Last Updated: [9.1.2014]
These Terms provide that all disputes between you and Akimbo will be resolved by BINDING ARBITRATION. YOU AGREE TO GIVE UP YOUR RIGHT TO GO TO COURT to assert or defend your rights under this contract, except for matters that may be taken to small claims court. Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury, and your claims cannot be brought as a class action. Please review the “Dispute Resolution and Arbitration” section below for the details regarding your agreement to arbitrate any disputes with Akimbo.
1. Akimbo Service Overview. Akimbo provides a career development platform where you can both interact with your organization and create connections with potential employers. We also provide tools for developing a digital portfolio to showcase your unique talents and skills and increase your professional exposure.
2. Eligibility. You must be at least thirteen (13) years of age to use the Service. By agreeing to these Terms, you represent and warrant to us that: (a) you are at least thirteen (13) years of age; (b) you have not previously been suspended or removed from the Service; and (c) your registration and your use of the Service is in compliance with all applicable laws and regulations.
3. Individual Accounts and Registration. To access most features of the Service pertaining to individuals, you must access and set up a user account (“Individual Account”). When the organization you are affiliated with registers for access to the Service, they will provide us with your email address. We will use this email address to contact you with login information that will allow you to access and begin set up on your Individual Account, which will be tied to the organization that registers you and their applicable account (“Organization Account”). When you access and set up your Individual Account, you may be required to provide us with some information about yourself, such as relevant contact information. You agree that the information you provide to us is accurate and that you will keep it accurate and up-to-date at all times. When you set up your account, you will be provided with an initial password; upon accessing your Individual Account, you may change this password. You are solely responsible for maintaining the confidentiality of your Individual Account and password. You agree to accept responsibility for all activities that occur under your Individual Account. If you have reason to believe that your Individual Account is no longer secure, then you must immediately notify us at email@example.com.
4. Payment. No fees are charged to you for your use of the Service. Please be aware, however, that the organization who registers you for access to an Individual Account may be paying for access to the Service through their Organization Account. If the organization that your Individual Account is affiliated with fails to make necessary payments for their access to the Service, and their Organization Account is terminated, your Individual Account will also be terminated and you will no longer be able to access the Service.
5. Individual Content
5.1 Individual Content Generally. Certain features of the Service may permit you to upload content to the Service, including photos, video, images, folders, data, text, and other types of works (“Individual Content”) and to publish Individual Content on the Service. You retain copyright and any other proprietary rights that you may hold in the Individual Content that you post to the Service.
5.2 Limited License Grant to Akimbo. By posting or publishing Individual Content, you grant Akimbo a worldwide, non-exclusive, royalty-free right and license (with the right to sublicense) to host, store, transfer, display, perform, reproduce, modify for the purpose of formatting for display, and distribute your Individual Content, in whole or in part, in any media formats and through any media channels (now known or hereafter developed). Akimbo’s use of your Individual Content may be without any compensation paid to you.
5.3 Limited License Grant to Other Users. By posting and sharing Individual Content with another user of the Service, including those other individual users and employers who may view your page or otherwise interact with your Individual Content, you grant that user a non-exclusive license to access and use that Individual Content as permitted by these Terms and by the functionality of the Service.
5.4 Individual Content Representations and Warranties. You are solely responsible for your Individual Content and the consequences of posting or publishing Individual Content. By posting or publishing Individual Content, you affirm, represent, and warrant that:
a. you are the creator and owner of, or have the necessary licenses, rights, consents, and permissions, to use and to authorize Akimbo and users of the Service to use and distribute your Individual Content as necessary to exercise the licenses granted by you in this Section 5 and in the manner contemplated by Akimbo, the Service, and these Terms; and
b. your Individual Content, and the use of your Individual Content as contemplated by these Terms, does not and will not: (i) infringe, violate, or misappropriate any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (ii) slander, defame, libel, or invade the right of privacy, publicity or other property rights of any other person; or (iii) cause Akimbo to violate any law or regulation.
5.5 Individual Content Disclaimer. We are under no obligation to edit or control any content that you or other users post or publish, and will not be in any way responsible or liable for such content. Akimbo may, however, at any time and without prior notice, screen, remove, edit, or block any content, including your Individual Content, that in our sole judgment violates these Terms or is otherwise objectionable. You understand that when using the Service you may be exposed to content from a variety of sources and acknowledge that any posted content may be inaccurate, offensive, indecent, or objectionable. You agree to waive, and do waive, any legal or equitable right or remedy you have or may have against Akimbo with respect to Individual Content and other content on the Service. We expressly disclaim any and all liability in connection with Individual Content and other posted content. If notified by a user or content owner that your Individual Content allegedly does not conform to these Terms, we may investigate the allegation and determine in our sole discretion whether to remove the Individual Content, which we reserve the right to do at any time and without notice. For clarity, Akimbo does not permit copyright-infringing activities on the Service.
6. Digital Millennium Copyright Act
6.1 DMCA Notification. We comply with the provisions of the Digital Millennium Copyright Act applicable to Internet service providers (17 U.S.C. §512, as amended). If you have an intellectual property rights-related complaint about material posted on the Service, you may contact our Designated Agent at the following address:
585 Albro Lane
Lawrence, NY 11559
Any notice alleging that materials hosted by or distributed through the Service infringe intellectual property rights must include the following information:
a. an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other right being infringed;
b. a description of the copyright-protected work or other intellectual property right that you claim has been infringed;
c. a description of the material that you claim is infringing and where it is located on the Service;
d. your address, telephone number, and email address;
e. a statement by you that you have a good faith belief that the use of those materials on the Service is not authorized by the copyright owner, its agent, or the law; and
f. a statement by you that the above information in your notice is accurate and that, under penalty of perjury, you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner's behalf.
6.2 Repeat Infringers. Akimbo will promptly terminate without notice the accounts of users, including Individual Accounts, that are determined by Akimbo to be “repeat infringers." A repeat infringer is a user who has been notified of infringing activity or has had content, including Individual Content, removed from the Service at least twice.
7. Prohibited Conduct. BY USING THE SERVICE YOU AGREE NOT TO:
7.1 use the Service for any illegal purpose or in violation of any local, state, national, or international law;
7.2 violate, or encourage others to violate, any right of a third party, including by infringing or misappropriating any third party intellectual property right;
7.3 post, upload, or distribute any Individual Content or other content that is unlawful, defamatory, libelous, inaccurate (including, but not limited to, false information related to your employment history, work experience, and qualifications), or that a reasonable person could deem to be objectionable, profane, indecent, pornographic, harassing, threatening, embarrassing, hateful, or otherwise inappropriate;
7.4 interfere with security-related features of the Service, including by: (a) disabling or circumventing features that prevent or limit use or copying of any content; or (b) reverse engineering or otherwise attempting to discover the source code of any portion of the Service except to the extent that the activity is expressly permitted by applicable law;
7.5 interfere with the operation of the Service or any user’s enjoyment of the Service, including by: (a) uploading or otherwise any disseminating virus, adware, spyware, worm, or other malicious code; (b) making any unsolicited offer or advertisement to another user of the Service (with the exception of the reasonable contact of potential Employer partners, as contemplated by the Service); (c) attempting to collect personal information about another user, organization, or other third party without consent; or (d) interfering with or disrupting any network, equipment, or server connected to or used to provide the Service, or violating any regulation, policy, or procedure of any network, equipment, or server;
7.6 perform any fraudulent activity, including impersonating any person or entity, claiming a false affiliation, accessing any other Service account, of whatever type, without permission, or falsifying any other information related to the Service;
7.7 sell or otherwise transfer the access granted under these Terms or any Materials (as defined in Section 12) or any right or ability to view, access, or use any Material; or
7.8 attempt to do any of the acts described in this Section 7, or assist or permit any person in engaging in any of the acts described in this Section 7.
8. Third-Party Services and Linked Websites. Akimbo may provide tools through the Service that enable you to export information, including Individual Content, to third party services, including through features that allow you to link your Individual Account on Akimbo with an account on the third party service, such as Twitter or Facebook. By using one of these tools, you agree that we may transfer that information to the applicable third-party service. Third party services are not under our control, and we are not responsible for any third party service’s use of your exported information. The Service may also contain links to third-party websites. Linked websites are not under our control, and we are not responsible for their content.
9. Termination of Use; Discontinuation and Modification of the Service. If you violate any provision of these Terms, your permission from us to use the Service will terminate automatically. In addition, Akimbo may in its sole discretion terminate your Individual Account on the Service or suspend or terminate your access to the Service at any time, with or without notice. Please note that if the Organization Account to which your Individual Account is linked is terminated, your Individual Account will also be terminated. We also reserve the right to modify or discontinue the Service at any time (including by limiting or discontinuing certain features of the Service) without notice to you. We will have no liability whatsoever on account of any change to the Service or any suspension or termination of your access to or use of the Service. You may terminate your Individual Account at any time by contacting us at firstname.lastname@example.org.
10.2 Additional Terms. Your use of the Service is subject to all additional terms, policies, rules, or guidelines applicable to the Service or certain features of the Service that we may post on or link to from the Service (the "Additional Terms"), such as end-user license agreements for any downloadable software applications, or rules that applicable to a particular feature or content on the Service, subject to Section 11 below. All Additional Terms are incorporated by this reference into, and made a part of, these Terms.
11. Modification of these Terms. In the event that a change to these Terms materially modifies your rights or obligations, we will make reasonable efforts to notify you of such change. We may provide notice through a pop-up or banner within the Service, by sending an email to any address or addresses that may be linked to your Individual Account, or through other similar mechanisms. Additionally, if the changed Terms materially modify your rights or obligations, we may require you to provide consent by accepting the changed Terms. If we require your acceptance of the changed Terms, changes are effective only after your acceptance. If you do not accept the changed Terms, we may terminate your access to and use of the Service. All other changes are effective upon publication of the changed Terms. Disputes arising under these Terms will be resolved in accordance with the version of these Terms that was in effect at the time the dispute arose.
12. Ownership; Proprietary Rights. The Service is owned and operated by Akimbo. The visual interfaces, graphics, design, compilation, information, data, computer code (including source code or object code), products, software, services, and all other elements of the Service (“Materials”) provided by Akimbo are protected by intellectual property and other laws. All Materials contained in the Service are the property of Akimbo or our third-party licensors. Except as expressly authorized by Akimbo, you may not make use of the Materials. Akimbo reserves all rights to the Materials not granted expressly in these Terms.
13. Indemnity. Akimbo disclaims all responsibility for, and you agree that you will be responsible for, your use of the Service, and you agree to defend and indemnify Akimbo and its officers, directors, employees, consultants, affiliates, subsidiaries and agents (together, the "Akimbo Entities") from and against every claim, liability, damage, loss, and expense, including reasonable attorneys' fees and costs, arising out of or in any way connected with: (a) your access to, use of, or alleged use of, the Service, including, but not limited to: (i) any claims arising from your representations regarding your organization affiliations, qualifications, or eligibility for employment; and (ii) any claim arising from or related to any employment accepted or denied by you, including claims related to employment discrimination; (b) your violation of any portion of these Terms, any representation, warranty, or agreement referenced in these Terms, or any applicable law or regulation; (c) your violation of any third-party right, including any intellectual property right or publicity, confidentiality, other property, or privacy right; or (d) any dispute or issue between you and any third party, including any other user with an Individual or Organization Account, as well as any Employer, whether or not such Employer is registered on the Service. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you (without limiting your indemnification obligations with respect to that matter), and in that case, you agree to cooperate with our defense of that claim.
14. Disclaimers; No Warranties
THE SERVICE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE ARE PROVIDED "AS IS" AND ON AN "AS AVAILABLE" BASIS, WITHOUT WARRANTY OR CONDITION OF ANY KIND, EITHER EXPRESS OR IMPLIED. THE AKIMBO ENTITIES DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO THE SERVICE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE, INCLUDING: (A) ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, OR NON-INFRINGEMENT; AND (B) ANY WARRANTY ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. THE AKIMBO ENTITIES DO NOT WARRANT THAT THE SERVICE OR ANY PORTION OF THE SERVICE, OR ANY MATERIALS OR CONTENT OFFERED THROUGH THE SERVICE, WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS, AND DO NOT WARRANT THAT ANY OF THOSE ISSUES WILL BE CORRECTED.
NO ADVICE OR INFORMATION WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE SERVICE OR ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICE WILL CREATE ANY WARRANTY REGARDING ANY OF THE Akimbo ENTITIES OR THE SERVICE THAT IS NOT EXPRESSLY STATED IN THESE TERMS. YOU ASSUME ALL RISK FOR ANY DAMAGE THAT MAY RESULT FROM YOUR USE OF OR ACCESS TO THE SERVICE, YOUR DEALING WITH ANY OTHER SERVICE USER, AND ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICE. YOU UNDERSTAND AND AGREE THAT YOU USE THE SERVICE, AND USE, ACCESS, DOWNLOAD, OR OTHERWISE OBTAIN MATERIALS OR CONTENT THROUGH THE SERVICE AND ANY ASSOCIATED SITES OR SERVICES, AT YOUR OWN DISCRETION AND RISK, AND THAT YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM OR ANY MOBILE DEVICE USED IN CONNECTION WITH THE SERVICE), OR THE LOSS OF DATA THAT RESULTS FROM THE USE OF THE SERVICE OR THE DOWNLOAD OR USE OF THAT MATERIAL OR CONTENT.
SOME JURISDICTIONS MAY PROHIBIT A DISCLAIMER OF WARRANTIES AND YOU MAY HAVE OTHER RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION.
15. Limitation of Liability
IN NO EVENT WILL THE AKIMBO ENTITIES BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, OR ANY OTHER INTANGIBLE LOSS) ARISING OUT OF OR RELATING TO YOUR ACCESS TO OR USE OF, OR YOUR INABILITY TO ACCESS OR USE, THE SERVICE OR ANY MATERIALS OR CONTENT ON THE SERVICE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT ANY AKIMBO ENTITY HAS BEEN INFORMED OF THE POSSIBILITY OF DAMAGE.
YOU AGREE THAT THE AGGREGATE LIABILITY OF THE AKIMBO ENTITIES TO YOU FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THE USE OF OR ANY INABILITY TO USE ANY PORTION OF THE SERVICE OR OTHERWISE UNDER THESE TERMS, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS LIMITED TO $100.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES. ACCORDINGLY, THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS UNDER THESE TERMS BETWEEN THE PARTIES. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THE LIMITATIONS IN THIS SECTION 15 WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
16. Governing Law. These Terms are governed by the laws of the State of New York without regard to conflict of law principles. If a lawsuit or court proceeding is permitted under these Terms, then, unless another location is expressly specified in these Terms, you and Akimbo agree to submit to the personal and exclusive jurisdiction of the state courts and federal courts located within New York County, New York for the purpose of litigating any dispute. We operate the Service from our offices in New York, and we make no representation that Materials included in the Service are appropriate or available for use in other locations.
18. Dispute Resolution and Arbitration
18.1 Generally. In the interest of resolving disputes between you and Akimbo in the most expedient and cost effective manner, you and Akimbo agree that every dispute arising in connection with these Terms will be resolved by binding arbitration. Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. Our agreement to arbitrate disputes includes all claims arising out of or relating to any aspect of these Terms, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of these Terms. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND AKIMBO ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
18.2 Exceptions. Despite the provisions of Section 18.1, we both agree that nothing in these Terms will be deemed to waive, preclude, or otherwise limit the right of either of us to: (a) bring an individual action in small claims court; (b) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (c) seek injunctive relief in a court of law; or (d) to file suit in a court of law to address an intellectual property infringement claim.
18.3 Arbitrator. Any arbitration between you and Akimbo will be governed by the Commercial Dispute Resolution Procedures and the Supplementary Procedures for Consumer Related Disputes (collectively, "AAA Rules") of the American Arbitration Association ("AAA"), as modified by these Terms, and will be administered by the AAA. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting Akimbo.
18.4 Notice; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other, by certified mail or Federal Express (signature required), or if we do not have a physical address on file for you, by electronic mail ("Notice"). Akimbo's address for Notice is: Akimbo Connect, 585 Albro Lane, Lawrence, NY 11559. The Notice must: (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought ("Demand"). We agree to use good faith efforts to resolve the claim directly, but if we do not reach an agreement to do so within 30 days after the Notice is received, you or Akimbo may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by you or Akimbo must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. If our dispute is finally resolved through arbitration in your favor, Akimbo will pay you the highest of the following: (i) the amount awarded by the arbitrator, if any; (ii) the last written settlement amount offered by Akimbo in settlement of the dispute prior to the arbitrator’s award; or (iii) $1,000.
18.5 Fees. If you commence arbitration in accordance with these Terms, Akimbo will reimburse you for your payment of the filing fee, unless your claim is for more than $10,000, in which case the payment of any fees will be decided by the AAA Rules. Any arbitration hearing will take place at a location to be agreed upon in New York County, New York, but if the claim is for $10,000 or less, you may choose whether the arbitration will be conducted: (a) solely on the basis of documents submitted to the arbitrator; (b) through a non-appearance based telephone hearing; or (c) by an in-person hearing as established by the AAA Rules in the county (or parish) of your billing address. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In that case, you agree to reimburse Akimbo for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.
18.6 No Class Actions. YOU AND AKIMBO AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and Akimbo agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.
18.7 Modifications. If Akimbo makes any future change to this arbitration provision (other than a change to Akimbo's address for Notice), you may reject the change by sending us written notice within 30 days of the change to Akimbo's address for Notice, in which case your Individual Account with Akimbo will be immediately terminated and this arbitration provision, as in effect immediately prior to the amendments you reject will survive.
18.8 Enforceability. If Section 18.6 is found to be unenforceable or if the entirety of this Section 18 is found to be unenforceable, then the entirety of this Section 18 will be null and void and, in that case, the parties agree that the exclusive jurisdiction and venue described in Section 16 will govern any action arising out of or related to these Terms.
20. Contact Information. The Service is offered by Akimbo Connect, located at 585 Albro Lane, Lawrence, NY 11559. You may contact us by sending correspondence to that address or by emailing us at email@example.com.
21. Obtaining a Copy of These Terms. You may have these Terms mailed to you electronically by sending a letter to the address in Section 20 with your electronic mail address and a request for a copy of these Terms.