Berke is a service that allows you to assess people, create job profiles, receive assessment reports and compare people to job profiles. Berke is offered through the URL http://berkeassessment.com (“Website”) and may include associated professional services performed by us such as training, integration, and job analysis. We will collectively refer all of these services as the "Service". The Service is owned and operated by Berke Group, LLC, a Georgia limited liability company (“we,” or “us”). We have employees, contractors, agents, licensors, and representatives ("Our Team"). You (“you” or "Customer") are a customer purchasing the Service. Customer acknowledges and agrees that any person using Customer’s log-in credential to access and use the Services, including without limitation Customer’s employees, contractors and agents (each a “User”), will be bound by this Agreement and that Customer will be responsible for any breach of this Agreement by any of its Users.
By executing or electronically agreeing to an Order Form that incorporates this Agreement by reference, you are accepting and agreeing to the terms hereof (“Accept” or “Accepting”). If you Accept this Agreement on behalf of a company or other legal entity, you represent that you have the authority to bind such entity and its Affiliates to these terms and conditions, in which case the terms “you” and “your” shall refer to such entity and its Affiliates. If you do not have such authority, or if you do not agree with these terms and conditions, you must not Accept this Agreement and may not use the Website or the Service.
This Agreement defines the terms and conditions under which you are allowed to use the Service and governs your use of the Service. This Agreement also includes the terms of any order form(s) for Service(s) completed and submitted by you (each an “Order Form”). In the event of any conflict between or among the provisions contained in this Agreement and an Order Form, the applicable provision in the Order Form shall control.
This Agreement and any Order Form(s) may be modified or amended only by written agreement executed by us and Customer.
This Agreement will commence on the date that you Accept this Agreement and will continue until the expiration of the Subscription Term. The “Subscription Term” is the period of time during which the Customer is authorized to use the Service, as described on the applicable Order Form(s). Unless otherwise stated in the Order Form, the initial Subscription Term will be twelve (12) months. Unless otherwise stated in the Order Form, the Subscription Term will automatically renew for additional periods equal to the expiring Subscription Term unless we or the Customer provide(s) the other with written notice of non-renewal at least thirty (30) days prior to the end of the then-current Subscription Term.
- Account and Password
After you Accept this Agreement, we will assign you an account that provides access to the Service (“Account”). You’re responsible for keeping your Account name and password confidential. You’re also responsible for any Account that you have access to, regardless of whether or not you authorized the use. You’ll immediately notify us of any unauthorized use of your Accounts. We’re not responsible for any losses due to stolen or hacked passwords. Upon any termination or expiration, we have no obligation to maintain your data on our systems.
Customer’s fees for the Service (the “Fees”) are set forth on the applicable Order Form(s).
- Method of Payment
When you complete an Order Form, you have the option to pay by credit card or by invoice. If paying by credit card, you must provide us with valid credit card information and by doing so authorize us to charge all Fees due against that credit card. If you qualify to pay by invoice, you must provide us with a valid email address to which we will send invoices. Unless otherwise specified on the applicable Order Form, all Fees are payable on an annual basis, in advance, within fifteen (15) days after the date of invoice.
- Overdue Payments
If we are unable to process your credit card or if we don’t receive payment of an invoice by its due date, we’ll try to contact you by email and we may suspend your Account until your payment is received in full.
You or we may terminate this Agreement for cause (i) upon 30 days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) if the other party violates applicable law or becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. If you terminate this Agreement for cause, we will refund you any prepaid fees covering the remainder of the term of all Order Forms after the effective date of termination. If we terminate this Agreement for cause, you will pay any unpaid fees covering the remainder of the Subscription Term of all Order Forms. Subject to the provisions of Section 10 below, upon termination or expiration of this Agreement, all rights granted to you shall immediately terminate and all Fees owed by Customer through the effective date of such termination or expiration shall become immediately due and payable. Upon any termination or expiration, we have no obligation to maintain your data on our systems and thirty (30) days past expiration we may delete your account and all the associated data.
If we terminate this Agreement without cause, we’ll give you a prorated refund for any prepaid Fees for the unused remainder of your Subscription Term. If you terminate this agreement without cause, you won’t be entitled to a refund and you will pay any unpaid fees covering the remainder of the Subscription Term of all Order Forms. For purposes of this Agreement, “cause” is defined in Section 9 (Termination) above.
- Proprietary Rights Owned by Us
You acknowledge the Service and Website, and all materials and/or intellectual property rights contained within the Service or on the Website, including without limitation any proprietary rights protected or protectable by patent, trademark, copyright, service mark or trade secret law (collectively “Our IP”) are our exclusive proprietary property and your right to use the Service and Website under this Agreement does not pass to you any title to or proprietary rights in Our IP, all of which are expressly reserved to and vested in us. This Agreement does not grant you any rights in connection with any of Our IP other than as specifically stated herein. You will respect our propriety rights in Our IP. You will not publish, provide access to or otherwise make available the Service in part or whole to anyone other than Customer and its Users.
You acknowledge that we will have a royalty-free, worldwide, transferable, and perpetual license to use or incorporate into the Services any suggestions, ideas, enhancement requests, feedback, or other information provided by you relating to the Services.
- Proprietary Rights Owned by You
- Right to Use and Review Your Content
We may use, view, copy, and internally distribute your Content to create assessments, job profiles, algorithms and programs to provide and/or improve the Service for you. We study this data internally to make the Service better and to create better experiences for all customers and for all people who complete assessments.
- White Labeling
- Compliance with Laws
We represent and warrant that we will comply with all applicable laws. You represent and warrant that you will use the Service only in accordance and compliance with all applicable laws and government regulations.
- Usage Restrictions
Unless you first obtain our express written permission:
- You will not make the Service available to anyone or use the Service for the benefit of anyone other than you.
- You will not sell, resell, license, sublicense, distribute, rent or lease the Service to anyone.
- You will not permit direct or indirect access to or use of the Service in a way that circumvents a contractual usage limit.
- You will not copy the Service or any part, feature, function or user interface.
- You will not use or access the Service in order to build a competitive product or service.
- You will not reverse engineer the Service (to the extent such restriction is permitted by law).
- Reporting Abuse
You will use commercially reasonable efforts to prevent unauthorized access to or use of the Service. You will notify us promptly of any such unauthorized access or use. If you think anyone is violating any of the terms of this Agreement, you must notify us immediately.
- Limited Warranty
We warrant that the Service will function in accordance with the specifications set forth in this Agreement during the Term. For any breach of the above warranty, your exclusive remedy and our sole obligation is as described in Sections 9 (Termination) and 10 (Refunds).
Except as expressly provided in Section 19 (Limited Warranty), to the maximum extent permitted by law, we provide the material on the Website and the Service on an “as is” basis. That means neither we nor Our Team provide warranties of any kind, either express or implied, and expressly disclaim all implied warranties, including but not limited to warranties of: merchantability, fitness for a particular purpose, quality, or accuracy.
- Limitation of Liability
To the maximum extent permitted by law, you assume full responsibility for any loss that results from your use of the Website and the Service. We and Our Team won’t be liable for any indirect, punitive, special, or consequential damages under any circumstances, even if they’re based on negligence or we’ve been advised of the possibility of those damages. Our total cumulative liability with respect to this Agreement and the Service will not exceed the Fees paid by you to us during the three (3) month period immediately before the event giving rise to the claim.
You acknowledge and agree that the Service is intended only as a tool, and nothing contained in the Service is intended to replace your or your users’ independent judgment. We are not liable for any damages arising out of reliance on the information contained in or derived from the Service or any hiring or termination decision made by you directly or indirectly as a result of the Service. You agree not to bring, file, or participate in any claim, suit, or complaint against us or Our Team as a result of any hiring or termination decision made by you or by any other person.
You agree to indemnify, defend, and hold us and Our Team harmless from any damages, liabilities, or losses (including attorneys’ fees) that result from your gross negligence or willful misconduct, or third-party claims that you or someone you provided access to the Service did something that, if true, would violate any of the terms of this Agreement, including, without limitation, a breach of any representation or warranty made by you within this Agreement. You agree to indemnify, defend, and hold us and Our Team harmless from any damages, liabilities, or losses (including attorneys’ fees) that result from any claims you make that aren’t allowed under this Agreement due to a "Limitation of Liability" or other provision. If we assert a right of indemnification by you under this Section 22, we will: (a) promptly give you written notice of the claim, (b) give you sole control of the defense and settlement of the claim (except that you may not settle any claim unless it unconditionally releases us of all liability), and (c) give you all reasonable assistance, at our expense.
We will defend you against any claim, demand, suit or proceeding made or brought against Customer that results from a third party alleging that the use of the Service in accordance with this Agreement infringes or misappropriates such third party’s intellectual property rights (a “Claim Against You”), and will indemnify you from any damages, attorney fees and costs finally awarded against you as a result of, or for amounts paid by you under a court-approved settlement of, a Claim Against You, provided that you: (a) promptly give us written notice of the Claim Against You, (b) give us sole control of the defense and settlement of the Claim Against You (except that we may not settle any Claim Against You unless it unconditionally releases you of all liability), and (c) give us all reasonable assistance, at our expense. If we receive information about an infringement or misappropriation claim related to the Service, we may in our discretion and at no cost to you (i) modify the Service so that it no longer infringes or misappropriates, without breaching our warranty under Section 20 (Limited Warranty), (ii) obtain a license for your continued use of the Service in accordance with this Agreement, or (iii) terminate your subscriptions for the Service upon thirty (30) days’ written notice and refund you any prepaid fees covering the remainder of the term of the terminated subscriptions.
- Confidential Information
“Confidential Information” means information disclosed by a party to the other party, whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Without limiting the foregoing, our Confidential Information includes the Services and all Order Forms (including pricing). However, Confidential Information does not include any information that:
- Is or becomes generally known to the public without breach of any obligation owed to the disclosing party;
- Was known to the receiving party prior to its disclosure by the disclosing party without breach of any obligation owed to the disclosing party;
- Is received from a third party without breach of any obligation owed to the disclosing party; or
- Was independently developed by the receiving party.
Both parties agree to:
- Protect the other party’s Confidential Information with the same standard of care it uses to protect its own Confidential Information of like kind, but no less than a reasonable standard of care;
- Not use any Confidential Information of the other party for any purpose outside the scope of this Agreement; and
- Except as otherwise authorized by the disclosing party in writing, disclose Confidential Information of the disclosing party only to those of its employees, contractors, and agents who need that access for purposes consistent with this Agreement and who have signed confidentiality agreements with the receiving party containing protections no less stringent than those herein.
If you or we excuse or overlook a breach of any of the terms of this Agreement, that does not mean that such party excuses any other breach or waives its right to remedy any other breach by the other party.
You may not assign any of your rights under this Agreement to anyone else without our express written consent. We may assign our rights to any other individual or entity at our discretion.
- Governing Law
This Agreement will be applied and construed according to the laws of the State of Georgia without regard to conflicts of laws provisions. If it turns out that a section of this Agreement isn’t enforceable, then that section will be removed or edited as little as necessary, and the rest of the terms of this Agreement will still be valid. Any dispute related to this Agreement or the Service itself will be decided by the state and federal courts in Fulton County, Georgia and each party will be subject to the jurisdiction of those courts.
The headings in this Agreement are for convenience only and will not be used to alter or limit the interpretation of any provision of this Agreement.
Any notice to you will be effective when we send it to the email or physical address listed in the Order Form or to last email or physical address you gave us in accordance with the notice provisions herein. Any notice to us will be effective when delivered to us by certified mail, return receipt requested, or by reputable overnight courier, to 2970 Peachtree Rd, Suite 300, Atlanta, GA 30305, Attention: CEO, or to the email address or other physical address posted on the Website as our official notice address from time to time.
- Force Majeure
We will not be liable to you or any third party for any delays or failure in performance of any part of the Service or Website, from any cause beyond our control. This includes, but is not limited to, acts of God, changes to law or regulations, embargoes, war, terrorist acts, riots, fires, earthquakes, nuclear accidents, floods, strikes, power blackouts, volcanic action, unusually severe weather conditions, and acts of hackers or third-party internet service providers.
Even if this Agreement is terminated or expires, the following sections will continue to apply: Overdue Payments, Proprietary Rights Owned by Us, Proprietary Rights Owned by You, Compliance with Laws, Limitation of Liability, Disclaimers, Indemnity, Confidentiality (for a period of 3 years after termination or expiration), Governing Law, Notices, Survival, Waiver of Jury Trial, and Entire Agreement.
- Waiver of Jury Trial
Each party waives the right to a trial by jury in any dispute in connection with or relating to this Agreement, any related agreement, or any matters described or contemplated herein or therein, and agrees to take any and all action necessary or appropriate to effect such waiver.
- Entire Agreement