These JobWise Terms and Conditions, together with the Registration Form which is incorporated herein by reference (collectively, the “Agreement”), are a binding agreement by and between JobWise Ventures, Inc., a Delaware corporation (“JobWise”) and the user named on the Registration Form (“User” or “you”).
THIS AGREEMENT STATES THE TERMS AND CONDITIONS UNDER WHICH USER MAY USE THE JOBWISE SOFTWARE PLATFORM AND ANY RELATED SERVICES (THE “SERVICES”). IF YOU DO NOT ACCEPT THIS AGREEMENT, YOU MAY NOT USE THE SERVICES.
JobWise shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services and shall perform the Implementation Services in a professional and workmanlike manner. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by JobWise or by third-party providers, or because of other causes beyond JobWise’s reasonable control, but JobWise shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. HOWEVER, JOBWISE DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES AND IMPLEMENTATION SERVICES ARE PROVIDED “AS IS” AND JOBWISE DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
JobWise Indemnification. JobWise shall hold User harmless from liability to third parties resulting from infringement by the Service of any United States patent or any copyright or misappropriation of any trade secret, provided JobWise is promptly notified of any and all threats, claims and proceedings related thereto and given reasonable assistance and the opportunity to assume sole control over defense and settlement; JobWise will not be responsible for any settlement it does not approve in writing. The foregoing obligations do not apply with respect to portions or components of the Service (i) not supplied by JobWise, (ii) made in whole or in part in accordance with User specifications, (iii) that are modified after delivery by JobWise, (iv) combined with other products, processes or materials where the alleged infringement relates to such combination, (v) where User continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) where User’s use of the Service is not strictly in accordance with this Agreement. If, due to a claim of infringement, the Services are held by a court of competent jurisdiction to be or are believed by JobWise to be infringing, JobWise may, at its option and expense (a) replace or modify the Service to be non-infringing provided that such modification or replacement contains substantially similar features and functionality, (b) obtain for User a license to continue using the Service, or (c) if neither of the foregoing is commercially practicable, terminate this Agreement and User’s rights hereunder and provide User a refund of any prepaid, unused fees for the Service.
User Indemnification. User shall indemnify, hold harmless, and, at JobWise’s option, defend JobWise and its officers, directors, employees, agents, affiliates, successors, and assigns from and against any and all Losses arising from or relating to any third-party claim, suit, action, or proceeding (“Third-Party Claim”) (i) that User Data, or any use of User Data in accordance with this Agreement, infringes or misappropriates a third party’s intellectual property rights or violates any applicable law or regulation; or (ii) based on User’s or any Authorized User’s negligence or willful misconduct or use of the Services in a manner not authorized by this Agreement; provided that User may not settle any Third-Party Claim against JobWise unless JobWise consents to such settlement, and further provided that JobWise will have the right, at its option, to defend itself against any such Third-Party Claim or to participate in the defense thereof by counsel of its own choice.
NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT FOR BODILY INJURY OF A PERSON, JOBWISE AND ITS SUPPLIERS, OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND JOBWISE’S REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE GREATER OF (A) THE FEES PAID BY USER TO JOBWISE FOR THE SERVICES UNDER THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, OR (B) $500.00, IN EACH CASE, WHETHER OR NOT JOBWISE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable or sublicensable by User except with JobWise’s prior written consent. JobWise may transfer and assign any of its rights and obligations under this Agreement without consent. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement and User does not have any authority of any kind to bind JobWise in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by email; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. This Agreement shall be governed by the laws of the State of Utah without regard to its conflict of laws provisions.