Effective Date: August 1, 2015
These Terms of Service ("Terms") govern your use of the websites (collectively and individually, the "Site") and related products and services (including, without limitation HotSchedules, Jobsabi, Bodhi, Macromatix, Schoox, GoHire, Manager's Red Book, HotSchedules Reveal, HotSchedules Count, the Logbook, and Digital Red Book), mobile applications, developer platforms, premium services, plug-ins or any content or information provided as part of the Site (the "Services"), which are owned or operated by Red Book Connect, LLC ("HotSchedules", "we", "our" or "us"
Our privacy statement, available at https://www.fourth.com/legal/privacy-policy, is incorporated by reference into these Terms. Please read these Terms and the privacy statement carefully before you access the Site or Services, as these Terms form a binding legal agreement between you and HotSchedules.
If you are using the Site or Services on behalf of a company or other legal entity, you hereby represent and warrant that you have the authority to enter into these Terms on behalf of the company or other legal entity. To the extent these Terms conflict with any existing agreement between the company or other legal entity you represent and HotSchedules, these Terms shall control and supersede such other terms and conditions with regard to the subject matter of these Terms. Additionally, if you are using the Site or Services on behalf of a company or other legal entity, you are nevertheless individually bound by these Terms even if your company has a separate agreement with us. As used in these Terms, "you" and "your" refer to you individually and the company on behalf of which you are entering into these Terms.
By accessing the Site or registering for or using the Services, you: (1) acknowledge that you have read and understand these Terms; (2) agree to be bound by them in their entirety, and (3) are entering into a legally binding agreement with us.
IF YOU DO NOT AGREE TO ALL OF THESE TERMS, DO NOT USE THE SITE OR SERVICES. YOUR USE OF OUR SITE AND SERVICES REQUIRES YOUR ACCEPTANCE OF THESE TERMS AS THEY MAY BE AMENDED FROM TIME TO TIME, INCLUDING THE POLICIES INCORPORATED BY REFERENCE HEREIN, WHICH INCLUDES THE HOTSCHEDULES PRIVACY STATEMENT, WHICH CAN BE FOUND AT https://www.fourth.com/legal/privacy-policy
1. Electronic Notices and Disclosures
You acknowledge and agree that HotSchedules may provide notices and other disclosures to you, required by these Terms, any other agreement, or law, electronically by posting such notices or other disclosures on HotSchedules' website or by emailing it to you at any email address provided to HotSchedules by you. Such notices or other disclosures shall be considered received by you following the posting on the website or twenty-four (24) hours following the email being sent to you, as applicable. Any such electronic notice or other disclosure shall have the same effect and meaning as if it had been provided to you as a paper copy.
2. Changes to the Terms
We may add to, change or remove any part of these Terms, at any time without prior notice to you other than listing of a later effective date than the one set forth at the top of these Terms. Such modification shall be effective immediately upon posting at the Site. As your next visit to a Site or use of the Services may be governed by different Terms, we encourage you to look for a new effective date on these Terms when you visit the Site or use the Services. It is your responsibility to check these Terms periodically for changes. If we make any material changes to these Terms, we will endeavor to provide registered users with additional notice of any changes, such as at your e-mail address of record or when you log-in to your account.
Your use or continued use of the Site or Services following the posting or notice of any changes to these Terms or any other posted policies shall constitute your acceptance of the changed Terms or policies.
3. Authorized User; Your Responsibility
You may not access or use the Site or Services if you are unable to form a binding, legal agreement with HotSchedules. You affirm that you are over the age of 18 and otherwise have the authority to enter into these Terms. You assume all responsibility for your use of, and access to, the Site or Services.
Accounts are for a single user, company or other legal entity, as applicable. Any multiple-party use, other than individual use on behalf of a company or other legal entity, is prohibited. For example, sharing a login between non-entity individual users is prohibited.
4. Personal Information; Your Content; Your Account
4.1. Accuracy. By registering for our Services, you represent and warrant that all information you submit to us is true, accurate, current and complete and that you will promptly notify us in writing if your information changes. It is your responsibility to keep your account and profile information accurate and updated. We are not responsible for any disputes or claims related to any inaccurate, incomplete, or untimely information provided by you to us.
4.2. Privacy. You may browse the Site without providing us with any personal information; however, to use our Services, you must register with us and submit certain personally identifiable information. You expressly agree that we may collect, disclose, store and otherwise use your information in accordance with the terms of the HotSchedules privacy statement, which you can find and read at https://www.fourth.com/legal/privacy-policy
4.3. Your Content. As between you and HotSchedules, you own the information, materials, photos, or other content (the "Content") you provide HotSchedules under this Agreement. Any Content that you upload or otherwise provide to HotSchedules in connection with the Site or Services may be used by HotSchedules in order to provide and promote the Site, Services or HotSchedules business. Accordingly, you grant to HotSchedules, and all of its subsidiaries, affiliates, successors, and assigns, a worldwide, perpetual, royalty-free, fully paid, sublicensable, non-exclusive, and transferable right to use, publish, reproduce, distribute, modify, prepare derivative works of, adapt, publicly display and otherwise use the Content. Such right to use such Content shall survive the termination of these Terms and termination of the Services. You authorize us to use, forward, or post your profile or related information on other sites and services. Additionally, you authorize us to use your corporate logo and corporate name, if applicable, for any promotional purposes (to opt-out, email us at OptOut@hotschedules.com). Notwithstanding the foregoing, you retain all rights to the Content, except as otherwise provided herein or as otherwise provided in any other agreement between you and HotSchedules. Any Content you submit to us is provided at your own risk of loss. You are solely responsible for all Content you share, provide, display, publish, or disseminate to others, whether such action was taken by us or you. By providing Content to us, you represent and warrant that you are entitled to submit it and that it is not confidential and not in violation of any law, contractual restrictions or other third party rights (including any intellectual property rights). HotSchedules may also remove or delete your Content from the Site or Services at any time in its sole discretion.
4.4. Interactions with Other Users. You are solely responsible for all interactions with other users. You acknowledge and agree they are responsible for making your own decisions regarding persons you employee or job positions you take, as applicable. You acknowledge and agree that we do not conduct user background checks or verify any Content or other information provided by users on the Site or Services. HotSchedules offers various forums which allow you to post comments. HotSchedules also enables sharing of information by allowing users to post content and information, including links and information regarding certain job opportunities. Pursuant to the license granted by you above, HotSchedules may grant other users of the Site or Services access and share rights to your Content in accordance with these Terms, your settings and the nature of your connection with such other users. Information you share may be seen and used by other users of the Site or Services. HotSchedules cannot guarantee that users of the Site or Services will not use the information that you share on HotSchedules, nor the manner of use. HotSchedules is not responsible for another user's or other third party's misappropriation or misuse of your Content or other information. You are solely responsible for your interactions with other users. Additionally, HotSchedules is not responsible for the truthfulness, accuracy, authenticity, or completeness of any of the Content or any other information provided by other users or any other third party. You hereby release HotSchedules from all claims, demands, or damages of every kind, known or unknown, in any way connected with (i) any relationship arising between users of the Site or Service, (ii) any dispute between you and another user, or (iii) arising out of any services which originated through the Site or Services or were otherwise provided by a user. Additionally, you agree to immediately report to us any false information provided or misconduct by any user of the Site or Services.
4.5. Your Account. Except for your Content licensed to us as set forth above, the account you create and any related profile is owned by us. With regard to your account, you agree to: (i) keep your password secure and confidential; (ii) not permit others to use your account; (iii) not use the accounts of others; (iv) not transfer your account to another party; and (v) notify us of any actual or suspected unauthorized use of your account. You are responsible for any activity occurring under your account.
4.6. Feedback. You may from time to time identify problems, solutions to identified problems, provide suggestions, comments or other feedback related to our Site, Services or otherwise relating to HotSchedules ("Feedback") to HotSchedules. You acknowledge and agree that all Feedback is and shall be given entirely voluntarily and HotSchedules shall be free to use or disclose such Feedback for any purpose. You further acknowledge and agree that your Feedback does not contain confidential or proprietary information and you are not entitled to any compensation or reimbursement of any kind from HotSchedules under any circumstances relating to such Feedback.
5. Your Eligibility
To be eligible to use the Site or Services, you represent and warrant that you: (i) are at least 18 years of age, or otherwise over the age of majority in the jurisdiction in which you reside; (ii) are not currently restricted from the Site or Services and are not otherwise prohibited from having an account related thereto; (iii) will only maintain one account at any given time; (iv) will only provide accurate information to HotSchedules; (v) have full power and authority to enter into these Terms and doing so will not violate any other agreement to which you are a party; and (vi) will not violate any rights of HotSchedules or a third party, including intellectual property rights.
6. Personal Use; Limited License; Ownership
Subject to the terms and conditions herein, HotSchedules grants you a limited, revocable, non-transferable, non-sublicensable, non-exclusive license and right to access the HotSchedules Site and the Services through a generally available web browser, mobile device or HotSchedules authorized application to view content and information and otherwise use the Services to the extent intended and permitted by the functionality thereof. This license is personal to you, and you may not resell our Services, permit other users access to our Services through your account, or use the Services to host content for others. You may not copy or download any content from the Site or Services except with the prior written approval of HotSchedules. You acknowledge that, except as otherwise expressly provided, these Terms are solely between you and HotSchedules.
Furthermore, without the prior written approval of HotSchedules, you may not distribute, publicly perform or display, lease, sell, transmit, transfer, publish, edit, copy, create derivative works from, rent, sub-license, distribute, decompile, disassemble, reverse engineer or otherwise make unauthorized use of Site content or Services. Any commercial use not expressly authorized is prohibited. You agree not to remove, obscure, or alter copyright, patent, trademark, or other proprietary rights notices affixed to the Site or Services. Your rights are subject to your compliance with these Terms as well as any other agreements applicable to the Services you are using.
Making unauthorized copies or distribution of Site content or otherwise violating these Terms may result in the termination of your HotSchedules account, prohibition on use of the Services, and further legal action.
The Site and Services provided by HotSchedules are licensed, not sold. The Site and Services, and all copies of the Site and Services, are owned by HotSchedules or its third party licensors and are protected by various intellectual property laws, including, without limitation, copyright and trade secret laws. HotSchedules reserves all rights not expressly granted to you herein. You agree that you have no right to any HotSchedules trademark or service mark and may not use any such mark in any way unless expressly authorized by HotSchedules.
HotSchedules reserves the right to limit your use of or access to the Site or Services, in its sole discretion in order to maintain the performance and availability of the Site and to enforce these Terms of Service. Such limitations may include, without limitation, the number of reviews posted, the number of: (i) messages sent through the Site or Services, (ii) applications submitted, and (iii) reviews posted.
7. Fees; Payment Terms; Credits
If you purchase any services that we offer for a fee ("Paid Services"), you agree to pay the applicable fees for the Paid Services when due plus all related taxes. All applicable taxes are calculated based on the billing information you provide us at the time of purchase. You agree to reimburse us for all collection costs and interest for any overdue amounts. Unless otherwise denoted, all fees are assessed in U.S. dollars. You also agree that HotSchedules may store your payment information. If the payment method you use with us reaches its expiration date and you do not edit the applicable information or cancel such Paid Service, you authorize us to continue billing that payment method and you remain responsible for any uncollected amounts.
In connection with Paid Services, users may be able or required to purchase "tokens" or "credits" ("Credits") that can be used to post jobs or pay for other Paid Services. Additionally, in our sole discretion, we may give away Credits for promotional purposes or any other reason. Credits, including promotional Credits, may have expiration dates connected to them. Credits will no longer be valid following their respective expiration dates, if applicable.
Failure to pay may result in the termination of your subscription. You may cancel or suspend your Paid Services by contacting HotSchedules at (512) 904-4299. Unless expressly stated to the contrary, we do not guarantee refunds for lack of usage, dissatisfaction or any other reason. If you require a printed invoice for your transaction with us, you may request one by contacting HotSchedules at (512) 904-4299.
Paid Services may be subject to additional terms, in addition to these Terms, related to the provision of the Paid Service.
8. Use of Services
HotSchedules is not liable for the loss, corruption, alteration or removal of any content transmitted using our Site or Services. By using our Services, you expressly waive the right to seek damages and agree to hold HotSchedules harmless for any such loss, alteration, corruption or removal. You acknowledge and agree that you are solely responsible for retaining all records and reconciling all transaction information relating to your use of the Site or Services.
HotSchedules may also at any time modify or discontinue, temporarily or permanently, all or any part of the Site, Services or your account, with or without notice, and you agree that HotSchedules will not be liable to you or any third party for any such modification, suspension or discontinuance. Our Services are not intended to be used in countries where offering or providing the Services is illegal, and we do not offer the Services in such countries or to citizens of such countries, including the countries of Iran, Cuba, North Korea, Syria or Sudan.
Subject to Section 20.9, you may terminate these Terms by terminating your use of the Site and Services and any related account.
9. Applications
HotSchedules may offer the Services through applications built using HotSchedules' platform ("Applications"), including any mobile device applications or interactive plugins distributed on third-party websites. If you use an Application or interact with a HotSchedules plugin on a third-party site, we may receive information about you and your use of the Services. Additionally, by using an Application that relates to or enables your use of the Services, you are accepting the terms of any end user license agreement associated with the Application, in addition to these Terms.
If you are accessing the Services through an Application from the Apple App Store, you and HotSchedules agree to the following additional terms:
10. Third-Party Content & Sites
We do not control, and we are not responsible for, any data, content, services, or products (including software) that you access, download, receive or buy while using the Services. We may, but do not have any obligation to, block information, transmissions or access to certain information, services, products or domains to protect the Services, our network, the public or our users. We are not a publisher of third-party content accessed through the Services and are not responsible for the content, accuracy, timeliness or delivery of any opinions, advice, statements, messages, services, graphics, data or any other information provided to or by third parties as accessible through the Service.
From time to time, the Site and Services may contain references or links to third-party materials not controlled by HotSchedules or its suppliers or licensors. HotSchedules provides such information and links as a convenience to you and should not be considered endorsements of such sites or any content, products or information offered on such sites. You acknowledge and agree that HotSchedules is not responsible for any aspect of the information or content contained in any third party materials or on any third party sites accessible or linked to the Site or Services. You are responsible for evaluating whether you want to access or use a third party sites. Accordingly, if you decide to use third party sites, you do so at your own risk and agree that this Agreement does not apply to your use of any third party sites. You should review any applicable terms or privacy policy of a third party sites before using it or sharing any information.
The Site and Services may incorporate the Google Maps API. Accordingly, if the Google Maps API is incorporated, by accessing or using our Site or Services, you hereby agree to be bound by Google's Terms of Service (available at http://www.google.com/intl/en/policies/terms/) and Google's Privacy Policy (available at http://www.google.com/privacy.html).
11. Acceptable Use Policy
You agree to comply with all applicable laws and regulations in connection with your use of the Site and Services. You may not use our Site or Services to post or transmit any illegal material, including without limitation any transmissions that would constitute a criminal offense, give rise to civil liability, or otherwise violate any local, state, national or international law or regulation. In particular, the following is a representative, non-exhaustive list of acts that are prohibited:
HotSchedules enforces a zero-tolerance SPAM policy regarding information transmitted through our network. HotSchedules may determine in its sole discretion whether any transmissions are considered SPAM. SPAM includes, but is not limited to, the following:
If HotSchedules determines that you have posted one or more articles of SPAM, we may cancel your account immediately and take steps to prevent you from using our network at any time thereafter.
You agree not to use the Site or Services for the purpose of recruiting for another website or soliciting or otherwise contacting other users for employment or any other business purpose (other than connecting with other users for the purpose of receiving or providing a job in connection with the purpose of the Site and Services, as applicable, and in accordance with these Terms of Service).
12. Copyright Protected Materials
HotSchedules respects the intellectual property rights of others and expects that you do the same. It is our policy to terminate, in appropriate circumstances, the accounts of subscribers who infringe the copyrights of others. You may not upload, download, post, publish, transmit, reproduce, or distribute in any way, files, material, information, software or other material obtained through the Site or Services that is protected by copyright or other proprietary right or derivative works with respect thereto, without obtaining permission of the copyright owner or other right holder. HotSchedules has the right, but not the obligation, to remove from the Site and Services any files, material, information, software or other material HotSchedules believes is or may be, in its sole discretion, infringing or otherwise in violation of the rights of others.
If you believe in good faith that your copyright has been infringed, please provide a written communication regarding such belief to: customercare@hotschedules.com
13. Export Control Laws.
The Services may be subject to export control restrictions of the United States, the European Union, Canada or other jurisdictions. By using the Services, you warrant that you are not located in any country, or exporting the Service to any person or place, to which the United States, the European Union, or any other jurisdiction has embargoed goods. You agree to abide by U.S. and other applicable export control laws and not to transfer, by electronic transmission or otherwise, any content subject to restrictions under such laws to a national destination prohibited by such laws, without first obtaining, and then complying with, any requisite government authorization. You further agree not to upload to Services any content, data or software that cannot be exported without prior written government authorization, including, but not limited to, certain types of encryption software. The assurances and commitments in this Section shall survive termination of these Terms.
14. Right to Restrict or Terminate Access
HotSchedules may deny or restrict your access to all or part of the Site or Services without notice in its reasonable discretion if it deems that you have engaged in any conduct or activities that HotSchedules in its reasonable discretion believes violates the letter or spirit of any of these Terms. If HotSchedules denies or restricts your access to the Services because of such a violation, you shall have no right to obtain any refund or credit for the subscriptions fees you have paid.
In the event that these Terms or the Services are terminated for any reason or no reason, you acknowledge and agree that you will continue to be bound by these Terms. Following termination, you shall immediately cease use of the Site and Services and any license granted to you under any agreement related to your use of the Site or Services shall immediately terminate. Termination of these Terms or the Services does not relieve you from your obligation to pay HotSchedules any amounts owed to HotSchedules. Upon termination, HotSchedules reserves the right to delete all of your Content, data, and other information stored on HotSchedules' servers. HotSchedules will not be liable to you or any third party as a result of the termination of these Terms or the Services or for any actions taken by HotSchedules pursuant to these Terms as a result of such termination. Without limiting the generality of the foregoing, HotSchedules will not be liable to you or any third party for damages, compensation, or reimbursement relating to your use of the Site or Services, or the termination thereof.
15. Security
You acknowledge and agree that you are solely responsible for protecting your password and other personal information and for the consequences of not protecting such data. Access to our Services and to certain online transactions may involve the use of identification numbers, passwords, payment accounts or other individualized nonpublic information ("Private Documentation"). You shall use your best efforts to prevent unauthorized use of our Services, your account, or of any Private Documentation, and shall promptly report to HotSchedules any suspected unauthorized use or other breach of security. You shall be responsible for any unauthorized use of your account, identification numbers or passwords until we receive written notice of a breach of security and a request to block further access for such numbers and passwords. HotSchedules shall not be liable for any unauthorized use of payment accounts.
16. Children and Minors
By using our Services, you affirm that you are at least 18 years of age, or otherwise over the age of majority in the jurisdiction in which you reside. In accordance with the Children's Online Privacy Protection Act (COPPA) and associated rules, we do not knowingly collect or maintain any personal information from children under 13.
17. Disclaimer of Warranty
Actual service coverage, speeds, locations and quality may vary. HotSchedules will attempt to provide the Services at all times, except for limited periods for maintenance and repair. However, the Services and Site may be subject to unavailability for a variety of factors beyond our control including emergencies, third-party service failures, transmission, equipment or network problems or limitations, interference, signal strength, and may be interrupted, limited or curtailed. Delays or omissions may occur. We are not responsible for data, messages or pages lost, not delivered, delayed or misdirected because of interruptions or performance issues with the Site, Services, or communications services or networks. We may impose usage or Services limits, suspend the Services, or block certain kinds of usage in our sole discretion to protect users, the Services or the Site. The accuracy and timeliness of data received is not guaranteed.
YOUR USE OF THE SITE AND SERVICE IS AT YOUR SOLE RISK. THE SITE, ALL SITE CONTENT, AND THE SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS, WITHOUT WARRANTIES OF ANY KIND, EXPRESS, STATUTORY OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, CUSTOM, TRADE, QUIET ENJOYMENT, NONINFRINGEMENT, AVAILABILITY OR ACCURACY OF INFORMATION. HOTSCHEDULES DOES NOT WARRANT THAT THE SITE OR SERVICES WILL BE AVAILABLE, WILL MEET YOUR REQUIREMENTS OR WILL OPERATE IN AN UNINTERRUPTED, ERROR-FREE OR COMPLETELY SECURE MANNER OR THAT ERRORS OR DEFECTS WILL BE CORRECTED. HOTSCHEDULES DOES NOT MAKE ANY REPRESENTATIONS, WARRANTIES, OR CONDITIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE SITE OR SERVICE, IN TERMS OF THEIR ACCURACY, RELIABILITY, TIMELINESS, COMPLETENESS, OR OTHERWISE.
SOME JURISDICTIONS MAY NOT ALLOW THE EXCLUSION OR LIMITATION OF IMPLIED WARRANTIES OR CONDITIONS, OR ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU. IN SUCH EVENT, HOTSCHEDULES� WARRANTIES AND CONDITIONS WITH RESPECT TO THE SITE AND SERVICES WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW IN SUCH JURISDICTION.
18. Limitation of Liability
UNDER NO CIRCUMSTANCES WILL HOTSCHEDULES, ITS AFFILIATES, EMPLOYEES, AGENTS, REPRESENTATIVES, LICENSORS OR OTHER THIRD PARTY PARTNERS ("HOTSCHEDULES PARTIES") BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE USE, INABILITY TO USE, OR THE RESULTS OF USE OF OUR SERVICES OR SITE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY; INCLUDING WITHOUT LIMITATION DAMAGES RESULTING FROM LOST PROFITS, LOST DATA, LOSS OF BUSINESS OR BUSINESS INTERRUPTION, WHETHER DIRECT OR INDIRECT, ARISING OUT OF THE USE, INABILITY TO USE, OR THE RESULTS OF USE OF OUR SERVICES OR OUR SITE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY. YOUR SOLE AND EXCLUSIVE REMEDY UNDER THIS AGREEMENT SHALL BE FOR YOU TO DISCONTINUE YOUR USE OF THE SITE AND SERVICES.
A HOTSCHEDULES PARTY'S TOTAL CUMULATIVE LIABILITY SHALL IN NO EVENT EXCEED THE GREATER OF: (A) THE AMOUNT YOU PAID HOTSCHEDULES FOR YOUR USE OF THE SERVICES IN THE PRIOR THREE (3) MONTHS; AND (B) THE SUM OF ONE HUNDRED (100) US DOLLARS.
SOME STATES OR JURISDICTIONS MAY NOT ALLOW THE EXCLUSION OR THE LIMITATION OF LIABILITY. IN SUCH STATES OR JURISDICTIONS, THE HOTSCHEDULES PARTIES' LIABILITY TO YOU SHALL BE LIMITED TO THE FULL EXTENT PERMITTED BY LAW.
EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS OF THIS AGREEMENT BETWEEN THE PARTIES. THIS ALLOCATION IS REFLECTED IN THE PRICING OFFERED BY HOTSCHEDULES TO YOU AND IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THE LIMITATIONS IN SECTIONS 18 AND 19 WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY IN THIS AGREEMENT.
19. Indemnity
You agree to defend, indemnify and hold the HotSchedules Parties harmless from any claim or demand, including reasonable attorneys' fees, made by any third party arising out of or relating to (i) any violation of these Terms by you; (ii) your Content or any other content or material you submit or otherwise transmit through our Site or Services; (iii) your violation of any rights of another; or (iv) your use of the Site or Services. HotSchedules reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to defense by you.
20. General Terms
20.1. Entire Agreement. These Terms, along with any rules, guidelines, or policies published on the HotSchedules homepage constitute the entire agreement between HotSchedules and you with respect to your use of our Site Services. If there is any conflict between the Terms and any other rules or instructions posted on the Site or Services, the Terms shall control.
20.2. Amendments. No amendment to these Terms by you by shall be effective unless acknowledged in writing by HotSchedules. Notwithstanding the foregoing, HotSchedules reserves the right, in its sole discretion, to modify these Terms or the policies referenced herein at any time as set forth above.
20.3. Governing Law, Jurisdiction and Venue. These Terms shall be governed by, and construed in accordance with, the laws of the state of Delaware, without reference to its choice of law rules. Subject to the arbitration provisions below, exclusive venue for any action arising out of or in connection with this agreement shall be in Wilmington, Delaware. The parties each hereby consent to the jurisdiction and venue in Wilmington, Delaware and waive any objections to such jurisdiction and venue. Notwithstanding the foregoing, you agree that HotSchedules shall be entitled to apply for injunctive remedies or other equitable relief in any jurisdiction.
20.4. Dispute Resolution. Excluding claims for injunctive or other equitable relief, for any claim where the total amount of the award sought is less than $10,000, the party requesting relief may elect to resolve the dispute through binding non-appearance-based arbitration. In the event a party elects arbitration, they shall initiate such arbitration through an established alternative dispute resolution provider mutually agreed upon by the parties. The arbitration shall be conducted by telephone, online or be solely based on written submissions; the specific manner shall be chosen by the party initiating the arbitration. The arbitration shall not require any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties. Any judgment on the award rendered by the arbitrator shall be final and may be entered in any court of competent jurisdiction. You agree that any dispute resolution proceedings will be conducted only on an individual basis and not in a class, consolidated or representative action. If for any reason a claim proceeds in court rather than in arbitration each party waives any right to a jury trial.
20.5. Limited Time to Bring Claim. Subject to any applicable law to the contrary, you agree that any cause of action arising out of or related to the use of our Site or Services must be commenced within one (1) year after the cause of action accrues, or such action will be permanently barred.
20.6.Severability. If any portion of these Terms is found to be unenforceable or invalid for any reason, that provision will be limited or eliminated to the minimum extent necessary so that the rest of these Terms will otherwise remain in full force and effect.
20.7.Assignment. You may not assign your rights or obligations under these Terms without the prior written consent of HotSchedules, which may be withheld in HotSchedules' sole discretion.
20.8. Non-Waiver. HotSchedules' failure to insist upon or enforce any provision of these Terms shall not be construed as a waiver of any provision or right.
20.9. Survival. Any sections or terms which by their nature should survive or are otherwise necessary to enforce the purpose of these Terms, will survive the termination of these Terms and termination of the Services.
20.10. Headings. All headings included in these Terms are included for convenience only, and shall not be considered in interpreting these Terms.
20.11. HotSchedules Rights Cumulative. These Terms do not limit any rights that HotSchedules may have pursuant to any intellectual property laws or any other laws. All rights and remedies available to HotSchedules, pursuant to this Agreement or otherwise, at law or in equity, are cumulative and not exclusive of any other rights or remedies that may be available to HotSchedules.
20.12. No Injunctive Relief. In no event shall you seek or be entitled to rescission, injunctive or other equitable relief, or to enjoin or restrain the operation of the Site or Services, or any other materials issued in connection therewith, or exploitation of the Services or any content or other material used or displayed through the Services.
20.13. Notice. If you have any questions, complaints, or claims, you may contact HotSchedules at: 6504 Bridge Point Parkway, Suite 425, Austin TX 78730, (512) 904-4299.
20.14. Third-Party Beneficiaries. If you are accessing the Services through an Application from the Apple App Store, HotSchedules and you acknowledge and agree Apple, and Apple's subsidiaries, are third party beneficiaries of these Terms, and that, upon your acceptance of the terms and conditions of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third party beneficiary thereof. Except for the foregoing or as otherwise expressly set forth herein, there shall exist no right of any person, other than you and HotSchedules, to claim a beneficial interest in these Terms or any rights occurring by virtue of these Terms.
20.15. Relationship. No independent contractor relationship, partnership, joint venture, employer-employee or franchise relationship is created by this Agreement.