Terms of Service
1.1. Effective Date. The effective date of this Agreement is December 1, 2017. Last Updated: These Terms of Service were last updated on October 3, 2019.
1.2. Agreement. Welcome to Quimbee! Sellers International LLC (“Quimbee” or “Company”) recommends that you read the following terms and conditions carefully. By accessing or using the Quimbee website, the Quimbee Service, including any software applications made available by Quimbee, such as the Quimbee mobile device application (together, the “Website” or “Service”), however accessed or used, you agree to be bound by these terms (the “Terms of Service” or the “Agreement”). By clicking on the “Start My FREE Trial” button, or otherwise making use of the Website or Service, you agree to be bound by this Agreement, constituting a legally binding contract between Quimbee and you concerning your use of the Service. We encourage you to print this Agreement or save it to your computer for reference.
1.3. User Types. This Agreement may apply to you individually (“Personal User”), the business or other legal entity you represent (“Entity User”), or both. As further described in Section 7, either a Personal User or an Entity User may also be a Group Manager, if such individual or entity registers a Group (defined in Section 7), or a Group User, if such individual is receiving access to the Service as part of a Group. If you are a Personal User receiving access to the Service through a Group, you acknowledge that your rights herein may be subject to the Group remaining authorized to access and use the Service. If you are using the Website or Services or otherwise entering into this Agreement on behalf of a company or other legal entity (i.e., an Entity User), you hereby represent and warrant that you have the authority to enter into this Agreement on behalf of the Entity User. Notwithstanding the foregoing, if you are an Entity User that has a separate agreement with us, such separate agreement shall govern in the event of a conflict between this Agreement and the other agreement. However, if an Entity User has a separate agreement with us for certain Services but not other Services, this Agreement shall govern such other Services that are not already governed by a separate agreement with Quimbee. Additionally, if you are a natural person using the Website or Services on behalf of a company or other legal entity or as a user under an Entity User’s agreement with us, you (as a Personal User) are nevertheless individually bound by this Agreement even if your company has a separate agreement with us. As used in this Agreement and unless separately identified as applicable to either a Personal User or Entity User only, “you” and “your” refer to both you individually (Personal User) and, to the extent this Agreement applies, the company on behalf of which you are entering into this Agreement (i.e., Entity User).
1.4. Paid Software and Content. In addition to this Website, Quimbee provides paid-for software as a service, along with legal-education content. Additional terms apply to your use of this software and content. See Section 7 (Software as a Service) for full details.
1.7. Arbitration and Remedies. These terms contain a mandatory arbitration-of-disputes provision that requires the use of arbitration on an individual basis to resolve disputes, rather than jury trials or class actions, and also limits the remedies available to you in the event of a dispute. See Section 21 (Dispute Resolution) for full details.
4.1. By accessing and/or using the Service, including by doing so after accessing this Agreement, you represent and warrant that you are at least 18 years old, and are otherwise legally qualified to enter into and form contracts under applicable law.
4.2. Entity Use. If you are entering into this Agreement on behalf of an Entity User, you represent and warrant that you are authorized to act and enter into contracts on behalf of that Entity User.
5. No Attorney-Client Relationship. While Company provides training materials and software for legal education, Company is not a law firm. You agree that neither this Agreement nor anything else forms an attorney-client relationship between you, on the one hand, and Company or its staff on the other.
6. License.?Subject to your compliance with these Terms of Service, as well as any separate agreement you enter into with Company, Company grants Personal User and Group Users (defined in Section 7 below) a limited, non-exclusive, non-transferable license to access the Company websites (located at the following URLs: http://www.49guzheng.icu/), and to use the Service, including the mobile application: (a) in the case of Personal Users, for your own personal use only, and (b) for Group Users, for your own personal use and to administer the Group. This license is revocable, and you may not sub-license it. Except for the foregoing limited license, all rights in the Service are reserved by Company. Except as expressly authorized herein, no part of the Service, including the Website or mobile application, may be reproduced, duplicated, copied, modified, sold, resold, distributed, transmitted, performed, displayed, stored, or exploited for any purpose without the prior express written consent of Company. Without limitation, this Agreement grants you no rights to the intellectual property of Company, any Licensor of Company, or any other party, except as expressly stated in this Agreement. The license granted in this section is conditioned on your compliance with this Agreement. Your rights under this section will immediately terminate if, in the sole judgment of Company, you have breached any provision of this Agreement.
7. Software as a Service; Types of Users. Company provides software as a service and legal-education content (together, the “SaaS”, which is a part of the “Service”).?The SaaS includes, but is not limited to: case briefs, case brief videos, multiple-choice questions, essay practice exams, subject-matter outlines, online courses comprised of related video lessons, flashcards, various materials to prepare for various states' bar examinations, and similar content.
7.3.1.?Groups.?The Service enables you to sign-up or register for the Service as a group (“Group”), where your registration provides access to the Service to more than one Personal User (“Group Users”). Groups will be named after the Group Manager (e.g., John Smith’s Group). If you are creating a Group on behalf of a law school or other organization or entity, please contact support to verify and have the Group’s name updated to that of your school, organization or entity. Any reduction in the number of authorized number of Group Users shall not take effect until the subsequent billing cycle. A Group must have at least two (2) Group Users.
7.3.2.?Group Managers.?Either Personal Users or Entity Users are able to register a Group, and such Personal User or User Entity shall be deemed a “Group Manager” under these terms, in addition to being a Personal User or Entity User, as applicable. Group Managers are responsible for the fees owed by the Group. The Group Manager is responsible for administering the Group, which means managing billing and payment methods, selecting the Group’s subscription plan, and adding or removing Group Users within the Group. A Group can only have one Group Manager, and the Group Manager is counted as a Group Users with respect to counting the total number of Group Users within the Group. Other than the Group Manager, Group Users cannot administer the Group and only have access to content and features that the Group Manager has selected for the Group. Device limits apply to all Group Users.
7.4. Software Updates. One major benefit of SaaS is that Company’s software is continually updated. To deliver this benefit, Company reserves the right, in its sole discretion, to update, modify, or remove features, functionality, or other aspects of its SaaS at any time.
7.5. Downtime. While Company takes commercially reasonable measures to keep its SaaS continuously available, the SaaS may be subject to unscheduled downtime. This Agreement does not include a Service Level Agreement; see also Section 18.1 (No Warranties). In addition, Company may take the SaaS offline briefly for occasional maintenance. Company will notify subscribers of these scheduled downtimes in advance.
8. No Reliance on Third Party Content.
8.1. Opinions, advice, statements, or other information made available through the Service by third parties are those of their respective authors, and should not necessarily be relied upon. Those authors are solely responsible for their content. Company does not: (i) guarantee the accuracy, completeness, or usefulness of any third-party information accessible on or through the Service; or (ii) adopt, endorse, or accept responsibility for the accuracy or reliability of any opinion, advice, or statement made by a third party through the Service. Under no circumstances will Company be responsible for any loss or damage resulting from your reliance on information or other content posted through the Service transmitted to or by any third party.
9. Assumption of Risk; Release. You knowingly and freely assume all risk when using the Service. You, on behalf of yourself, your personal representatives, and your heirs, voluntarily agree to release, waive, discharge, hold harmless, defend, and indemnify Sellers International LLC and its stockholders, officers, directors, employees, agents, affiliates, consultants, representatives, sub-licensees, successors, and assigns (collectively, the “Company Parties”) from any and all claims, actions, or losses for bodily injury, property damage, wrongful death, emotional distress, loss of privacy, or other damages or harm, whether to you or to third parties, that may result from your use of the Service.
10. User Account, Accuracy, and Security.
10.1. User Account. To use the Service, you must register and create a user account (“Account”). An individual is permitted to create only one Account. During the Account-creation process, you will be asked to provide information that personally identifies you (“Personal Information”).?If you are entering into this Agreement on behalf of an Entity User, you may also be required to provide information about such entity.
10.3. No Pseudonyms. You must use your real name on Quimbee; pseudonyms are not allowed. Any use of a pseudonym violates Section 10.2 (Account Information Accuracy) and is cause for suspension or deletion of your Account.
10.4. Account Security. You will also be asked to provide a username, password, and possibly other information to secure your Account. You may access your Account on up to two devices (e.g., a laptop and a tablet). Should you attempt to access your Account on a third device, you will be asked to provide a phone number. We will send you a security code via SMS message, which you must enter to verify your identity. You must then deauthorize one of your previous devices before you may access your Account on a third device. (Please note that if you access your Account from two different web browsers, each web browser will be treated as a separate device.) You are entirely responsible for maintaining the confidentiality of your Account's security information, including your password. You may not use the username or password of any other person, nor may you share your username and password, nor may you circumvent any authentication mechanism requiring the entry of usernames, passwords, or any other information to gain unauthorized access to the Service. You agree to notify Company immediately of any unauthorized use of your Account. Company shall not be liable for any loss that you incur because of someone else using your Account, either with or without your knowledge. You may be held liable for any losses incurred by Company, its affiliates, officers, directors, employees, consultants, agents, and representatives due to someone else’s use of your Account.
10.5.?Free Trial. Only one free trial is permitted per person. You may not create additional Accounts (such as through the use of pseudonyms and alternate email accounts) for purposes of claiming additional free trials. Company reserves the right to terminate service to anyone who violates this policy. During the free trial, you may access up to 10 case briefs.?With respect to free trials for a Group, only the Group Manager shall have access to the Service during the trial period.
11. Consent to Receive Electronic Communications from Company and Feedback. By registering for the Service and providing your name, email, postal or residential address, and/or phone number through the Service, you expressly consent to receive electronic and other communications from Company, over the short term and periodically over the long term, including email communications. These communications will be about the Service, new product offers, promotions, and other matters. You may opt out of receiving electronic communications at any time by following the unsubscribe instructions contained in each communication, or by sending an email to [email protected]. You agree that these electronic communications satisfy any legal requirements that communications or notices to you be in writing.?By sending Company any ideas, comments, suggestions, questions, or other material, you grant Company an unrestricted, royalty-free, worldwide, irrevocable license to use, reproduce, display, perform, modify, transmit, and distribute such material in any manner, including in connection with Company’s business, and you also agree that Company shall be free to use any ideas, concepts, know-how, or techniques that you send Company for any purpose. You agree that no comments or other information submitted by you to Company will violate any personal or proprietary right of any third party (including, without limitation, copyright, trademark, or trade secret rights).? You agree that you shall remain solely liable for the contents of any comments or other information submitted by you to Company. You also agree that Company is under no obligations of confidentiality, whether express or implied, with respect to any ideas, comments, suggestions, questions, or other material you send to Company.
12.1. Subscription Fees. As discussed in Section 7 (Software as a Service), Quimbee is a paid service.
12.2. Automatic Billing. Company will bill your Subscription fees automatically to the payment method you designate when signing up.
12.3. Automatic Renewal. Unless you cancel your Subscription (see Section 12.4 (Cancellation)), your Subscription will renew automatically at the end of its term. Please see Section 12.4 (Cancellation) and, if applicable, your Institutional Agreement.
12.4.1. How to Cancel. To cancel your SaaS subscription, contact Company by emailing [email protected], clicking on the Contact widget at the lower-right of any page on www.49guzheng.icu, or using the contact form in Quimbee’s iPhone, iPad, and Android apps. Your cancellation is not effective until a Company representative confirms it.
12.4.2. Effect of Cancellation. Once your cancellation is confirmed by Company, then Company will not bill you further, but Company will not refund you for any remainder of that term. Company will terminate your access to the SaaS at the end of your billing term.
12.4.3. Additional Termination Terms. An Institutional Agreement, if applicable, may contain additional termination terms, which shall govern in the event of a conflict with this Agreement.
12.6. Reserved Rights for Company’s Fees. Company reserves the right, in its sole discretion, to change the fees and charges in effect, or to add new fees and charges, by posting such changes or providing notice to you. All fees and charges are nonrefundable, and there are no refunds, nor are there credits for partially used subscription periods.
12.6.1. Company’s decision not to exercise any specific right or require performance of any specific obligation under this Agreement, including collecting regularly recurring fees from you, shall not affect Company’s later ability to exercise those rights or to require performance at any later time. Company’s waiver of your breach shall not constitute a waiver of any later breach by you, or by any other user of the Service. By using the Service, you authorize Company or its payment processor to charge Company’s fees to the payment method you provide, in addition to applicable sales and other taxes.
13. Third Party Websites. The Service is linked with the websites of third parties (“Third Party Websites”), some of whom may have established relationships with Company and some of whom may not. Company does not have control over the content and performance of Third Party Websites. Company has not reviewed, and cannot review or control, all of the material, including computer software or other goods or services, made available on Third Party Websites. Accordingly, Company does not represent, warrant, or endorse any Third Party Websites, or the accuracy, currency, content, fitness, lawfulness, or quality of the information, material, goods, or services available through Third Party Websites. Company disclaims, and you agree to assume, all responsibility and liability for any damages or other harm, whether to you or to third parties, resulting from your use of Third Party Websites.
14. Your Responsibility for Defamatory Comments.
14.1. If you post defamatory statements to the Service, persons harmed by those statements may sue you and seek damages. Under Section 230 of the Communications Decency Act of 1996 (47 U.S.C. Section 230, available at https://www.law.cornell.edu/uscode/text/47/230), Company cannot be held liable for your statements that are defamatory or otherwise legally actionable.
14.2. If you raise or file any claim against Company for conduct that a Court of Competent Jurisdiction (defined below at 21.1.3.) later finds to constitute an “exercise of a publisher’s traditional editorial functions,” or the legal equivalent, you agree to fully and immediately compensate Company for all losses, liability, damages, costs, and expenses, including without limitation all attorneys’ fees and expenses in defending the action and resolving the matter. If you fail to compensate Company for any such claim, you agree and authorize Company to report your Personal Information, including without limitation your unpaid claim, to consumer credit reporting services, collection agencies, and others.
16. Prohibited Uses. Company imposes certain restrictions on your use of the Service. Any violation of this section may subject you to civil and/or criminal liability. The following are expressly prohibited:
16.1. harassing or stalking any person, or contacting any person who has requested not to be contacted;
16.2. providing false, misleading, or inaccurate information to Company or to any other person in connection with the Service;
16.3. impersonating, or otherwise misrepresenting affiliation, connection, or association with, any person or entity;
16.4. modifying any advertisement posted through the Service;
16.5. harvesting or otherwise collecting information about users, including email addresses and phone numbers;
16.6. without express written permission from Company, using or attempting to use any engine, software, tool, agent, or other device or mechanism (including without limitation browsers, spiders, robots, avatars, or intelligent agents) to harvest or otherwise collect information or content from the Service for any use, including without limitation use on Third Party Websites;
16.7. accessing content or data not intended for you, or logging into a server or account that you are not authorized to access;
16.8. attempting to probe, scan, or test the vulnerability of the Service, or any associated system or network, or breaching security or authentication measures without proper authorization;
16.9. interfering or attempting to interfere with the use of the Service by any other user, computer, or network, including (without limitation) by submitting malware or exploiting software vulnerabilities;
16.10. using the Service to send unsolicited email, including without limitation promotions or advertisements for products or services;
16.11. forging, modifying, or falsifying any network packet or protocol header or metadata in any connection with, or transmission to, the Service (for example, SMTP email headers, HTTP headers, or Internet Protocol packet headers);
16.12. while using the Service, using ad-blocking or other content-blocking software, browser extensions, or built-in browser options designed to hide, block, or prevent the proper display of online advertising;
16.13. attempting to modify, reverse-engineer, decompile, disassemble, or otherwise reduce or attempt to reduce to a human-perceivable form any of the source code used by the Company Parties in providing the Service, including without limitation any fraudulent effort to modify software or any other technological mechanism for measuring the number of impressions generated by individual content and/or the overall Service to determine and/or audit advertising revenues and payments, if applicable;
16.14. creating additional accounts to promote your (or another’s) business, or causing others to do so; and
16.15. paying anyone for interactions on the Service.
16.16. selling, sublicensing, distributing, displaying, storing, or transferring content and/or other materials available through the Service, including, without limitation, case briefs, in bulk or in any way that could be used to replace or substitute for the Service, in whole or in part or as any component of any material offered for sale, license, or distribution to third parties.
17. Intellectual Property.
17.1. Compliance with Law. You represent and warrant that, when using the Service, you will obey all applicable laws and respect the intellectual property rights of others. Your use of the Service is at all times governed by and subject to copyright and other intellectual property laws. You agree not to upload, post, transmit, display, perform, or distribute any content, information, or other materials in violation of any third party’s copyrights, trademarks, or other intellectual property or proprietary rights.
17.2. Trademarks. Quimbee and the Quimbee logo (collectively, the “Company Marks”) are trademarks or registered trademarks of Company. Other trademarks, service marks, graphics, logos, and domain names appearing anywhere on, through, or in connection with the Service may be the trademarks of third parties. Neither your use of the Service nor this Agreement grant you any right, title, or interest in, or any license to reproduce or otherwise use, the Company Marks or any third-party trademarks, service marks, graphics, logos, or domain names. You agree that any goodwill in the Company Marks generated as a result of your use of the Service will inure to the benefit of Company.
17.3. Copyrighted Materials; Copyright Notice. All content and other materials available through the Service, including without limitation the Quimbee logo, design, text, graphics, and other files, along with their selection, arrangement, and organization, are either owned by Company or are the property of Company’s licensors and suppliers. Except as explicitly provided, neither your use of the Service nor this Agreement grant you any right, title, or interest in any such materials.?You may not remove or obscure any copyright notices or other notices utilized in any content and other materials available through the Service.
17.4. DMCA Policy.
17.4.1. As Company asks others to respect its intellectual property rights, Company respects the intellectual property rights of others. Company follows the notice and takedown procedures in the Digital Millennium Copyright Act (“DMCA”).
17.4.2. If you believe content located on or linked to by the Service violates your copyright, please immediately notify Company by emailed DMCA takedown notice (“Infringement Notice”), providing the information described below. If Company takes action in response to an Infringement Notice, it will make a good faith attempt to contact the party who made the content available at the most recent email address that party provided to Company.
17.4.3. Under the DMCA, you may be held liable for damages based on material misrepresentations in your Infringement Notice. You must also make a good-faith evaluation of whether the use of your content is a fair use; fair uses are not infringing. (See 17 U.S.C. Section 107, available at https://www.law.cornell.edu/uscode/text/17/107, and Lenz v. Universal Music Corp., No. 13-16106 (9th Cir. Sep. 14, 2015), available at https://www.courtlistener.com/opinion/2937139/stephanie-lenz-v-universal-music-corp/.) If you are not sure whether content located on or linked to by the Service infringes your copyright, you should first contact an attorney.
17.4.4. The DMCA requires that all Infringement Notices must include the following:
18.104.22.168. A signature, electronic or physical, of the copyright owner or a person authorized to act on the owner’s behalf;
22.214.171.124. An identification of the copyright claimed to have been infringed;
126.96.36.199. A description of the nature and location of the material that you claim to infringe your copyright, in sufficient detail to permit Company to find and positively identify that material;
188.8.131.52. Your name, address, telephone number, and email address; and
184.108.40.206. A statement by you: (i) that you believe in good faith that the use of the material that you claim to infringe your copyright is not authorized by law, or by the copyright owner or such owner’s agent; and, (ii) under penalty of perjury, that all the information contained in your Infringement Notice is accurate, and that you are either the copyright owner or a person authorized to act on the owner’s behalf.
17.4.5. Infringement Notices should be sent to firstname.lastname@example.org with the subject line “DMCA Notice: (INSERT YOUR NAME OR YOUR COMPANY’S NAME)”.
17.4.6. Company will respond to all DMCA-compliant Infringement Notices, including, as required or appropriate, by removing the offending material or disabling all links to the offending material.
17.4.7. Disclosure. All received Infringement Notices may be posted in full to the Lumen database (https://lumendatabase.org/), previously known as the Chilling Effects Clearinghouse.
17.5. Notification of Infringement. You shall immediately notify Company if you discover or are informed of any infringements or potential infringements of Company’s intellectual property rights including, without limitation, any unauthorized use of the Service, or respective portions of content and materials thereof, by third parties.
18. Disclaimers; Limitation of Liability.
18.1. No Warranties. Company, on behalf of itself and its licensors and suppliers, expressly disclaims any and all warranties, express or implied, regarding the Service, arising by operation of law or otherwise, including without limitation any and all implied warranties of merchantability, fitness for a particular purpose, non-infringement, no encumbrance, or title, in addition to any warranties arising from a course of dealing, usage, or trade practice. Neither Company nor its licensors or suppliers warrants that the Service will meet your requirements, or that the operation of the Service will be uninterrupted or error-free.?
18.2. Your Responsibility for Loss or Damage; Backup of Data.
18.2.1. You agree that your use of the Service is at your sole risk. You will not hold Company or its licensors and suppliers, as applicable, responsible for any loss or damage that results from your access to and/or use of the Service, including without limitation any loss or damage to any of your computers, mobile devices, including without limitations tablets and/or smartphones, or data. The Service may contain bugs, errors, problems, or other limitations.
18.2.2. Importantly, you acknowledge that a catastrophic disk failure or other similar event could result in the loss of all of the data related to your account. You agree and understand that it is your responsibility to backup your data to your personal computer or external storage device and to ensure such backups are secure.
18.3.?Limitation of Liability. In no event shall Company or its licensors or suppliers be liable to you for any indirect, incidental, special, consequential, or punitive damages (including without limitation damages for lost profits or lost revenues), whether caused by the acts or omissions of Company, Company Parties, or Quimbee users, or their agents or representatives, regardless of the foreseeability of those damages or of any advice or notice given to Company or its licensors and suppliers arising out of or in connection with your use of the Service. Furthermore, in no event shall Company’s or its licensors’ or suppliers’ total cumulative liability exceed the greater of: (a) the amount you paid Company for your use of the Service in the prior three (3) months, and (b) the sum of one hundred dollars ($100). These limitations shall apply regardless of whether the damages arise out of breach of contract, tort, or any other legal theory or form of action. You agree that these limitations of liability represents a reasonable allocation of risk and is a fundamental element of the basis of the bargain between Company and you. The Service would not be provided without such limitations.
18.4. Application of Disclaimers. The above disclaimers, waivers, and limitations do not in any way limit any other disclaimer of warranties or any other limitation of liability in any other agreement between you and Company or between you and any of Company’s licensors and suppliers. Some jurisdictions may not allow the exclusion of certain implied warranties or the limitation of certain damages, so some of the above disclaimers, waivers, and limitations of liability may not apply to you. Company’s licensors and suppliers are intended third-party beneficiaries of these disclaimers, waivers, and limitations. No advice or information, whether oral or written, obtained by you through the Service or otherwise shall alter any of the disclaimers or limitations stated in this section.
19. Your Representations and Warranties. You represent and warrant that your use of the Service will be in accordance with this Agreement and any other Company policies, and with any applicable laws or regulations.
20. Indemnity by You.
20.1. Without limiting any indemnification provision of this Agreement, you (the “Indemnitor”) agree to defend, indemnify, and hold harmless Company and the Company Parties (collectively, the “Indemnitees”) from and against any and all Claims (as defined in Section 21 (Dispute Resolution)), including but not limited to legal costs and fees, and providing sole and exclusive control of the defense of any action to Company, including the choice of legal counsel and all related settlement negotiations, arising out of or relating to: (i) the relationship between you and Company, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory; (ii) your breach of this Agreement, including without limitation any representation or warranty contained in this Agreement; (iii) your access to or use of the Service; (iv) your provision to Company or any of the Indemnitees of information or other data; (v) your violation or alleged violation of any foreign or domestic, international, federal, state, or local law or regulation; or (vi) your violation or alleged violation of any third party’s copyrights, trademarks, or other intellectual property or proprietary rights.
20.2. The Indemnitees each have the individual right, but not the obligation, to participate through counsel of their choice in any defense by you of any Claim as to which you are required to defend, indemnify, or hold harmless any, each, and/or all Indemnitees. You may not settle any Claim without the prior written consent of the concerned Company Parties.
20.3. Without limitation, the Indemnitor also agrees to compensate Company for any and all lost revenues, future lost profits, reasonable search costs, and any other reasonable expenses resulting from any Indemnitor violation of Section 16 (Prohibited Uses), including without limitation any suspension of affiliate accounts or affiliate payment attributable to fraudulent efforts to manipulate or otherwise modify reported impressions generated by the Company Parties under any affiliate advertising agreement.
21. Dispute Resolution.
21.1. Additional Definitions for Dispute Resolution.
21.1.1. “AAA” means the American Arbitration Association.
21.1.2. “Claim” means any claims, actions, demands, causes of action, and other proceedings arising out of or relating to: (i) the relationship between you and Company, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory; (ii) your breach of this Agreement, including without limitation any representation or warranty contained in this Agreement; (iii) your access to or use of the Service; (iv) your provision to Company or any of the Indemnitees of information or other data; (v) your violation or alleged violation of any foreign or domestic, international, federal, state, or local law or regulation; or (vi) your violation or alleged violation of any third party’s copyrights, trademarks, or other intellectual property or proprietary rights.
21.1.3. “Court of Competent Jurisdiction” means any federal or state court that has jurisdiction over the subject matter, and that is located in the State of North Carolina, except that Company may seek injunctive relief to protect Company’s intellectual property rights in any court having jurisdiction.
21.1.4. “Lawsuit” means a legal proceeding against a Party related to this Agreement.
21.2. Binding Arbitration. Any Claim arising out of or relating to this contract, or the breach thereof, shall be settled by arbitration administered by the AAA in accordance with its Commercial Arbitration Rules, which are available at the AAA website https://www.adr.org/aaa/faces/rules, or by calling the AAA at 1-800-778-7879. Judgment on the arbitrator’s award may be entered in any Court of Competent Jurisdiction. Claims shall be heard by a single arbitrator. The place of arbitration shall be Charlotte, North Carolina. The arbitration shall be governed by the laws of North Carolina. Hearings will take place pursuant to the standard procedures of the Commercial Arbitration Rules that contemplate in-person hearings. The prevailing party shall be entitled to an award of reasonable attorney fees. The award of the arbitrator shall be accompanied by a reasoned opinion. Except as may be required by law, neither a party nor an arbitrator may disclose the existence, content, or results of any arbitration without the prior written consent of both parties.
21.3. No Joinder of Claims. You and Company agree that any arbitration shall be limited to each Claim individually. You and Company agree that each may only bring claims against the other in an individual capacity, and not as a plaintiff or class member in any purported class or representative proceeding. If this specific provision is found to be unenforceable by a Court of Competent Jurisdiction, the Claim will still be finally and exclusively resolved by binding arbitration upon the election of either party. Any election to arbitrate by one party shall be final and binding on the other. No arbitration shall be joined with any other arbitration. There is no right for any Claim to be arbitrated on a class-action basis, or to employ class action procedures. There is no right of authority for any Claim to be brought in a purported representative capacity on behalf of either the general public or any other individuals.
21.4. Judicial Remedies in Aid of Arbitration or Equitable Relief. As exceptions to Section 21.2 (Binding Arbitration), any Party may seek, in a Court of Competent Jurisdiction, provisional remedies in aid of arbitration (including orders to stay a court action, to compel arbitration, or to confirm an arbitral award) or equitable relief (including a temporary restraining order, preliminary injunction, or other interim or conservatory relief).?For the avoidance of doubt, the foregoing shall expressly permit Company to seek injunctive relief to protect Company’s intellectual property rights.
21.5. Frivolous Claims. If the arbitrator or a Court of Competent Jurisdiction finds that the substance of a Claim or the relief sought is frivolous, or that a Claim is brought for an improper purpose (as measured by the standards of Rule 11(b) of the Federal Rules of Civil Procedure and related case law), then the party bringing that Claim shall pay all arbitrator fees, attorneys’ fees, and costs related to that Claim.
22.1.?By Company. Without limiting any other provision of this Agreement, Company reserves the right to, in Company’s sole discretion and without notice or liability, deny use of the Service to any person or terminate this Agreement for any reason or for no reason at all, including without limitation for any breach or suspected breach of any representation, warranty, or covenant contained in this Agreement, or of any applicable law or regulation.
22.2. By You. You may terminate this Agreement and your rights under it at any time, for any or no reason at all, by providing to Company notice of your intention to do so, in the manner required by Section 23 (Notices).
22.3. Effect of Termination.
22.3.1. Any termination of this Agreement automatically terminates all rights and licenses granted to you under this Agreement, including all rights to use the Service. Upon termination, Company may, but has no obligation to, in Company’s sole discretion, rescind any services and/or delete from Company’s systems all your Personal Information and any other files or information that you made available to Company or that otherwise relate to your use of the Service. Upon termination, you shall stop any use of the Service.
22.3.2. After termination, Company reserves the right to exercise whatever means it deems necessary to prevent your unauthorized use of the Service, including without limitation technological barriers such as IP blocking and direct contact with your Internet Service Provider.
22.4. Legal Action. If Company takes legal action against you in connection with any actual or suspected breach of this Agreement, Company will be entitled to recover from you as part of such legal action, and you agree to pay, all reasonable costs and attorneys’ fees. The Company Parties will have no legal obligation or other liability to you or to any third party arising out of or relating to any termination of this Agreement.
23. Notices. All notices required or permitted to be given under this Agreement must be in writing.
23.1. Company shall give any notice by email sent to the most recent email address, if any, provided by the intended recipient to Company. You agree that any notice received from Company electronically satisfies any legal requirement that such notice be in writing.
23.2. You bear the sole responsibility of ensuring that your email address on file with Company is accurate and current, and notice to you shall be deemed effective upon the sending by Company of an email to that address.
23.3. You shall give any notice to Company by email to email@example.com.
24.?Apple App Store users.?If you are accessing the Service through an application from the Apple App Store, you and Company agree to the following additional terms:
24.1. Company and you acknowledge that this Agreement is concluded between you and Company only, and not with Apple, and Company, not Apple, is solely responsible for the Service and the content thereof. Company and you agree to be bound by the App Store Terms of Service as of the Effective Date (which you acknowledge you have had the opportunity to review), including without limitation the Usage Rules (as defined in the App Store Terms of Service) (capitalized terms below have the definitions given to them in the App Store Terms of Service unless otherwise defined herein).
24.2. You may only access the Services on an iOS product that you own or control and only as permitted by the Usage Rules set forth in the App Store Terms of Service.
24.3. To the extent set forth herein or required by applicable law, Company is solely responsible for providing any maintenance and support services with respect to the Services. You acknowledge and agree that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Services.
24.4. Company, not Apple, is solely responsible for any product warranties set forth in this Agreement, whether express or implied by law, to the extent not effectively disclaimed. In the event of any failure of the application to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the application to you; provided that, to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Services, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty, if any, will be Company’ sole responsibility, to the extent not disclaimer herein.
24.5. Company and you acknowledge that Company, not Apple, is responsible for addressing any claims by you or any third party relating to the Services or your possession and/or use of the Services, including, but not limited to: (i) product liability claims; (ii) any claim that the Services fail to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
24.6. Apple shall in no way be responsible for any claim (including any related investigation, defense, settlement or discharge thereof) that the Services or your possession and use of the Services infringe any third party’s intellectual property rights.
24.7. If you send SMS messages through Services, you acknowledge that standard text messaging rates or other carrier charges may apply to such use.
24.8. If you authorize Company to access your Address Book on your iOS product, you acknowledge and agree that Company may access and use such data to invite share job with your contacts.
25.?Quimbee Talent Terms and Conditions. If you are using Quimbee's jobs posting platform and related services (the “Talent Services”), then this Section 25 also applies to you in addition to the other terms within these Terms of Service (and, for clarity, the Talent Services constitute a “Service” as defined herein). Additional terms may apply to specific features of the Talent Services and may be presented when you engage with such features or in some other manner. In the event of a conflict between the terms in this Section 25 and other agreements between you and Quimbee, these terms govern with respect to the access and use of the Talent Services.
25.1.?Job Posts; Your Responsibilities.?
25.1.1. You are responsible for (i) all postings and content therefore submitted by or on your behalf through the Talent Services or otherwise to Quimbee, including but not limited to the job descriptions, trademarks, logos, images, URLs, and other information and materials that comprise the postings or content thereof (collectively, your “Job Posts”); and (ii) all content and sites to which Job Posts may direct viewers.
25.1.2. You are responsible for any activity conducted through your account, including any purchases made or charges incurred. If you are using the Talent Services on behalf of a business or other organization, Quimbee may share information about your purchases and use of the Talent Services with that business or other organization, including its representatives and agents. If that business or other organization indicates that you are no longer authorized to post Job Posts on its behalf, you agree you may be removed from accounts associated with that business or other organization.?
25.1.3. You grant to Quimbee a non-exclusive, royalty-free, worldwide, sublicensable and transferable license to copy, modify, distribute, publish, and otherwise use your Job Posts and the content and information therein (including any logos or other marks) in connection with the Talent Services (including for marketing and promotional purposes). You represent and warrant that you own or have all necessary rights (including intellectual property rights) to your Job Posts and all information and content therein (including to grant the license above).
25.2.1. Each Job Post may only be for one (1) job opportunity (i.e.
, one position). In addition to Section 16 of, and other applicable terms in, these Terms of Service or any other applicable agreement between you and Quimbee, you agree that you will not, nor enable or authorize any third party to, use the Talent Services to:
- Submit Job Posts without a reasonable and legitimate intent to hire for the specific opportunity identified in the Job Post.
- Submit Job Posts that intentionally misrepresent the job, job poster, or hiring company.
- Provide applicant data received through or in connection with the Talent Services to any other parties.
- Contact applicants for any reason other than with respect to the specific Job Post.
- Solicit or otherwise contact any applicant following their request to not be contacted.
- Submit Job Posts or otherwise engage in any activity related to or in connection with the Job Post in violation of any applicable laws.
- Intentionally or knowingly misrepresent the opportunity contemplated by the Job Post.
- Use any automated means or form of scraping or data extraction to access, modify, download, query, or otherwise collect information from the Website.
25.2.2.?Quimbee may, in its sole discretion and at any time with or without notice to you: (a) modify or terminate any part or all of the Talent Services or suspend your ability to use the Talent Services, or (b) reject or remove any Job Post.
25.3.?Fees and Payment.?You agree to pay the applicable fees for the Talent Services when due, plus all related taxes. Unless otherwise denoted, all fees are assessed in U.S. dollars. You also agree that Quimbee and its third-party service providers providing payment processing services may store your payment information. We may charge your payment information for subsequent charges you authorize. The Talent Services are billed in advance on a monthly basis and are non-refundable. You agree to reimburse us for all collection costs, and you shall be responsible for interest on any overdue amounts at the rate of the lesser of: (a) 1.5% per month or (b) the maximum amount permitted by law.?
26.1. Entire Agreement. This Agreement constitutes the entire agreement between Company and you concerning your use of the Service.
26.2. Partial Invalidity. Should any part of this Agreement be declared invalid, void, or unenforceable by a Court of Competent Jurisdiction, that decision shall not affect the validity of any remaining portion of this Agreement, which shall remain in full effect, and the parties acknowledge and agree that they would have executed the remaining portion without including the part so declared by a Court of Competent Jurisdiction to be invalid, void, or unenforceable.
26.3. Amendments. This Agreement may be modified only by a written amendment signed by an authorized executive of Company, or by the unilateral amendment of this Agreement by Company along with the posting by Company of that amended version.
26.4. No Waiver. A waiver by either party of any term or condition of this Agreement, or any breach, in any one instance, will not waive that term or condition or any later breach.
26.5. Assignment. This Agreement and all of your rights and obligations under it will not be assignable or transferable by you without the prior written consent of Company. This Agreement will be binding upon and will inure to the benefit of the parties, their successors, and permitted assigns.
26.6. Independent Contractors. You and Company are independent contractors, and no agency, partnership, joint venture, or employee-employer relationship is intended or created by this Agreement.
26.7. No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement, with the following exceptions: the Company Parties; Company’s licensors and suppliers (to the extent expressly stated in this Agreement); and to the extent stated in the following Sections: Section 8 (No Reliance on Third Party Content), Section 13 (Third Party Websites), Section 18.4 (Application of Disclaimers).
26.8. Injunctive Relief. You acknowledge and agree that any actual or threatened breach of this Agreement or infringement of proprietary or other third-party rights by you would cause irreparable injury to Company and Company’s licensors and suppliers, and would therefore entitle Company or Company’s licensors or suppliers, as the case may be, to injunctive relief.
26.9. Interpretation. The language in this Agreement shall be interpreted in accordance with its fair meaning and not strictly for or against either party.
26.10. Headings. The headings in this Agreement are for convenience only, and shall have no legal or contractual effect.