Terms of Service
Effective Date: September 10, 2020
Welcome to Underdog.io, a site operated by Porter Labs Inc. (“Underdog.io,” “us,” and “we”). Underdog.io provides a platform designed to allow candidates (“Candidates”) seeking employment and or contractor opportunities to be connected with companies (“Companies”) interested in hiring or engaging Candidates.
PLEASE READ THIS TERMS OF SERVICE AGREEMENT (“AGREEMENT”) CAREFULLY. THIS WEBSITE AND ANY OTHER WEBSITES OF UNDERDOG.IO, ITS AFFILIATES OR AGENTS (COLLECTIVELY, THE “WEBSITE”) AND THE INFORMATION ON IT ARE CONTROLLED BY UNDERDOG.IO. THIS AGREEMENT GOVERNS YOUR USE OF THE WEBSITE, AND THE RECRUITING SERVICES, INFORMATION AND CONTENT AVILABLE OR ENABLED VIA THE WEBSITE (THE “SERVICES”). BY CLICKING ON THE “I ACCEPT” BUTTON, COMPLETING THE REGISTRATION PROCESS, OR ACCESSING OR USING ANY OF THE SERVICES, YOU REPRESENT THAT (1) YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THIS AGREEMENT, (2) YOU ARE OF LEGAL AGE TO FORM A BINDING CONTRACT WITH UNDERDOG.IO, AND (3) YOU HAVE THE AUTHORITY TO ENTER INTO THE AGREEMENT PERSONALLY OR ON BEHALF OF THE COMPANY YOU HAVE NAMED AS THE USER, AND TO BIND THAT COMPANY TO THE AGREEMENT. THE TERM “YOU” OR “USER” REFERS TO THE INDIVIDUAL OR LEGAL ENTITY, AS APPLICABLE, IDENTIFIED AS THE USER WHEN YOU REGISTERED FOR THE SERVICES. UNLESS OTHERWISE SPECIFIED, “YOU” REFERS TO BOTH CANDIDATES AND COMPANIES. IF YOU DO NOT AGREE TO BE BOUND BY THIS AGREEMENT, YOU MAY NOT ACCESS OR USE THIS WEBSITE OR THE SERVICES.
PLEASE BE AWARE THAT SECTION 16 OF THIS AGREEMENT BELOW CONTAINS PROVISIONS GOVERNING HOW CLAIMS THAT YOU AND WE HAVE AGAINST EACH OTHER ARE RESOLVED, INCLUDING, WITHOUT LIMITATION, ANY CLAIMS THAT AROSE OR WERE ASSERTED PRIOR TO THE EFFECTIVE DATE OF THIS AGREEMENT. IN PARTICULAR, IT CONTAINS AN ARBITRATION AGREEMENT WHICH WILL, WITH LIMITED EXCEPTIONS, REQUIRE DISPUTES BETWEEN US TO BE SUBMITTED TO BINDING AND FINAL ARBITRATION. UNLESS YOU OPT OUT OF THE ARBITRATION AGREEMENT: (1) YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AND SEEK RELIEF AGAINST US ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING; AND (2) YOU ARE WAIVING YOUR RIGHT TO SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL ON YOUR CLAIMS.
ANY DISPUTE OR CLAIM RELATING IN ANY WAY TO YOUR USE OF THE WEBSITE OR THE SERVICES WILL BE GOVERNED AND INTERPRETED BY AND UNDER THE LAWS OF THE STATE OF NEW YORK, CONSISTENT WITH THE FEDERAL ARBITRATION ACT, WITHOUT GIVING EFFECT TO ANY PRINCIPLES THAT PROVIDE FOR THE APPLICATION OF THE LAW OF ANY OTHER JURISDICTION. THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS IS EXPRESSLY EXCLUDED FROM THIS AGREEMENT.
Your use of, and participation in, certain Services may be subject to additional terms (“Supplemental Terms”) and such Supplemental Terms will either be listed in this Agreement or will be presented to you for your acceptance when you sign up to use the supplemental Service. If the Agreement is inconsistent with the Supplemental Terms, the Supplemental Terms shall control with respect to such Service. All Supplemental Terms are hereby incorporated into this Agreement by reference. This Agreement and any applicable Supplemental Terms are referred to herein as the “Terms.”
PLEASE NOTE THAT THE TERMS ARE SUBJECT TO CHANGE BY UNDERDOG.IO IN ITS SOLE DISCRETION AT ANY TIME. When changes are made, Underdog.io will make a new copy of the Agreement available at the Website and any new Supplemental Terms will be made available from within, or through, the affected Service on the Website. We will also update the “Last Updated” date at the top of the Agreement. If we make material changes to the Agreement, we may (and, where required by law, will) also provide notification of changes in another way that we believe is reasonably likely to reach you, such as via e-mail if you have an Account (as defined in Section 2.1) or another manner through the Services (which may include posting an announcement on our Website). Underdog.io may require you to provide consent to the updated Agreement in a specified manner before further use of the Website and/ or the Services is permitted. If you do not agree to any change(s) after receiving a notice of such change(s), you agree to stop using the Website and the Services. Otherwise, your continued use of the Website or Services constitutes your acceptance of such change(s). PLEASE REGULARLY CHECK THE WEBSITE TO VIEW THE THEN-CURRENT TERMS.
1. Use of the Services. The Website, the Services, and the information and content available on the Website and the Services (as these terms are defined herein) (collectively, the “Underdog.io Properties”) are protected by copyright laws throughout the world. Subject to the Terms, Underdog.io grants you a limited license to use the Underdog.io Properties solely for your personal or internal business purposes. Unless otherwise specified by Underdog.io in a separate license, your right to use any Underdog.io Properties is subject to the Terms. For the avoidance of doubt, you will not reproduce or share any information with any third party, including third parties with which you have a strategic or financial relationship, without our consent.
1.1 Updates. Underdog.io may from time to time develop patches, bug fixes, updates, upgrades and other modifications to improve the performance of the Services (“Updates”). These Updates may be automatically installed without providing any additional notice or receiving any additional consent. Under this Agreement, you consent to these automatic updates. If you do not wish to use such Updates, your sole remedy is to terminate your Account. If you do not terminate your Account, you will receive Updates automatically. Your continued use of the Underdog.io Properties is your agreement to this Agreement with respect to the Underdog.io Properties.
1.2 Certain Restrictions. The rights granted to you in this Agreement are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, reproduce, distribute, host or otherwise commercially exploit any Underdog.io Properties or any portion of Underdog.io Properties, including the Website; (b) you shall not frame or utilize framing techniques to enclose any trademark, logo, or other Underdog.io Properties (including images, text, page layout or form) of Underdog.io; (c) you shall not use any metatags or other “hidden text” using Underdog.io’s name or trademarks; (d) you shall not modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any part of Underdog.io Properties; (e) you shall not use any manual or automated software, devices or other processes (including, but not limited to, spiders, robots, scrapers, crawlers, avatars, data mining tools or the like) to “scrape” or download data from any web pages contained in the Website (except that we grant the operators of public search engines revocable permission to use spiders to copy materials from the Website for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials); (f) you will not access any Underdog.io Properties in order to build a similar or competitive website, application or service; (g) except as expressly stated herein, no part of any Underdog.io Properties may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means; and (h) you shall not remove or destroy any copyright notices or other proprietary markings contained on or in Underdog.io Properties. Any future release, update or other addition to Underdog.io Properties shall be subject to the Terms. Underdog.io, its suppliers and service providers reserve all rights not granted in the Terms. Any unauthorized use of Underdog.io Properties terminates the licenses granted by Underdog.io pursuant to the Terms.
1.3 Third-Party Materials. As a part of Underdog.io Properties, you may have access to materials that are hosted by another party. You agree that it is impossible for Underdog.io to monitor such materials and that you access these materials at your own risk.
2. Registration
2.1 Registering Your Account. In order to access certain features of Underdog.io Properties, you must become a Registered User. For purposes of the Terms, a “Registered User” is a user who has registered an account through the Website or Services (“Account”). Underdog.io may allow you use a third party service, like Google, to register for an Account.
2.2 Registration Data. In registering an Account through the Services, you agree to (a) provide true, accurate, current and complete information about yourself as prompted by the registration form (the “Registration Data”); and (b) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. You represent that you are (i) at least eighteen (18) years old; (ii) of legal age to form a binding contract; and (iii) not a person barred from using Underdog.io Properties under the laws of the United States, your place of residence or any other applicable jurisdiction. You are responsible for all activities that occur under your Account. You agree to monitor your Account to restrict use by minors, and you will accept full responsibility for any unauthorized use of Underdog.io Properties by minors. You may not share your Account or password with anyone, and you agree to (i) notify Underdog.io immediately of any unauthorized use of your password or any other breach of security; and (ii) exit from your Account at the end of each session. If you provide any information that is untrue, inaccurate, not current or incomplete, or Underdog.io has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, Underdog.io has the right to suspend or terminate your Account and refuse any and all current or future use of Underdog.io Properties (or any portion thereof). You agree not to create an Account using a false identity or information, or on behalf of someone other than yourself. You agree that you shall not have more than one Account at any given time. Underdog.io reserves the right to remove or reclaim any usernames at any time and for any reason, including but not limited to, claims by a third party that a username violates the third party’s rights. You agree not to create an Account or use Underdog.io Properties if you have been previously removed by Underdog.io, or if you have been previously banned from any of Underdog.io Properties. For more specific details on registration, please see the Candidate Specific Terms or Company Specific Terms, as applicable, below.
2.3 Account Sharing. Company will not permit a Registered User to share its access to the Services with any other individual. If Underdog.io discovers that Registered Users are sharing seat access to the Services with other Company employees or contractors who have not been provisioned access (each, an “Unauthorized User”), then Underdog.io will have the right to provision any unused seats purchased by Company to the Unauthorized Users to remedy Company's breach. Company may not resell, transfer access to, or otherwise monetize the Services without Underdog.io's written consent. Each Registered User must have a unique identifier for a login, such as a unique email address or IP address. Aliases are not permitted.
2.4 Necessary Equipment and Software. You must provide all equipment and software necessary to connect to Underdog.io Properties. You are solely responsible for any fees, including Internet connection or mobile fees, that you incur when accessing Underdog.io Properties.
3. Responsibility for Content
3.1 Types of Content. You acknowledge that all data, text, software, sounds, photographs, graphics, videos, messages, tags and/or other materials (collectively, “Content”), including Underdog.io Properties, is the sole responsibility of the party from whom such Content originated. This means that you, and not Underdog.io, are entirely responsible for all Content that you upload, post, e-mail, transmit or otherwise make available (“Make Available”) through Underdog.io Properties or data collected by or related to the Services and your use thereof (collectively, “Your Content”), and that you and other Users of Underdog.io Properties, and not Underdog.io, are similarly responsible for all Content they Make Available through Underdog.io Properties (“User Content”). The use of Your Content by Underdog.io will be subject to the terms of our Privacy Policy located at: https://underdog.io/privacy.
3.2 No Obligation to Pre-Screen Content. You acknowledge that Underdog.io has no obligation to pre-screen Content (including, but not limited to, User Content and Candidate Information (as defined below)), although Underdog.io reserves the right in its sole discretion to pre-screen, refuse or remove any Content. By entering into the Terms, you hereby provide your irrevocable consent to such monitoring. You acknowledge and agree that you have no expectation of privacy concerning the transmission of Your Content, including without limitation chat, text, or voice communications. In the event that Underdog.io pre-screens, refuses or removes any Content, you acknowledge that Underdog.io will do so for Underdog.io’ benefit, not yours. Without limiting the foregoing, Underdog.io shall have the right to remove any Content that violates this Agreement or is otherwise objectionable.
3.3 Storage. Unless expressly agreed to by Underdog.io in writing elsewhere, Underdog.io has no obligation to store Your Content that you Make Available on Underdog.io Properties. Underdog.io has no responsibility or liability for the deletion or accuracy of any Content, including Your Content and Candidate Information; the failure to store, transmit or receive transmission of Content; or the security, privacy, storage, or transmission of other communications originating with or involving use of Underdog.io Properties. You agree that Underdog.io retains the right to create reasonable limits on Underdog.io’s use and storage of the Content, including Your Content, such as limits on file size, storage space, processing capacity, and similar limits described on the Website and as otherwise determined by Underdog.io in its sole discretion.
3.4 Messaging Service. As a Registered User, your Account includes an email relay feature that proxies emails between Registered Users (“Messaging Service”). You agree to only contact and communicate with other Registered Users via the Messaging Service with respect to the Services. In addition to the terms of Section 9, when transmitting Content via the Messaging Service or when accessing or using the Messaging Service, you shall not attempt to engage in or engage in any potentially harmful acts that are directed against Underdog.io Properties, including but not limited to violating or attempting to violate any security features of any Underdog.io Properties, introducing viruses, worms, or similar harmful code into any Underdog.io Property, or interfering or attempting to interfere with the use of Underdog.io Properties by any other user, host or network. Underdog.io shall have the right, but not the obligation, to collect and store any Content transmitted via the Messaging Service and audit your access or use of the Messaging Service. Upon reasonable notice to you, you will provide Underdog.io with any information or material(s) relating to your access or use of the Messaging Service as reasonably requested by Underdog.io in order to carry out any such audit.
4. Relationship of the Parties. Any agreements created between a Company and a Candidate are not binding on us. We are not liable for, or obligated to enforce, any agreements between a Company and a Candidate. You will not consider Underdog.io, nor will Underdog.io be construed as, a party to such transactions, whether or not Underdog.io receives some form of remuneration in connection with the transaction, and Underdog.io will not be liable for any costs or damages arising out of or related to such transaction. No contractual obligations are created with us with respect to such transactions or agreements.
5. Candidate Specific Terms
5.1 Overview of Service. In order to use the Services, you must be a Registered User. As a Candidate, you may be required to submit your resume and other applicable information, including your name, email address, employment and work history, work experience, educational background and skill set (“Candidate Information”) to be eligible to be matched with potential opportunities.
5.2 Obligations. Candidate is required to promptly notify Underdog.io if Candidate accepts an Offer (as defined below). Candidate also agrees to provide Underdog.io with Candidate’s start date (“Start Date”), job title, compensation terms and other key terms of such Offer as requested by Underdog.io. Candidate shall promptly notify Underdog.io in the event that: (a) Company terminates Candidate’s employment or engagement within ninety (90) days after the Start Date, (b) Candidate voluntarily terminates their employment or engagement within ninety (90) days after the Start Date, or (c) prior to the Start Date, either Candidate or Company elects not to begin the employment or engagement contemplated by the Offer.
6. Company Specific Terms
6.1 Definitions.
(a) “Placement Fee” means the placement fee specified in the Order that non-Subscription Companies must pay to Underdog.io.
(b) “Offer” means an offer for paid employment or engagement as a paid contractor for any length of services given by Company to a Candidate. Underdog.io does not distinguish between offers for employment and offers for engagement as a paid contractor.
(c) “Order” means a written order form or other similar document evidencing the Services Company has purchased, which is agreed to and signed by Underdog.io and Company. Each Order is hereby incorporated into the Terms.
(d) “Subscription Company” means a Company who has entered into an Order specifying subscription services with Underdog.io.
(e) “Successful Hire” means a Candidate’s commencement of employment or engagement with Company.
6.2 Description of Services for Companies.
(a) Registration. To be introduced to Candidates through the Services, Company must be: (i) a Registered User; and (ii) a party to a valid written Order. When registering, Underdog.io may ask Company for additional information related to your company and the types of Candidates you are looking to hire (“Company Content”). Underdog.io will review the Company Content during the registration process and any other information that is publicly available. Underdog.io reserve the right, in its sole discretion, to accept or reject Company’s registration to use the Services.
(b) Description of the Services. Once Company becomes a Registered User, Underdog.io will attempt to introduce qualified Candidates to the Company and make available relevant Candidate Information through the Services. COMPANY UNDERSTANDS THAT UNDERDOG.IO DOES NOT INQUIRE INTO THE BACKGROUNDS OF CANDIDATES OR ATTEMPT TO VERIFY THE STATEMENTS OR INFORMATION OF THE CANDIDATES (ALTHOUGH IT RESERVES THE RIGHT TO CONDUCT ANY BACKGROUND CHECK OR OTHER SCREENINGS AT ANY TIME USING AVAILABLE PUBLIC RECORDS). COMPANY AGREES TO (1) CONDUCT ANY BACKGROUND CHECKS, REFERENCE CHECKS, OR OTHER DUE DILIGENCE THAT COMPANY MAY REQUIRE BEFORE ENGAGING A CANDIDATE, AND (2) COMPLY WITH ALL LAWS AND REGULATIONS RELATING TO THE INTENDED EMPLOYMENT OR ENGAGEMENT OF ANY CANDIDATE.
(c) Offers. Company (whether a Subscription Company or a non-Subscription Company) agrees that (a) if you make an Offer, you shall provide Underdog.io with a copy of a fully executed offer letter, including information as to the Candidate’s Start Date, (b) you will promptly notify Underdog.io should the Start Date or Offer terms change at any time, and (c) you will promptly notify Underdog.io if the Candidate’s employment or engagement as a contractor: (i) is terminated within ninety (90) days of the Start Date by Company due to unsatisfactory performance, (ii) is terminated within ninety (90) days of the Start Date voluntarily by the Candidate, or (iii) prior to the Start Date, either Company or the Candidate elected not to begin such employment or engagement contemplated by the Offer.
6.3 Placement Fees (for Non-Subscription Companies).
(a) Overview. Companies who are not Subscription Companies agree to pay Underdog.io a Placement Fee for each Successful Hire of a Candidate whose Candidate Information you viewed or obtained through our Services at any time in the twelve (12) months prior to extending the Candidate an Offer. This includes Candidates who applied for a job at Company after navigating to Company's jobs page via the Underdog.io platform. Notwithstanding either of the foregoing, in the event of a Placement Fee dispute, if Company can establish that it had an Active Interview Process (as defined below) with the Candidate within three (3) months before using our Website or Services (e.g., the Candidate had already begun the interview process with Company and such process had not been terminated, or Company had received the Candidate’s resume from an employment agency or headhunter and the Candidate was already under active consideration by Company), Company may be exempted from paying the Placement Fee. However, the final determination as to whether a Placement Fee is owed by Company for a Successful Hire will be at the sole and reasonable discretion of Underdog.io. For the purposes hereof, "Active Interview Process" shall mean continuous and direct back and forth communication, in an active recruiting or hiring context for a Candidate, and during which a decision to put a Candidate on hold or reject has not been made.
(b) Payment. Except for Subscription Companies, for each Successful Hire, you shall pay the full Placement Fee to Underdog.io no later than thirty (30) days after the Candidate’s Start Date. You agree that late or partial payment of a Placement Fee will be subject to a late charge of 2.0% per month. You further agree that late or partial payment of a Placement Fee will invalidate the Placement Fee Credit below. Underdog.io reserves the right to suspend your access to the Services if you haven’t paid a Placement Fee within ninety (90) days of a Candidate’s Start Date.
(c) Placement Fee Credits. Except for Subscription Companies, Underdog.io shall issue you a credit in the amount of the Placement Fee paid by Company with respect to a Candidate if: (a) Company terminated such Candidate’s employment or engagement within ninety (90) days after such Candidate’s Start Date due to unsatisfactory performance (and not, for clarity, due to Company’s general downsizing or layoffs), or such Candidate voluntarily terminated his or her employment or engagement within ninety (90) days after his or her Start Date; (b) Company paid the Placement Fee in full no later than thirty (30) days after such Candidate’s Start Date; and (c) Company does not intend to resume the Candidate’s employment or engagement for at least nine (9) months after the termination date (“Placement Fee Credit”). At Company’s option, it may elect to use any Placement Fee Credits for future Placement Fees owed for other Successful Hires.
(d) Trial Access. Companies that are granted access to Underdog.io on a trial basis are subject to all Placement Fee provisions contained in this Section 6.3. For the avoidance of doubt, any Successful Hires made by Company are subject to a Placement Fee of 15.0% of first year base salary.
6.4 Subscription Services.
(a) Overview. Subscription Companies will be charged a subscription fee (“Subscription Fee”) in lieu of any Placement Fees as agreed upon between the Company and Underdog.io for the period set forth in the applicable Order (the "Subscription Period"). During the Subscription Period, the Subscription Company will be introduced to Candidates through the Services and may extend Offers to Candidates. Unless otherwise agreed in writing, all Offers accepted within the Subscription Period will not be subject to any Placement Fees.
(b) Payment. All Subscription Fees for the Services are non-refundable and are due and payable within thirty (30) days from the date indicated on each invoice as sent to Company by Underdog.io. For the avoidance of doubt, a Subscription Company shall not be eligible for any Placement Fee Credits. You agree that late or partial payment of a Subscription Fee will be subject to a late charge of 2.0% per month. Underdog.io reserves the right to suspend your access to the Services if you haven’t paid a Subscription Fee within ninety (90) days from the date indicated on each invoice.
6.5 Taxes. All fees, whether Placement Fees or Subscription Fees, shall be paid to Underdog.io in U.S. dollars, and exclude all sales, use, withholding, excise, value added, and other taxes. Company is solely responsible for the payment of all such taxes, duties, and charges of any kind imposed by any governmental entity in connection with the Services (excluding taxes based solely on Underdog.io’s income).
7. Confidential Information. You agree to keep all information gained from using the Website or Services confidential. You agree that (a) you will use any Content or Candidate Information submitted by Candidates or Companies in accordance with applicable privacy and data protection laws; (b) you will not disclose the names or identities of any Candidates to any third parties; and (3) you will take appropriate physical, technical and administrative measures to protect Content obtained through use of the Website or Services from loss, misuse, unauthorized access, disclosure, alteration or destruction. You also agree not to post, publicly or privately, disclose or disseminate any job offers, or opportunities which you become aware of through the Website or Services.
8. Ownership
8.1 Underdog.io Properties. Except with respect to Your Content and User Content, you agree that Underdog.io and its suppliers own all rights, title and interest in and to all Underdog.io Properties. You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Website, the Services, or any other Underdog.io Properties.
8.2 Trademarks. “Underdog.io”, and other related graphics, logos, service marks and trade names used on or in connection with Underdog.io Properties or in connection with the Services are the trademarks of Underdog.io and may not be used without permission. Other trademarks, service marks and trade names that may appear on or in Underdog.io Properties are the property of their respective owners.
8.3 Other Content. Except with respect to Your Content, you agree that you have no right or title in or to any Content that appears on or in Underdog.io Properties.
8.4 Your Content. Underdog.io does not claim ownership of Your Content. However, when you as a user post or publish Your Content (including Candidate Information) on or in Underdog.io Properties you represent that you own or have a royalty-free, perpetual, irrevocable, worldwide, non-exclusive right (including any moral rights) and license to use, license, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, derive revenue or other remuneration from, and communicate to the public, perform and display Your Content (in whole or in part) worldwide and/or to incorporate it in other works in any form, media or technology now known or later developed, for the full term of any worldwide intellectual property right that may exist in Your Content. You grant Underdog.io a fully paid, royalty-free, perpetual, irrevocable, worldwide, royalty-free, non-exclusive and fully sublicensable right (including any moral rights) and license to use, license, distribute, reproduce, modify, adapt, publicly perform, and publicly display, Your Content (in whole or in part), for the purposes of: (a) operating, improving and providing the Services; and (b) compiling statistical and other information related to the performance, operation, and use of the Service. Please remember that other Users may search for, see, use, modify and reproduce any of Your Content that you submit to any “public” area of Underdog.io Properties. You warrant that the holder of any worldwide intellectual property right, including moral rights, in Your Content, has completely and effectively waived all such rights and validly and irrevocably granted to you the right to grant the license stated above. You agree that you, not Underdog.io, are responsible for all of Your Content that you Make Available on or in Underdog.io Properties.
8.5 Account. Notwithstanding anything contained herein to the contrary, you acknowledge and agree that you will have no ownership or other property interest in your Account, and you further acknowledge and agree that all rights in and to your Account are and will forever be owned by and inure to the benefit of Underdog.io.
8.6 Feedback. You agree that submission of any ideas, suggestions, documents, and/or proposals to Underdog.io through its suggestion, feedback, wiki, forum or similar pages (“Feedback”) is at your own risk and that Underdog.io has no obligations (including without limitation obligations of confidentiality) with respect to such Feedback. You represent and warrant that you have all rights necessary to submit the Feedback. You hereby grant to Underdog.io a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sublicensable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all Feedback, and to sublicense the foregoing rights, in connection with the operation and maintenance of Underdog.io Properties.
9. User Conduct
9.1 General. In connection with your use of Underdog.io Properties, you shall not:
(a) Use our Services if you are not able to form legally binding contracts (for example, if you are under 18 years old), or are temporarily or indefinitely suspended from using our Website or Services;
(b) Make Available any Content that (i) is unlawful, tortious, defamatory, vulgar, obscene, libelous, or racially, ethnically or otherwise objectionable; (ii) violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability; (iii) promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group; (iv) is violent or threatening, or promotes violence or actions that are threatening to any other person; or (v) promotes illegal or harmful activities;
(c) Post or transmit any Opportunity or posting that does not comply with applicable law, including, but not limited to, United States federal, state and local laws relating to equal employment opportunity and employment eligibility verification;
(d) Impersonate any person or entity, including, but not limited to, Underdog.io personnel, or falsely state or otherwise misrepresent your affiliation with a person or entity;
(e) Make Available any Content that you do not have a right to Make Available under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under non-disclosure agreements);
(f) Make Available any Content that infringes or otherwise violates the rights of any person or entity, including without limitation, any patent, trademark, trade secret, copyright, privacy, publicity or other proprietary or contractual rights;
(g) Intentionally or unintentionally violate any applicable local, state, national or international law or regulation, or any order of a court;
(h) Stalk or otherwise harass any other user of our Underdog.io Properties; or
(i) Advocate, encourage or assist any third party in doing any of the foregoing activities in this section.
9.2 Investigations. Underdog.io may, but is not obligated to, monitor or review Underdog.io Properties and Content at any time. Without limiting the foregoing, Underdog.io shall have the right, in its sole discretion, to remove any of Your Content for any reason (or no reason), including if such Content violates the Terms or any applicable law. Although Underdog.io does not generally monitor user activity occurring in connection with Underdog.io Properties or Content, if Underdog.io becomes aware of any possible violations by you of any provision of the Terms, Underdog.io reserves the right to investigate such violations, and Underdog.io may, at its sole discretion, immediately terminate your license to use Underdog.io Properties, or change, alter or remove Your Content, in whole or in part, without prior notice to you.
10. Interactions with Other Users. You are solely responsible for your interactions with other Users and any other parties with whom you interact; provided, however, that Underdog.io reserves the right, but has no obligation, to intercede in such disputes. You agree that Underdog.io will not be responsible for any liability incurred as the result of such interactions. UNDERDOG.IO DOES NOT INQUIRE INTO THE BACKGROUNDS OF ITS REGISTERED USERS OR ATTEMPT TO VERIFY THE CONTENT OF ITS REGISTERED USERS. UNDERDOG.IO MAKES NO REPRESENTATIONS OR WARRANTIES AS TO THE CONDUCT OF REGISTERED USERS OR THEIR COMPATIBILITY WITH ANY CURRENT OR FUTURE REGISTERED USERS.
10.1 Content Provided by Other Users. Underdog.io Properties may contain User Content provided by other Users. Underdog.io is not responsible for and does not control User Content. Underdog.io has no obligation to review or monitor, and does not approve, endorse or make any representations or warranties with respect to User Content. You use all User Content and interact with other Users at your own risk.
10.2 Third-Party Websites, Applications & Ads. Underdog.io Properties may contain links to third-party websites (“Third-Party Websites”) and applications (“Third-Party Applications”) and advertisements for third parties (“Third-Party Ads”). When you click on a link to a Third-Party Website, Third-Party Application or Third-Party Ad, we will not warn you that you have left Underdog.io Properties and are subject to the terms and conditions (including privacy policies) of another website or destination. Such Third-Party Websites, Third-Party Applications and Third-Party Ads are not under the control of Underdog.io. Underdog.io is not responsible for any Third-Party Websites, Third-Party Applications or Third-Party Ads. Underdog.io provides these Third-Party Websites, Third-Party Applications and Third Party Ads only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third-Party Websites, Third-Party Applications or Third-Party Ads, or their products or services. You use all links in Third-Party Websites, Third-Party Applications and Third-Party Ads at your own risk. When you leave our Website, our Terms and policies no longer govern. You should review applicable terms and policies, including privacy and data gathering practices, of any Third-Party Websites or Third-Party Applications, and should make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any third party.
11. Indemnification. You agree to indemnify and hold Underdog.io, its successors, assigns, parents, subsidiaries, affiliates, officers, employees, agents, partners and licensors (collectively, the “Underdog.io Parties”) harmless from any losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of: (a) Your Content; (b) your use of the Services or any other Underdog.io Properties; (c) your violation of the Terms (including, without limitation, your submission of false or misleading information through the Services); (d) your violation of any rights of another party, including any Users; (e) your interactions with other Users; and (f) your violation of any applicable laws, rules or regulations. Underdog.io reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with Underdog.io in asserting any available defenses. This provision does not require you to indemnify any of the Underdog.io Parties for any unconscionable commercial practice by such party or for such party’s fraud, deception, false promise, misrepresentation or concealment, suppression or omission of any material fact in connection with the Website or any Services provided hereunder. You agree that the provisions in this section will survive any termination of your Account, the Terms or your access to Underdog.io Properties.
12. Disclaimer of Warranties and Conditions
12.1 As Is. YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF UNDERDOG.IO PROPERTIES IS AT YOUR SOLE RISK, AND UNDERDOG.IO PROPERTIES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. UNDERDOG.IO EXPRESSLY DISCLAIMS ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT ARISING FROM USE OF THE SERVICES.
(a) UNDERDOG.IO MAKES NO WARRANTY, REPRESENTATION OR CONDITION THAT: (1) UNDERDOG.IO PROPERTIES WILL MEET YOUR REQUIREMENTS; (2) YOUR USE OF UNDERDOG.IO PROPERTIES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; OR (3) THE RESULTS THAT MAY BE OBTAINED FROM USE OF UNDERDOG.IO PROPERTIES WILL BE ACCURATE OR RELIABLE.
(b) UNDERDOG.IO MAKES NO REPRESENTATIONS OR GUARANTEES REGARDING THE EFFECTIVENESS OF THE SERVICES OR TIMELINESS OF THE SERVICES IN MEETING YOUR EMPLOYMENT OBJECTIVES. UNDERDOG.IO DOES NOT GUARANTEE THAT THE SERVICES WILL RESULT IN CANDIDATES BEING HIRED, POSITIONS BEING FILLED OR CANDIDATES BEING RETAINED, AND IS NOT RESPONSIBLE OR LIABLE FOR ANY BUSINESS, EMPLOYMENT, HIRING AND/OR SALARY DECISIONS, FOR WHATEVER REASON MADE, MADE BY YOU.
(c) ANY CONTENT ACCESSED THROUGH UNDERDOG.IO PROPERTIES, IS AT YOUR OWN RISK AND YOU SHALL BE SOLELY RESPONSIBLE FOR ANY LOSS THAT RESULTS FROM ACCESSING SUCH CONTENT.
12.2 No Liability for Conduct of Third Parties. YOU ACKNOWLEDGE AND AGREE THAT UNDERDOG.IO PARTIES ARE NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD UNDERDOG.IO LIABLE, FOR THE CONDUCT OF THIRD PARTIES, INCLUDING OPERATORS OF EXTERNAL SITES, AND THAT THE RISK OF ECONOMIC DAMAGES FROM SUCH THIRD PARTIES RESTS ENTIRELY WITH YOU. UNDERDOG.IO MAKES NO WARRANTY THAT THE SERVICES PROVIDED BY THIRD PARTIES WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS. UNDERDOG.IO MAKES NO WARRANTY REGARDING THE QUALITY OF ANY SUCH SERVICES, OR THE ACCURACY, TIMELINESS, TRUTHFULNESS, COMPLETENESS OR RELIABILITY OF ANY USER CONTENT OBTAINED THROUGH UNDERDOG.IO PROPERTIES.
12.3 No Liability for Conduct of Other Users. YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF UNDERDOG.IO PROPERTIES. YOU UNDERSTAND THAT UNDERDOG.IO DOES NOT MAKE ANY ATTEMPT TO VERIFY THE STATEMENTS OF USERS OF UNDERDOG.IO PROPERTIES.
12.4 No Liability for Employment Issues. YOU ACKNOWLEDGE AND AGREE THAT UNDERDOG.IO PARTIES ARE NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD UNDERDOG.IO LIABLE, FOR CONTRACTS, CONTRACTUAL OBLIGATIONS, OR OTHER OBLIGATIONS THAT MAY ARISE FROM AN EMPLOYMENT, CONTRACTOR, OR OTHER RELATIONSHIP BETWEEN COMPANY AND ANY CANDIDATE.
13. Limitation of Liability
13.1 Disclaimer of Certain Damages. TO THE MAXIMUM EXTENT PERMITTED BY LAW, YOU UNDERSTAND AND AGREE THAT IN NO EVENT SHALL UNDERDOG.IO BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE SERVICES, OR FOR ANY DAMAGES RESULTING FROM LOSS OF USE, DATA OR PROFITS, ARISING OUT OF OR IN CONNECTION WITH THE SERVICES, WHETHER OR NOT UNDERDOG.IO HAS BEEN ADVISED OF THE POSSIBLITY OF SUCH DAMAGES, WHETHER BASED ON WARRANTY, COPYRIGHT, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY.
13.2 Cap on Liability. UNDER NO CIRCUMSTANCES WILL UNDERDOG.IO BE LIABLE TO YOU FOR MORE THAN THE TOTAL AMOUNT PAID TO UNDERDOG.IO BY YOU DURING THE TWELVE (12)-MONTH PERIOD PRIOR TO THE ACT, OMISSION OR OCCURRENCE GIVING RISE TO SUCH LIABILITY. THE FOREGOING CAP ON LIABILITY SHALL NOT APPLY TO LIABILITY OF UNDERDOG.IO FOR (A) DEATH OR PERSONAL INJURY CAUSED BY UNDERDOG.IO’S NEGLIGENCE; OR FOR (B) ANY INJURY CAUSED BY UNDERDOG.IO’S FRAUD OR FRAUDULENT MISREPRESENTATION.
13.3 User Content. EXCEPT FOR UNDERDOG.IO’S OBLIGATIONS TO PROTECT YOUR PERSONAL DATA AS SET FORTH IN ITS PRIVACY POLICY, UNDERDOG.IO ASSUMES NO RESPONSIBILITY FOR THE TIMELINESS, DELETION, MIS-DELIVERY OR FAILURE TO STORE ANY CONTENT (INCLUDING, BUT NOT LIMITED TO, YOUR CONTENT AND USER CONTENT), USER COMMUNICATIONS OR PERSONALIZATION SETTINGS.
13.4 Basis of the Bargain. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN UNDERDOG.IO AND YOU. THE FOREGOING LIMITATIONS OF LIABILITY APPLY TO THE FULLEST EXTENT ALLOWED BY LAW.
14. Termination.
14.1 Termination of Services. This Agreement will remain in full force and effect until terminated as set forth herein. If you are a Non-Subscription Company or Candidate, you may terminate your Account, your access to the Services, and this Agreement at any time, for any reason by deactivating your Account and/or emailing [email protected]. If you are a Subscription Company, you may terminate your Account, your access to the Services, and this Agreement by emailing [email protected] at least five (5) business days prior to the end of your current Subscription Period. If you fail to do so, this Agreement and your subscription Services will automatically renew for an additional Subscription Period and you will be invoiced an additional Subscription Fee in accordance with the terms of your Order. Underdog.io may terminate your Account if (a) you are in breach of the Agreement, and upon notice to you, you fail to cure such breach within fifteen (15) days; or (b) if Underdog.io decides in its sole discretion to stop providing the applicable Services. You understand that any termination of this Agreement and your Account may involve deletion of your Account information from our live databases and all the information stored for such Account. Underdog.io will not have any liability whatsoever to you for any termination of your Account or related deletion of your information.
14.2 Effect of Termination. Termination of the Services includes removal of access to the Services and barring of further use of the Services. Upon termination of the Services, your right to use the Services will automatically and immediately terminate. You understand that any termination of Services may involve deletion of Your Content associated therewith from our live databases and Underdog.io will not have any liability whatsoever to you for any deletion of Your Content. All provisions of the Terms which by their nature should survive, shall survive termination of Services, including without limitation, ownership provisions, warranty disclaimers, and limitation of liability.
15. International Users. Underdog.io Properties can be accessed from countries around the world and may contain references to Services and Content that are not available in your country. These references do not imply that Underdog.io intends to announce such Services or Content in your country. Underdog.io Properties are controlled and offered by Underdog.io from its facilities in the United States of America. Underdog.io makes no representations that Underdog.io Properties are appropriate or available for use in other locations. Those who access or use Underdog.io Properties from other countries do so at their own volition and are responsible for compliance with local law. Underdog.io reserves the right to limit the availability of the Website and/or Services to any person, geographic area, or jurisdiction it so desires at any time and in our sole discretion.
16. Dispute Resolution. Please read the following arbitration agreement in this Section (“Arbitration Agreement”) carefully. It requires you to arbitrate disputes with Underdog.io and limits the manner in which you can seek relief from us.
16.1 Applicability of Arbitration Agreement. You agree that any dispute or claim relating in any way to your access or use of the Website or Services or to any aspect of your relationship with Underdog.io, will be resolved by binding arbitration, rather than in court, except that (1) you may assert claims in small claims court if your claims qualify, so long as the matter remains in such court and advances only on an individual (non-class, non-representative) basis; and (2) you or Underdog.io may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). This Arbitration Agreement shall apply, without limitation, to all claims that arose or were asserted before the Effective Date of this Agreement or any prior version of this Agreement.
16.2 Arbitration Rules and Forum. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement. To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your claim to Underdog.io, Inc., 568 Broadway Rm 502, New York, NY 10012, Attention: Chris Muir. The arbitration will be conducted by JAMS, an established alternative dispute resolution provider. Disputes involving claims and counterclaims under $250,000, not inclusive of attorneys’ fees and interest, shall be subject to JAMS’s most current version of the Streamlined Arbitration Rules and procedures available at http://www.jamsadr.com/rules-streamlined-arbitration/; all other claims shall be subject to JAMS’s most current version of the Comprehensive Arbitration Rules and Procedures, available at http://www.jamsadr.com/rules-comprehensive-arbitration/. JAMS’s rules are also available at www.jamsadr.com or by calling JAMS at 800-352-5267. If JAMS is not available to arbitrate, the parties will select an alternative arbitral forum. If the arbitrator finds that you cannot afford to pay JAMS’s filing, administrative, hearing and/or other fees and cannot obtain a waiver from JAMS, Underdog.io will pay them for you. In addition, Underdog.io will reimburse all such JAMS’s filing, administrative, hearing and/or other fees for claims totaling less than $10,000 unless the arbitrator determines the claims are frivolous. Likewise, Underdog.io will not seek attorneys’ fees and costs in arbitration unless the arbitrator determines the claims are frivolous.
You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the country where you live or at another mutually agreed location. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
16.3 Authority of Arbitrator. The arbitrator, and not any federal, state or local court or agency shall have exclusive authority to resolve any dispute related to the interpretation, applicability, enforceability or formation of this Arbitration Agreement including, but not limited to any claim that all or any part of this Arbitration Agreement is void or voidable. The arbitration will decide the rights and liabilities, if any, of you and Underdog.io. The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the arbitral forum’s rules, and the Agreement (including the Arbitration Agreement). The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and us.
16.4 Waiver of Jury Trial. YOU AND UNDERDOG.IO HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and Underdog.io are instead electing that all claims and disputes shall be resolved by arbitration under this Arbitration Agreement, except as specified in Section 16.1 above. An arbitrator can award on an individual basis the same damages and relief as a court and must follow this Agreement as a court would. However, there is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.
16.5 Waiver of Class or Consolidated Actions. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS, ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. In the event that this subparagraph is deemed invalid or unenforceable neither you nor we are entitled to arbitration and instead claims and disputes shall be resolved in a court as set forth in Section 17.5.
16.6 30-Day Right to Opt Out. You have the right to opt out of the provisions of this Arbitration Agreement by sending written notice of your decision to opt out to the following address: [email protected], Attn: Chris Muir, within 30 days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, your Underdog.io username (if any), the email address you used to set up your Underdog.io account (if you have one), and an unequivocal statement that you want to opt out of this Arbitration Agreement. If you opt out of this Arbitration Agreement, all other parts of this Agreement will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may currently have, or may enter in the future, with us.
16.7 Severability. If any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect.
16.8 Survival of Agreement. This Arbitration Agreement will survive the termination of your relationship with Underdog.io.
16.9 Modification. Notwithstanding any provision in the Agreement to the contrary, we agree that if Underdog.io makes any future material change to this Arbitration Agreement, it will not apply to any individual claim(s) that you had already provided notice to Underdog.io.
17. General Provisions.
17.1 Electronic Communications. The communications between you and Underdog.io use electronic means, whether you visit Underdog.io Properties or send Underdog.io e-mails, or whether Underdog.io posts notices on Underdog.io Properties or communicates with you via e-mail. For contractual purposes, you (1) consent to receive communications from Underdog.io in an electronic form; and (2) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Underdog.io provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect your statutory rights.
17.2 Assignment. The Terms, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated or otherwise transferred by you without Underdog.io’ prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void. Underdog.io may freely assign or transfer its rights and obligations under these Terms without restriction, including in connection with a merger, acquisition, or sale of assets, or by operation of law.
17.3 Force Majeure. Underdog.io shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials.
17.4 Questions, Complaints, Claims. If you have any questions, complaints or claims with respect to Underdog.io Properties, please contact us at: [email protected]. We will do our best to address your concerns. If you feel that your concerns have been addressed incompletely, we invite you to let us know for further investigation.
17.5 Exclusive Venue. To the extent the parties are permitted under this Agreement to initiate litigation in a court, both you and Underdog.io agree that all claims and disputes arising out of or relating to the Agreement will be litigated exclusively in the state or federal courts located in New York, New York.
17.6 Governing Law. THE TERMS AND ANY ACTION RELATED THERETO WILL BE GOVERNED AND INTERPRETED BY AND UNDER THE LAWS OF THE STATE OF NEW YORK, CONSISTENT WITH THE FEDERAL ARBITRATION ACT, WITHOUT GIVING EFFECT TO ANY PRINCIPLES THAT PROVIDE FOR THE APPLICATION OF THE LAW OF ANOTHER JURISDICTION. THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS DOES NOT APPLY TO THIS AGREEMENT.
17.7 Choice of Language. It is the express wish of the parties that the Terms and all related documents have been drawn up in English.
17.8 Notice. Where Underdog.io requires that you provide an e-mail address, you are responsible for providing Underdog.io with your most current e-mail address. In the event that the last e-mail address you provided to Underdog.io is not valid, or for any reason is not capable of delivering to you any notices required/ permitted by the Terms, Underdog.io’ dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice to Underdog.io at the following address: 568 Broadway Rm 502, New York, NY 10012. Such notice shall be deemed given when received by Underdog.io by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the above address.
17.9 Waiver. Any waiver or failure to enforce any provision of the Terms on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
17.10 Severability. If any portion of this Agreement is held invalid or unenforceable, that portion shall be construed in a manner to reflect, as nearly as possible, the original intention of the parties, and the remaining portions shall remain in full force and effect.
17.11 Consumer Complaints. In accordance with California Civil Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210.
17.12 Entire Agreement. The Terms, including all Orders, are the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter. It is expressly agreed that the Terms shall supersede the terms in any Company purchase order, and the terms included in any such Company purchase order or other Company policy shall not (a) apply to the Services ordered, and (b) in any way modify, revise, supplement, or otherwise affect the terms and conditions in the Terms.