Terms of Service.
Thank you for choosing Berke. Please read this Agreement carefully. This is a legal agreement. By using Berke or signing up for an account, you are accepting this Agreement. For your convenience this Agreement is written in plain English. However, you agree that the terms should be interpreted broadly to protect the intention of the Agreement.
Berke is an assessment 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”) are either a customer purchasing the Service (“Customer”) or a Customer’s employee, contractor, agent, licensor, representative or other end user who is authorized by the Customer to use the Service (“User”).
You agree to the terms of this Agreement and have officially signed this Agreement (“Accept”) when you execute an Order Form that references this Agreement, click a box on the Website indicating acceptance, or use the Service. If you Accept this Agreement on behalf of a Customer that is a company or other legal entity, you represent that you have the authority to bind such entity and its Affiliates to this Agreement, in which case the term “you” shall also 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 you may not use the Service. You acknowledge and agree that all candidates you invite to take assessments through the Service (“Candidates”) will be required to accept and agree to be bound by our Candidate Terms of Service (as modified by us from time to time) prior to taking such assessment(s). A copy of the current Candidate Terms of Service is available upon request.
This Agreement will commence on the date that you Accept this Agreement. If you are a Customer, this Agreement will continue until the expiration or termination of the Subscription Term. If you are a User, this Agreement will continue until either the Customer revokes your authorization to use the Service or the Customer's Agreement terminates. 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 three (3) months. 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 ten (10) 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.
- Closing your Account
Customer or we may terminate this Agreement at any time and for any reason by giving Notice to the other party. We may suspend our Service to you at any time, with or without cause. Once terminated, we may permanently delete your account and all the data associated with it. If you don’t log in to your account for 12 or more months, we may treat your account as "inactive" and permanently delete the account and all the data associated with it. 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.
Customer’s fees for the Service (the “Fees”), if any, are set forth on the applicable Order Form(s).
- Method of Payment
When Customer completes an Order Form, Customer has the option to pay by credit card or by invoice. If paying by credit card, Customer must provide us with valid credit card information and by doing so authorizes us to charge all Fees due against that credit card. If Customer elects to pay by invoice, Customer 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 a quarterly basis, in advance, within fifteen (15) days after the date of invoice.
- Overdue Payments
If we are unable to process Customer’s credit card or if we don’t receive payment of an invoice by its due date, we’ll try to contact Customer by email and we will suspend your Account until Customer’s payment is received in full. If this Agreement is terminated, Customer is still responsible for paying all outstanding Fees due.
If we terminate this Agreement without cause, we’ll give Customer a prorated refund for any prepaid Fees for the unused remainder of your Subscription Term. You won’t be entitled to a refund from us under any other circumstances. For purposes of this Agreement, “cause” shall mean failure to make any payment when due, your breach of any other term or condition of this Agreement, or a violation of applicable law.
- Proprietary Rights Owned by Us
You acknowledge the Service and Website, and all content 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
You represent and warrant that you will use the Service only in accordance and compliance with all applicable laws and government regulations, including, without limitation, the Americans With Disabilities Act of 1990, as amended (the “ADA”).
- 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 and Customer.
- 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).
- You will not disclose your use of the Service in any advertising or promotional materials.
- 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, please notify us immediately.
- API Throttling
We may throttle your connection through our API at our discretion.
- No Warranties
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, 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 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 any claims you make that aren’t allowed under this Agreement due to a "Limitation of Liability" or other provision. You also 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.
- Subpoena Fees
If we have to provide information in response to a subpoena related to your Account, then we may charge you for our costs. These fees may include attorneys’ fees and employee time spent retrieving the records, preparing documents, and participating in a deposition.
- 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
- 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
- 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 last email or physical address you gave us. 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 NW, 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, No Warranties, 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