Last updated: November 13, 2019
You want Skill-Loan to provide You with access to the Marketplace where You can connect with other Members for the purpose of hiring workers for a full-time, part-time, or temporary assignment buying and selling Inventory, renting tools and subletting work. Skill-Loan will allow You to access the Marketplace in exchange for Fees and in accordance with the terms and conditions set forth in this Agreement.
2. ACCESS TO MARKETPLACE
A. ACCESS, USE AND RESTRICTIONS ON THE MARKETPLACE
Subject to the terms and conditions of this Agreement, Skill-Loan grants You a limited, non-exclusive, revocable, non-sub-contractable, personal, and non-transferable license to access and use the Marketplace for the sole purpose of contracting with Members to achieve the Purpose explained above. You agree that You are responsible for all activity related to Your account including but not limited to contracting with Members and your rights and obligations under those contracts which are separate from your agreement with Skill-Loan. You further agree not to share, sell, transfer, outsource, resell, rent, lease, lend or otherwise provide access to Your account to anyone who is not an employee, agent, or subcontractor of You. You also agree not to use access to other Members to create, design, develop, enhance, produce, sell, license, share, promote, market or distribute any material, services, software, or content that is intended for any use other than use with Skill-Loan’s Marketplace in accordance with this Agreement. Use of the Marketplace is entirely at Your own risk.
B. SKILL-LOAN MATERIALS
During the time You are participating in the Marketplace, Skill-Loan may provide You with access to Materials. Such access is subject to the terms of this Agreement. The Materials should not be relied upon nor used for any purpose other than in accordance with this Agreement. You agree that You are responsible for all activity related to Your use of the Materials. You further agree not to share, sell, transfer, copy, resell, rent, lease, lend or otherwise provide access to the Materials to anyone who is not an employee, agent, or subcontractor of You. You also agree not to use the Materials to create, design, develop, enhance, produce, sell, license, share, promote, market or distribute any material, services, software, or content that is intended for any use other than use with Skill-Loan’s Marketplace in accordance with this Agreement. Use of Materials is entirely at Your own risk.
C. RETENTION OF MARKS
If You make any copies of all or part of the Materials, You agree to retain and reproduce in full all copyright notices, disclaimers, proprietary notices, trademarks, trade names, and logos in all copies of the Materials that You are permitted to make under this Agreement.
Skill-Loan retains all rights, title and interest to the Marketplace and Materials made available to You under this Agreement.
E. UPDATES/DEPRECATION OF SKILL-LOAN MATERIALS
Skill-Loan may modify or deprecate all or part of the Marketplace or Materials at any time without notice. Updated content or materials will be subject to the terms and conditions of this Agreement.
F. YOUR OBLIGATIONS
You represent to Skill-Loan and agree that:
(a) You have the necessary authority to enter into this Agreement;
(b) All information provided by You to Skill-Loan will be accurate and complete;
(c) You are solely responsible for all costs, expenses, losses and liabilities incurred and all activities undertaken by You in connection with the Materials, including but not limited to development costs, network equipment and service fees, internet services, and any other equipment, services, and software used by You in connection with this Agreement;
(d) If You are a Business User and You wish to employ another member whom You hired for a Temporary job through the use of the Marketplace (“Prior Temporary Employee”) any time in the prior three (3) years, on a part-time, full-time or permanent basis, You will inform Skill-Loan and to pay Skill-Loan the Direct Hire Fee shown in Section 6.2 below.Failure to inform Skill-Loan and to pay the Direct Fee is considered a Breach of the Terms & Conditions of Use and may lead to a suspension or cancelation of your account and membership to the Marketplace as well as Liquidated Damages explained in Section 2G. If your account is terminated for any reason, by You or otherwise, You agree to inform Skill-Loan of a Prior Temporary Employee Hire and pay Skill-Loan the Direct Hire Fee;
(e) If You are a Business User and You wish to employ a Prior Temporary Employee for another temporary assignment, You will request and book his/her services through the Marketplace and pay the Platform Fee calculated by the Marketplace platform. Hiring a Prior Temporary Employee directly without the use of the Marketplace and without paying the Marketplace Platform Fee is considered a Breach of the Terms & Conditions of Use and may lead to a suspension or cancelation of your account and membership to the Marketplace as well as Liquidated Damages explained in Section 2G. If your account is terminated for any reason, by You or otherwise, You will inform Skill-Loan of a Prior Temporary Employee Hire and pay Skill-Loan the Platform Fee associated with such a Hire;
(f) If You are a Candidate, You will not accept temporary employment outside the Marketplace from a Member You became aware of or was introduced to through the Marketplace in the previous three years (3) years, and You will request Members to request and retain your services exclusively through the Marketplace;
(g) If You are a Candidate, You will inform Skill-Loan of any solicitation for employment or contract work, on a temporary, part-time or full-time basis, from a Member who You initially became aware of, was introduced to or were hired by through the Marketplace in the previous five (5) years;
(h) If You are a Candidate, You will take your hiring requests and job applications seriously and to show up on time for any job assignment You agree to take. “No Shows” are completely unacceptable and sufficient cause to suspend your account and membership in the Marketplace;
(i) If You are a candidate, You will provide a candid self-assessment of your skills. The industry needs Apprentices, junior, mid-level and very experienced candidates. Mis-representing your skills causing 3 negative employer reviews with less than 3 Stars is sufficient cause to suspend your account and membership in the Marketplace; and
(j) You will not abuse the platform and place fake or misleading requests, respond to requests without intention to hire or be hired, lie to other members about You or your intentions, mis-represent yourself or your skills, use profanity, expose inappropriate content, discriminate on the basis of race, color, sexual orientation or religion, take illegal actions. Any of these actions will be considered serious offenses and subject to immediate suspension of your account and membership in the Marketplace.
G. LIQUIDATED DAMAGES; PENALTY FOR BREACH OF CONTRACT
(a) You acknowledge that breach of Section 2F (d) and 2F (e) (“the Non-Solicitation Provisions”) may reduce the value of the company and benefits of the Marketplace, and that the enforcement of the Non-Solicitation Provisions will cost Skill-Loan time and money.
(b) In the event that Skill-Loan deems, in their sole discretion, that You have breached the Non-Solicitation Provision You will pay to Skill-Loan Liquidated Damages.
(c) In addition to Liquidated Damages, In the event that Skill-Loan deems, in their sole discretion, that You have breached the Non-Solicitation Provisions, Your use of the Marketplace may be suspended for a period of at least one year.
(d) You understand that no refund or suspension of fees will be paid to You in the event that your use of the Marketplace is suspended pursuant to this section.
3. USE OF THE MARKETPLACE AND MATERIALS
As a condition for accessing the Marketplace and using the Materials, You agree that:
(a) You will use the Marketplace and Materials in accordance with the restrictions provided herein and in the Program Details;
(b) You will not access or use the Marketplace or Materials in a way that interferes with or could interfere with the safety, security or functioning of any Member or any customer of any Member or any third party;
(c) You will not access or use the Marketplace or Materials in a way that interferes with or is intended to interfere with the operations of any Member or Skill-Loan; and
(d) You will be in compliance with all applicable legal requirements, including all laws, regulations, guidance, and policies related to the Purpose.
4. RIGHT TO CONTACT YOU
As a Mechanics & Body Shops Marketplace member, you agree to receive communication from us via email, phone, text messages and in-App. Notifications. We agree not to spam you with unnecessary content and to maintain all our communication relevant to your membership and interests in the Mechanics & Body Shop Marketplace. The App. Settings enable you to select the preferred means to contact you. Any promotional advertisements or newsletters will not be sent more than once a week and will have an Opt-out option. Most of the notifications you will receive will be from other members and these notification preferences can be customized in the Settings.
5. RESPONSIBILITY FOR EMPLOYEES, TOOLS, EQUIPMENT AND INVENTORY
You acknowledge and agree that Skill-Loan is not responsible for any costs, damages, expenses, or losses (including without limitation lost business opportunities or lost profits), or any other liabilities You may realize or incur in connection with participating in the Marketplace, Your use of the Materials, Skill-Loan’s deprecation or replacement of any Materials, or Skill-Loan choosing not to approve (or to approve) Your participation in the Marketplace, or any later withdrawal of such access for any reason or for no reason.
You are solely responsible for Your Workers, Tools, and Inventory, including but not limited to all salaries, wages, benefits, insurance, Worker’s Compensation, government filings, regulatory compliance, repairs, maintenance, warranty, returns, recalls, and defects, and You will be solely responsible for all documentation, training, maintenance, and warranties relating to Workers, Tools, and Inventory. Skill-Loan hereby disclaims any liability related to Your Workers, Tools, and Inventory or the Workers, Tools, and Inventory of any other Member.
Your membership in the Marketplace does not constitute any representation, warranty, assurance or guarantee by Skill-Loan with regard to Your Workers, Tools, or Inventory, or the Workers, Tools, or Inventory of any other Premium Member.
6.1 Platform Fees
We will charge a Platform Fee payable by Business User members who conduct a transaction in the Marketplace. The Platform fee covers the cost of our marketing and recruiting efforts, the use and maintenance of the Sites, including such features as technical support, and the credit card interexchange fees. It is calculated as a variable percentage of the estimated transaction amount (which may or may not include additional fees). The exact Platform Fee charged will be displayed to the members at the time that they submit a quote. The pro-rated Platform Fee will be refunded only if the transaction is canceled in agreement with both members and at Skill-Loan’s sole discretion.
6.2 Direct Hire Fee Applicable to Business Members
In the event You, an officer, representative, employee or partner of your company (collectively, “You” or “Your”) desire to hire or otherwise directly engage a Marketplace employee member, thereafter “Candidate”, outside of the Marketplace transaction process in the three (3) years following Your last contact with Candidate through the Marketplace Application, You will notify Skill-Loan and subsequently You will be billed and You agree to pay a minimum of nine hundred dollars ($900) for such direct Hire or other engagement of the Candidate. Such Direct Hire Fee shall be charged regardless of whether: (a) Candidate contacts You or applies for a job at your company independently or otherwise through a public job posting or other job board; (b) different Personnel representing You are involved in the direct Hire of the Candidate and previous engagement of the Candidate through the Marketplace Application; or (c) You notify Skill-Loan of such direct Hire or engagement of the Candidate. Any hire or engagement of the Candidate by You set forth above shall be defined as a “Hire” and shall trigger the Direct Hire Fee, including a full time hire, part time hire, independent contractor hire, intern hire, or any other such engagement where Candidate receives any compensation from You. In addition, “Hire” also shall include any situation where Your contact with Candidate through the Skill-Loan Application provides any information regarding Candidate to a third party and that third party hires Candidate within the five (5) year period, in any capacity, whether a full time hire, part time hire, independent contractor hire, intern hire, or any other such engagement or relationship where Candidate receives any compensation, directly or indirectly, from Customer and/or the third party.
In the event that You have a dispute with one or more other members of the site (including, without limitation, any dispute between members regarding any transaction or member contributed content) or any third party provider or any third party website that may be linked to or from or otherwise interact with the site, including without limitation any social media site, You hereby agree to release, remise and forever discharge Skill-Loan, each of its respective agents, directors, officers, employees, and all other related persons or entities from any and all manner of rights, claims, complaints, demands, causes of action, proceedings, liabilities, obligations, legal fees, costs, and disbursements of any nature whatsoever, whether known or unknown, which now or hereafter arise from, relate to, or are connected with such dispute and/or your use of the site.
You agree to defend, indemnify and hold harmless Skill-Loan Indemnitees from any Claim brought against a Skill-Loan Indemnitee by a third party including but not limited to Claims brought by other Members of the Marketplace or other third parties arising out or related to this Agreement including but not limited to any of the following:
(a) Your breach or alleged breach of any term of this Agreement; or
(b) Your breach or alleged breach of any of Your obligations to any other Member; or
(c) Skill-Loan’s use of Your Required Information or any other information provided by or on Your behalf in connection with this Agreement; or
(d) Your employees, tools, equipment, and inventory, or the employees, tools, equipment and inventory of any other Member; or
(e) Your use of the Skill-Loan Materials or the Marketplace; or
(f) Any investigation by a government or other regulatory body arising out of Your Workers, Tools, or Inventory or the Workers, Tools, or Inventory of any other Member.
The term of this Agreement will be remain in force for as long as You are a member in the Marketplace.
You may terminate this Agreement at your convenience upon thirty (30) days written notice. Skill-Loan reserves the right to terminate this agreement and suspend your use of the Marketplace at any time. Upon termination of this Agreement, You agree to make no further use of the Marketplace or Materials and to destroy all copies of information taken from the Marketplace including but not limited to Materials in Your possession or control. You agree to provide certification of this destruction to Skill-Loan. If this Agreement is terminated, Skill-Loan will remove Your information from the Marketplace. The termination of this Agreement will have no effect on Your responsibilities under existing contracts between You and Members. The termination of this Agreement will also have no effect on Your obligations under Section 2F (d) and 2F (e). Skill-Loan may terminate this Agreement immediately upon breach or alleged breach of this Agreement by You.
10. NO REPRESENTATION OR WARRANTY
The Marketplace and Materials may include inaccuracies and errors. Skill-Loan provides You access to the Marketplace and the Materials for Your convenience and provides them to You AS-IS. ALL REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESSED OR IMPLIED, ARE HEREBY DISCLAIMED, INCLUDING WARRANTIES OF MERCHANTABILITY, ACCURACY, FITNESS FOR A PARTICULAR PURPOSE AND TITLE, AND ANY IMPLIED WARRANTY AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF THE MARKETPLACE OR AGAINST INFRINGEMENT. YOU ACKNOWLEDGE THAT NO EMPLOYEE OF SKILL-LOAN OR ANY OTHER PARTY, INCLUDING BUT NOT LIMITED TO ANY OTHER MEMBER, IS AUTHORIZED TO MAKE ANY REPRESENTATION OR WARRANTY NOT IN THIS AGREEMENT.
11. LIMITATION OF LIABILITY
IN NO EVENT WILL SKILL-LOAN BE LIABLE FOR ANY INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY, ENHANCED, CONSEQUENTIAL OR INDIRECT DAMAGES, OR FOR ANY LOSS OF BUSINESS, PROFIT OR REVENUE, ANTICIPATED SAVINGS, OR GOODWILL OR REPUTATION, EVEN IF SKILL-LOAN HAD BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES OR THEY OTHERWISE WERE FORESEEABLE. UNDER NO CIRCUMSTANCES WILL SKILL-LOAN BE LIABLE IN EXCESS OF THE FEES ACTUALLY PAID BY YOU TO SKILL-LOAN IN THE TWELVE (12) MONTHS PRECEDING THE CLAIM. THE TOTAL AGGREGATE LIABILITY OF SKILL-LOAN TO YOU FOR ALL CLAIMS OF ANY KIND IN ANY WAY ARISING OUT OF THIS AGREEMENT WILL IN NO CASE EXCEED THE GREATEST AMOUNT OF FEES ACTUALLY PAID BY YOU TO SKILL-LOAN DURING ANY TWELVE (12) MONTH PERIOD FOLLOWING THE DATE THAT YOU EXECUTE THIS AGREEMENT.
THE SITE, INCLUDING ALL CONTENT, SOFTWARE, FUNCTIONS, MATERIALS AND INFORMATION MADE AVAILABLE ON OR ACCESSED THROUGH THE SITE, IS PROVIDED "AS IS." TO THE FULLEST EXTENT PERMISSIBLE BY LAW, WE MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER FOR THE CONTENT ON THE SITE, OTHER MEMBERS OR THE MATERIALS, INFORMATION AND FUNCTIONS MADE ACCESSIBLE BY THE SOFTWARE USED ON OR ACCESSED THROUGH THE SITE, FOR ANY PRODUCTS OR SERVICES OR HYPERTEXT LINKS TO THIRD PARTIES OR FOR ANY BREACH OF SECURITY ASSOCIATED WITH THE TRANSMISSION OF SENSITIVE INFORMATION THROUGH THE SITE OR ANY LINKED SITE, EVEN IF WE BECOME AWARE OF ANY SUCH BREACHES. FURTHER, WE EXPRESSLY DISCLAIM ANY EXPRESS OR IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, NON-INFRINGEMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR ACCURACY. WE DO NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE SITE OR ANY MATERIALS OR CONTENT CONTAINED THEREIN WILL BE UNINTERRUPTED OR ERROR FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE SITE OR THE SERVER THAT MAKES IT AVAILABLE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. YOU ACKNOWLEDGE AND AGREE THAT ANY TRANSMISSION TO AND FROM THIS SITE IS NOT CONFIDENTIAL AND YOUR COMMUNICATIONS OR MEMBER CONTRIBUTED CONTENT MAY BE READ OR INTERCEPTED BY OTHERS. YOU FURTHER ACKNOWLEDGE AND AGREE THAT BY SUBMITTING COMMUNICATIONS OR MEMBER CONTRIBUTED CONTENT TO US AND BY POSTING INFORMATION ON THE SITE, INCLUDING ITEMS FOR SALE, NO CONFIDENTIAL, FIDUCIARY, CONTRACTUALLY IMPLIED OR OTHER RELATIONSHIP IS CREATED BETWEEN YOU AND US OTHER THAN PURSUANT TO THESE TERMS.
YOU ACKNOWLEDGE AND AGREE THAT YOU WILL NOT HOLD OR SEEK TO HOLD US OR ANY THIRD PARTY PROVIDER RESPONSIBLE FOR THE CONTENT PROVIDED BY ANY MEMBER, INCLUDING, WITHOUT LIMITATION, ANY TRANSLATION THEREOF, AND YOU FURTHER ACKNOWLEDGE AND AGREE THAT WE ARE NOT A PARTY TO ANY TRANSACTION BETWEEN MEMBERS OF THE SITE. WE HAVE NO CONTROL OVER AND DO NOT GUARANTEE (OTHER THAN PURSUANT TO ANY GUARANTEE THE MAY BE OFFERED ON THE SITE) THE SAFETY OF ANY TRANSACTION, EMPLOYEE, PART, EQUIPMENT OR SERVICE OR THE TRUTH OR ACCURACY OF ANY LISTING OR OTHER CONTENT PROVIDED ON THE SITE. YOU FURTHER ACKNOWLEDGE THAT BY HIRING EMPLOYEES THROUGH SKILL-LOAN OR THE MARKETPLACE, WE DO NOT VOUCH FOR THEIR CLAIMED EXPERTISE OR EXPERIENCE AND WE DO NOT REPRESENT OR WARRANT THE SAFETY OF THESE EMPLOYEES OR THEIR RISK TO ACCIDENTAL HARM AND ARE NOT LIABLE FOR ANY ACCIDENTS THEY MAY INCUR.
A. CHOICE OF LAW; JURISDICTION
The validity, construction and enforcement of this Agreement will be determined in accordance with the laws of California, without reference to its conflicts of laws principles, and any action (whether by arbitration or in court) arising out of or relating to this Agreement will be brought exclusively in San Mateo County, California. You consent to the personal jurisdiction and venue of the state and federal courts located in San Mateo County, California.
The definitions in Appendix A apply to this Agreement.
C. ENTIRE AGREEMENT
This Agreement, including all appendices and exhibits attached hereto and all documents specifically referenced herein is the entire agreement between the parties with regard to the Marketplace and the other subject matter of this Agreement and Skill-Loan Materials (without limiting Your obligation to any other Member arising out of any transaction You may enter into under this Agreement, if applicable); it supersedes and incorporates all prior or contemporaneous representations, understandings or agreements; and it may not be modified or amended except as provided herein or by written amendment between You and Skill-Loan.
You will not assign, transfer, sublicense or timeshare Your rights or obligations under this Agreement without first obtaining Skill-Loan’s express written permission to do so, and any other purported assignment, transfer, sublicense or timeshare, whether by You or on Your behalf, including by operation of law or otherwise, is null and void.
No notice required to be provided in this Agreement will be effective unless it is in writing; is delivered to the other party by either reputable overnight courier; U.S. mail by registered, certified or overnight delivery service, with all postage prepaid and return receipt requested, or by personal delivery; and is addressed to:
If to Skill-Loan:
Elie Massabki, CEO
43 Bay View Drive
San Carlos, CA 94070
Notice to You will be effective if sent to the address You provide during Your registration for the Marketplace.
The provisions of this Agreement will be considered as severable, so that the invalidity or unenforceability of any provisions will not affect the validity or enforceability of the remaining provisions and any invalid or unenforceable provision will be enforced to the maximum extent possible; provided that no such severability will be effective if it materially changes the benefit of this Agreement to either party.
You agree that Skill-Loan may conduct an audit of Your records, to verify Your compliance with this Agreement. This right to audit includes the right to audit any subcontractors You may have used in performance of this Agreement. As such, You agree to include in Your agreements with any subcontractors that You may use to perform any obligation or to exercise any of Your rights under this Agreement, provisions sufficient to permit Skill-Loan to audit the same.
H. NO WAIVER
The failure of either party to require the performance of any obligation or to exercise any right under this Agreement, or the waiver by either party of any breach of this Agreement, will not act as a bar to subsequent enforcement of such obligation or right or be deemed a waiver of any subsequent breach.
I. NO JOINT VENTURE OR PARTNERSHIP
Nothing contained in this Agreement will be construed to create a joint venture, partnership or similar relationship between the parties, and their relationship is and will remain that of independent parties. Except as otherwise expressly provided in this Agreement, in no event will either party be liable for the debts or obligations of the other party.
J. INCORPORATION OF APPENDICES AND EXHIBITS
All appendices and exhibits attached to this Agreement, along with the Recruiting Services Agreement, when applicable, are hereby incorporated into and form a part of this Agreement. In the event of a conflict between the terms of an appendix, exhibit, or the Recruiting Services Agreement and this Agreement, the terms of this Agreement will govern.
Headings contained in this Agreement are for reference purposes only and will not affect in any way the meaning and interpretation of this Agreement.
Whenever capitalized in this Agreement:
Agreement means this Terms & Conditions of Use Agreement.
Candidate means a Job Seeker Member seeking temporary, contract, part-time or full-time employment.
Claim means all claims, demands, and actions, and all liabilities, damages and costs arising out of or relating thereto, including without limitation settlements and attorney’s fees.
Fees are defined in Section 6, titled “Fees”
Inventory means any products held out for sale in the normal course of business of a Member and includes but is not limited to items such as parts, tools, machinery, equipment, supplies, and vehicles.
Liquidated Damages means an amount equal to no less than the annual salary or wages paid or to be paid to the hired or to-be-hired Prior Temporary Employee, which amount shall be calculated based on the amount paid or to-be-paid to the Prior Temporary Employee, or in any other way deemed reasonable by Skill-Loan.
Marketplace means the program governed by the Agreement and includes a website and mobile applications hosted by Skill-Loan that allow Members to access other Members for the purpose defined in Section 1.
Materials means any information or sample documentation that Skill-Loan provides to You under this Agreement, including on the Marketplace.
Member means a party to an agreement with Skill-Loan wherein Skill-Loan grants access to the Marketplace.
Skill-Loan means Skill-Loan LLC, a California Limited Liability company with its principal place of business at 43 Bay View Drive, San Carlos, CA 94070.
Skill-Loan Indemnitees means Skill-Loan, any entity that directly or indirectly owns or controls more than fifty percent of Skill-Loan, shares a common owner as described herein with Skill-Loan, or is more than fifty percent owned or controlled, directly or indirectly, by Skill-Loan, and all employees, officers, directors, employees and contractors of Skill-Loan.
Tools means equipment, tools, or other items owned, leased or controlled by a Member and used in the ordinary course of the business of the Member.
Worker means a Member or an individual who is employed by, contracted by, or otherwise engaged by a Member.
You and Your means the legal entity that has accepted this Agreement and is using the Marketplace or exercising any other right under this Agreement.