and the Clients. TalNow makes no representation (express or implied) as to the suitability of an Expert, a Client or a Project. TalNow reserves the right, in its reasonable discretion, to remove any content that TalNow deems to have violated these Terms or if such content poses a risk to TalNow’s reputation, business or operations.
The Platform is available only to legal entities and individuals that are eighteen (18) years or over. If you are using the Platform on behalf of a company or any other entity, you represent and warrant that: (i) you have the authority to bind such entity and any other representative of such entity that utilizes the Platform has the authority to bind such entity; (ii) such entity is responsible for any breach of these Terms by any of its representatives; (iii) you have reached the age of majority; (iv) you have the right, authority and capacity to agree to and abide by these Terms; and (v) you will use the Platform in a manner consistent with all applicable laws and regulations. The terms “you,” “your” and “user” as used herein will apply to you, if you are an individual utilizing the Platform, or to the entity of which you are the representative.
By creating an account, you represent and warrant that you are not: (a) a citizen or resident of a country in which use or participation of the Platform is prohibited by law, decree, regulation, treaty or administrative act; (b) a citizen or resident of, or located in, a country or region that is subject to U.S. or other sovereign country sanctions or embargoes; or (c) an individual or an individual employed by or associated with an entity identified on the U.S. Department of Commerce’s Denied Persons or Entity List, the U.S. Department of Treasury’s Specially Designated Nationals or Blocked Persons Lists, or the Department of State’s Debarred Parties List or otherwise ineligible to receive items subject to U.S. export control laws and regulations, or other economic sanction rules of any sovereign nation.
When creating an account, you are requested to provide responses to the items necessary to register your account as an Expert or a Client, as applicable. Each user must maintain the confidentiality of his or her password as the user is responsible for all activity that occurs under such user’s account when authenticated with his or her password. You agree to notify TalNow immediately of any unauthorized use of your account or password, or any other breach of security. Your granting of permission to other users is at your own risk and TalNow is not responsible for any action taken by those other users. If you lose your password, TalNow may e-mail your password to the e-mail address in its records and associated with your account. TalNow is not liable for any misuse as a result thereof.
When creating a user account, each user shall be responsible for providing their qualifications, experience, background, contact information and other relevant information as necessary to establish a user account on the Platform. Each user represents and warrants the information provided to TalNow to create such user’s account is and shall remain accurate, true and correct, and that you will promptly update such information to reflect any changes in your information. If a user is determined to have fabricated any information in establishing his or her account or to have violated these Terms, which determination shall be made in the sole discretion of TalNow, then TalNow may, with or without notice and without liability to the user whose access is affected, immediately suspend such user’s access and/or cancel such user’s registration with the Platform. TalNow further reserves the right to suspend and/or cancel a user’s account if user does not respond to TalNow’s requests for information in a timely manner, as determined in TalNow’s sole discretion.
Experts’ Status as Independent Contractors
It is specifically acknowledged, agreed and understood that in registering to use the Platform or being retained for a Project, the Expert is acting as an independent contractor and not as an agent or employee of TalNow or any Client that retains such Expert. An Expert has no authority to bind TalNow, to enter into any contracts or agreements on behalf of TalNow, or to represent that such contractor has the authority to do so. Each Expert acknowledges that he or she has been advised by the TalNow of the Expert’s legal responsibility to pay all federal, state and local income taxes and social security, Medicare and employment taxes incurred by such Expert as a result of being hired for a Project or otherwise being paid in connection with the use of the Platform, and by registered on the Platform, each Expert hereby agrees to be solely responsible for same. Each Expert hereby agrees to indemnify, defend and hold harmless TalNow and any Client from and against all claims and damages (including, without limitation, all taxes, penalties, interest, costs of litigation, accountants’ fees and attorneys’ fees) relating to or arising from such Expert’s failure or alleged failure to timely pay any and all withholding and/or other taxes related to any and all payments made to the Expert pursuant to these Terms or the underlying financial arrangement for any Project. Each Expert agrees to provide any such information to TalNow or the Client as may be necessary to ensure that the relationship established by such parties is solely that of an independent contractor.
Fees and Payment
Prior to TalNow advertising a Project on its Platform and prior to reaching out to its vast network of Experts, TalNow and the Client will agree upon a specific budget for the Project, after which time there shall be no additional charges to Clients unless otherwise agreed by the parties. If, after the commencement of the Project, the scope of the Project expands, and the Client requires additional services from the Expert that were not reflected in the initial budget, the parties agree to use their best efforts to update the budget to reflect such additional services to be rendered.
TalNow charges Experts a ten percent (10%) service fee out of the total amounts paid by a Client to an Expert for a Project, and the Client is not charged any amounts in excess of those agreed upon by the parties, except as set forth above. TalNow reserves the right to change its service fee at any time that it deems appropriate, in its sole discretion, including by updating these Terms; provided, that after the commencement of a specific Project, the service fee charged for such Project shall not increase without the Expert’s prior consent. The fees for a Project shall be paid upon such terms as shall be agreed upon by the parties, which may include weekly payments, monthly payments, payments upon attaining specific Project milestones, or otherwise. The Client and the Expert may further negotiate the terms of any such engagement, including the number or hours that the Expert shall work each week and the location where such services shall be rendered; provided, that TalNow shall have the right to review and approve of the final engagement terms prior to the execution of a definitive agreement setting forth the terms of such engagement, as appropriate, or the commencement of services. The parties must provide TalNow with a copy of a fully-executed agreement or agreed-upon terms of a Project prior to the commencement thereof.
Commencing on the date that TalNow first connects a Client with an Expert and terminating on the later of such date that is one year after (i) the date that the Expert and Client are first introduced through the Platform or (ii) the date that the Expert completes its final Project with the Client (“Exclusivity Period”), the Client will not retain the services of such Expert in any capacity other than through the use the Platform. During the Exclusivity Period, the Client shall not make any payments to any such Expert outside of the Platform, or otherwise circumvent TalNow’s role as payment processor or coordinator, and any violation of the foregoing restrictions is a material breach of these Terms. EACH OF THE EXPERT AND THE CLIENT WILL NOTIFY TALNOW IMMEDIATELY IF THE OTHER OF THE EXPERT OR THE CLIENT, AS APPROPRIATE, ATTEMPTS TO ENGAGE IN ANY RELATIONSHIP WITH THE OTHER PARTY OUTSIDE OF THE PLATFORM, IF SUCH SUGGESTION ARISES DURING THE EXCLUSIVITY PERIOD.
If, during the Exclusivity Period, a Client offers traditional employment to an Expert, the Client agrees to pay TalNow a fee of thirty percent (30%) of the annualized compensation payable to said Expert (the “Employment Fee”), which includes the annualized base salary and any signing, discretionary or other bonuses or commissions. Such fee shall be paid by the Client to the Expert within thirty (30) days after the commencement of the Expert’s employment. If, during the Exclusivity Period, a Client offers any non-employee role to an Expert or engages the Expert for any other matter other than the Project, TalNow shall, on a case-by-case basis, charge a reasonable fee for such engagement.
TALNOW DOES NOT REPRESENT OR WARRANT THAT THE PLATFORM WILL OPERATE ERROR-FREE OR THAT THE PLATFORM AND TALNOW’S SERVERS ARE FREE OF COMPUTER VIRUSES OR OTHER HARMFUL MECHANISMS. IF YOUR USE OF THE PLATFORM RESULTS IN THE NEED FOR SERVICING OR REPLACING EQUIPMENT OR DATA, TALNOW IS NOT RESPONSIBLE FOR THOSE COSTS. THE PLATFORM AND ITS CONTENT ARE PROVIDED ON AN “AS IS” BASIS WITHOUT ANY WARRANTIES OF ANY KIND. TO THE FULLEST EXTENT PERMITTED BY LAW, TALNOW DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING THE WARRANTY OF MERCHANTABILITY, FITNESS FOR PARTICULAR PURPOSE AND NON-INFRINGEMENT.
No Liability for Services Rendered on a Project
Each user is solely responsible for all decisions made in connection with the engagement of an Expert by a Client to render services for a Project. TalNow makes no representation or warranty (express or implied) that the Expert’s services will meet the Client’s needs, meet the Expert’s needs or be accurate or complete.
Limitation on Damages
YOU USE THE PLATFORM ENTIRELY AT YOUR OWN RISK. IN NO EVENT WILL TALNOW OR ITS AFFILIATES BE LIABLE FOR ANY DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, INCIDENTAL AND CONSEQUENTIAL DAMAGES, LOST PROFITS, LITIGATION COSTS OR DAMAGES RESULTING FROM LOST DATA OR BUSINESS INTERRUPTION) RESULTING FROM THE USE OR INABILITY TO USE TALNOW’S WEBSITE OR THE PLATFORM, WHETHER BASED IN CONTRACT, TORT, STRICT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT TALNOW IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL TALNOW’S TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES OR CAUSES OR ACTION EXCEED THE AMOUNTS REMITTED TO YOU BY TALNOW IN THE PAST THREE (3) MONTHS, OR $100, WHICHEVER IS GREATER. THE EXCLUSIONS AND LIMITATIONS OF LIABILITY IN THESE TERMS OF SERVICE WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. THIS SECTION SHALL SURVIVE ANY EXPIRATION OR TERMINATION OF YOUR RELATIONSHIP WITH TALNOW.
You agree to defend, indemnify and hold harmless TalNow and its affiliates, managers, members, officers, employees, representatives and agents, from and against any claims, actions or demands, including reasonable legal and accounting fees, arising out of (i) your use of TalNow’s website or the Platform, (ii) any services that anlin EXPERT has provided, (iii) any content that a user has posted (or authorized to be posted) to the Platform, (iv) any actions taken by you or your agents, whether authorized by you or not, with respect to your user account, and (v) your violation of these Terms. TalNow shall provide notice to you of any such claim, suit or proceeding, and will assist you, at your expense, in defending any such claim, suit or proceeding. TalNow reserves the right to take over the exclusive defense of any claim for which it is entitled to indemnification hereunder. In such event, you must provide TalNow with any cooperation TalNow reasonably requests.
TalNow owns or is licensed to use all intellectual property on the Platform, other than content posted by Experts and Clients, which shall remain your intellectual property but which you license to TalNow in accordance with these Terms. You may not use any of TalNow’s intellectual property, including its name, for any purpose other than as may be required to use the Platform for its intended purpose. You grant to TalNow an unconditional, worldwide and irrevocable, fully-paid and royalty free license and right to use, display, copy, modify, adapt, reproduce, commercialize, prepare derivative works, display and publish all your intellectual property and that content forming all or part of the information that you upload to the Platform, for any purpose.
By using the Platform, you represent and warrant that you own or are licensed to use the intellectual property rights in the content that you upload to the Platform. This includes, without limitation, copyright in respect of any text you post, as well as the right to use or display any image or logo. You indemnify TalNow to the fullest extent permitted by law, and agree to keep TalNow indemnified, from and against any claims by third parties arising from any content that you upload to the Platform, including any breach of intellectual property rights any third party may bring against TalNow with respect to your content.
You may not use or display any trademarks, service marks, copyrighted material, patented information or any other intellectual property on the Platform without first obtaining the consent of the owner of such intellectual property. Nothing on the Platform creates any right on your part (express or implied) that would allow you to use or display any intellectual that you do not own, regardless of whether the intellectual property is currently registered.
“Confidential Information” shall include, without limitation, any non-public, confidential and/or proprietary information created, received or obtained by an Expert from or on behalf of a Client, TalNow or any other party with respect to the Project, including, without limitation, concerning the business, financial condition, operations, assets and liabilities of the disclosing party (“Disclosing Party”), as well as any idea, finding, research, data, specification, process, technique, algorithm, know-how, invention, design, plan, drawing, sketch, schematic, document, manual, report, study, photograph, sample, program, software, source code, prototype, customer list, customer information, customer data, price list, product description, marketing plans or work in process, regardless of the manner in which such information is delivered, disclosed or furnished. Confidential Information also includes the fact that discussions or negotiations are taking place between the parties, and any of the terms, conditions or facts with respect to a Project.
The Expert shall treat as strictly confidential all Confidential Information received from a Disclosing Party and shall use the Confidential Information solely for the benefit of the Disclosing Party in furtherance of the Project and for no other purpose.
Unless otherwise agreed in writing by the Disclosing Party: (a) the Expert agrees to keep confidential and not to disclose or reveal any Confidential Information of the Disclosing Party to any person without the Disclosing Party’s prior written consent; (b) the Expert agrees not to use Confidential Information of the Disclosing Party for any purpose other than with respect to the Project; and (c) except as required by law, the Expert agrees not to disclose to any person (other than the Disclosing Party’s representatives who are actively and directly participating in the Project) any information about the Project. The Expert acknowledges that he or she shall be responsible for any breach of the terms of this provision.
The obligations set forth in this Confidentiality section shall not apply to any Confidential Information that: (i) the Disclosing Party expressly agrees in writing is free of any nondisclosure obligations; (ii) at the time of disclosure to the Expert was known to the Expert free of any nondisclosure obligations; (iii) is independently developed by the Expert, or which is lawfully received by the Expert, free of any nondisclosure obligations, from a third party having the right to so furnish such Confidential Information; (iv) is or becomes generally available to the public without any breach of these Terms or any unauthorized disclosure of such Confidential Information by the Expert; or (v) must be disclosed pursuant to applicable federal, state or local law, regulation, court order or other legal process, provided the Expert has notified the Disclosing Party prior to such required disclosure and, to the extent reasonably possible, has given the Disclosing Party an opportunity to contest such required disclosure at the Disclosing Party’s expense.
Links to Other Sites
The TalNow Platform may contain links to third-party websites or embed functionality from third-party sites. These links and integrations are provided solely as a convenience to you and not as an endorsement by TalNow of the contents on such third-party Web sites. TalNow is not responsible for such third-party content or the collection of your information on linked third-party sites and does not make any representations regarding the content or accuracy of materials on such third-party websites. If you decide to access linked third-party websites through the Platform, you do so at your own risk.
Arbitration Agreement; Class Waiver; Waiver of Trial by Jury
Please read this Arbitration Agreement section carefully. It is part of your contract with TalNow and affects your rights. It contains procedures for MANDATORY BINDING ARBITRATION AND A CLASS ACTION WAIVER.
Applicability of Arbitration Agreement. All claims and disputes (excluding claims for injunctive or other equitable relief as set forth below) in connection with these Terms or the use of any TalNow product or service that cannot be resolved informally or in small claims court must be resolved by binding arbitration on an individual basis under the terms of this Arbitration Agreement. This Arbitration Agreement applies to you and TalNow, and to any subsidiaries, affiliates, agents, employees, predecessors in interest, successors and assigns, as well as all authorized or unauthorized users or beneficiaries of services provided under these Terms.
Notice Requirement and Informal Dispute Resolution. Before either party may seek arbitration, the party must first send to the other party a written Notice of Dispute (“Notice”) describing the nature and basis of the claim or dispute, and the requested relief. A Notice to the Company should be sent to TalNow, LLC at firstname.lastname@example.org. After the Notice is received, you and TalNow may attempt to resolve the dispute informally. If you and TalNow do not resolve the dispute within thirty (30) days after the Notice is received, either party may begin an arbitration proceeding. The amount of any settlement offer made by any party may not be disclosed to the arbitrator until after the arbitrator has determined the amount of the award, if any, to which either party is entitled.
Arbitration Rules. Arbitration must be initiated through the American Arbitration Association (“AAA”), an established alternative dispute resolution provider (“ADR Provider”) that offers arbitration as set forth in this section. If AAA is not available to arbitrate, the parties must agree to select an alternative ADR Provider. The rules of the ADR Provider (“Arbitration Rules”) will govern all aspects of this arbitration, including the method of initiating and/or demanding arbitration, except where such rules conflict with these Terms. The AAA Consumer Arbitration Rules governing the arbitration are available online at www.adr.org or by calling the AAA at (800) 778-7879. A single, neutral arbitrator must conduct the arbitration. Any claims or disputes where the total amount of the award sought is less than Ten Thousand U.S. Dollars (US $10,000.00) may be resolved through binding non-appearance-based arbitration, at the option of the party seeking relief. For claims or disputes where the total amount of the award sought is Ten Thousand U.S. Dollars (US $10,000.00) or more, the right to a hearing will be determined by the Arbitration Rules. Any hearing will be held in a location within the City of Chicago, Illinois, unless the parties agree otherwise. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Each party must bear its own costs (including attorney’s fees) and disbursements arising out of the arbitration, and must pay an equal share of the fees and costs of the ADR Provider.
Time Limits. If you or TalNow pursue arbitration, the arbitration must be initiated or demanded within the legal statute of limitations (i.e., the legal deadline for filing a claim) and any deadline imposed under the AAA Rules for the pertinent claim.
Authority of Arbitrator. If arbitration is initiated, the arbitrator will have all authority to decide the rights and liabilities, if any, of you and TalNow in accordance with applicable law, the Arbitration Rules and these Terms, and the dispute will not be consolidated with any other matters or joined with any other cases or parties. The award of the arbitrator is final and binding upon the parties.
Waiver of Jury Trial. The Parties hereby waive their constitutional and statutory rights to go to court and have a trial, instead electing that all claims and disputes must be resolved by arbitration under this Arbitration Agreement. If any litigation should arise between you and TalNow in any state or federal court in a suit to vacate or enforce an arbitration award or otherwise, you and TalNow 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 WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER USER.
Confidentiality. All aspects of the arbitration proceeding, including the award of the arbitrator and compliance therewith, must be kept confidential unless otherwise required by law. This paragraph does not prevent a party from submitting to a court of law any information necessary to enforce these Terms, to enforce an arbitration award, or to seek injunctive or equitable relief.
No Assignment. You may not assign these Terms or any of your rights or obligations hereunder without TalNow’s prior written consent, which may be withheld in its sole discretion. TalNow may freely its rights and obligations under these Terms or any other agreement between you and TalNow. Any attempted assignment or transfer in violation of these Terms will be null and void.
Severability. If any part or parts of these Terms are found under the law to be invalid or unenforceable by a court of competent jurisdiction, then such specific part or parts will be of no force and effect and will be severed and the remainder of these Terms will continue in full force and effect.
Governing Law. These Terms are governed by the laws of the State of Illinois, without respect to its conflict of laws principles.
Waiver. No waiver of any compliance with these Terms will be deemed a further or continuing waiver of such term or any other term.
Survival. All provisions of these Terms that by their nature must survive the termination of your use of the Platform will survive, including, without limitation, the Limitation on Damages, Indemnity, Arbitration Agreement, Class Waiver and Jury Trial Waiver.