3. Ummercial services - What are the Ummercial services?
3.4 Video Content and Services – How and when do you record videos?
4. Pricing, Payments, and Billing – How and when will I be billed for Ummercial services?
5. Customer Conduct
6. Objectionable Content – What if I find content to be objectionable?
7. Intellectual Property
8. DMCA Policy
9. Reserved for Future Use
10. Resale of Services
12. Disclaimer of Warranties
13. Third Party Links and Products
14. Limitations of Liability
15. Exclusions and Limitations
17. General Terms
“Account” means “Ummercial account.”
"Apps" means any applications developed by Ummercial.
"App Services" means any content and services provided by Ummercial through its Apps.
"Consumer" means any individual or entity that uses any of the Ummercial services. Where applicable, the term "Consumer" shall encompass all Ummercial customers.
"Content" means all material, whether publicly posted or privately transmitted, available on or through any of the Ummercial services.
“Customer Content” means any Content uploaded to and/or created through Ummercial services by a Ummercial Customer.
“Employer Customer” means an entity using Ummercial services that is seeking to hire an individual as an employee and/or independent contractor to be employed by it directly.
"Job Search" means Ummercial customers searching for job listings posted through the Ummercial website or through its third party affiliates or partners for jobs.
“Job Seeker Customer” means an individual using Ummercial services who is seeking to be employed as an employee or independent contractor by an employer.
“Profile Video” means a promotional video created by a Job Seeker Customer to promote themselves as a candidate employee and/or independent contractor. It is not an interview. The Job Seeker Customer completes this independently and on their own.
"Software" means any necessary software used in connection with Ummercial services.
“Ummercial account” means an account associated with a Ummercial customer who uses or has used Ummercial services.
“Ummercial content” means any Content excluding Customer Content and Video Content in which Ummercial does not participate.
“Ummercial customer” means any person who uses or has used Ummercial services including, but not limited to, Employer Customers, Job Seeker Customers, and Staffing Customers.
"Ummercial services" means the suite of features, products and services offered through Ummercial, its Apps, its App Services, the Website, and the Website Services.
"Ummercial Trademarks" means any trademarks, tradenames, logos, and other commercial designs of Ummercial or licensed to Ummercial, whether or not formal registration exists including, but not limited to, “Ummercial.”
“Staffing Clients” means third-party employer clients of Staffing Customers.
"Staffing Customer" means a staffing company using Ummercial services that provides staffing services to their own Staffing Clients.
"Strategic Partners" means those trusted partners that Ummercial employs, engages, or retains to perform functions and/or provide services on its behalf.
"Sub Accounts" means subsidiary accounts created for or by an Employer Customer or Staffing Customer (“such as a consultant group or employer”) under its primary account.
"Username" means the valid email address provided by each Ummercial customer to be used as their username or login identification.
“Video Content” means any video content created by or associated with any Ummercial customer accessible on and through Ummercial including, but not limited to, Profile Videos, Video Testimonials, Video Interviews, and Work Sample Videos, Hobbies and Interests Videos, Welcome Videos.
“Video Interview” means an interview completed through Ummercial services using a video or “web” camera that an Employer Customer or Staffing Customer requests a Job Seeker Customer complete. A Video Interview may involve a Job Seeker Customer alone or with other participants from an Employer Customer or Staffing Customer. A Video Interview may be pre-recorded by a Job Seeker in response to questions or occur live at which time it would be recorded. Upon service introduction.
“Video Testimonial” means a recorded in video and/or audio that can be sent to potential employee and independent contractor candidates by a third party designated by the Ummercial job seeker customer.
"Website" means all of the content, information and services (in any format whatsoever) accessible through the World Wide Web at the domain name Ummercial.com.
"Website Services" means the services provided by Ummercial through the website at the domain name ummercial.com and any of our other websites that may be used from time to time.
(C) As otherwise required by law.
3. Ummercial services.
3.1 Ummercial provides Internet based services through which individuals seeking employment can efficiently and effectively create resumes (personal brochures) for employers, recruiters, and staffing companies seeking to hire employees and independent contractors.
3.2 Ummercial provides Ummercial services through its Apps, when introduced, and Website, and all other suite of features, products and services offered through Ummercial from time to time.
3.3 Ummercial will not sell any Video Content to any third party.
3.4 Video Content and Services.
Ummercial provides its Ummercial customers a variety of video options and tools to use in association with the Ummercial services. As a Job Seeker Customer, you can create Profile Videos.
A Profile Video is your promotional video included to promote you as a candidate employee and/or independent contractor and is included in your resume (personal brochure). It is not an interview. You complete this independently and on your own.
You create a Profile Video through Ummercial services using your webcam and microphone. If you choose to create and publish a Profile Video using your webcam and microphone through Ummercial, you authorize Ummercial to record the Profile Video and publish it on Ummercial as part of your account. So long as the Profile Video remains in your account, Employer Customers and/or Staffing Customers can view your Profile Video. You can re-record a Profile Video at any time.
Apart from Ummercial, only the Employer Customer or Staffing Customer with and/or for whom you have interviewed will have access to any particular recorded Video Interview. As a Job Seeker, you cannot access any recorded Video Interviews. Ummercial Hire will not use any recorded Video Interviews for any purpose unrelated to the Accounts of those participating in and/or related to the Video Interviews.
Apart from the Brochure Sample page, Video Vault, Employer Customer or Staffing Customer with and/or for whom you have interviewed, Ummercial will not share or provide access to Videos to any third party absent a subpoena or court order. And, should Ummercial ever be subpoenaed for content associated with your Account, Ummercial shall provide you notice and an opportunity to file a motion objecting to any disclosure.
In addition to Video brochures, Employer Customers and Staffing Customers will be able to produce Welcome Videos for targeted Job Seeker Customers to view.
Ummercial may add additional types of video content from time to time.
3.5 No Guarantees of Employment
Ummercial is not an employment agency. Ummercial does not make any representations as to the qualifications of any individual, entity,
Additionally, where an individual, entity, group or employer successfully secures employment, Ummercial makes no guarantees or representations as to the satisfaction of such employment.
Additionally, Ummercial does not guarantee that any individual or entity will find employment or an employee through Ummercial services.
3.7 Intentionally Omitted.
4. Pricing, Payments, and Billing.
At present, Ummercial provides services to Job Seeker Customers on a membership basis. Memberships are billed in their entirety upon membership plan selection and sign up to Ummercial memberships through a secure payment gateway. Ummercial provides services Employer Customers on a subscription basis. However, Ummercial reserves the right to change its policy and pricing and billing for any of the Ummercial services at any time. Should Ummercial change any pricing, payments, or billing, Ummercial shall provide its existing Ummercial customers with at least thirty (30) days notice consistent with Section 17.17.
5.1 Lawful Purposes.
Ummercial services shall be used for lawful purposes only.
5.2 Accurate Information. You agree to provide Ummercial with true, accurate and current information as requested when registering for Ummercial services and/or purchasing products from Ummercial.
5.3 At time of registration, you must provide certain information that identifies you to other Ummercial customers. In doing so, you may not violate a third party's intellectual property rights or use names that happen to be offensive or inappropriate.
5.5 You shall be solely and entirely responsible for any and all use of the Ummercial services through your Account. Consequently, we recommend and require that:
(A) You not permit any other person to use your Ummercial account;
(B) You do not assign or transfer your Account or its login information to any other person or entity; and,
(C) You promptly inform Ummercial of any apparent breach of security, such as loss, theft, or unauthorized disclosure or use of a Ummercial account or its login information.
5.6 Reserved for Future Use.
5.7 You agree that you shall not use Ummercial services for any of the following:
5.7.1 Intentionally or unintentionally violating any applicable local, state, national, or international law, or any rules or regulations thereunder;
5.7.2 Intentionally violating any intellectual property rights of a third party;
5.7.3 Disseminating or posting harmful content including, without limitation, viruses, Trojan horses, worms, spyware, or any other computer programming routines that may damage, interfere with, secretly intercept, or seize any system, program, data, or personal information;
5.7.4 Disseminating materials that are lewd, offensive, inflammatory, harassing, threatening, defamatory, or otherwise objectionable as determined by Ummercial in its sole discretion;
5.7.5 Posting or transmitting, or causing to be posted or transmitted, via the Ummercial services any nudity;
5.7.6 Posting or transmitting, or causing to be posted or transmitted, via the Ummercial services any spam;
Ummercial maintains a strict policy forbidding any spam or misuse of email services within its Ummercial services.
5.7.7 Posting or transmitting, or causing to be posted or transmitted, via Ummercial services any materials advertising any business other than Ummercial;
Additional and/or different rules may apply in the event Ummercial dedicates a special forum in the future to the promotion and/or offering of services by Ummercial customers.
5.7.8 Seeking to obtain private financial information from any Consumer;
5.7.9 To impersonate any other person;
5.7.10 To provide any false information;
5.7.11 Registering or attempting to register an account with Ummercial without its express authorization after having been terminated or suspended by Ummercial for any reason; and/or
5.7.12 Attempting to interfere with Ummercial's security measures.
5.8 Should you believe that a Ummercial customer or person has violated any of the foregoing prohibited uses in 5.7, you should immediately notify Ummercial via report@Ummercial.com.
5.10 You assume all liability for anything purchased using Ummercial services through your Account, whether intended for you or for a third party.
5.11 Cancellation of Account.
To effectively cancel your Account, please contact us at support@Ummercial.com for assistance. Upon doing so, the cancellation of your Account will take place promptly.
Upon cancellation, all of your Content may be deleted permanently. Ummercial shall not be responsible for the loss of any Content due to the cancellation (or termination) of a Ummercial account.
Ummercial is not responsible should an Account remain active if the cancellation procedure described above is not followed.
5.12 Termination of Account.
Ummercial reserves the right to refuse its Ummercial services to anyone should it believe that the Ummercial services have been abused. For a non-exclusive list of what Ummercial considers abuse, you should refer to Section 5.7 above. Though specific prohibited items have been listed, Ummercial reserves the right to consider any action or conduct inconsistent with the intended use of Ummercial services to constitute abuse.
Additionally, Ummercial may terminate a Ummercial account immediately in the event that Ummercial believes, in its sole discretion, that a Ummercial customer is "flooding" the Ummercial services.
Ummercial also reserves the right to suspend or terminate a Ummercial account should Ummercial become involved in pending litigation or other similar dispute with a Ummercial customer in relation to the Ummercial account, or for any other reason. Should a Ummercial customer become involved in litigation or other similar dispute in relation to a Ummercial account, Ummercial also may suspend or terminate the Ummercial account immediately and without notice.
Should Ummercial become aware of litigation relating to a Ummercial account, Ummercial reserves the right to preserve Content associated with the Ummercial account.
5.13 Consequences of Termination.
Should your Account become terminated, Ummercial may, in our sole discretion and without liability to You, remove and discard any information associated with your Account including, but not limited to, any Content or Customer Content.
Should your Account become terminated, you will remain solely responsible for all liabilities that may have arisen or arise from your Account and/or its termination.
Ummercial shall not be liable to you or any third-party for any termination of your Account or your use of the Ummercial services.
Any Ummercial customer whose Account has been terminated by Ummercial may not access the Ummercial services without the prior express written permission of Ummercial.
Ummercial may also refuse registration, terminate an account, and/or refuse Ummercial services to any person who registers or attempts to register an account with Ummercial without authorization after having had an account previously suspended or terminated by Ummercial. In particular, should Ummercial identify this person by any means (including, but not limited to IP addresses), it reserves the right to refuse or terminate registration.
5.14 Should the Ummercial services become terminated globally for any reason, all Ummercial accounts shall be terminated immediately, without any prior notifications by Ummercial.
6. Objectionable Content.
Ummercial is not responsible for any false, defamatory, libelous, or slanderous Content posted by its Ummercial customers. If you believe any Content violates your rights or those of a third party in any way, you may contact Ummercial via report@Ummercial.com.
7. Intellectual Property Rights
7.1 Software. Ummercial services and any necessary software used in connection with the Ummercial services ("Software") contain proprietary and confidential information protected by applicable intellectual property and other laws. Ummercial or its licensor holds all rights, title and interest in all Software and all intellectual property, including other rights related to intangible property, unless otherwise indicated. No title or interest in such intellectual property rights is being transferred to you and you agree to make no claim of interest in any such Software. Except as expressly authorized by Ummercial or our advertisers, you agree not to modify, rent, lease, loan, sell, distribute or create derivative works based on the Software, in whole or in part.
Ummercial shall possess and retain all copyrights to content created by Ummercial. Ummercial may use content obtained from third party sources. All rights to such third party content remains with the owners of such third party content.
You shall possess and retain all interest in your Profile Videos. You do not have any interest in any Video Interviews in which you participate. Moreover, as stated elsewhere, any Video Content associated with an Account may be destroyed upon cancellation or termination of an account. All copyrights in Customer Content shall remain with the applicable owners of such copyrights.
By using Ummercial services, you provide Ummercial a license to use your Customer Content and Video Content for purposes of providing Ummercial services in relation to your Account.
You agree to not use Ummercial Trademarks or any mark that is confusingly similar to such trademarks. Nothing on or through the Ummercial services should be construed as granting, by implication, estoppel or otherwise, any license or right to use any of Ummercial Trademarks. Ummercial reserves the right to restrict the use of its name, system, logo, and trademarks. You agree to comply with any and all such restrictions.
For purposes of displaying your Account and content associated with it, you permit Ummercial to use your name and trademark, if applicable. You also allow Ummercial to use your name and trademark in a manner consistent with fair use. Upon receiving written request consistent with Notices provided herein, Ummercial will remove your name and/or trademark except as necessary to continue providing you with Ummercial services.
All other companies' names, brand names and product names are trademarks or trade names of their respective owners who may or may not endorse, be affiliated with or connected to Ummercial. You further acknowledge and agree that content contained in sponsor advertisements or information presented to you through the Ummercial services or advertisers is protected by copyrights, trademarks, service marks, patents or other proprietary rights and laws
7.6 Unauthorized Access or Circumvention. As stated above, Ummercial takes the privacy of its Ummercial customers very seriously. In this context, it also takes seriously any effort to circumvent the technology it has implemented to protect the privacy and the security of information on its servers. Should any person attempt to obtain or obtain unauthorized access to Ummercial servers and/or should any Ummercial customer attempt to exceed or exceed his/her/its authorized access to Ummercial servers, Ummercial shall consider such conduct to violate the federal Computer Fraud and Abuse Act, 18 U.S.C. § 1030, which provides for civil and criminal penalties. Additionally, depending on the circumstances, such conduct could also violate the Electronic Communications Privacy Act, 18 U.S.C. § 2510, et eq. and the Stored Communications Act, 18 U.S.C. § 2701, et seq., both of which also provide for civil and criminal penalties. Ummercial considers the unauthorized access to and/or download of any Video content fall within the scope of this prohibited conduct. Moreover, Ummercial shall consider any approval or knowledge of a third party’s efforts to engage in the foregoing prohibited conduct as willful cooperation in such conduct.
8. DMCA Policy
8.1 Ummercial respects the intellectual property rights of others and prohibits anyone from uploading, posting or otherwise transmitting through Ummercial services any materials that violate another party's intellectual property rights. When Ummercial receives proper Notification of Alleged Copyright Infringement as described herein, it promptly removes or disables access to the allegedly infringing material and terminates the accounts associated therewith as described herein in accordance with the Digital Millennium Copyright Act ("DMCA").
8.2 If you believe that any material on or through the Ummercial services infringes upon any copyright which you own or control, you may send a written Notification of Alleged Copyright Infringement to our designated DMCA Agent identified below.
8.3 If you believe that your own copyrighted work is accessible on or through the Ummercial services in violation of your intellectual property rights, you may provide our designated DMCA Agent with a Notification of Alleged Copyright Infringement as set forth in the DMCA that contains substantially the following information:
(A). Identify in sufficient detail the copyrighted work or intellectual property that You claim has been infringed so that Ummercial can locate the material;
(B). Identify the URL or other specific location on the Website or Ummercial services that contains the material that You claim infringes your copyright described in Item 5.3(A) above;
(C). Provide the electronic or physical signature of the owner of the copyright or a person authorized to act on the owner's behalf;
(D). Include a statement by You that You have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law;
(E). Include a statement by You that the information contained in your notice is accurate and that You attest under the penalty of perjury that You are the copyright owner or that You are authorized to act on the copyright owner's behalf; and,
(F). Include your name, mailing address, telephone number and email address.
8.4 You may send your Notification of Alleged Copyright Infringement to our designated DMCA Agent by fax, mail, or E-Mail as set forth below:
19C Trolley Square, Wilmington, Delaware 19806
Fax to: 510 792 9826
8.5 Ummercial has adopted a policy of terminating, in appropriate circumstances and at its sole discretion, members who are deemed to be repeat infringers. Ummercial may also in its sole discretion limit access to the Ummercial services and/or terminate the use thereof by anyone who infringes any intellectual property rights of others, whether or not there is any repeat infringement.
9. RESERVED FOR FUTURE USE
10. RESALE OF SERVICE
Unless otherwise agreed to in writing by Ummercial, you agree not to reproduce, duplicate, copy, sell, resell, outsource, reverse engineer or exploit any portion of, the use of, or access to Ummercial services.
12. DISCLAIMER OF WARRANTIES
12.1 THE APPS, WEBSITE, AND/OR UMMERCIAL SERVICES ARE PROVIDED TO YOU "AS IS", "WITH ALL FAULTS", "AS AVAILABLE," WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, TO THE FULLEST EXTENT POSSIBLE UNDER APPLICABLE LAW.
12.2 UMMERCIAL SPECIFICALLY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE FOLLOWING:
ANY WARRANTIES CONCERNING THE AVAILABILITY, ACCURACY, RELIABILITY, COMPLETENESS, CAPABILITIES, SECURITY, TIMELINESS, USEFULNESS AND/OR CONTENT OF THE WEBSITE, AND/OR UMMERCIAL SERVICES:
THE ABILITY OF THE WEBSITE, AND/OR UMMERCIAL SERVICES TO INTEROPERATE OR INTEGRATE WITH ANY THIRD PARTY PRODUCTS SUCH AS SOFTWARE OR HARDWARE;
ANY WARRANTIES RESULTING FROM A COURSE OF DEALING OR USAGE OF TRADE;
ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE;
ANY WARRANTIES OF NON-INFRINGEMENT; AND
ANY WARRANTIES REGARDING THE RIGHTS AND TITLE OF UMMERCIAL IN THE APPS, WEBSITE, AND/OR UMMERCIAL SERVICES, OR ANY WARRANTY THAT THE WEBSITE, AND/OR UMMERCIAL SERVICES DO NOT INFRINGE THE INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY.
12.3 UMMERCIAL IS NOT LIABLE FOR ANY INFORMATION, SOFTWARE OR OTHER PRODUCTS THAT ARE DOWNLOADED FROM THE WEBSITE, AND/OR UMMERCIAL SERVICES BY YOU OR INSTALLED ON YOUR COMPUTER. AS SUCH, UMMERCIAL IS NOT RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL.
12.4 NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED THROUGH OR FROM THE WEBSITE, AND/OR UMMERCIAL SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE TERMS.
12.5 UMMERCIAL MAKES NO WARRANTY THAT THE WEBSITE, UMMERCIAL SERVICES, AND/OR CONTENT THEREON WILL BE ERROR-FREE, AVAILABLE WITHOUT INTERRUPTION, TIMELY, OR MEET YOUR REQUIREMENTS.
12.6 WE WILL MAKE REASONABLE EFFORTS TO MAINTAIN THE WEBSITE, AND/OR UMMERCIAL SERVICES. HOWEVER, WE ARE NOT RESPONSIBLE FOR ANY DAMAGE; LOSS OF DATA, CUSTOMER INFORMATION OR VENDOR DATA; LOSS OF REVENUE; OR, OTHER HARM TO BUSINESS ARISING OUT OF DELAYS, MISDELIVERY OR NONDELIVERY OF INFORMATION, RESTRICTION OR LOSS OF ACCESS, BUGS OR OTHER ERRORS, UNAUTHORIZED USE DUE TO YOUR SHARING OF ACCESS TO UMMERCIAL SERVICES, OR OTHER INTERACTION WITH UMMERCIAL SERVICES. YOU ARE RESPONSIBLE FOR MAINTAINING AND BACKING-UP YOUR DATA AND INFORMATION THAT MAY RESIDE ON THE UMMERCIAL WEBSITE OR APPS. WE DO NOT WARRANT THAT (i) UMMERCIAL WILL MEET YOUR SPECIFIC REQUIREMENTS, (ii) UMMERCIAL SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (iii) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF UMMERCIAL SERVICES WILL BE ACCURATE OR RELIABLE, (iv) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH UMMERCIAL SERVICES WILL MEET YOUR EXPECTATIONS, AND (V) ANY ERRORS IN THE SOFTWARE WILL BE CORRECTED.
12.7 THESE DISCLAIMERS APPLY TO ALL CONTENT SENT TO AND/OR FROM THE WEBSITE, AND/OR SPARK HIRE SERVICES.
13. THIRD PARTY LINKS AND PRODUCTS
13.1 IN CONNECTION WITH UMMERCIAL SERVICES, UMMERCIAL MAY PROVIDE YOU WITH LINKS TO THIRD PARTY WEBSITES AND OFFERS FOR PRODUCTS AND SERVICES OF THIRD PARTIES.
13.2 UMMERCIAL NEITHER MONITORS NOR HAS ANY CONTROL OVER SUCH THIRD PARTY WEBSITES, PRODUCTS, AND SERVICES.
13.3 UMMERCIAL IS NOT RESPONSIBLE FOR AND DOES NOT ENDORSE (A) THE AVAILABILITY OR CONTENT OF SUCH THIRD PARTY WEBSITES; (B) THE PRODUCTS OR SERVICES OFFERED BY SUCH THIRD PARTIES; (C) THE USE OF OR RELIANCE UPON SUCH CONTENT, PRODUCTS, OR SERVICES; (D) ANY LOSS OR DAMAGE ARISING FROM ANY COMMUNICATIONS AND/OR TRANSACTIONS BETWEEN YOU AND THIRD PARTIES; AND/OR (E) THE PRIVACY AND OTHER PRACTICES OF SUCH THIRD PARTIES.
13.4 ANY CORRESPONDENCE OR BUSINESS TRANSACTIONS BETWEEN YOU AND SUCH THIRD PARTIES ARE SOLELY BETWEEN YOU AND ANY SUCH THIRD PARTY.
13.5 UMMERCIAL SPECIFICALLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, RELATING TO THIRD PARTY PRODUCTS AND SERVICES INCLUDING, BUT NOT LIMITED TO, ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, EXCEPT AS OTHERWISE SPECIFIED IN THIS AGREEMENT OR WHERE SUCH DISCLAIMERS ARE HELD TO BE LEGALLY INVALID.
13.6 THIRD PARTY WEBSITES MAY SOLICIT PERSONAL INFORMATION AND SEND COOKIES. THE INCLUSION OF A LINK TO A THIRD PARTY WEBSITE THROUGH THE WEBSITE, AND/OR UMMERCIAL SERVICES DOES NOT IMPLY ENDORSEMENT OF THE LINKED THIRD PARTY WEBSITE.
13.7 YOU ALSO MAY BE SUBJECT TO ADDITIONAL TERMS AND CONDITIONS THAT MAY APPLY WHEN YOU USE AFFILIATE OR OTHER SERVICES PROVIDED BY UMMERCIAL, THIRD-PARTY CONTENT OR THIRD-PARTY SOFTWARE. UMMERCIAL SPECIFICALLY DISCLAIMS ANY LIABILITY FOR ITS CUSTOMERS FAILING TO ABIDE BY THIRD-PARTY WEBSITES' POLICIES AND TERMS.
14. LIMITATION OF LIABILITY
14.1 GENERAL TERMS. FOR EACH OF THE FOLLOWING LIMITATIONS OF LIABILITY, THE FOLLOWING TERMS SHALL APPLY:
14.1.2 “DAMAGES” SHALL INCLUDE ANY INJURY, LOSS, CLAIM, DAMAGE, OR ANY DIRECT, SPECIAL, EXEMPLARY, PUNITIVE, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND, AND/OR ANY OTHER DAMAGES OR INTANGIBLE LOSS. THE TYPE OF DAMAGES TO WHICH THESE LIMITATIONS OF LIABILITY APPLY INCLUDE, BUT ARE NOT LIMITED TO, LOSS OF BUSINESS PROFITS OR LOST SAVINGS, LOSS TO GOODWILL, LOSS ARISING FROM BUSINESS INTERRUPTION, LOSS OR VANDALISM OR THEFT OF PROGRAMS OR INFORMATION, LOSS OF REPUTATION, VIOLATION OF PRIVACY, LOSS OF USE OR DATA, LEGAL FEES (INCLUDING, BUT NOT LIMITED TO, ATTORNEY’S FEES, PARALEGAL FEES, AND OTHER COSTS AND EXPENSES), AND/OR ANY OTHER KIND OF DAMAGE OR LOSS.
14.1.3 “UMMERCIAL” SHALL MEAN UMMERCIAL; ITS SUBSIDIARIES; AND, ITS OWNERS, OPERATORS, OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, AGENTS, AFFILIATES, REPRESENTATIVES, LICENSORS, SUCCESSORS OR ASSIGNS.
14.1.4 “STRATEGIC PARTNERS” SHALL MEAN CO-BRANDERS, SUPPLIERS, VENDORS, AND OTHER PARTNERS USED BY UMMERCIAL AS WELL AS THEIR SUBSIDIARIES, PARENTS, OWNERS, OPERATORS, OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, AGENTS, AFFILIATES, REPRESENTATIVES, LICENSORS, SUCCESSORS OR ASSIGNS.
14.1.5 THESE LIMITATIONS OF LIABILITY APPLY REGARDLESS OF WHETHER CAUSED BY UMMERCIAL OR ANY PART OF UMMERCIAL AS DEFINED ABOVE.
14.1.6 THESE LIMITATIONS OF LIABILITY APPLY TO ALL CLAIMS, CAUSES OF ACTION, AND/OR FORMS OF ACTION, WHETHER FOR OR BASED UPON BREACH OF CONTRACT, EQUITY, NEGLIGENCE, TORT, STRICT LIABILITY OR UNDER ANY OTHER CLAIM OR CAUSE OF ACTION.
14.1.7 THESE LIMITATIONS OF LIABILITY APPLY EVEN IF UMMERCIAL WAS ADVISED OF THE POSSIBILITY OF ANY DAMAGES OR LOSSES.
14.2 YOU AGREE THAT UMMERCIAL AND ITS STRATEGIC PARTNERS SHALL NOT BE RESPONSIBLE OR LIABLE TO YOU OR TO ANY THIRD PARTY WHATSOEVER FOR ANY DAMAGES AS DEFINED ABOVE ARISING IN CONNECTION WITH OR IN ANY WAY OUT OF THE AVAILABILITY OR USE OF, RELIANCE ON, INABILITY TO USE, OR ANY OTHER MATTER RELATING TO THE WEBSITE, AND/OR UMMERCIAL SERVICES.
14.3 YOU AGREE TO EXCUSE UMMERCIAL AND AGREE THAT IT SHALL NOT BE RESPONSIBLE OR LIABLE TO YOU OR ANY THIRD PARTY FOR ANY DELAY OR FAILURE TO PERFORM DUE TO ANY CAUSE BEYOND ITS REASONABLE CONTROL INCLUDING, BUT NOT LIMITED TO, ACTS OF GOVERNMENT; NATURAL CATASTROPHES; FORCE MAJEURE; ACTS OF GOD; INTERNET DISRUPTIONS OR UNAVAILABILITY; FAILURE OF OPERATING SYSTEMS; UNAVAILABLE NETWORK CONNECTIONS; IMPERFECT COMPUTER TRANSMISSIONS; LABOR DISPUTES: POWER OUTAGES; LOSS OF DATA; OR SIMILAR OCCURRENCES.
14.4 YOU AGREE THAT UMMERCIAL SHALL NOT BE RESPONSIBLE OR LIABLE TO YOU OR ANY THIRD PARTY FOR ANY MODIFICATION, SUSPENSION, OR DISCONTINUANCE OF THE WEBSITE, AND/OR UMMERCIAL SERVICES. SIMILARLY, UMMERCIAL SHALL NOT BE LIABLE TO YOU OR ANY THIRD PARTY SHOULD UPDATES TO THE SOFTWARE OR CODE REQUIRE THE INSTALLATION OF OTHER THIRD PARTY SOFTWARE.
14.5 YOU AGREE THAT UMMERCIAL SHALL NOT BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY DAMAGES AS DEFINED ABOVE THAT ARISE OUT OF OR ARE IN ANY WAY CONNECTED WITH:
14.5.1 THE USE OF OR THE INABILITY TO USE UMMERCIAL SERVICES;
14.5.2 THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM UMMERCIAL SERVICES;
14.5.3 UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS, CONTENT, OR DATA;
14.5.4 STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON UMMERCIAL SERVICES;
14.5.5 THE DISCLOSURE OF ANY PARTY'S IDENTITY OR IDENTIFYING INFORMATION;
14.5.7 ANY OTHER MATTER RELATING TO UMMERCIAL SERVICES.
14.6 YOU AGREE THAT UMMERCIAL SHALL NOT BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY DAMAGES AS DEFINED ABOVE. WHERE ANY COURT OF COMPETENT JURISDICTION LIMITS THE ABILITY OF UMMERCIAL TO DISCLAIM ANY DAMAGES, YOU AGREE THAT THE MAXIMUM AMOUNT OF DAMAGES THAT UMMERCIAL SHALL BE LIABLE TO YOU FOR SHALL NOT EXCEED THE AMOUNT OF PAYMENTS YOU PAID TO UMMERCIAL.
14.8 YOU AGREE THAT UMMERCIAL SHALL NOT BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY DAMAGES RESULTING OR OCCURRING THROUGH ANY EMPLOYMENT RELATIONSHIP (WHETHER EMPLOYER-EMPLOYEE OR EMPLOYER-INDEPENDENT CONTRACTOR OR EMPLOYER-STAFFING COMPANY) DEVELOPED, MODIFIED, OR TERMINATED BY USE OF THE APPS, WEBSITE AND/OR UMMERCIAL SERVICES.
14.9 YOU AGREE THAT UMMERCIAL SHALL NOT BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY MISUSE OF CONTENT FOUND ON OR THROUGH THE WEBSITE, AND/OR UMMERCIAL SERVICES. PARTICULARLY, UMMERCIAL SHALL NOT BE LIABLE FOR ANY MISUSE OF ANY VIDEO CONTENT OR INFORMATION CONTAINED THEREON BY ANY CUSTOMER.
14.10 YOU AGREE THAT UMMERCIAL SHALL NOT BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY MISUSE OF CONTENT FOUND ON OR THROUGH THE WEBSITE, AND/OR UMMERCIAL SERVICES DELIVERED TO STAFFING CLIENTS. PARTICULARLY, UMMERCIAL SHALL NOT BE LIABLE FOR ANY MISUSE OF ANY VIDEO CONTENT OR INFORMATION CONTAINED THEREON BY ANY STAFFING CLIENTS.
14.11 YOU AGREE THAT UMMERCIAL AND ITS STRATEGIC PARTNERS SHALL NOT BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY FAILURE OF PERFORMANCE; ERROR; OMISSION; INTERRUPTION; DELETION OF CONTENT; DEFECT; DELAY IN OPERATION OR TRANSMISSION; BUG; VIRUSES THAT MAY INFECT YOUR COMPUTER SOFTWARE, EQUIPMENT, OR OTHER PROPERTY; COMMUNICATION LINE FAILURE; THEFT OR DESTRUCTION OR UNAUTHORIZED ACCESS TO, ALTERATION, INACCESSIBILITY OR LOSS OF, OR USE OF DATA, INFORMATION AND/OR RECORDS.
14.11.1 WE SPECIFICALLY DO NOT WARRANT OR GUARANTEE (1) THAT THE APPS, WEBSITE, AND/OR UMMERCIAL SERVICES OR ANY PORTION THEREOF WILL BE FREE OF INFECTION BY VIRUSES, BUGS, OR ANYTHING ELSE MANIFESTING CONTAMINATING OR DESTRUCTIVE PROPERTIES, (2) THAT THE FUNCTIONS PERFORMED BY THE WEBSITE, AND/OR UMMERCIAL SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, OR (3) THAT DEFECTS IN THE WEBSITE, AND/OR UMMERCIAL SERVICES WILL BE CORRECTED.
14.11.2 IT IS YOUR SOLE RESPONSIBILITY TO EXECUTE ANTI-CONTAMINATION VIRUS SOFTWARE AND OTHERWISE TAKE STEPS TO ENSURE THAT THE WEBSITE, AND UMMERCIAL SERVICES, IF CONTAMINATED OR INFECTED, WILL NOT DAMAGE YOUR INFORMATION OR SYSTEM.
15.EXCLUSIONS AND LIMITATIONS.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS OF SECTIONS 11, 12, 13, and 14 MAY NOT APPLY TO YOU.
16. RESERVED FOR FUTURE USE.
17. General Provisions
17.1 Acknowledgement. You acknowledge that you have read, understood, and agreed to all terms contained herein. Further, you represent that you have consulted, or have had the opportunity to consult with, your legal, tax, and financial advisors in connection with the execution and performance of the Agreement.
A single arbitrator shall be agreed upon by the parties or, if the parties cannot agree upon an arbitrator within thirty (30) days, then the parties agree that a single arbitrator shall be appointed by the American Arbitration Association. The arbitrator may award legal fees (including, but not limited to, attorneys' fees, paralegal fees, etc.), expenses, and costs as part of the award.
Any award issued as a result of the arbitration shall be binding and may be entered as a final judgment or order in any court of competent jurisdiction and enforced accordingly. All costs and expenses of the arbitration, including reasonable legal fees (including, but not limited to, attorney's fees, paralegal fees, etc.), shall be allocated among the parties as determined by the arbitrator.
Notwithstanding the foregoing, either Party may, at its sole discretion, seek preliminary judicial relief in any court of competent jurisdiction (including, but not limited to, preliminary injunctive relief) and, additionally, the provisions of this Section may be enforced by any court of competent jurisdiction.
17.7 Intentionally Omitted.
17.10 Legal Advice Not Provided. You acknowledge and agree that Ummercial has not and will not provide you with any legal advice on any subject, but particularly with respect to compliance with employment, data privacy, or other relevant laws, rules, or regulations. You agree not to construe any Ummercial communications as legal advice.
17.14 Statute of Limitations. To the extent permitted by law, any claim or cause of action arising out of or related to use of the Apps, Website, and/or Ummercial services shall be filed within one (1) year after such claim or cause of action arose. To the extent permitted by law and as applicable, any claim arising from the publication of any content on or through the Apps, Website, and/or Ummercial services shall accrue on the first date of publication.
17.18 Restricted Locations.
The Apps, Website, and/or Ummercial services may not be accessed, viewed, downloaded or otherwise received in any country or location in which doing so would, or could be deemed a violation of any law, regulation, rule, ordinance, edict or custom.
Apps, Website, and/or Ummercial services may not be used by and is not directed at any country or region currently embargoed by the United States. By using the Apps, Website, and/or Ummercial services, you agree to the foregoing and you warrant that you are not located in, or under the control of, or a national or resident of any such country or region.
You agree to comply with all local rules regarding online conduct and what Ummercial deems, in its sole discretion, acceptable content. For examples of prohibited content and conduct, refer to Section 5.7 above.
You agree to comply with all applicable laws regarding the transmission of technical data exported from the United States or the country in which you reside.