Oplign Terms Of Service
Last Revised: October 23, 2017
Oplign Intended Audience
Welcome to Oplign.com (Oplign, Inc. or as used herein: “Oplign”, “We”, “Our”, or “Us”). When You (“You” individually or the entity that You represent) use our website (the “Site”) or related Oplign products and services (collectively, the “Service”), you are agreeing to the Terms of Service (the “Agreement”) as outlined in this agreement.
Sign In, Log On, and Oplign Registration
In registering for an account on the Site, you agree to (1) provide true, accurate, current, and complete information about yourself as prompted by the Service registration form (“Registration Data”), and (2) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. You are responsible for all activities that occur under your account whether performed by You or a third party. If you provide any Content (“Content” means any information that you post, transmit or submit through our Service) that is untrue, inaccurate, not current, or incomplete, or Oplign has reasonable grounds to suspect that such Content is untrue, inaccurate, not current or incomplete, Oplign has the right to suspend or terminate your account and refuse any and all current or future use of the Site and/or Service. You agree not to create an account using a false identity or information, or on behalf of someone other than yourself. You agree that you shall not have more than one account. You agree not to create an account or use the Site or Service if you have been previously removed by Oplign, or if you have been previously banned from the Site or Service.
You are responsible for your use of the Site and Service and for any use of the Site or Service made using your account. You agree not to access, copy, or otherwise use the Site or the Service, including our intellectual property and trademarks, except as authorized by this Agreement or as otherwise authorized in writing by Oplign. Remember when using Oplign we ask you to act reasonably and responsibly with others, within the bounds of decency and in compliance with all applicable laws. We may suspend or terminate your access to the Service if you violate, or we suspect that you are violating, any of the terms and conditions of this Agreement or any applicable laws. Your continued access to our Site and use of our Service are contingent on your agreement to act in a proper manner. When using our Site and Service you agree that you will not (1) copy, distribute, or disclose any part of the Site, including by way of automated or non-automated “scraping” (2) use any automated systems including “robots” and “spiders” (3) interfere with or compromise our systems’ integrity or decipher any server transmissions (4) impose any unreasonably large load on our infrastructure (5) upload viruses, worms, or invalid data to the Service (6) collect or retain any personally identifiable information contained in the Service (7) access the Service by any means other than authorized herein, including virtual private networks which are expressly forbidden (8) stalk, harass, bully or harm others (9) impersonate any person or entity (10) hack, spam, phish, or otherwise provide untruthful, false, fraudulent, manipulative, or inflammatory content
Third Party Agents
You may permit third party agents to access, use and/or operate the Service on Your behalf (“Third Party Agents”) for the sole purpose of delivering services to You, provided that You will be fully responsible for Your Third Party Agents’ compliance with terms and conditions of this Agreement and any breach of this Agreement by a Third Party Agent shall be deemed to be a breach by You.
Third Party Services
Oplign may provide to You, or provide Your Content to, certain third party services or third party service providers (collectively, “Third Party Service(s)”) which may provide to You links to sites, job postings, email and telephone correspondence and other offers outside of the Oplign network. Such Third Party Services are provided “AS IS” without indemnification, support, or warranty of any kind, and this Agreement does not apply to your use of any such provided Third Party Services. You are responsible for evaluating whether you want to access or use such Third Party Services, and, in certain circumstances where required or applicable, may opt-out from such Third Party Services available outside of the Oplign network, or may choose to not utilize such Third Party Services at any time. We reserve the right to suspend Third Party Services at any time. You should review any applicable terms and/or privacy policies of a Third Party Service before using it or sharing any information with it, because you may give the operator permission to use your information outside of what You have agreed to herein. Oplign is not responsible for, nor endorses any features, content, advertising, products or other materials on or available from such Third Party Services.
Qualifications And Alignment Process
Oplign does not act as an agent for the purposes of the Qualification and Alignment process. Oplign merely provides Candidates and Clients the software tools to enable them to find each other. Candidates and Clients are solely responsible for any issues arising from the use of the Oplign’s software or their use of Service. Any agreements created between a Client and a Candidate are not binding on Oplign. We are not liable for, or obligated to enforce, any agreements between a Client and a Candidate. You will not consider Oplign, nor will Oplign be construed as, a party to such transactions, whether or not Oplign receives some form of remuneration in connection with the transaction, and Oplign will not be liable for any costs or damages arising out of or related to such transaction. No contractual obligations are created for either the Candidate or the Client through the use of the Service. The Candidate is not obligated to accept the Qualification and Alignment outputs at all. Additionally, Alignment requests submitted by a Client to a Candidate through the Qualification process are not binding on the Client. At the end of the Qualification process the Candidate may choose which Client, if any, he or she wishes to contact.
Limitations On Liability
Oplign is not liable for (1) any content posted by Clients or Candidates on our Site or Service; (2) contracts, contractual obligations, or other obligations that may arise from an employment, contractor, or other relationship between Client and Candidate; (3) any review of content posted on our Site or Service; (4) any damages that result through the use of our Service; (5) any negative or critical comments that may be posted by Client, Candidate, or other third party through the Service; or (6) any of the Third Party Service(s) you may be provided pursuant to your use of the Service.
We are not required to or under any obligation to review, screen, edit, monitor or remove any content posted on our Site, although we reserve the right to do so, and to take any other action, in Oplign’s discretion, with or without notice, to prevent any violation, enforce any provision, or rectify any alleged violations of this Agreement or any applicable law.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, YOU UNDERSTAND AND AGREE THAT IN NO EVENT SHALL OPLIGN BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE SITE AND/OR SERVICE, WHETHER OR NOT OPLIGN HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY DAMAGES FOR PERSONAL OR BODILY INJURY OR EMOTIONAL DISTRESS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, OR FROM ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH OTHER USERS OF THE SITE OR SERVICE, ON ANY THEORY OF LIABILITY (INCLUDING CONTRACT, TORT INCLUDING NEGLIGENCE, OR HOWSOEVER OTHERWISE) ARISING OUT OF, IN CONNECTION WITH, OR RESULTING FROM (1) THE USE OR INABILITY TO USE THE SITE AND/OR SERVICE; (2) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SITE AND/OR SERVICE; OR (3) ANY OTHER MATTER RELATED TO THE SITE AND/OR SERVICE.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, UNDER NO CIRCUMSTANCES WILL OPLIGN BE LIABLE TO A CANDIDATE, (REGARDLESS OF WHETHER THE CLAIM IS BASED IN CONTRACT, TORT INCLUDING NEGLIGENCE, STRICT LIABILITY, OR OTHERWISE) FOR MORE THAN THE GREATER OF (1) THE SUCCESS FEE PAID BY THE CANDIDATE’S EMPLOYER (A CLIENT), OR (2) $100, AS A RESULT OF THE CANDIDATE’S USE OF THE SITE AND/OR SERVICE. IN NO EVENT WILL OPLIGN BE LIABLE TO A CLIENT FOR MORE THAN THE SUCCESS FEES PAID BY THE CLIENT FOR THE TWELVE MONTH PERIOD PRECEDING THE DATE ON WHICH CLIENT FIRST ASSERTS A CLAIM ARISING OUT OF OR RELATED TO AN EMPLOYMENT OFFER OR CONTRACTOR OFFER MADE BY CLIENT TO A CANDIDATE.
THE LIMITATIONS OF THIS SECTION WILL NOT APPLY TO ANY LIABILITY THAT CANNOT BE EXCLUDED OR LIMITED BY LAW.
Our licensors and service providers will have no liability of any kind under this Agreement. You may not bring any claim under this Agreement more than eighteen (18) months after the cause of action arises.
7.0 Confidentiality and Confidential Information
Confidential Information: Non-public technical, business or other information or materials disclosed or otherwise made available by one party in connection with the Service that are in tangible form and labeled “confidential” or the like, or are provided under circumstances reasonably indicating their confidentiality. Our Confidential Information includes: (1) Login Credentials; and (2) any information or materials relating to the Service. Your Confidential Information does not include Your Content.
Protection: A party may use Confidential Information of the other party solely to exercise its rights and perform its obligations under this Agreement or as otherwise permitted under this Agreement. Each party will disclose the Confidential Information of the other party only to the employees, service providers or contractors of the recipient party who have a need to know the Confidential Information for purposes of this Agreement and who are under a duty of confidentiality no less restrictive than each party’s duty under this Agreement. Each party will use reasonable care to protect the confidentiality of the other party’s Confidential Information.
Exceptions: The recipient’s obligations under this Section with respect to any Confidential Information will terminate if the recipient can show by written records that the information: (a) was already rightfully known to the recipient at the time of disclosure by the other party; (b) was disclosed to the recipient by a third party who had the right to make the disclosure without any confidentiality restrictions; (c) is, or through no fault of the recipient has become, generally available to the public; or (d) was independently developed by the recipient without access to, or use of, discloser’s Confidential Information. The recipient may disclose Confidential Information to the extent the disclosure is required by law or regulation or the listing rules of any stock exchange. The recipient will provide the other party notice, when practicable, and will take reasonable steps to contest and limit the scope of any required disclosure.
Continuing Obligations: You agree to keep all information gained from using our Site confidential; you agree that (1) you will use any content submitted by Candidates or Clients in accordance with applicable privacy and data protection laws; (2) you will not disclose the names or identities of any Candidates; AND (3) you will take appropriate physical, technical and administrative measures to protect content you obtain through use of the Site and/or Service from loss, misuse, unauthorized access, disclosure, alteration or destruction. You also agree not to post, publicly or privately disclose or disseminate any job offers, or contractor opportunities which you become aware of through our Site or Service.
Intellectual Property Rights
The design of the Service along with Oplign created text, scripts, graphics, interactive features and the trademarks, service marks and logos contained therein (“Marks”), are owned by or licensed to Oplign, subject to copyright and other intellectual property rights under United States and foreign laws and international conventions. Oplign reserves all rights in and to the Service and the Site. You agree to not engage in the use, copying, or distributing any content contained within the Site or through the Service unless we have given you express written permission to do so.
Licensing To Oplign
You hereby grant to Oplign and its owners, affiliates, representatives, licensees, licensors and assigns (the “Oplign Parties”) a non-exclusive, fully-paid, royalty-free, world-wide, universal, transferable license to: (1) display, publicly perform, distribute, store, broadcast, transmit and reproduce your logo(s), service marks, trademarks and trade names through the Site, the Service and/or any other medium currently invented or invented in the future; and (2) display, publicly perform, distribute, store, broadcast, transmit, reproduce, modify, prepare derivative works and otherwise use and reuse all or any part of the Content and anything we may make with the Content through the Site, the Service and/or any other medium currently invented or invented in the future. Further, you waive and agree never to assert any and all moral rights in and to all of the materials licensed in this Section. We reserve the right to display advertisements in connection with the Content. We are not required to host, display, or distribute any of the Content and we may refuse to accept or transmit the Content, and may remove or delete all or any portion of the Content from Oplign at any time. By submitting any Content to us, you hereby represent and warrant that you own all rights to the Content or, alternatively, that you have the right to give us the license described above. Finally, you represent and warrant that the Content does not infringe on the intellectual property rights, privacy rights, publicity rights, or other legal rights of any third party. You understand that when using the Site and/or the Service you will be exposed to content from a variety of sources, and that Oplign is not responsible for the accuracy, usefulness, safety, or intellectual property rights of or relating to such content, and that such content is not the responsibility of Oplign. You further understand and acknowledge that you may be exposed to content that is 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 the Oplign Parties with respect thereto, and agree to indemnify and hold the Oplign Parties harmless to the fullest extent allowed by law regarding all matters related to your use of the Site.
Disclaimer Of Warranties
THE SITE AND SERVICE ARE PROVIDED TO YOU AS IS. OPLIGN PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.
THE OPLIGN PARTIES MAKE NO WARRANTY, REPRESENTATION OR CONDITION THAT: (1) THE SITE AND/OR SERVICE WILL MEET YOUR REQUIREMENTS; (2) YOUR USE OF THE SITE AND/OR SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; (3) THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SITE AND/OR SERVICE WILL BE ACCURATE OR RELIABLE; OR (4) ANY ERRORS IN THE SITE AND/OR SERVICE WILL BE CORRECTED.
YOU AGREE THAT YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF THE SITE AND/OR SERVICE.
IF YOU ARE A RESIDENT OF A JURISDICTION THAT REQUIRES A SPECIFIC STATEMENT REGARDING RELEASE, THEN THE FOLLOWING APPLIES. FOR EXAMPLE, CALIFORNIA RESIDENTS MUST, AS A CONDITION OF THIS AGREEMENT, WAIVE THE APPLICABILITY OF CALIFORNIA CIVIL CODE SECTION 1542, WHICH STATES, “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.” YOU HEREBY WAIVE THIS SECTION OF THE CALIFORNIA CIVIL CODE. YOU HEREBY WAIVE ANY SIMILAR PROVISION IN LAW, REGULATION, OR CODE THAT HAS THE SAME INTENT OR EFFECT AS THE AFOREMENTIONED PROVISION.
You agree to defend and indemnify the Oplign Parties from and against any third party claim, including reasonable attorney’s fees, court costs, settlements, and disbursements, from or relation to (a) Your Content (b) Your use of the Service (c) Your violation of any term of this Agreement (d) Your violation of any third party rights, including privacy rights, (e) your violation of law or your users (f) use of any services provided by Third Party Service Providers (g) any findings that the Oplign Parties are employers or related employers of any Candidate, contractor employed, or retained by a Client. You may not settle or compromise any Infringement Claim without our prior written consent.
12.1. Communications Decency Act
Oplign is and will not be liable for any content posted on our Site. Oplign may, but has no obligation to, monitor or review any content on the Site. Although we may choose to edit or delete any content we determine to be defamatory, we are not required to, and reserve all defenses for such content made available to us by Section 230 of the Communications Decency Act, the First Amendment to the Constitution of the United States of America, and any other applicable laws, rules, regulations
12.2. DMCA Notices
We take copyright infringement very seriously, and we have registered a Registered Copyright Agent with the United States Copyright Office, which limits our liability under the Digital Millennium Copyright Act. It is our policy to terminate the account of any user who repeatedly infringes copyright upon prompt notification to Oplign by the copyright owner or the copyright owner’s legal agent. Without limiting the foregoing, if you believe that your work has been copied and posted on the Site and/or Service in a way that constitutes copyright infringement, please provide our Copyright Agent with the following information: (1) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; (2) a description of the copyrighted work that you claim has been infringed; (3) a description of the material that you claim is infringing and a description of the location on the Site and/or Service of the material that you claim is infringing; (4) your address, telephone number and e-mail address; (5) a written statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent or the law; and (6) a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf. Contact information for the Company’s Copyright Agent for notice of claims of copyright infringement is as follows: email@example.com
12.3. Compliance and Choice Of Law
Each party will comply with all laws applicable to the actions contemplated in this Agreement, including all local, state, and federal regulations and export control laws. Subject to local laws requiring application of another law(s), this Agreement shall be governed by and interpreted in accordance with the laws of the United States, specifically the state of Ohio, without giving effect to any principles that provide for the application of the law of another jurisdiction.
12.4. Dispute Resolution
PLEASE READ THIS SECTION CAREFULLY.
Any dispute (including whether the claims asserted are arbitrable) shall be referred to and finally determined by binding and confidential arbitration. Arbitration shall be subject to the Federal Arbitration Act and not any state arbitration law. The arbitration shall be conducted before one commercial arbitrator with substantial experience in resolving commercial contract disputes from the American Arbitration Association (“AAA”). The arbitration will be governed by the AAA’s Commercial Arbitration Rules and, if the arbitrator deems them applicable, the Supplementary Procedures for Consumer Related Disputes (collectively “Rules and Procedures”). Each party shall bear its own costs (including attorney fees) and disbursements arising out of the arbitration. Notwithstanding the foregoing, the Company may seek injunctive or other equitable relief to protect its intellectual property rights in any court of competent jurisdiction.
You are thus GIVING UP YOUR RIGHT TO GO TO COURT to assert or defend your rights. Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury. You are entitled to a FAIR HEARING, BUT the arbitration procedures are SIMPLER AND MORE LIMITED THAN RULES APPLICABLE IN COURT. Arbitrator decisions are as enforceable as any court order and are subject to VERY LIMITED REVIEW BY A COURT.
You and Oplign must abide by the following rules: (1) ANY CLAIMS BROUGHT BY YOU OR OPLIGN MUST BE BROUGHT IN THE PARTIES’ INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING; AND (2) THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS, MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING, AND MAY NOT AWARD CLASS-WIDE RELIEF.
The arbitrator will not have authority to award damages in excess of the amount, or other than the types, allowed by Section 7 of this Agreement. Judgment on the award of the arbitrator may be entered by any court of competent jurisdiction. The arbitrator also shall be authorized to grant any temporary, preliminary or permanent equitable remedy or relief it deems just and equitable and within the scope of the Agreement, including, without limitation, an injunction or order for specific performance. The arbitration award shall be final and binding upon the parties without appeal or review except as permitted by California law or United States federal law.
For more information on AAA, its Rules and Procedures, and how to file an arbitration claim, you may call AAA at 800-778-7879 or visit the AAA website at http://www.adr.org.
12.5. Force Majeure
You agree that we are not responsible to you for anything that we may otherwise be responsible for, if it is the result of events beyond our control, including, but not limited to, acts of God, war, insurrection, riots, terrorism, crime, labor shortages (including lawful and unlawful strikes), embargoes, postal disruption, communication disruption, failure or shortage of infrastructure, shortage of materials, or any other event beyond our control.
12.6. Severability; Headings
In the event that a provision of this Agreement is found to be unlawful, conflicting with another provision of the Agreement, or otherwise unenforceable, the Agreement will remain in force as though it had been entered into without that unenforceable provision being included in it. If two or more provisions of this Agreement are deemed to conflict with each other’s operation, Oplign shall have the sole right to elect which provision remains in force. Headings in this Agreement are for reference purposes only and will not be used in its construction and/or interpretation.
We reserve all rights permitted to us under this Agreement as well as under the provisions of any applicable law. Our non-enforcement of any particular provision or provisions of this Agreement or the any applicable law will not be construed as our waiver of the right to enforce that same provision under the same or different circumstances at any time in the future.
You may not sell, transfer, or assign your rights and/or obligations under this Agreement to any other party without our prior written consent. We may assign our rights and/or obligations under this Agreement to any other party at our discretion.
Where Oplign requires that you provide an e-mail address, you are responsible for providing Oplign with your most current e-mail address. In the event that the last e-mail address you provided to Oplign is not valid, or for any reason is not capable of delivering to you any notices required or permitted by this Agreement, Oplign’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice to Oplign at the following address: firstname.lastname@example.org Such notice shall be deemed given when received by Oplign by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the above address.
12.11. Entire Agreement
The Agreement is the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter.
12.12. Electronic Communications
The communications between you and Oplign use electronic means, whether you visit the Site or the Service or send Oplign e-mails, or whether Oplign posts notices on the Site or Service or communicates with you via e-mail. For contractual purposes, you (1) consent to receive communications from Oplign in an electronic form; and (2) agree that all terms, conditions, agreements, notices, disclosures, and other communications that Oplign provides to you electronically satisfy any legal requirement that such communications would satisfy if they were in writing. The foregoing does not affect your statutory rights.
12.13 California Users And Residents
Pursuant to California Civil Code Section 1789.3, any questions about pricing, complaints, or inquiries about Oplign must be addressed to our agent for notice and sent via certified mail to: Agent of Oplign, 829 Bethel Road, Unit 134, Columbus, Ohio 43214. Lastly, California users are also entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 North Market Blvd., Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210.
PLEASE NOTE THAT THIS AGREEMENT IS SUBJECT TO CHANGE BY OPLIGN IN ITS SOLE DISCRETION AT ANY TIME. When changes are made, we will make a new copy of the Agreement available at the Site. We will also update the “Last Revised” date at the top of the Agreement. If we make any material changes, and you have registered to use the Service, we may also send an e-mail to you at the last e-mail address you provided to us pursuant to this Agreement. Any changes to the Agreement will be effective immediately for new users of the Site or Service and will be effective thirty (30) days after posting notice of such changes on the Site for existing users, provided that any material changes shall be effective for users who have a registered account on the Site (“Registered Users”) upon the earlier of thirty (30) days after posting notice of such changes on the Site or thirty (30) days after dispatch of an e-mail notice of such changes to Registered Users. Oplign may require you to provide consent to the updated Agreement in a specified manner before further use of the Site or the Service is permitted. If you do not agree to any change(s) after receiving a notice of such change(s), you shall stop using the Site and/or the Service. Otherwise, your continued use of the Site and/or Service constitutes your acceptance of such change(s). YOU AGREE TO REGULARLY CHECK THE SITE TO VIEW THE THEN-CURRENT TERMS OF SERVICE.
Client Specific Terms
13.1. Description of Service For Clients
As a Client, you have the opportunity to find qualified talent and reduce the costs involved with locating, sourcing, qualifying, closing, and retaining such talent. You may Invite and Engage a Candidate on our Service that you feel may be a fit for your company. However, these invitations and requests are non-binding and do not create a binding contract. YOU UNDERSTAND THAT OPLIGN DOES NOT INQUIRE INTO THE BACKGROUNDS OF ITS USERS OR ATTEMPT TO VERIFY THE STATEMENTS OF ITS USERS ON THEIR PROFILE (ALTHOUGH IT RESERVES THE RIGHT TO CONDUCT ANY BACKGROUND CHECK OR OTHER SCREENINGS AT ANY TIME USING AVAILABLE PUBLIC RECORDS). YOU AGREE TO (1) CONDUCT ANY BACKGROUND CHECKS, REFERENCE CHECKS, OR OTHER DUE DILIGENCE THAT YOU MAY REQUIRE BEFORE ENGAGING CANDIDATE, AND (2) COMPLY WITH ALL LAWS AND REGULATIONS RELATING TO THE INTENDED CONTRACT OF ANY CANDIDATE.”
13.2. Registration For Client
In order to use Oplign as a Client you must also register. When registering we may ask you for additional information related to your company and the types of Candidates you are looking for. We may also allow you to use a third party service such to register. We will review the information that you provided to us during the registration process and any other information that is publicly available. We reserve the right, in our sole discretion, to accept or reject your registration to use our Site and Service. If your registration is accepted, you will be allowed to engage with, and make various types of requests to, Candidates that have posted their profiles on Oplign.
13.3. Batch Process – Client’s Role
“Batches” mean periodic processes offered by the Service that Candidates will use to find new career opportunities. The Batches do not create any contractual obligation between Candidates or Clients. Batches merely allow Candidates to meet Clients who may be interested in hiring them.
After a Client’s registration has been accepted by us, the Client will be able to post Job Opportunities, view Candidates on that fully align to those Job Opportunities, communicate anonymously with these Candidates, and receive engagement information from Candidates.
Once a Client has discovered a Candidate on our Site or Service, the Client agrees to communicate exclusively with the Candidate through our Site and Service for the duration of the Job Opportunity alignment process. The Client and the Candidate may use other means of communication during the hiring process. The Client agrees not to attempt to circumvent our Site and Service by independently attempting to communicate and hire the Candidate through alternative means after discovering the Candidate on our Site or Service.
13.4. Subscription Agreements
Clients engaged in a Subscription Agreement with Oplign (individually a “Subscription Client” and collectively “Subscription Clients”) will be charged a Subscription fee as agreed upon between the Client and Oplign for the period as agreed upon between the parties (the “Subscription Period”). During the Subscription Period, the Subscription Client will be able to post, browse, engage, invite, and contact through our Site and Service.
If a Subscription Client circumvents our Site and Service after discovering a Candidate through our Site or Service and subsequently hires that Candidate within twelve (12) months of the date on which the Client first viewed the Candidate on the Site, the Subscription Client will pay a Circumvention Fee equal to 25% of the 1st year base salary or prorated contractor compensation of the Candidate and Oplign may, in its sole discretion, terminate the Subscription Client’s account. Oplign reserves the right at any time to change its fees (including to begin charging for services that it is currently providing free of charge) and billing methods, either immediately upon posting on the Site or by email delivery to you.
Client agrees to pay the Success Fees charged to Client’s account in accordance with the fees, charges, and billing terms in effect at the time the Success Fee is due and payable hereunder. A Client choosing the Monthly Success Fee or the Subscription option is required to complete the Oplign Direct Debit Authorization Form allowing Oplign to withdraw, debit or charge monthly payments from the Client’s designated bank or credit card account(s). By accepting Oplign’s Terms of Service, Client agrees that Oplign is authorized to immediately withdraw Success Fees due and payable to Oplign hereunder from Client’s account and that no additional notice or consent is required. Client agrees to immediately notify Oplign of any change in its billing address or any account information provided to Oplign used for payment hereunder. All fees (such as Success Fees, Monthly Success Fees, or Subscription Fees) for the Oplign Service are due and payable net thirty (30) days from the date indicated on each invoice as sent to Client by Oplign.
Candidate Specific Terms
14.1. Description Of Service For Candidates
Oplign is an online service that connects Candidates with Clients through a non-binding experience and skills alignment process. Candidates have the opportunity to find a position with a Client with transparency as to role, location, and qualifications of in each Job Opportunity request. Additionally, Candidates’ use of Oplign is free, non-binding, and does not create any contractual obligations between the Client and the Candidate. The Job Opportunity to Profile alignment only acts as a tool for Candidates to explore opportunities without obligation.
14.2. Registration For Candidate
In order to use Oplign as a Candidate you must register and create a profile. The use of the Site and the Service is free for Candidates. When registering with Oplign, we may require you to provide us information such as your name, e-mail address, employment history, work experience, educational background and skill set. Furthermore, you agree to provide us with any other identifying documents that we may request. We may also allow you to use a third party service such as Github, LinkedIn or Twitter to register. We will review the information that you provide to us during the registration process and we may also review any other information about you that is publicly available. We reserve the right, in our sole discretion, to accept or reject your registration to use our Site and Service. If your registration is accepted, you will be allowed to use our Service.
14.3. Profile – Candidate’s Role
After a Candidate has registered and created a Profile on Oplign, he or she will be able to view Job Opportunities in the system via software made available by us through the Service. Candidates are solely responsible for maintaining their Profile and ensuring alignment to Job Opportunities. Clients will then have the opportunity to engage with Candidates for their services through the Engage and Invite process. By creating a listing and using the Job Opportunity alignment process, the Candidate can see which Clients may be interested in engaging, and potentially hiring him or her. At the conclusion of the alignment process the Candidate may, but is not required to, contact any Client that made a Invite to him or her. All requests by Clients through our Site and Service are non-binding. The Candidate agrees not to attempt to circumvent our Site and Service by independently attempting to communicate with a Client that contacted or communicated with him or her on our Site or Service.
14.4. Payments For Candidates
Oplign is free for Candidates. At some point in the future Oplign will commence to offer premium services that Candidates can subscribe to, and for which there will be various tiers of services and methods of payment.
15. Enterprise or Company Registration and Account Security
You may create Enterprise User Accounts for any persons whom you authorize to use the Subscription Services on the Enterprise’s behalf, AND who has an active email account on your Company’s email root server. Enterprise is solely responsible for any access to and use of the Services when using Company’s Enterprise User Accounts or otherwise by Users, including by Candidates. The Subscription Services permit you to establish different levels of security and information access on a User by User basis. Enterprise is solely responsible for the creation and management of such security levels including, but not limited to, granting and terminating individual User access to information and/or to the Services as a whole, as appropriate. Enterprise is solely responsible for informing Users of their rights and responsibilities with respect to the Services and entering into agreements as appropriate with respect to such User’s use of the Services, including, but not limited to, as appropriate disclosure of information management practices with respect to data and documents provided by such Users.
YOU (Enterprise) ACKNOWLEDGE THAT ANY PERSON WITH ACCESS TO YOUR USERNAME(S) AND PASSWORD(S) MAY BE ABLE TO ACCESS YOUR USER ACCOUNTS (INCLUDING CUSTOMER DATA AND CUSTOMER CONTENT) YOU OR USERS HAVE STORED OR PROCESSED USING THE SERVICE. YOU ACCEPT ALL RISKS OF UNAUTHORIZED USE OF YOUR USER ACCOUNTS AND HEREBY RELEASE OPLIGN FROM ANY LIABILITY IN CONNECTION WITH ANY SUCH UNAUTHORIZED ACCESS.
You will promptly notify Oplign if you discover or otherwise suspect any security breaches related to the Service, including any unauthorized use or disclosure of a username or password.
16. Intellectual Property Rights and Restrictions on Use.
16.1 Oplign Intellectual Property Rights.
The Oplign Content and the Services and all right, title and interest in and to the Oplign Content and the Services are the sole property of Oplign or its licensors, and are protected by United States and foreign copyright, trademark and other laws. Except for the limited licenses expressly granted to you in this Agreement, Oplign reserves for itself and its licensors all other rights, title and interest. “Oplign,” the Oplign design logo and certain other names or logos are service marks or trademarks of Oplign, and all related product and service names, design marks and slogans are the service marks or trademarks of Oplign. You must retain all copyright, trademark, service mark and other proprietary notices contained on the Oplign Content on any authorized copy you make of the Oplign Content.
Oplign hereby grants you a limited, non-exclusive license during the term of the Service Activation Agreement to (a) use the Services only for your internal business use, and (b) download, store, print, and display the Oplign Content only as reasonably necessary for you to use the Services.
16.3 Restrictions on Use.
You may not sell, transfer, distribute, sublicense or assign any of the Services or Oplign Content or your rights to any of the Services or Oplign Content to any third party. You may not alter, reverse engineer, decompile, disassemble or attempt to derive source code from the Services or its technology. You will not use or access the Services to: (a) build a competitive product or service, (b) make or have made a product or service with similar features, functions, text, graphics or other content, (c) make derivative works based upon the Services or Oplign Content, (d) copy any features, functions, text, or graphics of the Services or the Oplign Content, or (e) to provide services to others except as specifically authorized in your Service Activation Agreement.
You hereby grant to Oplign a nonexclusive, perpetual and irrevocable license to use any suggestions, recommendations or other feedback regarding the Services provided by you (including by your Users) to Oplign (“Suggestions”), in any manner and for any purposes whatsoever without compensation of any kind. The foregoing license will survive the term of this Agreement.
17. Third Party Providers and Websites.
The Services may enable you to access and use other services not provided by Oplign (“Third Party Services”), such as onboarding or pre-employment background investigations. The Services also contain certain links to websites of Third Party Providers as well as functionality to transmit job listings or other information or data to Third Party Services. Such Third Party Services are provided directly to you by third party service providers (“Third Party Providers”), are not part of the Services, and are subject to change by such Third Party Providers. Any exchange of data or other interaction between you and a Third Party Provider, and any purchase by you of any product or service offered by a Third Party Provider, is solely between you and such Third Party Provider. Third Party Services are provided to you on a pass-through basis pursuant to such fees and other terms and conditions as may be agreed between you and the Third Party Provider pursuant to a separate agreement. Oplign provides access and links to Third Party Services, and transmits information and data to Third Party Services, solely as a convenience to you and not as an endorsement by Oplign. You use such Third Party Services solely at your own risk. Oplign is not responsible for and makes no representations or warranties with respect to any Third Party Services, the actions of any Third Party Providers, or the handling of your information or data once Oplign transmits it pursuant to your instructions.
18. Customer Data and Customer Content.
You will have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness and copyright of all Customer Data and Customer Content. You hereby grant Oplign a non-exclusive license to (a) use, copy, modify, store, transmit and display Customer Data and Customer Content solely to the extent reasonably required to provide and maintain the Services for your use and (b) use, copy, modify, store, transmit and display non-personally identifiable Customer Data and Customer Content to analyze, improve, promote and operate the Services and other products and services of Oplign.
19. Confidential Information.
19.1 Non-Disclosure of Confidential Information.
The party receiving Confidential Information (the “Receiving Party”) shall not disclose Confidential Information to any third party without the prior written consent of the party disclosing such confidential information (the “Disclosing Party”) and shall restrict dissemination of Confidential Information within its own organization to those employees who have a need to have access to the Confidential Information. The Receiving Party agrees to protect Confidential Information by using at least the same degree of care as it would use to protect its own information of like importance, but in no case less than reasonable care. Each party shall take appropriate measures, and in no event less than reasonable measures, by instruction and agreement prior to disclosure to such employees to protect against unauthorized use or disclosure.
19.2 Exceptions to Confidential Information.
The obligations in Section 8.1 do not apply to Confidential Information which: (a) was rightfully in possession of or known to the Receiving Party without any obligation of confidentiality prior to receiving it from the Disclosing Party, as evidenced by the Receiving Party’s records; (b) is or becomes publicly available without breach of this Agreement by Receiving Party; (c) becomes known or available to Receiving Party from a source other than the Disclosing Party without a restriction on use or disclosure of such Confidential Information; (d) is independently developed by the Receiving Party without use of the Confidential Information; or (e) is required to be disclosed by the Receiving Party pursuant to an order issued by a court or other governmental authority, provided that the Receiving Party (i) provides the Disclosing Party prior written notice of such obligation so as to give the Disclosing Party a reasonable opportunity to oppose such disclosure or obtain a protective order, unless prohibited by law from doing so, and (ii) discloses Confidential Information only to the extent legally required.
19.3 Injunctive Relief.
The parties acknowledge that the unauthorized use or disclosure of Confidential Information may cause irreparable harm to the disclosing party. Accordingly, the parties agree that the disclosing party shall be entitled to seek equitable relief, including injunctive relief, in addition to all other remedies available at law for any threatened or actual breach of this Agreement with respect to Confidential Information.
Each party shall retain all right, title and interest to such party’s Confidential Information disclosed to the other party. Subject only to the Receiving Party’s limited use of the Confidential Information for the purpose set forth above, the Receiving Party acknowledges and agrees that nothing in this Agreement shall be construed as granting or implying any rights, license or otherwise, to any Confidential Information disclosed pursuant to this Agreement whether under any trademark, patent or copyright, or application of same which are now or thereafter may be obtained by such party. The Receiving Party shall not violate any of the Disclosing Party’s intellectual property or other rights in or to the Confidential Information.
20. Warranties, Warranty Disclaimers and Limitations on Oplign’s Liability.
Each party represents and warrants that it has the legal power and authority to enter into the Agreement. Customer represents and warrants that (a) it has neither falsely identified itself nor provided any false information to gain access to the Services, (b) its billing information is and at all times will be correct, and (c) it shall use and operate the Services in accordance with all laws that apply to its operations.
20.2 WARRANTY DISCLAIMERS.
(a) THE WARRANTIES EXPRESSLY STATED IN THIS SECTION ARE THE SOLE AND EXCLUSIVE WARRANTIES OFFERED BY OPLIGN. THE SERVICES ARE PROVIDED ON AN ‘AS IS’ BASIS WITHOUT ANY WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED. OPLIGN, TO THE FULLEST EXTENT PERMITTED BY LAW, DISCLAIMS ALL WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR PARTICULAR PURPOSE. (b) WITHOUT LIMITATION OF THE FOREGOING: (i) OPLIGN DOES NOT WARRANT THAT THE SERVICES WILL OPERATE UNINTERRUPTED OR ERROR-FREE OR THAT THE SERVICES ARE FREE OF COMPUTER VIRUSES OR OTHER HARMFUL MECHANISMS. OPLIGN DOES NOT WARRANT OR GUARANTEE THE PERFORMANCE, ACCESSIBILITY OR SPEED OF THE SERVICE. (ii) CUSTOMER ASSUMES ALL RESPONSIBILITY FOR DETERMINING WHETHER THE SERVICES OR THE INFORMATION GENERATED THEREBY IS ACCURATE OR SUFFICIENT FOR CUSTOMER’S PURPOSES. IN PARTICULAR, OPLIGN DOES NOT WARRANT THAT THE SERVICES (INCLUDING ANY REPORTS, FORMS, NOTICES, DISCLOSURES, DATA SETS OR OTHER ITEMS PROVIDED TO CUSTOMER THROUGH THE SERVICES) WILL SATISFY ANY LEGAL, REGULATORY, REPORTING, RECORD KEEPING, PRIVACY OR OTHER REQUIREMENTS THAT MAY BE APPLICABLE TO CUSTOMER OR CUSTOMER’S CLIENTS.(iii) OPLIGN DOES NOT WARRANT THAT THE SERVICES WILL MEET CUSTOMER’S EMPLOYMENT OBJECTIVES OR THAT THE SERVICES WILL RESULT IN CANDIDATES BEING HIRED, POSITIONS BEING FILLED OR EMPLOYEES BEING RETAINED. OPLIGN IS NOT RESPONSIBLE AND SHALL HAVE NO LIABILITY FOR ANY BUSINESS, EMPLOYMENT, HIRING AND/OR SALARY DECISIONS, FOR WHATEVER REASON MADE, MADE BY CUSTOMER OR CUSTOMER’S CLIENTS.
20.3 DAMAGE LIMITATIONS, ALLOCATIONS OF LIABILITY AND EQUITABLE RELIEF.
With the exception of the unauthorized use or disclosure of Confidential Information,
(a) IN NO EVENT SHALL OPLIGN (OR ANY OF ITS OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, SUBSIDIARIES, AFFILIATES, AGENTS, SUBCONTRACTORS, SUPPLIERS OR ADVERTISERS), BE LIABLE FOR ANY INDIRECT DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, LOST PROFITS, OR DAMAGES RESULTING FROM LOST DATA, LOST EMPLOYMENT OPPORTUNITY, OR BUSINESS INTERRUPTION) RESULTING FROM OR IN CONNECTION WITH SERVICES, WHETHER BASED ON WARRANTY, CONTRACT, TORT, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT OPLIGN IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. (b) BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OR LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE LIMITATIONS SET FORTH IN THE PRECEDING PARAGRAPH MAY NOT APPLY TO YOU. IF ANY SUCH LIMITATIONS ARE HELD INAPPLICABLE OR UNENFORCEABLE FOR ANY REASON, THEN OPLIGN’S MAXIMUM LIABILITY TO YOU FOR ANY INDIRECT DAMAGES SHALL BE LIMITED TO U.S. $200.00 IN THE AGGREGATE. (c) IN NO EVENT SHALL OPLIGN (OR ANY OF ITS OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, SUBSIDIARIES, AFFILIATES, SUBCONTRACTORS, SUPPLIERS, AGENTS OR ADVERTISERS), BE LIABLE FOR ANY DIRECT DAMAGES IN EXCESS IN THE AGGREGATE OF THE AMOUNTS ACTUALLY PAID BY YOU TO OPLIGN UNDER THIS AGREEMENT IN THE TWELVE MONTHS PRIOR TO THE EVENT GIVING RISE TO SUCH LIABILITY. (d) NOTWITHSTANDING THE FOREGOING, OPLIGN’S TOTAL EXPENDITURES WITH RESPECT TO ITS INDEMNIFICATION OBLIGATIONS UNDER SECTION 12.1 SHALL NOT EXCEED IN AN AMOUNT EQUAL THE AGGREGATE OF THE AMOUNTS ACTUALLY PAID BY YOU TO OPLIGN UNDER THIS AGREEMENT IN THE TWELVE MONTHS PRIOR TO THE CLAIM. (e) DUE TO THE NATURE OF THIS AGREEMENT, IN ADDITION TO MONEY DAMAGES, YOU AGREE THAT OPLIGN WILL BE ENTITLED TO SEEK EQUITABLE RELIEF UPON A BREACH OF THIS AGREEMENT BY YOU.
20.4 MODIFICATION OF SERVICES.
Oplign reserves the right at any time to modify, reconfigure or discontinue, temporarily or permanently, various components of the Service, or manner of Service access, with or without notice.
22.1 Indemnification by Oplign.
Oplign will, at its sole expense, defend, indemnify, and hold harmless Customer and its affiliates, successors and assigns (collectively, the “Customer Indemnified Parties”) from and against any and all damages, losses, costs and expenses (including any reasonable attorney’s fees and expenses), which the Customer Indemnified Parties pay to third parties to the extent arising out of any claim, suit, action, or proceeding brought against a Customer Indemnified Party alleging that the Services or Oplign Content, or use thereof in accordance with this Agreement, infringes the copyright, patent right, or trademark right, or misappropriates the trade secrets, of a third party. In case of such a claim, Oplign may, in its discretion, procure a license that will protect Customer against such claim without cost to Customer, modify or replace the Services to avoid such infringement, or if Oplign deems such remedies not practicable, Oplign may terminate the Services and the Agreement without fault, provided that in case of such a termination, Customer shall receive a pro-rata refund of the license fees prepaid for use of the Services not yet furnished as of the termination date. This Section states Customer’s sole and exclusive remedies, and Oplign’s sole and exclusive liability, for infringement or claims alleging infringement relating to the Services or Oplign Content.
22.2 Indemnification by Customer.
Customer will, at its sole expense, defend, indemnify, and hold harmless Oplign and its affiliates, successors and assigns (collectively, the “Oplign Indemnified Parties”) from and against any and all damages, losses, costs and expenses (including any reasonable attorney’s fees and expenses), which the Oplign Indemnified Parties pay to third parties in connection with any claim, suit, action, or proceeding brought against a Oplign Indemnified Party to the extent arising out of (a) any Users’ use of or inability to use the Services, (b) any hiring or employment-related claims arising from or in connection with your use of the Services or any Third Party Services or (c) an allegation that the Customer Data, Customer Content or other content, data or information supplied by Customer, or the use thereof in accordance with this Agreement, infringes the copyright, patent right, or trademark right, or misappropriates the trade secrets, of a third party.
22.3 Indemnification regarding Customer Data.
Customer will, at its sole expense, defend, indemnify, and hold harmless the Oplign Indemnified Parties from and against any and all damages, losses, costs and expenses arising from any third party subpoena, discovery request or compulsory legal order or process that seeks or requires Oplign to produce Customer Data and/or other Customer-related information or data, including, without limitation, prompt payment to Oplign of all costs reasonably incurred by Oplign as a result including, but not limited to, attorney fees, court costs, and Oplign’s staff time in responding to such third party subpoena or compulsory legal order or process at Oplign’s then applicable hourly rates.
22.4 Notice of Indemnification.
In case of any claim that is subject to indemnification under this Agreement, the party that is indemnified (“Indemnitee”) shall provide the indemnifying party (“Indemnitor”) reasonably prompt notice of the relevant claim. Indemnitor shall defend and/or settle, at its own expense, any demand, action, or suit on any claim subject to indemnification under the Agreement. Each party shall cooperate in good faith with the other to facilitate the defense of any such claim and shall tender the defense and settlement of any action or proceeding covered by this Section to the Indemnitor upon request. Claims may be settled without the consent of the Indemnitee, unless the settlement includes an admission of wrongdoing, fault or liability.
24. Certain Definitions.
The following definitions apply to this Agreement:
24.1 “Confidential Information” means all trade secrets and other nonpublic information obtained by a party under this Agreement that relates to the other party’s business or technology, including without limitation its products, customer lists, development and marketing plans, and financial information.
24.2 “Customer” means the company, organization or other legal entity that enters into this Agreement with Oplign.
24.3 “Customer Content” means images, text, logos, branding elements, and other content provided by Customer to be displayed in, incorporated into, or distributed through the Services for Customer, but excluding the Customer Data.
24.4 “Customer Data” means any documents, files, information or data stored or processed through use of the Services that concerns Customer’s business, job openings or recruiting practices, or any of Customer’s employees, recruiters, clients (if Customer is a recruiter) or Candidates. Customer Data includes, without limitation, names, addresses, telephone numbers, e-mail addresses, social security numbers, credit card transaction information, and any other personally identifiable information of Customer’s employees, recruiters, clients (if Customer is a recruiter) or Candidates. Customer Data does not include (a) information or data regarding usage or performance of the Services that are not linked to or associated with personally identifiable information or (b) information or data collected directly by Third Party Providers from you or any Users (as described in Section 5, below).
24.5 “Candidate” means any individual whose employment facts, employment data, cover letter, resume, job application, evaluations, or other related information is stored or processed through use of the Services.
24.6 “Oplign Content” means web pages, web forms, images, text, information, data and other content made available through the Services, other than the Customer Data and Customer Content.
24.8 “Services” means the Subscription Services as well as any Implementation Services, Training Services and other services as set forth in the Service Activation Agreement (if applicable).
24.9 “Subscription Services” means Oplign’s website and online services, including Oplign Content, as described herein and specified more fully in the Service Activation Agreement.
24.11 “User Account” means an account with Oplign through which a User can access and use the Services.