November 27, 2013
PLEASE READ THE FOLLOWING TERMS OF SERVICE (THE “TERMS OF SERVICE” OR THE “AGREEMENT”) CAREFULLY; IT IS A BINDING LEGAL AGREEMENT. BY USING THE SERVICE, YOU AGREE TO BE LEGALLY BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT, THEN YOU MAY NOT ACCESS OR USE REFERAGIG.COM (THE “SITE”) OR THE SERVICES AVAILABLE THROUGH THE SITE (THE “SERVICE”), WHICH IS A SERVICE OF Makena Partners LLC, LLC (“Makena Partners LLC”). Makena Partners LLC GRANTING YOU PERMISSION TO USE THIS WEBSITE IS EXPRESSLY CONDITIONED UPON YOUR ASSENT TO ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT, TO THE EXCLUSION OF ALL OTHER TERMS.
Makena Partners LLC (which does business as “Referagig”) is offering the Service solely for use by the person or entity in whose name an account is registered through the Site (the “Subscriber” or “you”) and not for the use or benefit of any third party. Makena Partners LLC may change, suspend or discontinue the Service at any time, including the availability of any feature, database, or content. Makena Partners LLC may also impose limits on certain features of the Service or restrict Subscriber’s access to parts or all of the Service without notice or liability. Makena Partners LLC reserves the right, at its discretion, to modify this Agreement at any time by posting a notice on the Site, or by sending Subscriber a notice via e-mail, and you consent to receipt of such notice. Subscriber shall be responsible for reviewing and becoming familiar with any such modifications. Use of the Service by Subscriber following such notification constitutes Subscriber’s acceptance of the terms and conditions of this Agreement as modified. Any new features that augment or enhance the current Service, including the release of new tools and resources, shall be subject to this Agreement.
1. ACCESS TO THE SERVICE
Makena Partners LLC will use reasonable efforts to ensure that the Service is available twenty-four hours a day, seven days a week. However, there will be occasions when the Service will be interrupted for maintenance, upgrades and emergency repairs or due to failure of telecommunications links and equipment. Every reasonable step will be taken by Makena Partners LLC to minimize such disruption where it is within Makena Partners LLC’ reasonable control. YOU AGREE THAT Makena Partners LLC WILL NOT BE LIABLE IN ANY EVENT TO YOU OR ANY OTHER PARTY FOR ANY SUSPENSION, MODIFICATION, DISCONTINUANCE OR LACK OF AVAILABILITY OF THE SERVICE OR OTHER CONTENT. Makena Partners LLC retains the right to create limits on use and storage with respect to the Service in its sole discretion at any time with or without notice.
Subscriber certifies to Makena Partners LLC that if Subscriber is an individual (i.e., not an entity) Subscriber is at least 18 years of age. Subscriber also certifies that it is legally permitted to use the Service, and takes full responsibility for the selection and use of the Service. This Agreement is void where prohibited by law, and the right to use the Service is revoked in such jurisdictions. Makena Partners LLC makes no claim that the Service may be lawfully used or that Content (as defined hereafter) may be uploaded or downloaded outside of the United States. Access to Content may not be legal by certain persons or in certain countries. If you use the Service from outside the United States, you do so at your own risk and you are responsible for compliance with the laws of your jurisdiction. Subscriber shall be responsible for obtaining and maintaining any equipment or ancillary services needed to connect to and use the Service, including, without limitation, modems, hardware, software, and long distance or local telephone service. Subscriber shall be responsible for ensuring that such equipment or ancillary services are compatible with the Service.
2. GENERAL TERMS
You are responsible for all Subscriber Content (as defined hereafter) posted and activity that occurs through or under your account (even when Subscriber Content is posted by others). Any fraudulent, abusive or authorized activity may be grounds for termination of Subscriber’s right to Service or to access the Site and may be grounds for potential liability against Subscriber. Subscriber may not post or transmit, or cause to be posted or transmitted, any communication or solicitation designed or intended to obtain password, account, or private information from any other user. Subscriber shall not share his or her password with any other person or entity; violation of this provision will be a material breach of this Agreement and may result in immediate cancellation of the Subscriber’s account. Subscriber agrees to notify Makena Partners LLC immediately of any actual or suspected loss, theft, or unauthorized use of Subscriber’s account or password. Failure to do so shall constitute a material breach of this Agreement, which may result in immediate termination of Subscriber’s account.
You may not resell the Service to any third party as a private label or with the inclusion of a mark-up fee without the expressed written consent of Makena Partners LLC Violation of any of the terms of this Agreement may result in the termination of your account and your access to the Service. While Makena Partners LLC prohibits certain conduct and content on the Service, you understand and agree that Makena Partners LLC cannot be responsible for the Subscriber Content posted on the Service and you nonetheless may be exposed to such materials, which you may find objectionable. You agree to use the Service at your own risk. Makena Partners LLC reserves the right to refuse Service to anyone, or cancel an account, for any reason at any time.
4. QUALITY OF SERVICE & GENERAL CONDITIONS
While Makena Partners LLC will work to respond to all incoming support requests within 24 hours, there is no agreement to respond within a certain period of time.
You understand that Makena Partners LLC uses third party vendors (hereinafter referred to as the “Vendors”) and hosting partners to provide the necessary hardware, software, networking, storage, to run the service.
5. WARRANTY DISCLAIMER
Subscriber acknowledges that Makena Partners LLC has no control over, and no duty to take any action regarding: which Content (as defined hereafter) Subscriber accesses via the Site; what effects the Content may have on Subscriber; how Subscriber may interpret or use the Content; or what actions Subscriber may take as a result of having been exposed to the Content. Subscriber releases Makena Partners LLC from any and all liability for Subscriber having acquired, used, relied on, acted upon (or not acquired) Content obtained or obtainable through the Site. Makena Partners LLC makes no representations or warranties concerning any content contained in or accessed through the Site, and Makena Partners LLC will not be responsible or liable for the accuracy, completeness, copyright compliance or legality of material or Content contained in or accessed through the Site.
THE SERVICES, CONTENT AND SITE ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT. Makena Partners LLC MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND WITH RESPECT TO THE SITE OR THE SERVICES, INCLUDING ANY REPRESENTATION OR WARRANTY THAT THE USE OF THE SITE OR SERVICES WILL (A) BE TIMELY, UNINTERRUPTED, SECURE OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA, (B) MEET YOUR REQUIREMENTS OR EXPECTATIONS, (C) BE FREE FROM ERRORS OR THAT DEFECTS WILL BE CORRECTED, (D) BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS (E) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE WILL BE ACCURATE OR RELIABLE; AND (F) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR EXPECTATIONS.
TO THE FULLEST EXTENT ALLOWED BY LAW, Makena Partners LLC DISCLAIMS ANY LIABILITY OR RESPONSIBILITY FOR THE ACCURACY, RELIABILITY, AVAILABILITY, COMPLETENESS, LEGALITY OR OPERABILITY OF THE CONTENT, MATERIAL AND/OR SERVICES PROVIDED ON THIS SITE. BY USING THIS SITE, YOU ACKNOWLEDGE THAT Makena Partners LLC IS NOT RESPONSIBLE OR LIABLE FOR ANY HARM RESULTING FROM (1) USE OF THE SITE; (2) THE TEMPORARY OR PERMANENT INABILITY TO ACCESS OR RETRIEVE ANY CONTENT FROM THE SITE AND (3) DOWNLOADING INFORMATION CONTAINED ON THE SITE; INCLUDING, WITHOUT LIMITATION, HARM CAUSED BY VIRUSES, WORMS, TROJAN HORSES, OR ANY SIMILAR CONTAMINATION OR DESTRUCTIVE PROGRAM.
THE LIMITATIONS SPECIFIED IN THIS SECTION WILL SURVIVE TERMINATION OR EXPIRATION OF THIS AGREEMENT. SOME STATES DO NOT ALLOW LIMITATIONS RELATING TO IMPLIED WARRANTIES, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO SUBSCRIBER.
6. LIMITATION OF LIABILITY
You expressly understand and agree that Makena Partners LLC and its directors, officers, employees, agents and members shall not be liable for any direct, indirect, incidental, special, consequential, punitive or exemplary damages, including but not limited to, damages for loss of profits, goodwill, use, data or other intangible losses (even if Makena Partners LLC has been advised of the possibility of such damages), whether sounding in contract, tort, strict liability, warranty or other legal or equitable theory, resulting from: (i) the use or the inability to use the Service; (ii) the cost of procurement of substitute goods and services resulting from any goods, data, information or services purchased or obtained or messages received or transactions entered into through or from the Service; (iii) unauthorized access to or alteration of your transmissions or data; (iv) statements or conduct of any third party on the Service; (v) for any amounts that exceed the fees paid by you to Makena Partners LLC under this Agreement during the six (6) month period prior to the occurrence giving rise to your claim or cause of action against Makena Partners LLC; (vi) or any other matter arising out of or relating to the Service or your use thereof (including but not limited to security breaches relating to data stored in connection with the Service). Some states do not allow the exclusion or limitation of incidental or consequential damages, so the above limitations and exclusions may not apply to Subscriber. The limitations specified in this Section will survive termination or expiration of this Agreement and apply even if any limited remedy specified in this Agreement is found to have failed of its essential purpose.
You agree to indemnify and hold harmless Makena Partners LLC, its contractors, and licensors, and their respective directors, officers, employees, members, shareholders and agents from and against any and all claims, liabilities, losses, actions, causes of action, demands, costs and expenses, including but not limited to attorneys’ fees, arising out of your use of the Service (or any third party using Subscriber’s account), your violation of this Agreement, or infringement of any intellectual property or other right of any person or entity in connection with the Service or your use thereof. The terms specified in this Section will survive termination or expiration of this Agreement.
8. MODIFICATION TO SERVICE
Makena Partners LLC reserves the right at any time or periodically to modify the Service (or any part thereof) with or without notice.
9. SUBSCRIBER DATA
If the Subscriber adds Subscriber Data to the website, such Subscriber Data and any kind of processing of such Subscriber Data must be in compliance with the Agreement, best practices at the Web Site and applicable law.
All rights, title and interest in and to the Subscriber Data belong to the Subscriber or third persons (including Users, Persons and Organizations).
Subscriber Data includes all employee information, candidate information, and all associated data to any user of the website on behalf of the subscriber. Makena Partners LLC has no legal right to share, sell, or re-use (for purposes other than those directly related to Subscriber) this data without express written permission from Subscriber.
Subscriber must assure that:
the Subscriber and any of the Users associated with the Account do not create, transmit, display or make otherwise available any Subscriber Data that violates the rights of Makena Partners LLC, other Subscribers or Users, Persons or Organizations or is harmful (for example viruses, worms and other destructive codes), offensive, threatening, abusive, harassing, tortuous, defamatory, vulgar, pornographic, obscene, invasive of another’s privacy, defamatory, hateful or otherwise unlawful;
Subscriber and all of the Users associated with the Account have the necessary rights to use the Subscriber Data, including to insert it into the Website and process it by means of the Account;
Makena Partners LLC is allowed to further process the Subscriber Data, acting as an authorized processor of Subscriber Data on behalf of Subscriber for the purposes of performing under the Agreement.
You retain all your ownership rights in your Subscriber Data, whether posted and/or uploaded by you or made available on or through the website by the Makena Partners LLC. Makena Partners LLC does not guarantee any accuracy or confidentiality with respect to any information contained in any Subscriber Data, and strongly recommends that you think carefully about what you transmit, submit or post to or through the website. You understand that all information contained in Subscriber Data is the sole responsibility of the person from whom such Subscriber Data originated. This means that you, and not Makena Partners LLC, are entirely responsible for all Subscriber Data that you upload, post, transmit, or otherwise make available through the website, as well as for any actions taken by Makena Partners LLC or other Subscribers or Users as a result of such Subscriber Data.
You understand that the Makena Partners LLC cannot, and does not, review all Subscriber Data and do not endorse any Subscriber Data.
Makena Partners LLC is not obliged, in its own initiative, to pre-screen, monitor or filter any Subscriber Data or acts of its processing by the Subscriber in order to discover any unlawful nature therein. However, if such unlawful Subscriber Data or the action of its unlawful processing is discovered or brought to the attention of Makena Partners LLC or if there is reason to believe that certain Subscriber Data is unlawful, Makena Partners LLC has the right to:
notify the Subscriber of such unlawful Subscriber Data;
deny its publication on the Web Site or its insertion to the System;
demand that the Subscriber brought the unlawful Subscriber Data into compliance with the Agreement, best practices at the Web Site or applicable law;
temporarily or permanently remove the unlawful Subscriber Data from the Web Site or Account, restrict access to it or delete it.
If Makena Partners LLC is presented convincing evidence that the Subscriber Data is not unlawful, Makena Partners LLC may, at its sole discretion, restore such Subscriber Data, which was removed from the Web Site or Account or access to which was restricted.
10. COPYRIGHT AND CONTENT OWNERSHIP
The Site and its contents are intended solely for the use of Makena Partners LLC’s Subscribers and may only be used in accordance with the terms of this Agreement. All materials displayed on the Site, including, but not limited to text, data, information, graphics, logos, tools, photographs, images, illustrations, audio, video and animations (“Site Content”) are the property of Makena Partners LLC and/or third parties and are protected by United States and international copyright laws. All trademarks, service marks, and trade names are proprietary to Makena Partners LLC and/or third parties. Subscriber shall abide by all copyright notices, information, and restrictions contained in any Content accessed through the Service.
The Site is protected by copyright pursuant to U.S. copyright laws, international conventions, and other copyright laws. Except as explicitly permitted in the next paragraph of this Agreement, Subscriber may not copy, modify, publish, transmit, upload, participate in the transfer or sale of, reproduce, create derivative works based on, distribute, perform, display, or in any way exploit, any of the Site Content, software, materials, or Service in whole or in part.
Subscriber may download or copy the Site Content for his, her or its individual use only and not for any other person or entity, and provided that Subscriber maintains all copyright and other notices contained in such Site Content. Subscriber may not make multiple copies of the Site Content or otherwise distribute or transmit such Site Content to any other person or entity.
All data and documents uploaded to your account by you, another user within your account, or an applicant, can be retrieved by you through the provided user interface or application programming interface (API).
The Site, including but not limited to the look and feel of the Service, is copyright © 2013 Makena Partners LLC, LLC. All rights reserved. You may not duplicate, copy, or reuse any portion of the HTML/CSS or visual design elements without express written permission from Makena Partners LLC. In cases in which such permission is given, all copyright and “powered by” notices, images and texts (“notices”) in rendered pages and outgoing emails must be present. The location of the notice on the page may be altered so long as the notice remains clearly visible.
11. PROMOTIONS AND MARKETING
Unless expressly prohibited in writing or electronically by you, you agree that Makena Partners LLC can use your brand identity, organization or company name and mention your usage of this Service in press releases, interviews, promotional materials, sales sheets, presentations, websites and other self-promotional channels. You also agree that a “powered by Referagig” graphic or text link can be included with your job listings unless you choose to disable or hide this fact. Any promotions or discounts are valid for services to which the promotion or discount was originally applied; subsequent upgrades or add-on services are not guaranteed any promotions or discounts.
13. ELECTRONIC DELIVERY POLICY
You agree that we may provide to you required notices, agreements and other information concerning the Service electronically. While refunds will be handled promptly when warranted, by using the Service you also agree that Makena Partners LLC is not responsible for valid charges incurred as the result of failed electronic delivery of email messages to the address you provide, either by the fault of Makena Partners LLC or another third party.
14. RESOLUTION OF DISPUTES
Any disputes arising out of the use of the Service shall be governed by the laws of Washington, without regard to any conflict of laws principles, and any proceedings shall solely be brought in the state and federal courts located in Seattle, Washington. You consent to the exclusive jurisdiction of and venue in such courts. You also acknowledge and agree that the venue provided for herein is the most convenient forum for both you and Makena Partners LLC and waive any objection to jurisdiction and/or venue and any objection based on a more convenient forum in any action between you and Makena Partners LLC (and/or its officers, directors, employees, members and agents) and/or otherwise in connection with the Service.