Effective: January 23, 2020
1. Purpose of the Service. TraLaMa’s Website is an online trade labor employment and networking marketplace connecting business entities seeking skilled trade labor with employment seekers, including, but not limited to, prospective employees, independent contractors, subcontractors or contractors. TraLaMa is the host of this platform.
Users of the Website and Service are solely responsible for evaluating any User Content on the Website, including, but not limited to, employment opportunity postings, resumes, profiles, etc. Users of the Website and Service acknowledge and agree that any engagement or relationship between users of the Website or Service is solely between them, and TraLaMa is not a party to the engagement or a party to the relationship(s) created by a job posted on a Website or through the Service.
TraLaMa does not verify or evaluate any user Content on the Website and TraLaMa is not responsible for any incorrect or inaccurate content posted or messaged by users. Should you wish to do so, it is up to you to investigate any user that contacts you or you wish to contact. You are solely responsible for your interactions with other users of the Website and Service. TraLaMa assumes no responsibility for the actions of the Website’s users, whether online or offline. Under no circumstance shall TraLaMa be responsible for any loss or damage resulting from the use of this Website or your interactions with other users, whether online or offline.
2. Users/COPPA (Children Online Privacy Protection Act). Individuals under the age of 18 are not eligible to use our Websites. Any user using, visiting, or browsing a TraLaMa Website or providing information to TraLaMa is certifying that he/she is over the age of 18.
By using, visiting, or browsing a Website or providing information on behalf of a company or other legal entity, you represent that you have the authority to bind that entity to this Terms of Service. In that situation, “you” and “your” will refer to both you and that entity.
3. Changes to Terms of Service. TraLaMa may change or update these Terms of Service at any time by posting an updated version to TraLaMa’s Website. Any changes or updates to the Terms of Service will be effective immediately upon posting the revised version, and your continued use of the Service will constitute acceptance of and agreement to any changes to the Terms of Service. Therefore, we recommend you read these Terms of Service every time you access or use the Service.
You waive any and all rights to receive direct notice of changes to these Terms of Service.
5. License Grant. Subject to these Terms of Service, you are granted a non-exclusive, limited, non-transferable, freely revocable license to use the Service. TraLaMa reserves all rights not expressly granted herein in the Service and all materials therein or transferred thereby, including without limitation, software, images, text, graphics, illustrations, logos, patents, trademarks, service marks, copyrights, photographs, audio, video, and music (“TraLaMa Content”). TraLaMa may terminate this license at any time for any reason or no reason.
6. License Restrictions. You shall not copy the Service, modify, translate, adapt, or otherwise create derivative works or improvements, whether or not patentable, of the Service; reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the source code of the Service or any part thereof; remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from the Service, including any copy thereof; rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Service, or any features or functionality of the Service, to any third-party for any reason, including by making the Service available on a network where it is capable of being accessed by more than one device at any time.
8. Your Authorized Account. In order to use this Service, you must create an account within the Website (“Authorized Account”) which you consent to being visible to other users of the Service. You agree to provide true, accurate, and complete information when setting up your Authorized Account whether on a Website or directly with TraLaMa. By providing this information, you warrant and represent that the information you provide is accurate, current, and complete.
You understand and agree that accurate Authorized Account information is material to the parties’ relationship and you agree to timely update all Authorized Account information. You understand and agree that you are also responsible for providing complete and accurate payment and billing-related information to TraLaMa and updating such information as needed.
If you are using or logging into an Authorized Account assigned to you, additional terms may apply to your use of the Websites and Services. Moreover, your access to the Authorized Account may be disabled by whoever assigned the account to you without our involvement.
TraLaMa also reserves the right to suspend or terminate any Authorized Account if any Authorized Account information is inaccurate, not current or incomplete, or for any violations of these Terms of Service.
9. Permissions. You agree not to allow or request another person, persons, or entity to create an Authorized Account on your behalf, or for your use or benefit, except as authorized by you. You are solely responsible for maintaining the confidentiality of your account information and log in credentials.
You are solely responsible for any activities or actions taken under your Authorized Account user name whether or not you have authorized such activities or actions. It shall be your responsibility to immediately notify TraLaMa of any unauthorized access or use of your user name or Authorized Account.
10. Location and Identity Verification. When you register for an account and create an Account, you authorize TraLaMa, directly, or through third-parties or governmental organizations and resources, to make any necessary inquiries to validate your identity, your location, and confirm your ownership of the email address(es), accounts used to make or receive payments, as subject to applicable law. At TraLaMa’s request, any company or entity using the Service must provide complete information about the business, which includes but is not limited to providing official government or legal documents.
11. Limitations of Use/Code of Conduct. When using, visiting, or browsing our Websites, you agree to
a. comply with all applicable laws, rules and regulations, and
b. conduct yourself in an inappropriate manner at all times while using a Website.
When using, visiting, or browsing our Websites, you further agree not to
a. use the Websites for any inappropriate purpose,
b. provide false, inaccurate, or incomplete information during our registration process,
c. post or submit to a Website any incomplete, false or inaccurate biographical information or information which is not your own,
d. share with a third party any login credentials to a Website,
e. solicit passwords or personally identifiable information from other users of a Website,
f. engage in any conduct that is offensive, indecent, or vulgar,
g. harass, incite harassment or advocate harassment of any group, company, or individual,
h. delete or alter any material posted by any other person or entity,
i. send unsolicited mail or email, make unsolicited phone calls or send unsolicited texts, tweets or faxes promoting and/or advertising products or services to any other user of a Website, or contact any users that have specifically requested not to be contacted by you,
j. upload, post, e-mail or otherwise send or transmit any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment associated with the Websites,
k. violate any of the procedures, policies or regulations of networks connected to the Websites, the terms of which are incorporated herein,
m. take any action that imposes an unreasonable or disproportionately large load on a Website,
n. use any device to navigate or search a Website other than the tools available on the Website, generally available third party web browsers, or other tools approved by TraLaMa,
o. use any data mining, robots or similar data gathering or extraction methods, violate or attempt to violate the security of a Website including attempting to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures without proper authorization,
p. forge any TCP/IP packet header or any part of the header information in any e-mail or newsgroup posting,
q. reverse engineer or decompile any parts of a Website,
r. aggregate, copy or duplicate in any manner any of the TraLaMa Content or information available from a Website, including expired job ads, other than as permitted by these Terms of Service,
s. frame or link to any TraLaMa Content or information available from a Website, unless permitted by these Terms of Service,
t. post any content or material that promotes or endorses false or misleading information or illegal activities, or endorses or provides instructional information about illegal activities or other activities prohibited by these Terms of Service, such as making or buying illegal weapons, violating someone’s privacy, providing or creating computer viruses or pirating media,
u. post any resume or profile or apply for any job on behalf of another party,
v. defer any contact from a prospective employer to any agent, agency, or other third party,
w. set more than one copy of the same resume to public at any one time,
x. access data not intended for you or logging into a server or account which you are not authorized to access,
y. post content that contains restricted or password-only access pages, or hidden pages or images,
z. attempt to interfere with another user’s use of the Service, host or network, including, without limitation, via means of submitting a virus to a Website, overloading, “flooding”, “spamming”, “mailbombing” or “crashing”,
aa. promote or endorse an illegal or unauthorized copy of another’s copyrighted work, such by as providing or making available pirated computer programs or links to them, providing or making available information to circumvent manufacture-installed copy-protect devices, or providing or making available pirated music or other media or links to pirated music or other media files,
bb. use the Services for any unlawful purpose or any illegal activity, or post or submit any content, resume, or job ad that is defamatory, libelous, implicitly or explicitly offensive, vulgar, obscene, threatening, abusive, hateful, racist, discriminatory, of a menacing character or likely to cause annoyance, inconvenience, embarrassment, anxiety or could cause harassment to any person or include any links to pornographic, indecent or sexually explicit material of any kind, as determined by TraLaMa in its sole discretion,
cc. engage in any conduct that would otherwise harm any of TraLaMa’s rights or interests in its Websites, services, or other property, or
dd. engage in any conduct that would otherwise harm anyone else’s rights or interests.
TraLaMa reserves the right to terminate your access to the Websites, your account with TraLaMa, or any of its services if we determine that you do not comply with these Terms of Service and for any or no reason whatsoever in its sole discretion without prior notice to you. Violations of Website, system or network security may result in civil and/or criminal liability. TraLaMa will investigate occurrences which may involve such violations and may involve, and cooperate with, law enforcement authorities in prosecuting anyone who is involved in such violations.
12. Additional Terms Applicable to Employment Seekers. When you register with a Website, you will be required to provide certain information to create an Authorized Account, e.g., your name, physical/mailing address, city, state, Zip Code, home, work or mobile telephone number, email address(es), or other contact information, resume/biography, current/past employment information, work experience, education information, including, but not limited to, a certificate or transcript, licenses, references, and other information that may be requested by a prospective employer, and Authorized User Account login credentials (“Personal Identification Information”). ANY PROFILE YOU CREATE MUST BE ACCURATE AND DESCRIBE YOU. Examples of inappropriate and prohibited Authorized Account profiles include, but are not limited to, profiles that purport to represent an animal, place, inanimate object, fictional character, or real individual that is not you.
You acknowledge and agree that you are solely responsible for the form, content and accuracy of any resume or material contained therein placed by you on a Website. Protect your Personal Identification Information by never providing this information, including, but not limited to, your Social Security Number, driver’s license, or credit card or bank account numbers, to prospective employers.
TraLaMa reserves the right to offer third party services and products to you based on the preferences that you identify in your Authorized Account profile. By completing your Authorized Account profile, you agree to receive such offers by TraLaMa.
If you cancel your Authorized Account or TraLaMa terminates it, all of your Authorized Account information and any information uploaded to your Authorized Account or to a Website, including, but not limited to, your Personal Identification Information, resumes, profiles, cover letters, saved jobs, questionnaires, may be marked as deleted in and may be deleted from TraLaMa’s Website, Service and supporting databases. Your information may continue to be available for some period of time because of delays in propagating such deletion through TraLaMa’s Website servers. In addition, third parties may have retained a copy of information that you uploaded to a Website.
If you accept a contract or employment relationship with another user, you and the Contractor/Subcontractor are solely responsible for determining hours worked, compensation, and compliance with state and federal wage and hour laws. TraLaMa has not verified nor investigated any Contractors/Subcontractors and TraLaMa is not responsible for any contract or employment decisions made by the Contractors/Subcontractors.
13. Additional Terms Applicable to Contractors/Subcontractors. You are solely responsible for their postings on a Website. TraLaMa is not to be considered to be an employer with respect to your use of a Website or Service, and TraLaMa shall not be responsible for any employment decisions, for whatever reason, made by any entity posting jobs on a Website.
Contractors’/subcontractors’ job ad may not contain:
a. any hyperlinks, other than those specifically authorized by TraLaMa,
b. misleading, unreadable, or “hidden” keywords, repeated keywords or keywords that are irrelevant to the job opportunity being presented, as determined in TraLaMa’s sole discretion,
c. except as otherwise agreed to by TraLaMa in its sole discretion, the names, logos or trademarks of unaffiliated companies,
d. the names of colleges, cities, states, towns or countries that are unrelated to the posting,
e. more than one job or job description,
f. more than one location, or more than one job category, unless the product so allows,
g. inaccurate, false, or misleading information, or
h. material or links to material that exploits people in a sexual, violent or other manner, or solicits personal information from anyone under 18.
Contractors/subcontractors may not use the Service to:
a. post employment opportunities in a manner that does not comply with applicable local, state, federal, or international laws, regulations, rules and applicable guidance, including but not limited to laws relating to labor and employment, equal employment opportunity and employment eligibility requirements, data privacy, data access and use, and intellectual property,
b. post employment opportunities that include any screening requirement or criterion in connection with an employment opportunity ad where such requirement or criterion is not an actual and legal requirement of the posted employment opportunity,
c. except as expressly permitted by TraLaMa, sell, promote or advertise products or services,
d. post any franchise, pyramid scheme, “club membership”, distributorship, multi-level marketing opportunity, or similar sales representative agency arrangement,
e. post any business opportunity that requires an up front or periodic payment or requires recruitment of other members, sub-distributors or sub-agents,
f. post any business opportunity that pays commission only unless the posting clearly states that the available job pays commission only and clearly describes the product or service that the job seeker would be selling,
g. promote any opportunity that does not represent bona fide employment which is generally indicated by the contractor’s/subcontractor’s use of Internal Revenue Service forms, e.g., W-2 or 1099,
h. advertise sexual services or seek employees for jobs of a sexual nature,
i. request the use of human body parts or the donation of human parts, including, without limitation, reproductive services such as egg donation and surrogacy,
j. endorse a political party, political agenda, political position or issue,
k. promote a religion, or
l. post jobs located in countries subject to economic sanctions of the United States Government.
TraLaMa reserves the right to remove any employment opportunity ad or content from a Website, which in the reasonable exercise of TraLaMa’s discretion, does not comply with the above Terms of Service, or if any content is posted that TraLaMa believes is not in the best interest of TraLaMa or the users of its Service.
If at any time during you use of TraLaMa’s Service, you have made a misrepresentation of fact to TraLaMa or otherwise misled TraLaMa in regards to the nature of your business activities, TraLaMa will have grounds to terminate your use of the Services.
If you hire or contract with another user, you and the user are solely responsible for determining hours worked, compensation, and compliance with state and federal wage and hour laws. TraLaMa has not verified nor investigated any users and TraLaMa is not responsible for any contract or employment decisions made by you or the other user. You are solely responsible for researching and complying with state and federal employment and independent contractor laws applicable to your employment or contractual relationship.
14. Intellectual Property. Except as provided below, all text, graphics, editorial content, data, formatting, designs, blueprints, inventions, code, software, images, videos, trademarks, or other content generated pursuant to the Service is expressly owned by the individual or entity that made the post. However, you may agree to either assign or retain any intellectual property developed through use of the Service with each individual contractor/subcontractor, in which case said agreement will supersede this Intellectual Property clause.
15. Geographic Restrictions. The Services are based in the United States and provide for access and use only by persons located in the United States. You acknowledge that you may not be able to access all or some of the content and Services outside of the United States and that access thereto may not be legal by certain persons or in certain countries. If you access the Service from outside the United States, you are responsible for compliance with local laws.
16. User Content and Submissions. All information, data, text, software, music, sound, photographs, graphics, video, advertisements, messages or other materials submitted, posted or displayed by you or a third party on or through a Website (“User Content”) is the sole responsibility of the person from which such User Content originated. TraLaMa claims no ownership or control over any User Content. You or a third party licensor, as appropriate, retain all patent, trademark and copyright to any User Content you submit, post or display on or through TraLaMa and you are responsible for protecting those rights, as appropriate.
By posting User Content, you represent and warrant that you have the right to grant, or that the holder of any rights, including moral rights in such content has completely and effectively waived all such rights and validly and irrevocably granted to you the right to grant, the license stated above. If you post User Content in any public area of a Website, you also permit any user of the Website or Service to access, display, view, store and reproduce such User Content for their own use. Subject to the foregoing, the owner of such User Content placed on any Website retains any and all rights that may exist in such User Content.
To the maximum extent permitted under applicable law, TraLaMa may review and remove any User Content that, in its sole judgment, violates these Terms of Service, violates applicable laws, rules or regulations, is abusive, disruptive, offensive or illegal, or violates the rights of, or harms or threatens the safety of, Users of a Website. TraLaMa reserves the right to expel users and prevent their further access to a Website and the Service for violating the Terms of Service or applicable laws, rules or regulations. TraLaMa may take any action with respect to User Content that it deems necessary or appropriate in its sole discretion if it believes that such User Content could create liability for TraLaMa, damage TraLaMa’s brand or public image, or cause TraLaMa to lose users or the services of its ISPs or other suppliers.
TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, TRALAMA DOES NOT REPRESENT OR GUARANTEE THE TRUTHFULNESS, ACCURACY, OR RELIABILITY OF USER CONTENT, DERIVATIVE WORKS FROM USER CONTENT, OR ANY OTHER COMMUNICATIONS POSTED BY USERS NOR DOES TRALAMA ENDORSE ANY OPINIONS EXPRESSED BY ANY USERS. YOU ACKNOWLEDGE THAT ANY RELIANCE ON MATERIAL POSTED BY OTHER USERS WILL BE AT YOUR OWN RISK.
The following is a partial list of User Content that is prohibited. The list below is for illustration only and is not a complete list of all prohibited User Content. Content that:
a. is implicitly or explicitly offensive, such as User Content that engages in, endorses or promotes racism, bigotry, discrimination, hatred or physical harm of any kind against any group or individual,
b. harasses, incites harassment or advocates harassment of any group or individual,
c. involves the transmission of “junk mail”, “chain letters,” or unsolicited mass mailing, “spamming” or “phishing”,
d. promotes or endorses false or misleading information or illegal activities or conduct that is abusive, threatening, obscene, defamatory or libelous,
e. promotes or endorses an illegal or unauthorized copy of another person’s copyrighted work, such as providing or making available pirated computer programs or links to them, providing or making available information to circumvent manufacture-installed copy-protect devices, or providing or making available pirated music or other media or links to pirated music or other media files,
f. displays or links to pornographic, indecent or sexually explicit material of any kind,
g. provides or links to material that exploits people under the age of 18 in a sexual, violent or other manner, or solicits personal information from anyone under 18,
h. provides instructional information about illegal activities or other activities prohibited by these Terms of Service, including without limitation, making or buying illegal weapons, violating someone’s privacy, providing or creating computer viruses or pirating any media, or
i. solicits passwords or personal identifying information from other Users.
Profiles derived from User Content may also be made available through a Website. TraLaMa does not make any representations regarding the accuracy or validity of such derived works or their appropriateness for evaluation by prospective employers.
17. Third-Party Materials. As part of providing the Service, TraLaMa and its users may also display, include, or make available third-party content (including data, information, applications, and other products, services, and/or materials) or provide links to third-party websites or services (“Third-Party Materials”). You agree that TraLaMa is not responsible for Third-Party Materials, including their accuracy, completeness, or any other aspect of the material(s).
18. Term and Termination. The term of these Terms of Service commences when you download, install, or access the Service and your acceptance will continue in effect until terminated by you or TraLaMa. You may terminate these Terms of Service by deleting your Authorized Account from the Service or upon written notice submitted to TraLaMa. In the event you terminate these Terms of Service, your right to use the Service is revoked, including the right to access information or data stored on the service.
TraLaMa is not a party to any engagement between users. Therefore, your hereby acknowledge and understand that termination of these Terms of Service does not terminate or otherwise impact any engagement between you and another user to complete a project or job.
19. Disclaimer of Warranties. YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, THE SERVICE IS PROVIDED TO USERS AND LICENSEE “AS IS” AND WITH ALL FAULTS AND DEFECTS WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, TRALAMA, ON ITS OWN BEHALF AND ON BEHALF OF ITS AFFILIATES AND ITS AND THEIR RESPECTIVE LICENSORS AND SERVICE PROVIDERS, EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE SERVICE, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE, OR TRADE PRACTICE. WITHOUT LIMITATION TO THE FOREGOING, TRALAMA PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND THAT THE SERVICE WILL MEET YOUR REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE, OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS, OR SERVICES, OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS, OR BE ERROR-FREE, OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED.
CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS AND WE WILL HONOR THOSE RIGHTS ACCORDING TO APPLICABLE LAW.
IF ANY PORTION OF THIS LIMITATION OF LIABILITY IS FOUND TO BE INVALID OR UNENFORCEABLE FOR ANY REASON, THEN THE AGGREGATE LIABILITY OF TRALAMA SHALL NOT EXCEED ONE HUNDRED DOLLARS ($100).
20. TraLaMa’s Liability. TraLaMa’s Website acts as, among other things, venues for (i) contractors/subcontractors to post job opportunities and search for and evaluate job candidates and (ii) candidates to post resumes and profiles, and search for and evaluate job opportunities. TraLaMa does not review, screen or censor the User Content. TraLaMa is not involved in, and does not control, the actual transaction between contractors/subcontractors and candidates. As a result, TraLaMa is not responsible for User Content, the quality, safety or legality of the jobs or resumes posted, the truth or accuracy of the listings, the ability of contractors/subcontractors to offer job opportunities to candidates or the ability of candidates to fill job openings and TraLaMa makes no representations about any jobs, resumes or User Content on a Website, and TraLaMa has no control over the accuracy, reliability, completeness, or timeliness of the users’ Authorized Account profiles and makes no representations about any such Authorized Account profile on a Website. While TraLaMa reserves the right in its sole discretion to remove User Content, job ads, resumes or other material from a Website from time to time, TraLaMa does not assume any obligation to do so and to the extent permitted by law, disclaims any liability for failing to take any such action.
You understand and agree that there are risks, including but not limited to the risk of physical harm, of dealing with strangers, underage persons or people acting under false pretenses. You assume all risks associated with dealing with other users with whom you come in contact through a Website or the Service. By its very nature other people’s information may be offensive, harmful or inaccurate, and in some cases will be mislabeled or deceptively labeled. We expect you to use caution and common sense when using a Website and the Service. Because user authentication on the Internet is difficult, TraLaMa cannot and does not confirm that each user is who they claim to be. Because we do not and cannot be involved in user-to-user dealings or control the behavior of participants on any Website, in the event that you have a dispute with one or more Users, you understand and agree that TraLaMa (and its owners, subsidiaries, affiliates, partners, officers, employees, contractors and subcontractors, vendors, carriers, insurers, successors, agents assignees, trustee in bankruptcy, and anyone else acting on TraLaMa’s behalf) have no liability to you for claims, demands or damages (actual and consequential and direct and indirect) of any kind or nature, known and unknown, suspected or unsuspected, disclosed or undisclosed, arising out of or in any way connected with such disputes to the fullest extent permitted by law.
If You are a California resident, you voluntarily waive California Civil Code Section 1542, which says: “A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party.”
If you believe that something on a Website violates these Terms of Service please contact TraLaMa. If notified of any User Content or other materials which allegedly do not conform to these Terms of Service, TraLaMa may in its sole discretion investigate the allegation and determine whether to remove or request the removal of the content. TraLaMa has no liability or responsibility to users for performance or nonperformance of such activities.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL TRALAMA OR ITS AFFILIATES, OR ANY OF ITS OR THEIR RESPECTIVE LICENSORS OR SERVICE PROVIDERS, HAVE ANY LIABILITY ARISING FROM OR RELATED TO YOUR USE OF OR INABILITY TO USE THE SERVICES FOR: (1) PERSONAL INJURY, PROPERTY DAMAGE, LOST PROFITS, COST OF SUBSTITUTE GOODS OR SERVICES, LOSS OF DATA, LOSS OF GOODWILL, BUSINESS INTERRUPTION, COMPUTER FAILURE OR MALFUNCTION, OR ANY OTHER CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES, AND (2) DIRECT DAMAGES IN AMOUNTS THAT IN THE AGGREGATE EXCEED THE AMOUNT ACTUALLY PAID BY YOU FOR USE OF THE SERVICE.
THE FOREGOING LIMITATIONS WILL APPLY WHETHER SUCH DAMAGES ARISE OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE OR TRALAMA WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW CERTAIN LIMITATIONS OF LIABILITY SO SOME OR ALL OF THE ABOVE LIMITATIONS OF LIABILITY MAY NOT APPLY TO YOU.
YOU HEREBY RELEASE TRALAMA, AND ITS OWNERS, SUBSIDIARIES, AFFILIATES, PARTNERS, OFFICERS, EMPLOYEES, CONTRACTORS AND SUBCONTRACTORS, VENDORS, CARRIERS, INSURERS, SUCCESSORS, AGENTS, ASSIGNEES, TRUSTEE IN BANKRUPTCY, AND ANYONE ACTING ON TRALAMA’S BEHALF FROM ANY LIABILITY, INCLUDING NEGLIGENCE, IN CONNECTION WITH THE WEBSITE AND SERVICE, AND FROM ANY LOSS OR EXPENSE SUFFERED BY YOU RESULTING DIRECTLY OR INDIRECTLY FROM YOUR USE OF THE WEBSITE OR SERVICE. IN NO EVENT WILL ANY PARTY BE LIABLE FOR ECONOMIC, INCIDENTAL, CONSEQUENTIAL, INDIRECT, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFIT OR LOSS OF DATA, LOSS OR INTERRUPTION OF USE, OR COST TO PROCURE SUBSTITUTE TECHNOLOGIES, GOODS OR SERVICES), WHETHER CLAIMED UNDER CONTRACT, TORT OR ANY OTHER LEGAL THEORY.
IF ANY EXCLUSION OR LIMITATION OF LIABILITY IS VOID, PROHIBITED OR UNENFORCEABLE BY APPLICABLE LAW, IN NO EVENT SHALL TRALAMA BE LIABLE FOR ANY DAMAGES IN THE AGGREGATE IN EXCESS OF THE GREATER OF (I) THE AMOUNT PAID TO TRALAMA FOR THE SERVICE OVER THE 12 MONTHS PRECEDING THE DATE ANY CLAIM ARISES AND (II) $100.
21. Your Liability/TraLaMa’s Right to Indemnification. You agree to indemnify, defend, and hold harmless TraLaMa and its owners, subsidiaries, affiliates, partners, officers, employees, contractors and subcontractors, vendors, carriers, insurers, successors, agents, assignees, trustee in bankruptcy, and anyone else acting on TraLaMa’s behalf from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind (including reasonable attorneys’ fees), arising from or relating to your use or misuse of the Website or Service or your breach of these Terms of Service.
TraLaMa otherwise respects the intellectual property of others, and we ask our users and content partners to do the same. The unauthorized posting, reproduction, copying, distribution, modification, public display or public performance of copyrighted works constitutes infringement of the copyright owner’s rights. As a condition to your use of a Website and the Service, you agree not to use any Website to infringe the intellectual property rights of others in any way. TraLaMa reserves the right to terminate the accounts of any users, and block access to the Website and Service of any users who infringe the copyrights or other intellectual property rights of others. TraLaMa reserves the right, in its sole discretion, to take these actions to limit access to the Website and Services, and/or terminate the user’s Authorized Account at any time, in our sole discretion, whether or not there is any repeat infringement, with or without notice, and without any liability to the user who is terminated or to the user whose access is blocked.
22. Dispute Resolution – Mandatory Arbitration and Class Action Waiver. THIS SECTION REQUIRES THE PARTIES TO ARBITRATE DISPUTES AND LIMITS THE MANNER IN WHICH RELIEF CAN BE SOUGHT BY YOU OR TRALAMA.
a. Informal Efforts to Resolve Dispute. For any dispute, you and TraLaMa agree to attempt to resolve the dispute informally, which may include mediation.
b. Arbitration Notice. THESE TERMS OF SERVICE CONTAIN A BINDING ARBITRATION CLAUSE. PLEASE READ THIS PROVISION CAREFULLY, AS IT AFFECTS YOUR LEGAL RIGHTS. IT PROVIDES THAT ANY CLAIM RELATING TO YOUR USE OF THE WEBSITE AND SERVICES MAY BE RESOLVED BY BINDING ARBITRATION. YOU ARE ENTITLED TO A FAIR HEARING, BUT THE ARBITRATION PROCEDURES ARE SIMPLER AND MORE LIMITED THAN RULES APPLICABLE IN COURT, AND ARBITRATION DECISIONS ARE SUBJECT TO VERY LIMITED REVIEW.
CLAIMS MAY BE ARBITRATED ONLY ON AN INDIVIDUAL BASIS. YOU EXPRESSLY WAIVE ANY RIGHT THAT YOU MAY HAVE TO ARBITRATE A CLASS ACTION. IF EITHER PARTY CHOOSES TO ARBITRATE A CLAIM, NEITHER PARTY WILL HAVE THE RIGHT TO LITIGATE THAT CLAIM IN COURT OR TO HAVE A JURY TRIAL ON THAT CLAIM, OR TO PARTICIPATE IN A CLASS ACTION OR REPRESENTATIVE ACTION WITH RESPECT TO SUCH CLAIM.
c. Acknowledgment of Binding Arbitration Clause. Your use of the Website and Services is expressly conditioned upon your acceptance of the following binding Arbitration clause. By using the Website or Services, you acknowledge that you are giving up the right to litigate “Claims,” defined below, if either party elects Arbitration of the Claims pursuant to this clause, except as otherwise expressly provided herein, and you hereby knowingly and voluntarily waive the right to trial of all Claims subject to this binding Arbitration clause. You further acknowledge that you have read this Arbitration provision carefully, agree to its terms, and are completing your Authorized Account set up voluntarily and not in reliance on any promises or representations whatsoever except those contained in these Terms of Service and this binding Arbitration clause.
d. Arbitration of Claims. Except as expressly provided herein, any claim, dispute or controversy (whether based upon contract; tort, intentional or otherwise; constitution; statute; common law; or equity and whether pre-existing, present or future), including initial claims, counter-claims, cross-claims and third-party claims, arising from or relating to (i) a Website, (ii) the Services, (iii) the marketing of a Website or Services; (iv) these Terms of Service, including the validity, enforceability, interpretation, scope, or application of these Terms of Service and this binding Arbitration provision; and (v) any other agreement or instrument relating to the Website or Services (collectively a “Claim”) shall be decided, upon the election of you or TraLaMa (or TraLaMa’s owners, subsidiaries, affiliates, partners, officers, employees, contractors and subcontractors, vendors, carriers, insurers, successors, agents, assignees, trustee in bankruptcy, and anyone else acting on TraLaMa’s behalf (collectively, “TraLaMa”)), by binding Arbitration pursuant to this Arbitration clause and the applicable rules and procedures of the Arbitration administrator in effect at the time the Claim is filed.
The American Arbitration Association (“AAA”) shall serve as the Arbitration administrator. You may obtain copies of the current rules, forms, and instructions for initiating an Arbitration with the AAA by contacting the AAA as follows: on the web at www.adr.org or by writing to AAA at 1633 Broadway, 10th Floor, New York, NY 10019.
e. Other Claims Subject to Arbitration. In addition to Claims brought by either you or TraLaMa, any claim, dispute or controversy (whether based upon contract; tort, intentional or otherwise; constitution; statute; common law; or equity and whether pre-existing, present or future), including initial claims, counter-claims, cross-claims and third-party claims made by or against (i) anyone acting on TraLaMa’s behalf, including, but not limited to, TraLaMa’s owners, subsidiaries, affiliates, partners, officers, employees, contractors and subcontractors, vendors, insurers, successors, agents, assignees, trustee in bankruptcy, or anyone else acting on TraLaMa’s behalf, or (ii) anyone acting on your behalf, shall be subject to Arbitration as described herein.
Any claim, dispute or controversy (whether based upon contract; tort, intentional or otherwise; constitution; statute; common law; or equity and whether pre-existing, present or future), including initial claims, counter-claims, cross-claims and third-party claims made by or against another Authorized User or Authorized User’s Employee(s) shall be decided, upon the election of the Authorized User or Authorized User’s Employee (or the Company’s owners, subsidiaries, affiliates, partners, officers, employees, contractors and subcontractors, vendors, insurers, successors, agents, assignees, trustee in bankruptcy, or anyone else acting on TraLaMa’s behalf), shall be subject to Arbitration as described herein.
Any claim, dispute or controversy (whether based upon contract; tort, intentional or otherwise; constitution; statute; common law; or equity and whether pre-existing, present or future), including initial claims, counter- claims, cross-claims and third-party claims made by or against another Authorized User or Authorized User’s Employee(s) shall be decided, upon the election of the Authorized User or Authorized User’s Employee (or the Company’s owners, subsidiaries, affiliates, partners, officers, employees, contractors and subcontractors, vendors, insurers, successors, agents, assignees, trustee in bankruptcy, or anyone else acting on TraLaMa’s behalf), shall be subject to Arbitration as described herein.
f. Exceptions. Claims that are excluded from this Arbitration provision are actions seeking injunctive relief and disputes related to TraLaMa’s intellectual property. You and TraLaMa further agree not to invoke our right to arbitrate any individual Claim you bring in small claims court or an equivalent court so long as the Claim is pending only in that court and remains pending only in that court.
g. Individual Claims Only. It is the intent of the parties to require Claims to be submitted to Arbitration on an individual basis only. Claims subject to this Arbitration provision may not be joined or consolidated in Arbitration with any Claim of any other person or be arbitrated on a class basis, in a representative capacity on behalf of the general public or on behalf of any other person, unless otherwise agreed to by the parties in writing. However, TraLaMa, its owners, subsidiaries, affiliates, partners, officers, employees, contractors and subcontractors, vendors, carriers, insurers, successors, agents, assignees, trustee in bankruptcy, and anyone else acting on TraLaMa’s behalf are considered as “one person.”
h. Arbitration Fees/Deposits. If an Arbitration is initiated by either party, who is responsible for payment of any Arbitration deposit or fees will be governed by the then applicable AAA rules.
i. Procedure. A single arbitrator will resolve the Claims. The arbitrator will be a lawyer with at least ten years’ experience or who is a former or retired judge. The Arbitration shall follow the rules and procedures of the Arbitration administrator in effect on the date the Arbitration is filed, except when there is a conflict or inconsistency between the rules and procedures of the Arbitration administrator and this Arbitration provision, in which case this Arbitration provision shall govern.
Any in-person Arbitration hearing for a Claim shall take place within the federal judicial district in which you live or at such other reasonably convenient location as agreed by the parties. The arbitrator shall apply applicable substantive law consistent with the Federal Arbitration Act, 9 U.S.C. § 1 et seq. (the “FAA”) and shall honor all claims of privilege and confidentiality recognized at law. All statutes of limitations that would otherwise be applicable shall apply to any Arbitration proceeding. The arbitrator shall only be empowered to grant relief that would be available in court under law or in equity.
At the request of any party, the arbitrator will provide a written explanation of the basis for the disposition of each claim, including written findings of fact and conclusions of law. This Arbitration provision is made pursuant to a transaction involving interstate commerce, and shall be governed by the FAA.
23. Severability. If any provision of this Agreement is illegal or unenforceable under applicable law, the remainder of the provision will be amended to achieve as closely as possible the effect of the original term and all other provisions of this Agreement will continue in full force and effect.
24. Governing Law. This Agreement is governed by the laws of the State of Ohio without giving effect to any choice or conflict of law provision. Any legal suit, action, or proceeding arising out of or related to this Agreement or the Application shall take place exclusively in the federal courts of the United States or the courts of the State of Ohio in each case located in Columbus and Franklin County. You waive any and all objections to the exercise of jurisdiction over you by such courts and to venue in such courts.
25. Limitation of Time to File Claims. ANY CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO A WEBSITE OR GOVERNED BY THESE TERMS OF SERVICE THAT IS NOT COMMENCED WITHIN TWELVE (12) MONTHS AFTER THE LATER OF (I) THE ACCRUAL OF; OR (II) TRALAMA’S OR YOUR KNOWLEDGE OF (OR WHEN SUCH PARTY SHOULD HAVE REASONABLY BECOME AWARE OF) THE CLAIM, SHALL BE DEEMED BARRED.
26. Access to a Website or the Services Outside of the United States. TraLaMa makes no claims or representations that the User Content, Website or Service may be lawfully viewed or accessed outside of the United States. Access to the User Content, Website or Service may not be legal by certain persons or in certain countries. If you access any Website or the Service, you do so at your own risk and are responsible for compliance with the laws of your jurisdiction. Any software downloaded from a Website is further subject to United States export control laws, and may not be downloaded or otherwise exported or re-exported (i) into (or to a national or resident of) Cuba, Iraq, Libya, North Korea, Iran, Syria or any other country to which the United States has embargoed goods or (ii) to any individual or entity on the United State’s Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Deny Orders. By downloading or using such software, you represent and warrant that you are not located in, under the control of, or a national or resident of any such country, individual, or entity on any such list.
A user may have an additional agreement with another user(s) that supplements these Terms of Service, including, but not limited to, a written or oral employment agreement or relationship. A user does not waive her/his rights under these Terms of Service unless she/he expressly waives such rights in writing and such a writing is binding on her/him under governing law.
28. Waiver. No failure or delaying in exercising, on the part of either party, any right hereunder shall be considered a waiver thereof. No single or partial exercise of any right hereunder shall preclude further exercise of that or any other right hereunder. If a conflict between these Terms of Service and any term arises, the terms of these Terms of Service shall govern.
29. Contact/Notice. If you have questions about these Terms of Service or if you have technical questions about the operation of a Website or the Service, or need to provide notice to TraLaMa, please contact us as follows:
2360 Citygate Drive
Columbus, Ohio 43219
TraLaMa does not guarantee that we will receive all such e-mail or other information timely and accurately and, except as otherwise required by these Terms of Service, TraLaMa shall not be legally obligated to read, act on or respond to any such e-mail or other information. Be aware that Internet e-mail typically is not secure.
30. Identification of Agent to Receive Notification and Elements of Notification of Claimed Copyright or Trademark Infringement. If you believe that your copyrighted work or trademark has been uploaded, posted or copied to a Website is accessible on such Website in a way that constitutes copyright or trademark infringement, please contact TraLaMa by email at DMCALegal@TraLaMa.com or by regular mail at:
2360 Citygate Drive
Columbus, Ohio 43219
31. Difficulty Accessing Our Terms of Service. Individuals with disabilities who are unable to usefully access these Terms of Service on a Website may contact us at the above-listed contact information to inquire how they can obtain a copy of our Terms of Service in another, more easily readable format.