Rainmakers Terms & Conditions
Effective March 1, 2017
Welcome to Rainmakers, the next-generation tool for identifying and connecting high-performing sales professionals with potential employers. Below, you will find the “Terms of Service” that apply to anyone who uses Rainmakers to help in the process of finding a new job, hiring a new salesperson (and even to individuals who just visit our site). But if you want to know what it says in English as opposed to legal, we suggest you take a couple of minutes to read the next few paragraphs before continuing. If you are one of those people who actually reads the terms and conditions of a website, feel free to jump ahead to the more confusing stuff below.
Rainmakers facilitates the search for skilled sales professionals by maintaining a database of pre-screened sales reps and execs (“Candidates”) who are actively seeking new opportunities. Prospective employers can search for Candidates by skills, experience, and requirements like desired salary, and reach out directly to schedule interviews with the most promising ones. Candidates can view Employer profiles to determine if a potential employer is a good match and are under no obligation to accept an interview.
There is no contract or any other obligation created between employers and Candidates by using Rainmakers, and no charge for using the service unless an employer hires a Candidate they have been introduced to through the service, in which case the employer pays us a modest success fee. And if you are a candidate who is hired through Rainmakers, you may be eligible for a hiring “bonus” from us as a thank you for using our Rainmakers to find your new role—think of it as a referral fee for yourself.
Everyone who uses Rainmakers is responsible for the accuracy of the information they provide, and uses the service at their own risk. We may verify submissions, and may reject registrations or remove registered users at any time and for any reason. By using our service, you consent to our using salary, marketplace, experience, and any other non-personal information you provide to Rainmakers, (i.e., any information that CAN’T be used to identify a specific individual) to improve the service and in our other offerings.
We make every effort to keep Rainmakers secure, but our services are not guaranteed, and we cannot promise that they will meet your expectations. If you do not like the services, you may cancel your registration at any time. We hope you don’t, and invite you to contact us at email@example.com with any problems and we will work to resolve them. We really hope we don’t get into a dispute over the services, but if we do, we will resolve the dispute in small claims court or through arbitration, and unless we do something really terrible, your damages are limited to $100 or, in the case of an employer who paid Rainmakers a success fee, the amount of that success fee.
Our lawyers insist that the above may be understandable, but they are not the “real” terms. Those are below:
Effective Date: March 1, 2017
Last Updated Date: March 1 2017
PLEASE READ THESE TERMS CAREFULLY. By using or accessing the Services, you agree to these terms.If you don’t accept these Terms, you may not use the site or Services. All Candidates and Employers are required to affirmatively accept the Terms as part of the registration process. You may not use the Services if you are under 18 years of age, and the site is not intended for children under the age of 13.
SECTION 8 OF THESE TERMS REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTION PROCEEDINGS, AND ALSO LIMITS THE REMEDIES AVAILABLE IN CASE OF A DISPUTE.
WE MAY CHANGE THESE TERMS, INCLUDING THE FEES PAYABLE RELATED TO THE SERVICE, AT ANY TIME IN OUR SOLE DISCRETION.We will post any revisions and the date they were made to this page. We will also send an email to the registered email address of all Users informing them of the updated Terms. Revised Terms will take effect immediately for new users and thirty (30) days after the date the revised Terms are posted to this page for existing Users. We may require affirmative consent to revised Terms at our sole discretion.
1. The Services
1.1.Provision of the Services
(a) Subject to your compliance with the Terms, we will provide the Services to you for your personal or internal business purposes. Use of the Services to submit or review Candidate or Employer information or contact other Users requires registration pursuant to Section 2 below.
(b) While a single User may access the Services through multiple devices (i.e., a computer at home, a computer at work, and a mobile device), Candidate Users may not share their sign-on credentials or otherwise provide anyone else with access to the Services, and all employees of an Employer authorized to access an Employer User Account (as such term is defined in Section 2) must be included in the registration information for such Account, and not share the User credentials with anyone not so authorized. We may suspend the Account of any User who we reasonably believe has violated this restriction.
(c) The Services are exclusively provided remotely, via registered access to the site, and we will never provide you with a tangible copy of our software or documentation related to such software or the Services. Copying or redistributing any aspect of the Services, including copying the software underlying the Services to any other server or location, redistributing such software, or using it on a service bureau basis is prohibited.
1.2.Updates.We are constantly improving the Services and may update the software supporting the Services at any time and without notice. You may need to update third-party software (i.e., web browsers) from time to time in order to continue using the Services or to access all features of the Services.
1.3.Restrictions.The license granted to you in this Section 1 is subject to the following restrictions. You will not:
(a) license, sell, rent, lease, transfer, assign, reproduce, distribute, host or otherwise commercially exploit the Services or any portion thereof, including the site,
(b) frame or use framing techniques to enclose any trademark, logo, or other of our marks (or use any metatags or other “hidden text” using our name or trademarks);
(c) attempt to interfere with or compromise the system integrity or security, or decipher any transmissions to or from the servers running the site or Service;
(d) modify, translate, adapt, merge, make derivative works of, disassemble, decompile, or reverse engineer or compile any element of the Services, except to the extent the foregoing restrictions are expressly prohibited by applicable law;
(e) use any manual or automated means to “scrape” or download data from the site (except that public search engines may do so to create publicly available searchable indices, but may not cache or archive any information from the site);
(f) access the Services in order to build a similar or competitive website, application or service;
(g) remove or destroy any copyright notices or other proprietary markings contained on or in the Services; or
(h) use the site or Services in violation of any other provision of these Terms.
1.4. Any future release, update or other change to the Services will be subject to the Terms. We and our suppliers and service providers reserve all rights not granted in the Terms.
1.5.Third-Party Materials.You may have access to materials that are hosted by another party as part of the Services. It is impossible for us to monitor such materials and you access them at your own risk.
2.1.Registration.You must register as a User and create an account with specific information about yourself or your company, as applicable (an “Account”) in order to access the Services. There is no charge to register for the Services. You must be at least eighteen (18) years old and legally permitted (and, if registering on behalf of an Employer, properly authorized by the Employer) to create an Account. We may accept or refuse any Account registration in our sole discretion. WE DO NOT PERFORM OR HAVE PERFORMED FORMAL BACKGROUND CHECKS AS PART OF THE ACCOUNT APPROVAL PROCESS; every Employer is responsible for performing its standard background checks regarding a Candidate as part of the hiring process. You are responsible for all activities that occur under your Account, including any unauthorized use of the Services by minors. You will not share your Account credentials with anyone or otherwise allow others to access your Account (except that multiple individuals registered under an Employer Account may share the User credentials for such Account) and will notify us immediately of any unauthorized use of your password or other breach of security. Each Candidate and Employer may only have one Account at any given time. You may not create an Account using false or misleading information, or if we have previously barred you from using the Services.
(a)Candidates.Candidate Accounts must include your name, contact information, current resume, and such other information as we may reasonably request, including employment history, work experience, professional skills and certifications, compensation expectations, and educational background. We may allow you to link your Account with a third party service such as LinkedIn (in which case you are solely responsible for complying with the terms of such third party service). We may review your Account information and any other information about you that is publicly available and may, in our sole discretion, accept or refuse your Account. You may use the Service to respond to Employer inquiries only after you receive notification from us that we have activated your Account. Candidates may prevent their current employer from accessing their information on the Service via Account settings. This feature works by matching the name of the Candidate’s current employer AS ENTERED INTO THE SERVICE BY THE CANDIDATE with the company name used by such Employer to register with the Service (if applicable). Candidates are responsible for ensuring that the name they enter exactly matches the name used by their employer in the Service.
(b)Employers.Employer Accounts must include a company profile, hiring manager contact information, the names of all authorized users of the Account, and such other information as we may reasonably request, including the roles you are actively recruiting for. We may allow you to link your account with a third party service such as LinkedIn (in which case you are solely responsible for complying with the terms of such third party service). We may review your Account information and any other information about you that is publicly available and may, in our sole discretion, accept or refuse your Account. You may use the Service to review Candidates’ profiles and reach out to Candidates who you would like to interview only after we notify you that we have activated your Account.
(a) You agree to provide true, accurate, current and complete information about yourself and / or your company when registering an Account and to keep such information updated and accurate for so long as you have an Account.
(b) Your Account information may be made available (i) to other Users as an essential part of the Services (i.e., in connection with Employer reviews of Candidates, and (ii) on publicly available portions of the Services, in which case the Account information displayed will not include compensation information and will otherwise reasonably limit the Personal Data available.
2.3.Necessary Equipment and Software.You are responsible for providing all equipment and software you need to access Services and for any fees, including Internet connection or mobile fees, that you incur when accessing the Services.
2.4.Use.You acknowledge that Rainmakers only provides a service that allows potential employers and employees to identify and communicate with each other and does not act as an agent or representative for either Candidates or Employers. Use of the Services does not create any contractual obligation on Candidates or Employers with respect to each: Employer interview requests do not bind the Employer to offer the Candidate a position; Candidates are not required to accept or respond to interview requests from Employers (though it is rude not to); and accepting an interview request does not oblige a Candidate to accept an offer of employment. You acknowledge that you are solely responsible for (a) the accuracy of Your Content, (b) validating the accuracy of any information provided by other Users, whether in Content they submit or through interviews arranged through the Services, and (c) for any employment decisions you make with respect to other Users. Only an executed offer letter, consulting agreement, or other document setting forth the terms under which a Candidate will perform services for an Employer (the “Employment Agreement” which, for the avoidance of doubt, may refer to agreements to retain a Candidate as either a full-time employee or a contractor) creates an obligation between a particular Candidate and Employer. Rainmakers is not a party to any Employment Agreement, is not responsible for Employment Agreements, and expressly disclaims any liability arising from any Employment Agreement. Employers are responsible for updating Rainmakers on the status of their communications with Candidates, including contract offers and acceptances.
3.1.Services.Except with respect to information in your Profile and any other information you post to the Services (“Your Content”), Rainmakers and our suppliers own all right, title and interest, including all intellectual property rights, in the Services. Without limiting the previous sentence, we own (a) all data about the use of the Services, including analytics and metrics at the individual Account level, and (b) all information that may not be used to identify individuals and Employers derived from Your Content, and we may use such information for our internal business purposes.
3.2.TrademarksThe Rainmakers logo and any related graphics, logos, service marks and trade names (collectively, “Marks”) used in connection with the Services are ours and may not be used without our permission for any other purpose. Other Marks that may appear on or in the Services, if applicable, are the property of their respective owners. You will not remove, alter or obscure any Mark or other proprietary rights notices in or related to the Services.
3.3.Your Content.You are solely responsible for Your Content that you post to or make available through the Services, and you grant us a fully-paid, royalty-free, worldwide, non-exclusive and fully sublicensable (including with respect to moral rights) license to use, reproduce and display such content (in whole, in part, or in combination with other material) (a) in order to provide the Services, and (b) for any other legitimate business purpose, subject to all applicable laws, provided that such purpose will not identify individuals or Employers. You represent and warrant that you own all rights in Your Content, have the rights required to grant us the license above to Your Content, and that Your Content does not infringe any third party’s intellectual property rights. You acknowledge that we are not required to use or display distribute Your Content and may, in our sole discretion, remove or delete any of Your Content from the Services at any time.
3.4.Third-Party Links & Ads.The site and/or Services may contain links to third-party websites and services, and/or display advertisements for third parties (collectively, “Third-Party Links & Ads”). Such Third-Party Links & Ads are not under our control, and we are not responsible for any Third-Party Links & Ads. ClipCall provides access to these Third-Party Links & Ads only as a convenience to you, and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third-Party Links & Ads. You use all Third-Party Links & Ads at your own risk, and should apply a suitable level of caution and discretion in doing so. When you click on any of the Third-Party Links & Ads, the applicable third party’s terms and policies apply, including the third party’s privacy and data gathering practices. You should make whatever investigation you feel necessary or appropriate before proceeding with any transaction in connection with such Third-Party Links & Ads.
3.5.Feedback.Any ideas, suggestions, documents, and/or proposals related to the Services you provide us through any means (“Feedback”) is at your own risk and we have no obligations with respect to such Feedback. You represent and warrant that you have all rights necessary to submit the Feedback and you hereby grant us a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sublicensable right and license to use the Feedback in our sole discretion.
4. User Conduct
4.1. You will not use the Services for any purpose that is prohibited by these Terms or applicable law. You will not attempt to initially contact Candidates or Employers of whom you have become aware through the Service outside the Service, and are required to regularly inform us via the site or email of the progress of your contacts with Candidates or Employers that occur outside of the Service (i.e., through direct email exchanges, interviews, etc.). You will only use Personal Data of other Users for the express purposes of the Services. In addition to the restrictions set forth in Section 1.3, you will not yourself or through a third party (a) take any action or (b) upload to the Services Your Content, that: (i) infringes any intellectual property rights, right of publicity or other right of any person or entity; (ii) is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy, tortious, obscene, or offensive; (iii) constitutes unauthorized or unsolicited advertising, junk or bulk e-mail; (iv) involves commercial activities and/or sales (such as contests, sweepstakes, barter, advertising, or pyramid schemes) without our prior written consent; (v) impersonates any person or entity, or (vi) interferes with or attempts to interfere with the proper functioning of the Services or use of the Services by any other user, host or network, including by means of overloading, “flooding,” “spamming,” “mail bombing,” or “crashing” the Services or elements thereof.
4.2. Although we do not generally monitor User activity, we may do so, and if we become aware of a potential violation of the Terms, we may investigate such incidents, and, in our sole discretion, take whatever steps we deem necessary to remedy such violation, including immediately terminating your Account. The Service automatically tracks all User activity, including with respect to viewing information about other Users, requesting interviews, etc. We may use this information to improve the Services and to enforce our rights under these Terms.
5. Fees and Payment
(a) A “Qualified Placement” means that, (i) within one (1) year of initially being presented with a Candidate in any search result, viewing a Candidate profile or otherwise learning about a Candidate via the Services, an Employer enters into an Employment Agreement with such Candidate, or (ii), after initially entering into an Employment Agreement for consulting or contractor services with a Candidate, an Employer enters into an Employment Agreement for full-time employment with such Candidate within one (1) year of the last date on which the Candidate performed services under the initial Employment Agreement.
(b) Each Candidate agrees to promptly (i) inform us of the receipt of any formal, accepted offer for a Qualified Placement, including the start date and key financial terms of the offer (and if, for whatever reason, the offer or the Candidate’s acceptance of it is rescinded), (ii) send us either (x) a fully executed copy of the Employment Agreement, or (y) the key financial terms of such Employment Agreement confirmed by the Employer (which may be via a form submitted within the Service or as we otherwise reasonably request), and (iii) where the Employment Agreement is for a full-time position, inform us if the Candidate, within ninety (90) days of his or her start date, is (1) terminated for unsatisfactory performance or (2) voluntarily resigns.
(c) Each Employer agrees that the notice requirements regarding Qualified Placements in the prior provision are an essential element of the Services, and irrevocably consents to the Candidate’s providing such information, provided, however, that where the Employer reasonably believes that the applicable Employment Agreement contains confidential information about the Employer that is not relevant to the Services, Employer will promptly cooperate with Candidate to nevertheless provide the key financial terms of the applicable Employment Agreement to Rainmaker as set forth above. All information and notice required of Candidates by this Section 5.1 may be provided by Employer, in which case we may verify the information with the Candidate at our sole discretion.
(a)General.Each Employer agrees that, promptly upon execution of an Employment Agreement for a Qualified Placement, the Employer will pay us a “Placement Fee” determined as follows:
(i) For full time employment, unless otherwise agreed by Rainmakers and a particular Employer in writing, Employer will pay Rainmakers twenty percent (20%) of the Candidate’s first year base salary within fifteen (15) days of the start date of such Candidate; and
(ii) For contractor or consulting services, unless otherwise agreed by Rainmakers and a particular Employer in writing, Employer will pay Rainmakers twenty percent (20%) of the gross fees committed to the Candidate under the applicable Employment Agreement as of its start date within fifteen (15) days of such start date. Where the Candidate performs additional services for such Employer within twelve months of the start date of the applicable Employment Agreement (either under the initial Employment Agreement or another agreement) all obligations of this Section 5 respecting notice and payment will apply.
(iii) Where a Candidate’s initial Qualifying Placement with an Employer is for contractor or consulting services and the Candidate is later hired on a full-time basis by such Employer within one (1) year of the conclusion of such contractor or consulting services, the Placement Fee due related to such full-time placement will be reduced by the total amount of Placement Fees previously paid by Employer to Rainmakers for the prior Qualifying Placement(s).
(b)MATERIALITY.THE EMPLOYER’S PAYMENT OF PLACEMENT FEES IS RAINMAKER’S SOLE COMPENSATION FOR PROVIDING THE SERVICES, AND IF YOU ARE AN EMPLOYER YOU AGREE TO PAY PLACEMENT FEES AS SET FORTH HEREIN AS A CONDITION OF YOUR ACCESS TO THE SERVICES. IF YOU DO NOT CONSENT TO PAYMENT OF PLACEMENT FEES, YOU MAY NOT ACCESS THE SERVICES.
(c)Exceptions.Where, prior to viewing a Candidate’s information via the Service, an Employer had (i) received the resume of such Candidate from a third party to which Employer has an obligation to pay a fee similar to the Placement Fee, or (ii) already contacted such Candidate directly to discuss potential employment, (an “Exempt Candidate”) then the Employer will not owe us a Placement Fee for an engagement with such Candidate that would otherwise be a Qualifying Placement. If you are an Employer, you agree to promptly (and in any event within less than three (3) business days of first viewing the Candidate information via the Services) inform us in writing of the potential Exempt Candidate and provide reasonable evidence documenting the existence of the conditions set forth above. We will respond within three (3) business days to acknowledge the exemption or request additional information if needed to verify such Candidate’s status as exempt. The Parties will use good faith efforts to resolve any disputes about potential Exempt Candidates, but we will have sole, reasonable discretion over the final determination of an Exempt Candidate.
(d)Refunds.Where a Candidate either (i) is terminated for unsatisfactory performance or (ii) voluntarily resigns from, a Qualified Placement for full-time employment within ninety (90) calendar days of the start date of the applicable Employment Agreement, then, upon written receipt and confirmation of such event, we will refund the Placement Fee (if already received) paid by Employer for such Qualified Placement within thirty (30) days of confirmation. Refunds are not available for Placement Fees paid for Employment Agreements for consulting or contracting agreements, for terminations related to a reduction in force or equivalent measures taken by Employer, or for any resignation or termination that occurs more than ninety (90) calendar days following the start date of the applicable Employment Agreement, regardless of the reason for such termination or resignation.
5.3.Referral Fees.There is never any fee owed by a Candidate for his or her use of the Services. We will pay a “Referral Fee” to a Candidate who refers another individual to Rainmakers and that individual (a) obtains employment with an Employer who pays us a Placement Fee and (b) remains so employed more than ninety (90) days after the start date of the applicable Employment Agreement). Referral fees will be paid within 120 days of the qualifying Candidate’s start date with their applicable Employer.
5.4.Tax.To the extent that any payments for the Services are subject to any sales or use tax, or any equivalent tax measured by sales proceeds that we are permitted to pass through to our customers in any jurisdiction (“Sales Tax”) and you have not remitted the applicable Sales Tax to us, you will be responsible for the payment of such Sales Tax and any related penalties or interest, and you will indemnify us for any liability or expense we may incur in connection with such Sales Tax. Upon our request, you will provide us with official receipts issued by the appropriate taxing authority, or other such evidence that you have paid all applicable taxes. All Placement Bonuses are “Miscellaneous Income” as that term is defined by the Internal Revenue Service, will be paid in full to Candidates and reported to the IRS on 1099-Misc. forms.
6. Indemnification and Liability
6.1.Indemnification.You will indemnify, defend and hold us, our affiliates, if any, and our officers, directors, employees and agents (the “Indemnified Parties”) harmless from any claims, demands, actions, costs, liabilities, losses and damages of any kind (including attorney's fees) resulting from: (a) your use, misuse or abuse of the Services; or (b) Your Content. You will reasonably cooperate in our defense of any claim. We may, at our own expense, assume the exclusive defense and control of any matter otherwise subject to indemnification by you, and you will not settle any matter without our written consent. This provision does not apply to any unconscionable commercial practice or for fraud, deception, false promise, misrepresentation or concealment, suppression or omission of any material fact by any Indemnified Party in connection with the Services.
6.2.DISCLAIMER.YOU ACKNOWLEDGE THAT YOU ARE USING THE SERVICES AT YOUR OWN RISK. THE SERVICES ARE PROVIDED “AS IS,” AND TO THE FULLEST EXTENT PERMITTED BY LAW, RAINMAKERS EXPRESSLY DISCLAIMS ANY WARRANTIES, EXPRESS AND IMPLIED, INCLUDING ANY WARRANTIES OF ACCURACY, COMPLETENESS OR RELIABILITY, TITLE, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. WE DO NOT REPRESENT OR WARRANT THAT ACCESS TO THE SERVICES WILL BE UNINTERRUPTED OR THAT THERE WILL BE NO FAILURES, ERRORS OR OMISSIONS, OR LOSS OR SECURITY BREACH OF TRANSMITTED INFORMATION, OR THAT NO VIRUSES WILL BE TRANSMITTED THROUGH ACCESS TO OR USE OF THE SERVICES.
6.3.LIMITATION OF LIABILITY.WE WILL NOT BE LIABLE TO YOU OR ANY THIRD PARTIES FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES ARISING OUT OF THESE TERMS, YOUR ACCESS TO OR INABILITY TO ACCESS THE SERVICES, INCLUDING FOR VIRUSES ALLEGED TO HAVE BEEN OBTAINED FROM THE SERVICES, YOUR USE OF OR RELIANCE ON THE SERVICES OR MATERIALS AVAILABLE THROUGH THIRD PARTY SITES LINKED TO SITE, REGARDLESS OF THE TYPE OF CLAIM OR THE NATURE OF THE CAUSE OF ACTION, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT WITH RESPECT TO REFUNDS DUE TO EMPLOYERS PURSUANT TO SECTION 5.2(d), UNDER NO CIRCUMSTANCES WILL WE BE LIABLE TO YOU FOR MORE THAN ONE HUNDRED DOLLARS ($100.00). ANY CAUSE OF ACTION RELATED TO THE TERMS OR SERVICES MUST COMMENCE WITHIN ONE (1) YEAR AFTER IT ACCRUES OR SUCH CAUSE OF ACTION WILL BE PERMANENTLY BARRED. THE FOREGOING LIMITATIONS OF LIABILITY APPLY TO THE FULLEST EXTENT ALLOWED BY LAW.
6.5.Rainmakers Defined.For purposes of this Section 6 only, “Rainmakers,” “we,” or “our” includes our affiliates and subsidiaries, if any, and our third party service providers, suppliers, and vendors.
7. Term and Termination
7.1.General.The Terms commence on the earlier of the date when you accept them (as described in the preamble above), or the date you first used the Services, and remain in effect while you use the Services. Either Party may terminate these Terms, for any or no reason, immediately upon notice to the other Party. We may provide such notice via the site or by email to the address included in the User Information of your Account. You may provide such notice by email to firstname.lastname@example.org or by cancelling on your Account in the administration settings.
7.2.Effect of Termination.Termination of your Account will remove access to all Services, and we will also delete all information associated with your Account, subject to the license rights granted in Section 3.3, and provided that we may retain such information solely to the extent required to ensure compliance with the payment obligations that survive termination pursuant to this Section 7.2. We will have no liability for the consequences of any suspension or termination of your Account pursuant to these Terms, including for deletion of Your Content. All provisions of the Terms which by their nature should survive termination of the Services, including ownership provisions, indemnification obligations, payment obligations for Qualified Placements that occur following termination, warranty disclaimers, and limitation of liability, will do so.
7.3.No Subsequent Registration.If we terminate your Account for your violation of the Terms, you will not attempt to re-register with or access the Services through creation of a new Account or otherwise. If you violate the immediately preceding sentence, we may, in our sole discretion, immediately take any of the actions set forth herein without advance notice to you.
8. Jurisdiction, Governing Law and Dispute Resolution.These Terms, for all purposes, will be governed and interpreted according to the laws of the State of California without giving effect to its conflicts of laws provisions that would require a different result.
8.1. Any dispute that may not be brought in small claims court will be resolved by binding and confidential arbitration conducted before one commercial arbitrator from the American Arbitration Association (“AAA”) with substantial experience in resolving commercial contract disputes and governed by the AAA’s Commercial Arbitration Rules and, if the arbitrator deems them applicable, the AAA’s Supplementary Procedures for Consumer Related Disputes (collectively “Rules and Procedures”).
(a) YOU ARE GIVING UP YOUR RIGHT TO GO TO COURT FOR ANY DIPUTE ARISING UNDER THESE TERMS EXCEPT FOR MATTERS THAT MAY BE TAKEN TO SMALL CLAIMS COURT. 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.
(b) ANY CLAIMS BROUGHT BY EITHER PARTY MUST BE BROUGHT IN THE PARTIES’ INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING, AND 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) The arbitration award will be final and binding upon the parties without appeal or review except as permitted by State of California law or United States federal law.
(d) Notwithstanding the foregoing (i) either party may bring an individual action in small claims court, and (ii) claims of (A) defamation, (B) violation of the Computer Fraud and Abuse Act, or (C) infringement or misappropriation of the other party’s intellectual property rights may be exclusively brought in the state or federal courts located in the San Francisco County, California, and the Parties agree to submit to the exclusive personal jurisdiction of such courts for such purpose. A request for equitable relief will not be deemed a waiver of the right to arbitrate.
8.2. With the exception of Section 8.1(b), if any part of Section 8.1 is deemed to be invalid or unenforceable for any reason, then the balance of Section 8.1 will remain in effect. If, however, Section 8.1(b) is found to be invalid or unenforceable for any reason, then Section 8.1 will be null and void, neither party will be entitled to arbitration, and any claims relating to the Terms or Services will be exclusively brought in the state or federal courts located in San Francisco County, California.
9.1.Electronic Communications and Notice.You consent to receive operational communications from us electronically, including via email, text (if you have provided your cell phone number in connection with the Services) or our posting of notices on the site. You may cancel the Services as set forth in Section 7.1. Communications intended to have legal effect should be sent to 1110 Montgomery St., San Francisco, CA 94133 by personal delivery, certified mail (postage pre-paid, return receipt requested), or a commercial courier requiring signature for delivery, and will be effective on receipt or when delivery is refused.
9.2.International Users.he Services can be accessed from countries around the world and may contain references to Services that are not available in your country. These references do not imply that we intend to announce such Services in your country. We control and offer the Services from our facilities in the United States of America. We make no representations that the Services are legal, appropriate or available for use in other locations.
9.3.Assignment.The Terms, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated or otherwise transferred by you without our prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.
9.4.Force Majeure.We will not be liable for any delay or failure to perform resulting from causes outside our reasonable control, including 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.
9.5.Severability.If one or more portions of these Terms is held to be unenforceable, the remaining portions will remain in full force and effect.
9.6.Headings and Construction.The headings used throughout these Terms are solely for convenience of reference and are not to be used as an aid in the interpretation of the Terms. As used herein, “may” means “has the right, but not the obligation to,” “including” means “including, without limitation,” and “will” means “is required to.
9.7.Waiver.If we fail to enforce any provision of these Terms, it will not be considered consent to a breach of such provision or a waiver of our right to enforce such provision in the future.
9.8.Entire Agreement.These Terms make up the entire agreement between you and us regarding the Services and supersede any prior agreements.
If you have any questions about these terms, contact us at email@example.com.