Candidate’s Terms and Conditions
These Candidate Terms and Conditions (“T&Cs”) apply to all uses of the Crosschq Solution (as defined below) by You. By setting up a Candidate Account and clicking the “I AGREE” button, You agree to all the terms and conditions contained in these T&Cs.
Please read these T&Cs carefully as they govern Your access to, and use of, the Crosschq Solution; provided however, that we may modify or change these T&Cs and/or the Crosschq Solution from time to time at Our sole discretion. Your continued use of the Crosschq Solution will be deemed acceptance by You of any such modification of, or change to, the T&Cs and/or Crosschq Solution that We make. If you do not agree to any of the terms or conditions contained in these T&Cs, please do not click “I AGREE” below and do not use the Crosschq Service.
Article I – Definitions
In addition to all other terms defined elsewhere in these T&Cs, the following terms shall have the following meanings:
“Affiliate” means with respect to any Person, any Person which, directly or indirectly, controls, is controlled by or is under common control with such Person, including, without limitation any parent, subsidiary, equityholder, officer, director, member, employee, representative or agent of such Person. For the purposes of this definition, “control” shall mean the ability, directly or indirectly, to direct the activities of the relevant Person.
“Applicable Law” means all local, state, national and international laws, statutes, rules, regulations or common law applicable to You and Us in connection with these T&Cs and Your use of the Crosschq Solution.
“Business Day” means any day other than a Saturday, a Sunday or a legal holiday on which national banks are not open for general business in the State of California.
“Candidate” means an individual who is applying for an employment or consulting position with an Organization and to whom an Organization has sent a Request to establish a Candidate Account.
“Candidate Account” means an account established by You which comprises part of the Crosschq Solution.
“Candidate App” means the computer website that a Candidate uses on a Candidate Device in order to: (a) establish and use a Candidate Account; and (b) use the Crosschq Solution.
“Candidate Data” means: (a) summaries of Candidate Reviews; (b) the substance of Candidate Reviews; and (c) Our Analyses.
“Candidate Device” means any computer or mobile device on which a Candidate uses Our Candidate App.
“Change of Control” means, with respect to a Party, the occurrence of any of the following events: (a) any consolidation or merger of such Party with or into any other entity in which the holders of such Party’s outstanding voting equity immediately before such consolidation or merger do not, immediately after such consolidation or merger, retain equity in the surviving entity representing a majority of the voting power of the surviving entity or equity representing a majority of the voting power of an entity that wholly owns, directly or indirectly, the surviving entity; (b) the sale, transfer or assignment of securities of such Party representing a majority of the voting power of the Party’s outstanding voting securities to an acquiring Person or group of Persons; or (c) the sale of all or substantially all of such Party’s assets.
“Content” means all information, data, documents, prompts, music, sound, photographs, graphics, video, messages, goods, products, services or other materials, including, but not limited to, Requests.
“Crosschq Solution” means the Crosschq SaaS service by which: (a) Organizations establish Organization Accounts; (b) Organizations can send Requests to Candidates; (c) Candidates establish Candidate Accounts and can invite References to submit Reviews on behalf of such Candidates; (d) References can submit Reviews of Candidates; and (e) We provide Organizations Candidate Data. The Crosschq Solution is provided by Us to You using the Candidate App, Our Hardware, Our Software and Your Candidate Account.
“Intellectual Property Rights” means all right, title and interest to a Person’s: (a) patents, patent applications, patent disclosures and all related continuations, continuations-in-part, divisionals, reissues, reexaminations, utility models, certificates of invention and design patents, registrations and applications for registrations; (b) trademarks, service marks, trade dress (including the look and feel of Our App), internet domain names, logos, trade names and corporate names and registrations and applications for registration thereof; (c) copyrights and registrations and applications for registration thereof; (d) computer software, data and documentation; (e) inventions, trade secrets and confidential business information, whether patentable or nonpatentable and whether or not reduced to practice, know-how, processes and techniques, formulae, algorithms, research and development information, copyrightable works, financial, marketing and business data, pricing and cost information, business and marketing plans and strategies and customer and supplier lists and information; (f) other proprietary rights relating to any of the foregoing (including remedies against infringements thereof and rights of protection of interest therein under the laws of all jurisdictions); and (g) copies and tangible embodiments thereof.
“Our Analyses” means analyses of Your Candidates that We develop and provide to You through Your Candidate Account using the Candidate App.
“Our Hardware” means any computer hardware owned or leased by Us and that is utilized in connection with the Crosschq Solution.
“Our Software” means any computer software owned or licensed by Us and that is utilized in connection with the Crosschq Solution.
“Organization” means a customer of Ours who has established an Organization Account so that: (a) it can send Requests to one or more Candidates to establish Candidate Accounts and invite References to provide Reviews; and (b) We can provide Candidate Data to such Organization.
“Organization Account” means an account established by an Organization as part of the Crosschq Solution from which: (a) such Organization can send Requests to Candidates; and (b) receive Candidate Data from Us.
“Organization App” means the computer website that an Organization uses in order to access the Crosschq Solution, including, but not limited to, the Organization Account.
“Parties” means You and Us.
“Person” means any individual or entity.
“Reference” means an individual who has been sent an invitation by a Candidate to provide a Review of such Candidate.
“Representatives” means a Person’s Affiliates, directors, officers, managers, employees, agents and other representatives.
“Request” means an e-mail request sent by an Organization Team Member to a Candidate requesting that such Candidate: (a) establish a Candidate Account in the Candidate App; (b) perform a self-evaluation; and (c) invite References of such Candidate to provide Reviews of such Candidate.
“Review” means an evaluation of a Candidate submitted by a Reference to Us.
“Taxes and Charges” means all sales, use, value-added and other taxes (other than taxes based on Our income), and all applicable duties, tariffs, assessments, export and import fees, or other similar charges, fees, duties, and charges and any related penalties and interest, arising from Your use of, and access to, the Crosschq Solution.
“Us”, “We”, “Our” or the “Company” means Crosschq, Inc.
“You” or “Your” means the Candidate that has established a Candidate Account.
“Your Device” means any computer or mobile device onto which You use Our Candidate App.
Article II – Your Establishment of an Organization Account; Your Use of the Crosschq Solution
2.1 General. To use the Crosschq Solution, You must establish a Candidate Account by setting up a user-name and password on a web landing page that we will provide to you by e-mail. You will then be permitted to log onto the Candidate App. Once You have logged onto the Candidate App you will have access to Your Candidate Account. You will then be responsible for reaching out to Your References. You agree that neither We nor our Representatives will play any role in, and shall have no liability with respect to: (i) decisions concerning the requirements of any employment or consulting position that You are applying for using the Crosschq Solution; (ii) the selection of Candidates for such position; or (iii) any information Your References post on Your Candidate Account.
2.2 Acknowledgements. In connection with Your use of the Crosschq Solution, You acknowledge and agree that:
(a) We shall have no liability with respect to the operation (or non-operation) of Your Devices;
(b) We shall have no liability in connection with any Content that You post to, transmit from or otherwise make available to third Persons from Your Candidate Account;
(c) You may be notified that You are no longer being considered for a position with an Organization and if such action is taken: (i) You may nevertheless have one or more of Your References complete their Reviews of that have been started; or (ii) terminate all Reviews of Your References that have been started, but not completed;
(d) You may inform an Organization (either through active communication or non-responsiveness (i.e. “ghosting”)) that You no longer desire to be considered for a position with the Organization and if You takes such action: (i) You may nevertheless have one or more of Your References complete their Reviews of that have been started; or (ii) terminate all Reviews of Your References that have been started, but not completed, or that have not been started; and
(e) You may report to Us that You believe a mistake is present in certain of the Candidate Data. If You do so, then: (i) We will take steps to investigate such report and, if We deem it appropriate (in Our sole discretion), correct any such mistake in such Candidate Data; and (ii) You will have no recourse as to Us with regard to such correction and You hereby accept the Candidate Data as corrected.
2.3 Restrictions. You agree that you will not do any of the following:
(a) Interfere with or disrupt the operation of the Crosschq Solution (or any component thereof, including, but not limited to, the computer networks connected to or comprising the Crosschq Solution;
(b) Reproduce, duplicate, copy, sell, resell, license, distribute or otherwise transfer any portion of the Crosschq Solution (or any component thereof) or allow the use of the Crosschq Solution (or any component thereof) by any third Person except for You;
(c) Attempt to disable or circumvent any security or access control mechanism used by, or associated with, the Crosschq Solution;
(d) Attempt to gain unauthorized access to any portion of the Crosschq Solution, or use the Crosschq Solution (or any component thereof) for any unauthorized or unintended purpose;
(e) Harvest or otherwise collect information about Organizations who use the Crosschq Solution or other Candidates;
(f) Modify or enhance any component of the Crosschq Solution without our express prior written consent;
(g) Use any component of the Crosschq Solution in a manner that introduces any virus, corrupted data or other harmful, disruptive or destructive code or files to, or otherwise interferes with, disrupts, overloads or burdens any portion of the Crosschq Solution (including, but not limited to, Our Hardware and/or networks or those of Our service providers).
(h) Post, transmit or otherwise make available on the Crosschq Solution (or any component thereof) any Content that is unlawful, harmful, threatening, abusive, harassing, tortuous, defamatory, vulgar, obscene, libelous, invasive of another’s privacy, hateful, adult-oriented, or racially, ethnically or otherwise objectionable;
(i) Post, transmit or otherwise make available any other Candidate’s employment history, education or other evaluative material concerning other Candidates on the Crosschq Solution (or any component thereof);
(j) Represent to any Person that We are responsible for making any hiring or other employment or consulting decisions on behalf of an Organization;
(k) Impersonate any Person, including, but not limited to, a one of Our Representatives;
(l) Post, transmit or otherwise make available on the Crosschq Solution (or any component thereof) any Content that You do not have a right to post, transmit or otherwise make available (including, but not limited to, proprietary and confidential information of third Persons);
(m) Post, transmit or otherwise make available on the Crosschq Solution (or any component thereof) any Content that infringes any Intellectual Property Rights of any Person;
(n) Intentionally or unintentionally violate any Applicable Law relating to Your use of the Crosschq Solution (or any component thereof);
(o) Promote or provide instructional information on the Crosschq Solution (or any component thereof) about illegal activities; or
(p) Offer for sale, sell, offer to license or license any item, good or service on the Crosschq Solution.
Article III – Term and Termination
3.1 Term. Your access to, and use of, the Crosschq Solution will: (a) begin on the date that You establish Your Candidate Account (pursuant to Section 2.1 above) (the “Beginning Date”); and (b) expire upon the [one (1) year] anniversary of the Beginning Date, unless earlier terminated pursuant to the other provisions of this Article III (collectively, the “Term”), or unless your Term is extended by automatically at the discretion of Crosschq. Please note that if Your access to Your Account terminates or expires (other than a termination pursuant to Sections 3.2 or 3.3 below), you can, under certain circumstances, regain access to, and use of, Your Account and the App by contacting one of Our customer service Representatives for another [one (1) year] period, subject to the provisions of this Article III.
3.2 Termination for Cause. If You materially breach any provision of these T&Cs, then We may give written notice to You of such breach (which written notice must describe, in reasonable detail, the alleged breach). If such breach(es) cannot be cured, then, at Our sole option, the Term and Your access to, and use of, the Crosschq Solution shall terminate immediately upon the delivery of such notice. If such breach(es) can be cured, but remain(s) uncured more than thirty (30) calendar days after receipt of such written notice by You, then, at Our sole option, We may terminate the Term and Your access to, and use of, the Crosschq Solution at any time after the conclusion of such thirty (30) calendar day cure period by written notice to You. If We terminate the Term and Your access to, and use of, the Crosschq Solution pursuant to this Section 3.2: (a) Your access to, and use of, the Crosschq Solution will terminate immediately upon such termination.
3.3 Effect of Termination. Upon expiration or termination of the Term and Your access to, and use of, the Crosschq Solution, all rights and obligations of You and Us shall immediately terminate.
Article IV – Our Obligations; Upgrades/Maintenance
4.1. Our Obligations.
(b)If You have any questions, comments and/or complaints about the Crosschq Solution during the Term, please contact Us at http://crosschq.wpengine.com or info@Crosschq.com.
(c) We agree that during the Term, we will maintain Your Candidate Account with an independent “cloud” storage provider (an “Account Storage Provider”). Your Candidate Account will contain the: (i) all Requests You send to References; and (ii) all Candidate Data We post to Your Candidate Account. During the Term, You will be able to access the Candidate Data , view such data and download such data to Your Devices. Please note that although We will endeavor to select an Account Storage Provider that maintains commercially reasonable security protections: (x) We will not be providing the security for Your Candidate Account (that will be done by the Account Storage Provider); (y) We cannot guaranty or ensure that the security measures employed by the Account Storage Provider will not be breached or that the data in Your Candidate Account will not be accessed or used by third Persons who are not authorized to access Your Candidate Account; and (z) We will not be responsible for any breach of the security measures employed by the Account Storage Provider and/or the unauthorized access or use of the information contained in Your Candidate Account.
4.2 Upgrades and Maintenance. You acknowledge that: (a) We may, but are not obligated to, modify, update and/or make upgrades to the Crosschq Solution (or any component thereof); (b) when and if We modify, update and/or make upgrades and/or perform maintenance, this may mean that the Crosschq Solution (including, but not limited to, the Candidate App and/or Your Candidate Account) may be unavailable for a period of time; and (c) in no event will We be liable to You, any of Your Affiliates or any third Person for any unavailability of any component of the Crosschq Solution caused by modifications of, updates and/or upgrades to and/or maintenance performed on any component of the Crosschq Solution (including, but not limited to, the Candidate App and/or Your Candidate Account).
Article V – The Candidate App
5.1. Use of the Candidate App. If You use the Crosschq Solution, We agree that during the Term You may use the Candidate App on Your Devices free of additional charge.
5.2. Downloading of The Candidate App and Setting Up Your Candidate Account. If You wish to use the Crosschq Solution, You must create Your Candidate Account using the Candidate App on one or more of Your Devices. By completing this process and creating Your Candidate Account, You expressly provide Us with Your consent to send You messages and other Content (including Candidate Data) in connection with the Crosschq Solution via the Candidate App, email, text message or any other means. You agree that You will provide Us with truthful and accurate information when setting up Your Candidate Account, will keep such information up-to-date and select login information (including a password). You shall have all responsibility for any inaccuracies in any information You provide to Us or in respect of Your failure to keep such information up-to-date. You agree that You: (a) will not share Your Candidate Account or login information with any third Person, nor let any third Person access Your Candidate Account, except Your Representatives who are authorized by You to do so; (b) are responsible for maintaining the confidentiality of the login information for Your Organization Account; (c) will notify Us immediately at firstname.lastname@example.org if You know or suspect that Your Candidate Account or Candidate Account login information has been compromised or that Your Candidate Account has been used without Your authorization; and (d) are fully and solely responsible for the security of Your Devices and all activity on Your Candidate Account (except for such activity initiated by Us).
Article VI – Additional Representations and Warranties
6.1 Power and Authority. You represent and warrant to Us that: (a) the agreements set forth in these T&C (including the “clicking” of the “I AGREE” button at the end of these T&Cs) have been duly authorized by all necessary corporate, limited liability company or other entity (as applicable) action required on the part of You; and (b) these T&Cs constitute Your valid and binding obligations enforceable in accordance with their terms.
Article VII – Ownership of Candidate Data; Licenses;
7.1 Ownership of Candidate Data. Subject to the license that We are providing to You in Section 7.3 and the licenses that You are providing to Us in Section 7.4, You acknowledge and agree that: (a) all of Your Candidate Data (including, but not limited to, the Candidate Data stored in Your Candidate Account, but excluding Our Analyses) is owned by You; and (b) We own Our Analyses.
7.2 Sublicense of Candidate Data. Notwithstanding the provisions of Section 7.1, We have received (or will receive) a worldwide, perpetual, non-terminable, exclusive, fully-paid-up, assignable (subject to some restrictions) and sublicensable license from You, the Candidate, to store, use and share Your Candidate Data (the “In-Bound Crosschq License”) with Organizations that request Your Candidate Data and that You expressly authorize to share this data.
7.3 Use License for the Candidate App and Your Candidate Account. During the Term only and subject to the other provisions of these T&Cs, We hereby grant to You a limited, revocable, non-exclusive, non-assignable, non-sublicenable, worldwide license to use the Candidate App and Your Candidate Account (as embedded in the Crosschq Solution) for Your business purposes only.
7.4 Licenses Given by You to Us. You agree that:
(b) You also hereby grant to Us a limited, non-revocable, non-exclusive, perpetual, assignable, fully-paid-up, royalty free, worldwide license during the Term only to transmit the contents of Your Candidate Account to Your Devices via the Candidate App.
Article VIII – Intellectual Property
8.1 Our Ownership Generally. You understand and agree that the Crosschq Solution and all of its components, including, but not limited to, the Candidate App, Your Candidate Account (except for the Candidate Data contained therein which is owned by the Candidate) and all other information, techniques, methodologies and materials provided by Us to You in connection with performing Our obligations under these T&Cs, including, but not limited to, all of Our Intellectual Property Rights and all modifications to, improvements of or derivatives thereof and all rights of ownership therein (collectively, “Our Property Rights”) are Our sole and exclusive property and shall remain vested in Us. You hereby assign any right, title and interest You may have to any of Our Property Rights (either on the date you click “I AGREE” on these T&Cs (the “Effective Date”) or after the Effective Date) to Us. Subject to the licenses contained in Sections 8.2 and 8.3 above, You do not claim and agree to not: (a) assert or challenge, on Your behalf or on behalf of any third Person, or assist any third Person in asserting or challenging, Our ownership, now or in the future, with regard to any right, title or interest in or to any of Our Property Rights and/or the validity of Our Property Rights; or (b) sell, assign, attempt to assign or sublicense to any third Person any of Our Property Rights. Any Documentation that is copyrightable material and that may arise out of the provision of the Crosschq Solution to You shall be Our sole and exclusive property and to the extent that such copyrightable material is not deemed to be authored Us it shall be deemed a work for hire authored by You for Us under Applicable Law and if it shall not be deemed to be a work for hire then by operation of these T&Cs all right, title and interest to such copyrightable material is hereby assigned by You to Us.
8.2 Further Assurances. You agree that upon Our written request and without further consideration, You shall execute and deliver such further instruments of transfer and assignment and take such other action as We may reasonably require to more effectively transfer, assign, and/or vest in, Us Our Property Rights.
8.3 Trademarks. You agree that You shall not alter or remove from any of Our Software (including, but not limited to, the Candidate App) any proprietary, copyright, trademark or trade secret legend.
8.4 Reverse Engineering/Distribution. You agree that You shall not, and shall not allow Your Representatives to, decompile, reverse assemble or reverse engineer, or prepare any derivative works or translations of, any component of the Crosschq Solution, including, but not limited to, the Candidate App, Your Candidate Account, Our Software, Our Property Rights or any of the underlying code thereof or any part thereof.
8.5 Know-How. Notwithstanding anything in these T&Cs to the contrary, You acknowledge and agree that: (a) We are in the business of providing product and services based, in part, on the knowledge, experience and know-how We gain in providing products and services to customers; and (b) nothing shall be deemed to prohibit Us and/or Our Representatives from using any general knowledge, ideas, concepts, processes, experience and know-how developed or created in the course of providing the Crosschq Solution to You and retained by Our Representatives (collectively, “Know-How”) in connection with: (i) the provision of products and services to other Persons; and/or (ii) the development of Our future Intellectual Property Rights, products and services (whether in connection with internal purposes and/or for future third Person engagements), and You shall have no ownership rights in such Know-How or in any Intellectual Property Rights created or derived from such Know-How.
8.6 Feedback. You agree that: (a) We shall be the exclusive owner of any feedback that You may provide to Us in respect of the Crosschq Solution and/or Our business (the “Feedback“); and (b) Your provision of Feedback to Us does not give You any Intellectual Property Right or any other right, title, or interest in or to any software, hardware, inventions, or other assets created by Us, even if such Feedback leads Us to create software, hardware, an invention, or other asset.
Article IX – Indemnification; Limitation of Liability
9.1 Indemnification by Us. We agree to defend, indemnify and hold You harmless from any and all claims, losses, damages, liabilities or expenses (including, without limitation, reasonable attorneys’ fees and expenses) (collectively, “Losses”) incurred by You and arising out of or in connection with a law suit or other legal proceeding brought or instituted by a third Person (each a “Third Person Claim”) alleging that the Crosschq Solution or any of its components constitutes an unauthorized use or infringement of any third Person’s Intellectual Property Right. If the use of the Crosschq Solution is enjoined during the Term in connection with such Third Person Claim, We may, at Our sole expense and option: (a) procure for You the right to continue using the Crosschq Solution or the infringing component during the Term; (b) replace the Crosschq Solution or the infringing component with a non-infringing service of equivalent function and performance; or (c) modify the Crosschq Solution or the infringing component to be non-infringing, without detracting from function or performance. If We elect not to employ any of the options contained in the previous sentence, You and We agree that the Term shall immediately terminate upon Our giving written notice to You of such event and You agree to immediately cease using the Crosschq Solution upon receipt of such written notice. In such event, We shall NOT be obligated to refund You any Fees or Taxes or Charges that we collected from You.
9.2 Indemnification by You. You shall defend, indemnify and hold harmless Us and Our present and former Affiliates, equity owners, Representatives, insurers, successors and assigns (collectively, “Our Indemnified Persons”) from and against any Losses (collectively, “Our Indemnified Claims“) resulting from or arising out of: (a) the negligent or intentional misuse of the Crosschq Solution or any of its components by You; (b) Your noncompliance or alleged noncompliance with Applicable Law; (c) Your breach of any provision of these T&Cs; and/or (d) violation of any provision of any agreement or contract, whether written or oral, between You and any third Person.
9.3 Specific Limitations on Indemnification. You shall not be liable for any Losses of Our Indemnified Persons under this Article IX to the extent that such Losses are found in a final and binding arbitration award or a final non-appealable judgment by a court of competent jurisdiction to have resulted from the gross negligence or willful misconduct of any of Our Indemnified Persons. We shall not be liable for any of Your Losses under this Article IX to the extent that such Losses are found in a final and binding arbitration award or a final non-appealable judgment by a court of competent jurisdiction to have resulted from: (a) the gross negligence or willful misconduct of You or any of Your Representatives; (b) Your noncompliance or alleged noncompliance with Applicable Law; (c) the use by You of the Crosschq Solution or any component thereof, in breach of these T&Cs; and/or (d) the combination of the Crosschq Solution or any component thereof with, or the installation of the Crosschq Solution or any component thereof with, operating systems, software, hardware or other equipment that do not constitute Our Software (other than Your Devices).
9.4 Limitation of Liability.
(a) YOU ACKNOWLEDGE THAT IT IS TECHNICALLY IMPRACTICABLE FOR US TO PROVIDE THE CROSSCHQ SOLUTION FREE OF FAULTS, AND WE DO NOT UNDERTAKE TO DO SO. ACCORDINGLY, YOU ACKNOWLEDGE AND AGREE THAT: (I) WE ARE PROVIDING THE CROSSCHQ SOLUTION TO YOU ON AN “AS IS” AND “AS AVAILABLE” BASIS; (II) EXCEPT AS SET FORTH IN SECTION 10.1, WE ARE PROVIDING NO WARRANTIES, EXPRESS OR IMPLIED, TO YOU WHATSOEVER CONCERNING THE CROSSCHQ SOLUTION OR ANY OF ITS COMPONENTS UNDER THE PROVISIONS OF THESE T&Cs OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE; (III) IN NO EVENT SHALL WE OR OUR PRESENT AND FORMER PARENTS, SUBSIDIARIES, AFFILIATES, EQUITYHOLDERS, REPRESENTATIVES, INSURERS, SUPPLIERS, DISTRIBUTORS OR LICENSORS BE LIABLE FOR ANY PUNITIVE, SPECIAL, INCIDENTAL, CONSEQUENTIAL, INDIRECT OR EXEMPLARY DAMAGES (INCLUDING, BUT NOT LIMITED TO, LOSS OF PROPERTY OR EQUIPMENT, LOSS OF PROFITS, LOSS OF REVENUES, LOSS OF DATA, BUSINESS INTERRUPTION, DAMAGE TO BUSINESS REPUTATION, OR LOSS OF USE) ARISING: (W) OUT OF THE PAST, PRESENT OR FUTURE RELATIONSHIP BETWEEN YOU AND US UNDER THESE T&Cs; (X) OUT OF ANY CLAIMS YOU HAD, HAVE, OR MAY HAVE, KNOWN OR UNKNOWN, AGAINST US WHETHER GROUNDED IN TORT OR CONTRACT; (Y) OUT OF THE CREATION, LICENSE, USE, SALE OR SUPPLYING OF THE CROSSCHQ SOLUTION TO YOU; OR (Z) OTHERWISE; EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND (IV) WE SHALL HAVE NO LIABILITY FOR THE BREACH OF OUR SECURITY MEASURES, THE SECURITY OF THE CROSSCHQ SOLUTION OR THE SECURITY OF ANY ACCOUNT STORAGE PROVIDER.
(b) EXCEPT AS PROVIDED IN SECTION 10.1, TO THE MAXIMUM EXTENT PROVIDED BY APPLICABLE LAW, THE MAXIMUM LIABILITY OF US AND OUR PRESENT AND FORMER PARENTS, SUBSIDIARIES, AFFILIATES, MANAGERS, DIRECTORS, OFFICERS, EQUITYHOLDERS, EMPLOYEES, REPRESENTATIVES, AGENTS, INSURERS, SUPPLIERS, DISTRIBUTORS AND LICENSORS ARISING OUT OF THESE T&Cs, INCLUDING, BUT NOT LIMITED TO, THE CREATION, LICENSE, SALE, SUPPLY OR USE OF THE CROSSCHQ SOLUTION, WHETHER BASED UPON CONTRACT, TORT, TRADE PRACTICES OR OTHERWISE, SHALL NOT EXCEED: (i) THE ACTUAL PAYMENTS RECEIVED BY US FROM YOU DURING THE 180 CALENDAR DAYS PRECEDING THE DATE ON WHICH THE OCCURRENCE GIVING RISE TO THE CLAIM IN QUESTION OCCURRED; LESS (ii) OUR ACTUAL COSTS TO PROVIDE THE CROSSCHQ SOLUTION TO YOU UNDER THESE T&CS DURING THE SAME 180 CALENDAR DAY PERIOD.
(c) You acknowledge and agree that: (i) the provision of the Crosschq Solution is subject to many factors both within and outside Our control; (ii) services such as the Crosschq Solution are subject to outages and/or interruptions (on a long term or short term basis), including, but not limited to, internet, power, utility and mobile network outages and interruptions; and (iii) We only offer the use of the Crosschq Solution when available. In light of the above, You acknowledge and agree that We shall not be liable to You, any of Your Affiliates or any third Person relating to any of the foregoing in any manner whatsoever.(d) The limitations on liability and exclusion of certain damages contained in this Article IX shall apply regardless of the availability, success or effectiveness of other remedies. We and You understand and agree that the limitations of liability contained in these T&Cs. (e) You hereby covenant and agree that You shall not bring any suit, action, proceeding or alternative dispute resolution claim against Us or Our present and former parents, subsidiaries, equity owners, Representatives, insurers or Affiliates, for any reason whatsoever more than one (1) year after the related cause of action has accrued.
Article X – Miscellaneous
10.1 Publicity. You agree to not use Our name, logo or other trademarks, directly or indirectly, in any form of publicity, advertising or written reference without Our prior written consent.
10.2 Force Majeure. You agree that We will not be liable for any failures or delays resulting from circumstances or causes beyond Our reasonable control, including, without limitation, fire or other casualty, act of God, war or other violence, or any law, order or requirement of any governmental agency or authority.
10.3 Entire Agreement/Amendment. These T&Cs constitute the entire agreement between Us and You and supersedes all prior or contemporaneous, oral or written, representations, understandings or agreements relating to the subject matter hereof. These T&Cs, or any portion thereof, may be amended, modified or changed by Us from time to time without Your consent and Your continued use of the Crosschq Solution will be deemed acceptance by You of any such amendment to, modification of, or change to, the T&Cs that We make.
10.4 Governing Law;. These T&Cs shall be governed by and construed in accordance with the internal laws of the State of California (without reference to the conflicts of law provisions thereof that would require the application of the law of any other jurisdiction).
10.5. Arbitration; Representative Action Waiver.
(a) You agree that to the fullest extent permitted by Applicable Law, You will resolve any and all disputes You have with Us that arise out of, or in any way relate to, these T&Cs and/or the commercial relationship between You and Us through bi-lateral, binding arbitration as Your the sole and exclusive remedy. The disputes subject to this Section 10.5 include, but are not limited to, disputes relating to: (i) indemnification, background screening and/or criminal history or credit reporting conducted by Us regarding any Candidate, breach of contract or tort claims of any kind, and claims for violation of any Applicable Law (including, without limitation, the federal Fair Credit Reporting Act and any state laws addressing negligence, defamation, invasion of privacy, or consumer or criminal history reporting); and (ii) claims against any of Our Representatives or Affiliates, insurers, successors or assigns that arise out of, or relate to, the commercial relationship between the Parties. You waive Your constitutional right to have any such dispute decided in a court of law and before a jury, and instead, agree to binding arbitration pursuant to the procedures referenced in this Section 10.5. These T&Cs are governed by the Federal Arbitration Act, 9 U.S.C. § 1, et seq., and evidences a transaction in commerce. The Parties acknowledge that Your agreement to arbitrate constitutes good and valuable consideration for Our covenants in these T&Cs.
(b) Arbitration under this Section 10.5 shall be conducted pursuant to the American Arbitration Association’s Consumer Arbitration Rules before a single arbitrator licensed to practice law in the state in which We have Our principal place of business and who is familiar with credit reporting law (if such expertise is applicable to the dispute). The Parties shall each pay 50% of all costs uniquely attributable to arbitration, including the costs of the arbitrator. Each Party shall pay its own costs and attorneys’ fees, if any, unless the arbitrator rules otherwise based on a statute that affords the prevailing party attorneys’ fees and costs, in which case the arbitrator shall apply the same standards a court would apply to such an award. No Party shall be required to pay any fee or cost that such Party would not be required to pay in a state or federal court action. The Parties agree that the decision of the arbitrator shall be final and binding and not subject to appeal, reconsideration or further review, except as specifically provided by 9 U.S.C. §§ 10 or 11. An award in one arbitration proceeding shall not be precedential or binding in any way in a subsequent proceeding, unless the subsequent proceeding concerns identical Parties and issues to the prior proceeding. The Parties are entitled to representation by an attorney or other representative of their choosing in any arbitration. The arbitrator shall issue a written award stating the essential findings and conclusions on which such award is based. The Parties agree to abide by and perform any valid award rendered by the arbitrator, and judgment on the award may be entered in any court having jurisdiction thereof.
(c) To the maximum extent permitted by law, You agree not to bring, and waive, any right to bring a claim on behalf of Persons other than Yourself, or to otherwise participate with other Persons in, any class, collective, or representative action. The arbitrator may not certify or otherwise preside over any form of a class, collective, or representative proceeding, nor may the arbitrator consolidate the claims of multiple Persons into one proceeding. You also agree not to assert claims against Us or Our Representatives, Affiliates, insurers, successors or assigns in the same proceeding as any other Person, whether by joinder or otherwise, and that any proceeding brought on behalf of multiple claimants or plaintiffs shall be severed into individual proceedings. You further agree to affirmatively “opt out” and to take all other reasonable measures to exclude Yourself from any representative proceeding in which You may be invited to join or otherwise permitted to participate. The Parties intend that claims brought under the California Private Attorneys General Act (“PAGA”) are fully subject to this Section 10.5. In the event that a court determines or the Parties stipulate that the right to bring a PAGA claim on a representative basis cannot legally be waived, PAGA claims may be asserted in a court of competent jurisdiction to hear them and shall be severed from any other claims that You assert, which shall remain subject to arbitration pursuant to this Section 10.5.
(d) To the extent that You bring both claims that are arbitrable under these T&Cs and claims deemed by a court of law or by stipulation not to be arbitrable in accordance with this Section 10.5, the claims deemed arbitrable shall be adjudicated first in priority, with any claims that must be litigated in a court of law subject to a stay, administrative closure, or dismissal without prejudice, pending the resolution of the arbitrable claims. Any disputes regarding the validity of this Section 10.5, including its application to PAGA claims, shall be resolved only by a court of law and not by the arbitrator.
10.6 Waiver. No waiver of any obligation under these T&Cs shall be valid unless in writing and signed by a duly authorized Representative of You and Us. No delay or omission by either Us or You in exercising any right or power shall impair such right or power or be construed to be a waiver. A waiver by either Us or You of any of the obligations to be performed by the other Party or any breach thereof shall not be construed to be a waiver of any succeeding breach or of any other obligation.
10.7 Successors and Assigns. These T&Cs shall be binding upon and inure solely to the benefit of Us and You and both of our respective permitted successors and assigns, and nothing in these T&Cs shall confer upon any other Person any legal or equitable right, benefit or remedy of any nature whatsoever as a third-party beneficiary under or by reason of these T&Cs, except for those third Persons mentioned in Sections 5.4 and 9.2.
10.8 Assignment. You may not assign or transfer these T&Cs or any of Your rights or obligations under these T&Cs to any third Person without Our prior written consent; provided however, that You may assign or transfer these T&Cs or any of Your rights or obligations under these T&Cs to any third Person without Our prior written consent in the context of a Change of Control of You. Any attempt by You to assign or transfer these T&Cs or such rights or obligations in violation of this Section 10.8 shall be void and of no force and effect. We may freely assign or transfer these T&Cs or any of Our rights or obligations under these T&Cs to any third Person without Your prior written consent.
10.9 Notices. Whenever under these T&Cs We or You are required or permitted to give notice to the other, such notice shall be given in writing and shall be deemed to be given: (a) one Business Day after deposited with a nationally recognized overnight delivery service so long is such notice is prepaid for overnight delivery to the other Party; (b) one Business Day after sending if sent by e-mail; or (c) the day of delivery if personally delivered with written evidence of such delivery, and, in any case, addressed to: (i) in the case of notice to Us, to Crosschq, Inc., email@example.com, with a copy to Seyfarth Shaw LLP, 233 South Wacker Drive, Suite 8000, Chicago, IL 60606-6448, Attn: Pamela Devata, Esquire; firstname.lastname@example.org; and (ii) in the case of notice to You, to the Your contact information as set forth in Your Candidate Account. Either You or We may change our respective addresses for notification purposes from time to time by giving the other Party prior written notice in accordance with this Section 11.9 of the new address and the date upon which it will become effective.
10.10 Conflicting Terms. The Parties understand and agree that: (a) the provisions of these T&Cs will supersede any inconsistent provisions contained in any invoice, purchase order, quotation, confirmation, acceptance, acknowledgement or similar form; (b) all terms or conditions proposed in any invoice, purchase order, quotation, confirmation, acceptance, acknowledgment or similar form which add to, vary from, or conflict with the provisions in these T&Cs will be void; and (c) any pre-printed terms in an invoice, purchase order, quotation, confirmation, acceptance, acknowledgement or similar form will also be void.
10.11 Severability. If any provision of these T&Cs is held to be illegal, invalid or unenforceable under present or future Applicable Law while these T&Cs or any provision of these T&Cs remains in effect: (a) the legality, validity and enforceability of the remaining provisions of these T&Cs will not be affected thereby so long as the economic or legal substance of the transactions contemplated by these T&Cs are not affected in any manner materially adverse to either Party; and (b) You and We agree that the body making the determination of illegality, invalidity or unenforceability shall have the power to reduce the scope, duration and/or area of the provision, to delete specific words or phrases and to replace any illegal, invalid or unenforceable provision with a provision that is legal, valid and enforceable and that comes closest to expressing the intention of the illegal, invalid or unenforceable provision, and these T&Cs shall be enforceable as so modified