Welcome, and thank you for your interest in Talentists (“Talentists”), which operates the web site located at http://talentists.org and related mobile applications and services (the “Website”). The following Terms of Service are a legal contract between you, an individual subscriber, customer, member, or user (“You”), and Talentists regarding your use of the Website. Visitors and users of the Website are referred to individually as “User” and collectively as “Users”.
PLEASE READ THE FOLLOWING TERMS OF SERVICE CAREFULLY. BY REGISTERING FOR, ACCESSING, BROWSING, OR USING THE Website, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY THE FOLLOWING TERMS and conditions, INCLUDING any ADDITIONAL GUIDELINES (AS DEFINED BELOW) (COLLECTIVELY, THE “TERMS”).
IF YOU ARE A PARENT OR GUARDIAN AND YOU PROVIDE CONSENT FOR YOUR CHILD TO REGISTER WITH THE WEBSITE, YOU AGREE TO BE BOUND BY THESE TERMS OF SERVICE IN RESPECT OF SUCH CHILD’S USE OF THE WEBSITE.
Table of Contents:
1. Eligibility; Accounts. 2. Privacy Notice. 3. Additional Terms; Other Guidelines. 4. Modification of the Terms. 5. User Content License Grant; Representations and Warranties. 6. Digital Millennium Copyright Act. 7. Licensed Educational Content. 8. Prohibited Conduct. 9. Fees; Payments. 10. Third-Party Sites, Products and Services; Links. 11. Ownership; Proprietary Rights. 12. Termination. 13. Indemnification. 14. Disclaimers; No Warranties. 15. Limitation of Liability and Damages. 16. Miscellaneous (including Dispute Resolution and Arbitration).
1. Eligibility; Accounts. the Website IS not available to (A) any Users previously suspended or removed from the Website by TALENTISTS OR (B) ANY PERSONS UNDER THE AGE OF 13 WHOSE REGISTRATION HAS NOT BEEN APPROVED BY A LEGAL PARENT OR GUARDIAN. By clicking the “I Agree” button or by otherwise using or registering an account for the Website, You represent (a) that You have not been previously suspended or removed from the Website by Talentists, (b) that You are either (i) at least 13 years of age or (ii) Your parent and/or guardian has consented to Your use of the Website; and (c) that your registration and your use of the Website is in compliance with any and all applicable laws and regulations.
1.1 Account. In order to use certain features of the Website, you must register for an account. You may be asked to provide a password in connection with your account. You are solely responsible for maintaining the confidentiality of your account and password and for restricting access to your computer, and You agree to accept responsibility for all activities that occur under your account or password. You agree that the information You provide to Talentists, whether on registration or at any other time, will be true, accurate, current, and complete. You also agree that You will ensure that this information is kept accurate and up-to-date at all times. If You have reason to believe that your account is no longer secure (e.g., in the event of a loss, theft or unauthorized disclosure or use of your account ID, password, or any credit, debit or charge card number, if applicable), then You agree to immediately notify Talentists. You may be liable for the losses incurred by Talentists or others due to any unauthorized use of your Website account.
1.3 Child Member. If you are a User of the Website that is under the age of 13 (“Child Member”), you may not register an account for the Website without consent and approval from your legal parent or guardian. A Child Member that begins the registration process for himself or herself without a Parent Member may have the registration process restricted until a Parent Member, or a Coach (as defined below) as the case may be, approves or assumes responsibility for the Child Member account. Additionally, a Child Member may use the Website if registered through certain educational organizations that have entered into a relationship directly with Talentists and through which educational organization the legal parent and/or guardian of such Child Member has consented to use of the Website. A Child Member that has registered through such external educational organizations will only be permitted to use the Website for so long as Talentists reasonably believes that such access has been consented by the Child Member's parent of guardian.
1.4 Parent Member. If You are at least 18 years of age and you are the legal parent or guardian of a child that seeks to register as a Child Member of the Website, You may register a parent account on the Website (“Parent Member”). If you are a Parent Member you may create, register, manage and approve Child Member accounts only for your own children, or children for whom you are a legal guardian. A Parent Member account, along with all associated Child Member accounts, may be terminated by Talentists at any time and without warning for any failure to abide by these Terms. IF YOU REGISTER, APPROVE THE REGISTRATION OF, OR OTHERWISE ASSUME RESPONSIBILITY FOR ANY CHILD MEMBER, YOU REPRESENT AND WARRANT THAT YOU ARE SUCH CHILD MEMBER’S LEGAL PARENT OR GUARDIAN AND YOU AGREE TO BE BOUND BY THE TERMS ON BEHALF OF SUCH CHILD MEMBER, INCLUDING WITHOUT LIMITATION BEING LIABLE FOR ALL USE OF THE WEBSITE BY THE CHILD MEMBER. You acknowledge that Talentists may choose, but is not obligated, to make any inquiries, either directly or through third parties, that Talentists deems necessary to validate Your registration information, including without limitation engaging third parties to provide verification services. Talentists reserves all rights to take legal actions against anyone who misrepresents personal information or is otherwise untruthful about their identity. NOTWITHSTANDING THE FOREGOING, YOU ACKNOWLEDGE THAT TALENTISTS CANNOT GUARANTEE THE ACCURACY OF ANY INFORMATION SUBMITTED BY ANY USER AND TALENTISTS IS NOT OBLIGATED TO VERIFY THE IDENTITY OF ANY USER, INCLUDING ANY USER’S CLAIM TO BE A PARENT MEMBER, OR TO VERIFY THAT A PARENT IDENTIFIED BY A CHILD MEMBER OR A COACH DURING REGISTRATION IS SUCH CHILD MEMBER’S ACTUAL PARENT OR GUARDIAN.
1.5 Coach. Talentists may make available certain features and tools that permit certain Users to connect with students through the Website in order to provide tutorial, educational and similar services to Users (such as, for example, representatives of school districts, schools, teachers, and other educators) (each a “Coach”). If you are a Coach, you may register accounts on the Website for one or more of your students solely using the applicable registration mechanism made available by Talentists for Coaches on or through the Website. IF YOU ARE A COACH AND YOU REGISTER AN ACCOUNT FOR ANY ANY CHILD MEMBER, YOU REPRESENT AND WARRANT THAT YOU HAVE RECEIVED EXPRESS CONSENT FROM SUCH CHILD MEMBER’S PARENT OR LEGAL GUARDIAN FOR YOU TO REGISTER THE CHILD MEMBER FOR THE WEBSITE AND FOR YOU TO PROVIDE TO TALENTISTS THE INFORMATION YOU DISCLOSE IN CONNECTION WITH THE REGISTRATION OF SUCH CHILD MEMBER. WITHOUT LIMITING THE FOREGOING, YOU FURTHER AGREE TO BE BOUND BY THESE TERMS ON BEHALF OF SUCH CHILD MEMBER, INCLUDING WITHOUT LIMITATION BEING LIABLE FOR ALL USE OF THE WEBSITE BY THE CHILD MEMBER, FOR SO LONG AS THE CHILD MEMBER IS NOT OTHERWISE ASSOCIATED WITH OR ASSUMED BY A VALID PARENT MEMBER ACCOUNT. You hereby agree to indemnify, defend and hold harmless Talentists against any and all claims, losses, liabilities and expenses (including reasonable attorneys’ fees) arising out of or related to (a) your violation of any provision, representation or warranty this Section 1.5; (b) the use of the Website by the Child Member; (c) your failure to obtain sufficient parental or legal guardian consent; or (d) your registration of the Child Member.
3. Additional Terms; Other guidelines.
3.1 Additional Terms. Users who utilize any of Talentists’s application programming interfaces (“APIs”) are bound by the API terms of service (“API Terms”). The Talentists API Terms are hereby incorporated into these Terms by reference.
3.2 Other Guidelines. When using the Website, You will be subject to any additional posted guidelines or rules applicable to specific services and features which may be posted from time to time, including without limitation the API Terms (the “Guidelines”). All such Guidelines are hereby incorporated by reference into the Terms.
4. Modification of the Terms. Talentists reserves the right, at our discretion, to change, modify, add, or remove portions of the Terms at any time. Please check the Terms and any Guidelines periodically for changes. Your continued use of the Website after the posting of changes constitutes your binding acceptance of such changes. For any material changes to the Terms, Talentists will make reasonable effort to provide notice to you of such amended Terms, such as by an email notification to the address associated with your account or by posting a notice on the Website, and such amended terms will be effective against You on the earlier of (i) your actual notice of such changes and (ii) thirty days after Talentists makes reasonable attempt to provide you such notice. Disputes arising under these Terms will be resolved in accordance with the version of the Terms in place at the time the dispute arose.
5. User Content License Grant; Representations and Warranties.
5.1 User Content Generally. Talentists may now or in the future permit the posting by You and other users of notes, questions, comments, ratings, reviews, images and videos or other communications (collectively, “User Postings”), the posting, creation, or modification by You and other users of computer code (including source code and object code) ("User Code"), and the hosting, sharing, and/or publishing of such User Postings or User Code (User Postings and User Code, collectively, "User Content"). You understand that whether or not such User Content is published, Talentists does not guarantee any confidentiality with respect to any submissions.
5.2 License Grant to Talentists. By submitting or distributing User Content through the Website, You hereby grant to Talentists a worldwide, non-exclusive, transferable, assignable, fully paid-up, royalty-free, perpetual, irrevocable right and license to host, transfer, display, perform, reproduce, modify, distribute and re-distribute, adapt, prepare derivative works of, use, make, have made, sell, offer for sale, import, and otherwise exploit your User Content, under all intellectual property rights therein, in whole or in part, in any media formats and through any media channels (now known or hereafter developed).
5.3 License Grant to Users. By submitting or distributing User Postings through the Website, You hereby grant to each User of the Website a non-exclusive license to access and use your User Postings. By submitting or distributing User Code through the Website, You hereby grant to each User of the Website a non-exclusive license to access and use your User Code as permitted under the terms of the MIT license (currently available at: http://opensource.org/licenses/mit-license.php) (the "MIT License"). The foregoing license granted by You terminates as to specific User Content once You remove or delete such User Content from the Website; provided, however, that Users’ rights to such User Posting arising out of distributions occurring on or prior to deletion of such User Content from the Website survive any termination or expiration of the license granted in this Section 5.3.
5.4 User Content Representations and Warranties. You are solely responsible for your User Content and the consequences of posting or publishing them. By uploading, submitting, creating, or publishing your User Content to or through the Website, You affirm, represent, and warrant that: (1) You are the creator and owner of or have the necessary licenses, rights, consents, and permissions to use and to authorize Talentists and Talentists’s Users to use and distribute your User Content as necessary to exercise the licenses granted by You in this Section and in the manner contemplated by Talentists and these Terms of Service; (2) your User Content does not and will not: (a) infringe, violate, or misappropriate any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right or (b) slander, defame, libel, or invade the right of privacy, publicity or other property rights of any other person; (3) your User Content does not contain any viruses, adware, spyware, worms, or other malicious code. Violators of these third-party rights may be subject to criminal and civil liability. Talentists reserves all rights and remedies against any User who violates these Terms of Service.
5.5 Access to Your User Content. Talentists permits Users to share their User Contentf with a select group of other Users, or make their User Content public for all (even non-Website users) to view. You acknowledge and agree that although Talentists may provide certain features intended to allow you to restrict some User Content you create from others, Talentists does not guarantee that such User Content will never be accessible by others. In the event of unauthorized access, Talentists will use reasonable efforts to notify you pursuant to Section 16.1 below. TALENTISTS HEREBY DISCLAIMS ANY AND ALL LIABILITY WITH RESPECT TO ANY UNAUTHORIZED ACCESS TO ANY RESTRICTED USER CONTENT.
5.6 User Content Disclaimer. You understand that when using the Website You will be exposed to User Content from a variety of sources, and that Talentists is not responsible for the accuracy, usefulness, or intellectual property rights of or relating to such User Content. You further understand and acknowledge that You may be exposed to User Content that are inaccurate, offensive, indecent or objectionable, and You agree to waive, and hereby do waive, any legal or equitable rights or remedies You have or may have against Talentists with respect thereto. Talentists does not endorse any User Content or any opinion, recommendation or advice expressed therein, and Talentists expressly disclaims any and all liability in connection with User Content. If you are a content owner or User with concerns regarding your trademarks, copyrights, or other intellectual property rights, please contact Talentists at: firstname.lastname@example.org. If notified by a User or a content owner of User Content that allegedly does not conform to the Terms, including without limitation allegations of infringement of third-party intellectual property or proprietary rights, Talentists may investigate the allegation and determine in its sole discretion whether to remove the User Content, which it reserves the right to do at any time and without notice or liability to You. For clarity, Talentists does not permit copyright, trademark, or other intellectual property infringing activities on the Website. Talentists respects the intellectual property of others and takes the protection of copyrights, trademarks, and all other intellectual property very seriously, and asks that Users do the same.
6. Digital Millennium Copyright Act. It is Talentists’s policy to respond to notices of alleged copyright infringement that comply with the Digital Millennium Copyright Act. For more information, please go to Talentists’s DMCA Notification Guidelines. Talentists will promptly terminate without notice your access to the Website if You are determined by Talentists to be a “repeat infringer.” A repeat infringer is a User who has been notified by Talentists of infringing activity violations more than twice and/or who has had User Content or any other user-submitted content removed from the Website more than twice.
7. Licensed Educational Content.
7.1 License. Unless indicated as being in public domain, all educational videos and exercises provided on the Website by Talentists and that are specifically created to YouTube by Talentists (the “Licensed Educational Content”) and all educational, user-readable source code made available to You by Talentists on or through the “Computer Science” modules or exercises on the Website (the “Licensed Educational Code”) are protected by United States copyright, trade dress, patent, and trademark laws, international conventions, and all other relevant intellectual property and proprietary rights, and applicable laws. Unless otherwise indicated, all Licensed Educational Content is the property of Talentists or its subsidiaries or affiliated companies and/or third-party licensors and, subject to the terms and conditions of these Terms, is licensed to You under the Creative Commons Attribution-NonCommercial-ShareAlike 3.0 United States License (available at http://creativecommons.org/licenses/by-nc-sa/3.0/us/) (the “Creative Commons License”). By downloading or otherwise accessing such Licensed Educational Content, You agree to comply with all the terms of the Creative Commons License. Unless otherwise indicated, all Licensed Educational Code is the property of Talentists or its subsidiaries or affiliated companies and/or third-party licensors and, subject to the terms and conditions of these Terms, is licensed to You under the terms of the MIT License. By downloading or otherwise accessing such Licensed Educational Code, You agree to comply with all the terms of the MIT License. Talentists reserves all rights in the Licensed Educational Content and Licensed Educational Code not expressly granted in the Terms.
7.2 License Restrictions. The Licensed Educational Content is intended for personal, non-commercial use only. Without limiting the foregoing, the Licensed Educational Content may not be used, distributed or otherwise exploited for “commercial advantage or private monetary compensation” under the Creative Commons License unless otherwise agreed in writing by Talentists. Without limiting the generality of the terms of the Creative Commons License, the following are types of uses that Talentists expressly defines as falling outside of the definition of "non-commercial":
(a) the sale or rental of (i) any part of the Licensed Educational Content, (ii) any derivative works based at least in part on the Licensed Educational Content, or (iii) any collective work that includes any part of the Licensed Educational Content;
(b) the sale of access or a link to any part of the Licensed Educational Content without first obtaining informed consent from the buyer that the buyer is aware that the Licensed Educational Content, or such part thereof, is available at the Website free of charge;
(c) providing training, support, or editorial services that use or reference the Licensed Educational Content in exchange for a fee; and
(d) the sale of advertisements, sponsorships, or promotions placed on the Licensed Educational Content, or any part thereof, or the sale of advertisements, sponsorships, or promotions on any website or blog containing any part of the Licensed Educational Material, including without limitation any “pop-up advertisements”.
7.3 Non-Commercial Use. Whether a particular use of the Licensed Educational Content is “non-commercial” depends on the use, not the user.
(a) As an example, a for-profit corporation’s use of the Licensed Educational Content for internal professional development or training of employees is permitted, so long as the corporation charges no fees, directly or indirectly, for such use.
(b) As another example, a non-profit entity’s use of the Licensed Educational Content in connection with a fee-based training or educational program is NOT “non-commercial” and is not permitted.
7.4 Crediting Talentists. The Creative Commons License requires attribution to Talentists in association with Your use of the Licensed Educational Content. Accordingly, if You distribute, publicly perform or display, transmit, publish, or otherwise make available any Licensed Educational Content, You must also provide the following notice prominently along with the Licensed Educational Content: “All Talentists content is available for free at www.talentists.com”
8. Prohibited Conduct. BY USING THE WEBSITE YOU AGREE NOT TO:
8.1 use the Website or any related services, including any Talentists API, for any commercial use or purpose unless expressly permitted by Talentists in writing, it being understood that the Website and related services are intended for personal, non-commercial use only;
8.2 use the Website for any purposes other than to disseminate or receive original or appropriately licensed content and/or to access the Website as such services are offered by Talentists;
8.3 rent, lease, loan, sell, resell, sublicense, distribute or otherwise transfer the licenses granted herein or any Materials (as defined in Section 11, below);
8.4 post, upload, or distribute any defamatory, libelous, or inaccurate User Content or other content;
8.5 post, upload, or distribute any User Content or other content that is unlawful or that a reasonable person could deem to be objectionable, offensive, indecent, pornographic, harassing, threatening, embarrassing, distressing, vulgar, hateful, racially or ethnically offensive, or otherwise inappropriate;
8.6 impersonate any person or entity, falsely claim an affiliation with any person or entity, or access the Website accounts of others without permission, forge another person’s digital signature, misrepresent the source, identity, or content of information transmitted via the Website, or perform any other similar fraudulent activity;
8.7 delete the copyright or other proprietary rights notices on the Website, Licensed Educational Content, Licensed Educational Code, or User Content;
8.8 assert, or authorize, assist, or encourage any third party to assert, against Talentists or any of its affiliates or licensors, any patent infringement or other intellectual property infringement claim regarding any Licensed Educational Content, Licensed Educational Code, or User Content You have used, submitted, or otherwise made available on or through the Website;
8.9 make unsolicited offers, advertisements, proposals, or send junk mail or spam to other Users of the Website. This includes, but is not limited to, unsolicited advertising, promotional materials, or other solicitation material, bulk mailing of commercial advertising, chain mail, informational announcements, charity requests, and petitions for signatures;
8.10 use the Website for any illegal purpose, or in violation of any local, state, national, or international law, including, without limitation, laws governing intellectual property and other proprietary rights, and data protection and privacy;
8.11 defame, harass, abuse, threaten or defraud Users of the Website, or collect, or attempt to collect, personal information about Users or third parties without their consent;
8.12 remove, circumvent, disable, damage or otherwise interfere with security-related features of the Website, Licensed Educational Content, Licensed Educational Code, or User Content, features that prevent or restrict use or copying of any content accessible through the Website, or features that enforce limitations on the use of the Website, Licensed Educational Content, Licensed Educational Code, or User Content;
8.13 reverse engineer, decompile, disassemble or otherwise attempt to discover the source code of the Website or any part thereof, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation;
8.14 modify, adapt, translate or create derivative works based upon the Website or any part thereof, except and only to the extent expressly permitted by Talentists herein or to the extent the foregoing restriction is expressly prohibited by applicable law; or
8.15 intentionally interfere with or damage operation of the Website or any user’s enjoyment of it, by any means, including uploading or otherwise disseminating viruses, adware, spyware, worms, or other malicious code.
9. Fees; Payments.
9.1 Fees. Talentists may now, or in the future, charge fees for access to and use of the Website, or certain features thereof (“Fees”). You agree to pay all Fees and charges specified for such features. All Fees are exclusive of applicable taxes (e.g. sales, use, or value-added tax), unless otherwise stated, and you are solely responsible for the payment of any such taxes that may be imposed on your use of the Website.
9.2 Payment Methods. Talentists will charge the Fee, if any, and other additional fees or donations you authorize, to the PayPal account or credit card you designate. You authorize the credit card or PayPal account you designate to pay any amounts described herein and authorize Talentists, or any other company that acts as a billing agent for Talentists, to continue to attempt to charge all sums described herein to your credit card or PayPal account until such Fees are paid in full. You agree to provide Talentists updated information regarding your credit card and PayPal account upon Talentists’s request, and any time the information earlier provided is no longer valid. If payment is not received by Talentists from your credit card issuer or PayPal, you agree to pay all amounts due upon demand by Talentists.
9.3 Credit Card Authorization. If Talentists permits You to use a credit card to activate pay for any Fees related to the Website, You will be asked to provide Talentists with a credit card number from a card issuer that we accept. Talentists may seek pre-authorization of your credit card account prior to a purchase to verify the credit card is valid and/or has the necessary funds or credit available to cover your purchase. These pre-authorizations will reduce your available balance by the authorization amount until it is released or reconciled with the actual charge. Please contact your credit card issuer if you have additional questions regarding when an authorization amount will be removed from your statement.
9.4 Changes in Price; No Refunds. Talentists may at any time, upon notice required by applicable law, change the price of the Website or any features thereof, institute new charges or fees, or charge a fee for the Website or any part thereof where a fee was not previously charged. All Fees relating to the Website, including any Fees charged for access to the Website, are final and nonrefundable.
10. Third-Party Sites, Products and Services; Links. The Website may include links or references to other web sites or services solely as a convenience to Users (“Reference Sites”). Talentists does not endorse any such Reference Sites or the information, materials, products, or services contained on or accessible through Reference Sites. In addition, your correspondence or business dealings with, or participation in promotions of, advertisers found on or through the Website are solely between You and such advertiser. Access and use of Reference Sites, including the information, materials, products, and services on or available through Reference Sites is solely at your own risk.
11. Ownership; Proprietary Rights. The Website is owned and operated by Talentists. The visual interfaces, graphics, design, compilation, information, computer code (including source code or object code), products, software, services, and all other elements of the Website provided by Talentists (the “Materials”) are protected by United States copyright, trade dress, patent, and trademark laws, international conventions, and all other relevant intellectual property and proprietary rights, and applicable laws. Except for any User Content that are provided and owned by Users, all Materials contained on the Website are the property of Talentists or its subsidiaries or affiliated companies and/or third-party licensors. All trademarks, service marks, and trade names are proprietary to Talentists or its affiliates and/or third-party licensors. Except as expressly authorized by Talentists, You agree not to sell, license, distribute, copy, modify, publicly perform or display, transmit, publish, edit, adapt, create derivative works from, or otherwise make unauthorized use of the Materials. Talentists reserves all rights to the Materials not expressly granted in the Terms.
12.1 Termination by Talentists. You agree that Talentists, in its sole discretion, for any or no reason, and without penalty, may terminate any account (or any part thereof) You may have with Talentists or your use of the Website and remove and discard all or any part of your account, User profile, and any User Content, at any time. Talentists may also in its sole discretion and at any time discontinue providing access to the Website, or any part thereof, with or without notice. You agree that any termination of your access to the Website or any account You may have, or portion thereof, may be affected without prior notice, and You agree that Talentists will not be liable to You or any third party for any such termination. Any suspected fraudulent, abusive or illegal activity may be referred to appropriate law enforcement authorities. These remedies are in addition to any other remedies Talentists may have at law or in equity. As discussed herein, Talentists does not permit copyright, trademarks, or other intellectual property infringing activities on the Website, and will terminate access to the Website, and remove all User Content or other content submitted, by any Users who are found to be repeat infringers.
12.2 Termination by You. Your only remedy with respect to any dissatisfaction with (i) the Website, (ii) any term of these Terms of Service, (iii) Guidelines, (iv) any policy or practice of Talentists in operating the Website, or (v) any content or information transmitted through the Website, is to terminate the Terms and your account. You may terminate the Terms at any time by deleting your login account with the Website and discontinuing use of any and all parts of the Website.
13. Indemnification. You agree to indemnify, defend, and hold harmless Talentists, its affiliated companies, contractors, employees, agents and its third-party suppliers, licensors, and partners (“Talentists Indemnitees”) from any claims, losses, damages, liabilities, including legal fees and expenses, arising out of any use or misuse of the Website, any violation of the Terms, or any breach of the representations, warranties, and covenants made herein, whether by You or by any Child Member associated with you if you are a Parent Member. Talentists reserves the right, at your expense, to assume the exclusive defense and control of any matter for which You are required to indemnify Talentists, and You agree to cooperate with Talentists’s defense of these claims. Talentists will use reasonable efforts to notify You of any such claim, action, or proceeding upon becoming aware of it.
14. Disclaimers; No Warranties.
14.1 No Warranties. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, Talentists, and its affiliates, partners, LICENSORS and SUPPLIERS DISCLAIM ALL WARRANTIES, STATUTORY, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS, ALL WITH REGARDS TO THE WEBSITE. No advice or information, whether oral or written, obtained by You from Talentists or through the Website will create any warranty not expressly stated herein. You expressly acknowledge that, as used in this Section 14, the term Talentists includes Talentists’s officers, directors, employees, shareholders, agents, licensors and subcontractors.
14.2 “As is” and “As available” and “With All Faults”. You expressly agree that use of the Website is at your sole risk. THE Website AND ANY DATA, INFORMATION, THIRD-PARTY SOFTWARE, User Content, reference sites, SERVICES, OR APPLICATIONS MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH THE Website ARE PROVIDED on an “AS IS,” “AS AVAILABLE” AND “with all faults” basis and WITHOUT WARRANTIES or representations OF ANY KIND EITHER EXPRESS OR IMPLIED.
14.3 Content. Talentists, ITS SUPPLIERS, LICENSORS, AFFILIATES, AND PARTNERS DO NOT WARRANT THAT THE DATA, User Content, FUNCTIONS, or any other information OFFERED ON or through THE WEBSITE or any reference sites WILL BE UNINTERRUPTED, or free of errors, VIRUSES OR OTHER HARMFUL COMPONENTS AND DO NOT WARRANT THAT ANY OF THE FOREGOING WILL BE CORRECTED.
14.4 Accuracy. TALENTISTS, ITS SUPPLIERS, LICENSORS, AFFILIATES, AND PARTNERS DO NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE WEBSITE or any reference sites IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE.
14.5 Harm to Your Computer. YOU UNDERSTAND AND AGREE THAT YOU use, access, DOWNLOAD, OR OTHERWISE OBTAIN information, materials, OR DATA THROUGH THE WEBSITE (INCLUDING RSS FEEDS) or any reference sites AT YOUR own DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR property (including your computer system) OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD or use OF SUCH MATERIAL OR DATA.
15. Limitation of Liability and Damages.
15.1 Limitation of Liability. UNDER NO CIRCUMSTANCES, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, WILL TALENTISTS OR ITS AFFILIATES, CONTRACTORS, EMPLOYEES, AGENTS, OR THIRD-PARTY PARTNERS, LICENSORS, OR SUPPLIERS BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, RELIANCE, OR EXEMPLARY DAMAGES (including without limitation damages arising from any unsuccessful court action or legal dispute, lost business, lost revenues, or loss of anticipated profits OR ANY OTHER PECUNIARY OR NON-PECUNIARY LOSS OR DAMAGE OF ANY NATURE WHATSOEVER) ARISING OUT OF OR RELATING TO THE TERMS OR THAT RESULT FROM YOUR USE OF OR YOUR INABILITY TO USE THE WEBSITE or any reference sites, OR ANY OTHER INTERACTIONS WITH TALENTISTS, EVEN IF TALENTISTS OR A TALENTISTS AUTHORIZED REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY OR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN SUCH CASES, TALENTISTS’S LIABILITY WILL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW.
15.2 Limitation of Damages. IN NO EVENT WILL TALENTISTS’S OR ITS AFFILIATES’, CONTRACTORS’, EMPLOYEES’, AGENTS’, OR THIRD-PARTY PARTNERS’, LICENSORS’, OR SUPPLIERS’ TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION ARISING OUT OF OR RELATING TO THE TERMS OR YOUR USE OF THE WEBSITE OR your interaction with OTHER WEBSITE USERS (WHETHER IN CONTRACT, TORT INCLUDING NEGLIGENCE, WARRANTY, OR OTHERWISE), EXCEED THE AMOUNT PAID BY YOU, IF ANY, FOR ACCESSING THE WEBSITE DURING THE TWELVE MONTHS IMMEDIATELY PRECEDING THE date of the claim OR ONE HUNDRED DOLLARS, WHICHEVER IS GREATER.
15.3 Reference Sites. THESE LIMITATIONS OF LIABILITY ALSO APPLY WITH RESPECT TO DAMAGES INCURRED BY YOU BY REASON OF ANY PRODUCTS OR SERVICES SOLD OR PROVIDED on any reference sites or otherwise BY THIRD PARTIES OTHER THAN TALENTISTS AND RECEIVED THROUGH OR ADVERTISED ON THE WEBSITE OR RECEIVED THROUGH ANY reference sites.
15.4 Basis of the Bargain. YOU ACKNOWLEDGE AND AGREE THAT TALENTISTS HAS OFFERED ITS PRODUCTS AND SERVICES, SET ITS PRICES, AND ENTERED INTO THE TERMS IN RELIANCE UPON THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN, THAT THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN REFLECT A REASONABLE AND FAIR ALLOCATION OF RISK BETWEEN YOU AND TALENTISTS, AND THAT THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN YOU AND TALENTISTS. Talentists would not be able to provide the Website to You on an economically reasonable basis without these limitations.
15.5 Limitations by Applicable Law. SOME STATES OR OTHER JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU. YOU MAY ALSO HAVE OTHER RIGHTS THAT VARY FROM STATE TO STATE AND JURISDICTION TO JURISDICTION.
16.1 Notice. Talentists may provide You with notices, including those regarding changes to the Terms, by email, regular mail or postings on the Website. Notice will be deemed given twenty-four hours after email is sent, unless Talentists is notified that the email address is invalid. Alternatively, we may give You legal notice by mail to a postal address, if provided by You through the Website. In such case, notice will be deemed given three days after the date of mailing. Notice posted on the Website is deemed given 30 days following the initial posting.
16.2 Waiver. The failure of Talentists to exercise or enforce any right or provision of the Terms will not constitute a waiver of such right or provision. Any waiver of any provision of the Terms will be effective only if in writing and signed by Talentists.
16.3 Dispute Resolution and Arbitration.
(a) Governing Law. The Terms will be governed by and construed in accordance with the laws of the State of California, without giving effect to any principles of conflicts of law.
(b) Arbitration. For any claim related to the Terms or the Website, excluding claims for injunctive or other equitable relief, where the total amount sought is less than ten thousand U.S. Dollars ($10,000.00 USD), either Talentists or You may elect at any point in or during a dispute or proceeding to resolve the claim through binding non-appearance-based arbitration. A party electing arbitration shall initiate it through an established alternative dispute resolution ("ADR") provider mutually agreed upon by the parties. The ADR provider and the parties must comply with the following rules: (a) the arbitration shall be conducted, at the option of the party seeking relief, by telephone, online, or based solely on written submissions; (b) the arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties; and (c) any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
(c) Jurisdiction. You agree that any action at law or in equity arising out of or relating to the Terms or Talentists will be filed only in the state or federal courts in and for Santa Clara County, California, and each of You and Talentists hereby consent and submit to the personal and exclusive jurisdiction of such courts for the purposes of litigating any such action, except as provided in Section 16.3(b) regarding arbitration. Notwithstanding this, either party shall still be allowed to apply for injunctive or other equitable relief to protect or enforce that party’s intellectual property rights in any court of competent jurisdiction where the other party resides or has its principal place of business.
(d) Improperly Filed Claims. All claims you bring against Talentists must be resolved in accordance with this Section 16.3. All claims filed or brought contrary to this Section 16.3 shall be considered improperly filed. Should either party file a claim contrary to this Section 16.3, the other party may recover attorneys' fees and costs up to one thousand U.S. Dollars ($1,000.00 USD), provided that such party seeking such fees has notified the other in writing of the improperly filed claim, and the other has failed to promptly withdraw the claim.
16.4 Severability. If any provision of the Terms or any Guidelines is held to be unlawful, void, or for any reason unenforceable, then that provision will be limited or eliminated from the Terms to the minimum extent necessary and will not affect the validity and enforceability of any remaining provisions.
16.5 Assignment. The Terms and related Guidelines, and any rights and licenses granted hereunder, may not be transferred or assigned by You, but may be assigned by Talentists without restriction. Any assignment attempted to be made in violation of the Terms shall be null and void.
:16.6 Survival. Upon termination of the Terms, any provision which, by its nature or express terms should survive, will survive such termination or expiration, including, but not limited to, Sections 5 through 16.
16.7 Headings. The heading references herein are for convenience purposes only, do not constitute a part of the Terms, and will not be deemed to limit or affect any of the provisions hereof.
16.9 Claims. YOU AND TALENTISTS AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE WEBSITE MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
16.10 Disclosures. The Website is hosted in the United States, and the services provided hereunder are offered by Talentists: email@example.com.