Welcome to the DAKdirect website, operated by DAKdirect, a subsidiary of D.A. Kreuter Associates, Inc., (“DAK”), and located at www.dakdirect.com (“Site”). The following terms and conditions (“Terms”) govern your use of this Site. You, for yourself and on behalf of any person, organization, entity, or employer for which you are acting (“You”, “Yourself”, “Your”), acknowledge that accessing, viewing, or using the content, services, products or benefits provided on or through this Site, indicate that You have read and understand these Terms, that You agree to them and intend to be legally bound by them. If You do not agree to these Terms, or if You are under 18 years of age, You are not granted permission to use this Site and must exit immediately.
1. Registration. In order to access certain content, certifications, forms, agreements, services, products or benefits on the Site, You will be asked to register and create an account. As part of the registration process, You must click to agree to these Terms, and may then be asked to select a user name and password. You may also be required to provide DAK with certain information about Yourself, including some types of personally identifying information such as Your email address and Your mailing address. You are fully responsible for Your account, including use of the account by any third party, as well as maintaining the confidentiality of Your password. You may terminate Your account at any time by contacting us at contact@DAKdirect.com.
2. Services. The Site allows You to seek candidates for employment based on Your selection criteria. You and DAK agree that any decision to offer employment to a candidate is based upon Your own evaluation of the candidate’s suitability for employment, and is at Your sole discretion. In all instances of hire of candidates by customer, DAK makes no warranties regarding any candidate’s fitness for employment and any such warranties, whether express or implied, are void. DAK shall not be liable under any circumstances for any loss, expense, damage, delay, costs or compensation (whether direct, indirect or consequential) which may be suffered or incurred by You arising from or in any way connected to any candidate’s employment or denial of employment.
3. Proprietary Rights and Site Material. As between You and DAK, DAK owns or licenses all articles, data, candidate information, content, graphics, forms, artwork, images, photographs, functional components, software and documentation and other material on, in or made available through the Site or Social Media (“Site Material”), as well as the selection, coordination, arrangement, and organization and enhancement of the Site Material. All Site Material is protected pursuant to United States copyright, trademark, patent and other applicable laws. The Site Material is for Your internal business use only and not for commercial exploitation. You agree not to remove or alter any copyright notice or any other proprietary notice on any Site Materials. As between You and DAK, all names, trademarks, service marks, certification marks, symbols, slogans or logos appearing on the Site are proprietary to DAK, or its affiliates, licensors, or suppliers. Use or misuse of these trademarks is expressly prohibited and may violate federal and state trademark law. Under no circumstances will You have any rights of any kind in or to the Site or Site Material, other than the right to use the same in accordance with these Terms.
4. Pricing. Candidates are referred to You in confidence. Should You refer or otherwise identify such a candidate to another entity, related or unrelated, which hires, retains, engages or places the candidate, You shall be responsible for the payment of our fees, as set forth herein.
a. Fee for Use. The Fee for use of the Site and Site Materials can be found in our Fee Schedule. Before You access the Site Materials, and before any services are rendered by DAK, payment of this fee must be made in full. No use of the Site, or access to any Site Material, will be permitted until payment has been made in full. Except as specifically set forth herein, all fees payable to DAK in connection with the use of the Site or any Site Materials are non-refundable.
b. Success Fee. Should You hire a candidate presented to You through the Site or Site Materials, or through services rendered by DAK in any way, a success fee is due to DAK within ten (10) days of the candidate’s date of hire. The success fees can be found in our Fee Schedule. The success fee is due to DAK if any candidate presented to You through the Site or Site Materials, or through services rendered by DAK in any way is hired by You for any position within one (1) year from the date of referral. DAK provides a ninety (90)-day prorated money back guarantee of the success fee if the candidate leaves employment within the first 90 days of employment for reasons other than death, disability, relocation of You or Your company, any transfer or change in control of Your company, position elimination, or resignation due to harassment or other improper conduct on the part of You or Your Company. You must request this refund within fifteen (15) days of the candidate’s resignation, and must provide DAK with documentation establishing the date and reason of the candidate’s resignation or termination and such other information reasonably requested by DAK.
c. Search Fee Credit. Search Fee Credit applies to the individual cost per search, not to the overall package cost.
5. Payment. Some services on the Site are available for purchase. By requesting any such services from DAK on the Site, You represent that You are eighteen (18) years of age or older. You are responsible for all charges incurred under Your account, whether made by You or another person using Your account. If for any reason DAK does not receive payment for a purchase, DAK may exercise its rights in law and equity, including (a) immediately suspending or terminating Your account; (b) seeking collection of the outstanding amount owed; and/or (c) seeking legal action against You for the breach of these Terms or any applicable agreement. You are also responsible for paying any governmental taxes imposed in connection with use of the Site, including sales, use or excise taxes (excluding only taxes on DAK’s net income). To the extent that DAK is obligated to collect such taxes, the applicable tax will be added to Your billing account.
6. Relationship of the Parties. In the performance of the Services under this Agreement, it is mutually understood and agreed that DAK and its employees and personnel are at all times acting and performing as independent contractors of You or Your company.
7. Confidentiality. You agree to retain information about the candidate in confidence, and not to share it with anyone else, unless they are part of Your internal selection process or unless otherwise required by law. You further agree that You will not independently check references, or any other sources knowledgeable about the candidate, without the candidate’s consent and to take sufficient care when so doing as to not jeopardize his/her present employment and confidentiality.
8. Unauthorized Activities. You agree that You will not use the Site or Site Material for: (a) any illegal or unauthorized purposes that violate any laws (including fair hiring and copyright laws); (b) modifying, adapting or hacking into the Site or for modifying another website so as to falsely imply that it is associated with DAK; (c) contacting any other user of the Site who has requested not to be contacted, or stalking or harassing anyone; or (d) attempting to gain unauthorized access to DAK’s computer system, or engaging in any activity that interferes with the performance of, or impairs the functionality of, the Site or any products or services provided through the Site. You further agree not to modify, distribute, copy, exchange, or create derivative works of the Site Material or otherwise use the Site Material in any way for any purpose except with the prior written approval from DAK. You acknowledge and agree that the unauthorized use of the Site Material could cause irreparable harm to DAK and that in the event of such unauthorized use, DAK shall be entitled to an injunction in addition to any other remedies available at law or in equity.
9. Materials Submitted to the Site. The Site may allow You to contribute content, information, text, files, graphics, personal listings, messages, ratings, postings, and other materials and information for access, use, and commentary by other users to the Site (“User Content”). By posting User Content, You represent that You have the full legal right to provide the User Content and that use of the User Content by the Site and all other persons and entities will not (a) infringe any intellectual property rights of any person or entity or any rights of publicity, personality, or privacy of any person or entity, including as a result of Your failure to obtain consent to post personally identifying or otherwise private information about a person; (b) violate any law, statute, ordinance, or regulation; (c) be defamatory, libelous or trade libelous, unlawfully threatening, or unlawfully harassing; (d) contain any viruses, worms or other computer programming routines that damage, detrimentally interfere with, surreptitiously intercept, or expropriate any system, data or personal information, or that facilitate or enable such or that are intended to do any of the foregoing; (e) constitute misappropriation of any trade secret or know-how; or (f) constitute disclosure of any confidential information owned by any third party.
You retain all right, title and interest in and to the User Materials that You submit and all intellectual property rights embodied therein. Upon Your submission of User Content or other material or information to DAK, You grant DAK a worldwide, perpetual, irrevocable, transferable, license to access, use, distribute, reproduce, display, modify, create derivative works based upon, and sublicense, the User Content, all without any compensation to You whatsoever. DAK may refuse to post or remove User Content from Site Material that violates any of the warranties provided in the preceding paragraph, or for any reason. DAK shall not be responsible for changes, modifications, or removal of any User Content that You submit to Site Material. If You believe that any content or postings on the Site violate Your intellectual property or other rights, please follow our Complaint Procedure in Section 16 of these Terms.
10. Third Party Web Sites and Content. The Site is available for informational purposes only. The Site may contain links to other Internet Web sites for the convenience of users in locating information, products, or services that may be of interest. Use of the Site and the Site Materials and any other material or content on and made available through the Site is entirely at Your own risk. DAK does not recommend and expressly disclaims any responsibility for the content, the accuracy of the information, or quality of products or services provided by or advertised on third party sites or the transactions You conduct or enter into with third parties. Your use of third parties’ websites is at Your own risk, and subject to the terms and conditions of such other websites. DAK does not endorse any product, service, or advice provided on a third party website or advertised on the Site.
11. Privacy Statement. Any personal information that you provide to DAK on the Site is subject to our Privacy Statement. For more information, click here to view the Privacy Statement, which is incorporated into these Terms by reference, as if set forth fully herein.
12. Disclaimer. DAK, its subsidiaries, affiliates and licensors are not responsible for and do not guarantee the accuracy or completeness of any Site Material, User Content, links, advertisements or other items contained within the Site. DAK reserves the right to immediately remove any Site Material or User Content for any reason or for no reason. DAK cannot and does not review all communications made on or through the Site, but, although not obligated to, may review, verify, make changes to or remove any User Content, Site Material, the Site or any other products or services made available in connection with the Site, or information posted to the Site at any time, with or without notice in its sole and absolute discretion. You agree that You must evaluate and bear all risks associated with the use of Site Material or User Content and that You may not rely on such Site Material or User Content.
THE SITE, THE SITE MATERIALS, USER CONTENT, PRODUCTS, SERVICES, INFORMATION AND OTHER MATERIALS ON, IN AND MADE AVAILABLE THROUGH THE SITE, ARE MADE AVAILABLE “AS IS” AND “WITH ALL FAULTS.” USE OF THE SITE IS ENTIRELY AT YOUR OWN RISK.
DAK AND ITS LICENSORS MAKE NO REPRESENTATIONS OR WARRANTIES, AND DISCLAIM ALL REPRESENTATIONS AND WARRANTIES, WITH RESPECT TO THE SITE, THE USER CONTENT, THE SITE MATERIALS, THE SERVICES, PRODUCTS, DATA, INFORMATION AND OTHER MATERIALS ON AND IN AND MADE AVAILABLE THROUGH THE SITE, EXPRESS OR IMPLIED, WRITTEN OR ORAL, ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, SYSTEMS INTEGRATION, NON-INTERFERENCE, QUALITY, TITLE, AND NON-INFRINGEMENT. THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY, COMPLETENESS AND EFFORT WITH REGARD TO ANY AND ALL USER CONTENT, THE SITE, THE SITE MATERIALS, AND THE SERVICES, PRODUCTS, DATA, INFORMATION AND OTHER MATERIALS ON AND IN AND MADE AVAILABLE THROUGH THE SITE, IS WITH YOU.
13. LIABILITY. DAK AND ITS LICENSORS SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, EXTRA-CONTRACTUAL, OR PUNITIVE DAMAGES OF ANY KIND WHATSOEVER, INCLUDING LOST REVENUES OR LOST PROFITS, WHICH MAY OR DOES RESULT FROM THE USE OF, ACCESS TO, OR INABILITY TO USE THE SITE, THE USER CONTENT, THE SITE MATERIALS, THE SERVICES, PRODUCTS, INFORMATION, DATA AND OTHER MATERIALS ON AND IN AND MADE AVAILABLE THROUGH THE SITE, REGARDLESS OF LEGAL THEORY, WHETHER OR NOT YOU OR DAK HAD BEEN ADVISED OF THE POSSIBILITY OR PROBABILITY OF SUCH DAMAGES, AND EVEN IF THE REMEDIES OTHERWISE AVAILABLE FAIL OF THEIR ESSENTIAL PURPOSE. UNDER NO CIRCUMSTANCES WILL THE TOTAL LIABILITY OF DAK AND ITS LICENSORS TO YOU OR ANY OTHER PERSON OR ENTITY IN CONNECTION WITH, BASED UPON, OR ARISING FROM THE SITE, USER CONTENT, THE SITE MATERIALS ON, IN, AND MADE AVAILABLE THROUGH THE SITE, OR THE SERVICES, INFORMATION, OR PRODUCTS OFFERED IN CONNECTION THEREWITH EXCEED ONE HUNDRED DOLLARS ($100). SOME STATES DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IF ANY PART OF THIS LIMITATION ON LIABILITY IS FOUND TO BE INVALID OR UNENFORCEABLE FOR ANY REASON, THEN THE TOTAL LIABILITY OF DAK AND ITS LICENSORS SHALL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW. If You are dissatisfied with the Site, or with any of these Terms, or feel DAK has breached these Terms, Your sole and exclusive remedy is to discontinue using the Site.
14. Indemnification. You shall indemnify DAK and its directors, members, principals, officers, employees, agents, contractors, suppliers and licensors (“DAK Indemnitees”) against all claims, actions, suits, and other proceedings (“Claims”) arising out of or incurred in connection with the Site and Your use of the Site, Site Materials, or any products or services obtained through the Site, Your employment decisions, Your fraud, violation of law, negligence, willful misconduct, or any other use of the Site, Site Materials, User Content and other products, services or materials on, in and made available through the Site, (except to the extent attributable to DAK) or any breach by You of these Terms, and You shall indemnify and hold DAK Indemnitees harmless from and against all judgments, losses, liabilities, damages, costs, and expenses (including reasonable attorneys’ fees and attorneys’ disbursements) arising out of or incurred in connection with such Claims. You may not settle any Claim without the prior written consent of DAK. DAK or its licensors may assume the defense of any Claim, at Your sole cost and expense, and You shall cooperate in all reasonable respects in such defense. You shall have the right to employ separate counsel in any Claim and to participate in the defense thereof. If DAK or its licensors do not notify You that it elects to undertake the defense thereof, You shall have the right to defend the Claim with counsel reasonably acceptable to DAK, subject to the right of DAK to assume, at their sole cost and expense, the defense of any Claim at any time prior to the settlement or final determination thereof.
15. Internet Security. DAK uses reasonable efforts to ensure that the Site is generally available. However, there will be occasions when access to the Site will be interrupted or unavailable. DAK will use reasonable commercial efforts to minimize such disruption where it is within DAK’s reasonable control. You agree that DAK shall not be liable to You for any modification, suspension or discontinuance of the Site. You understand that the technical processing and transmission of any Site content may be transferred unencrypted and involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices. Please be advised that DAK does not guarantee that any information sent from our Site will be secure during transmission, nor can we guarantee the confidentiality of any communication or material transmitted to DAK via the Site or the Internet, including, for example, personal information such as Your name or address.
16. Complaint Procedures. If You believe that any content or postings on this Site violates Your intellectual property or other rights, please send to DAK at email@example.com a comprehensive detailed message setting forth the following information: (a) Your name and the name of Your company, if any; (b) Your contact information, including Your e-mail address; (c) the nature and substance of Your complaint, the specific rights at issue, and Your basis for making the complaint, including the content or posting that is objectionable; and (d) the following statement: “The statements, representations, and assertions made in this message are true, complete, and accurate and I have the full legal authority to make each and every such statement, representation, and assertion and to make and be granted any demand made in this message.”
17. Changes to these Terms; Termination. DAK reserves the right at any time to modify, alter or update these Terms. Notice of any new or revised Terms, as well as the location of the new or revised statement, will be posted on the Site for at least twenty (20) days after the change. Your use of the Site following any changes means that You agree to follow and be bound by the terms as changed. Any change to these Terms shall be effective as to any visitor who has visited the Site before the change was made. It is the obligation of users visiting the Site before the change to learn of changes to the Terms since their last visit. DAK may suspend or terminate Your account and/or Your ability to use the Site or any services on the Site for failure to comply with these Terms, for providing DAK with untrue or inaccurate information about Yourself or Your company, for infringement upon DAK proprietary rights, or for any other reason whatsoever or for no reason.
18. Governing Law and Jurisdiction. These Terms represent the entire agreement between You and DAK with respect to the subject matter hereof, and supersede any and all prior and contemporaneous written and oral representations, understandings, and agreements, express and implied, and will be governed by and construed in accordance with the laws of the State of Pennsylvania, without reference to its conflict of law rules; PROVIDED, HOWEVER, THAT THE TERMS OF ANY APPLICABLE LAW NOW OR HEREAFTER ENACTED THAT IS BASED ON, DERIVED FROM, SIMILAR TO, OR CONNECTED WITH THE UNIFORM COMPUTER INFORMATION TRANSACTIONS ACT DRAFTED BY THE NATIONAL CONFERENCE OF COMMISSIONERS ON UNIFORM STATE LAWS SHALL NOT APPLY EXCEPT TO THE EXTENT THAT THE LAW EXPRESSLY PROHIBITS ALTERATION BY THESE TERMS OF THE APPLICABILITY OF ONE OR MORE SECTIONS OF THE LAW. By accessing, viewing, or using the Site Materials, services, works, content, or materials on the Site, You consent and agree to (a) the exclusive jurisdiction of the federal and state courts located in Montgomery County, Philadelphia; (b) accept service of process by personal delivery or mail; and (c) irrevocably waive the right to trial by jury and any jurisdictional and venue defenses otherwise available.
19. Miscellaneous. The Site is controlled and operated from within the United States. Without limiting anything else, DAK makes no representation that the Site, Site Materials, User Content, services, products, information or other materials available on, in, or through the Site is appropriate or available for use in other locations, and access to them from territories where they are illegal is prohibited. Those who choose to access the Site from other locations do so on their own volition and are responsible for compliance with applicable laws. The waiver or failure of DAK to exercise in any respect any right provided hereunder shall not be deemed a waiver of such right in the future or a waiver of any other rights established under these Terms. Headings used in these Terms are for reference only and shall not affect the interpretation of these Terms. No person or entity not party to this agreement will be deemed to be a third party beneficiary of these Terms or any provision hereof. When used herein, the words “includes” and “including” and their syntactical variations shall be deemed followed by the words “without limitation.” The Site must not be used by anyone under 18. Any ambiguities or inconsistencies between or among these Terms, any Agreement and any other agreement between the parties shall be resolved by giving precedence to any applicable agreement, then to these Terms, then to any other agreements between the parties. Silence on any matter in a higher order document does not negate the provision in a lower order document as to that matter.
Dated: December 5, 2012
Copyright © 2012 D.A. Kreuter Associates; All rights reserved.