KMC SOFTWARE, INC. Terms AND CONDITIONS
Please read these Terms and Conditions ("Terms and Conditions
") carefully. These Terms and Conditions govern your relationship with KMC Software, Inc. (referred to as "KMC
," or "our
") and are the terms and conditions under which KMC makes the internet website at www.jobdreaming.com (the "Website
"), and the services available on the Website or otherwise provided by KMC (the "Services
"), available to each person or entity accessing or using the Website or the Services (referred to as "you
" or "your
These Terms and Conditions, together with any and all other terms, conditions, rules, policies, or procedures published on the Website ("Additional Terms
") from time to time (together, this "Agreement
"), each as updated from time to time by KMC, constitutes a binding, legal agreement between you and KMC.
By using the Website or the Services, you hereby agree to be bound by this Agreement. If you do not agree with all of the terms of this Agreement, do not use the Website or the Services or any information contained on the Website. KMC may make changes to the content and Services offered on the Website at any time and from time to time.
KMC may make changes to these Terms and Conditions at any time and from time to time. When changes are made, KMC will post updated Terms and Conditions on the Website. You should revisit these Terms and Conditions on a regular basis as revised versions will be binding on you. Any such changes will be effective upon our posting of new Terms and Conditions. You understand and agree that your continued access to or use of the Website or the Services after any posted changes to these Terms and Conditions indicates your acceptance of such changes.
You hereby warrant that if you are a corporation or other legal entity, you are validly formed and existing under the laws of your jurisdiction and you have duly authorized your agents or representatives to enter into this Agreement and, if an individual, you are of the age of majority in your place of residence.
1. Our Services.
The Services include, without limitation, an internet-based application that: (a) assists employers and recruiters (are referred to as "Employers
") in finding qualified people who are seeking jobs (referred to as "Candidates"); and (b) helps Candidates find jobs that match the position attributes they are looking for.
2. Employer Account and Subscription.
If you are an "Employer," this Section 2 applies to your access to and use of the Website and the Services (in addition to all of the other sections of this Agreement other than Section 3).
2.1. Employer Account. To use the Website and the Services, you shall create an account with us (an "Employer Account"). You shall provide only accurate, complete account information, and will keep that account information updated if it changes. You acknowledge and agree that: (a) your Employer Account is for your sole use; and (b) you are responsible for preventing any unauthorized use of your Employer Account.
2.2. Account Password/Security. In connection with creating your Employer Account, you shall provide your email address (also to be used as your user name) and choose a password, subject to our guidelines. You are solely responsible for maintaining the confidentiality of your user name and password and for any and all activities that occur under your Employer Account. You agree to notify us immediately of any unauthorized use of your Employer Account or any other breach of security. KMC shall not be liable for any loss that the you may incur or suffer as a result of a third party using your user name, password, or Employer Account, either with or without your knowledge. You acknowledge and agree that you may be held liable for losses incurred by us and/or another party due to a third party using your user name, password, or Employer Account.
2.3. Privacy. Our use of any information provided by you, including without limitation, Payment Information, is set forth in our
3. Candidate Account.
If you are a "Candidate," this Section 3 applies to your access to and use of the Website and the Services (in addition to all of the other sections of this Agreement other than Section 2).
3.1. Candidate Account. To use the Website and the Services, you shall create an account with us (a "Candidate Account"). You shall provide only accurate, complete account information, and will keep that account information updated if it changes. You acknowledge and agree that: (a) your Candidate Account is for your sole use; and (b) you are responsible for preventing any unauthorized use of your Candidate Account.
3.2. Account Password/Security. In connection with creating your Candidate Account, you shall provide your email address (also to be used as your user name) and choose a password, subject to our guidelines. You are solely responsible for maintaining the confidentiality of your user name and password and for any and all activities that occur under your Candidate Account. You agree to notify us immediately of any unauthorized use of your Candidate Account or any other breach of security. KMC shall not be liable for any loss that you may incur or suffer as a result of a third party using your user name, password, or Candidate Account, either with or without your knowledge. You acknowledge and agree that you may be held liable for losses incurred by us and/or another party due to a third party using your user name, password, or Candidate Account.
4.1. You acknowledge and agree that: (a) all information, data, or other materials communicated or transmitted using the Website or the Services ("Content"), whether publicly posted or privately transmitted, are the sole responsibility of the person from whom such Content originated; (b) you, and not us, are responsible for all Content that you upload, post, email, distribute, communicate, transmit, or otherwise make available using the Website or the Services or that is otherwise made available through the use of your account (whether an Employer Account or Candidate Account), whether or not authorized by you; (c) you shall not revise Content posted by others; and (d) you access and use the Website and the Services at your own risk and, by using the Website and the Services, acknowledge that you may be exposed to Content that is unlawful, harmful, threatening, abusive, harassing, tortuous, defamatory, libelous, vulgar, obscene, offensive, indecent, invasive of another's privacy, hateful, or racially, ethnically, or otherwise objectionable.
4.2. You further acknowledge and agree that we do not control the Content originating from any user of the Website and the Services, and do not guarantee the accuracy, integrity, or quality of such Content. Notwithstanding the foregoing, we may review all Content and may block, modify, terminate access to, or remove any such Content that we, in our sole discretion, believe does not comply with any of the requirements of this Agreement; however, we are not obligated to do so.
4.3. We reserve the right to purge Content from the Website at any time and from time to time without notice. You acknowledge and agree that you are solely responsible for backing up any Content that you upload to the Website or that you receive through the use of the Services. We shall not be liable for any purging, deletion, or failure to retain any such Content.
4.4. We may disable your account (whether an Employer Account or a Candidate Account) and your access to or use of the Website and/or the Services and we may recover from you any losses, damages, costs, or expenses incurred by us resulting from or arising out of your non-compliance with any provision of this Agreement.
In connection with your use of the Website and the Services, and without limiting any of your other obligations under this Agreement or applicable law, you:
(a) shall comply with: (i) this Agreement, including any and all other policies as published on the Website from time to time; (ii) all applicable federal, state, local, and international laws, including the CAN-SPAM Act of 2003, and all other laws related to unsolicited commercial email messages, defamation, privacy, obscenity, intellectual property, or child protective email address registries; (iii) all other rules or regulations applicable to you, including regulations promulgated by the U.S. Securities and Exchange Commission and similar regulatory authorities throughout the world, and the rules of any securities exchange; and (iv) all privacy policies or similar policies or procedures to which you may be bound that are related to your use of the Services;
(b) shall not upload, post, email, distribute, communicate, transmit, or otherwise make available any Content: (i) that is unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, libelous, vulgar, obscene, offensive, indecent, invasive of another's privacy, hateful, or racially, ethnically, or otherwise objectionable; (ii) that infringes any patent, trademark, trade secret, copyright, or other intellectual property right of any party; (iii) that violates the privacy, publicity, or other rights of any party; (iv) that you do not have the right to make available by reason of any law or contractual or fiduciary relationship (including inside information, and proprietary or confidential information obtained or disclosed in connection with an employment relationship or pursuant to a confidentiality agreement); or (v) that comprises or includes any "junk mail," "spam," "chain letters," "pyramid schemes," or any similar form of solicitation;
(c) shall not conduct or promote any illegal activities while using the Website or the Services;
(d) shall not upload, distribute, or print anything that may be harmful to minors or otherwise use the Website or the Services to harm minors in any way;
(e) shall not use the Website or Services to generate unsolicited email advertisements or spam;
(f) shall not impersonate any other person or entity, or falsely state or otherwise misrepresent your affiliation with any other person or entity;
(g) shall not attempt to damage, deny service to, hack, crack, reverse engineer, or otherwise interfere with or jeopardize the Website or the Services in any manner, or otherwise attempt to derive the source code of the software (including the tools, methods, processes, and infrastructure) that enables or underlies the Website;
(h) shall not attempt to gain access to secured portions of the Website to which you do not possess access rights;
(i) shall not interfere with or disrupt the Website or the Services or servers or networks connected to the Website or the Service, or disobey any requirements, procedures, policies, or regulations of networks connected to the Website or the Services;
(j) shall not use any automatic or manual process to search or harvest information from the Website or Services, or to interfere in any way with the proper functioning of the Website and the Services; and
(k) shall not upload, post, email, distribute, communicate, transmit, or otherwise make available any viruses or similar malicious software that may damage the operation of a computer, the Website, or the Services.
You further acknowledge and agree that we may cooperate with any governmental authority in connection with any investigation into your use of the Website or the Services, including use in contravention of applicable laws, and may disclose any Content, and any other information pertaining to you or to your use of the Website or the Services, to such governmental authority in connection with any such investigation.
6. Non-Confidentiality and Security.
You understand that information that you submit to us is submitted precisely for the purpose of public disclosure in a variety of media and channels, and therefore such information is not subject to any confidentiality obligation. We will use reasonable efforts to maintain the security and integrity of information you provide to us. However, you acknowledge and agree that we cannot fully eliminate security risks and cannot guarantee that unauthorized access to your information will never occur.
You shall indemnify, defend, and hold harmless us, our affiliates, and our and their respective directors, officers, employees, agents, and representatives, from and against all claims, demands, damages, liabilities, and costs (including attorneys' fees on a full indemnity basis) arising out of or in connection with: (a) your use of the Website or the Services or any Content that you post to the Website, including your use of or reliance on any information or materials obtained through the use of the Website or the Services; (b) any other use of the Services by a third party using your account (whether or not authorized by you); (c) your breach of this Agreement, including any of your representations and warranties under this Agreement; or (d) your contravention of any applicable law.
This Agreement will automatically terminate, without notice or liability, in the event that you violate any of the terms and conditions set forth in this Agreement. In the event of any termination, you will immediately cease access to the Website, and you agree to promptly pay any outstanding Subscription Fees owed under this Agreement (if applicable).
9. Provisions of the Website and the Services.
9.1. We reserve the right at any time and from time to time to modify, suspend, or discontinue, temporarily or permanently, the Services or any part thereof, or your access thereto, and to modify, suspend, or delete the Website or any part thereof, with or without notice. You acknowledge and agree that we shall not be liable to you or to any third party for any modification, suspension, or discontinuance of the Services or any modification, suspension, or deletion of the Website.
9.2. WE HAVE NO CONTROL OVER, AND MAKE NO REPRESENTATIONS OR WARRANTIES REGARDING, THE QUALITY, TRUTH, ACCURACY, OR LEGALITY OF THE CONTENT POSTED BY USERS OF THE WEBSITE AND THE SERVICES. YOU ACKNOWLEDGE AND AGREE THAT THE WEBSITE AND THE SERVICES ARE PROVIDED ON A "AS IS," "WHERE IS," "AS AVAILABLE," AND "WITH ALL FAULTS" BASIS WITHOUT ANY WARRANTIES OF ANY KIND, AND YOUR ACCESS TO AND/OR USE OF WEBSITE AND THE SERVICES IS AT YOUR SOLE RISK.
9.3. WE MAKE NO REPRESENTATIONS OR WARRANTIES REGARDING THE ACCURACY, SUITABILITY, RELIABILITY, COMPLETENESS, AVAILABILITY, QUALITY, TIMELINESS, LACK OF VIRUSES OR OTHER HARMFUL COMPONENTS OF THE WEBSITE OR THE SERVICES, OR THAT PROBLEMS WILL BE CORRECTED.
9.4. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, WE, OUR AFFILIATES, AND OUR AND THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, AND REPRESENTATIVES HEREBY EXPRESSLY DISCLAIM ALL REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, ORAL OR WRITTEN, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, TITLE, QUIET ENJOYMENT, AND SYSTEM INTEGRATION.
9.5. WE MAKE NO REPRESENTATION OR WARRANTY THAT ANY OF THE SERVICES WILL MEET YOUR REQUIREMENTS OR THAT THE SERVICES WILL BE UNINTERRUPTED, TIMELY, OR ERROR-FREE; NOR DO WE MAKE ANY REPRESENTATION OR WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES.
9.6. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM US THROUGH THE WEBSITE, SERVICES, OR OTHERWISE WILL CREATE ANY WARRANTY, REPRESENTATION, OR GUARANTEE NOT EXPRESSLY STATED IN THIS AGREEMENT. WE, OUR AFFILIATES, AND OUR AND THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, AND REPRESENTATIVES DO NOT MAKE ANY REPRESENTATIONS OR WARRANTIES ABOUT PROTECTION OF YOUR DATA NOR GUARANTEE DATA AVAILABILITY WHATSOEVER. YOU BEAR THE SOLE RESPONSIBILITY AND LIABILITY FOR MAINTAINING BACKUP OR ARCHIVE COPIES OF YOUR DATA AND/OR SUBMISSIONS TO THE WEBSITE.
9.7. WE ARE NOT AN EMPLOYMENT AGENCY OR A RECRUITING FIRM, AND MAKE NO REPRESENTATIONS OR GUARANTEES REGARDING THE EFFECTIVENESS OR TIMELINESS OF THE WEBSITE OR THE SERVICE IN MEETING YOUR OBJECTIVES. WE DO NOT GUARANTEE ANY RESULTS, AND ARE NOT RESPONSIBLE FOR ANY EMPLOYMENT DECISIONS.
9.8. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES AND CONDITIONS, SO SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU.
9.9. If you are located in a country embargoed by the United States, or are on the U.S Treasury Department's list of Specially Designated Nationals, you are not permitted to use the services provided by us.
10. LIMITATIONS AND EXCLUSIONS OF LIABILITY.
10.1. IN NO EVENT SHALL WE, OUR AFFILIATES, OR OUR OR THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, OR REPRESENTATIVES BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING DAMAGES FOR LOST PROFITS, LOSS OF USE OR DATA, OR COSTS OF COVER, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS AGREEMENT, WHETHER BASED ON CONTRACT, TORT, STRICT LIABILITY, OR ANY OTHER LEGAL THEORY, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
10.2. IF YOU ARE DISSATISFIED WITH ANY PORTION OF THE WEBSITE OR THE SERVICES, YOUR SOLE AND EXCLUSIVE REMEDY IS TO TERMINATE THIS AGREEMENT AND DISCONTINUE USING THE WEBSITE AND THE SERVICES.
10.3. IN THE EVENT THAT, NOTWITHSTANDING THE FOREGOING EXCLUSIONS OF LIABILITY, WE, ANY OF OUR AFFILIATES, OR ANY OF OUR OR THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, OR REPRESENTATIVES IS LIABLE TO YOU FOR ANY AMOUNTS UNDER THIS AGREEMENT UNDER ANY THEORY OF RECOVERY, WHETHER BASED ON CONTRACT, TORT, STRICT LIABILITY, OR OTHERWISE, OUR (OR SUCH AFFILIATES', DIRECTOR'S, OFFICER'S, EMPLOYEE'S, AGENT'S, OR REPRESENTATIVE'S, AS APPLICABLE) TOTAL LIABILITY IN RESPECT OF SUCH AMOUNTS SHALL NOT EXCEED THE GREATER OF:
(a) THE AMOUNT OF ONE HUNDRED DOLLARS ($100.00), AND
(b) THE AMOUNTS ACTUALLY RECEIVED BY US FROM YOU UNDER THIS AGREEMENT.
10.4. YOU ACKNOWLEDGE AND AGREE THAT WITHOUT THE FOREGOING EXCLUSIONS AND LIMITATIONS OF LIABILITY, WE WOULD NOT BE ABLE TO OFFER THE WEBSITE OR THE SERVICES, AND THAT SUCH EXCLUSIONS AND LIMITATIONS OF LIABILITY SHALL APPLY, EVEN IF THEY WOULD CAUSE YOUR REMEDIES UNDER THIS AGREEMENT TO FAIL OF THEIR ESSENTIAL PURPOSE. Notwithstanding the foregoing, some jurisdictions do not allow the exclusion or limitation of liability for incidental or consequential damages in certain circumstances, and so the foregoing limitation and exclusions may not apply to you to that extent.
11. Intellectual Property Rights.
The Website and the Services and all information and screens appearing on the Website, including documents, services, site design, text, graphics, logos, images, and icons, as well as the arrangement thereof, are the sole property of KMC Software, Inc. or its third party licensors. Except as otherwise required or limited by applicable law, any reproduction, distribution, modification, retransmission, or publication of any copyrighted material is strictly prohibited without the express written consent of the copyright owner or license. We reserve all rights in the Website and the Services that are not expressly granted. Trademarks, names, and logos on the Website are the property of their respective owners. Nothing in this Agreement shall be deemed to assign or transfer to you any rights to any such intellectual property. You further acknowledge and agree that Content made available to you through the Services may be subject to the intellectual property rights of third parties.
As between you and us, you retain any intellectual property rights in any copyrighted materials and trademarks that are contained in Content that you post to the Website. You grant us a non-exclusive, royalty-free, fully paid, worldwide license, under any and all of your intellectual property rights related to that Content, to the extent necessary for us to provide the Services. You also authorize us to sublicense those rights to our contractors who help us provide the Services.
13.1. Relationship of the Parties. You and KMC are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between us.
13.2. Force Majeure. Neither party will be responsible for any delay, interruption, or other failure to perform under this Agreement due to acts beyond its reasonable control, but only for so long as such conditions persist. Force majeure events include, without limitation, natural disasters (e.g., lightning, earthquakes, hurricanes, floods, etc.); wars, riots, terrorist activities, and civil commotions; activities of local exchange carriers, telephone carriers, internet service providers, and other third parties; explosions and fires; embargoes, strikes, and labor disputes; governmental decrees; and any other cause.
13.3. No Third Party Beneficiaries. No person or entity not a party to this Agreement will be deemed to be a third party beneficiary of this Agreement or any provision hereof.
13.4. Third Parties Websites. We may provide references, frames, or hyperlinks to internet websites maintained by third parties. We do not warrant that we have reviewed such third party websites and make no claims, representations, or warranties regarding such third party websites or the contents of the same. We are not responsible for, nor do we endorse or recommend, any products or services provided by such third parties through such third party websites or by any other means.
13.5. Legal Obligations. You acknowledge and agree that you, and not us, are responsible for determining which laws may apply to your use of the Website and the Services and assessing your obligations under such laws.
13.6. Notices. All notices and other communications required or permitted to be given by us to you under this Agreement will be deemed to be properly given on the date when:
(a) posted on the Website;
(b) sent by email to the email address for you last recorded by us; or
(c) sent by postal mail to the postal address for you last recorded by us.
You may give notices to us under this Agreement by email to email@example.com.
13.7. Entire Agreement. This Agreement sets forth the entire agreement and understanding of the parties relating to the subject matter hereof and supersedes all prior and contemporaneous oral and written agreements and understandings with respect to the same. No waiver or amendment of any term or condition of this Agreement shall be valid or binding on either party unless agreed to in writing by both parties.
13.8. Governing Law. This Agreement shall be governed by the laws of the state of Florida, without reference to its conflicts of law rules, and the parties hereby submit to the exclusive jurisdiction and venue of the courts of that state.
13.9. Assignment. You may not assign this Agreement without our prior written consent, which may be withheld in our sole discretion. We may assign this Agreement at any time without notice to or consent from you.
13.10. No Waiver. Our failure to enforce any right or provision of this Agreement shall not constitute a waiver of that provision or of any other provision of this Agreement.
13.11. Severability. If any provision of this Agreement is declared by a court of competent jurisdiction to be invalid, illegal, or unenforceable, such provision shall be severed from this Agreement and the other provisions shall remain in full force and effect. To the extent a provision is deemed invalid, illegal, or unenforceable, the parties agree to comply with the remaining terms of this Agreement in a manner consistent with the original intent of the Agreement.
13.12. References. Pronouns contained in this Agreement shall apply equally to the feminine, neuter, and masculine genders. The singular shall include the plural, and the plural shall include the singular. The use of the terms "includes" and "including", and similar terms, shall be deemed not to limit what else might be included.
13.13. Captions and Headings. Captions and headings are used herein for convenience only, are not a part of this Agreement, and shall not be used in interpreting or construing this Agreement.
13.14. Beta version. The terms of this subsection 13.14 shall only apply to you with respect to any "Beta" version of any of the Services (the "Beta Services") made available to you for purposes of evaluation and feedback and not for production or commercial use. You acknowledge that the Beta Service(s) you are evaluating may contain bugs, errors, and other problems and is provided to you "as-is." Therefore, to the extent permitted by applicable law, we disclaim any warranty, condition, and/or liability obligations to you of any kind with respect to the Beta Services. You further acknowledge the importance of communication between us and you during your use of the Beta Services and participation in our Beta program and hereby agree to receive related correspondence and updates from us. In the event you request to opt-out from such communications, your participation in our Beta Services program will be canceled. You also hereby acknowledge that we have not made any representations, promises, or guarantees that the Beta Services will ever be announced or made available to anyone in the future and that we have no express or implied obligation to you to announce or introduce the Beta Services. During our Beta Services program, you will be asked to provide feedback regarding your use of the Beta Service(s) and you hereby grants to us a perpetual, royalty-free worldwide license to use, disclose, and/or incorporate such feedback into any of our products or services (including the Beta Services) at any time at our sole discretion. With respect to the Beta Services, this subsection shall supersede any other terms and conditions contained herein, but only to the extent necessary to resolve conflict.