Welcome to the Terms of Service for Triumph. This is an agreement ("Agreement") between JoinTriumph Inc ("Triumph"), a New York corporation, the owner and operator of jointriumph.com (the "Site"), and collectively the "Service", and you.
PLEASE READ THIS AGREEMENT CAREFULLY. BY ACCESSING OR USING THIS SITE IN ANY WAY, INCLUDING USING THE SERVICE, CLICKING ON THE "I ACCEPT" BUTTON, COMPLETING THE REGISTRATION PROCESS, AND/OR MERELY BROWSING THE SITE, YOU REPRESENT THAT (1) YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THE AGREEMENT; (2) YOU ARE OF LEGAL AGE TO FORM A BINDING CONTRACT WITH Triumph, AND (3) YOU HAVE THE AUTHORITY TO ENTER INTO THE AGREEMENT PERSONALLY OR ON BEHALF OF THE COMPANY YOU HAVE NAMED AS THE EMPLOYER, AND TO BIND THAT COMPANY TO THE AGREEMENT. IF YOU DO NOT AGREE TO BE BOUND BY THIS AGREEMENT, YOU MAY NOT ACCESS OR USE THIS SITE OR THE SERVICE.
Throughout this document, the words "Triumph", "us", "we", and "our", refer to our company, Triumph Inc., our Site or our Service, as is appropriate in the context of the use of the words. The term "Prospective Employee" will refer to Users of our Service who are seeking employment opportunities through Triumph. The term "Employer" will refer to a company that is interested in hiring Prospective Employees through the use of our Service. The term "You" refers to the individual or legal entity, as applicable, identified as the user when you register on the Site.
Throughout this document "auction(s)" will refer to the auction process offered through the Service that Prospective Employees will use to find new career opportunities. It is important to understand that these auctions are non-binding and do not create any contractual obligations to either Prospective Employees or Employers. Auctions merely allow Prospective Employees to meet Employers who may be interested in hiring them.
You agree to keep all information gained from using our Site confidential. you agree that (1) you will use any content SUBMITTED BY PROSPECTIVE EMPLOYEES in accordance with applicable privacy and data protection laws; (2) you will not disclose the names or identities of any Prospective Employees listed for auction, outside of your recruiting or hiring department; AND (3) you will take appropriate physical, technical and administrative measures to protect content you obtain through use of the Site and Service from loss, misuse, unauthorized access, disclosure, ALTERATION or destruction. you ALSO agree not to post, publicly disclose or disseminate any job offers which you become aware OF through our Site or Service.
Our Service may allow you to upload photos, resumes, projects and other information and may allow you to message or communicate in other ways with other users through our Service. Any information that you post, transmit or submit through our Site or Service will be referred to as "Content" throughout this Agreement.
THIS AGREEMENT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES RATHER THAN JURY TRIALS OR CLASS ACTIONS, AND ALSO LIMITS THE REMEDIES AVAILABLE TO YOU IN THE EVENT OF A DISPUTE.
PLEASE NOTE THAT THIS AGREEMENT IS SUBJECT TO CHANGE BY TRIUMPH IN ITS SOLE DISCRETION AT ANY TIME. When changes are made, we will make a new copy of the Agreement available at the Site. Any changes to the Agreement will be effective immediately. If you do not agree to any change(s) you shall stop using the Site and/or the Service. Otherwise, your continued use of the Site and/or Service constitutes your acceptance of such change(s). PLEASE REGULARLY CHECK THE SITE TO VIEW THE THEN-CURRENT TERMS OF SERVICE.
TRIUMPH DESCRIPTION OF SERVICE
FOR PROSPECTIVE EMPLOYEES
Triumph is a service that connects Prospective Employees with Employers looking to hire.
As an Employer, you have the opportunity to find qualified talent and reduce the costs involved with hiring and retaining such talent. A Success Fee (as defined in Section 6 below) will only be collected from you in accordance with Section 6 after you have successfully Triumph a Prospective Employee. YOU UNDERSTAND THAT Triumph DOES NOT INQUIRE INTO THE BACKGROUNDS OF ITS USERS OR ATTEMPT TO VERIFY THE STATEMENTS OF ITS USERS (ALTHOUGH IT RESERVES THE RIGHT TO CONDUCT ANY BACKGROUND CHECK OR OTHER SCREENINGS AT ANY TIME USING AVAILABLE PUBLIC RECORDS), AND THAT YOU ARE RESPONSIBLE FOR CONDUCTING ANY BACKGROUND CHECKS, REFERENCE CHECKS, OR OTHER DUE DILIGENCE THAT YOU MAY REQUIRE BEFORE MAKING AN OFFER OF EMPLOYMENT TO A PROSPECTIVE EMPLOYEE.
In registering for an account on the Site, you agree to (1) provide true, accurate, current, and complete information about yourself as prompted by the Services’ registration form ("Registration Data"), and (2) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. You are responsible for all activities that occur under your account. If you provide any Content that is untrue, inaccurate, not current, or incomplete, or Triumph has reasonable grounds to suspect that such Content is untrue, inaccurate, not current or incomplete, Triumph has the right to suspend or terminate you account and refuse any and all current or future use of the Site or Service. You agree not to create an account using a false identity or information, or on behalf of someone other than yourself. You agree that you shall not have more than one account. You agree not to create an account or use the Site or Service if you have been previously removed by Triumph, or if you have been previously banned from the Site or Service.
The use of the Site and the Service is free for Prospective Employees. When registering with Triumph we may require you to provide us information such as your name, e-mail address, employment history, work experience and skill set. We will review the information that you provide to us during the registration process and we may also review any other information about you that is publicly available. We reserve the right, in our sole discretion, to accept or reject your registration to use our Site and Service. If your registration is accepted, you will be allowed to use our Service.
In order to use Triumph as an Employer you must also register. Registration is free. When registering we may ask you for additional information related to your company and the types of Prospective Employees you are looking for. We will review the information that you provided to us during the registration process and any other information that is publicly available. We reserve the right, in our sole discretion, to accept or reject your registration to use our Site and Service.
You are responsible for your use of the Site and Service and for any use of the Site or Service made using your account. You agree not to access, copy, or otherwise use the Site or the Service, including our intellectual property and trademarks, except as authorized by this Agreement or as otherwise authorized in writing by Triumph Remember when using Triumph we ask you to act reasonably and responsibly with others. Your continued access to our Site and use of our Service are contingent on your agreement to act in a proper manner. When using our Site and Service:
- You will not copy, distribute or disclose any part of the Site or the Service in any medium, including without limitation by any automated or non-automated "scraping";
- You will not use any automated system, including without limitation "robots", "spiders", "offline readers", etc., to access the Site or the Service in a manner that sends more request messages to Triumph servers than a human can reasonably produce in the same period of time by using a conventional on-line web browser (except that Triumph grants the operators of public search engines revocable permission to use spiders to copy materials from the publicly available searchable indices of the materials, not caches or archives of such materials);
- You will not attempt to interfere with, compromise the system integrity or security, or decipher any transmissions to or from the servers running the Site or Service;
- You will not take any action that we determine, in our sole discretion, imposes, or may impose, an unreasonable or disproportionately large load on our infrastructure;
- You will not upload invalid data, viruses, worms or other software agents through the Service;
- You will not collect or harvest any personally identifiable information, including account names, from the Service;
- You will not access the Site or Service through any technology or means other than those provided or authorized by the Service (and access to the Site or Service through virtual private network or proxy is expressly forbidden);
- You will not sell, transfer or assign the Service, or your right to use the Service, to any third party, or offer the Service, or any Content obtained from the Site or Service, on a time-sharing or other commercial basis;
- You agree to act within the bounds of common decency when using our Site;
- You agree not to stalk, harass, bully or harm another individual;
- You agree not to impersonate any person or entity, use a fictitious name, or misrepresent your affiliation with a person or entity;
- You agree not to violate any requirements, procedures, policies or regulations of networks connected to Triumph;
- You agree not to interfere with or disrupt the Site or Service;
- You agree not to hack, spam or phish us or other Users;
- You agree to provide truthful and accurate Content;
- You agree to not violate any law or regulation, and you are responsible for such violations;
- You will not use our Site to post any false, misleading, unlawful, defamatory, obscene, invasive, threatening, harassing, inflammatory, fraudulent Content post any information or content about a company or individual;
- You agree not to cause, or aid in, the destruction, manipulation, removal, disabling, or impairment of any portion of our Site, including the de-indexing or de-caching of any portion of our Site from a thirty party’s website, such as by requesting its removal from a search engine;
- You will not upload any Content to our Site that includes any third party intellectual property unless you have permission from the owner to use it in the specific manner that you used it;
- Triumph may terminate your account for violating one or more of your responsibilities, for violating applicable federal or state law, any other provision in this Agreement, or for any other lawful purpose or at our discretion, with or without notice.
PROSPECTIVE EMPLOYEE’S ROLE
After a Prospective Employee has registered and created a profile on Triumph he or she will be able to be discovered by Employers who are using the Service.
After an Employer’s registration has been accepted by us, the Employer will be able to browse the Prospective Employees on our Site, communicate anonymously with these Prospective Employees, and submit preliminary non-binding job offers. If an Employer hires a Prospective Employee from our Site or Service, the Employer will owe Triumph a Success Fee (as defined in Section 6 below).
The Employer agrees not to attempt to circumvent our Site and Service by independently attempting to communicate and hire the Prospective Employee through alternative means after discovering the Prospective Employee on our Site or Service.
Any agreements created between an Employer and a Prospective Employee are not binding on us. We are not liable for, or obligated to enforce, any agreements between an Employer and a Prospective Employee. You will not consider Triumph nor will Triumph be construed as, a party to such transactions, whether or not Triumph receives some form of remuneration in connection with the transaction, and Triumph will not be liable for any costs or damages arising out of or related to such transaction.
No contractual obligations are created for either the Prospective Employee or the Employer through the use of the Service. The Prospective Employee is not obligated to accept any job offer at all.
PAYMENTS AND REFUNDS
FOR PROSPECTIVE EMPLOYEES
Triumph is free for Prospective Employees. A Prospective Employee is required to promptly notify Triumph if the Prospective Employee (a) accepts an offer of employment (an "Employment Offer"), whether for an indefinite or fixed term, (b) accepts an offer of employment as a contractor or consultant (a "Consulting Offer"), whether for an indefinite or fixed term (each, a "Consulting Engagement"), (c) accepts an Employment Offer or a Consulting Engagement during or within twelve (12) months after termination of an Internship of any duration, with (1) an Employer who was identified by the Prospective Employee through the use of our Site or Service or (2) from an Employer who identified the Prospective Employee through the use of our Site or Service; or (d) accepts an Employment Offer made by an Employer during or within twelve (12) months after termination of a Consulting Engagement with such Employer (each, a "Covered Offer"). In each case, the Prospective Employee will receive a percentage of the Success Fee (defined below) (the "Prospective Employee Payment") not later than 120 days after the start date of Prospective Employee with Employer (the "Start Date"). For the purposes hereof, an Internship shall refer to an opportunity for a Prospective Employee to work, as an intern or pursuant to a co-op arrangement, for an Employer for a fixed period of time to assess job skills and shall only apply to Prospective Employees that are enrolled in college or graduate school, or who have graduated from college or graduate school in the past 6 months.
If you are a Prospective Employee who is using our Site and Service, you agree that (1) if you receive a Covered Offer, you shall promptly notify Triumph of your Start Date and the key terms of such Covered Offer (and notify Triumph promptly should that Start Date or offer terms change at any time), (2) you shall provide Triumph with (a) a copy of a fully executed Covered Offer, or (b) execute a document between Employer, Triumph and Prospective Employee that states material employment terms, including, among other things, Start Date and compensation, promptly upon the signing of a Covered Employment offer letter between you and such Prospective Employee (the "Effective Date"), as requested by Triumph and (3) you will promptly notify Triumph after termination of your employment as an employee, intern, coop employee, consultant or contractor ("Employment") in the event that (a) an Employer terminates your Employment based on unsatisfactory performance within sixty (60) days of the date on which your Employment commenced, or (b) you voluntarily terminate your Employment within sixty (60) days of the date on which your Employment commenced. In the event that before the Start Date, either Employer or Prospective Employee elect not to begin the employment relationship contemplated by the Covered Offer, Prospective Employee shall promptly notify Triumph and such Prospective Employee shall not be eligible for the related Prospective Employee Payment.
ONCE WE HAVE ACCEPTED THE REGISTRATION OF AN EMPLOYER FOR AN EVENT, THE EMPLOYER WILL BE ABLE TO MEET AND VET PRE-SCREENED CANDIDATES ("USE OF OUR SERVICE"). IF A PRE-SCREEN CANDIDATE IDENTIFIED THROUGH THE USE OF OUR SERVICE ACCEPTS AN EMPLOYMENT OFFER, THE EMPLOYER WILL BE CHARGED A SUCCESS FEE. FOR PURPOSES OF THIS AGREEMENT, "SUCCESS FEE" SHALL BE DEFINED AS FOLLOWS:
- A SUCCESS FEE EQUALS 10% OF THE EMPLOYEE’S FIRST YEAR BASE SALARY (AN "UPFRONT SUCCESS FEE"), WHICH AMOUNT SHALL BE DUE AND PAYABLE THIRTY (30) DAYS AFTER THE START DATE.
- IN THE CASE OF A CONSULTING ENGAGEMENT, THE EMPLOYER SHALL PAY A SUCCESS FEE EQUAL TO 10% OF THE COMPENSATION TO BE PAID FOR THE PERIOD OF SUCH CONSULTING ENGAGEMENT (AN "UPFRONT SUCCESS FEE"), WHICH AMOUNT SHALL BE DUE AND PAYABLE THIRTY (30) DAYS AFTER THE START DATE, AND IF THE CONSULTING ENGAGEMENT IS FOR AN INDEFINITE PERIOD AND/OR THERE IS NO FIXED FEE FOR THE ENGAGEMENT, 10% OF THE COMPENSATION PAID IN EACH MONTH (A "MONTHLY SUCCESS FEE"), COMMENCING ON THE START DATE, FOR AS LONG AS THE CONSULTING ENGAGEMENT CONTINUES (BUT NO MORE THAN A TOTAL OF $5,000).
- EMPLOYERS ARE REQUIRED TO PROMPTLY NOTIFY TRIUMPH ONCE A PROSPECTIVE EMPLOYEE HAS ACCEPTED AN EMPLOYMENT OFFER AND NOTIFY TRIUMPH OF THE START DATE FOR SUCH EMPLOYEE (INCLUDING PROMPT NOTIFICATION OF ANY SUBSEQUENT CHANGES IN SUCH START DATE.) EMPLOYERS SHALL PROVIDE TRIUMPH WITH (1) A COPY OF A FULLY EXECUTED COVERED OFFER, OR (2) EXECUTE A DOCUMENT BETWEEN EMPLOYER, TRIUMPH AND PROSPECTIVE EMPLOYEE THAT STATES MATERIAL EMPLOYMENT TERMS, INCLUDING, AMONG OTHER THINGS, START DATE AND COMPENSATION PROMPTLY UPON THE EFFECTIVE DATE. IN THE EVENT THAT BEFORE THE START DATE, EITHER EMPLOYER OR PROSPECTIVE EMPLOYEE ELECT NOT TO BEGIN THE EMPLOYMENT RELATIONSHIP CONTEMPLATED BY THE COVERED OFFER, EMPLOYER SHALL PROMPTLY NOTIFY TRIUMPH AND THE PROSPECTIVE EMPLOYEE SHALL NOT BE ELIGIBLE FOR ANY PROSPECTIVE EMPLOYEE PAYMENT.
- THE EMPLOYER WILL OWE TRIUMPH A SUCCESS FEE FOR ANY COVERED OFFER WHICH IS ACCEPTED BY A PROSPECTIVE EMPLOYEE, AS DEFINED ABOVE.
- NOTWITHSTANDING THE FOREGOING, IN THE EVENT OF A SUCCESS FEE DISPUTE, IF AN EMPLOYER CAN ESTABLISH THAT THE EMPLOYER HAD AN ACTIVE PROCESS (AS DEFINED BELOW) WITH THE PROSPECTIVE EMPLOYEE BEFORE USING OUR SERVICE (E.G., THE PROSPECTIVE EMPLOYEE HAD ALREADY BEGUN THE INTERVIEW PROCESS WITH THE EMPLOYER AND SUCH PROCESS HAD NOT BEEN TERMINATED, OR THE EMPLOYER HAD RECEIVED THE PROSPECTIVE EMPLOYEE’S RESUME FROM AN EMPLOYMENT AGENCY OR HEADHUNTER AND WAS UNDER ACTIVE CONSIDERATION BY THE EMPLOYER), THE EMPLOYER MAY BE EXEMPTED FROM PAYING THE SUCCESS FEE. HOWEVER, THE FINAL DETERMINATION AS TO WHETHER A SUCCESS FEE IS OWED BY THE EMPLOYER FOR AN ACCEPTED COVERED OFFER WILL BE AT THE SOLE DISCRETION OF TRIUMPH. FOR THE PURPOSES HEREOF, "ACTIVE PROCESS" SHALL MEAN CONTINUOUS DIRECT, BACK AND FORTH COMMUNICATION, IN AN ACTIVE RECRUITING OR HIRING CONTEXT WHERE A DECISION TO PUT A CANDIDATE ON HOLD OR REJECT HAS NOT BEEN MADE, WITHIN THE THREE (3) MONTHS PRIOR TO USING TRIUMPH FOR A PROSPECTIVE EMPLOYEE THAT EXISTS IN EMPLOYER’S APPLICANT TRACKING SYSTEM OR THAT WAS SUBMITTED BY A RECRUITING AGENCY.
- IF YOU ARE AN EMPLOYER WHO IS USING OUR SERVICE, YOU AGREE TO THESE SUCCESS FEE PROVISIONS AND YOU ACKNOWLEDGE THAT A PORTION OF THE SUCCESS FEE WILL BE PAID BY TRIUMPH TO THE PROSPECTIVE EMPLOYEE. IF YOU DO NOT AGREE WITH ANY OF THESE PROVISIONS, PLEASE TERMINATE YOUR ACCOUNT IMMEDIATELY AND CEASE USING TRIUMPH. YOUR OBLIGATION TO PAY ANY SUCCESS FEES SHALL SURVIVE ANY TERMINATION OF THIS AGREEMENT.
- IF AN EMPLOYER CIRCUMVENTS OUR SERVICE AFTER DISCOVERING A PROSPECTIVE EMPLOYEE THROUGH OUR SERVICE AND SUBSEQUENTLY HIRES THAT PROSPECTIVE EMPLOYEE, THE EMPLOYER WILL BE BILLED A SUCCESS FEE EQUAL TO 25% OF THE 1ST YEAR BASE SALARY OF THE PROSPECTIVE EMPLOYEE AND TRIUMPH MAY, IN ITS SOLE DISCRETION, TERMINATE THE EMPLOYER’S ACCOUNT.
EMPLOYER AGREES TO PAY THE SUCCESS FEES CHARGED TO EMPLOYER’S ACCOUNT IN ACCORDANCE WITH THE FEES, CHARGES, AND BILLING TERMS IN EFFECT AT THE TIME THE SUCCESS FEE IS DUE AND PAYABLE HEREUNDER. EMPLOYER MUST PROVIDE TRIUMPH WITH, USING A VALID CREDIT CARD (VISA, MASTERCARD, OR ANY OTHER ISSUER ACCEPTED BY US) ("PAYMENT PROVIDER") AS A CONDITION TO SIGNING UP FOR THE SERVICE OR OTHER PAYMENT METHOD APPROVED BY TRIUMPH. EMPLOYER’S PAYMENT PROVIDER AGREEMENT GOVERNS USE OF THE DESIGNATED CREDIT CARD, AND EMPLOYER MUST REFER TO THAT AGREEMENT AND NOT THIS AGREEMENT TO DETERMINE ITS RIGHTS AND LIABILITIES. BY PROVIDING TRIUMPH WITH ITS CREDIT CARD NUMBER AND ASSOCIATED PAYMENT INFORMATION, EMPLOYER AGREES THAT TRIUMPH IS AUTHORIZED TO IMMEDIATELY INVOICE EMPLOYER’S ACCOUNT FOR ALL SUCCESS FEES DUE AND PAYABLE TO TRIUMPH HEREUNDER AND THAT NO ADDITIONAL NOTICE OR CONSENT IS REQUIRED. EMPLOYER AGREES TO IMMEDIATELY NOTIFY TRIUMPH OF ANY CHANGE IT ITS BILLING ADDRESS OR THE CREDIT CARD ACCOUNT USED FOR PAYMENT HEREUNDER.
CHANGES IN FEES AND BILLING METHODS
TRIUMPH RESERVES THE RIGHT AT ANY TIME TO CHANGE ITS FEES (INCLUDING TO BEGIN CHARGING FOR SERVICES THAT IT IS CURRENTLY PROVIDING FREE OF CHARGE) AND BILLING METHODS, EITHER IMMEDIATELY UPON POSTING ON THE SITE OR BY EMAIL DELIVERY TO YOU.
AT TRIUMPH WE VALUE OUR CUSTOMER’S SATISFACTION IN USING OUR SERVICE TO HIRE GREAT EMPLOYEES. IF (A) AN EMPLOYER HIRES A PROSPECTIVE EMPLOYEE AND TERMINATES THE PROSPECTIVE EMPLOYEE’S EMPLOYMENT BASED ON UNSATISFACTORY PERFORMANCE WITHIN SIXTY (60) DAYS OF THE START DATE, OR (B) A PROSPECTIVE EMPLOYEE VOLUNTARILY TERMINATES HIS OR HER EMPLOYMENT WITHIN SIXTY (60) DAYS OF THE START DATE, OR (C) PROSPECTIVE EMPLOYEE DOES NOT START EMPLOYMENT BECAUSE EITHER EMPLOYER OR PROSPECTIVE EMPLOYER ELECTS NOT TO BEGIN THE EMPLOYMENT RELATIONSHIP CONTEMPLATED IN THE COVERED OFFER (EACH, A "TERMINATION EVENT"), UPON WRITTEN RECEIPT AND CONFIRMATION OF SUCH INFORMATION, TRIUMPH WILL FULLY REFUND (LESS TRANSACTION FEES) TO THE EMPLOYER THE UPFRONT SUCCESS FEE RELATED TO THE TERMINATING PROSPECTIVE EMPLOYEE (IF SUCH UPFRONT SUCCESS FEE WAS PAID BY EMPLOYER PRIOR TO THE TERMINATION EVENT).
LIMITATIONS ON LIABILITY
Through Triumph's Site and Service Users of Triumph may be able to post Content about third parties. Triumph is not liable to third parties for any Content that has been posted or viewed on the Triumph Site or Service. For your convenience, the following are some important details of this Agreement that affect your rights and remedies:
- Our Site includes areas where Prospective Employees or Employers may post Content about an individual or company. We are not responsible for the posting of this Content;
- We are not liable for any contracts created between Prospective Employees and Employers who use our Site and Service;
- We are not required to or under any obligation to review, screen, edit, monitor, or remove any Content posted on our Site, although we reserve the absolute right to remove, screen, or edit any Content at any time and for any reason without any notice to you or any party affected;
- We take no responsibility and assume no liability for any User Content that is posted, stored, uploaded, or transmitted via the Site or the Service, or for any loss or damages that may occur because of such User Content including, but not limited to defamation, slander, libel, falsehoods, obscenity, or profanity;
- We take no responsibility and assume no liability for any claim, action, petition, demand for arbitration or lawsuit alleging injury or damage resulting from any use of the Site or Service, whether arising in tort or contract, law or equity;
- You agree not to hold any other User of Triumph liable for any negative or critical comments, except that you are not obligated to release any other User who submits Content that violates any terms of this Agreement or other policies stated anywhere on our Site;
- Triumph is not liable under any circumstances to any User for any User Content submitted, posted or transmitted by any other User, even if that Content violates this Agreement or other policies stated anywhere on our Site, and Triumph takes no action to remove that Content or terminate that User’s account;
- Your ability to use or interact with this Site is a privilege, not a right, and we reserve the right to take any action that we deem proper, without notice, to prevent any violation, enforce any provision, or rectify any alleged violations, of this Agreement or any applicable law at our sole discretion.
YOU UNDERSTAND AND AGREE THAT IN NO EVENT SHALL Triumph BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE SITE OR SERVICE, INCLUDING WITHOUT LIMITATION, ANY DAMAGES RESULTING FROM LOSS OF USE, DATA, OR PROFITS, WHETHER OR NOT Triumph HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY DAMAGES FOR PERSONAL OR BODILY INJURY OR EMOTIONAL DISTRESS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, OR FROM ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH OTHER USERS OF THE SITE OR SERVICE, ON ANY THEORY OF LIABILITY, RESULTING FROM (A) THE USE OR INABILITY TO USE THE SITE OR SERVICE; (2) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SITE OR SERVICE; OR (3) ANY OTHER MATTER RELATED TO THE SITE OR SERVICE, WHETHER BASED ON WARRANTY, COPYRIGHT, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY.
UNDER NO CIRCUMSTANCES WILL Triumph BE LIABLE TO A POTENTIAL EMPLOYEE FOR THE GREATER OF (1) Triumph's SHARE OF THE SUCCESS FEE PAID BY THE EMPLOYER, OR (2) $100, AS A RESULT OF THE POTENTIAL EMPLOYEE’S USE OF THE SITE OR SERVICE. IN NO EVENT WILL Triumph BE LIABLE TO AN EMPLOYER FOR MORE THAN Triumph's SHARE OF THE SUCCESS FEES PAID BY THE EMPLOYER FOR THE TWELVE MONTH PERIOD DURING WHICH EMPLOYER FIRST ASSERTS A CLAIM ARISING OUT OF OR RELATED TO AN EMPLOYMENT OFFER OR CONSULTING OFFER MADE BY EMPLOYER TO A POTENTIAL EMPLOYEE.
INTELLECTUAL PROPERTY RIGHTS
The design of the Service along with Triumph created text, scripts, graphics, interactive features and the trademarks, service marks and logos contained therein ("Marks"), are owned by or licensed to Triumph, subject to copyright and other intellectual property rights under United States and foreign laws and international conventions. Triumph reserves all rights in and to the Service and the Site. You agree to not engage in the use, copying, or distributing any Content contained within the Site or through the Service unless we have given you express written permission to do so.
LICENSING TO TRIUMPH
You hereby grant to Triumph and its owners, affiliates, representatives, licensors and assigns (the "Triumph Parties") a non-exclusive, fully-paid, royalty-free, world-wide, universal, transferable license to display, publicly perform, distribute, store, broadcast, transmit, reproduce, modify, prepare derivative works and otherwise use and reuse all or any part of your Content ("Your Content") and anything we may make with Your Content through Triumph or any other medium currently invented or invented in the future. We reserve the right to display advertisements in connection with Your Content. We are not required to host, display, or distribute any of your Content and we may refuse to accept or transmit Your Content, and may remove or delete all or any portion of Your Content from Triumph at any time. By submitting any Content to us, you hereby represent and warrant that you own all rights to Your Content or, alternatively, that you have the right to give us the license described above. Finally, you represent and warrant that Your Content does not infringe on the intellectual property rights, privacy rights, publicity rights, or other legal rights of any third party. You understand that when using the Site and/or the Service you will be exposed to Content from a variety of sources, and that Triumph is not responsible for the accuracy, usefulness, safety, or intellectual property rights of or relating to such Content, and that such Content is not the responsibility of Triumph. You further understand and acknowledge that you may be exposed to Content that is inaccurate, offensive, indecent, or objectionable, and you agree to waive, and hereby do waive, any legal or equitable rights or remedies you have or may have against the Triumph Parties with respect thereto, and agree to indemnify and hold the Triumph Parties harmless to the fullest extent allowed by law regarding all matters related to your use of the Site.
DISCLAIMER OF WARRANTIES
THE SITE AND SERVICE ARE PROVIDED TO YOU AS IS, FOR YOUR INFORMATION ONLY. Triumph PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. YOU AGREE THAT YOU ARE RELEASING US FROM ANY LIABILITY THAT WE MAY OTHERWISE HAVE TO YOU IN RELATION TO OR ARISING FROM THIS AGREEMENT, OUR SITE OR OUR SERVICE, FOR REASONS INCLUDING, BUT NOT LIMITED TO, FAILURE OF OUR SERVICE, or NEGLIGENCE OR ANY OTHER TORT.
THE Triumph PARTIES MAKE NO WARRANTY, REPRESENTATION OR CONDITION THAT: (1) THE SITE OR SERVICE WILL MEET YOUR REQUIREMENTS; (2) YOUR USE OF THE SITE OR SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; (3) THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SITE OR SERVICE WILL BE ACCURATE OR RELIABLE; OR (4) ANY ERRORS IN THE SITE OR SERVICE WILL BE CORRECTED.
YOU AGREE THAT YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF THE SITE AND SERVICE.
THE PROVISION OF OUR SERVICE TO YOU IS CONTINGENT ON YOUR AGREEMENT WITH THIS AND ALL OTHER SECTIONS OF THIS AGREEMENT. NOTHING IN THE PROVISIONS OF THIS SECTION SHALL BE CONSTRUED TO LIMIT THE GENERALITY OF THE FIRST PARAGRAPH OF THIS SECTION.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES, REPRESENTATIONS OR CONDITIONS, THE LIMITATION OR EXCLUSION OF IMPLIED WARRANTIES, OR LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY MAY LAST, SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY IN FULL TO YOU. IF YOU ARE A RESIDENT OF A JURISDICTION THAT REQUIRES A SPECIFIC STATEMENT REGARDING RELEASE, THEN THE FOLLOWING APPLIES. FOR EXAMPLE, CALIFORNIA RESIDENTS MUST, AS A CONDITION OF THIS AGREEMENT, WAIVE THE APPLICABILITY OF CALIFORNIA CIVIL CODE SECTION 1542, WHICH STATES, "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR." YOU HEREBY WAIVE THIS SECTION OF THE CALIFORNIA CIVIL CODE. YOU HEREBY WAIVE ANY SIMILAR PROVISION IN LAW, REGULATION, OR CODE THAT HAS THE SAME INTENT OR EFFECT AS THE AFOREMENTIONED RELEASE.
You agree to defend, indemnify and hold harmless the Triumph Parties from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney's fees) arising from:
- your use of and access to the Site and Service;
- your violation of any term of this Agreement;
- your violation of any third party right, including without limitation any copyright, property, or privacy right; or
- any claim that any of Your Content caused damage to a third party. This defense and indemnification obligation will survive this Agreement and your use of the Site and/or Service.
- You also agree that you have a duty to defend us against such claims and we may require you to pay for an attorney(s) of our choice in such cases. You agree that this indemnity extends to requiring you to pay for our reasonable attorneys’ fees, court costs, and disbursements. In the event of a claim such as one described in this section, we may elect to settle with the party/parties making the claim and you shall be liable for the damages as though we had proceeded with a trial.
COMMUNICATIONS DECENCY ACT
We respect the First Amendment and allow our Users to create Content which is user-generated. However, this is an online community so please be respectful and reasonable while communicating with others. Since third parties independently upload their Content to our Site and our Service, we are not liable for any defamatory Content posted on our Site if published by a third party. Although we may choose to edit or delete any clearly defamatory Content, we are not required to, and we reserve all defenses for such speech made available to us by Section 230 of the Communications Decency Act, applicable statutes, the common law, and the First Amendment to the Constitution of the United States of America.
If you are considering attempting to circumvent these defenses by filing suit against us in another country for Content that a third party has posted to our Site, we recommend that you review the Securing the Protection of our Enduring and Established Constitutional Heritage (SPEECH) Act as passed by the United States Congress, which makes foreign libel judgments unenforceable in U.S. courts, unless those judgments comply with the First Amendment to the Constitution of the United States of America.
Without limiting the foregoing, if you believe that your work has been copied and posted on the Site or Service in a way that constitutes copyright infringement, please provide us with the following information: (1) an electronic or physical signature of the persona authorized to act on behalf of the owner of the copyright interest; (2) a description of the copyrighted work that you claim has been infringed; (3) a description of the location on the Site or Service of the material that you claim is infringing; (4) your address, telephone number and e-mail address; (5) a written statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent or the law; and (6) a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf.
CHOICE OF LAW
This Agreement shall be governed by the laws of the state of New York, without giving effect to any principles that provide for the application of the law of another jurisdiction.
Any claim or dispute (excluding claims for injunctive or other equitable relief as set forth below) in connection with the Agreement where the total amount of the award sought is less than Five Thousand U.S. Dollars (US $5,000.00) may be resolved in a cost effective manner through binding non-appearance-based arbitration, at the option of the party seeking relief. Such arbitration shall be initiated through an established alternative dispute resolution provider ("ADR Provider") that offers arbitration as set forth in this section and under the rules of such ADR Provider, except to the extent such rules are in conflict with the Agreement. The party demanding arbitration will propose an ADR Provider and the other party shall not unreasonably withhold consent to use such ADR Provider. The ADR Provider and the parties must comply with the following rules: (1) the arbitration shall be conducted by telephone, online and/or be solely based on written submissions, the specific manner shall be chosen by the party initiating the arbitration; (2) all arbitration proceedings shall be held in English; (3) the arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed to by the parties; and (4) any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Each party shall bear its own costs (including attorney fees) and disbursements arising out of the arbitration, and shall pay an equal share of the fees and costs of the ADR Provider. Notwithstanding the foregoing, the Company may seek injunctive or other equitable relief to protect its intellectual property rights in any court of competent jurisdiction. Please note that the laws of the jurisdiction where you are located may be different from California law, including the laws governing what can legally be sold, bought, exported, offered or imported. You shall always comply with all the international and domestic laws, ordinances, regulations and statutes that are applicable to your use of the Site or the Service.
Any other dispute (including whether the claims asserted are arbitrable) shall be referred to and finally determined by binding and confidential arbitration. Arbitration shall be subject to the Federal Arbitration Act and not any state arbitration law. The arbitration shall be conducted before one commercial arbitrator with substantial experience in resolving commercial contract disputes from the American Arbitration Association ("AAA"). As modified by this Agreement, and unless otherwise agreed upon by the parties in writing, the arbitration will be governed by the AAA’s Commercial Arbitration Rules and, if the arbitrator deems them applicable, the Supplementary Procedures for Consumer Related Disputes (collectively "Rules and Procedures").
You are thus GIVING UP YOUR RIGHT TO GO TO COURT to assert or defend your rights 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. You are entitled to a FAIR HEARING, BUT the arbitration procedures are SIMPLER AND MORE LIMITED THAN RULES APPLICABLE IN COURT. Arbitrator decisions are as enforceable as any court order and are subject to VERY LIMITED REVIEW BY A COURT.
You and Triumph must abide by the following rules: (i) ANY CLAIMS BROUGHT BY YOU OR Triumph MUST BE BROUGHT IN THE PARTIES’ INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING; (ii) THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS, MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING, AND MAY NOT AWARD CLASS-WIDE RELIEF; (iii) in the event that you are able to demonstrate that the costs of arbitration will be prohibitive as compared to costs of litigation, the Triumph will pay as much of your filing and hearing fees in connection with the arbitration as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive as compared to the cost of litigation; (iv) Triumph also reserves the right in its sole and exclusive discretion to assume responsibility for all of the costs of the arbitration; (v) the arbitrator shall honor claims of privilege and privacy recognized at law; (vi) the arbitration shall be confidential, and neither you nor we may disclose the existence, content or results of any arbitration, except as may be required by law or for the purposes of enforcement of the arbitration award; (vii) the arbitrator may award any individual relief or individual remedies that are permitted by applicable law; and (viii) each side pays its own attorneys’ fees and expenses unless there is a statutory provision that requires the prevailing party to be paid its fees and litigation expenses, and then in such instance, the fees and costs awarded shall be determined by applicable law.
The arbitral proceedings, and all pleadings and written evidence will be in the English language. Any written evidence originally in a language other than English will be submitted in English translation accompanied by the original or true copy thereof. The English language version will control. The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator will not have authority to award damages in excess of the amount, or other than the types, allowed by Section 12 of the Terms. Judgment on the award of the arbitrator may be entered by any court of competent jurisdiction. The arbitrator also shall be authorized to grant any temporary, preliminary or permanent equitable remedy or relief it deems just and equitable and within the scope of the Agreement, including, without limitation, an injunction or order for specific performance. The arbitration award shall be final and binding upon the parties without appeal or review except as permitted by New York law or United States federal law.
Notwithstanding the foregoing, either you or Triumph may bring an individual action in small claims court. Further, claims of defamation, violation of the Computer Fraud and Abuse Act, and infringement or misappropriation of the other party’s patent, copyright, trademark, or trade secret shall not be subject to this arbitration agreement. Such claims shall be exclusively brought in the state or federal courts located in Long Island, New York. Additionally, notwithstanding this agreement to arbitrate, either party may seek emergency equitable relief before the state or federal courts located in Suffolk County, New York, in order to maintain the status quo pending arbitration, and hereby agree to submit to the exclusive personal jurisdiction of the courts located withinSuffolk County, New York for such purpose. A request for interim measures shall not be deemed a waiver of the right to arbitrate.
With the exception of the provision above (prohibiting arbitration on a class or collective basis), if any part of this arbitration provision is deemed to be invalid, unenforceable, or illegal, or otherwise conflicts with the Rules and Procedures, then the balance of this arbitration provision shall remain in effect and shall be construed in accordance with its terms as if the invalid, unenforceable, illegal or conflicting provision were not contained herein. If, however, the provision prohibiting arbitration on a class or collective basis is found to be invalid, unenforceable or illegal, then the entirety of this arbitration provision shall be null and void, and neither you nor the Company shall be entitled to arbitration. If for any reason, a claim proceeds in court rather than in arbitration, the dispute shall be exclusively brought in state or federal court in New York. By using the Site or the Service in any manner, you agree to the above arbitration provision.
For more information on AAA, its Rules and Procedures, and how to file an arbitration claim, you may call AAA at 800-778-7879 or visit the AAA website at http://www.adr.org.
You agree that we are not responsible to you for anything that we may otherwise be responsible for, if it is the result of events beyond our control, including, but not limited to, acts of God, war, insurrection, riots, terrorism, crime, labor shortages (including lawful and unlawful strikes), embargoes, postal disruption, communication disruption, failure or shortage of infrastructure, shortage of materials, or any other event beyond our control.
In the event that a provision of this Agreement is found to be unlawful, conflicting with another provision of the Agreement, or otherwise unenforceable, the Agreement will remain in force as though it had been entered into without that unenforceable provision being included in it. If two or more provisions of this Agreement are deemed to conflict with each other’s operation, Triumph shall have the sole right to elect which provision remains in force.
We reserve all rights permitted to us under this Agreement as well as under the provisions of any applicable law. Our non-enforcement of any particular provision or provisions of this Agreement or the any applicable law should not be construed as our waiver of the right to enforce that same provision under the same or different circumstances at any time in the future.
We may suspend the Service or your account or any other provision of services to you, and we may terminate this Agreement, at our discretion without explanation and notice, though we will strive to provide a timely explanation in most cases. If you wish to terminate this Agreement, you may do so by notifying Triumph at any time and closing your account for the Service. Your notice should be sent in writing, in accordance with Section 21 below. Termination of the Agreement may result in the immediate deletion of any Content that you have submitted to Triumph Triumph will not have any liability whatsoever to you for any suspension or termination, including for deletion of Your Content. All provisions of this Agreement which by their nature should survive termination shall survive termination, including, without limitation, ownership provisions, success fee provisions, warranty disclaimers, indemnity and limitations of liability.
You may not assign your rights and/or obligations under this Agreement to any other party without our prior written consent. We may assign our rights and/or obligations under this Agreement to any other party at our discretion.
Where Triumph requires that you provide an e-mail address, you are responsible for providing Triumph with your most current e-mail address. In the event that the last e-mail address you provided to Triumph is not valid, or for any reason is not capable of delivering to you any notices required or permitted by this Agreement, Triumph's dispatch of the e-mail containing such notice will nonetheless constitute effective notice.
The Agreement is the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter.
The communications between you and Triumph use electronic means, whether you visit the Site or the Service or send Triumph e-mails, or whether Triumph posts notices on the Site or Service or communications with you via 3-mail. For contractual purposes, you (1) consent to receive communications from Triumph in an electronic form; and (2) agree that all terms, conditions, agreements, notices, disclosures, and other communications that Triumph provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect your statutory rights.