PLEASE READ THESE TERMS OF SERVICE ("THE AGREEMENT") CAREFULLY BEFORE USING THE SERVICES OFFERED BY OPENELEVATOR AG. ("THE COMPANY"). BY VISITING THE WEBSITES OR USING THE SERVICES IN ANY MANNER, YOU AGREE THAT YOU HAVE READ AND AGREED TO BE BOUND BY AND A PARTY TO THE TERMS AND CONDITIONS OF THIS AGREEMENT TO THE EXCLUSION OF ALL OTHER TERMS. IF THE TERMS OF THIS AGREEMENT ARE CONSIDERED AN OFFER, ACCEPTANCE IS EXPRESSLY LIMITED TO SUCH TERMS. IF YOU DO NOT UNCONDITIONALLY AGREE TO ALL THE TERMS AND CONDITIONS OF THE AGREEMENT, YOU HAVE NO RIGHT TO USE THE WEBSITE OR SERVICES. USE OF THE COMPANY'S SERVICES IS EXPRESSLY CONDITIONED UPON YOUR ASSENT TO ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT, TO THE EXCLUSION OF ALL OTHER TERMS.
The www.OpenElevator.com website and domain name and all other websites and domain names affiliated with the Company, and any other linked pages, features, content, or application services offered from time to time by the Company in connection therewith (collectively, the "Website") are owned and operated by the Company. Subject to the terms and conditions of this Agreement, the Company may offer to provide certain services, as described more fully on the Website, and which are selected by you through the process provided on the Website (together with the Website, "Services"), solely for your own use, and not for the use or benefit of any third party. The term "Services" shall include, without limitation, any service the Company performs for you and the content offered by the Company on the Website. The Company may change, suspend or discontinue the Services at any time, including the availability of any feature, database, or content. The Company may also impose limits on certain features and services or restrict your access to parts or all of the Services without notice or liability.
You represent and warrant to the Company that: (i) if you are accepting this Agreement on behalf of a business or entity, you have authority to do so; (ii) all registration information you submit is accurate and truthful; and (iii) you will maintain the accuracy of such information. You also certify that you are legally permitted to use and access the Services and take full responsibility for the selection and use of and access to the Services. This Agreement is void where prohibited by law, and the right to access the Services is revoked in such jurisdictions.
You shall be responsible for obtaining and maintaining any equipment or ancillary services needed to connect to, access, or otherwise use the Services, including, without limitation, modems, hardware, software, and long distance or local telephone service. You shall be responsible for ensuring that such equipment or ancillary services are compatible with the Services.
The Website and its contents are intended solely for your internal business purposes and may only be used in accordance with the terms of this Agreement. All materials displayed or performed on the Website (including, but not limited to text, graphics, articles, photographs, images, illustrations (also known as the "Content")) are protected by copyright. You shall abide by all copyright notices, trademark rules, information, and restrictions contained in any Content accessed through the Services, and shall not use, copy, reproduce, modify, translate, publish, broadcast, transmit, distribute, perform, upload, display, license, sell or otherwise exploit for any purposes whatsoever any Content or third party submissions or other proprietary rights not owned by you: (i) without the express prior written consent of the respective owners, and (ii) in any way that violates any third party right.
The Website is protected by copyright as a collective work and/or compilation, pursuant to copyright laws, international conventions, and other copyright laws. You may not modify, publish, transmit, participate in the transfer or sale of, reproduce (except as expressly provided in this Section 2), create derivative works based on, distribute, perform, display, or in any way exploit, any of the Content, software, materials, or Services in whole or in part.
In the course of using the Services, you may provide information, which may be used by the Company in connection with the Services. You understand that by posting information or content on the Website, or otherwise providing content, materials or information to the Company or in connection with the Services (collectively, "Employer Submissions" and/or "Individual Submissions"), the Company hereby is and shall be granted a non-exclusive, worldwide, royalty-free, perpetual, irrevocable, sublicenseable and transferable right to fully exploit such Employer Submissions (including all related intellectual property rights) in connection with the Website, the Services, and/or the Company's (and/or its successors and assigns) business; however, the Company will only share Employer Submission in accordance with Section 6 below. For example, you may provide the Company with your requested criteria for employment candidates and a description of your business, and the Company may use this information to find potential employees for you and to provide information about your business to those potential employees. You understand that the Company retains the right to reformat, modify, create derivative works of, excerpt, and translate any Employer Submissions submitted by you.
You may download or copy the Content (and other items displayed on the Website for download) for personal non-commercial use only, provided that you maintain all copyright and other notices contained in such Content. You shall not store any significant portion of any Content in any form. Copying or storing of any Content other than personal, noncommercial use is expressly prohibited without prior written permission from the Company or from the copyright holder identified in such Content's copyright notice. If you link to the Website, the Company may revoke your right to so link at any time, at the Company's sole discretion. The Company reserves the right to require prior written consent before linking to the Website.
You understand that all information publicly posted or privately transmitted through the Services is the sole responsibility of the person from which such content originated and that the Company will not be liable for any errors or omissions in any content. You understand that the Company cannot guarantee the identity of any users with whom you may interact in the course of using the Services. Additionally, the Company cannot guarantee the authenticity of any data, which users may provide about themselves. You acknowledge that all Content accessed by you using the Services is at your own risk and you will be solely responsible for any damage or loss to any party resulting therefrom.
Under no circumstances will the Company be liable in any way for any Content, including, but not limited to, any errors or omissions in any Content, or any loss or damage of any kind incurred in connection with use of or exposure to any Content posted, emailed, accessed, transmitted, or otherwise made available via the Services.
You warrant, represent and agree that you will not contribute any Content or otherwise use the Services in a manner that (i) infringes or violates the intellectual property rights or proprietary rights, rights of publicity or privacy, or other rights of any third party; (ii) violates any law, statute, ordinance or regulation; or (iii) is harmful, threatening, abusive, harassing, tortuous, defamatory, vulgar, obscene, libelous, or otherwise objectionable.
The Company reserves the right to remove any Content from the Services at any time, for any reason (including, but not limited to, upon receipt of claims or allegations from third parties or authorities relating to such Content or if the Company is concerned that you may have breached the immediately preceding sentence), or for no reason at all. You, not the Company, remain solely responsible for all Content that you upload, post, email, transmit, or otherwise disseminate using, or in connection with, the Services, and you warrant that you possess all rights necessary to provide such content to the Company and to grant the Company the rights to use such information in connection with the Services and as otherwise provided herein.
You are responsible for all of your activity in connection with the Services. Any fraudulent, abusive, or otherwise illegal activity may be grounds for termination of your right to access or use the Services. You may not post or transmit, or cause to be posted or transmitted, any communication or solicitation designed or intended to obtain password, account, or private information from any Company user. You will not use any information about the Company users for any purpose other than facilitating a potential employment relationship at your company or place of business. Use of the Services to violate the security of any computer network, crack passwords or security encryption codes, transfer or store illegal material (including material that may be considered threatening or obscene), or engage in any kind of illegal activity is expressly prohibited. You will not run Maillist, Listserv, any form of auto-responder, or "spam" on the Services, or any processes that run or are activated while you are not logged on to the Website, or that otherwise interfere with the proper working of or place an unreasonable load on the Services' infrastructure. Further, the use of manual or automated software, devices, or other processes to "crawl" or "spider" any page of the Website is strictly prohibited. You will not decompile, reverse engineer, or otherwise attempt to obtain the source code of the Services. You will be responsible for withholding, filing, and reporting all taxes, duties and other governmental assessments associated with your activity in connection with the Services.
The Company has no special relationship with or fiduciary duty to you. You acknowledge that the Company has no control over, and no duty to take any action regarding: which users gain access to the Services; what Content you access via the Services; what effects the Content may have on you; how you may interpret or use the Content; or what actions you may take as a result of having been exposed to the Content. You release the Company from all liability for you having acquired or not acquired Content through the Services. The Services may contain, or direct you to websites containing, information that some people may find offensive or inappropriate. The Company makes no representations concerning any content contained in or accessed through the Services, and the Company will not be responsible or liable for the accuracy, copyright compliance, legality or decency of material contained in or accessed through the Services. You understand and agree that the Company does not guarantee your use of the Services will result in your finding suitable employees. THE SERVICES, CONTENT, WEBSITE AND ANY SOFTWARE ARE PROVIDED ON AN "AS IS" BASIS, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR THAT USE OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE.
Both parties may have access to the other's business, technical, or financial information ("Confidential Information" of the disclosing party) during the course of this Agreement. The Company's users' information (including without limitation personally identifiable information of the Company users), and the terms of this Agreement, shall be considered the Company's Confidential Information. Each party shall hold the other's Confidential Information in confidence, and not use or disclose such Confidential Information to third parties except as required and/or permitted in order for a party to perform its obligations or exercise its rights under this Agreement. Confidential Information shall not include any information that: (i) is or becomes (through no fault of the receiving party) generally available to the public; (ii) was in the receiving party's possession or known by it without restriction prior to receipt from the disclosing party; (iii) was rightfully disclosed to it by a third party; or (iv) was independently developed without use of any Confidential Information of the disclosing party. Each party may make disclosures required by law or court order provided the party making such disclosures uses diligent reasonable efforts to limit disclosure of Confidential Information and to obtain confidential treatment or a protective order. Notwithstanding anything else, we may identify you as a customer of the Company.
As a condition to using Services, you may be required to register with the Company and select a password and name ("User ID"). You shall provide the Company with accurate, complete, and updated registration information. Failure to do so shall constitute a breach of this Agreement, which may result in immediate termination of your account. You may not (i) select or use as a User ID a name of another person or business entity with the intent to impersonate that person or business entity; or (ii) use as a User ID a name subject to any rights of a person or business entity other than you without appropriate authorization. The Company reserves the right to refuse registration of or cancel a User ID in its discretion. You shall be responsible for maintaining the confidentiality of your password.
You will indemnify and hold the Company, its parents, subsidiaries, affiliates, officers, and employees harmless (including costs and attorneys' fees) from any claim or demand made by any third party due to or arising out of your access to the Services, use of the Services, your violation of this Agreement, or the infringement by you or any third party using your account of any intellectual property or other right of any person or entity.
IN NO EVENT SHALL THE COMPANY OR ITS SUPPLIERS, OR THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, OR AGENTS BE LIABLE WITH RESPECT TO THE WEBSITE OR THE SERVICES OR THE SUBJECT MATTER OF THIS AGREEMENT UNDER ANY CONTRACT, NEGLIGENCE, TORT, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY (I) FOR ANY AMOUNT IN THE AGGREGATE IN EXCESS OF THE GREATER OF THE FEES PAID BY YOU THEREFORE OR $100; (II) FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER; (III) FOR DATA LOSS OR COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; OR (IV) FOR ANY MATTER BEYOND THE COMPANY'S REASONABLE CONTROL. SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO YOU.
The Company will inform you whether you are required to pay a Monthly Recurring Fee per position published as described in detail below, which you may cancel at any time to terminate the use of the Company Services.
a. If the Company requires you to pay a monthly fee, you shall pay to the Company the Company's standard monthly fee for the service you have selected or such other monthly fee as may be mutually agreed by the parties in writing (the "Subscription Fee").
b. If you have agreed with the Company to pay by credit card, the Monthly Fee will be charged to you monthly in advance, to the credit card you have provided to the Company. If the credit card information you have provided is incorrect, incomplete, or the Company is otherwise unable to complete a transaction due to your error or omission, the Company reserves the right to suspend or terminate your account and/or your use of the Services.
c. If you have agreed with the Company to be billed via email or paper invoice, the Monthly Fee will be billed to you monthly in advance. Invoices must be paid within fifteen (15) days of your receipt thereof. The Company reserves the right to suspend or terminate your account and/or your use of the Services if you are late in making any Fee payment.
d. Monthly Fees are non-refundable. The Company may change the Fee upon thirty (30) days' notice to you, and such change will take effect the next time you are billed by the Company following the end of the thirty (30) day notice period. If you do not wish to pay the new Fee, your only remedy shall be to terminate this Agreement and cease use of the Company Services, prior to the end of such notice period. You may cancel your subscription at any time, but again, no refunds will be granted for Fees paid.
By using the Services, you expressly relieve and hold harmless the Company from any and all liability arising from your use of any third party website. Your interactions with organizations and/or individuals found on or through the Services, including payment and delivery of goods or services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and such organizations and/or individuals. You should make whatever investigation you feel necessary or appropriate before proceeding with any online or offline transaction with any of these third parties. You agree that the Company shall not be responsible or liable for any loss or damage of any sort incurred as the result of any such dealings. If there is a dispute between participants on this site, or between users and any third party, you understand and agree that the Company is under no obligation to become involved. In the event that you have a dispute with one or more other users, you hereby release the Company, its officers, employees, agents, and successors in rights from claims, demands, and damages (actual and consequential) of every kind or nature, known or unknown, suspected or unsuspected, disclosed or undisclosed, arising out of or in any way related to such disputes and/or our service.
This Agreement shall remain in full force and effect while you use the Services. You may terminate your use of the Services or your membership at any time by following the instructions on the Website or by contacting the Company directly. The Company may terminate your access to the Services or your membership at any time, for any reason, and without warning, which may result in the forfeiture and destruction of all information associated with your membership. The Company may also terminate or suspend any and all Services and access to the Website immediately, without prior notice or liability, if you breach any of the terms or conditions of this Agreement. Except as explicitly set forth in Section 10, any fees paid hereunder are non-refundable. Upon termination of your account, your right to use the Services, access the Website, and any Content will immediately cease. All provisions of this Agreement which, by their nature, should survive termination, shall survive termination, including, without limitation, ownership provisions, warranty disclaimers, and limitations of liability.
The failure of either party to exercise, in any respect, any right provided for herein shall not be deemed a waiver of any further rights hereunder. The Company shall not be liable for any failure to perform its obligations hereunder where such failure results from any cause beyond the Company's reasonable control, including, without limitation, mechanical, electronic or communications failure or degradation (including "line-noise" interference). If any provision of this Agreement is found to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable or sublicensable by you except with the Company's prior written consent. The Company may transfer, assign or delegate this Agreement and its rights and obligations without consent. This Agreement shall be governed by and construed in accordance with the laws of Switzerland without regard to the conflict of laws provisions thereof. Any dispute arising from or relating to the subject matter of this Agreement shall be finally settled by arbitration in Zurich, Switzerland, using the English language. Judgment upon the award so rendered may be entered in a court having jurisdiction, or application may be made to such court for judicial acceptance of any award and an order of enforcement, as the case may be. 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. For all purposes of this Agreement, the parties consent to exclusive jurisdiction and venue in Switzerland. Both parties agree that this Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all modifications must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement and you do not have any authority of any kind to bind the Company in any respect whatsoever.
Effective January 1, 2017