The Wellhire, Inc. website located at http://www.wellhire.com/ (the “Site”) is a copyrighted work belonging to (“Wellhire,” “us,” or “we”).
THESE TERMS REQUIRE THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS, AND ALSO LIMIT THE REMEDIES AVAILABLE TO YOU IN THE EVENT OF A DISPUTE.
IF YOU SUBSCRIBE TO THE SERVICES FOR A TERM (THE “INITIAL TERM”), THEN THE TERMS WILL BE AUTOMATICALLY RENEWED FOR ADDITIONAL PERIODS OF THE SAME DURATION AS THE INITIAL TERM AT WELLHIRE’S THEN-CURRENT FEE FOR SUCH SERVICES UNLESS YOU DECLINE TO RENEW YOUR SUBSCRIPTION.
1. Services.Wellhire provides an online service that, in part, helps employers qualify potential employees (the “Services”). Through the Services, employers can automate portions of the hiring process by checking the social media background of job candidates, validating job candidates’ skills, and comparing job candidate skill levels. Users can create a profile page about themselves. Information on your profile page will include information and content you provide and/or upload as well as information we collect from your social networking site (“SNS”) account if you have linked it with your account with us (an “Account”) (“Profile Page Information”). Wellhire reserves the right in its sole discretion to remove profile pages and/or Profile Page Information at any time for any reason. You agree that Wellhire will not be liable to you or to any third party for such removal.
2. Important Disclaimer and Release. WELLHIRE MAKES NO WARRANTIES REGARDING JOB CANDIDATES ASSESSED THROUGH THE SERVICES OR THE CONTENT MADE AVAILABLE THROUGH THE SERVICES AND THE FOREGOING ARE PROVIDED BY US “AS IS.” EMPLOYERS, AND NOT WELLHIRE, ARE RESPONSIBLE FOR ANY EMPLOYMENT-RELATED DECISIONS, INCLUDING HIRING AND FIRING, AND WELLHIRE SHALL NOT BE LIABLE FOR ANY HIRING DECISIONS. EMPLOYERS SHOULD MAKE WHATEVER INVESTIGATION THEY FEEL NECESSARY OR APPROPRIATE BEFORE RELYING ON ANY ASSESSMENT OR INFORMATION PROVIDED VIA THE SERVICES. YOUR INTERACTIONS WITH OTHER USERS ARE SOLELY BETWEEN YOU AND SUCH USER AND WELLHIRE SHALL NOT BE RESPONSIBLE FOR ANY LOSS OR DAMAGE INCURRED AS THE RESULT OF ANY SUCH INTERACTIONS. IF THERE IS A DISPUTE BETWEEN YOU AND ANY USER, WELLHIRE IS UNDER NO OBLIGATION TO BECOME INVOLVED, BUT RESERVES THE RIGHT TO DO SO. THE FOREGOING DISCLAIMER SHALL NOT LIMIT THE MORE GENERAL DISCLAIMERS IN SECTION 10. You hereby release and forever discharge us (and our officers, employees, agents, successors, and assigns) from, and hereby waive and release, each and every past, present and future dispute, claim, controversy, demand, right, obligation, liability, action and cause of action of every kind and nature (including personal injuries, death, and property damage), that has arisen or arises directly or indirectly out of, or relates directly or indirectly to, (i) any interactions or transactions with, or act or omission of, other users; and (ii) any dispute relating to a prospective employer’s use of information about you provided via the Services, including, but not limited to, hiring, firing, and other employment-related decisions. IF YOU ARE A CALIFORNIA RESIDENT, YOU HEREBY WAIVE CALIFORNIA CIVIL CODE SECTION 1542 IN CONNECTION WITH THE FOREGOING, WHICH STATES: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.”
3. The Site and Services
(a) License The Site and Services are protected by copyright throughout the world. Subject to these Terms, Wellhire grants you a non-transferable, non-exclusive, license to use the Site and Services for your personal or internal business purposes.
(b) Certain Restrictions The rights granted to you in the Terms are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, distribute, host or otherwise commercially exploit the Site or Services; (b) you shall not modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any part of the Site or Services except to the extent the foregoing restrictions are expressly prohibited by applicable law; (c) you shall not use any manual or automated software, devices or other processes (including but not limited to spiders, robots, scrapers, crawlers, avatars, data mining tools or the like) to “scrape” or download data from any web pages contained in the Site (except that we grant the operators of public search engines revocable permission to use spiders to copy materials from the Site 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; (d) you shall not access the Site or Services in order to build or promote a similar or competitive website, application, or service; and (d) except as expressly stated herein, no part of the Site or Services may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means. Any future release, update, or other addition to functionality of the Site or Services shall be subject to the Terms. All copyright and other proprietary notices on any Site or Services content must be retained on all copies thereof. Wellhire reserves the right in its sole discretion to modify, suspend, or discontinue the Site or Services or any part thereof with or without notice at any time for any reason. You agree that Wellhire will not be liable to you or to any third party for any modification, suspension, or discontinuance of the Site or Services or any part thereof. You acknowledge and agree that Wellhire will have no obligation to provide you with any support or maintenance in connection with the Site or Services.
(c) Ownership Except with respect to your User Content (as defined below), you agree that Wellhire and its suppliers own all rights, title, and interest in and to the Site and Services. The provision of the Site and Services does not transfer to you or any third party any rights, title or interest in or to such Site or Services. Wellhire and its suppliers reserve all rights not granted in these Terms. The Services contain content provided by us and our licensors (“Wellhire Content”). We and our licensors (including other users) own and retain all proprietary rights in the Wellhire Content and we own and retain all property rights in the Services. Provided you are a User, and subject to the terms and conditions of this Agreement, we hereby grant you a limited, revocable, non-sublicensable license under the intellectual property rights licensable by us to download, view, copy and print Wellhire Content from the Services solely for your personal use in connection with using the Services.
(d) Updates You understand that the Site and Services are evolving. As a result, we may require you to accept updates to the Site and Services that you have installed on your computer. You acknowledge and agree that we may update the Site and Services with or without notifying you. You may need to update third-party software from time to time in order to use the Site and Services.
(e) Feedback You agree that submission of any ideas, suggestions, documents, and/or proposals to us (“Feedback”) is at your own risk and that Wellhire has no obligations (including without limitation obligations of confidentiality) with respect to such Feedback. You represent and warrant that you have all rights necessary to submit the Feedback. You hereby grant to Wellhire a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sublicensable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner it deems appropriate, any and all Feedback, and to sublicense the foregoing rights.
(f) Re-Use You hereby grant, and you represent and warrant that you have the right to grant, to Wellhire an irrevocable, perpetual, nonexclusive, royalty-free, and fully paid, worldwide license to license, reproduce, distribute, modify, adapt, publicly display and perform, prepare derivative works of, incorporate into other works, and otherwise use information Wellhire collects from you through the Services (in whole or in part), and to grant sublicenses of the foregoing, provided, however, that Wellhire will not use information specific to a particular employer in other contexts. In addition, Wellhire will not re-use the following types of information: Profile Page Information, Phone Number
(g) Third Party Materials As a part of the Site and Services, you may have access to materials that are hosted by another party. You agree that it is impossible for Wellhire to monitor such materials and that you access these materials at your own risk.
(a) In General In order to use the Services, you must register for an Account. To create an Account, you must provide certain information about yourself as prompted by the Site registration process. You represent and warrant that: (i) all required registration information you submit is truthful and accurate; and (ii) you will maintain the accuracy of such information. You may delete your Account at any time, for any reason, by following the instructions on the Site. You are responsible for maintaining the confidentiality of your Account login information and are fully responsible for all activities that occur under your Account. You agree to immediately notify Wellhire of any unauthorized use, or suspected unauthorized use of your Account or any other breach of security. Wellhire cannot and will not be liable for any loss or damage arising from your failure to comply with the above requirements. You may not have more than one Account. You agree not to create an Account or use the Site or Services if you have been previously removed by us, or if you have been previously banned from any of the Site or Services. Wellhire reserves the right in its sole discretion to suspend or terminate your Account and refuse any and all current or future use of the Site or Services (or any portion thereof) at any time for any reason. You agree that Wellhire will not be liable to you or to any third party for any suspension or termination of your Account or any refusal of any use of the Site or Services (or any portion thereof).
(b) Linking With an SNS You may import to your Account information from your SNS account by allowing Wellhire to access our SNS account. By providing your SNS credentials, you represent that you are entitled to disclose your SNS account login information to us and grant us access to your SNS account without breach by you of any terms and conditions that govern your use of the applicable SNS account and without obligating us to pay any fees or making us subject to any usage limitations. By granting Wellhire access to any SNS account, you understand that we may access, make available, and store any information, content, or other materials that you have provided to or stored in your SNS account (“SNS Content”) accessible through the Site and Services so that it is available on your Account. Unless otherwise specified in the Terms, all SNS Content will be deemed your User Content for all purposes of the Terms. Please note that if an SNS or associated service becomes unavailable or our access to such SNS account is terminated by the SNS provider, then SNS Content may no longer be available on and through the Site and Services. If you wish to delete the information that was imported from your SNS account, you may do so by editing your profile. PLEASE NOTE THAT YOUR RELATIONSHIP WITH THE SNS PROVIDER ASSOCIATED WITH YOUR SNS ACCOUNTS IS GOVERNED SOLELY BY YOUR AGREEMENT(S) WITH SUCH SNS PROVIDER, AND WE DISCLAIM ANY LIABILITY FOR PERSONALLY IDENTIFIABLE INFORMATION THAT MAY BE PROVIDED TO US BY SUCH SNS PROVIDERS IN VIOLATION OF THE PRIVACY SETTINGS THAT YOU HAVE SET IN SUCH SNS ACCOUNTS. Wellhire makes no effort to review any SNS Content for any purpose, including but not limited to, for accuracy, legality or noninfringement, and Wellhire is not responsible for any SNS Content.
5. User Content
(a) Your User Content “User Content” means all Profile Page Information and any and all other information and content that a user submits to, or uses with, the Site or Services. You are solely responsible for your User Content. You assume all risks associated with use of your User Content, including any reliance on its accuracy, completeness, or usefulness by others, or any disclosure of your User Content that makes you or any third party personally identifiable. You hereby represent and warrant that your User Content does not violate the Acceptable Use Policy (defined below). You may not state or imply that your User Content is in any way provided, sponsored, or endorsed by Wellhire. Because you alone are responsible for your User Content (and not Wellhire), you may expose yourself to liability if, for example, your User Content violates the Acceptable Use Policy. Wellhire is not obligated to remove any information contained in or relating to an introduction from the Site unless required by applicable law. Wellhire is not obligated to backup any User Content and User Content may be deleted at any time. You are solely responsible for creating backup copies of your User Content if you desire. Wellhire has no responsibility or liability for the deletion or accuracy of any User Content; the failure to store, transmit, or receive transmission of User Content; or the security, privacy, storage, or transmission of other communications originating with or involving use of the Site or Services. You acknowledge that Wellhire has no obligation to pre-screen User Content, although Wellhire reserves the right in its sole discretion to pre-screen, refuse, or remove any User Content at any time for any reason. PLEASE MAKE SURE THAT YOU ONLY PROVIDE INFORMATION TO THE SERVICES THAT YOU ARE ALLOWED TO PROVIDE WITHOUT VIOLATING ANY OBLIGATIONS YOU MIGHT HAVE TOWARDS A THIRD PARTY, INCLUDING ANY CONFIDENTIALITY OBLIGATIONS. PLEASE DO NOT PROVIDE ANY INFORMATION THAT YOU ARE NOT ALLOWED TO SHARE WITH OTHERS, INCLUDING BY CONTRACT OR LAW; PLEASE NOTE THAT ANY INFORMATION YOU PROVIDE WILL BE ACCESSIBLE BY USERS OF THE SERVICES.
(b) License to User Content You hereby grant, and you represent and warrant that you have the right to grant, to Wellhire an irrevocable, perpetual, nonexclusive, royalty-free, and fully paid, worldwide license to license, reproduce, distribute, modify, adapt, publicly display and perform, prepare derivative works of, incorporate into other works, and otherwise use your User Content (in whole or in part), and to grant sublicenses of the foregoing, solely for the purposes of including your User Content in the Site and Services and operating and providing the Site and Services. You agree to irrevocably waive (and cause to be waived) any claims and assertions of moral rights or attribution with respect to your User Content. No compensation will be paid with respect to the User Content that you submit through the Services. You should only submit User Content to the Services that you are comfortable sharing with others under the terms and conditions set forth herein.
(c) Ownership Each user owns its own User Content. By making available your User Content on or in the Site or Services, you represent that you own or have all rights necessary to make available your User Content.
(d) User Content Provided by Other Users The Site and Services may contain User Content provided by other users. We are not responsible for and do not control User Content. We have no obligation to review or monitor, and does not approve, endorse or make any representations or warranties with respect to User Content. You use all User Content and interact with other users at your own risk.
6. Acceptable Use Policy. The following sets forth Wellhire’s “Acceptable Use Policy”:
(a) In General As a condition of use, you agree not to use the Site or Services for any purpose that is prohibited by the Terms or by applicable law. You shall not (and shall not permit any third party) either (a) take any action or (b) make available any User Content on or through the Site or Services that: (i) violates any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (ii) is unlawful, threatening, abusive, harassing, harmful, defamatory, trade libelous, deceptive, fraudulent, false, intentionally misleading, pornographic, invasive of another’s privacy, tortious, obscene, patently offensive (e.g., material that promotes racism, bigotry, hatred, or physical harm of any kind against any group or individual), vulgar, profane or otherwise objectionable material of any kind or nature or which is harmful to minors in any way; (iii) in violation of any laws, or obligations or restrictions imposed by any third party; (iv) constitutes unauthorized or unsolicited advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes, or any other form of duplicative or unsolicited messages, whether commercial or otherwise; (v) involves commercial activities and/or sales without Wellhire’s prior written consent, such as contests, sweepstakes, barter, advertising, or pyramid schemes; (vi) impersonates any person or entity, including any employee or representative of Wellhire, or falsifies or misrepresents yourself or your affiliation with any person or entity; (vii) interferes with or attempt to interfere with the proper functioning of the Site or Services or uses the Site or Services in any way not expressly permitted by the Terms; (viii) harasses or interferes with another user’s use and enjoyment of the Site or Services; (ix) harvests, collects, gathers or assembles information or data regarding other users, including e-mail addresses, without their consent; (x) displays, mirrors, or frames the Site (xi) attempts to engage in or engage in, any potentially harmful acts that are directed against the Site or Services, including but not limited to violating or attempting to violate any security features of the Site or Services, using manual or automated software or other means to access, “scrape,” “crawl” or “spider” any pages contained in the Site or Services, introducing viruses, worms, or any software intended to damage or alter a computer system or data, interfering with, disrupting, or creating an undue burden on servers or networks connected to the Site or Services or violate the regulations, policies or procedures of such networks, attempting to gain unauthorized access to the Site or Services, other computer systems or networks connected to or used together with the Site or Services, through password mining or other means.
(b) Investigations Wellhire reserves the right (but has no obligation) to monitor or review the Site and Services and User Content at any time, investigate, and/or take appropriate action against you in our sole discretion (including removing or modifying your User Content, terminating your Account, and/or reporting you to law enforcement authorities) if you violate the Acceptable Use Policy, any other provision of the Terms, any applicable law or otherwise create liability for us or any other person.
7. Third-Party Websites & Ads. The Site and Services may contain links to third-party websites (“Third-Party Websites”) and advertisements for third parties (collectively, “Third-Party Websites & Ads”). When you click on a link to a Third-Party Website or Ad, we will not warn you that you have left the Site and Services and are subject to the terms and conditions (including privacy policies) of another website or destination. Such Third-Party Websites are not under the control of Wellhire. Wellhire is not responsible for any Third-Party Websites & Ads. We provide these Third-Party Websites & Ads only as a convenience and do not review, approve, monitor, endorse, warrant, or make any representations with respect to Third-Party Websites & Ads, or their products or services. You use all links in Third-Party Websites & Ads at your own risk. When you leave our Site, our Terms and policies no longer govern. You should review applicable terms and policies, including privacy and data gathering practices, of any Third-Party Websites, and should make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any third party.
8. Indemnification. You agree to indemnify and hold Wellhire, its parents, subsidiaries, affiliates, officers, employees, agents, partners and licensors harmless from any losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of: (a) your User Content; (b) your use of, or inability to use, the Site or Services; (c) your violation of the Terms; (d) your violation of any rights of another party, including any users; (e) your interaction with any other user; (f) your violation of any applicable laws, rules or regulations; and (g) any hiring, firing, or other employment-related decisions made as a result of any outputs of the services, including, but not limited to, job candidate assessments and background checks. Wellhire reserves the right, at your expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with Wellhire in asserting any available defenses. You agree not to settle any matter without the prior written consent of Wellhire. Wellhire will use reasonable efforts to notify you of any such claim, action, or proceeding upon becoming aware of it. You agree that the provisions in this section will survive any termination of your Account, the Terms, or your access to the Site or Services.
9. Disclaimers. YOUR USE OF THE SITE AND SERVICES IS AT YOUR OWN RISK, AND THE SITE AND SERVICES ARE PROVIDED “AS-IS,” “AS AVAILABLE,” AND WITH ALL FAULTS. WE (AND OUR SUPPLIERS) EXPRESSLY DISCLAIM ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, ACCURACY, OR NON-INFRINGEMENT. WE (AND OUR SUPPLIERS) MAKE NO WARRANTY, REPRESENTATION, OR CONDITION THAT THE SITE OR SERVICES: (A) WILL MEET YOUR REQUIREMENTS; (B) WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE BASIS; (C) WILL BE ACCURATE, RELIABLE, FREE OF VIRUSES OR OTHER HARMFUL CODE, COMPLETE, LEGAL, OR SAFE;OR (D) ANY ERRORS IN THE SITE OR SERVICES WILL BE CORRECTED. DUE TO THE AMOUNT AND DIVERSITY OF JOB POSTING SITES AVAILABLE ON THE INTERNET, WELLHIRE MAKES NO GUARANTEES REGARDING THE FORMATTING, APPEARANCE, OR ACCEPTABILITY OF ASSESSMENTS PLACED WITHIN A GIVEN JOB POSTING SITE OR SERVICE.SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU.
10. Limitation on Liability. YOU UNDERSTAND AND AGREE THAT ININ NO EVENT SHALL WE (AND OUR SUPPLIERS) BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY LOSS OF PROFITS, REVENUE OR DATA, INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES ARISING FROM OR RELATING TO THESE TERMS OR YOUR USE OF, OR INABILITY TO USE, THE SITE OR SERVICES, OR ANY OTHER MATTER RELATED TO THE SITE OR SERVICES, WHETHER BASED ON WARRANTY, COPYRIGHT, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ACCESS TO, AND USE OF, THE SITE AND SERVICES ARE AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA RESULTING THEREFROM. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, OUR (AND OUR SUPPLIERS’) LIABILITY TO YOU FOR ANY DAMAGES ARISING FROM OR RELATED TO THIS AGREEMENT (FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION), WILL AT ALL TIMES BE LIMITED TO THE GREATER OF (A) FIFTY US DOLLARS ($50) AND (B) TOTAL AMOUNT OF ALL FEES PAID TO WELLHIRE DURING THE TWELVE (12)-MONTH PERIOD PRIOR TO THE ACT, OMISSION OR OCCURRENCE GIVING RISE TO SUCH LIABILITY. THE EXISTENCE OF MORE THAN ONE CLAIM WILL NOT ENLARGE THIS LIMIT. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OF CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU AND YOU MAY ALSO HAVE OTHER LEGAL RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION.THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN WELLHIRE AND YOU.
11. Copyright Policy. Wellhire respects the intellectual property of others and asks that users of our Site and Service do the same. In connection with our Site and Service, we have adopted and implemented a policy respecting copyright law that provides for the removal of any infringing materials and for the termination, in appropriate circumstances, of users of our online Site and Service who are repeat infringers of intellectual property rights, including copyrights. If you believe that one of our users is, through the use of our Site and Service, unlawfully infringing the copyright(s) in a work, and wish to have the allegedly infringing material removed, the following information in the form of a written notification (pursuant to 17 U.S.C. § 512(c)) must be provided to our designated Copyright Agent:
1. Your physical or electronic signature;
2. identification of the copyrighted work(s) that you claim to have been infringed;
3. identification of the material on our services that you claim is infringing and that you request us to remove;
4. sufficient information to permit us to locate such material;
5. your address, telephone number, and e-mail address;
6. a statement that you have a good faith belief that use of the objectionable material is not authorized by the copyright owner, its agent, or under the law; and
7. a statement that the information in the notification is accurate, and under penalty of perjury, that you are either the owner of the copyright that has allegedly been infringed or that you are authorized to act on behalf of the copyright owner.
Wellhire’s Copyright Agent to receive DMCA takedown notices is Wellhire, Inc. 1245 Pearl St, Suite 209. Boulder, CO 80302. For clarity, only DMCA takedown notices should go to the Copyright Agent; any other feedback, comments, online purchases or other communications should be direct to the applicable services links posted on the Site. You acknowledge that for us to be authorized to takedown any content, your DMCA takedown notice must comply with all the requirements of this Section.
Please note that, pursuant to 17 U.S.C. § 512(f), any misrepresentation of material fact (falsities) in a written notification automatically subjects the complaining party to liability for any damages, costs and attorney’s fees incurred by us in connection with the written notification and allegation of copyright infringement.
12. Term and Termination. Subject to this Section, these Terms will remain in full force and effect while you use the Site or Services. We may (a) suspend your rights to use the Site and/or Services (including your Account) or (b) terminate the Terms, at any time for any reason at our sole discretion, including for any use of the Site or Services in violation of these Terms. Upon termination of this Agreement, your Account and right to access and use the Site and Services will terminate immediately. You understand that any termination of your Account may involve deletion of your User Content associated therewith from our live databases; however we reserve the right to continue to use your User Content. Wellhire will not have any liability whatsoever to you for any termination of the Terms, including for termination of your Account or deletion of your User Content. If you want to terminate your use of the Services, you may do so by (a) notifying us at any time and (b) closing your Account. Even after the Terms are terminated, the following provisions of the Terms will remain in effect: Sections 2, 3 (excluding 3(a)), 5 – 14.
(a) Changes to the Terms. The Terms are subject change by Wellhire in its sole discretion at any time. When changes are made, we will make a new copy of the Terms available at the Site and we will change the “Last Revised” date above. If we make any substantial changes, we may notify you by sending you an e-mail to the last e-mail address you provided to us (if any). Any changes to this agreement will be effective upon the earlier of thirty (30) calendar days following our dispatch of an e-mail notice to you (if applicable) or thirty (30) calendar days following our posting of notice of the changes on our Site. These changes will be effective immediately for new users of our Site or Services. Continued use of our Site or Services following notice of such changes shall indicate your acknowledgement of such changes and agreement to be bound by the terms and conditions of such changes.
(b) DISPUTE RESOLUTION: ARBITRATION, CLASS ACTION WAIVER AND JURISDICTION.
(i) Any and all controversies, disputes, demands, counts, claims, or causes of action (including the interpretation and scope of this clause, and the arbitrability of the controversy, dispute, demand, counts, claim, or cause of action) between you and Wellhire or Wellhire’s employees, agents, successors, or assigns, shall be referred to and finally determined by binding and confidential arbitration, except that you or Wellhire may take claims to small claims court if the dispute qualifies for hearing by such a court. You are thus GIVING UP YOUR RIGHT TO GO TO COURT to assert or defend your rights. Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury. You are entitled to a FAIR HEARING, BUT the arbitration procedures are SIMPLER AND MORE LIMITED THAN RULES APPLICABLE IN COURT. Arbitrator decisions are as enforceable as any court order and are subject to VERY LIMITED REVIEW BY A COURT.
(ii) The arbitration shall be conducted before one commercial arbitrator with substantial experience in resolving commercial contract disputes from the American Arbitration Association (“AAA”). As modified by the Terms, and unless otherwise agreed upon by the parties in writing, the arbitration will be governed by the AAA’s Commercial Arbitration Rules and, if the arbitrator deems them applicable, the Supplementary Procedures for Consumer Related Disputes (collectively “Rules and Procedures”). For more information on AAA, its Rules and Procedures, and how to file an arbitration claim, you may call AAA at 800-778-7879 or visit the AAA website at http://www.adr.org.
(iii) You and Wellhire must abide by these rules: (A) ANY CLAIMS BROUGHT BY YOU OR WELLHIRE MUST BE BROUGHT IN THE PARTIES’ INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING; (B) THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS, MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING, AND MAY NOT AWARD CLASS-WIDE RELIEF; (C) in the event that you are able to demonstrate that the costs of arbitration will be prohibitive as compared to costs of litigation, Wellhire will pay as much of your filing and hearing fees in connection with the arbitration as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive as compared to the cost of litigation; (D) Wellhire also reserves the right in its sole and exclusive discretion to assume responsibility for all of the costs of the arbitration; (E) the arbitrator shall honor claims of privilege and privacy recognized at law; (F) the arbitration shall be confidential, and neither you nor we may disclose the existence, content or results of any arbitration, except as may be required by law or for the purposes of enforcement of the arbitration award; (G) the arbitrator may award any individual relief or individual remedies that are permitted by applicable law; and (H) each side pays its own attorneys’ fees and expenses unless there is a statutory provision that requires the prevailing party to be paid its fees and litigation expenses, and then in such instance, the fees and costs awarded shall be determined by applicable law. With the exception of (ii)(A) and (B) above (prohibiting arbitration on a class or collective basis), if any part of this arbitration provision is deemed to be invalid, unenforceable, or illegal, or otherwise conflicts with the Rules and Procedures, then the balance of this arbitration provision shall remain in effect and shall be construed in accordance with its terms as if the invalid, unenforceable, illegal or conflicting provision were not contained herein. If, however, either (ii)(A) or (B) is found to be invalid, unenforceable or illegal, then the entirety of this arbitration provision shall be null and void, and neither you nor Wellhire shall be entitled to arbitration.
(iv) The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator will not have authority to award damages in excess of the amount, or other than the types, allowed by Section 10 of the Terms. Judgment on the award of the arbitrator may be entered by any court of competent jurisdiction. The arbitrator also shall be authorized to grant any temporary, preliminary or permanent equitable remedy or relief it deems just and equitable and within the scope of the Terms, including, without limitation, an injunction or order for specific performance. The arbitration award shall be final and binding upon the parties without appeal or review except as permitted by Colorado law or United States federal law.
(v) Notwithstanding the foregoing, either party may seek injunctive or other equitable relief to protect its intellectual property rights and any claims regarding infringement or misappropriation of its intellectual property rights shall not be subject to this arbitration agreement. If for any reason a claim proceeds in court rather than in arbitration, the dispute shall be exclusively brought in state or federal court in Denver County, Colorado and you and Wellhire consent to the exclusive jurisdiction of the courts in Denver County, Colorado.
(c) Choice of Law The Agreement is made under and shall be governed by and construed in accordance with the laws of the State of Colorado, consistent with the Federal Arbitration Act, without giving effect to any principles that provide for the application of the law of another jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods does not apply to these Terms.
(d) Notice Where we require that you provide an e-mail address, you are responsible for providing us with your most current e-mail address. In the event that the last e-mail address you provided to us is not valid, or for any reason is not capable of delivering to you any notices required/ permitted by the Terms, our dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice to Wellhire at the following address: firstname.lastname@example.org. Such notice shall be deemed given when received by us by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the above address.
(e) Export Control You may not use, export, import, or transfer the Site or Services (or any portion thereof) except as authorized by U.S. law, the laws of the jurisdiction in which you obtained the Site or Services (or any portion thereof), and any other applicable laws.You also will not use the Site or Services for any purpose prohibited by U.S. law. You acknowledge and agree that products, services, or technology provided by us are subject to the export control laws and regulations of the United States. You shall comply with these laws and regulations and shall not, without prior U.S. government authorization, export, re-export, or transfer Wellhire products, services, or technology, either directly or indirectly, to any country in violation of such laws and regulations.
(f) Copyright/Trademark Information. Copyright © 2014, Wellhire, Inc. All rights reserved. All trademarks, logos and service marks (“Marks”) displayed on the Site are our property or the property of other third parties. You are not permitted to use these Marks without our prior written consent or the consent of such third party which may own the Marks.
(g) Electronic Communications. The communications between you and Wellhire use electronic means, whether you visit the Site or Services or send Wellhire e-mails, or whether Wellhire posts notices on the Site and Services or communicates with you via e-mail. For contractual purposes, you (1) consent to receive communications from Wellhire in an electronic form; and (2) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Wellhire provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect your statutory rights.
(h) Force Majeure Wellhire shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials.
(i) Limitations Period YOU AND WELLHIRE AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE TERMS, THE SITE OR THE SERVICES, OR USER CONTENT MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
(j) Consumer Complaints. In accordance with California Civil Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210.
(k) Entire Agreement. The Terms, when read together with the Customer Services Agreement between you and Wellhire, if any, are the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between you and Wellhire with respect to such subject matter. In the event that here is a conflict between these Terms and the Customer Services Agreement between you and Wellhire, if any, the Customer Services Agreement shall prevail. Any waiver or failure to enforce any provision of the Terms on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion. If any provision of the Terms is, for any reason, held to be invalid or unenforceable, the other provisions of the Terms will remain enforceable, and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law. The Terms, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated or otherwise transferred by you without Wellhire’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.
1245 Pearl St. Suite 209
Boulder, CO 80302