Thank you for your interest in tilr Corporation, a Delaware corporation (“TILR”). TILR provides Clients with a fully automated recruitment process by matching worker skills to job requirements (the “Platform”).
a. TILR Automated Recruitment Platform. The Platform is a communications platform for enabling the connection between persons seeking to obtain services (“you” or the “Client”) and/or individuals seeking to provide services (“Members”). Clients and Members may also be generally referred to as “Users.” Your use of the Platform and the TILR Web Site is the “Service” provided to you by TILR. Those certain services requested by the Client, which are to be completed by the Members, are hereinafter referred to as the “Member Services.” The provision of all Member Services is up to the Members, scheduled through use of the Platform. TILR, THROUGH THE PLATFORM, OFFERS INFORMATION AND A METHOD TO OBTAIN SUCH MEMBER SERVICES, DOES NOT AND WILL NOT PROVIDE SUCH MEMBER SERVICES ITSELF, AND EXPRESSLY DISCLAIMS ANY RESPONSIBILITY OR LIABILITY FOR ANY MEMBERS SERVICES PROVIDED TO THE CLIENT, INCLUDING, BUT NOT LIMITED TO, A WARRANTY OR CONDITION OF GOOD AND WORKMANLIKE SERVICES, WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE OR COMPLIANCE WITH ANY LAW, REGULATION, OR CODE.
BY USING THE PLATFORM, YOU AGREE TO HOLD TILR HARMLESS FROM ANY LIABILITIES OR LOSSES THAT MIGHT ARISE OUT OF THE THIRD-PARTY OR MEMBER SERVICES. TILR IS NOT RESPONSIBLE FOR THE CONDUCT, WHETHER ONLINE OR OFFLINE, OF ANY USER (INCLUDING MEMBERS OR
CLIENTS), AND WILL NOT BE LIABLE FOR ANY CLAIM, INJURY, OR DAMAGE ARISING IN CONNECTION WITH ANY THIRD-PARTY OR MEMBER SERVICES.
2. ACKNOWLEDGMENT AND ACCEPTANCE
a. Legal Agreement. These TILR CLIENT TERMS OF SERVICE (the “Terms”) constitute a legal agreement between TILR and the Client regarding the Client’s access or use of the Platform through the TILR Web Site and Client’s receipt of the Service.
b. Digital Signature. By registering for an account on the TILR Web Site or Platform (an “Account”), or by clicking to accept the Terms when prompted on the TILR Web Site, you are deemed to have read, understood, acknowledged, and agreed to, these Terms electronically, effective on the date you register your Account or click to accept these Terms pursuant to the Ohio Uniform Electronic Transactions Act (Ohio Rev. Code § 1306.01 et seq.). Your Account registration constitutes an acknowledgement that you are able to electronically receive, download, and print these Terms, and any amendments.
3. CHANGES TO TERMS
TILR may revise and update these Terms from time to time in its sole discretion. Unless stated otherwise, all changes are effective upon notice and apply to all access to and use of the Service. Your continued use of the Service following posting of any revised Terms means that you accept and agree to the changes. However, any changes to the dispute resolution provisions set forth in Section 19 will not apply to any disputes for which the parties have actual notice on or prior to the date the change is posted on the TILR Web Site or any other location on the Platform.
4. CLIENT ACCOUNTS
a. To use the Platform or TILR Web Site you must register for an Account. To register for an Account, you must be, and hereby represent that you are a legal entity qualified to do business in one or more states. TILR reserves the right, in its sole discretion, to refuse, suspend, or revoke your access to the Platform or TILR Web Site upon discovery that any information you provided on any Document or posted on the Platform or TILR Web Site is not true, accurate, or complete, or such information or other conduct otherwise violates these Terms, or for any other reason or no reason in TILR’s sole discretion.
b. You agree not to share, resell, assign, transfer or sublicense your access to the TILR Web Site, Platform or your Account to any third party. You agree and understand you are responsible for maintaining the confidentiality of your password which, together with your e-mail address (your “Login Credentials”), allows you to access your Account. You agree to immediately notify us at email@example.com if you become aware of any actual or suspected unauthorized use of your Login Credentials or any other breach of security related to your Account. We are not liable for any loss or damage arising from your failure to comply with the foregoing. YOU ARE ENTIRELY RESPONSIBLE FOR ALL ACTIVITIES TAKING PLACE THROUGH YOUR ACCOUNT, whether or not you or any other Person undertakes such activities.
5. REPRESENTATIONS AND WARRANTIES
a. You: (i) will use the Service exclusively for the purpose of reviewing, evaluating and soliciting Members for Member Services; (ii) are now and will in the future be in compliance with all applicable Laws, including any Laws related to employment and taxes, in connection with any use of the Service, the engagement of any Member, or otherwise; (iii) will ensure all content of any Document you post to the Service is accurate and complete in all respects; (iv) have read, understood, and agreed to act in accordance with the tilr Code; and (v) will comply with these Terms.
b. You will not post any Document to the TILR Web Site or Platform that contains: (i) URLs or links to web sites other than to recruitment related pages on your company web site (unless otherwise agreed in writing); (ii) copyrighted material (unless you own the copyright or have the owner’s permission to post the copyrighted material, subject to Section 14 herein); (iii) trade secrets (unless you own them or have the owner’s permission to post them); (iv) material that infringes on or misappropriates any other intellectual property rights, or violates the privacy or publicity rights of others; (v) irrelevant keywords or white text keywords (including any words embedded in the Document and hidden from the User); (vi) anything that is discriminatory, sexually explicit, obscene, libelous, defamatory, threatening, harassing, abusive, or hateful; or (vii) anything that is embarrassing or offensive to another person or entity.
c. You will not use a Document to: (i) post false, inaccurate, or misleading information, opinions, or notices (commercial or otherwise) or chain letters; or (ii) post advertisements or solicitations of your business (other than for recruiting purposes pursuant to these Terms).
d. Your Documents will contain sufficient detail to convey clearly to Users the nature and requirements of the job opportunities posted.
e. Your job postings will describe individual openings for independent contractors and, where applicable, traditional employees. You will not advertise multiple job openings in a single posting.
6. EMPLOYMENT CLASSIFICATION
TILR is not an employer of Members. The Client may seek Member Services through the use of the Service. The Service may provide the Client with Members to consider for Member Services based on the information the Client provides TILR regarding the Client’s needs and preferences. However, if Client agrees to engage the Member for Member Services, such agreement is
solely between the Client and each such Member. Client is responsible and assumes all Liability for determining whether Members are independent contractors or employees and engaging them accordingly.
These Terms do not create a partnership or agency relationship between TILR and any User. Users do not have authority to enter into written or oral (whether implied or express) contracts on behalf of TILR.
8. LINKS TO OTHER SITES
The Service may link to or may be accessed in connection with external sites. These links or the ability to access other external sites from the Service are provided for your convenience only and do not constitute an endorsement by TILR of such sites or their content, products, or other materials. You access such external sites at your own risk. It is your responsibility to evaluate the content and usefulness of the information obtained from external sites. TILR has no control over the content of any external sites and accepts no responsibility for them or for any loss or damage that may arise from your use of them. If you decide to access any external sites linked to or otherwise accessible from the Service, you do so entirely at your own risk and subject to the terms and conditions of use and privacy policies for such external sites. You agree to hold TILR harmless from any Loss or Liability that may result from the use of any links or access to external sites that may appear on the Service.
9. Order Form.
a. Our order form may be completed and placed in various ways, among which, an online form or in-product screens or any other mutually agreed upon offline form delivered by Customer or any of the other Users to monday.com,
including via mail, email or any other electronic or physical delivery mechanism (the “Order Form”). Such Order Form will list, at the least, the Service ordered, subscription plan, term and the associated fees.
b. Subscription Term. The Service is provided on a subscription basis for the term specified in your Order Form, in accordance with the respective subscription plan purchased under such Order Form (the “Subscription Term” and the “Subscription Plan”, respectively, and collectively the “Subscription”).
c. Subscription Fees. In consideration for the provision of the Service (except for Trial service), Customer shall pay us the applicable fees per the purchased Subscription, as set forth in the applicable Order Form (the “Subscription Fees”). Unless indicated otherwise, Subscription Fees are stated in US dollars. Customer hereby authorizes us, either directly or through our payment processing service, to charge such Subscription Fees via Customer’s selected payment method, upon due date. Unless expressly set forth herein, the Subscription Fees are non-cancelable and non-refundable. We reserve the right to change the Subscription Fees at any time, upon notice to Customer if such change may affect Customer’s existing subscriptions upon renewal. In the event of failure to collect the Fees owed by Customer, we may, at our sole discretion (but shall not be obligated to) retry to collect at a later time, and/or suspend or cancel the Account, without notice.
d. Taxes. The Subscription Fees are exclusive of any and all taxes (including without limitation, value added tax, sales tax, use tax, excise, goods and services tax, etc.), levies, or duties, which may be imposed in respect of these Terms and the purchase or sale, of the Service hereunder (the “Taxes”), except for Taxes imposed on our income. If Customer is located in a jurisdiction which requires Customer to deduct or withhold Taxes or other amounts from any amounts due to us, please notify us, in writing, promptly and we shall join efforts to avoid any such Tax withholding, provided, however, that in any case, Customer shall bear the sole responsibility and liability to pay such Tax and
such Tax should be deemed as being added on top of the Subscription Fees, payable by Customer.
e. Subscription Upgrade. During the Subscription Term, Customer may upgrade its Subscription Plan by either: (i) adding Authorized Users; (ii) upgrading to a higher type of Subscription Plan; (iii) adding add-on features and functionalities; and/or (iv) upgrading to a longer Subscription Term(collectively, “Subscription Upgrades”). Some Subscription Upgrades or other changes may be considered as a new purchase, hence will restart the Subscription Term and some won’t, as indicated within the Service and/or the Order Form. Upon a Subscription Upgrade, Customer will be billed for the applicable increased amount of Subscription Fees, at our then-current rates (unless indicated otherwise in an Order Form), either: (1) prorated for the remainder of the then-current Subscription Term, or (2) whenever the Subscription Term is being restarted due to the Subscription Upgrade, then the Subscription Fees already paid by Customer will be reduced from the new upgraded Subscription Fees, and the difference shall be due and payable by Customer upon the date on which the Subscription Upgrade was made.
f. Adding Users. Customer acknowledges that unless it disabled these options: (i) Users within the same email domain will be able to automatically join the Account; and (ii) Users within Customer’s Account may invite other persons to be added to the Account as Users (collectively, “Users Increase”). For further information on these options and how to disable them, visit our Help Center. Unless agreed otherwise in an Order Form, any changes to the number of Users within a certain Account, shall be billed on a prorated basis for the remainder of the then-current Subscription Term. We will bill Customer, either upon the Users Increase or at the end of the applicable month, as communicated to Customer.
g. Excessive Usage. We shall have the right, including without limitation where we, at our sole discretion, believe that Customer and/or any of its Users, have misused the Service or otherwise use the Service in an excessive manner
compared to the anticipated standard use (at our sole discretion), to offer the Subscription in different pricing and/or impose additional restrictions as for the upload, storage, download and use of the Service, including, without limitation, restrictions on Third Party Services, network traffic and bandwidth, size and/or length of content, quality and/or format of content, sources of content, volume of download time, etc.
h. Billing. As part of registering, or submitting billing information, to the Service, Customer agrees to provide us with updated, accurate and complete billing information, and Customer authorizes us (either directly or through our affiliates, subsidiaries or other third parties) to charge, request and collect payment (or otherwise charge, refund or take any other billing actions) from Customer’s payment method or designated banking account, and to make any inquiries that we may consider necessary to validate Customer’s designated payment account or financial information, in order to ensure prompt payment, including for the purpose of receiving updated payment details from Customer’s credit card company or banking account (e.g., updated expiry date or card number as may be provided to us by Customer’s credit card company).
i. ACH Authorization. If Client chooses to make payment by ACH transfer, the following terms apply:
(1) You hereby authorize TILR to electronically debit and, if necessary, electronically credit your designated bank account via ACH for such fees pursuant to these Terms, and you agree to comply with the ACH rules issued by the National Automated Clearing House Association (NACHA) and all applicable laws, including, but not limited to, the federal Bank Secrecy Act, the U.S.A. Patriot Act, and economic sanctions overseen by the Office of Foreign Assets Control (OFAC). Your authorization for ACH transfers contained in this Section 9 will remain in full force and effect until you notify TILR that you wish to revoke your authorization by removing your bank account information from your Account or by contacting TILR at support@TILR.com. You understand
that TILR requires at least one (1) business day’s prior notice in order to cancel your authorization for ACH transfers contained in this Section 9.
(2) If you save your card account or bank account information in your Account, you must notify TILR of any change in such account information at least five (5) business days before any payment due date by updating your account information in your Account or by contacting TILR at support@TILR.com.
(3) You may view a history of your Account transactions by logging in to the TILR Web Site. You are solely responsible for promptly reconciling your Account transaction history with the transaction records for your card or bank account. You must notify us of any errors or discrepancies in your Account transaction history (each, an “Error”) within 30 days of when the Error could be viewed in your Account transaction history on the TILR Web Site. If you do not notify us of an Error within 30 days of when the Error could be viewed in your Account transaction history on the TILR Web Site, you will forfeit the right to contest the Error, except to the extent such forfeiture is prohibited by applicable law or the NACHA rules, if applicable.
(4) TILR may, at any time and in its sole discretion, terminate your right to make payment by ACH transfer.
j. Subscription Auto-Renewal. In order to ensure that Customer will not experience any interruption or loss of services, Customer’s Subscription includes an automatic renewal option by default, according to which, unless Customer disables the auto-renewal option or cancels its Subscription prior to its expiration, the Subscription will automatically renew upon the end of the then applicable Subscription Term, for a renewal period equal in time to the original Subscription Term (excluding extended periods) and, unless otherwise notified to Customer, at the same price (subject to applicable Tax changes and excluding any discount or other promotional offer provided for the first Subscription Term). Accordingly, unless either Customer or us cancel
the Subscription prior to its expiration, we will attempt to automatically charge Customer the applicable Subscription Fees upon or immediately prior to the expiration of the then applicable Subscription Term. If Customer wishes to avoid such auto-renewal, Customer shall cancel its Subscription (or disable the auto-renewal option), prior to its expiration, at any time through the Account settings or by contacting our Customer Success team. Except as expressly set forth in these Terms, in case a Customer cancels its Subscription, during a Subscription Term, the Subscription will not renew for an additional period, but Customer will not be refunded or credited for any unused period within the Subscription Term.
k. Discounts and Promotions. Unless expressly stated otherwise in a separate legally binding agreement, if Customer received a special discount or other promotional offer, Customer acknowledges that upon renewal of its Subscription, monday.com will renew such Subscription, at the full applicableSubscription Fee at the time of renewal.
l. Credits. Any credits that may accrue to Customer’s Account, for any reason (the “Credits”), will expire and be of no further force and effect, upon the earlier of: (i) the expiration or termination of the applicable Subscription under the Account for which such Credits were given; or (ii) in case such Credits accrued for an Account with a Trial Subscription (as defined below) that was not upgraded to a Subscription Plan, then upon the lapse of 90 days of such Credits’ accrual. Unless specifically indicated otherwise, Credits may be used to pay for the Services only and not for any Third Party Service or other payment of whatsoever kind. Whenever fees are due for any Services, accrued Credits will be first reduced against the Subscription Fees and the remainder will be charged from Customer’s respective payment method. Credits shall have no monetary value (except for the purchase of Services under the limited terms specified herein) nor exchange value, and will not be transferable or refundable.
m. Payment through Reseller. If Customer purchased a Service from a reseller or distributor authorized by us (“Reseller”), then to the extent there is any conflict between these Terms and the agreement entered between Customer and the respective Reseller, including any purchase order for (“Reseller Agreement”), then, as between Customer and monday.com, these Terms shall prevail. Any rights granted to Customer and/or any of the other Users in such Reseller Agreement which are not contained in these Terms, apply only in connection with the Reseller. In that case, Customer must seek redress or realization or enforcement of such rights solely with the Reseller and not monday.com. For clarity, Customer’s and its Users’ access to the Service is subject to our receipt from Reseller of the payment of the applicable Fees paid by Customer to Reseller. Customer hereby acknowledges that at any time, at our discretion, the billing of the Subscription Fees may be assigned to us, such that. Customer shall pay us directly the respective Subscription Fees.
n. Free trial. This offer (“30-Days Free Trial Offer”), which is made to you by tilr corporation (tilr), entitles you the tilr Free Service for a period of thirty (30) days from the moment that you activate such trial period by submitting your payment details (the “Free Trial Period”). By submitting your payment details, you accept the New 30-Days Free Trial Offer and (i) consent to us using your payment details, (ii) acknowledge and agree to tilr Terms and Conditions of Use and these tilr Free Trial Terms and Conditions. If you decide that you do not want to become a paying user of the tilr Free Service upon the lapse of the Free Trial Period, you have to terminate your tilr account (by emailing firstname.lastname@example.org)) by the end of the Free Trial Period. You may only use this Free tilr Service once. tilr reserves the right, in its absolute discretion, to withdraw or to modify the Free Trial Offer at any time without prior notice and with no liability.
In accessing and using the Service, you agree to abide by the following rules, restrictions and limitations:
a. You will not use any data mining software, robots, spiders or similar data gathering and extraction tools to access, acquire, copy, monitor, retrieve, index, “scrape,” “data mine,” or in any way gather Content or data from the Service or otherwise circumvent the navigational structure or presentation of the Service;
b. You will not disseminate or transmit viruses, worms, Trojan horses, keyboard loggers, time bombs, spyware, adware, cancelbots, passive collection mechanisms, or any other malicious or invasive code or program or upload or transmit (or attempt to upload or to transmit) any material that acts as a passive or active information collection or transmission mechanism, including, without limitation, clear GIFs, single pixel GIFs, pixel tags, web beacons, action tags, web bugs, cookies, or other similar devices;
c. You will not attempt to decipher, decompile, disassemble, or reverse-engineer any of the software comprising or in any way making up a part of the Service;
d. You will not use the Service in any manner that could damage, disable, overburden, impair or otherwise interfere with or disrupt the TILR Web Site, Platform, or any networks or security systems of TILR or its Third-Party Service providers, or otherwise interfere with other Users’ use of the Service;
e. You will not interfere with or circumvent any security feature or any feature that restricts or enforces limitations on the use of, or access to, the Service;
f. You will not probe, scan, or test the vulnerability of any system or network or breach or circumvent any security or authentication measures of the Service; and
g. You will not remove, change or obscure any copyright, trademark notice, trademark, hyperlink or other proprietary rights notices contained within the Service.
11. TERM AND TERMINATION
Unless otherwise agreed in a writing signed by Client and TILR, these Terms apply unless and until Client deletes its Account, ceases all access or use of the Service, and stops receiving all Services (a “Termination”). Even after a Termination, these Terms apply to any receipt of Member Services obtained through the Service and will continue until the Member Services are performed in full or otherwise terminated.
12. INTELLECTUAL PROPERTY
a. You hereby grant to TILR a non-exclusive, royalty-free, fully paid-up, right and license to use Client Data for the purposes of providing you with the Service. You represent and warrant that you are the exclusive owner of the Client Data or have all rights and licenses necessary to grant the rights to the Client Data that you have granted to TILR in these Terms without the need to obtain any third-party consents or permissions.
b. The Service (including the underlying technology, systems and software comprising the TILR Web Site and Platform) are protected by copyright, trademark, patent, and/or other proprietary rights and Laws. Subject to your compliance with these Terms, and solely for so long as you are permitted by TILR to access and use the Service, TILR grants to you a limited, revocable, non-exclusive, non-transferable right to access and use the Service for your use only. Unless expressly granted to you in these Terms, TILR and its licensors reserve and retain all right, title and interest (including all intellectual property rights) in and to: (i) the Service; and (ii) the technology, systems and software used to provide the Service.
c. You further understand and agree that TILR owns and has the right to collect, extract, compile, synthesize, and analyze Aggregate Data and Usage Data. TILR may use such Aggregate Data or Usage Data for any lawful business purpose without a duty of accounting to you or any User, provided
that the data and information is used only in an aggregated and anonymized form so that it cannot be identifiable as relating to Client or any individual Users.
13. PLATFORM FEEDBACK
TILR does not accept or consider creative ideas, suggestions, inventions or materials other than those which it has specifically requested. If you submit feedback on the Platform or the TILR Web Site, such feedback should not include any creative ideas, inventions, suggestions, or materials. TILR has adopted this policy to avoid confusion and misunderstandings in case your ideas, suggestions, or other materials are like ones that we have developed (or may develop) independently. Therefore, we are not responsible for any ideas, suggestions, or materials submitted to us. If, despite this notice, you send TILR creative suggestions, ideas, drawings, concepts, inventions, or other information (a “Client Submission”), you understand and agree that TILR is free to use these ideas, suggestions, or other materials in any way that it may deem fit without any Liability or payment of any kind to you. Client Submissions and any elements contained in a Client Submission will not be subject to any obligation of confidentiality on TILR’s part, and TILR will not be liable for any use or disclosure of any Client Submission.
14. COPYRIGHT COMPLAINTS
a. Copyright Policy. TILR takes claims of copyright infringement seriously and will respond to notices of alleged copyright infringement that comply with applicable law. If you believe any materials accessible on or from the TILR Web Site or Platform infringe your copyright, you may request removal of those materials (or access to them) from the TILR Web Site or Platform by submitting written notice to our Copyright Agent designated below.
b. Notice to TILR. In accordance with the Online Copyright Infringement Liability Limitation Act of the Digital Millennium Copyright Act (17 U.S.C. §
512) (“DMCA”), the written notice (the “DMCA Notice”) must include substantially the following: (i) your physical or electronic signature; (ii) identification of the copyrighted work you believe to have been infringed or, if the claim involves multiple works on the TILR Web Site or Platform, a representative list of such works; (iii) identification of the material you believe to be infringing in a sufficiently precise manner to allow us to locate that material; (iv) adequate information by which we can contact you (including your name, postal address, telephone number, and, if available, email address); (v) a statement that you have a good faith belief that use of the copyrighted material is not authorized by the copyright owner, its agent, or the law; a statement that the information in the DMCA Notice is accurate; and (vi) a statement, under penalty of perjury, that you are authorized to act on behalf of the copyright owner. If you fail to comply with all of the requirements of Section 512(c)(3) of the DMCA, your DMCA Notice may not be effective. Please be aware that if you knowingly materially misrepresent that material or activity on the TILR Web Site or Platform is infringing your copyright, you may be held liable for damages (including costs and attorneys’ fees) under Section 512(f) of the DMCA.
c. Copyright Agent. DMCA Notices must be delivered to our designated Copyright Agent:
308 East 8th Street, 3rd Floor Cincinnati, OH 45202 email@example.com
d. Repeat Infringers. It is TILR’s policy in appropriate circumstances to disable and/or terminate the Account of Users who are repeat infringers.
THE TILR WEB SITE AND PLATFORM ARE PROVIDED TO YOU ON AN “AS-IS” AND “AS AVAILABLE” BASIS AND THE USE THEREOF IS AT YOUR SOLE RISK. TILR MAKES NO, AND HEREBY DISCLAIMS, ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, NONINFRINGEMENT, AND TITLE WITH RESPECT TO THE TILR WEB SITE AND PLATFORM, TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW. TILR DOES NOT WARRANT THAT: (A) THE SERVICES (OR THE RESULTS OBTAINED FROM THE USE THEREOF) WILL BE TIMELY, ERROR-FREE, SECURE OR UNINTERRUPTED; (B) THE SERVICES WILL MEET YOUR REQUIREMENTS; OR (C) ANY ERRORS OR MALFUNCTIONS IN THE TILR WEB SITE OR PLATFORM WILL BE CORRECTED. TILR IS NOT LIABLE IN THE EVENT OF ANY UNAUTHORIZED ACCESS TO OR USE OF THE TILR WEB SITE OR PLATFORM, ANY INTERRUPTION, SUSPENSION OR CESSATION OF ACCESS TO THE TILR WEB SITE OR PLATFORM, OR ANY BUGS, VIRUSES, TROJAN HORSES, OR OTHER HARMFUL OR MALICIOUS CODE WHICH MAY BE TRANSMITTED THROUGH THE TILR WEB SITE OR PLATFORM BY ANY THIRD PARTY. TILR MAKES NO REPRESENTATIONS, WARRANTIES OR GUARANTEES, EXPRESS OR IMPLIED, REGARDING THE ACCURACY, RELIABILITY OR COMPLETENESS OF THE CONTENT MADE AVAILABLE ON THE TILR WEB SITE OR THE PLATFORM.
16. LIMITATION OF LIABILITY
TILR IS IN NO EVENT RESPONSIBLE OR LIABLE TO YOU OR TO ANY THIRD PARTY, WHETHER UNDER CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, INDEMNITY OR OTHER THEORY, FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, LIQUIDATED OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF PROFIT, REVENUE OR BUSINESS, COST OF SUBSTITUTE PROCUREMENT, ARISING IN WHOLE OR IN PART FROM YOUR USE OF (OR INABILITY TO USE) THE SERVICES OR ANY PORTION THEREOF, EVEN IF TILR
HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. UNDER NO CIRCUMSTANCES IS TILR LIABLE FOR ANY DELAY OR FAILURE IN PERFORMANCE RESULTING DIRECTLY OR INDIRECTLY FROM ANY CAUSES BEYOND ITS REASONABLE CONTROL, INCLUDING, WITHOUT LIMITATION, INTERNET OR OTHER NETWORK (INCLUDING WITHOUT LIMITATION PHONE NETWORK OR OTHER TELECOMMUNICATIONS NETWORK) FAILURES OR “BROWNOUTS,” COMPUTER EQUIPMENT FAILURES, TELECOMMUNICATION EQUIPMENT FAILURES, OTHER EQUIPMENT FAILURES, ELECTRICAL POWER FAILURES, STRIKES, LABOR DISPUTES, RIOTS, INSURRECTIONS, CIVIL DISTURBANCES, SHORTAGES OF LABOR OR MATERIALS, FIRES, FLOODS, STORMS, EXPLOSIONS, ACTS OF GOD, WAR, GOVERNMENTAL ACTIONS, ORDERS OF DOMESTIC OR FOREIGN COURTS OR TRIBUNALS, NON-PERFORMANCE OF THIRD PARTIES, OR LOSS OF OR FLUCTUATIONS IN HEAT, LIGHT, OR AIR CONDITIONING. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THESE TERMS, TILR’S AGGREGATE LIABILITY TO YOU FOR ANY CAUSE WHATEVER AND REGARDLESS OF THE FORM OF THE ACTION, WILL BE LIMITED TO THE GREATER OF (1) FEES PAID BY YOU DURING THE SIX MONTHS PRECEDING THE DATE ON WHICH YOU NOTIFY TILR OF A CLAIM, OR (2) [ONE HUNDRED] US DOLLARS.
You will indemnify, defend, and hold harmless TILR, its Affiliates, and their respective directors, officers, employees, representatives, and agents (each an “Indemnified Party”) from any and all Liabilities or Losses arising from or relating to any claim, suit, proceeding, demand, or action brought by you or a third party or other User against an Indemnified Party relating to: (a) use of the Service by you, your contractors, or your agents, including any payment obligations incurred through receipt of any Services; (b) any agreement entered into between you and a Member, including, but not limited to (i) claims of misclassification of a Member as an independent contractor; (ii) the classification of TILR as an employer or joint employer of a Member engaged by you; or (iii) any employment-related claims, such as those relating to
employment termination, employment discrimination, harassment, or retaliation; and any claims for unpaid wages or other compensation, overtime pay, sick leave, holiday or vacation pay, retirement benefits, worker’s compensation benefits, unemployment benefits, or any other employee benefits; (c) failure to comply with these Terms by you, your contractors, or your agents; (d) failure to comply with applicable law by you, your contractors, or your agents; (e) negligence, willful misconduct, or fraud by you, your contractors, or your agents; or (f) defamation, libel, violation of privacy rights, unfair competition, or infringement of intellectual property rights or allegations thereof to the extent caused by you, your contractors, or your agents.
18. GOVERNING LAW
These Terms are governed by the Law of the State of Ohio, without regard to any conflict of law rules that would result in the application of any other Law other than the Law of the State of Ohio.
19. DISPUTE RESOLUTION
a. All disputes arising in connection with these Terms will be settled, if possible, by negotiation between the parties. If settlement cannot be reached by negotiation within 30 days after either party first gives notice of a dispute, then the dispute will be settled by final and binding arbitration pursuant to this Section 19.
b. Except as otherwise provided herein, arbitration will be conducted in Cincinnati, Ohio, in accordance with the AAA’s Commercial Arbitration Rules, except as modified by this “Dispute Resolution” section. There will be one neutral arbitrator, selected by TILR in TILR’s sole discretion. The arbitrator must follow the provisions of these Terms as a court would, including without limitation, the limitation of liability provisions in Section 16. The arbitrator will have no authority to award punitive, consequential, or liquidated damages. The prevailing party in the arbitration shall be entitled to receive
reimbursement of its reasonable expenses (including reasonable attorneys’ fees, expert witness fees and all other expenses) incurred in connection with the arbitration. The award rendered may be entered and enforced in a court of competent jurisdiction. Notwithstanding the foregoing, each party shall have the right to institute an action in a court of proper jurisdiction for injunctive or other equitable relief pending a final decision by the arbitrator. Except as may be required by law, neither TILR, Client, nor the arbitrator may disclose the existence, content or results of any arbitration without the prior written consent of both TILR and the Client, unless to protect or pursue a legal right.
c. In the event that Section 19.b is found not to apply to you or to a particular claim or dispute (except for small-claims court actions), you agree that any claim or dispute that has arisen or may arise between you and TILR must be resolved exclusively by a state or federal court located in Hamilton County, Ohio. You and TILR agree to submit to the personal jurisdiction of the courts located within the State of Ohio for the purpose of litigating all such claims or disputes.
d. Use of the Service are not authorized in any jurisdiction that does not give effect to all provisions of these Terms (including without limitation, this section). You understand that, in return for agreement to this provision, TILR is able to offer the Service at the terms set forth in these Terms, and that your assent to this provision is an indispensable consideration to these Terms. You also acknowledge and understand that this provision governs with respect to any dispute with TILR, its officers, directors, employees, agents or Affiliates, arising out of or relating to your use of the Service or arising from these Terms.
The invalidity, illegality or unenforceability of any term or provision of these Terms shall in no way effect the validity, legality or enforceability of any other term or provision of these Terms. These Terms will be binding on and will
inure to the benefit of the legal representatives, successors and assigns of the parties hereto. If a court or arbitrator decides that any term or provision of these Terms is invalid or unenforceable, the parties agree to replace such term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and these Terms shall be enforceable as so modified.
a. “Affiliates” means, with respect to any Person, any other Person that (i) directly or indirectly owns or controls such Person, (ii) is directly or indirectly owned or controlled by such Person, or (iii) is under common control with such Person. For the purpose of this definition control means holding a majority of the equity or otherwise having the power to direct or cause the direction of the management and policies of an entity.
b. “Aggregate Data” means de-identified aggregated data or information regarding: Members’ educational or career history (including, by way of example and not limitation, aggregate data relating to Users’ occupation, location, salary, education and experience); Clients’ requests for Member Services (including, by way of example and not limitation, skills requirements, hiring preferences and frequency, and compensation data); and any other information regarding Users of the Service.
c. “Client Data” means any and all brochures, emails, sample and actual job postings, web site content, audio, videos, photographs, logos, trademarks, service marks, domain names, Documents, data, information, comments or other content provided to TILR by a Client or otherwise transmitted through a Client’s use of the Service.
d. “Content” includes all Text, Graphics, Design and Programming used on or in the Service.
e. “Design” includes the color combinations and the page layout of the TILR Web Site.
f. “Document” refers to any material posted to the Service by any User.
g. “Graphics” includes all logos, buttons, and other graphical elements on the TILR Web Site, with the exception of paid advertising banners.
h. “Law” or “Laws” means all laws, rules, regulations, codes, statutes, ordinances, treaties, and/or governmental orders, including the common law.
i. “Liability” or “Liabilities” means any liability, indebtedness, fine, penalty or obligation (whether known or unknown, whether asserted or unasserted, whether absolute or contingent, whether accrued or unaccrued, whether liquidated or unliquidated, and whether due or to become due).
j. “Loss” or “Losses” means any and all damages, fines, assessments, charges, levies, fees, penalties, deficiencies, losses and expenses (including all remediation costs, reasonable fees of attorneys, accountants and other experts, or other expenses of litigation or proceedings or of any claim, default or assessment).
k. “Person” means any natural person, corporation, unincorporated organization, partnership, association, joint stock company, limited liability company, joint venture, trust or government, or any agency or political subdivision of any government, or any other entity.
m. “TILR Materials” includes any materials, methodologies, implementation plans, software or other intellectual property used during the provision of Services.
n. “TILR Web Site” means t ilr.com and any other web site operated by TILR and includes such web sites’ Content, Text, Graphics, Design, Programming, TILR Materials and Services (as applicable in each context).
o. “Text” includes all text on every page of the TILR Web Site, whether editorial, navigational, or instructional.
p. “User” refers to any Person that uses any aspect of the Service.
q. “Usage Data” means any data reflecting the access or use of the Service by or on behalf of Clients, Members, or any other Users, including any end user profile, visit, session, impression, click through or click stream data and any statistical or other analysis, information or data based on or derived from any of the foregoing.
EFFECTIVE DATE: October 14, 2020.