May 22 2018
1.2 This Agreement governs your use of the Website. This Agreement does not govern placement services or prospective candidate introductions provided to companies or entities by Capstone Hill Search, which are governed by either the Capstone Hill Search Terms of Business or our Recruitment Search Agreement.
Acceptance of Terms
2.1 You must agree to this Agreement prior to your use of the Website. Your use of the Website is conditioned upon your acceptance of the terms set forth below. If you do not agree to the terms set forth in this Agreement, you may not use the Website.
2.2 By undertaking any of the following actions, you agree to be bound by the terms of this Agreement:
a) clicking that you accept or agree to these terms when presented with the option to do so;
b) registering with the Website as defined below; or
c) your use of the Website.
Your Use of the Capstone Hill Website
3.1 Subject to your remaining in compliance with the provisions of this Agreement, Capstone Hill hereby grants to you a limited, worldwide, royalty-free, non-exclusive, non-transferable, non-sublicensable license solely to access and use the Website. The Website shall not be used in any other manner or for any other purpose during the term of this Agreement or thereafter.
3.2 Use of the Website by children under the age of 13 is prohibited. By using the Website, you warrant that you are 13 years of age or older.
Privacy and Collection of Information
Our Proprietary Rights
5.1 Capstone Hill retains all rights, title, and interest to the Website and any updates that may be provided to you under this Agreement. Capstone Hill reserves all rights not expressly granted to you.
5.2 You acknowledge and agree that the Website contains proprietary and confidential information that is protected by United States copyright law, applicable intellectual property and other laws. All trademarks, service marks, advertising slogans and names provided on the Website are proprietary to Capstone Hill. Except as expressly authorized by Capstone Hill, you agree that all rights described herein are reserved to Capstone Hill and you are not to modify, rent, lease, loan, sell, distribute or create derivative works based on the Website, in whole or in part.
Candidate Confidentiality Obligations
6.1 While Capstone Hill is working with you to identify a suitable placement and for 6 months following either your placement or our receipt of notice from you that you no longer wish to be a candidate or prospective candidate for placement through Capstone Hill, you must not:
divulge or communicate to any person any information disclosed to you by Capstone Hill regarding the clients that Capstone Hill represents, their assignments or the placements we are advertising on their behalf (the "Confidential Information");
through any failure to exercise due care and diligence, cause any unauthorized disclosure of the Confidential Information; or
use the Confidential Information to directly or indirectly contact any client that Capstone Hill represents in relation to future employment opportunities.
6.2 You must at all times use your best endeavors to prevent disclosure of any Confidential Information. These restrictions do not to apply to any Confidential Information which is generally available in the public domain or otherwise than through any default of yours.
7.1 You and any business or third party subject to this Agreement through your use shall indemnify, defend and hold harmless Capstone Hill and its officers, agents and employees from and against any claims, demands or causes of action (a) alleging infringement of any third party intellectual property rights based on (i) your use of the Website, (ii) the use of any other software or hardware that is used in conjunction with the Website, (iii) the unauthorized use of the Website, or (iv) use of the Website not in conformance with the specifications or the requirements of this Agreement, (b) based on the unauthorized use of the Website by you, or (c) based on or resulting from a breach of any provision of this Agreement by you.
Disclaimer of Warranties and Limitation of Liability
8.1 Other than as specifically set forth herein, the Website is provided “AS IS” and “WITH ALL FAULTS” and without warranty of any kind. You agree that the use of the Website is at your risk.
8.2 CAPSTONE HILL MAKES NO WARRANTY OF ANY KIND TO YOU OR ANY THIRD PARTY, EXPRESS, IMPLIED OR STATUTORY, WITH RESPECT TO THE SERVICES, OPERATION OF THE SERVICES, OR OUTPUT OF OR RESULTS OBTAINED FROM THE SERVICES, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OPERABILITY, COMPLIANCE WITH APPLICABLE LAW OR NON-INFRINGEMENT AND ALL SUCH WARRANTIES ARE HEREBY EXCLUDED BY CAPSTONE HILL AND WAIVED BY YOU.
8.3 OTHER THAN AS SPECIFICALLY SET FORTH HEREIN, IN NO EVENT SHALL CAPSTONE HILL, ITS AGENTS OR EMPLOYEES, HAVE ANY LIABILITY TO YOU OR ANY THIRD PARTY FOR THE COST OF SUBSTITUTE GOODS OR ANY INCIDENTAL, INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES (INCLUDING LOST PROFITS, LOSS OF DATA, LOSS OF USE, LOSS OF BUSINESS OPPORTUNITY OR CLAIMS OF THIRD PARTIES) ARISING IN ANY MANNER IN CONNECTION HEREWITH, OR OUT OF THIS AGREEMENT, THE PERFORMANCE OR BREACH HEREOF OR THE SUBJECT MATTER HEREOF, HOWEVER CAUSED, WHETHER BY NEGLIGENCE OR OTHERWISE, REGARDLESS OF THE FORM OF ACTION, WHETHER FOR BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT PRODUCT LIABILITY, INFRINGEMENT, GOVERNMENT AGENCY FINES OR ENFORCEMENT ACTIONS OR OTHERWISE, AND WHETHER OR NOT CAPSTONE HILL HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED HEREIN.
8.4 Different limitations and exclusions of liability apply to liability arising as a result of placement services or prospective candidate introductions, which are set out in the applicable Terms of Business or Recruitment Search Agreement.
Modification and Termination of the Website
9.1 Capstone Hill may, in its sole discretion, discontinue offering the Website or terminate or suspend your access to the Website at any time.
10.1 Should any provision of this Agreement be held by a court of competent jurisdiction to be illegal, invalid, or unenforceable, that provision shall be deemed amended to achieve as nearly as possible the same economic effect as the original provision, and the legality, validity and enforceability of the remaining provisions of this Agreement shall not be affected or impaired thereby.
10.2 The failure of either party to enforce any term or condition of this Agreement shall not constitute a waiver of either party’s right to enforce each and every term and condition of this Agreement. No breach under this Agreement shall be deemed waived or excused by either party unless such waiver or consent is in writing signed by the party granting such waiver or consent. The waiver by or consent of a party to a breach of any provision of this Agreement shall not operate or be construed as a waiver of or consent to any other or subsequent breach by such other party.
10.3 Except as otherwise expressly set forth herein, the parties agree that this Agreement states the entire agreement between the parties with respect to its subject matter and supersedes all prior agreements and representations of the parties, oral or written. This Agreement may only be amended in a writing signed by duly authorized representatives of both parties. This Agreement shall be binding upon and inure to the benefit of the parties’ authorized successors, legal representatives, and authorized assigns.
10.4 All notices, demands, requests, consents or other communications required or permitted by this Agreement (“Notices”) shall be in writing and sent to the parties at their current known addresses, or to such other address as either party may specify in writing. Notices shall be deemed duly served on or delivered (1) when delivered personally, (2) when sent to the other party by certified mail, return receipt requested, (3) when delivered by hand or sent by recognized overnight courier (with acknowledgement received by the courier), or (4) sent by facsimile, electronically confirmed and followed up immediately by standard United States mail.
10.5 THE PARTIES WAIVE ANY RIGHT TO A JURY TRIAL IN ANY PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT OR ANY CONFIDENTIAL INFORMATION, INTELLECTUAL PROPERTY RIGHTS, OR SELF HOSTED SERVICES THAT ARE THE SUBJECT OF THIS AGREEMENT.
10.6 Unless prohibited by law, any and all disputes arising under this Agreement shall only be resolved by courts located in the State of New York and the parties hereto consent to venue therein, the exclusive personal jurisdiction thereof, and to the sufficiency of service of process by certified or registered mail in connection with any dispute arising out of or in connection with this Agreement. However, if you are a resident of England or Wales you must bring proceedings in England or Wales; if you are a resident of Northern Ireland, you must bring proceedings in Northern Ireland; if you are resident of Scotland, you must bring proceedings in Scotland; and if you are a resident of Australia, you must bring proceedings in Australia.
10.7 In the event of any dispute arising out of or related to this Agreement, the prevailing party shall be entitled to recover its reasonable attorneys’ fees and costs.
10.8 The provisions this agreement, including but not limited to sections 3, 4, 5, 6, 7, 8, 9 and 10, shall survive any termination or expiration of this Agreement.