TOP NOTCH HOSPITALITY GROUP TERMS AND CONDITIONS OF SERVICE
Welcome to the website and online services of Top Notch Hospitality Group, LLC (“TNHG,” “we”, “us”, or “our”). These Terms and Conditions of Service (“Terms”) are a contract between TNHG and yourself (the “Agreement”), and explain the terms and conditions by which you may use and/or access our services and website (the “Services”). Please read these terms and conditions of service carefully before accessing, using or obtaining any materials, information, products or services. By accessing the TNHG website, mobile or tablet application, or any other feature or other TNHG platform (collectively “TNHG Website” or this “Site”) you agree to be bound by these Terms and any other Specific Terms of Service as applicable. If you do not accept all of these Terms, then you may not use TNHG Website. In these Terms “you” or “your” refers to you as the user of TNHG Website.
TNHG may modify these Terms (including Specific Terms of Service), for any reason at any time, by posting a new version on TNHG Website; these changes do not affect rights and obligations that arose prior to such changes. Your continued use of TNHG Website following the posting of modified Terms will be subject to the Terms in effect at the time of your use. Please review these Terms periodically for changes. If you object to any provision of these Terms or any subsequent modifications to these Terms or become dissatisfied with TNHG Website in any way, your only recourse is to immediately terminate use of TNHG Website. This Agreement applies to all persons and entities who visit any of our websites and/or use or access any of the Services ("Users").
THESE TERMS INCLUDE AN AGREEMENT TO MANDATORY ARBITRATION, WHICH MEANS THAT YOU AGREE TO SUBMIT ANY DISPUTE RELATED TO YOUR USE OF ANY OF THE SERVICES, TO BINDING INDIVIDUAL ARBITRATION RATHER THAN PROCEED IN COURT. THE DISPUTES/ARBITRATION PROVISION ALSO INCLUDES A CLASS ACTION WAIVER, WHICH MEANS THAT YOU AGREE TO PROCEED WITH ANY DISPUTE INDIVIDUALLY AND NOT AS PART OF A CLASS ACTION. DO NOT ACCESS OR USE ANY OF THE SERVICES IF YOU DO NOT AGREE TO THESE TERMS IN THEIR ENTIRETY.
- Types of Users:
The word "you" as used in this Agreement will apply to visitors who browse the TNHG Website websites and individuals who access and use the Services on their own behalf and/or on behalf of an entity.
(i) Users that use the Services to search for employment or job opportunities on behalf of themselves and/or a third party are also referred to in this Agreement as, a "Job Seeker"
(ii) Users that use the Services to search for employees, view resumes, profiles, or curriculum vitae ("Job Advertisements"), on behalf of themselves and/or a third party are also referred to in this Agreement as, a "Hiring User".
(ii) If you use the TNHG Website on behalf of an employer, organization, agency, institution, or other entity, then (a) "you" includes you and that entity, and (b) you represent and warrant that you are an authorized representative of the entity with the authority to bind the entity to this Agreement, and that you agree to this Agreement on the entity's behalf
- USE OF THE SERVICES
You must be at least eighteen (18) years of age or the age of majority in the jurisdiction in which you reside so that you can form a binding contract with TNHG. You may not use the Services if your use of the Services has been previously terminated or suspended for cause by TNHG unless we have provided you with specific written authorization to re-use the Services.
By providing TNHG your email address you consent to our using the email address to send you Service-related notices, including any notices required by law, in lieu of communication by postal mail. We may also use your email address to send you other messages, such as changes to features of the Service and special offers.
If you do not want to receive such email messages, you may opt out or change your preferences in your Account page (for Users) or by following the opt-out and/or unsubscribe instructions in the email message. You can also contact email@example.com. Note: Opting out may prevent you from receiving email messages regarding updates, improvements, or offers.
You acknowledge and agree that TNHG may use third party vendors and/or partners to provide the Services (or any portion of the Services) to you, and share personal information with such third parties as necessary in order to provide the Services to you.
By using the Services, you acknowledge that we do not have control over the quality, accuracy, completeness, veracity or legality of content provided by third parties. In addition, you acknowledge that we do not have control over the integrity, responsibility or actions of Job Seekers.
- User Accounts
The information in this section applies to all User accounts (“User Account”). You may control your profile information and how you interact with the Services by changing the settings When creating your account or uploading information to the Services through your account, you represent and warrant that you will provide accurate and complete information. You are solely responsible for the activity that occurs under your account. All Users must keep their account passwords secure. We encourage you to use "strong" passwords (passwords that use a combination of upper and lowercase letters, numbers and symbols) with your account. You must notify TNHG immediately of any breach of security or unauthorized use of your account. TNHG will not be liable for any losses caused by any unauthorized use of your account.
Users have no ownership rights in their accounts and in the event that your account is terminated by you or us, the contents of your account may not be available. TNHG reserves the right to delete a User Account in the event of any inactivity.
TNHG may suspend or terminate your account and/or your access to the Services, or any portion of the Services at any time without notice to you, if we believe that you have violated the terms of this Agreement. Upon any such termination, all the provisions of this Agreement shall continue to survive except for any provisions that grant you access to any of the Services. You agree that we will have no liability to you for any termination or suspension of your access to the Services or your account, or the deletion of information contained within such account.
- General Rules for Use of Services
You agree not to engage in any of the following prohibited activities: (i) copying, distributing, or disclosing any part of the Services in any medium, including without limitation by any automated or non-automated "scraping"; (ii) using any automated system, including without limitation "robots," "spiders," "offline readers," etc., to access the Services in a manner that sends more request messages to the TNHG servers than a human can reasonably produce in the same period of time by using a conventional on-line web browser (except that TNHG grants the operators of public search engines revocable permission to use spiders to copy materials from tnhgrecruiting.com for the sole purpose of, and solely to the extent necessary for, creating publicly available searchable indices of the materials, but not caches or archives of such materials); (iii) transmitting spam, chain letters, or other unsolicited communications; (iv) attempting to interfere with, compromise the system integrity or security or decipher any transmissions to or from the servers running the Services; (v) taking any action that imposes, or may impose at our sole discretion an unreasonable or disproportionately large load on our infrastructure; (vi) uploading invalid data, viruses, worms, or other software agents through the Services; (vii) collecting or harvesting any personally identifiable information from the Services, except as expressly permitted by certain features of the Services; (viii) using the Services for any commercial solicitation purposes; (ix) impersonating another person or otherwise misrepresenting your affiliation with a person or entity, conducting fraud, hiding or attempting to hide your identity; (x) interfering with the proper working of the Services; (xi) accessing any content on the Services through any technology or means other than those provided or authorized by the Services; (xii) bypassing the measures we may use to prevent or restrict access to the Services, including without limitation, features that prevent or restrict use or copying of any content or enforce limitations on use of the Services or the content therein; (xiii) disclosing or sharing login credentials; (xiv) reverse engineering or decompiling any parts of the Services; (xv) frame or link to any information or content on the Services; (xvi) post or submit any inaccurate, incomplete, or false biographical information or another person’s information; or (xvi) post or submit any material that is unlawful, illegal, defamatory, offensive, discriminatory, threatening, or obscene as determined by TNHG.
We may, without prior notice, change any aspect of the Services; stop providing the Services or features of the Services; or create usage limits for the Services (for paid products and services). We may permanently or temporarily limit, condition, terminate or suspend your access to the Services or any features thereof, without notice and liability for any reason, including if in our sole determination you breach or violate any provision of this Agreement, commit fraud or other abuse using the Services, or for no reason. Upon termination for any reason or no reason, you continue to be bound by this Agreement.
You are solely responsible for your interactions with other TNHG Users. We reserve the right, but have no obligation, to monitor disputes between you and other Users. TNHG shall have no liability for your interactions with other Users, or for any User's action or inaction. TNHG shall have no obligation to you to enforce this Agreement against any other User.
If you have questions about the Services or your Account, please email TNHG at [email address].
- USER CONTENT AND USERS
The Services may allow Users to post and/or provide content that may be viewable by other Users, including, but not limited to, Job Advertisements, company information, a job seeker’s application information, content of messages, resumes/CVs, logos, trademarks, comments, questions, and other content or information ("User Content").
User Content is the sole responsibility of the person or entity that provided the User Content. You shall be solely responsible for your User Content and the consequences of posting, providing or publishing it.
The following list is intended to be illustrative of the types of User Content that is prohibited, but is not an exhaustive list: You agree not to post or provide User Content that (i) may create a risk of harm to any person or property; (ii) provides instructional information about illegal activities; (iii) involves the transmission of junk or unsolicited mail or other communications, ‘phishing’ or ‘scamming’; (iv) provides links to material that is illegal or offensive, or targets or solicits personal information from, anyone under the age of 18; (v) contains any information or content that we deem to be unlawful, harmful, abusive, racially or ethnically offensive, defamatory, infringing, invasive of personal privacy or publicity rights, harassing, humiliating to other people (publicly or otherwise), libelous, threatening, profane, or otherwise objectionable; (vi) contains any information or content that is illegal (including, without limitation, the disclosure of insider information under securities law or of another party's trade secrets); (vii) contains any information or content that you do not have a right to make available under any law or under contractual or fiduciary relationships; (viii) contains any information or content that is false or misleading; or (ix) violates the Intellectual Property Rights (as defined below) or rights of privacy of any third party. For the purposes of this Agreement, "Intellectual Property Rights" means patent rights, copyright rights, mask work rights, moral rights, rights of publicity, trademark, trade dress and service mark rights, goodwill, trade secret rights and other intellectual property rights as may now exist or hereafter come into existence, and all applications therefore and registrations, renewals and extensions thereof, under the laws of any state, country, territory or other jurisdiction. If you are a User providing or submitting Job Advertisements, you further agree that such content will not contain any personally identifiable information.
You agree that TNHG makes no representations, warranties, promises or guarantees regarding any content provided or generated by third parties, including, without limitation, the content of messages, Job Advertisements and resumés. You further agree that TNHG acts as a passive conduit for the distribution, provision, and publication of User Content, and has no obligation to screen or verify the accuracy, legality, legitimacy, truthfulness, or completeness of User Content, and accordingly, you accept that TNHG is not responsible and has no liability, for User Content. You understand that you may be exposed to User Content that is inaccurate, incomplete, illegal, misleading, false, offensive, constitutes spam, or is otherwise unsuited to your purpose, and you accept that it is your responsibility to verify the quality, accuracy, truthfulness, legality or reliability of User Content, including, without limitation, resumes/CVs and Job Advertisements and content of messages. Your reliance on any User Content is at your own risk.
Notwithstanding the foregoing, although TNHG has no obligation to screen User Content, to the extent that TNHG becomes or is made aware of, User Content that may or does (i) violate the terms of this Agreement or any other Agreement you have with TNHG, or (ii) violate any law or regulation, or (iii) violate the rights of third parties, or (iv) create liability for TNHG or otherwise negatively impact TNHG, TNHG reserves the right to reject and/or remove such User Content, and suspend and/or terminate any User Account associated with such User Content.
Please note Section 230 of the U.S. Communications Decency Act ("CDA") (and the equivalent or similar laws in your jurisdiction), which are intended to exclude or limit the liability of online service providers such as TNHG, which provide or make available access to third-party user generated content (see § 230 (c)(1) which states: No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider).
The decision by TNHG to remove or not post or distribute any User Content, does not by itself amount to participation in the creation of such User Content and accordingly, does not constitute a waiver of the immunity afforded by the CDA. Additionally, § 230 (c)(2) of the CDA specifically provides: "No provider or user of an interactive computer service shall be held liable on account of (A) any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable whether or not such material is constitutionally protected….."
You understand and agree that TNHG does not, and cannot, confirm that each User is who he/she/they claim to be. We are not responsible for authenticating Users and therefore it is your responsibility to conduct the appropriate due diligence before communicating or interacting with other Users, including, without limitation, Job Seekers, employers, staffing agencies, and recruiters. You assume all risks associated with Users with whom you come into contact. If you have any disputes or issues with any User you agree to pursue any remedies directly with the applicable User and you release TNHG, its subsidiaries, and their respective employees, directors and agents from all claims, demands and damages of every kind (actual and consequential and direct and indirect) known and unknown, suspected and unsuspected, disclosed and undisclosed, to the fullest extent permitted by law.
TNHG reserves the right to disclose User Content and any information related to the provider of such User Content, to third parties in connection with the operation and provision of the Services, to enforce the terms of any agreement that we have with you, to comply with legal obligations and requests from governmental authorities, law enforcement agencies, court orders, subpoenas, etc., and to protect the interests of TNHG where necessary. For the avoidance of doubt, you agree that we have the right to disclose your identity to a third party who is claiming that any User Content you posted, provided or uploaded is fraudulent, false, or misleading or constitutes a violation of the law, or a violation of their intellectual property or ownership rights, or of their right to privacy.
- USER CONTENT LICENSE GRANT
By posting, submitting, providing and/or otherwise making available any User Content, you expressly grant, and represent that you have a right to grant, to TNHG, a royalty-free, sublicensable (through multiple layers of sublicensees), perpetual, transferable, non-exclusive, worldwide license to use, sell, reproduce, adapt, translate, sublicense, publicly perform, publicly display, and make derivative works from and otherwise exploit, all such User Content in whole or in part, and in any form, media or technology, whether now known or hereafter developed, for the purposes of posting such User Content on the TNHG websites, distributing such User Content through the TNHG distribution and publishing network and in job alerts to job seekers, and to promote TNHG and the Services. This license continues even if you stop using the Services.
If you are a User, you acknowledge and agree that TNHG has no obligation, and may be unable, to remove your Job Advertisements and other content (including any logos and/or trademarks contained therein) once they have been (i) distributed via the TNHG distribution and publisher network, (ii) listed in search engine results, or (iii) distributed on websites and in job alert emails or job alert texts, or (iv) incorporated into fixed media displays of TNHG or any third party, and in each case (i) to (iv) above, the license grant from you above will be perpetual and irrevocable for such uses. To the extent your User Content is a trademark, trade name, service mark or service name protected by law, the foregoing license also extends to the use by TNHG to identify you as a User of the Services in any promotional and marketing materials to promote TNHG and the Services. Further, to the extent you have given TNHG the right to access certain User Content that is present on another website or service you own or control, you give TNHG the right to scrape such website as required to retrieve such User Content for use on the Services as contemplated in the license grants above.
You represent and warrant that you have the rights, power and authority necessary to grant the rights described in this section to User Content that you submit, provide, make available or post, via the Services, that the use by TNHG of your User Content will not violate any law or infringe the rights of any third party, and that your User Content and any other information that you provide to us is legal, complete, legitimate, truthful and accurate.
- TNHG PROPRIETARY RIGHTS
With the exception of content owned by, or licensed from, third parties, the Services and all materials therein or transferred thereby, including, without limitation, software, images, text, graphics, illustrations, logos, patents, trademarks, service marks, copyrights, photographs, audio, videos, music, and content (the, "TNHG Content"), and all Intellectual Property Rights related thereto, are the exclusive property of TNHG. Except as explicitly provided herein, nothing in this Agreement shall be deemed to create a license in or under, any such Intellectual Property Rights, and you agree not to sell, license, rent, modify, distribute, copy, reproduce, transmit, publicly display, publicly perform, publish, adapt, edit or create derivative works from any materials or content accessible on the Services. Use of the TNHG Content or materials on the Services for any purpose not expressly permitted by this Agreement is strictly prohibited.
If you participate in any evaluation regarding the Services or otherwise provide TNHG suggestions, comments, ideas, opinions, recommendations for the modification, correction, improvement, or enhancement of the Services, or other feedback regarding the Services (collectively, "Feedback"), you agree that TNHG shall own such Feedback. Accordingly, you understand and accept that TNHG will be free to use, disclose, reproduce, license or otherwise distribute, commercialize and exploit the Feedback as it sees fit, entirely without obligation or restriction of any kind and without compensation to you. You agree not to provide any Feedback that is false or misleading or that breaches any agreement you have with a third party.
WEBSITE LINKING POLICY. YOU SHALL AT ALL TIMES DURING YOUR MEMBERSHIP DISPLAY A LINK TO THE TNHG SITE ON YOUR WEBSITE DIRECTING ALL SUBMISSIONS OF RESUMES TO PROCEED TO THE TNHG SITE FOR PROCESSING, HOWEVER, YOU MUST COMPLY WITH THE FOLLOWING GUIDELINES:
- (i) Do not incorporate any Site Content, or content from any other TNHG site, into your web site (e.g., by in-lining, framing or creating other browser or border environments around TNHG content). You may only link to this Site, or any other TNHG site, by providing an underlined, textual link from your Web site to the home page of that TNHG site (an “Authorized Link”). For example, TNHGrecruiting.comis the only Authorized Link to TNHG Site. “Home Page” means the introductory or main web page of a Web site, typically serving as a table of contents for the site. No other link to any TNHG site is permitted without the express, prior written approval of TNHG.
- (ii) You may not present an Authorized Link to any TNHG home page in a manner that suggests TNHG has any relationship or affiliation with your site or endorses your site, products or services.
- (iii) Your site must not present false information about TNHG, its products or services.
- (iv) You may not use any of TNHG's names, logos, designs, slogans, trademarks or service marks or any other words or codes identifying any TNHG site in any "metatag" or other information used by search engines or other information location tools to identify and select sites, without TNHG's express, prior written permission for a particular use.
- (v) Your site must not contain content that could be construed as distasteful, offensive or controversial.
- (vi) TNHG prohibits unauthorized links to the TNHG Website and the framing of any information contained on its Site, or any portion of its Site, without the express, prior written approval of TNHG. Furthermore, you may not archive, cache, or mirror any TNHG Website page or portions of our Site. TNHG reserves the right to disable any unauthorized links or frames. TNHG hereby disclaims all liability for any material on other Web sites that may contain links to this Site.
- (vii) If you would like to use, reprint, frame, or redistribute any content on any TNHG Website other than as permitted herein, you must request permission from TNHG by writing to firstname.lastname@example.org . Please include: (a) your name, e-mail address, and telephone number; (b) the name of your company; (c) the Web site address(es) where the proposed use will occur; and (d) specific details about the contemplated linking or framing activities, including the content or Web page(s) of this Web site which you would like to use.
- PAID SERVICES
- Billing Policies
Certain aspects of the Services may be provided for a fee. If you elect to use paid features of the Services, you agree to the pricing and payment terms for the applicable Services, as we may update them from time to time. Recurring charges are billed in advance of service. TNHG may add new services and products for additional fees and charges, or amend fees and charges for existing services, at any time in its sole discretion. We may also provide certain services via our third-party partners and you agree that your use of such third-party services is subject to the contractual (including payment) terms presented by such third parties should you wish to use their services. You further agree that TNHG has no responsibility for such third-party services and your use of such services is entirely at your own risk. Any change to the fees for paid services shall become effective in the billing cycle following notice of such change to you.
- No Refunds
You may cancel your Membership at any time following the expiration of the Initial Plan Term and you accept that you will not receive a refund of pre-paid fees for such cancellation, provided however that if you cancel during the Trial Period as set forth in Section 6E(i), TNHG shall provide a refund in an amount equal to the fee as charged for the Services during the Trial Period. In the event that TNHG suspends, limits, conditions, or terminates your access to the Services and/or your account due to your breach of this Agreement or any other agreement that you have with TNHG, you understand and accept that you will not receive a refund for any unused time with respect to fees that you have pre-paid for a Membership Plan, product or service, and to the extent that you have not paid the applicable fees, you will remain liable to pay TNHG the entire fees due for the subscription, product or service, as applicable.
- Payment Information; Taxes; Delinquent Payments
All information that you provide in connection with a monetary transaction must be accurate, complete, and current. You agree to pay all charges incurred by users of your credit card, debit card, or other payment method used in connection with a purchase or transaction at the prices in effect when such charges are incurred. You will also pay any applicable taxes relating to such transactions. If at any time TNHG is required by a taxing authority to pay any taxes not previously collected from you, you will promptly submit such taxes (including applicable penalties and interest, if any) to TNHG upon written notice.
If you elect to add additional paid services or products to your selected subscription or upgrade your subscription, we will invoice you for such services, products and upgrades, and/or charge your credit or debit card (or other payment method) accordingly.
Delinquent payments may bear interest at the rate of one-and-one-half percent per month (or the highest rate permitted by law, if less) from the payment due date until paid in full. You will be responsible for all reasonable expenses (including legal fees and expenses) incurred by TNHG in collecting delinquent amounts, except where the delinquent amounts are due to billing inaccuracies. In addition, if you are late in payment of any fees, we reserve the right to either (i) immediately suspend or terminate your access to the applicable Services without notice, and in the event of any such suspension or termination, you will remain responsible for the entire amount of fees owing for such Services; or (ii) bill your credit/debit card on file with us under this or any other agreement. Unless your Membership Plan is terminated timely and correctly, you will continue to accrue charges even if you don’t use the subscribed Services.
- Credit and Debit Cards
In the event that you pay for any Services using a credit card or debit card, you authorize TNHG to charge your credit or debit card (or other acceptable payment method that you have chosen from those offered) ("Payment Method"), for the applicable fees for the duration of the applicable term of your selected Membership Plan or other paid service or product, together with any applicable VAT, sales, use, excise, consumption or other similar tax applicable to the Services. You represent that you are authorized to use the Payment Method on your company’s behalf and you agree to accept an electronic record of a receipt. If at any time your Payment Method will not accept the charge for fees due, you agree that TNHG may suspend or terminate your access to the applicable Services and that you will continue to remain liable for the full payment for such Services even after your access to the Services has been terminated or suspended. By providing any Payment Method, you agree that applicable credit card, debit card and billing information may be shared with third parties such as payment processors and credit agencies, and/or collection agencies for the purposes of checking your credit, effecting payment, collecting payments and late fees if applicable, and for providing the applicable Services to you or in order to enforce this Agreement with you. We may also share this information with law enforcement authorities and in response to subpoenas, court orders, and search warrants.
- Trial Period and Membership
(i) Trial Period. As a benefit to Hiring User, Hiring User shall have thirty (30) days ("Trial Period") following the date that you sign up (“Sign Up”) for Services (“Membership”) to opt out of their Membership plan ("Membership Plan"). At the time of Sign Up, you may be required to: (a) select a desired Membership Plan and (b) provide valid credit card/debit card and billing information. Your credit/debit card will not be charged until the expiration of the Trial Period (if you don’t cancel before the end of the Trial Period). You can cancel at any time during the Trial Period by sending us an email at email@example.com . If you wish to cancel online, follow the instructions on the website to cancel your Trial Period immediately. It is your responsibility to timely cancel your Trial Period prior to the expiration of the term of the Trial Period to avoid any unwanted charges. Once your Trial Period is cancelled you will lose access to information regarding candidates, Job Advertisements and other features of the applicable Membership Plan. If you don’t cancel prior to the end of the Trial Period term, we will automatically charge your debit/credit card for the first 30 days, for a minimum of six (6) months from the date of Sign Up ("Initial Plan Term"). We will continue to charge your debit/credit card at the beginning of the applicable renewal period following the Initial Plan Term unless you notify TNHG that you do not wish to renew prior to the end of the Initial Plan Term.
(ii) Membership and Renewals. Membership Plans will automatically renew every six (6) months, unless you notify TNHG of any changes or requests not to renew (i.e., to cancel), prior to the end of the Initial Plan Term (each, a "Renewal Plan Term") or each Renewal Plan Term. Cancellation requests should be made in accordance with the instructions provided on the applicable TNHG website or in accordance with Section 6E(iii) below. At the time of automatic renewal, if you have provided a credit or debit card, the applicable subscription or other fees will be charged to the debit or credit card provided and/or associated with your account, or you will be invoiced for payment.
(iii) Cancellation. For paid Membership Plans, you may cancel at any time effective at the end of the Initial Plan Term or any Renewal Plan Term by sending us an email at firstname.lastname@example.org, and one of our representatives will contact you. Make sure you cancel prior to your next billing renewal date to avoid any unwanted charges. Your account will be cancelled effective on your next billing date. Once your account is cancelled you will lose access to all content and features under your selected Membership Plan. You agree and accept that you will not receive any refund if you request a cancellation and that the cancellation request shall become effective at the end of the Initial Plan Term or Renewal Plan Term in which the cancellation notice is received by TNHG.
(iv) Suspension or Termination for Breach. TNHG can suspend or terminate your access to the Services and/or this Agreement in the following instances: (i) if you breach this Agreement and cannot correct the breach within that period required by TNHG if the breach is capable of cure; (ii) immediately, if you fail to pay any monies owed to TNHG for paid services or if you become the subject of a bankruptcy, insolvency, receivership, liquidation, assignment for the benefit of creditors or similar proceeding; (iii) immediately in the event of recurring violations of this Agreement; and (iv) for convenience via email notification to you and in the event of such termination for convenience, you will receive a pro-rata refund of any pre-paid fees pertaining to Services paid for, but not provided, for the balance of the applicable term of your then-current Membership Plan. In the event of any termination or suspension of your access to the Services and/or termination of this Agreement or any other agreement you have with TNHG (other than a termination for convenience by TNHG as described in such agreements), you remain responsible for the entire amount of the fees pertaining to the applicable Services. TNHG may suspend your access to the Services without notice in the event of a suspected violation of this Agreement. You may terminate this Agreement if TNHG materially breaches this Agreement and does not cure the breach within ten (10) days after receipt of written notice from you, which notice must be emailed to: email@example.com. Pre-paid fees are non-refundable, except in the case of an uncured material breach by TNHG, in which case you will receive a pro-rata refund of any pre-paid fees pertaining to Services paid for, but not provided, for the balance of the applicable term of your then-current Membership Plan.
- ADDITIONAL TERMS THAT APPLY TO JOB SEEKERS
As a Job Seeker, you can (i) use the Services to search for jobs, (ii) apply for jobs ("Job Applications"), (iii) receive job alert emails or text messages, where such features are available to you ("Job Alerts"), and (iv) include your resume and other applicable information in the Resume Database. For purposes of this Agreement, references to "resume" or "CV" shall also mean a curriculum vitae, profile, references, recommendations, and other similar written overviews or assessments of a person's experience and qualifications.
You agree that if you have a TNHG account or if you have provided your resume/CV to TNHG and/or if you have signed up for job alerts, we may use the information you provide to send you information about Job Advertisements that may be of interest to you and you also agree that we may provide your resume/CV (to the extent that you have not designated it as private), to an employer or recruiter who may be interested in candidates who have shown an interest in roles similar to the type that you have searched for or applied to.
To the extent that you wish us to share your information and resume/CV with potential employers, recruiters, or staffing agencies (including, where you have submitted your resume/CV to the Resume Database or because you have applied to a Job Advertisement on a TNHG website), you consent to our sharing your resume/CV, together with any additional information you provide to us during the application process. This means that you give us a non-exclusive, royalty-free, worldwide licence (and right to sub-license), of any rights, including intellectual property rights, in your resume/CV and any additional information you provide to us, to share or otherwise use such resume/CV and additional information as we reasonably require to fulfil the services we provide to you.
- Job Applications
Once you submit a Job Application, your resume and other applicable information will be shared with the Hiring User that posted the Job Advertisement. You should therefore ensure that the information you provide is complete and accurate, and only contains information that you are comfortable sharing.
If you ask TNHG to submit a message to any employer or third party or if you apply for a job using the Services, you accept that TNHG does not guarantee that the recipient entity will receive, access, view, or respond to your requests or Job Applications, or that the transmission of data will be error-free. Any screener questions provided by the entity posting a Job Advertisement are entirely in the control of that entity and if you require alternate screener questions or application process, you must contact the applicable entity directly.
- Applying to Job Advertisements on TNHG Website
When you apply to a Job Advertisement on TNHG Website, we will send the resume associated with your account (to the extent an account was created as described in Section 7C below).
If you have manually logged out of your account or if you have been automatically logged out of your account because of inaction or some other reason, before we send the resume associated with your account, we will ask you to input your email so we can verify your identity. Once you receive the verification email and confirm your identity by following the instructions in the email, we will send out the resume associated with your account.
IMPORTANT: It is your responsibility to ensure that the resume associated with your account is always updated, current and accurate before you apply to a Job Advertisement so an employer receives the most up-to-date information about you. If you have opted in to the Resume Database, make sure that employers see the most up-to-date information about you.
- Account Creation
In addition to your ability to manually create a TNHG account yourself, a TNHG account will automatically be created for you when you apply to a Job Advertisement on TNHG Website.
When an account is automatically created for you, you will receive an email with your user name (which is usually your email address) and a link to reset your password. Whether or not you choose to reset your password, the account will exist under your email address and the resume associated with the job application will be connected with that account. So, before applying to a Job Advertisement, please ensure that your resume is up-to-date so that employers receive the most recent information about you.
If you do not wish to have a TNHG account, please contact firstname.lastname@example.org or go to your account settings and close your account.
- Resume Database
TNHG has a feature which permits job seekers to include their resume/CV and other applicable information in a resume database (the, "Resume Database") to be stored on the service and potentially to shared with Hiring Users.
If you have added your resume/CV to the Resume Database, you consent to TNHG matching words, skills, or certifications that are present or implied in your resume or other application materials to words, skills, or certifications present or implied in a Job Advertisement or an employer’s or recruiter’s search of terms, and if there are any matches, to present matching resumes/CVs to the applicable employer or recruiter and to send information to you about Job Advertisements that may be of interest to you.
If you submit a resume/CV, you acknowledge that we may 'parse' the resume and other applicable information into another format to create a profile view and/or enable searchable text for a Hiring User; the Hiring User will also be able to see your resume in the form in which you originally submitted it to TNHG.
You can opt-out of including your resume/CV in the Resume Database at any time by adjusting the settings in your account and we will remove your resume/CV from the Resume Database as soon as reasonably practicable. However, if TNHG has already shared your resume/CV with a Hiring User and such Hiring User copied or saved your resume, that entity will continue to have access to your resume/CV and all information you included in your resume/CV.
- Interaction with Other Users; Scams; Confidentiality
In addition to carefully reviewing this section and Section 3 above, you should conduct your own due diligence on potential employers and Job Advertisements that may be of interest to you. As mentioned in Section 3, TNHG does not authenticate Users or guarantee that a Job Advertisement is suitable, legitimate or real.
Although TNHG requests that companies maintain the confidentiality of the Job Applications and resumes/CVs they receive through the Services, TNHG cannot and does not guarantee that the information you provide will be held in confidence or properly secured by the applicable recipient.
- ADDITIONAL TERMS THAT APPLY TO HIRING USERS
(i) Membership. UPON EXPIRATION OF THE TRIAL PERIOD AS PROVIDED IN SECTION 6E(I) HEREOF, YOU WILL BE COMMITTED TO THE MEMBERSHIP FOR THE NEXT FIVE (5) MONTHS AT WHICH POINT YOU MAY VOLUNTARILY CANCEL YOUR MEMBERSHIP.
(ii) Job Seekers Hired Through TNHG.
(a) Tipped Employees: At the time of hire, Hiring User shall be charged fifty percent (50%) of the previously specified fee for such tipped employee. If such tipped employee is still working under the employ of Hiring User, or a subsidiary or affiliate of Hiring User, upon the expiration of sixty (60) days following the date of hire, Hiring User shall be immediately charged the remaining fifty percent (50%) of the specified fee for such tipped employee through the Payment Method used for such Hiring User’s Membership.
(b) Salaried Employees: At the time of hire, Hiring User shall be charged five percent (5%) of such salaried employees annual salary. If such salaried employee is still working for under the employ of Hiring User, or a subsidiary or affiliate of Hiring User, upon the expiration of sixty (60) days following the date of hire, Hiring User shall be immediately charged another five percent (5%) of such salaried employee’s annual salary through the Payment Method used for such Hiring User’s Membership.
- Suspension and Termination
(i) By User: User may terminate Membership upon the expiration of six (6) months following Sign Up through your account management page. Such termination will result in the deactivation or disablement of your account and access to it, and the deletion of content you collected through use of the Services. Terminations are confirmed immediately and you will not be charged again for Membership unless you reactivate your account. If you terminate your Membership after completion of the Trial Period (as defined in Section 6E(i) hereof), you will not receive a refund of any portion of your Fees unless you are terminating your Membership under the terms provided for in Section 6E(iv) hereof.
(a) Trial Period. Notwithstanding Section B(i) above, User has thirty (30) days following Sign Up to opt out of their Membership by providing written notice to TNHG at email@example.com.
(b) Breach. User may terminate the Membership and all current Fees that are due and payable to Hiring User shall be discharged only if Hiring User has materially breached these Terms and failed to cure that breach within thirty (30) days after Hiring User receives notification in writing of such breach.
(ii) By Hiring User: Hiring User may terminate your Membership by providing at least thirty (30) days’ prior written notice to User. Hiring User may suspend performance or terminate Membership for any of the following reasons: (i) User has materially breached these Terms and failed to cure that breach within thirty (30) days after receipt of notice in writing of such breach; (ii) User ceases business operations or becomes subject to insolvency proceedings and the proceedings are not dismissed within ninety (90) days; or (iii) User fails to pay fees for thirty (30) days past the due date.
(iii) Fees. User shall pay all fees due and payable to Hiring User upon termination of Services, provided that if User terminates Membership under the terms of Section 8B(i)(a) hereof, no fees shall be due or payable to Hiring User.
- Content Rules
With respect to all Job Advertisements that you submit, make available, provide, post or distribute, whether on your own behalf or on behalf of a third party, in addition to the other requirements in this Agreement, you represent and warrant that (i) the content of Job Advertisements (whether owned by you or your Users), will comply with advertising standards and applicable laws; (ii) you have the necessary rights to permit the publication and use of Job Advertisements by TNHG pursuant to this Agreement; (iii) the use, reproduction, distribution or transmission of Job Advertisements will not violate any applicable laws or any rights of any third parties, including, but not limited to, infringement of any copyright, trademark, or other proprietary right, false advertising, defamation, any other right of any person or entity; (iv) the content of Job Advertisements shall comply with the then-current versions of this Agreement and Job Posting Rules (referenced below); and (v), you have the authority to grant permission to TNHG to wrap or collect Job Advertisements from applicable websites if necessary, to include in distributions and any such wrapping will not cause TNHG to violate the rights of any third party. You understand and agree that you are solely responsible for any liability arising out of publication of Job Advertisements or material to which users can link though such Job Advertisements. You agree to indemnify and hold TNHG and its subsidiaries, and their respective officers, directors, employees, and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys' fees and costs) arising out of or in connection with Job Advertisements provided by you or any other content provided by you, or your breach of this Agreement.
You agree not to post or promote any Job Advertisements that: contain inaccurate, false, or misleading information; contain "hidden" keywords or keywords that are irrelevant to the job opportunity being presented; sell, promote or advertise products or services; endorse a particular political party, political agenda, or political position or promote a particular religion; advertise job openings located in countries subject to economic sanctions of the United States Government or the European Union; except where allowed by applicable law, require the applicant to provide information relating to his/her (i) racial or ethnic origin (ii) political beliefs (iii) religious beliefs (iv) membership of a trade union (v) physical or mental health (vi) sexual life (vii) the commission of criminal offences or proceedings or (vii) age; contain content or links to content that exploit people in a sexual, violent or other manner, or solicits personal information from anyone under the age of 13; includes any screening requirement or criteria where such requirement or criteria is not a bona fide occupational requirement for the role; involves any franchise, pyramid scheme, "club membership", distributorship, or multi-level marketing opportunity or requires recruitment of other members, sub-distributors or sub-agents; requires applicants to pay to apply, pay for training, pay for training materials, or pay for samples; contain content that violates applicable laws; pays commissions only (except for postings that make clear that the available job pays commission only and clearly describes the product or service that the Job Seeker would be selling, in which case such Job Advertisements are permissible); requires citizenship or lawful permanent residence in a country unless that is required in order to comply with law, regulation, or a federal, state or local government contract; contain links to any site competitive with TNHG other than to an actual job posting.
Additionally, Job Advertisements must comply with applicable local, national and international laws, and regulations including, but not limited to, those relating to labor and employment, and anti-discrimination (or the equivalent in the country that the Job Advertisements are made available, posted or distributed).
- Resumes. By agreeing to these Terms and Conditions, User warrants that any and all resumes to be submitted to User by prospective employees shall be submitted through the Site. AT ALL TIME DURING MEMBERSHIP, HIRING USER SHALL DISPLAY A LINK TO THE TNHG SITE ON THEIR WEBSITE PAGE DIRECTING ALL SUBMISSIONS OF RESUMES TO PROCEED TO THE TNHG SITE FOR PROCESSING
- Authorized Users
You are responsible for all activity, acts or omissions of any person or entity that is able to access the Services under your account and you will limit access to the number of users that are allowed under your account to those permitted under your selected Membership Plan (each, an "Authorized User"). Additionally, you agree that: log-in credentials and account information will not be shared with third parties; (ii) you will not sell or sublicense access to your account or the Services; (iii) you will not charge, or receive payment, in cash or in kind, from any individual or entity for use of, or access to, any portion of the Services; (iv) you will ensure that Authorized Users comply with this Agreement and any other Specific Terms of Service or other agreement that you have with TNHG; (v) you will promptly notify TNHG of any suspected or alleged violation of this Agreement including any unauthorized use of any password or account information, or any other known or suspected breach of security; and (vi) you will cooperate with TNHG with respect to investigation of any suspected or alleged violation of this Agreement and any action by TNHG to enforce this Agreement. TNHG may suspend, limit, condition, or terminate an Authorized User's access to the Services or any features thereof, in the event that TNHG reasonably determines that such Authorized User has violated this Agreement or appears likely to do so.
- Removal of Advertisements
You acknowledge and agree that TNHG may, with no liability or penalty, remove any Job Advertisement or other content, communication or information posted, which in the sole judgment of TNHG, violates or may violate this Agreement, applicable laws, rules or regulations, or third party terms; or may adversely affect TNHG; or is false, inaccurate, misleading, deceptive, fraudulent, libelous, defamatory, immoral, offensive, obscene, pornographic, disruptive, threatening, abusive or illegal; or which may violate or lead to the violation of the rights of, or harms or threatens the safety and privacy of any third party.
- Resume Database
We make no guarantee as to the number or quality of candidates that you will receive as a result of your Job Advertisement.
If your Membership Plan includes access to the Resume Database, then subject to the terms and conditions of this Agreement, TNHG hereby grants you a limited, revocable, non-transferable, non-sublicensable, non-exclusive right to access the Resume Database for the limited purpose of viewing and/or downloading the number of resumes/CVs permissible under your Membership Plan for the sole purpose of seeking employment candidates for legitimate employment opportunities. You shall not use automated computer programs or software to download resumes/CV or to extract Data (defined below), and shall not resell or sub-license access to the Resume Database or any resume (including Data). You further agree that you shall not use the Resume Database or its contents to market or sell products or services to the data subjects whose resumes comprise the Resume Database. References to "resume" or "CV" as used herein, will include curriculum vitae, profile, references, recommendations, and other similar written overviews or assessments of a person's experience and qualifications. Notwithstanding anything to the contrary in this Agreement, TNHG reserves the right to limit the amount of information (including resume views and downloads), that may be accessed in any time period to mitigate any overload to the Services or in response to any abuse of the Services. The Resume Database shall not be used in any manner that adversely affects TNHG business, imposes an unreasonable or disproportionately large load on TNHG infrastructure, or interferes with the ability of others to access the Resume Database. TNHG reserves the right to suspend or terminate access to the Resume Database or terminate the Agreement in the event of any non-compliance with the Agreement or any other agreement you have with TNHG. You shall remain primarily responsible for ensuring that Authorized Users comply with the terms of this Agreement. If a Job Seeker opts out of the Resume Database at any time, TNHG reserves the right to block access to, and/or remove, the Job Seeker’s resume/CV from the Resume Database. You accept that TNHG does not verify whether any telephone number contained within a resume/CV is a landline or a cell phone number, and it is your responsibility to ensure that any communication with the data subject of the resume/CV is in compliance with applicable laws related to telephone calls, automated dialing, SMS, spam, fax, and unsolicited communications.
You represent, warrant and promise that: (i) you will use the Resume Database and the personal information contained within resumes/CVs (collectively, "Data"), in accordance with applicable communication, privacy and data protection laws; (ii) you shall not further disclose any Data from Resume Database to a third party, unless you are an authorized recruitment agency, staffing agency, or job advertising agency acting on behalf of a User, and you are accessing the resumes/CVs to source candidates on behalf of your Users for legitimate employment purposes, and such disclosure falls within the scope of the appropriate Membership Plan for the Services; (iii) you will implement appropriate physical, technical, and administrative measures to protect Data obtained from the Resume Database from loss, misuse, unauthorized access, disclosure, alteration or destruction, and you will notify TNHG immediately in the event of any suspected or actual unauthorized access or disclosure of resumes/CVs; (iv) Authorized Users shall not share login credentials with any other party; (v) you will not use the contact information from resumes/CVs to send unsolicited mail, e-mails, phone calls, SMS, or faxes regarding promotions and/or advertising of your or a third party’s products or services, or to contact or source job seekers for careers fairs and business opportunities; and (vi) you will respect the privacy choices of Job Seekers.
TNHG makes no representations or warranties regarding any content provided or generated by third parties, including, without limitation, resumes/CVs. You accept that TNHG acts as a passive conduit for receipt of resumes/CVs and has no obligation to screen resumes/CVs, verify the identity of the person submitting a resume/CV, or verify the accuracy of the data or content contained in resumes/CV. It is your responsibility to conduct due diligence as regards the individual job seeker-subject of each resume/CV. We do not guarantee any response or the number of responses to your Job Advertisements or that any responses will be from individuals suitable for the job vacancy you advertised. It is your responsibility to carry out such checks and procedures as are necessary to ensure that individuals who respond to your Job Advertisements have the required qualifications to meet your requirements
- Job Seekers
TNHG may inform Job Seekers that you have taken an action with respect to a resume/CV or a Job Application. You agree to deal fairly and professionally with individuals who may respond to your Job Advertisement and agree to indemnify us from and against any claim brought by an individual against TNHG arising from your breach of this Agreement or any other agreement you have with TNHG.
- Data Protection
You agree to implement appropriate physical, technical, organizational, and administrative measures (a) to prevent unauthorized or unlawful processing of any Personal Data; for the purposes of this Agreement, ‘Personal Data' means data which relates to a living individual who can be identified (i) from such data, or (ii) from such data together with other information which is in your possession or is likely to come into your possession; (b) to protect Personal Data against accidental loss, destruction or damage; (c) to include taking reasonable steps to ensure the reliability of the personnel having access to the Personal Data; and (d) having regard to the state of technological development and the cost of implementing those measures so as to ensure a level of security appropriate to: (i) the harm that may result from breach of those measures; and (ii) the nature of the Personal Data to be protected. You agree to comply with applicable data protection and privacy laws and regulations in applicable jurisdictions particularly as they relate to your operations and the residency of the applicable data subjects. You further agree to indemnify, hold harmless, and defend TNHG at your own expense against all costs, claims, damages or expenses incurred by TNHG for which we may become liable due to any failure by you or your personnel or agents to comply with any of your obligations under this section and applicable data protection and privacy laws and regulations.
Unfortunately, the transmission of information over the Internet is not completely secure and we cannot, therefore, guarantee that unauthorized third parties will never be able to defeat our security measures or use your personal information for improper purposes. You acknowledge that you provide your personal information at your own risk.
- THIRD-PARTY LINKS AND SERVICES
The Services may contain links to third-party websites, advertisers, products, services, or other events or activities that are not owned or controlled by TNHG (collectively, "Third-Party(ies)"). TNHG does not endorse or assume any responsibility for any such Third-Party sites, information, materials, products, or services. If you access a Third-Party website from the Services or use a Third-Party service, you do so at your own risk, and you understand that this Agreement does not apply to your use of such Third-Party sites or services. You expressly relieve TNHG from any and all liability arising from your use of any Third-Party website, service, or content. Additionally, your dealings with or participation in promotions of advertisers found on the Services, including payment and delivery of goods, and any other terms (such as warranties) are solely between you and such advertisers. You agree that TNHG shall not be responsible for any loss or damage of any sort relating to your dealings with such advertisers.
To the maximum extent permitted by applicable law, you agree to defend, indemnify and hold harmless TNHG and its subsidiaries, and their respective directors, officers, board members, employees, agents, successors and assigns, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to all legal fees and expenses) arising from: (i) your use of and access to the Services, including any data or content transmitted or received by you; (ii) your violation of any term of this Agreement and any other agreement that you have with TNHG, including without limitation your breach of any of the representations and warranties herein; (iii) your violation of any third-party rights, including without limitation any right of privacy or Intellectual Property Rights; (iv) your violation of any applicable law, rule or regulation, including, without limitation, your violation of the US Fair Credit Reporting Act and any applicable data protection laws; (v) any claims or damages that arise as a result of your User Content; (vi) any other party's access and use of the Services with your account or log-in information; and/or (vii) your intentional or willful misconduct, or negligence.
- NO WARRANTY
- Disclaimer of Warranties
EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, TNHG DOES NOT GUARANTEE ANY RESULTS FROM USING THE SERVICES. THE SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. USE OF THE SERVICES ARE AT YOUR OWN OPTION AND RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES ARE PROVIDED WITHOUT WARRANTIES, CONDITIONS OR TERMS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PURPOSE OR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM TNHG, ITS EMPLOYEES, OR AGENTS, OR THROUGH THE SERVICES, WILL CREATE ANY WARRANTY, TERM OR CONDITION NOT EXPRESSLY STATED HEREIN. WITHOUT LIMITING THE FOREGOING, WE DO NOT WARRANT THAT (I) ANY CONTENT PROVIDED ON OR THROUGH THE SERVICES IS ACCURATE, LEGALLY COMPLIANT, UP-TO-DATE, RELIABLE OR CORRECT; (II) THE SERVICES WILL MEET YOUR REQUIREMENTS; (III) THE SERVICES WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION, OR WILL BE UNINTERRUPTED OR SECURE; (IV) ANY DEFECTS OR ERRORS WILL BE CORRECTED; OR (V) THAT THE SERVICES ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. ANY CONTENT DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICES IS DOWNLOADED OR AVAILABLE AT YOUR OWN OPTION AND RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA OR ANY OTHER TYPE OF LOSS THAT RESULTS FROM SUCH CONTENT OR YOUR USE OF THE SERVICES.
- Universal Disclaimer
TNHG DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A USER OR THIRD PARTY THROUGH THE SERVICES OR ANY HYPERLINKED WEBSITE OR SERVICE, AND TNHG WILL NOT BE A PARTY TO OR IN ANY WAY MONITOR ANY TRANSACTION BETWEEN YOU AND A USER OR THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES.
TNHG DOES NOT WARRANT THAT YOUR USE OF THE SERVICES WILL SATISFY OR ENSURE COMPLIANCE WITH ANY LEGAL OBLIGATIONS OR LAWS OR REGULATIONS.
THIS SITE MAY CONTAIN LINKS TO WEB SITES CONTROLLED OR OFFERED BY THIRD PARTIES (NON-AFFILIATES OF TNHG). THE LINKS ARE ONLY PROVIDED AS A CONVENIENCE AND TNHG DOES NOT ENDORSE OR RECOMMEND ANY PRODUCTS OR SERVICES OFFERED BY OR INFORMATION CONTAINED IN ANY OF THESE THIRD-PARTY SITES. TNHG HEREBY DISCLAIMS ALL LIABILITY FOR ALL INFORMATION, MATERIALS, PRODUCTS OR SERVICES POSTED, OFFERED OR THAT MAY BE ACCESSED AT ANY OF THE THIRD-PARTY SITES LINKED TO THIS SITE. TNHG MAKES NO REPRESENTATION REGARDING THE QUALITY OF ANY PRODUCT OR SERVICE CONTAINED AT ANY SUCH THIRD-PARTY SITE. FURTHERMORE, TNHG HEREBY DISCLAIMS ALL LIABILITY FOR ANY FAILURE OF PRODUCTS OR SERVICES OFFERED OR ADVERTISED AT THOSE THIRD-PARTY SITES.
- LIMITATION OF LIABILITY
(A) TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND EXCEPT AS OTHERWISE EXPRESSLY STATED IN THIS AGREEMENT, IN NO EVENT SHALL TNHG, ITS SUBSIDIARIES, AND THEIR RESPECTIVE BOARD MEMBERS, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, SUCCESSOR AND ASSIGNS, BE LIABLE TO YOU, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), FOR BREACH OF STATUTORY DUTY, OR OTHERWISE FOR ANY (I) DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES OR LOSSES; (II), LOSS OF PROFITS, GOODWILL, USE, DATA THAT RESULT FROM THE USE OF, OR INABILITY TO USE, THE SERVICES. UNDER NO CIRCUMSTANCES WILL TNHG BE RESPONSIBLE FOR ANY DAMAGE, LOSS OR INJURY RESULTING FROM HACKING, TAMPERING OR OTHER UNAUTHORIZED ACCESS OR USE OF THE SERVICES OR YOUR ACCOUNT OR THE INFORMATION CONTAINED THEREIN.
(B) TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, TNHG ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT; (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO OR USE OF THE SERVICES; (III) UNAUTHORIZED ACCESS TO OR USE OF OUR SYSTEMS OR SERVERS AND/OR ANY PERSONAL INFORMATION STORED THEREIN; (IV) INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SERVICES; (V) BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE THAT MAY BE TRANSMITTED TO OR THROUGH THE SERVICES BY ANY THIRD PARTY; (VI) ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE THROUGH THE SERVICES; (VII) USER CONTENT OR (VIII) THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY USER OR THIRD PARTY.
(C) IN NO EVENT SHALL TNHG, ITS SUBSIDIARIES, AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS, SUCCESSORS AND ASSIGNS BE LIABLE TO YOU FOR ANY CLAIMS, PROCEEDINGS, LIABILITIES, OBLIGATIONS, DAMAGES, LOSSES OR COSTS IN AN AMOUNT EXCEEDING THE AMOUNT YOU PAID TO TNHG IN THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT THAT GAVE RISE TO THE CLAIM OR USD $10, WHICHEVER IS LESSER.
(D) THIS LIMITATION OF LIABILITY SECTION APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, BREACH OF STATUTORY DUTY OR ANY OTHER BASIS AND EVEN IF TNHG HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
- AGREEMENT TO ARBITRATE
This Agreement contains an Arbitration provision, which will, with limited exception, require you to submit disputes you have against TNHG to binding and final arbitration. You will only be permitted to pursue claims against TNHG on an individual basis, not as a plaintiff or class member in any class or representative action or proceeding, and you will only be permitted to seek relief (including monetary, injunctive, and declaratory relief) on an individual basis.
If you are located in, are based in, have offices in, or do business in a jurisdiction in which this Section 14 is enforceable, the following mandatory arbitration provisions apply to you:
- Binding Arbitration
This Section 14 is referred to in this Agreement as the "Agreement to Arbitrate". Unless you opt-out pursuant to the opt-out procedures set forth below, you agree that any and all disputes or claims that have arisen or may arise between you and TNHG or its affiliates, whether relating to the Services, this Agreement (including any alleged breach thereof), or otherwise (each a "Dispute"), shall be resolved exclusively through final and binding arbitration, rather than a court in accordance with the terms of this Agreement to Arbitrate. Your rights will be determined by a neutral arbitrator, not a judge or jury. YOU UNDERSTAND THAT ABSENT THIS AGREEMENT TO ARBITRATE, YOU WOULD HAVE THE RIGHT TO SUE IN COURT AND HAVE A JURY TRIAL.
The arbitration shall be commenced and conducted under the Commercial Arbitration Rules of the American Arbitration Association ("AAA"), including the AAA's Supplementary Procedures for Consumer-Related Disputes, each available at www.adr.org, or such other alternative dispute resolution body and arbitration rules that may be mutually agreed upon by you and TNHG. Your arbitration fees and your share of arbitrator compensation shall be governed by such rules. The arbitration may be conducted in person, through the submission of documents, by phone or online. The arbitrator must follow applicable law, and any award may be challenged if the arbitrator fails to do so. Except as otherwise provided in this Agreement, you and TNHG may litigate in court to compel arbitration, stay proceeding pending arbitration, or to confirm, modify, vacate or enter judgment on the award entered by the arbitrator. All aspects of the arbitration proceeding, and any ruling, decision or award by the arbitrator, will be strictly confidential for the benefit of all parties.
You and TNHG agree that any arbitration shall be limited to the Dispute between TNHG and you individually. To the full extent permitted by law, (1) no arbitration shall be joined with any other; (2) there is no right or authority for any Dispute to be arbitrated on a class-action basis or to utilize class action procedures; and (3) there is no right or authority for any Dispute to be brought in a purported representative capacity on behalf of the general public or any other persons.
- Exceptions to Informal Negotiations and Arbitration
You and TNHG agree that the following Disputes are not subject to the above provisions concerning informal negotiations and binding arbitration: (1) any Disputes seeking to enforce or protect, or concerning the validity of, any of your or TNHG intellectual property rights; (2) any Dispute related to, or arising from, allegations of theft, piracy, invasion of privacy or unauthorized use; and (3) any claim for injunctive relief.
- 30 Day Right to Opt Out of Arbitration
You have the right to opt-out and not be bound by the arbitration provisions set forth in this Section 14 by sending written notice of your decision to opt-out to firstname.lastname@example.org. The notice must be sent to TNHG within thirty (30) days of your registering to use the Services or agreeing to these terms, otherwise you shall be bound to arbitrate disputes in accordance with the terms of those sections. If you opt-out of these arbitration provisions, we also will not be bound by them.
- Governing Law and Location
The Services are controlled and operated by TNHG from within the United States of America. TNHG makes no representations that the Services or the materials available via the Services, are appropriate or available for use in locations outside of the United States. Those who choose to access the Services from other locations do so on their own initiative and are responsible for compliance with all United States of America laws as well as local laws, if and to the extent local laws are applicable.
This Agreement and any Disputes shall be governed by the internal substantive laws of the State of Arizona, without respect to its conflict of laws principles. An arbitrator shall not be bound by rulings in prior arbitrations involving different Users but is bound by rulings in prior arbitrations involving the same User to the extent required by applicable law. Except as otherwise expressly provided in this Agreement, all arbitration and other litigation in a court of competent jurisdiction of any dispute between you and TNHG related to this Agreement shall be located in Maricopa County, Arizona.
You may not use the Services if you are a resident of a country embargoed by the United States, or are a foreign person or entity blocked or denied by the United States government.
This Agreement shall be personal to you and you may not assign, transfer, sublet, lease or delegate all or any of your rights and obligations, without the prior written consent of the General Counsel of TNHG or his/her designee. TNHG can assign this Agreement or delegate its obligations without restriction.
- Relationship of the Parties
Nothing in this Agreement shall be construed as making either party the partner, joint venturer, employer, contractor or employee of the other. Neither party shall have, or hold itself out to any third party as having any authority to make any statements, representations or commitments of any kind, or to take any action, that shall be binding on the other, except as provided for herein or authorized in writing by the party to be bound.
Except as set out in this Agreement, only you and TNHG may enforce this Agreement as this contract is between you and TNHG; no other party shall be entitled to enforce the terms of this Agreement.
- Notification Procedures
TNHG may provide notifications, whether such notifications are required by law or are for marketing or other business-related purposes, to you via email notice, written or hard copy notice, or through conspicuous posting of such notice on our websites, as determined by TNHG in its sole discretion. TNHG reserves the right to determine the form and means of providing notifications to Users, provided that you may opt out of certain means of notification as described in this Agreement. TNHG is not responsible for any automatic filtering you or your network provider may apply to email notifications we send to the email address you provide us. We recommend that you add email@example.com to your email address book to help ensure you receive email notifications from us.
Under California Civil Code Section 1789.3, California consumers 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 N. Market Blvd., Suite N-112, Sacramento, California 95834, or by telephone at 1 (800) 952-5210.
- Entire Agreement
This Agreement, together with any amendments and any additional agreements you may enter into with TNHG in connection with the Services, shall constitute the entire agreement and understanding between you and TNHG concerning the Services. You acknowledge and agree that you have not relied upon any statement, promise or representation made or given by or on behalf of TNHG, which is not set out in this Agreement or any document expressly referred to herein.
- Compliance with Laws
You agree to comply with all applicable laws, regulations and ordinances in the use of the Services and the conduct of your activities.
Pursuant to your use of the Services, you may receive information or be exposed to features and functionality that are not known or available to the general public, including, but not limited to, login credentials, technology, API Keys, dashboards, widgets, insertion codes, and guidelines and documentation relating to the Services ("Confidential Information"). You agree that: (a) all Confidential Information will remain the exclusive property of TNHG; (b) you will use Confidential Information only as is necessary for your use of the Services and in accordance with this Agreement; (c) you will not disclose Confidential Information to any third party; and (d) you will take all reasonable measures to protect the Confidential Information against any use or disclosure that is not expressly permitted in this Agreement. You further agree not to share with, or otherwise disclose to, any third party, log-in credentials or any other mechanism that permits access to the Services or any other non-public area of the TNHG Website.
- Equitable Relief
You acknowledge that a breach by you of any confidentiality or proprietary rights provision of this Agreement may cause TNHG irreparable damage, for which the award of damages would not be adequate compensation. Consequently, TNHG may institute an action to enjoin you from any acts in violation of those provisions, which remedy shall be cumulative and not exclusive, and additionally, TNHG may seek the entry of an injunction enjoining any breach or threatened breach of those provisions, in addition to any other relief to which we may be entitled at law or in equity.
- No Publicity
You shall not publicly disclose, issue any press release nor make any other public statement, nor otherwise communicate with the media, concerning the existence of this Agreement or the subject matter hereof, or the relationship with us without the prior written approval of our legal department. You further agree not to misrepresent or embellish your relationship with us. You agree to refer any inquiry that you receive from the media or other third parties, concerning this Agreement, the Services, and/or TNHG, to our legal department at: firstname.lastname@example.org.
- Electronic Contracting
Your use of the Services includes the ability to enter into agreements and/or to make transactions electronically. YOU ACKNOWLEDGE THAT YOUR ELECTRONIC SUBMISSIONS CONSTITUTE YOUR AGREEMENT AND INTENT TO BE BOUND BY THIS AGREEMENT, AND THAT YOUR INTENT TO BE BOUND BY ELECTRONIC SUBMISSIONS APPLIES TO ALL RECORDS RELATING TO TRANSACTIONS YOU ENTER INTO ON ANY TNHG WEBSITE, INCLUDING NOTICES OF CANCELLATION, POLICIES, CONTRACTS, AND APPLICATIONS.
Any waiver of any provision of this Agreement will be effective only if in writing and signed by TNHG. No failure by TNHG to exercise, or to delay in exercising, any rights hereunder shall operate as a waiver hereof, nor shall any single or partial exercise of any right hereunder by TNHG preclude any other or future exercise of that right or any other right hereunder by TNHG. If any provision of this Agreement is held invalid or unenforceable by a court of competent jurisdiction, such invalidity shall not affect the validity or operation of any other provision and such invalid provision shall be deemed to be severed from this Agreement.