By using any part of the Moonhub Service or executing an Order Form, you agree to the applicable supplemental terms and conditions set forth herein. The individual using the Moonhub Service or signing the Order Form on behalf of a corporation or other legal entity represents and warrants that they have the authority to bind such corporation or other legal entity to the Agreement.
YOU MUST BE AT LEAST 18 YEARS OLD TO USE THIS SERVICE.
IF YOU ARE USING THE SERVICES AS AN EMPLOYER, YOU ACKNOWLEDGE THAT YOU ARE NOT MISREPRESENTING ANY INFORMATION REGARDING YOUR TALENT ACQUISITION NEEDS AND WILL ONLY BE UTILIZING THE SERVICE FOR TALENT ACQUISITION PURPOSES. YOU WILL LIMIT ACCESS TO THE SERVICE TO THE ACCOUNT REPRESENTATIVE OR OTHER AUTHORIZED USERS.
IF YOU ARE USING THE SERVICES AS AN INDIVIDUAL, YOU ACKNOWLEDGE THAT YOU ARE NOT MISREPRESENTING ANY INFORMATION DURING YOUR ENROLLMENT OR USE OF THE SERVICE, INCLUDING YOUR IDENTITY OR INFORMATION ABOUT YOUR PERSONAL DATA, INCLUDING CAREER OR EDUCATIONAL EXPERIENCE. YOU HAVE A CONTINUING OBLIGATION TO KEEP YOUR IDENTITY AND CONTACT INFORMATION UP TO DATE AND ACCURATE.
You understand that your right to access is non-transferrable to any other person or employer or other business organization. Each user must have their own login credentials, which are limited to managing their own personal account information.
Access to the Services as an individual account is limited to a single individual person. Access to the Services for an employer shall be limited to the designated account representative, or other authorized users.
MOONHUB DOES NOT KNOWINGLY (A) COLLECT OR SOLICIT PERSONAL INFORMATION FROM ANYONE UNDER 18 YEARS OF AGE OR (B) ALLOW ANYONE UNDER 18 YEARS OF AGE TO INDEPENDENTLY REGISTER FOR THE SERVICE.
MOONHUB MAY, AT ANY TIME AND FROM TIME TO TIME, MODIFY THESE TERMS. ANY CHANGES TO THESE TERMS WILL BE EFFECTIVE IMMEDIATELY UPON POSTING OF THE UPDATED VERSION ON THE SERVICE OR OUR WEBSITE. YOU AGREE TO PERIODICALLY REVIEW THESE TERMS, AND YOUR CONTINUED USE OF THE SERVICE FOLLOWING ANY SUCH MODIFICATION CONSTITUTES YOUR AGREEMENT TO FOLLOW AND BE BOUND BY THESE TERMS AS MODIFIED.
2.1. The scope of Services differs depending on whether you are using our Service as an employer (and if so, which Services you have elected and paid for) or as an individual or potential job candidate.
2.1.1. If you are an employer or individual, our Service provides you with people profiles by analyzing real-time market signals to help you discover, engage and hire world-class people. These services are made available on a hosted, “software-as-a-service” basis through Moonhub’s proprietary platform (the “ Platform”) (together with the “Hosted Software Services”) and/or certain professional, consulting, or other on-hosted services (“Other Services” and together with the Hosted Software Services (collectively “Services”), as expressly set forth in the Order Form between the Parties. The Services you receive will differ depending on which Services you elect and pay for:
(a) Free: The Free Level is – just like it says – Free to access. It’s a great opportunity for you to try out some of the Services that Moonhub has to offer. However, this level does not offer as many of Moonhub’s features or services as our paid Enhanced Services. An Order Form is not required to access this version of the Service.
(b) Enhanced Services as noted on a confirmed Order.
2.2. You understand that you must pass the required identity verification protocols each time you attempt to use the Services.
3.1. The Service, including without limitation the text, graphics, images, photographs, videos, illustrations and other content contained therein, are owned by Moonhub or its licensors and are protected under both United States and foreign laws. The Service is licensed, not sold, to you. The Service is licensed only for uses expressly permitted under these Terms and only in accordance with the limits set forth an applicable Order Form. Your use of the Service is subject to all restrictions set forth in these Terms and the applicable Order Form. Moonhub reserves all rights not expressly granted to you under these Terms.
3.1.1. If you are accessing the Account as an Individual: subject to your complete and ongoing compliance with these Terms, Moonhub hereby grants you a personal, limited, revocable, non-exclusive, non-transferable, non-sublicensable license to access and use the Service for your private use as an individual consumer and not for any commercial purpose or benefit of any third party unless otherwise expressly permitted herein.
3.1.2. If you are accessing the Account on behalf of another entity: subject to your complete and ongoing compliance with these Terms, Moonhub hereby grants you a limited, revocable, non-exclusive, non-transferable, non-sublicensable license to access and use the Service for your internal business uses only. You shall not commercially exploit or resell to any third-party candidate relationship management system in whole or in part, or any of the functionality contained herein. You shall agree to comply with all Applicable Law, including without limitation, applicable anti-spam regulations and “do not call registries” as well as guidelines and restrictions provided by Moonhub to You in writing.
3.1.3. Any use of the Service other than as expressly authorized herein is strictly prohibited and will automatically and immediately terminate any and all licenses granted to you under these Terms.
3.2. You acknowledge and agree that we may, from time to time, modify, discontinue, update and otherwise change the Service without notice to you, and that your right to use the Service will be limited to the then-current version of the Service that is offered by Moonhub. In addition, we may suspend your access to the Service at any time for any reason or no reason. Termination of your right to use the Service will include the deletion of information in your user account such as your email address, password, and stored account information. You also have the right to discontinue using the Service as set forth in an Agreement, however, payment will continue for the duration of the Subscription Term, unless otherwise agreed to by Moonhub in advance.
3.3. We are not responsible for any loss or harm related to your inability to access or use the Service.
4.1. Your Responsibilities. You agree to only provide accurate and complete information to Moonhub during the course of your use of the Service. Without limiting the generality of the foregoing, it is your responsibility to provide us with true, accurate, and complete email address, contact, and other information related to your account(s), and to maintain and promptly update any changes in this information.
4.1.1. For the period of Service, and for six months thereafter, you agree to provide us with: access to each email account (each an “Account”) provided to you as part of the Services for us to use on your behalf on the Platform. The Account may be used for viewing, sending and receiving emails on your behalf. We may periodically access the Account to read, send, and manage connected Accounts for the duration of Services. We may access the Account to read previously sent emails for a period of six months after the termination of Services, or such longer period as permitted or required by local law, in order to enforce this Agreement and to settle potential claims. While any messages sent via the Services are intended to be kept confidential and will not be viewable by other individual or employer users of the Services, you understand that we may access the content of such messages as per this Agreement and Applicable Law.
4.1.2. You are responsible for maintaining the confidentiality and security of your individual account credentials, and you understand that you may not share this information with anyone else (including agents or representatives) or attempt to access the accounts of any other person. You are fully responsible for all activities that occur under your password or account, whether authorized or unauthorized. You agree to (a) immediately notify Moonhub of any unauthorized use of your password or account, and (b) ensure that you properly exit from your account at the end of each session. Moonhub shall not be liable for any loss or damage arising from your failure to comply with any of these Terms
4.1.3. You shall cooperate with us to provide us with timely access to all materials and information reasonably necessary for us to provide the Services as set forth in any order, including access to your Applicant Tracking System (“ATS”) or other source of job listings, which may include links, usernames, passwords, or other information reasonably necessary to enable us to access your ATS or other source of job listings for the purpose of utilizing third-party application programming interfaces.
4.1.4. You also agree to provide us with a worldwide, non-exclusive license to reproduce, distribute, display and perform (whether publicly or otherwise), modify, prepare derivative works of, host, transmit, and otherwise useYour Content (as defined below), as reasonably necessary to make available to You the Services. You shall remain solely responsible for all Your Content provided to Moonhub.
4.1.5. You understand and agree that Moonhub or its Affiliates may anonymize and aggregate yourdata or derived data made available to Moonhub and its Affiliates through Your access to or use of the Services (collectively, “Aggregated Data”) and may use the Aggregated Data to analyze, improve, support, provide and operate the Services or any other software or services offered or made available by Moonhub and/or its Affiliates during and after the Term, provided that at all times such Aggregated Data does not identify You or any individual user as the source of the Aggregated Data.
4.1.6. You agree to timely pay all fees in accordance with an Order. Fees are billed in advance and are non-refundable. Fees shall be paid within thirty (30) days of Your receipt of Moonhub’s invoice. Late payments are subject, at Moonhub’s discretion, to a penalty equal to three percent (3%) of the outstanding Fees, other than to the extent such Fees are disputed in good faith by You. Without limiting any of Moonhub’s termination rights in the Agreement, Moonhub may suspend performance of the Order Form if Moonhub has not received full payment within ten (10) days of written notice that such payment is overdue. All Fees are exclusive of any sales tax, service tax, value added tax (“VAT”) or other tax that may be applicable to the transaction (“Taxes”), which, where chargeable by Moonhub, will be set forth in the applicable invoice and shall be payable by You. Taxes shall not include taxes based upon Moonhub’s income. Upon expiration or termination of an Order, You will timely pay Moonhub for all Services rendered and expenses incurred as of the effective date of the expiration or termination of the Order and the remaining months under the term.
4.2. Prohibited Uses. By using the Service, you agree not to: (a) modify, prepare derivative works of, decompile or reverse engineer the Service (except as and only to the extent any foregoing restriction is prohibited by Applicable Law or regulation); (b) use the Service in a way that abuses or disrupts our networks, user accounts, the Platform, or the Service including any sales outreach or commercial purposes other than the specific uses permitted by these Terms; (c) transmit any harassing, indecent, obscene, fraudulent or unlawful material through the Service; (d) market, sell or resell the Service to any third party or otherwise commercially use the Service; (e) use the Service in violation of any applicable federal, state, local, or sectoral laws, regulations or ordinances, including without limitation any laws regarding the export of data or software or laws or security and data protection and employment discrimination laws; (f) use the Service to send unauthorized advertising or spam content; (g) harvest, collect, or gather data of other users; (h) remove, circumvent, disable, damage or otherwise interfere with security-related features of the Service, features that prevent or restrict use or copying of any content accessible through the Service or features that enforce limitations on use of the Service; (i) transmit any material that infringes, misappropriates or otherwise violates the intellectual property, privacy or other rights of third parties through the Service; (j) use or attempt to use another user’s account without express written authorization from that user and Moonhub; (k) impersonate or post on behalf of any person or entity or otherwise misrepresent your affiliation with a person or entity; (l) except as expressly permitted by Moonhub, copy, reproduce, distribute, publicly perform or publicly display all or any portions of the Service; (m) use any data mining, robots or similar data gathering or extraction methods designed to scrape or extract data from the Service; (n) remove any proprietary rights, notices or markings in the Service; (o) do anything that might discover source code of the Service or bypass measures employed to prevent or limit access to any part of the Service; (p) develop or use any applications that interact with the Service without our prior written consent; (q) access the Service via a bot or automated software; or (r) otherwise use the Service in any manner that violates these Terms or Applicable Law.
5.1. You acknowledge that we or our licensors retain all proprietary right, title and interest in the Service, our name, logo or other marks (together, the “Moonhub ID Marks”), and any related intellectual property rights, including, without limitation, all modifications, enhancements, derivative works and upgrades thereto. You agree that you will not use or register any trademark, service mark, business name, domain name or social media account name or handle which incorporates in whole or in part the Moonhub ID Marks or is similar to any of these.
5.2. All materials available through the Service may be accessed, downloaded, or printed for the user’s own personal, noncommercial purpose and solely within the scope allowable by these Terms except in circumstances specified by federal or local law. No other use of these materials is allowed without express written permission of Moonhub.
5.3. Any unauthorized use of the words or images from the Service may violate copyright laws, trademark laws, the laws of privacy and publicity, and civil and criminal statutes. The Service includes material that is derived in whole or in part from materials that are copyrighted, including the content, format and layout of the Service. The copyrights are owned by Moonhub, or for licensed content, by the content providers.
5.4. None of the names, trademarks, service marks and logos of Moonhub appearing on the Service may be used in any advertising, publicity or otherwise to indicate Moonhub’s sponsorship of or affiliation with any product or service without express written permission of Moonhub. Nothing contained within the Service should be construed as granting, by implication, estoppel, waiver, or otherwise, any license or right of use to any trademark displayed on or through the Service without the written permission of Moonhub or the third-party owner of the trademark, if any. The Service may contain other proprietary notices and copyright information, the terms of which must be observed and followed by you.
6.1. The Service may enable you to provide information, text, links, graphics, photos, videos or other materials (“Your Content”). We take no responsibility for, and we do not expressly or implicitly endorse any of, Your Content. By submitting Your Content to the Service, you represent and warrant that you have all rights, power and authority necessary to grant the rights to Your Content contained within these Terms. You retain any ownership rights you have in Your Content, but you grant us a worldwide, royalty-free, perpetual, irrevocable, non-exclusive, transferable and sublicensable license to use, copy, distribute, perform and display Your Content and any name, username or likeness provided in connection with Your Content to enable your use of the Service. This license includes the right for us to make Your Content available to other companies or organizations who partner with us to enable your use of the Service. You also agree that we may remove metadata associated with Your Content, and you irrevocably waive any claims and assertions of moral rights or attribution with respect to Your Content.
6.2. Although we have no obligation to screen, edit or monitor Your Content, we may, in our sole discretion, delete or remove Your Content at any time and for any reason, including for a violation of these Terms or if you otherwise create liability for us.
6.3. If you use the Service, you understand that you are responsible for safeguarding and securing your mobile device and the associated credentials (such as your PIN code needed to access to the Services or device passwords). If you leave your mobile device unattended, or if it is lost or stolen, you understand that your account information may be accessible to others. By providing your phone number to Moonhub, you expressly consent to Moonhub calling or texting you at this phone number—in person or through an automated system.
6.4. You shall not create, post, store or share any content that (a) is unlawful, libelous, defamatory, obscene, pornographic, indecent, lewd, suggestive, harassing, threatening, invasive of privacy or publicity rights, abusive, inflammatory or fraudulent; (b) would constitute, encourage or provide instructions for a criminal offense, violate the rights of any party or otherwise create liability or violate any local, state, national or international law; (c) may infringe any patent, trademark, trade secret, copyright or other intellectual or proprietary right of Moonhub or any third party; (d) impersonates or misrepresents your affiliation with any person or entity; (e) contains any unsolicited promotions, political campaigning, advertising or solicitations; (f) contains any private or personal information of a third party without such third party’s consent; (g) contains any viruses, corrupted data or other harmful, disruptive or destructive files or content; or (h) in our sole judgment, is objectionable, restricts or inhibits any other person from using or enjoying our Service, or may expose Moonhub or others to any harm or liability of any type.
If and to the extent you provide any comments, suggestions, ideas, enhancement requests, recommendations or other feedback in connection with the Service (collectively, “Feedback”), you hereby grant us a royalty-free, irrevocable, perpetual, transferrable, sublicensable license to use and incorporate such Feedback into the Service and to otherwise use such Feedback for any other reason as we see fit without consent, obligation or compensation to you.
9.1. WARRANTIES. YOU REPRESENT AND WARRANT THAT YOU HAVE ALL NECESSARY POWER AND LEGAL AUTHORITY TO ACCEPT AND AGREE TO THESE TERMS ON BEHALF OF YOURSELF OR AS A LEGAL AGENT OR LEGAL REPRESENTATIVE OF SOMEONE ELSE, AND THAT YOU OWN ALL OF THE LEGAL RIGHTS TO THE INFORMATION YOU PROVIDE AND GRANT THE RIGHTS AND LICENSES GRANTED HEREIN; AND ALL INFORMATION THAT YOU PROVIDE TO MOONHUB OR ITS EMPLOYEES AND/OR AFFILIATES IS ACCURATE, COMPLETE AND TRUE WHEN PROVIDED.
9.2. YOU EXPRESSLY UNDERSTAND AND AGREE THAT THE USE OF THE SERVICE IS AT YOUR SOLE RISK. THE SERVICE, AT EVERY SERVICE/MEMBERSHIP LEVEL, IS PROVIDED ON AN “AS-IS” AND “AS-AVAILABLE” BASIS WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND. YOUR USE AND ACCESS OF THE SERVICES IS AT YOUR SOLE DISCRETION AND RISK AND YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGES TO YOUR DEVICE(S), SOFTWARE AND THE LOSS OF DEVICE DATA THAT RESULTS FROM THE USE THEREOF. AS BETWEEN YOU AND MOONHUB, YOU ARE SOLELY RESPONSIBLE FOR THE SECURITY AND INTEGRITY OF YOUR ACCOUNT, YOUR USER DATA AND DEVICE DATA. YOU ACKNOWLEDGE AND AGREE THAT MOONHUB SHALL HAVE NO LIABILITY ASSOCIATED WITH OR ARISING FROM ITS FAILURE TO MAINTAIN ACCURATE CONTACT OR OTHER INFORMATION, INCLUDING, BUT NOT LIMITED TO, YOUR FAILURE TO RECEIVE CRITICAL INFORMATION ABOUT THE SERVICES. MOONHUB EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT AND ANY WARRANTIES REGARDING QUIET ENJOYMENT, RELIABILITY, TIMELINESS AND PERFORMANCE OF THE SERVICES. MOONHUB MAKES NO WARRANTY THAT THE SERVICE WILL MEET A UNIQUE CLIENT’S REQUIREMENTS, BE UNINTERRUPTED, ACCURATE, COMPLETE, RELIABLE, TIMELY, SECURE OR ERROR FREE. MOONHUB WILL NOT BE RESPONSIBLE OR LIABLE FOR ANY FAILURE TO OBTAIN PERSONAL INFORMATION, LOSS OF PERSONALIZED SETTINGS, OR SERVICE INTERRUPTIONS. WHILE MOONHUB ENDEAVORS TO MAKE YOUR USE OF THE SERVICE SAFE, WE CANNOT AND DO NOT REPRESENT OR WARRANT THAT THE SERVICE OR SERVERS UPON WHICH THE SERVICE IS HOSTED ARE OR WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS OR THAT MOONHUB’S ENCRYPTION ALGORITHMS, ASSOCIATED KEYS AND OTHER SECURITY MEASURES WILL BE SECURE OR EFFECTIVE OR PREVENT THE LOSS OR ALTERATION OF OR IMPROPER ACCESS TO INFORMATION OR CONTENT BY THIRD PARTIES. THE SERVICES MAY BE USED TO ACCESS AND TRANSFER INFORMATION OVER THE INTERNET. YOU ACKNOWLEDGE AND AGREE THAT MOONHUB DOES NOT OPERATE OR CONTROL THE INTERNET AND THAT (1) VIRUSES, WORMS, TROJAN HORSES AND OTHER UNDESIRABLE DATA OR SOFTWARE, OR (2) UNAUTHORIZED USERS (E.G., HACKERS) MAY ATTEMPT TO OBTAIN ACCESS TO AND DAMAGE YOUR USER DATA, WEBSITES, DEVICES AND NETWORKS. MOONHUB IS NOT RESPONSIBLE FOR SUCH ACTIVITIES. NO ADVICE OR INFORMATION, WHETHER WRITTEN OR ORAL, OBTAINED BY YOU FROM MOONHUB, ITS EMPLOYEES OR REPRESENTATIVES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE TERMS. FEATURES AND SPECIFICATIONS OF PRODUCTS OR SERVICES DESCRIBED OR DEPICTED AS PART OF THE SERVICE ARE SUBJECT TO CHANGE AT ANY TIME WITHOUT PRIOR NOTICE. YOU ASSUME THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE SERVICE.
10.1. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, MOONHUB, OUR AFFILIATES AND OUR LICENSORS AND SERVICE PROVIDERSWILL NOT BE LIABLE TO YOU OR ANY THIRD PARTY UNDER ANY THEORY OF LIABILITY (WHETHER BASED IN CONTRACT, TORT, NEGLIGENCE STRICT LIABILITY, WARRANTY OR OTHERWISE) FOR ANY COST TO PROCURE SUBSTITUTE SERVICES OR USER DATA, OR ANY DIRECT OR INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, PUNITIVE OR SPECIAL DAMAGES (INCLUDING DAMAGES FOR PERSONAL INJURY OR LOST PROFITS, LOSS OF USER DATA, INABILITY TO ACCESS USER DATA, OR BUSINESS INTERRUPTION, ARISING OUT OF YOUR USE OR INABILITY TO USE THE SERVICES, EVEN IF MOONHUB OR THE OTHER MOONHUB PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSES.
10.2. IN ANY CASE AND WITHOUT LIMITING THE FOREGOING, THE ENTIRE LIABILITY OF MOONHUB FOR ALL DAMAGES OF EVERY KIND AND TYPE (WHETHER SUCH DAMAGES ARISE IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE) SHALL BE LIMITED TO THE FEES PAID BY YOU TO MOONHUB IN THE 12 CALENDAR MONTHS IMMEDIATELY PRIOR TO THE DAMAGES ARISING. IF THE SERVICES ARE PROVIDED TO YOU WITHOUT CHARGE, THEN MOONHUB SHALL HAVE NO LIABILITY TO YOU WHATSOEVER. THE FOREGOING TERMS SET A LIMIT ON THE AMOUNT OF DAMAGES PAYABLE AND ARE NOT INTENDED TO ESTABLISH LIQUIDATED DAMAGES. YOU EXPRESSLY RECOGNIZE AND ACKNOWLEDGE THAT SUCH LIMITATION OF LIABILITY IS AN ESSENTIAL PART OF THESE TERMS AND MOONHUB’S AGREEMENT TO PROVIDE YOU THE SERVICES. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, OR THE LIMITATION ON HOW LONG AN IMPLIED WARRANTY LASTS, SO SOME OF THE FOREGOING TERMS MAY NOT APPLY TO YOU.
10.3. THE LIMITATIONS SET FORTH IN THIS SECTION 10 WILL NOT LIMIT OR EXCLUDE LIABILITY FOR ANY MATTERS IN WHICH LIABILITY CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW. ADDITIONALLY, SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO CERTAIN LIMITATIONS OR EXCLUSIONS ABOVE MAY NOT APPLY TO YOU.
10.4. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOU RELEASE MOONHUB AND THE OTHER MOONHUB PARTIES FROM RESPONSIBILITY, LIABILITY, CLAIMS, DEMANDS AND/OR DAMAGES (ACTUAL OR CONSEQUENTIAL) OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN (INCLUDING WITHOUT LIMITATION CLAIMS OF NEGLIGENCE) ARISING OUT OF OR RELATED TO DISPUTES BETWEEN USES AND THE ACTS OR OMISSIONS OF THIRD PARTIES. IF YOU ARE A CONSUMER WHO RESIDES IN CALIFORNIA, YOU HEREBY WAIVE YOUR RIGHTS UNDER CALIFORNIA CIVIL CODE § 1542, WHICH PROVIDES: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.”
10.5. EXCEPT AS EXPRESSLY PROVIDED HEREIN, EACH PARTY (INCLUDING WITH RESPECT TO MOONHUB, ITS LICENSORS, SUPPLIERS, VENDORS, CONTRACTORS AND AGENTS, AND EACH OF ITS AND THEIR RESPECTIVE OFFICERS, EMPLOYEES, AFFILIATES AND AGENTS) DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD-PARTY RIGHTS AND ARISING BY STATUTE OR OTHERWISE IN LAW OR FROM A COURSE OF DEALING OR USAGE OF TRADE. EXCEPT AS EXPRESSLY PROVIDED HEREIN, (I) THE SERVICES (INCLUDING THE SOFTWARE ASSOCIATED THEREWITH), DELIVERABLES AND DERIVED DATA ARE MADE AVAILABLE AND/OR PROVIDED BY MOONHUB ON AN “AS IS” BASIS WITHOUT ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND, AND (II) MOONHUB AND ITS SUPPLIERS, VENDORS, CONTRACTORS AND AGENTS, AND EACH OF ITS AND THEIR RESPECTIVE OFFICERS, EMPLOYEES, AFFILIATES AND AGENTS DO NOT WARRANT: (A) AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF THE SERVICES; (B) THAT THE, CONTENT, DATA, INFORMATION OR FUNCTIONS ASSOCIATED WITH THE SERVICES WILL MEET YOUR REQUIREMENTS, BE TIMELY, ACCURATE OR UP-TO-DATE, OR BE FREE FROM MISTAKES OR ERRORS; (C) THAT THE PROVISION OF SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE; OR (D) THAT DEFECTS IN ANY SERVICES (INCLUDING ANY SOFTWARE), DELIVERABLES OR DERIVED DATA WILL BE CORRECTED.
To the fullest extent permitted by Applicable Law, you hereby agree to indemnify, defend and hold harmless Moonhub and our subsidiaries and affiliates, and each of our respective officers, directors, agents, partners and employees (individually and collectively, the “Moonhub Parties”) from and against any losses, liabilities, claims, demands, damages, expenses or costs (“Claims”) arising out of or related to (a) your access to or use of the Service; (b) Your Content or Feedback; (c) your violation of these Terms; (d) your violation, misappropriation or infringement of any rights of another (including without limitation intellectual property rights or privacy rights); or (e) your conduct in connection with the Service. You agree to promptly notify Moonhub Parties of any third-party Claims, cooperate with Moonhub Parties in defending such Claims and pay all fees, costs and expenses associated with defending such Claims (including without limitation attorneys’ fees). You also agree that, at Moonhub’s option, the Moonhub Parties will have control of the defense or settlement of any third-party Claims. This indemnity is in addition to, and not in lieu of, any other indemnities set forth in a written agreement between you and Moonhub or the other Moonhub Parties.
PLEASE READ THIS ENTIRE SECTION CAREFULLY BECAUSE IT REQUIRES YOU TO ARBITRATE CERTAIN DISPUTES AND CLAIMS WITH MOONHUB AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM MOONHUB, UNLESS YOU OPT OUT OF ARBITRATION BY FOLLOWING THE INSTRUCTIONS SET FORTH BELOW. NO CLASS OR REPRESENTATIVE ACTIONS OR ARBITRATIONS ARE ALLOWED UNDER THIS ARBITRATION PROVISION. IN ADDITION, ARBITRATION PRECLUDES YOU FROM SUING IN COURT OR HAVING A JURY TRIAL.
12.6. NO REPRESENTATIVE ACTIONS. YOU AND MOONHUB AGREE THAT ANY DISPUTE ARISING OUT OF OR RELATED TO THESE TERMS OR THE SERVICE IS PERSONAL TO YOU AND MOONHUB AND THAT ANY DISPUTE WILL BE RESOLVED SOLELY THROUGH INDIVIDUAL ACTION, AND WILL NOT BE BROUGHT AS A CLASS ARBITRATION, CLASS ACTION OR ANY OTHER TYPE OR REPRESENTATIVE PROCEEDING
12.7. ARBITRATION OF DISPUTES. EXCEPT FOR SMALL CLAIMS DISPUTES IN WHICH YOU OR MOONHUB SEEKS TO BRING AN INDIVIDUAL ACTION IN SMALL CLAIMS COURT LOCATED IN THE COUNTY OF YOUR BILLING ADDRESS OR DISPUTES IN WHICH YOU OR MOONHUB SEEKS INJUNCTIVE OR OTHER EQUITABLE RELIEF FOR THE ALLEGED INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY, YOU AND MOONHUB EACH WAIVE ANY AND ALL RIGHTS TO A JURY TRIAL ARISING OUT OF OR RELATED TO THESE TERMS OR THE SERVICE. INSTEAD, FOR ANY DISPUTE THAT YOU HAVE AGAINST MOONHUB, YOU AGREE TO FIRST CONTACT MOONHUB AND RESOLVE THE DISPUTE INFORMALLY BY SENDING WRITTEN NOTICE OF YOUR CLAIM TO MOONHUB BY EMAIL AT OR BY CERTIFIED MAIL ADDRESSED TO EVER CAREERS INCORPORATED, 325 SHARON PARK DRIVE, PO 214, MENLO PARK, CA 94025
12.8. THE NOTICE MUST (A) INCLUDE YOUR NAME, RESIDENTIAL ADDRESS, EMAIL ADDRESS AND TELEPHONE NUMBER; (B) DESCRIBE THE NATURE AND BASIS OF THE DISPUTE; AND (C) SET FORTH THE SPECIFIC RELIEF SOUGHT. OUR NOTICE TO YOU WILL BE SIMILAR IN FORM TO THAT DESCRIBED ABOVE. IF YOU AND MOONHUB CANNOT REACH AN AGREEMENT TO RESOLVE THE DISPUTE WITHIN THIRTY (30) DAYS AFTER SUCH NOTICE IS RECEIVED, THEN EITHER PARTY MAY SUBMIT THE DISPUTE TO BINDING ARBITRATION ADMINISTERED BY JAMS OR, UNDER THE LIMITED EXCEPTIONS EXPRESSLY DESCRIBED IN THESE TERMS, IN COURT. ALL DISPUTES SUBMITTED TO JAMS WILL BE RESOLVED THROUGH CONFIDENTIAL, BINDING ARBITRATION. ARBITRATION PROCEEDINGS WILL BE HELD IN NEW CASTLE COUNTY, DELAWARE UNLESS DELAWARE AS VENUE IS PROHIBITED UNDER APPLICABLE LAW. YOU AND MOONHUB AGREE THAT DISPUTES WILL BE ARBITRATED AND RESOLVED IN ACCORDANCE WITH THE JAMS STREAMLINED ARBITRATION RULES AND PROCEDURES (“JAMS RULES”). THE MOST RECENT VERSION OF THE JAMS RULES ARE ON THE JAMS WEBSITE AND ARE HEREBY INCORPORATED INTO THESE TERMS BY REFERENCE. YOU EITHER ACKNOWLEDGE AND AGREE THAT YOU HAVE READ AND UNDERSTAND THE JAMS RULES OR WAIVE YOUR OPPORTUNITY TO READ THE JAMS RULES AND WAIVE ANY CLAIM THAT THE JAMS RULES ARE UNFAIR OR SHOULD NOT APPLY FOR ANY REASON.
12.9. YOU AND MOONHUB AGREE THAT THESE TERMS AFFECT INTERSTATE COMMERCE AND THAT THE ENFORCEABILITY OF THIS SECTION 12 WILL BE SUBSTANTIVELY AND PROCEDURALLY GOVERNED BY THE FEDERAL ARBITRATION ACT, 9 U.S.C. § 1, ET SEQ. (THE “FAA”), TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. AS LIMITED BY THE FAA, THESE TERMS AND THE JAMS RULES, THE ARBITRATOR WILL HAVE EXCLUSIVE AUTHORITY TO MAKE ALL PROCEDURAL AND SUBSTANTIVE DECISIONS REGARDING ANY DISPUTE AND TO GRANT ANY REMEDY THAT WOULD OTHERWISE BE AVAILABLE IN COURT, INCLUDING WITHOUT LIMITATION THE POWER TO DETERMINE THE QUESTION OF ARBITRABILITY. THE ARBITRATOR MAY CONDUCT ONLY AN INDIVIDUAL ARBITRATION AND MAY NOT CONSOLIDATE MORE THAN ONE INDIVIDUAL’S CLAIMS, PRESIDE OVER ANY TYPE OF CLASS OR REPRESENTATIVE PROCEEDING OR PRESIDE OVER ANY PROCEEDING INVOLVING MORE THAN ONE INDIVIDUAL.
12.10. THE ARBITRATION WILL ALLOW FOR THE DISCOVERY OR EXCHANGE OF NON-PRIVILEGED INFORMATION RELEVANT TO THE DISPUTE. THE ARBITRATOR, MOONHUB AND YOU WILL ALL MAINTAIN THE CONFIDENTIALITY OF ANY AND ALL ARBITRATION PROCEEDINGS, JUDGMENTS AND AWARDS, INCLUDING WITHOUT LIMITATION INFORMATION GATHERED, PREPARED AND PRESENTED FOR PURPOSES OF THE ARBITRATION OR RELATED TO THE DISPUTE(S) THEREIN. THE ARBITRATOR WILL HAVE AUTHORITY TO MAKE APPROPRIATE RULINGS TO SAFEGUARD CONFIDENTIALITY, UNLESS APPLICABLE LAW PROVIDES TO THE CONTRARY. THE DUTY OF CONFIDENTIALITY DOES NOT APPLY TO THE EXTENT THAT DISCLOSURE IS NECESSARY TO PREPARE FOR A PRELIMINARY REMEDY OR IN CONNECTION WITH A JUDICIAL CHALLENGE TO AN ARBITRATION AWARD OR ITS ENFORCEMENT, OR TO THE EXTENT THAT DISCLOSURE IS OTHERWISE REQUIRED BY LAW OR JUDICIAL DECISION.
12.11. YOU AND MOONHUB AGREE THAT FOR ANY ARBITRATION YOU INITIATE, YOU WILL PAY THE FILING FEE (UP TO A MAXIMUM OF $250 IF YOU ARE A CONSUMER) AND MOONHUB WILL PAY THE REMAINING JAMS FEES AND COSTS. FOR ANY ARBITRATION INITIATED BY MOONHUB, MOONHUB WILL PAY ALL JAMS FEES AND COSTS. YOU AND MOONHUB AGREE THAT THE STATE OF FEDERAL COURTS OF THE STATE OF DELAWARE AND THE UNITED STATES SITTING IN WILMINGTON, DELAWARE HAVE EXCLUSIVE JURISDICTION OVER ANY APPEALS AND THE ENFORCEMENT OF AN ARBITRATION AWARD.
12.12. ANY CLAIM YOU WISH TO ASSERT AGAINST MOONHUB OR ANOTHER MOONHUB PARTY MUST BE FILED WITHIN ONE YEAR AFTER THE CAUSE OF ACTION UNDERLYING SUCH CLAIM FIRST AROSE; OTHERWISE THE DISPUTE IS PERMANENTLY BARRED, WHICH MEANS THAT YOU WILL NOT HAVE THE RIGHT TO ASSERT THE CLAIM IF YOU FAIL TO NOTIFY MOONHUB OF THE DISPUTE WITHIN SUCH TIME PERIOD.
12.13. IF ANY PORTION OF THIS SECTION 12 IS FOUND TO BE UNENFORCEABLE OR UNLAWFUL FOR ANY REASON, (A) THE UNENFORCEABLE OR UNLAWFUL PROVISION SHALL BE SEVERED FROM THESE TERMS; (B) SEVERANCE OF THE UNENFORCEABLE OR UNLAWFUL PROVISION SHALL HAVE NO IMPACT WHATSOEVER ON THE REMAINDER OF THIS SECTION 12 OR THE PARTIES’ ABILITY TO COMPEL ARBITRATION OF ANY REMAINING CLAIMS ON AN INDIVIDUAL BASIS PURSUANT TO THIS SECTION 12; AND (C) TO THE EXTENT ANY CLAIMS MUST THEREFORE PROCEED ON A CLASS, COLLECTIVE, CONSOLIDATED OR REPRESENTATIVE BASIS, SUCH CLAIMS MUST BE LITIGATED IN A CIVIL COURT OF COMPETENT JURISDICTION AND NOT IN ARBITRATION, AND YOU AGREE THAT LITIGATION OF THOSE CLAIMS SHALL BE STAYED PENDING THE OUTCOME OF ANY INDIVIDUAL CLAIMS IN ARBITRATION. FURTHER, IF ANY PART OF THIS SECTION 12 IS FOUND TO PROHIBIT AN INDIVIDUAL CLAIM SEEKING PUBLIC INJUNCTIVE RELIEF, THAT PROVISION WILL HAVE NO EFFECT TO THE EXTENT SUCH RELIEF IS ALLOWED TO BE SOUGHT OUT OF ARBITRATION, AND THE REMAINDER OF THIS SECTION 13 WILL BE ENFORCEABLE.
These Terms shall be governed, construed, and enforced in accordance with the laws of the U.S. State of Delaware, without reference to conflict of law rules or choice of law principles. Except for injunctive relief required by Moonhub to protect its intellectual property, all related litigation shall be resolved in the state or federal courts of Delaware and the United States, respectively, sitting in Delaware.
YOU AND MOONHUB AGREE THAT EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. YOU AGREE THAT, BY USING THE SERVICE AND THEREBY ACCEPTING THESE TERMS, YOU AND MOONHUB ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY.
You understand that the Services are subject to U.S. export control laws and regulations, as well as to federal, state, and local laws of the jurisdiction(s) where the Services are delivered and/or used and all applicable rules, regulations, statutes, executive orders, directives, decrees, guidance, or other official releases of or by any governmental authority or any regulatory or self-regulatory organization, whether foreign, federal, state, provincial or local, including, without limitation, security and data protection and employment discrimination laws. (“Applicable Law”).
You may not export or otherwise access or use the Service except as expressly authorized by United States law and the laws of the jurisdiction in which the Service is hosted or where you use the Service. The Service may not be (a) imported, exported, transferred, licensed, released, or accessed into any countries that are subject to U.S. economic sanctions, (b) provided to or used by anyone on the U.S. Department of the Treasury’s lists of Foreign Sanctions Evaders or Specially Designated Nationals or the U.S. Department of Commerce Denied Persons, Unverified or Entity lists; or (c) used directly or indirectly in violation of Applicable Law. By using the Service, you represent and warrant that you are not located in any such country or on any such list, and shall not use the Service, or provide access to or use of the Service to anyone, in any such country. In addition, you are responsible for compliance with applicable export control, economic sanctions and related laws when you travel across international borders and access Your Account.
Enforcement of these Terms is solely at Moonhub’s discretion, and Moonhub’s failure to enforce a provision of these Terms in a given instance does not constitute a waiver of Moonhub’s right to enforce it in other instances.
Moonhub may provide information about third-party products, services, activities or events, or we may allow third parties to make their content and information available on or through the Service (collectively, “Third-Party Content”). Your dealings or correspondence with third parties and your use of or interaction with any Third-Party Content are solely between you and the third party. Moonhub does not control or endorse, and makes no representations or warranties regarding, any Third-Party Content, and your access to and use of such Third-Party Content is at your own sole risk.
If You have any questions about these Terms or otherwise need to contact us for any reason, You can reach us at 325 Sharon Park Drive #214, Menlo Park, CA, by phone at 9178416128 or at firstname.lastname@example.org