Terms of Use

INTRODUCTION

Welcome to the Cherrypicker Inc. (the “Company”, “We”, “Us”, “Our,” “Cherrypicker”) Terms of Use of the Cherrypicker Service (collectively the “Services” or “Cherrypicker Services”).  When You (individually or the entity that You represent) use Our Services, You are agreeing to the Terms of Use (the “Agreement”) below. By accessing the Services, You agree to be bound by this Agreement, and any additional terms referenced herein, including Our Privacy Policy, Cherrypicker Search Agreement (specifically for “Clients” defined below), Recruiter Service Agreement (specifically for “Recruiters” defined below) and Subscription Agreement (specifically for “Clients” and “Recruiters” defined below) which sets out the terms in which We process any personal data (defined to include but not be limited to identifying contact information, email addresses, cell phone numbers, work phone numbers, employment history, education history, location, Name, salary data and profile image) collected from You, or provided to Us. If You do not agree to this Agreement, the Privacy Policy, and any other referenced agreements or documentation, You must not access the Services. In agreeing, You also represent that You have the authority to bind Yourself and/or the company You represent, and have disclosed all information to Cherrypicker as necessary to perform the Services. Capitalized terms are as defined throughout this Agreement.

SERVICES

This Agreement applies to all Cherrypicker Services including (a) www.getcherrypicker.com (the “Cherrypicker Site” and/or “Site”); (b) www.cherrypicker.app (the “Hiring Marketplace” and/or “Recruiter Platform”); (c) Cherrypicker-branded app(s) (the “App” and/or “Mobile App” and/or “Mobile Application”); (d) Cherrypicker Search Service (“Cherrypicker Search”); and (e) other Cherrypicker-related sites, apps, communications, and other services that state that they are offered under this Agreement (all of the prior services referred to in this Agreement as the “Service(s)”). This Agreement applies to all registered users of Our Services (“User(s),” or as used herein, “You,” “Your”, “Yourself”), including, but not limited to, Users who are seeking employment and/or contractor opportunities (“Candidates”), Users who are using the Recruiter Platform (“Recruiters”) and companies interested in hiring or engaging Candidates (“Clients” and/or “Employers”).

Please review the following terms carefully. By accessing or using the Service, you signify your agreement to these Terms of Use. If you do not agree to these Terms of Use, you may not access or use the Service.

USER TERMS DEFINED

“Candidate(s)” – Candidates are defined as any user(s) who may be seeking employment opportunities on a permanent or contractual basis through the Cherrypicker App or through Cherrypicker Search.  Candidates may organically join Cherrypicker via the Mobile App questionnaire or be invited to the Recruiter platform by a Recruiter. A Recruiter may also import Candidate information from their Applicant Tracking Software into Cherrypicker and invite the Candidate to join Cherrypicker with an invite code. To join the Cherrypicker Service, Candidates must be invited and/or approved by a Recruiter (defined below).  If a Candidate(s) is not invited or added by a Recruiter, they can download the mobile application from the Apple App Store or Google Play Store but must fill out the sign-up questionnaire within the App or through the sign-up form on the www.getcherrypicker.com Site. The Candidate will be placed on a waitlist where their profile will be reviewed and approved by A Recruiter on the Cherrypicker platform before joining.   Once the Candidate’s profile registration has been approved by a Recruiter, the Candidate can use the Service to maintain their profile with the most up-to-date and accurate information and chat with the Recruiter who represents them.  Candidates can receive, approve, or deny Introduction Requests (defined below) from Clients and receive notifications of job matches sent from Recruiters or Cherrypicker Clients from the Hiring Marketplace based on the Candidate’s job preferences and skillsets. Candidates are able to chat with their Recruiter and any Client(s) (defined below) who unlock their profile after mutual interest is established.

“Client(s)” – (or “Employer(s)”) are defined as the companies that use the Cherrypicker Hiring Marketplace or engage with Cherrypicker Search Services to source Candidates with the intention of hiring them. Clients can access the Hiring Marketplace on either a monthly or an annual subscription basis or on a pay-per-hire (defined below) basis as defined by the terms of their respective Service Agreement.  Clients may also engage with the Cherrypicker Search service where they can leverage Our approved network of Recruiters to conduct a targeted search for a specific Candidate background.  If a Client would like to engage with Cherrypicker Search, a separate Cherrypicker Search Agreement will be required and the terms will be mutually agreed upon between the Client and Cherrypicker. Any Candidate profile unlocked on the Hiring Marketplace is subject to a HIRING MARKETPLACE PLACEMENT FEE outlined in our HIRING MARKETPLACE PLACEMENT FEE AGREEMENT below.

“Recruiter(s)” – Recruiters are defined as Users who are licensees of the Cherrypicker Recruiter Platform and/or are independent recruiting firm partners and/or staffing agencies that are approved to work with Cherrypicker to supply Candidates to the Cherrypicker Service and/or partner with Cherrypicker Inc. on an engaged Cherrypicker Search service with a Client.  When Cherrypicker refers a Cherrypicker Search job requisition to a Recruiter, collectively they will share in the revenue generated from placing a Candidate with a Client from a Job Offer (defined as an offer of employment made by a Client to a Candidate).  Recruiters must enter into an agreed-upon Service Agreement with Cherrypicker to use Cherrypicker’s Services.  

PRIVACY POLICY

Cherrypicker respects the privacy of its Service users. Please refer to the Company’s Privacy Policy (found here: http://www.getcherrypicker.com/privacypolicy ) which explains how we collect, use, and disclose information that pertains to your privacy. When you access or use the Service, you signify your agreement to this Privacy Policy.

Please note that Cherrypicker may engage with Third-Party Email Marketing tools and firms to conduct email communications and invite potential Users to join the Cherrypicker Service.  We assume no responsibility for any errors or flaws in any Third-Party technology platform/service.  The Third-Party Email Marketing firm may contact you on a publicly available work email address if a personal email address is not readily available.  Cherrypicker assumes no risk for any adverse event related to this communication.  Cherrypicker intends to invite the potential User to the Service and any unwanted communication can be unsubscribed per the User’s request.  Any User that provides their email address is consenting to receive communications from Cherrypicker and its third-party email marketing services.  By consenting to this agreement, You recognize Cherrypicker may collect publicly available data from social networks and resume databases to store in Our database without Your permission.    

ABOUT THE SERVICE REGISTRATION; RULES FOR USER CONDUCT AND USE OF THE SERVICE

You need to be at least 18 years old and a resident of the United States to register for and use the Service. If you are a User who signs up for the Service, you will be required to create a personalized account that includes an email address and a password to access the Service and to receive messages from the Company. You agree to notify us immediately of any unauthorized use of your password and/or account. The Company will not be responsible for any liabilities, losses, or damages arising out of the unauthorized use of your username, password, and/or account details.  The User is fully responsible for all activities that occur on their respective accounts.  In registering, You agree to provide accurate, current, and complete information about Yourself (“User Content”) and update it as necessary. If Cherrypicker has reason to believe that Your User Content is inaccurate, outdated, or incomplete, Cherrypicker may suspend or terminate Your account. You agree You will not: (a) create an account using a false identity or information that is not your own; (b) have more than one account; or (c) create an account or use the Services if You have been previously removed from the Services. We reserve the right, in Our sole discretion, to accept or reject Your registration to use Our Services, as well as suspend or terminate Your account for any reason, or no reason at all. You are responsible for maintaining the confidentiality of Your password and account and will be fully responsible for all activities that occur under Your account. You agree to immediately notify Us of any unauthorized use of Your account or any other breach of account security.

USER RESPONSIBILITIES AND RESTRICTIONS

You are responsible for Your use of the Services and for any use of the Services made using Your account, including by any third parties. When using Our Services, You agree that You will not: (a) copy or distribute any part of the Services, including by way of automated or non-automated “scraping”; (b) use any automated systems including “robots” and “spiders”; (c) interfere with or compromise Our systems’ integrity or decipher any server transmissions; (d) impose any unreasonably large load on Our infrastructure; (e) upload viruses or worms to the Service; (f) collect or retain any personally identifiable information contained in the Service beyond the permitted use hereunder; (g) access the Service by any means other than authorized herein, including virtual private networks which are expressly forbidden; (h) stalk, harass, bully or harm others; (i) impersonate any person or entity; or (j) hack, spam, phish, or otherwise provide fraudulent, manipulative, or inflammatory content. Your continued access to Our Services is contingent on Your agreement to act in a professional manner. You agree, represent, and warrant that any personally identifiable information of third parties You provide or upload to Cherrypicker pursuant to Your use of Our Services, including the Cherrypicker App, Cherrypicker Search Services, Recruiter platform, and/or the Hiring Marketplace will be provided with all complete and legal consents and permissions to provide Cherrypicker with such information. In the event of a Successful Placement (defined as the event of when a Candidate is hired by a Client through Cherrypicker Search or the Hiring Marketplace service), You will provide Cherrypicker with its key terms, including employment start date and compensation, as may be requested by Cherrypicker.

Your permission to use the Site is conditioned upon the following Use Restrictions and Conduct Restrictions below

Use Restrictions: You agree that you will not under any circumstances:

● Post any information that is abusive, threatening, obscene, defamatory, libelous, or racially, sexually, religiously, or otherwise objectionable and offensive.

● Share any Candidate profiles with third parties outside of the Client’s organization ● Embed contact information (including but not limited to the hiring manager’s name, company email, personal email, phone, social profiles, or any identifying contact data) within job descriptions or company bios.   ● Share your user account login information including but not limited to your username, login password, profile information, job matches, direct company introductions, and chat messages with any third parties.  ● Use the service for any unlawful purpose or for the promotion of illegal activities. ● Attempt to, or harass, abuse, or harm another person or group. ●Use another user’s account without permission. ● Provide false or inaccurate information when registering an account. ● Interfere or attempt to interfere with the proper functioning of the Service. ● You are solely responsible for your account and the activity that occurs while signed in to or while using your account. ● Intentionally circumvent the service and communicate with third parties about your introductions between Clients and Candidates, and vice versa.  Circumventing the Service would include but not be limited to asking a third third-party Recruiter not affiliated with Cherrypicker to submit your candidacy to the matched Client, and applying to a job advertisement on a third-party site after matching with the Client on the Cherrypicker Service.  Cherrypicker reserves the right to pursue any Candidate or Client who attempts to intentionally circumvent the Cherrypicker Service and will terminate their account immediately upon review of the action. ● Make any automated use of the system or take any action that we deem to impose or to potentially impose an unreasonable or disproportionately large load on our servers or network infrastructure. ● Publish or link to malicious content intended to damage or disrupt another user’s browser or computer. ● Attempt to duplicate, reverse engineer, or steal proprietary technology related to the Services provided by Cherrypicker Inc.

POSTING AND CONDUCT RESTRICTIONS

To the best of its ability, Cherrypicker will review the creation and registration of each Client and Recruiter profile on the Cherrypicker Service. Cherrypicker relies on Recruiter users to properly invite and accurately enter Candidate data into Cherrypicker’s Services. It is the Candidate’s responsibility to inform Cherrypicker of any harmful information that might be posted on their profile by a Recruiter. Cherrypicker is not responsible for any false, misleading, or harmful information posted by its users. Cherrypicker, however, reserves the right to remove any User Content from the Service at its discretion. 

As Users of Our Services, all information You post, transmit, or submit through Our Services (“User Content”) is intended to be shared with other Users. By submitting any User Content to Us, You hereby represent and warrant that You own all rights to the User Content and/or, alternatively, that You have the right to give Us the license described below, including the correct and legal permissions and consents for any personally identifiable information You may provide to, or upload by way of, the Cherrypicker Service(s). You further represent and warrant that the User Content does not infringe on the intellectual property rights, privacy rights, publicity rights, or other legal rights of any third-party. We are not under any obligation to review any User Content posted by Our Users on Our Services, although We reserve the right to do so with or without notice, to prevent or rectify any alleged violations of this Agreement or any applicable law. We reserve all defenses made available to Us by the Communications Decency Act and any other applicable laws, rules, or regulations. We may refuse to accept or display the User Content and may remove or delete all or any portion of the User Content at any time. You understand that Cherrypicker is not responsible for the accuracy, usefulness, safety, or intellectual property rights of or relating to such User Content and that such User Content is not the responsibility of Cherrypicker. You further understand and acknowledge that You may be exposed to User Content that is inaccurate, offensive, indecent, or objectionable, and You agree to waive, and hereby do waive, any legal or equitable rights or remedies You have or may have against the Cherrypicker parties with respect thereto. All User Content You upload is not considered confidential by Cherrypicker, will be treated as public information, and You agree and understand is intended to be shared with other Users of Our Services as well as third parties, all in Cherrypicker’s sole discretion, and Cherrypicker has no control or liability over what other Users do with Your User Content. You understand and agree that Cherrypicker will not be liable for any treatment of Your User Content as confidential and waive all rights with respect to any such claims of confidentiality. If You do not agree that Your User Content will be considered public and will not be considered confidential, You must not use the Service.

THIRD-PARTY AGENTS AND THIRD-PARTY SERVICES

The Cherrypicker Service is to be accessed by Clients and its designated Users only and only for Clients’ internal business purposes, not for resale or unauthorized distribution to any third party.  Any breach of this Agreement by any unauthorized Third-Party Agent shall be deemed to be a breach by the Client.

Cherrypicker may provide to You, or provide Your User Content to, certain third-party services or third-party service providers (collectively, “Third-Party Service(s)”) which may also provide to You links to sites, job postings, email and telephone correspondence, and other offers outside of the Cherrypicker Services. Such Third-Party Services are provided “AS IS” without indemnification, support, or warranty of any kind, and this Agreement does not apply to Your use of any such provided Third-Party Services. You are responsible for evaluating whether You want to access or use such Third-Party Services, and, in certain circumstances where required or applicable, may opt out from such Third-Party Services available outside of the Cherrypicker network, or may choose to not utilize such Third-Party Services at any time. We reserve the right to suspend Third-Party Services at any time. You should review any applicable terms and/or privacy policies of a Third-Party Service before using it or sharing any information with it, because You may give the operator permission to use Your information outside of what You have agreed to herein. Cherrypicker is not responsible for, nor endorses any features, content, advertising, products, or other materials on or available from such Third-Party Services.

LICENSING TO CHERRYPICKER

Users will retain all rights to the User Content they upload or create on or through the Services. You hereby grant to Cherrypicker and its owners, affiliates, representatives, licensees, licensors and assigns (the “Cherrypicker Parties”) a non-exclusive, fully paid, royalty-free, worldwide, universal, transferable license to display, modify, publicly perform, distribute, store, broadcast, transmit and reproduce Your User Content, logo(s), service marks, trademarks and trade names in conjunction with the Services, including in developing, enhancing, and supporting the Services. You waive and agree never to assert all moral rights in and to all the materials licensed in this Section. We reserve the right to display advertisements in connection with the User Content.

DISPUTE RESOLUTION

PLEASE READ THIS SECTION CAREFULLY.

Any dispute shall be settled by binding and confidential arbitration. Arbitration shall be subject to the Federal Arbitration Act. The arbitration will be governed by the AAA’s Commercial Arbitration Rules and, if applicable, the Supplementary Procedures for Consumer-Related Disputes. Each party shall bear its own costs (including attorney fees). Notwithstanding the foregoing, the Company may seek injunctive or other equitable relief to protect its intellectual property rights in any court of competent jurisdiction. YOU ARE HEREBY GIVING UP YOUR RIGHT TO GO TO COURT. Arbitrator decisions are as enforceable as any court order and are subject to VERY LIMITED REVIEW BY A COURT. Any claims brought by You must be bought in an individual capacity, not as a class member in any representative proceeding. An arbitrator may not consolidate individuals’ claims. The arbitrator will not have the authority to award damages in excess of the amount allowed by this Agreement. The arbitrator also shall be authorized to grant any equitable remedy or relief it deems just and equitable and within the scope of the Agreement. The arbitration award shall be final and binding upon the parties without appeal or review except as permitted by New York State law or United States federal law.

FORCE MAJEURE

We will not be liable for any failure or delay in performance to the extent caused by any circumstances beyond Our reasonable control.  The order in which Candidate search results on the Hiring Marketplace may vary.  Cherrypicker is not liable if the Hiring Marketplace search filters fail to present the most qualified Candidate to the Client at the time of the search.

ASSUMPTION OF RISK – CANDIDATE INTERVIEWS WITH CLIENTS

Clients and Candidates assume the risk of any unfavorable or dangerous events that occur during a video interview or on-site in-person interview at a Client’s office location or any agreed-upon location between the Candidate and Client that is not affiliated with Cherrypicker.  We will not be liable if a Client poses as a fake employer and it is strongly recommended that all parties do their own due diligence before meeting.  Cherrypicker will use their best judgment to screen potential Clients, Candidates, and Recruiters before creating an account for them on the Service.  Cherrypicker does not conduct background checks, credit checks, or criminal background checks on Candidates, Recruiters, or Clients.  

SEVERABILITY; HEADINGS.

The unenforceability of any provision of this Agreement will not affect the enforceability of any other provision. If any provision of this Agreement is deemed to conflict with another, Cherrypicker will have the sole right to elect which provision remains in force. Headings are provided for convenience only.

NON-WAIVER

We reserve all rights under applicable law. Our non-enforcement of any provision of this Agreement or under applicable law will not be construed as Our waiver of any enforcement rights under the same or different circumstances at any time in the future.

CLASS ACTION WAIVER

THE PARTIES WAIVE ANY RIGHT TO ASSERT ANY CLAIMS AGAINST THE OTHER PARTY AS A REPRESENTATIVE OR MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION, EXCEPT WHERE SUCH WAIVER IS PROHIBITED BY LAW OR DEEMED BY A COURT OF LAW TO BE AGAINST PUBLIC POLICY. TO THE EXTENT EITHER PARTY IS PERMITTED BY LAW OR COURT OF LAW TO PROCEED WITH A CLASS OR REPRESENTATIVE ACTION AGAINST THE OTHER, THE PARTIES AGREE THAT: (I) THE PREVAILING PARTY SHALL NOT BE ENTITLED TO RECOVER ATTORNEYS’ FEES OR COSTS ASSOCIATED WITH PURSUING THE CLASS OR REPRESENTATIVE ACTION (NOT WITHSTANDING ANY OTHER PROVISION IN THIS AGREEMENT); AND (II) THE PARTY WHO INITIATES OR PARTICIPATES AS A MEMBER OF THE CLASS WILL NOT SUBMIT A CLAIM OR OTHERWISE PARTICIPATE IN ANY RECOVERY SECURED THROUGH THE CLASS OR REPRESENTATIVE ACTION.

TERMINATION

We may suspend or terminate the Services or Your account at Our discretion without explanation and notice, though We will strive to provide a timely explanation. If you are a Client, in the event of Your breach of this Agreement, We will notify You of such breach, and in the event the breach can be cured, provide You thirty (30) days to cure such breach. If such breach remains uncured, We will terminate this Agreement with You as set forth herein. If You are a Candidate, You may terminate this Agreement by closing Your account for the Service. Cherrypicker will not have any liability whatsoever to You for any suspension or termination. All provisions of this Agreement which by their nature should survive termination shall survive termination, including ownership, success fees, warranty disclaimers, indemnity, and limitations of liability.

PAYMENT

All fees for Cherrypicker Services are due and payable net thirty (30) days from the date indicated on each invoice as sent to Clients by Cherrypicker unless otherwise indicated in writing by Cherrypicker or in Your Service Agreement and/or Subscription Agreement. Should any Hiring Marketplace Placement Fees, Introduction Credit Fees, Successful Placement Fees, Hiring Marketplace Subscription Fees, Premium App Upgrade Fees or other fees incurred by the Client pursuant to the Client’s use of the Services remain unpaid more than ten (10) days after the thirty (30) day payment requirement set forth herein, Cherrypicker will, as a genuine assessment of its damages, assess a late payment fee on Client’s invoice equal to five percent (5%) of the amount overdue for each month OR FRACTION THEREOF, OR SUCH LESSER AMOUNT AS MAY BE THE MAXIMUM AMOUNT PERMITTED BY LAW, outstanding until paid, beginning with the due date of the late payment.

You agree and understand that You are liable for the payment of all applicable taxes with respect to Your payment for Cherrypicker Services. Cherrypicker may change its fees and billing methods at any time (including to begin charging for services that it is currently providing free of charge) by providing notice to You as set forth in the Notice section herein.

PROFESSIONAL SERVICES

Clients, Candidates and Recruiters may have the option to purchase certain professional services including but not limited to sourcing and recruiting assistance from Cherrypicker to source Candidates through the Service on Clients’ behalf, Career Services and Recruitment Automation Consulting (the “Professional Service(s)”). Users acknowledge and understand that any decisions by Users pursuant to such Professional Services including all final determinations as to the Candidates sourced, any hiring or employment decisions, or otherwise, are the sole and exclusive determination of the Users, and Cherrypicker will not be responsible for any decisions made by its Users. Cherrypicker makes no representations, warranties, or guarantees with respect to the Professional Services. The term of these Professional Services will be as purchased or set forth on an applicable Service Agreement and may not be terminated early by its Users. Cherrypicker disclaims all liability for actions taken by its Users pursuant to the Professional Services offered.

ASSIGNMENT

Except as set forth below, neither party may assign or transfer this Agreement including any rights or obligations hereunder without the prior written consent of the other party. Any such attempted assignment will be deemed null and void. However, we may assign this Agreement including all rights therein, without Your consent, to an entity that acquires all or substantially all of Our business and/or assets. This Agreement shall inure to the benefit of and be binding upon each party and its respective successors and permitted assigns.

NOTICE

You agree that We will provide notices and messages to You either within the Services or sent to the contact information that You provided Us. You are responsible for providing Cherrypicker with Your most current e-mail address. If You have provided an invalid email, or such address is not capable of receiving Cherrypicker notices, Cherrypicker dispatch of such email will nonetheless constitute effective notice.

ENTIRE AGREEMENT

This Agreement contains the entire agreement of the parties and supersedes all other agreements and understandings with respect to the matters contained herein.

ELECTRONIC COMMUNICATIONS

Any communication between You and Cherrypicker under or in connection with the Services may be made by electronic mail or other electronic means. You consent to receive communications from Cherrypicker electronically and agree that all terms, conditions, or otherwise, provided to You electronically satisfy any legal requirement that would be satisfied if they were in writing.

CALIFORNIA USERS AND RESIDENTS

California Users are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 North Market Blvd., Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210.

TYPES OF SUBSCRIPTIONS EXPLAINED

Recruiter Platform Subscription – Cherrypicker may grant a Recruiter a license to use the Cherrypicker Recruiter platform on a monthly or annual basis.  Any Candidates invited by Recruiters to the Cherrypicker Service will automatically be made available (in limited view for Clients, hiding their identity and contact information) on the Hiring Marketplace once their account has been created.  Recruiters are responsible for ensuring the accuracy of the profiles of the Candidates they represent.  Recruiters using the Recruiter Platform act as talent representatives and are required to work in the best interest of the Candidate they represent on the Hiring Marketplace.  Recruiters can utilize various features on the Recruiter platform including but not limited to the ability to chat with Candidates, send targeted job opportunities to a Candidate’s mobile device, and edit/approve profile changes.  Recruiters can import their Candidate databases from their existing Third-Party applicant tracking software if it is an approved Third Party by Cherrypicker. Candidates represented by Recruiters are located on the Candidate Dashboard on the Hiring Marketplace where Clients can directly request an introduction with a Candidate represented by a Recruiter.  If the Candidate indicates interest in the Client’s introduction request or job match, the Client has the final option to unlock the Candidate’s profile. Once the Candidate profile is unlocked by the Client, the Client can make a Job Offer to the Candidate. If the Client makes a Job Offer (defined as an offer of employment to the Candidate) to a Candidate and is accepted by the Candidate, the Client will be required to pay a Hiring Marketplace Placement Fee that is calculated by the Site’s agreed-upon placement fee percentage multiplied by the base salary of the Candidate when hired based on their offer letter. The Recruiter who represents the Candidate will receive their share of the revenue generated by the accepted Job Offer. The Recruiter’s share of the revenue generated will be distributed to the Recruiter by Cherrypicker upon collection of the full amount of the Hiring Marketplace Placement Fee from the Client. All billings to the Client and collections from the Client will be facilitated by Cherrypicker.  Cherrypicker will not incur late fees from Recruiters.  Cherrypicker charges late payment fees to delinquent Clients, as stated herein.

Introduction Credit Subscriptions – Cherrypicker may grant Clients an “Introduction Credit Subscription” on a monthly or annual basis to be used on the Hiring Marketplace.  The Introduction Credit Subscription provides Clients with more favorable pricing on Introduction Credit bulk purchases.  Introduction Credits (defined below) can be used only on Candidates who are represented by Cherrypicker Recruiters and will expire at the end of the term of the Introduction Credit Subscription Agreement.  If the Client agrees to renew the Agreement, any remaining Introduction Credits will roll over to the following period and be available for the term length stated in the renewed agreement.  Cherrypicker Inc. reserves the right to offer a trial period of unlimited introduction credits to Clients and can cancel the trial offer at any time. Cherrypicker may offer trial periods of unlimited introduction credits during beta testing and reserves the right to increase prices for Introduction Credits at any time.

CLIENT-SPECIFIC HIRING MARKETPLACE TERMS OF USE

Once a Client is registered for the Service and approved by Cherrypicker, the Client will be able to browse the Candidates on the Service, submit non-binding Introduction Requests (“Introduction Request(s)”), distribute jobs to Candidates and communicate with these Candidates once a Candidate profile is unlocked. Once a Client has discovered a Candidate on the Service, the Client agrees to submit all Introduction Requests exclusively through the Service. The Client and the Candidate may use other means of communication as agreed upon between the Client and Candidate after a Candidate profile is unlocked. YOU UNDERSTAND THAT CHERRYPICKER DOES NOT INQUIRE INTO THE BACKGROUNDS OF ITS USERS OR ATTEMPT TO VERIFY THE STATEMENTS OF ITS USERS. YOU AGREE TO CONDUCT ANY BACKGROUND CHECKS, REFERENCE CHECKS, OR OTHER DUE DILIGENCE THAT YOU MAY REQUIRE BEFORE ENGAGING ANY CANDIDATE.

The Client and Candidate agree not to circumvent the Service by independently attempting to communicate with each other or attempt to hire the respective Candidate through alternative means after discovering the Candidate on the Service or vice versa.

When Clients send Introduction Requests to Candidates, an attempt(s) is made by a Client to indicate “Initial Interest” to Candidates using the Service.  “Mutual Interest” (or “Mutually Interested Candidate”) is defined as the action taken by a Candidate on the Cherrypicker Mobile Application that gives consent to the Client allowing them to unlock their entire Candidate profile at the Client’s discretion.  By indicating Mutual Interest, a Candidate agrees to an implied contract that they have not applied to the Client’s company within a six-month (specifically one hundred eighty (180) day) period from receiving the job match or Introduction Request.  The Candidate is also required to participate in at least one first-round video interview or in-person interview with the Client upon indicating interest.  Mutual Interest does not guarantee that the Client will choose to unlock the Candidate’s profile, schedule an interview, or hire the Candidate.  Clients shall have the option to rescind Introduction Requests at any time if the Candidate has not indicated Mutual Interest.  Cherrypicker is unable to unlock a Candidate profile manually on behalf of a Client without a Candidate’s consent.  Only a Candidate can give consent to indicate Mutual Interest for the Client to unlock the respective Candidate profile.   Under no circumstances shall the Candidate attempt to reach out to the Client after discovering the Client on Cherrypicker through a job match or introduction request. Cherrypicker reserves the right to remove the Candidate or Client in question from the Service at any time pursuant to any wrongdoing.

HIRING MARKETPLACE PLACEMENT FEE AGREEMENT

Clients agree to pay Cherrypicker a placement fee of 15% of the Candidate’s starting guaranteed compensation if the Candidate is hired within twelve (12) months from the date the Candidate profile was unlocked on the Cherrypicker Hiring Marketplace. It is the responsibility of the Client to initiate the hiring process on the Cherrypicker Service by immediately uploading an official offer letter, and terms of employment (including but not limited to start date, salary, job title, office location, work arrangement (hybrid, on-site, remote), and any necessary metadata related to the hiring of the respective Candidate) to the Cherrypicker Service if an unlocked Candidate is hired. Failure to do so within 30 days of the Candidate’s start date will result in a 25% placement fee of the Candidate’s starting guaranteed compensation instead of the original 15% placement fee.

Our fee is due and payable within thirty (30) days of the Candidate’s start date.

As to any Candidate introduction facilitated by Cherrypicker’s marketplace and hired within one (1) year of the introduction, it is conclusively presumed that the hire would not have occurred but for the introduction by Cherrypicker.

In the event that a Candidate attempts to initiate a hiring process with the Client after receiving an introduction request, the Client will be responsible for paying the placement fee if the Candidate is successfully hired within twelve (12) months of the introduction request. All Candidates are required to indicate if they have applied to the Client within the last six months when receiving a job match or introduction request from a Client to ensure the Candidate is new to the Client’s hiring process and has not been previously discovered outside of Cherrypicker’s Services.

Provided full payment is received within thirty (30) days of the Candidate’s start date, Cherrypicker will guarantee a full refund under the following circumstances:

1. The Candidate voluntarily leaves the Client without fault of the Client within ninety (90) calendar days of the start date.

2. The Client for the fault of the Candidate terminates the Candidate within ninety (90) calendar days of the start date.

The Refund Guarantee does not apply in cases of layoffs, reduction in forces, and downsizing.

All overdue invoices will be subject to a 5% service charge per month until paid.

Cherrypicker’s Terms of Use are hereby incorporated into and made a part of the Hiring Marketplace Placement Fee Agreement.

INTRODUCTION CREDITS EXPLAINED

“Introduction credit(s)”, purchased either one at a time directly through the Service which is integrated through Stripe or in bulk by contacting a Cherrypicker Sales Representative directly through the Service, are defined as the token currency that only Clients can purchase to unlock Candidate profiles once Mutual Interest has been established on the Cherrypicker Hiring Marketplace.  A Candidate profile can be unlocked when ALL of the following items below have been satisfied:

1 – A Client must first indicate Initial Interest in a Candidate profile by sending an Introduction Request through our Service or if a Client posts a job through our Service that matches a Candidate; this is assumed to be Initial Interest in the matched Candidate.

2 – The Candidate must show Mutual Interest in the Client by accepting an Introduction Request or indicate interest in a job match they received on their mobile device through our Service.

(Please note: Clients can directly show Initial Interest by searching the Hiring Marketplace Cherrypicker Service and then clicking “Request an Introduction” or if they post a job on the Service, Clients may preview a list of interested Candidates however they will not be able to unlock the Candidate profile with an Introduction Credit until Mutual Interest is indicated by the matched Candidate).

Clients shall not attempt to contact a “Locked Candidate” (defined as a Candidate profile that has not been unlocked with an Introduction Credit) until an Introduction Credit has been used after a Candidate has shown Mutual Interest.  Once a Client uses an Introduction Credit to unlock a Candidate profile, the Client can view the entire Candidate profile and contact the Candidate directly using the contact information provided by the Candidate on their profile. 

Cherrypicker prides itself in creating job opportunities for Candidates and discourages its Users from circumventing the Service.  The Cherrypicker Hiring Marketplace is owned and operated by Cherrypicker Inc. and provides a platform for Clients and Candidates to connect regarding potential relevant employment opportunities. Cherrypicker serves only as the platform provider, and any communication, hiring, or other decisions are solely those of the Recruiter, Client and Candidate, not Cherrypicker. 

If Cherrypicker determines that a Client has intentionally circumvented our Services after discovering a Mutually Interested, Locked Candidate through our Service and subsequently hired that Candidate within twelve (12) months of the date on which the Client unlocked the Candidate profile through the Services, we will promptly notify such Client of such circumvention and provide Client with thirty (30) days to provide us with reasonable documentation identifying that such Client was actively involved with recruiting and communicating with such Candidate prior to contacting such Candidate through our Service. In the event the Client is unable to provide Us with such documentation, Cherrypicker will invoice the Client for, and the Client will pay for the value of the Hiring Marketplace Placement Fee, which is equal to the lesser of 25% of the Candidate’s guaranteed salary or $50,000, as applicable and the Company may, in its sole discretion, terminate the Client’s account.  Cherrypicker has sole discretion to add, remove, or refund promotional Introduction Credits at any time or to penalize for circumventing our Services.  

CANDIDATE SPECIFIC TERMS

A Candidate can receive an Introduction Request (“Initial Interest”) from a Client, a job match from a Recruiter (a job posted privately by a Recruiter), a job match from a Client (a job that was posted by a Client on the Hiring Marketplace), or be contacted by a Recruiter about a job opportunity that was conducted by Cherrypicker Search.  A Candidate is required to promptly notify Cherrypicker if the Candidate: (a) accepts a Client’s Job Offer of employment, whether for an indefinite or fixed term; (b) accepts an offer to engage as a contractor, whether for an indefinite or fixed term (each, a “Contractor Engagement”); or (c) accepts a Client’s employment offer during or within twelve (12) months after termination of a Contractor Engagement with such Client (each, a “Job Offer”). You agree that: (i) if You receive a Job Offer, You shall promptly notify Cherrypicker of Your Start Date and the key terms of such Job Offer (and notify Cherrypicker promptly should that Start Date or offer terms change at any time); and (ii) You will promptly notify Cherrypicker after termination of Your employment as a Candidate, intern, coop Candidate, consultant or contractor in the event that: (A) a Client terminates Your engagement based on unsatisfactory performance within ninety (90) days of the date on which Your Employment commenced; or (B) You voluntarily terminate Your engagement within ninety (90) days of the date on which Your engagement commenced.

The Candidate agrees not to attempt to circumvent the Service by independently attempting to communicate with a Client that contacted or communicated with him or her on the Service.

RECRUITER SPECIFIC TERMS

Once a Recruiter is approved to use the Cherrypicker Service, the Recruiter can integrate their existing applicant tracking software (if the software is an approved third party of Cherrypicker) to import their candidate databases to the Cherrypicker Candidate database which can be viewed on the Hiring Marketplace by Clients.  Any Candidate represented by Recruiters is located on the Candidate Dashboard on the Hiring Marketplace.   A Candidate must be invited to join Cherrypicker by a Recruiter or a Cherrypicker Talent Representative (“Cherrypicker Talent Representative” is defined as a Cherrypicker employee who is responsible for managing Candidate relationships and success on the Cherrypicker Service).  If a Candidate receives an invitation from a Recruiter and a Cherrypicker Talent Representative simultaneously, the Candidate must indicate who they would prefer to be represented by on the Cherrypicker Service.  A Candidate can only be represented by one party on the Cherrypicker Service, either a Recruiter or a Cherrypicker Talent Representative.  The Candidate-approved representative will share in the revenue generated from a Successful Placement.  Cherrypicker is not responsible for any misconduct or miscommunication by a Recruiter.  Cherrypicker will review the Recruiter in question and determine the severity of their actions.  Cherrypicker has the right to remove any Recruiter from the platform if misconduct persists and their use of Service is detrimental to Cherrypicker’s image.   

CHERRYPICKER SEARCH SERVICE TERMS OF USE

The Cherrypicker Search Service (also known as “Cherrypicker Search” and/or “Cherrypicked Ventures LLC”) is directly affiliated with Cherrypicker Inc. and provides executive search support to Cherrypicker Clients.  Clients who are unable to identify a specific candidate through the Hiring Marketplace Service, have the option to engage with Cherrypicker Search to find a qualified professional that meets the search criteria of a specific job opening.  All Cherrypicker Search Clients must enter into a specific Cherrypicker Search Agreement before engaging with Cherrypicker Search.  Cherrypicker may engage with and enter into staffing partnership agreements with approved Third-Party recruiting partners to assist with the Cherrypicker Search Service.  All Clients engaged with Cherrypicker Search should refer to the agreed-upon terms of their Cherrypicker Search Agreement and/or Service Agreement for specific guidance related to the Service.  Cherrypicker and Cherrypicker Search does not guarantee that Clients will find an appropriate employee through Our Services.   

CHERRYPICKER SEARCH CANDIDATE OWNERSHIP TERMS

Any Candidate referred to a Client by a Recruiter that is engaged in a Cherrypicker Search within a three hundred sixty-five day (365) period, is subject to a Cherrypicker Search Placement Fee paid by the Client. The Cherrypicker Search Placement Fee is equal to the agreed upon placement fee percentage of the 1st year base salary or prorated contractor compensation of the Candidate stated in the respective Cherrypicker Search Service Agreement. The Client is required to provide a copy of an executed offer letter that includes but is not limited to the following information: the name of the Candidate, the starting base salary of the Candidate hired, the start date of the hired position, job title for the hired position and any other related metadata related to the hired position. The Recruiter who supplied the Candidate to Cherrypicker will receive its share of the revenue generated from that Cherrypicker Search Placement Fee based on their respective Service Agreement terms with Cherrypicker Inc.  If a Client unlocks a Candidate on the Cherrypicker Marketplace prior to receiving a referral from the Cherrypicker Search Service, the successful hire will be subject to the terms and fees related to the Cherrypicker Hiring Marketplace. If a Client unlocks a Candidate that was already presented during a Cherrypicker Search Service, the successful hire will be subject to the terms and fees related to the Cherrypicker Search Service. If a Client hires a Candidate and fails to notify Cherrypicker of the hire within a 30-day period, Cherrypicker may, in its sole discretion, terminate the Client’s account.

SUBSCRIPTION AGREEMENTS

Clients engaged in a Subscription Agreement with Cherrypicker (individually a “Subscription Client” and collectively “Subscription Clients”) will be charged a Subscription fee as agreed upon between the Client and Cherrypicker for a specific term length (the “Subscription Period”). All state and local sales, use, excise, value-added, privilege, and/or similar taxes applicable to the Subscription Fee will be invoiced as a separate item.  During the Subscription Period, the Subscription Client will be able to take advantage of premium features, post jobs, browse the Hiring Marketplace, send Introduction requests of Initial Interest to Candidates, contact (through the Service or outside of the service by Email or Phone referencing Cherrypicker) Candidates who indicated Mutual Interest once an Introduction credit has been used, and extend Job Offers (defined as offers of employment made by Clients to Candidates) to Candidates listed on the Service. Subscription Agreements will contain language about the number of Introduction Credits issued to Clients approved by Cherrypicker.  The Subscription Agreement will indicate instructions for the Client to purchase additional introduction credits based on current bulk pricing.  Once a Candidate has been unlocked with an Introduction Credit, a Hiring Marketplace Placement fee is owed if the Candidate is hired by the Client. 

If Your Subscription Agreement contains payment obligations for Job Offers to Recruiter Represented Candidates, the Client agrees to pay the Hiring Marketplace Placement Fee for such Job Offers as indicated in such Subscription Agreement. In the event of a dispute regarding Hiring Marketplace Placement Fees, if Client can show that within the six (6) months prior to unlocking the Candidate on the Cherrypicker Hiring Marketplace, Client had active back-and-forth communications with a Candidate regarding the relevant employment opportunity, Cherrypicker may, in its sole discretion, determine if such Hiring Marketplace Placement Fee remains due and owed. In the event You have paid a Hiring Marketplace Placement Fee and a Candidate terminates or discontinues their employment or contractor engagement with You within ninety (90) days of start date, Cherrypicker will provide You a credit for additional Cherrypicker Marketplace services corresponding to the Hiring Marketplace Placement Fees paid for such Candidate. Any applied credit will expire twelve (12) months from date issued. YOUR OBLIGATION TO PAY ANY SUCCESS FEES SHALL SURVIVE ANY TERMINATION OF THIS AGREEMENT.

A Client entering into a Subscription Agreement with the Cherrypicker may need to complete a Direct Debit Authorization Form allowing Cherrypicker to withdraw, debit, or charge monthly payments from the Client’s designated bank or credit card account(s). By accepting the Company’s Terms of Use, the Client agrees that the Company is authorized to immediately withdraw Subscription Fees due and payable to the Company hereunder from the Client’s account and that no additional notice or consent is required. Client agrees to immediately notify the Company of any change in its billing address, or any account information provided to the Company used for payment hereunder.

Subscription Clients are required to promptly notify Cherrypicker upon a Candidate acceptance of a Job Offer together with the key terms of such Job Offer, including the start date for such Candidate (including prompt notification of any subsequent changes in such start date.) Subscription Clients shall provide the Company with a copy of a fully executed Job Offer letter. If before the start date, either the Subscription Client or Candidate elects not to begin the employment relationship contemplated by the Job Offer, the Subscription Client shall promptly notify Cherrypicker thereof. For the avoidance of doubt, standard Hiring Marketplace Placement Placement Fees will apply in the event a Subscription Client hires a Candidate (a) outside of its Subscription Period, or (b) that is in a category outside of such Clients’s Subscription Agreement.

If you do not agree with any of the provisions of this Agreement, please terminate your account immediately and cease using the Company. YOUR OBLIGATION TO PAY ANY SUCCESS FEES SHALL SURVIVE ANY TERMINATION OF THIS AGREEMENT.

AUTHORIZED USERS AND DEVICES

Clients will be provided with login credentials that they can share with their talent acquisition departments and hiring managers within their organization (each an “Authorized User”). Those Users are able to interact with Candidates on the Service, including posting jobs, sending Introduction Requests, and hiring Candidates.

The Client will designate one Client User for each seat it purchases and will not permit a Client User to share a Client User’s access to the Service with any other individual outside of the Client’s organization (employer).  If a Client User ceases employment, takes leave or vacation, or transfers work function, the Client may transfer the Client User’s seat to a different Client User. Cherrypicker reserves the right to limit the number of transfers of each seat. If Cherrypicker discovers that Client Users are sharing seat access to the Service with other Client employees or contractors who have not been provisioned access (each, an “Unauthorized User”), this will be deemed a material breach of this Agreement. Cherrypicker will have the right to assign any unused seats purchased by Client to the Unauthorized Users to remedy Client’s breach. If there are no unused purchased seats, Cherrypicker reserves the right to assess a fee equal to 1.5 times the prorated cost of the Additional Seat.

Each Authorized User may be logged into Our Service from multiple browsers or computers (the “Devices”) at the same time.  At the time this Agreement was written, there is currently no limit on the number of browsers who can access Our Service within their organization.  Access to the Hiring Marketplace is meant to be shared between hiring managers within their organization. 

Clients may add additional seats at any time during an applicable Service term. For clarity, additional seats will be added only for the duration of the applicable Service term and the associated fee set forth on the applicable Order Form will be prorated accordingly. Upon the Client’s notice of intent to add additional seats and immediate payment of the invoice, Cherrypicker will add the number of seats requested.

INTRODUCTION CREDIT REFUND POLICY

Cherrypicker will return an Introduction Credit back to Clients if ALL the following points (1 & 2) below are satisfied:

1 – Client provides proof of documentation that an unlocked Candidate has failed to respond to multiple attempts (at least 3 attempts) through email communication inviting them to participate in a first-round video interview or in-person interview after 14 days.

2 – Cherrypicker must attempt to contact the Candidate to inform them to complete the first-round interview with the Client.  The Candidate must decline to participate in a first-round interview video call or in-person interview or fail to respond to Cherrypicker within 3 attempts.

Cherrypicker will refund the Introduction Credit back to the Client if all the above items have been satisfied.  Cherrypicker reserves the right to review the Candidate’s account in question and can terminate the Candidate’s account if they continue as a repeat offender.  

We may use a third-party payment processing vendor (“Third-Party Payment Vendor”) to process your payment and/or refund of the purchase of the Introduction Credits.

Please note when Introduction Credits are purchased by a Client on the Service, they are agreeing to the price posted at the time of purchase.  All sales are final and non-refundable due to our data partnerships. Cherrypicker reserves the right, in its sole discretion, to increase or decrease the cost of an Introduction Credit on the Service at any time.  Any Introduction Credit purchased by a Client prior to any price change will remain in the Client’s account and will not incur any additional fees.  The Client will not be eligible for a refund of the difference in price should the price decrease after their purchase.  If a Client has a Subscription Agreement with Cherrypicker, Introduction Credits will expire at the end of the term of the Subscription Agreement.  Any unused Introduction Credits will roll over to the following year if the Client renews their Subscription Agreement. 

ONLINE CONTENT DISCLAIMER

Opinions, advice, statements, offers, or other information or content made available through the Service, by the Company’s Users, are those of their respective authors, and should not necessarily be relied upon. Such authors are solely responsible for such content. The Company does not guarantee the accuracy, completeness, or usefulness of any information on the Service, and neither does the Company adopt nor endorse, nor is the Company responsible for, the accuracy or reliability of any opinion, advice, or statement made by the Company’s Users. The Company takes no responsibility and assumes no liability for any User Content that you or any other user or third party posts or sends over the Service. Under no circumstances will the Company be responsible for any loss or damage resulting from anyone’s reliance on information or other content posted on the Service or transmitted to users. Though the Company strives to enforce these Terms of Use, you may be exposed to User Content that is inaccurate or objectionable. The Company reserves the right but has no obligation, to monitor the materials posted in the public areas of the service to limit or deny a user’s access to the Service or take other appropriate action if a user violates these Terms of Use or engages in any activity that violates the rights of any person or entity or which we deem unlawful, offensive, abusive, harmful, or malicious. The Company shall have the right to remove any such material that in its sole opinion violates or is alleged to violate, the law or this agreement or which might be offensive, or that might violate the rights, harm, or threaten the safety of users or others. Unauthorized use may result in criminal and/or civil prosecution under Federal, State, and local law. If you become aware of misuse of our Service, please contact us support@getcherrypicker.com.

LINKS TO OTHER SITES AND/OR MATERIALS

As part of the Service, the Company may provide you with convenient links to third-party website(s) (“Third Party Sites”) as well as content or items belonging to or originating from third parties (the “Third Party Applications or Software”). These links are provided as a courtesy to Service subscribers.  These links would include but are not limited to, promotional discounts with approved vendors and services by the Company, links to Employer websites or LinkedIn Company pages.  The Company has no control over those Third-Party Sites and Third-Party Applications, Software or the promotions, materials, information, goods or services available on these Third-Party Sites, Third Party Applications, Third Party Software.  Such Third-Party Sites and Third Party Applications, Software are not investigated, monitored or checked for accuracy, appropriateness, or completeness by the Company, and the Company is not responsible for any Third Party Sites accessed through the Site or any Third Party Applications, Software or Content posted on, available through or installed from the Site, including the content, accuracy, offensiveness, opinions, reliability, privacy practices or other policies of or contained in the Third Party Sites or the Third Party Applications, Software or Content. Inclusion of, linking to, or permitting the use or installation of any Third-Party Site or any Third-Party Applications, Software, or Content does not imply approval or endorsement thereof by the Company.  Users attempting to install or integrate third-party applications or software that are is not approved by the Company will be removed from the Service.  This violates our Terms of Use.  A User must request permission to any Third-Party application or software by emailing support@getcherrypicker.com with a written explanation of the use.  If you decide to leave the Site and access the Third-Party Sites or to use or install any Third-Party Applications, Software, or Content, you do so at your own risk and you should be aware that our terms and policies no longer govern. You should review the applicable terms and policies, including privacy and data gathering practices, of any site to which you navigate from the Site or relating to any applications you use or install from the site.

COPYRIGHT COMPLAINTS

(a) Termination of Infringer Accounts. The Company respects the intellectual property rights of others and requests that the users do the same. Pursuant to 17 U.S.C. 512(i) of the United States Copyright Act, the Company has adopted and implemented a policy that provides for the termination in appropriate circumstances of users of the Service who are in violation of this clause. The Company may terminate access for participants or users who are found repeatedly to provide or post protected third-party content without necessary rights and permissions.  Any additional complaints can be submitted to support@getcherrypicker.com.

LICENSE GRANT

By providing any User Content via the Service, you expressly grant, and you represent and warrant that you have a right to grant, to the Company a royalty-free, sublicensable, transferable, perpetual, irrevocable, non-exclusive, worldwide license to use, reproduce, modify, publish, list information regarding, edit, translate, distribute, publicly perform, publicly display, and make derivative works of all such User Content and your name, voice, and/or likeness as contained in your User Content, if applicable, in whole or in part, and in any form, media or technology, whether now known or hereafter developed, for use in connection with the Service.  By creating a Client account or Recruiter account, you expressly grant, and you represent and warrant that you have the right to grant, to the Company to display any Client logos, Client company descriptions, Client company web addresses, intellectual property as well a royalty-free, sublicensable, transferable, perpetual, irrevocable, non-exclusive, worldwide license to use, reproduce, modify, publish, list information regarding, edit, translate, distribute, publicly perform, publicly display, and make derivative works of all such Client User Content, if applicable, in whole or in part, and in any form, media or technology, whether now known or hereafter developed, for use in connection with the Service.  The Company expressly grants licenses to Clients and Recruiters to use of Service and is limited to the contracting Client, Recruiter, and/or individual, and can only be used for the purpose but not limited to facilitating introductions, posting jobs and any specific recruiting, staffing activity conducted on the User’s specific account and may not be used by third parties.

INTELLECTUAL PROPERTY

You acknowledge and agree that we and our licensors retain ownership of all intellectual property rights of any kind related to the Service, including applicable copyrights, trademarks, and other proprietary rights. Other product and company names that are mentioned on the Service may be trademarks of their respective owners. The entirety of the Services, along with any logos, features, trademarks, designs, or the like contained therein (“Marks”), are owned by or licensed to Cherrypicker Inc, subject to copyright and other intellectual property rights under United States and foreign laws and international conventions. Cherrypicker Inc, reserves all rights in and to the Services. You agree You will not use, copy, or distribute any content contained within the Services beyond the authorized use hereunder. We reserve all rights that are not expressly granted to you under this Agreement.

EMAIL MAY NOT BE USED TO PROVIDE NOTICE

Cherrypicker uses email to communicate with Users about but not limited to promotional marketing about the Service, Service changes, changes to the privacy policy and Terms of Use, pricing changes, invitations to join the Service, and any activity on the Service based on your communication preferences in your User settings.  Cherrypicker’s chat messaging system is strictly used for the Company to communicate with its Users about activity on Service not for legal notice. Communications made through the Service’s e-mail and messaging system, will not constitute legal notice to the Company or any of its officers, employees, agents, or representatives in any situation where notice to the Company is required by contract or any law or regulation.  Any legal notices should be emailed directly to support@getcherrypicker.com.

USER CONSENT TO RECEIVE COMMUNICATIONS IN ELECTRONIC FORM

For contractual purposes, you (a) consent to receive communications from the Company in an electronic form via the email address you have submitted; and (b) agree that all Terms of Use, agreements, notices, disclosures, and other communications that the Company provides to you electronically satisfy any legal requirement that such communications would satisfy if it were in writing. The foregoing does not affect your non-waivable rights. We may also use your email address, to send you other messages, including information about the Company and special offers. You may opt-out of such an email by changing your account settings or sending an email to support@getcherrypicker.com. Opting out may prevent you from receiving messages regarding the Company or special offers.

BETA FEATURES AND TOOLS

If Cherrypicker indicates any features of functionality as a beta or evaluation (referred to as the “Beta Service”), then You may use the Beta Service for a period of time as indicated by Cherrypicker, pursuant to Cherrypicker’s then current fees for the Beta Service, if applicable. NOTWITHSTANDING ANY OTHER PROVISION OF THE TERMS OF SERVICE OR ANY AGREEMENT YOU MAY HAVE DIRECTLY WITH CHERRYPICKER, YOUR USE OF THE BETA SERVICE WILL BE PURSUANT TO CHERRYPICKER’S THEN CURRENT TERMS OF USE AND PRIVACY POLICY. CHERRYPICKER PROVIDES THESE BETA SERVICE(S) “AS IS” WITHOUT ANY REPRESENTATIONS, WARRANTIES, REFUNDS, OR INDEMNIFICATION OF ANY KIND. Cherrypicker may discontinue, modify, or begin to charge for use of a Beta service at any time, and at their sole discretion.

WARRANTY DISCLAIMER

THE SERVICE, IS PROVIDED “AS IS,” WITHOUT WARRANTY OF ANY KIND.

CHERRYPICKER PARTIES EXPRESSLY DISCLAIM ALL IMPLIED WARRANTIES AND REPRESENTATIONS SUCH AS WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY OF DATA, AND NONINFRINGEMENT.

CHERRYPICKER PARTIES MAKE NO GUARANTEE THAT: (A) THE SERVICES WILL MEET YOUR REQUIREMENTS; (B) YOUR USE OF THE SERVICES WILL BE UNINTERRUPTED, SECURE, OR ERROR-FREE; (C) THE SERVICES WILL BE ACCURATE OR RELIABLE; OR (D) ANY ERRORS IN THE SERVICES WILL BE CORRECTED.

YOU AGREE THAT YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF OUR SERVICES. YOU UNDERSTAND AND ACKNOWLEDGE THAT ANY COMMUNICATION SENT THROUGH THE SERVICE MAY BE VIEWED BY THIRD PARTIES AND, AS SUCH, ARE NOT CONSIDERED CONFIDENTIAL AND CHERRYPICKER HAS NO RESPONSIBILITY, CONTROL OVER, OR LIABILITY FOR THE CONTENT OF THOSE MESSAGES, ANY ATTACHMENTS TO THOSE MESSAGES, OR THE CHOSEN RECIPIENTS BY THE SENDER, WHETHER SENT THROUGH THE SERVICE, OR VIA YOUR PREFERRED E-MAIL SERVICE.

IF YOU ARE A RESIDENT OF A JURISDICTION THAT REQUIRES A SPECIFIC STATEMENT REGARDING RELEASE, THEN THE FOLLOWING APPLIES. FOR EXAMPLE, CALIFORNIA RESIDENTS MUST, AS A CONDITION OF THIS AGREEMENT, WAIVE THE APPLICABILITY OF CALIFORNIA CIVIL CODE SECTION 1542, WHICH STATES, “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE AND THAT, IF KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.” YOU HEREBY WAIVE THIS SECTION OF THE CALIFORNIA CIVIL CODE. YOU HEREBY WAIVE ANY SIMILAR PROVISION IN LAW, REGULATION, OR CODE THAT HAS THE SAME INTENT OR EFFECT AS THE AFOREMENTIONED PROVISION.

SOME JURISDICTIONS LIMIT OR DO NOT PERMIT DISCLAIMERS OF WARRANTY, SO THIS PROVISION MAY NOT APPLY TO YOU. LIMITATION OF DAMAGES; RELEASE TO THE EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL THE COMPANY, ITS AFFILIATES, DIRECTORS, OR EMPLOYEES, OR ITS LICENSORS OR PARTNERS, BE LIABLE TO YOU FOR ANY LOSS OF PROFITS, USE, OR DATA, OR FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, HOWEVER ARISING, THAT RESULT FROM (A) THE USE OF THE SERVICE, DISCLOSURE, OR DISPLAY OF YOUR USER CONTENT; (B) YOUR USE OR INABILITY TO USE THE SERVICE; (C) THE SERVICE GENERALLY OR THE SOFTWARE OR SYSTEMS THAT MAKE THE SERVICE AVAILABLE; OR (D) ANY OTHER INTERACTIONS WITH THE COMPANY OR ANY OTHER USER OF THE SERVICE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE) OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT THE COMPANY HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, AND EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. SOME JURISDICTIONS LIMIT OR DO NOT PERMIT DISCLAIMERS OF LIABILITY, SO THIS PROVISION MAY NOT APPLY TO YOU.

If you have a dispute with one or more users using the Service, you release us (and our officers, directors, agents, subsidiaries, joint ventures, and employees) from claims, demands, and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such disputes. If you are a California resident, you waive California Civil Code §1542, which says: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.”

INDEMNITY

You agree to defend and indemnify the Cherrypicker Parties from and against any third-party claim, including reasonable attorney’s fees, court costs, settlements, and disbursements, from or relating to: (a) Your User Content; (b) Your use of and access to the Services in violation of this Agreement; (c) Your violation of this Agreement; (d) Your violation of any law, rule, or regulation, or the rights of any third-party, including Your upload or provision of personally identifiable information through the Service; (e) Your use of any Third-Party Services; and (f) claims alleging that the Cherrypicker Parties and the Client are joint employers.

MODIFICATION OF TERMS OF USE

THIS AGREEMENT IS SUBJECT TO CHANGE BY CHERRYPICKER IN ITS SOLE DISCRETION AT ANY TIME. When changes are made, We will make a new copy of the Agreement available by posting on the Cherrypicker Site. We will also update the “Last Updated” date at the top of the Agreement. If We make any material changes, and You have registered to use the Services, We may also notify You via email or through the Services. Changes will be effective immediately. Cherrypicker may require You to provide consent to the updated Agreement. If You do not agree to any change(s) You agree to stop using the Services. Your continued use of the Services constitutes Your acceptance of such change(s). YOU AGREE TO REGULARLY CHECK THE SERVICES TO VIEW THE THEN-CURRENT TERMS OF YOUR AGREEMENT WITH US.

It is your sole responsibility to regularly check the Site from time to time to view any such changes in the Agreement. If you continue to use the Site, you signify your agreement to our revisions to these Terms of Use. For this additional reason, you should keep your contact and profile information current.  Your continued use of the Services constitutes Your acceptance of such change(s).  Any changes to these Terms (other than as set forth in this paragraph) or waiver of the Company’s rights hereunder shall not be valid or effective except in a written agreement bearing the physical signature of an officer of the Company. No purported waiver or modification of this Agreement by the Company via telephonic or email communications shall be valid.  In conjunction with these Terms of Use, all Users that have entered into a subscription agreement with Cherrypicker, expressly agree that both documents are enforceable.  Any agreed-upon terms stated within the Subscription Agreement entered with the Company will be enforceable within the specific term length of the agreement.  Any abuse or violation of the Terms of Use and Subscription Agreement terms will be review by the Company and early termination of the agreement will be considered with no refund.

LIMITATIONS ON LIABILITY

Cherrypicker Inc. is not liable for: (a) any User Content posted on Our Services; (b) contracts or other obligations that may arise between Users; (c) any damages that result through Your use of Our Services in violation of this Agreement; (d) any negative or critical comments that may be posted by other Users through the Services; (e) any of the Third-Party Service(s) You may be provided pursuant to Your use of the Services; or (f) any third-party personally identifiable information You upload or provide to Cherrypicker Inc. pursuant to the Services.

TO THE MAXIMUM EXTENT PERMITTED BY LAW, YOU UNDERSTAND AND AGREE THAT IN NO EVENT SHALL CHERRYPICKER INC, BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE SERVICE, WHETHER OR NOT CHERRYPICKER INC, HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY DAMAGES FOR PERSONAL OR BODILY INJURY OR EMOTIONAL DISTRESS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, OR FROM ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH OTHER USERS OF THE SERVICE, ON ANY THEORY OF LIABILITY (INCLUDING CONTRACT, TORT INCLUDING NEGLIGENCE, OR HOWSOEVER OTHERWISE) ARISING OUT OF, IN CONNECTION WITH, OR RESULTING FROM: (i) THE USE OR INABILITY TO USE THE SERVICES; (ii) STATEMENTS OR CONDUCT OF ANY THIRD-PARTY ON THE SERVICES; OR (iii) ANY OTHER MATTER RELATED TO THE SERVICES.

TO THE MAXIMUM EXTENT PERMITTED BY LAW, UNDER NO CIRCUMSTANCES WILL CHERRYPICKER INC, BE LIABLE TO A USER, REGARDLESS OF WHETHER THE CLAIM IS BASED IN CONTRACT, TORT INCLUDING NEGLIGENCE, STRICT LIABILITY, OR OTHERWISE, FOR MORE THAN THE GREATER OF: (A) THE TOTAL AMOUNT PAYABLE BY THE USER TO CHERRYPICKER FOR THE TWELVE (12) MONTH PERIOD PRECEDING THE DATE THE CAUSE OF ACTION FIRST AROSE; OR (B) ONE HUNDRED DOLLARS ($100).

THE LIMITATIONS OF THIS SECTION WILL NOT APPLY TO ANY LIABILITY THAT CANNOT BE EXCLUDED OR LIMITED BY LAW.

Our licensors and service providers will have no liability of any kind under this Agreement. You may not bring any claim under this Agreement more than twelve (12) months after the cause of action arises.

JURISDICTION CLAUSE

Except as otherwise set forth in this Agreement, any action, suit or proceeding seeking to interpret or enforce any provision of, or based on, arising out of, or in any way related to, any right, obligation or matter set forth in this Agreement may be brought in the courts located in the State of New York, and each of the parties consents to the jurisdiction of such courts (and the appropriate appellate courts) in any such action, suit or proceeding and waives any objection to jurisdiction and venue laid therein. Process in any action, suit or proceeding referred to in this preceding sentence may be served on any party anywhere in the world. The parties agree that either party may seek enforcement of the judgment so rendered by such court in any court having jurisdiction thereof.

GENERAL TERMS

Please note that Cherrypicker does not guarantee that a Candidate finds a job or a Client finds an appropriate employee.  If any part of this Agreement is held invalid or unenforceable, that portion of the Agreement will be construed consistent with applicable law. The remaining portions will remain in full force and effect. Any failure on the part of the Company to enforce any provision of this Agreement will not be considered a waiver of our right to enforce such provision. Our rights under this Agreement will survive any termination of this Agreement. You agree that any cause of action related to or arising out of your relationship with the Company must commence within ONE year after the cause of action accrues. Otherwise, such cause of action is permanently barred. These Terms of Use and your use of the Site are governed by the federal laws of the United States of America and the laws of the State of New York, without regard to conflict of law provisions. The Company may assign or delegate these Terms of Use, the Company’s Privacy Policy, and/or Subscription Agreement (if applicable) in whole or in part, to any person or entity at any time with or without your consent. You may not assign or delegate any rights or obligations under the Terms of Use, Subscription Agreement or Privacy Policy without the Company’s prior written consent, and any unauthorized assignment and delegation by you are void.

YOU ACKNOWLEDGE THAT YOU HAVE READ THESE TERMS OF USE, UNDERSTAND THE TERMS OF USE, AND WILL BE BOUND BY THESE TERMS AND CONDITIONS. YOU FURTHER ACKNOWLEDGE THAT THESE TERMS OF USE TOGETHER WITH THE PRIVACY POLICY AT https://www.getcherrypicker.com/privacypolicy REPRESENT THE COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN US AND THAT IT SUPERSEDES ANY PROPOSAL OR PRIOR AGREEMENT ORAL OR WRITTEN, AND ANY OTHER COMMUNICATIONS BETWEEN US RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT.