Welcome to PowerToFly, a service owned and operated by PowerToFly Inc., a Delaware corporation (“PowerToFly”,“we”, “us” or “our”). These terms of service (the “Terms of Service”) govern your (“you” or “your”) access to and use of the website, located at www.PowerToFly.com, and any other PowerToFly branded websites, web pages, mobile applications and mobile websites operated by PowerToFly (the “Site” or “Platform”) and all related services, including access to the Platform (the “Services”) provided by PowerToFly via the Site.
If you have entered into a separate paid Master Subscription Agreement with us, then the terms of that agreement control if it conflicts with these Terms of Service.
If you have not entered into a separate paid Master Subscription Agreement with us, then by using the Services, clicking on the “I Agree” Button, completing the registration process, and/or browsing the Site, you represent that (1) you have read, understand, and agree to be bound by the Terms of Service, (2) you are of legal age to form a binding contract with PowerToFly, and (3) you have the authority to enter into the Terms of Service personally or on behalf of the company or other organization you have named as the user, and to bind that entity to these Terms of Service. In the event you are agreeing to these Terms of Service on behalf of a company or organization, “you” and “your” will refer to the entity you are representing.
Your use of, and participation in, certain Services may be subject to additional terms (“Supplemental Terms”) and such Supplemental Terms will either be listed in the Terms of Service or will be presented to you for your acceptance when you sign up to use the supplemental Service. If the Terms of Service are inconsistent with the Supplemental Terms, the Supplemental Terms shall control with respect to such Service. The Terms of Service and any applicable Supplemental Terms are referred to herein as the “Terms.”
1. Table of Contents. These Terms of Service contains the following sections:
3. Your use of the Services
4. PowerToFly’s role
5. User Content
6. Restrictions on your use of the Service
7. Fees; payment
9. IP ownership
10. Term; termination
11. Risk allocation
2.1. “Company User” means user of the Service on behalf of an entity.
2.2. “Content” means any content or information that PowerToFly or Users post, transmit or submit through the Platform or Service.
2.3. “Individual User” means an individual user of the Service, including an individual user participating in PowerToFly’s VIP Membership Program, not using the Service on behalf of an entity.
2.4. “Order Form” means the purchasing documents entered into by you and PowerToFly, including any online or clickthrough order form.
2.5. “Platform” means the PowerToFly branded websites, web pages, mobile applications and mobile websites operated by PowerToFly.
2.6. “Services” means access to the Platform as described in an Order Form and any other services described in an Order Form.
2.7. “Subscription Term” means the period of time during which PowerToFly permits you to access the Services, as specified in an Order Form.
2.8. “User” means users of the Platform, including Individual Users and Company Users.
3. Your use of the Services.
3.1. Subject to the terms and conditions herein, PowerToFly hereby grants you a non-exclusive, non-transferable, revocable license to use the Services solely for your internal business purposes for the duration of the Subscription Term.
3.2. PowerToFly may choose to modify or discontinue the Services, including any portions of the Services as we update our offerings and add more features. We may stop, suspend, or modify the Services at any time without prior notice to you.
3.3. PowerToFly may update these Terms from time to time. The most current version of these Terms will be posted on Site. When changes are made, PowerToFly will make a new copy of the Terms available at the Site and any new Supplemental Terms will be made available from within, or through, the affected Service on the Site. We will also update the “Last Updated” date at the top of the Terms of Service. Any changes to the Terms will be effective immediately for new users of the Services and, for all other users, any changes to the Terms will be effective thirty (30) days after posting notice of such changes on the Site, or within or through the affected Service on the Site, as applicable. If we determine in our sole discretion that an update is material, we will notify you through the Service and/or by email to the email address associated with your account. We may also inform you of updates to the Terms in our blogs. We may require you to provide consent to the updated Terms in a specified manner before further use of the Services is permitted. If you do not agree to any change(s) after receiving a notice of such change(s), you shall stop using the Services. Otherwise, your continued use of the Services constitutes your acceptance of such change(s). Please check the Site regularly to view our then-current Terms of Service.
3.4. PowerToFly 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.
3.5. You will comply with all applicable laws, including without limitation, privacy laws, employment laws, intellectual property laws, anti-spam laws, export control laws, tax laws and regulatory requirements, including all laws prohibiting discrimination, harassment, and retaliation and all laws concerning timekeeping, exemption, wage payments, meal and rest breaks, expense reimbursements, leave, and safety.
3.6. In order to access the Platform, you will need to register for an account. To register for an account, you must be, and hereby represent that you are, a legal entity or individual 18 years or older who can form legally binding contracts. Additionally, you agree to (1) provide accurate, current and complete information in connection with your account registration and (2) maintain and promptly update such information to keep it accurate, current and complete. You must not provide false or misleading information about your location, your business, your skills, or the services your business provides.
3.7. When you register for an account and from time to time thereafter, your account may be subject to verification, including, but not limited to, validation against third-party databases or the verification of one or more official government or legal documents that confirm your identity. You authorize PowerToFly directly or through third parties, to make any inquiries necessary to validate your identity and confirm ownership of your email address, subject to applicable law. When requested, you must provide us with information about you and/or your business.
3.8. You are responsible for maintaining the confidentiality of your password and account login, and you are solely responsible for all activities that occur under your account. You agree to immediately notify us of any unauthorized use of your password or account.
4. PowerToFly’s role. YOU ACKNOWLEDGE AND AGREE THAT POWERTOFLY MERELY PROVIDES A TECHNOLOGY PLATFORM AND IS NOT RESPONSIBLE FOR HIRING DECISIONS. EACH EMPLOYER MAKES AND SOLELY CONTROLS ALL DECISIONS WITH RESPECT TO HIRING OR NOT HIRING INDIVIDUAL USERS.
5. User Content.
5.1. As a user of the Platform and Services, you may have the opportunity to post or transmit Content, such as User profiles and images, and reviews of other Users (“Reviews”), and messages to other Users or on group forums. You are solely responsible for any Content you post on the Platform or transmit to other Users through the Service, and once posted or transmitted, cannot always be withdrawn. Reviews containing the following types of content may be removed by PowerToFly:
5.1.1. spam, advertising or other commercial content;
5.1.2. content that endorses illegal activity;
5.1.3. political, religious, or social commentary rather than a genuine comment regarding the work experience; and
5.1.4. profane, vulgar, obscene, slanderous, libelous, threatening or discriminatory language, or adult material.
5.2. User Content must be in English. All Content that you post must be in English as the Platform and Services are not currently supported in any other languages.
5.3. Review guidelines. Users may have the opportunity to provide Reviews about other Users. Reviews should not include any personal information about another User that is not disclosed in that User’s profile. As with other User Content, we reserve the right to remove any Review that we feel, in our sole discretion, violates these guidelines. PowerToFly does not represent or guarantee the truthfulness, accuracy or reliability of User Content, derivative works from User Content, or any other communications posted by Users, nor does PowerToFly endorse any opinions expressed by Users. You acknowledge that any reliance on material posted by other Users is at your own risk.
5.4. Our right to use your User Content. By posting Content, including Reviews, to the Platform, you grant, and you represent and warrant that you have the right to grant, to PowerToFly, its affiliates, licensees and successors, an irrevocable, perpetual, non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to use, copy, perform, display, reproduce, adapt, modify and distribute such information and content and to prepare derivative works of (including by Re-Posting as defined below), or incorporate into other works, such information and content. “Re-Posting” means the act of taking your Content and posting it, directly or indirectly, in its original or derivative form, on the Platform or a third party platform.
5.5. Content removal. PowerToFly may, but we have no obligation to, monitor Content submitted on the Platform, including profiles and/or Reviews. We may remove any such information, and material that in our sole opinion either (i) violates, or may violate, any applicable law or either the letter or spirit of the Terms, (ii) might be offensive, illegal or that might violate the rights, harm, or threaten the safety of users or others, or (iii) is determined to be inappropriate for any other reason at the sole discretion of PowerToFly.
5.6. Passive Profiles. PowerToFly may, from time to time, create a PowerToFly profile on behalf of a Candidate using publicly-derived information. Such a profile will be labeled “Passive Profile.” When the Candidate logs into the Platform, the Candidate will become an Individual User. Should you wish to opt-out, send an email to firstname.lastname@example.org.
6. Restrictions on your use of the Service.
6.1. You agree not to access, copy, or otherwise use the Platform or the Service, including our intellectual property and trademarks, except as authorized by the Terms or as otherwise authorized in writing by PowerToFly. The following restrictions apply to your use of the Platform and the Services:
6.1.1. you will not copy, distribute or disclose any part of the Platform or the Service in any medium, including without limitation by any automated or non-automated “scraping”;
6.1.2. you will not use any automated system, including without limitation “robots,” “spiders,” “offline readers,” etc., to access the Platform or the Service in a manner that sends more request messages to PowerToFly servers than a human can reasonably produce in the same period of time by using a conventional on-line web browser;
6.1.3. you will not attempt to interfere with, compromise the system integrity or security, or decipher any transmissions to or from the servers running the Platform or Service;
6.1.4. you will not upload invalid data, viruses, worms or other software agents through the Service;
6.1.5. you will not collect or harvest any personally identifiable information, including account names, from the Service;
6.1.6. you will not post anything that contains others’ copyrighted content unless you have written permission from the copyright owner;
6.1.7. you will not post anything that contains or discloses another person’s personal information without his or her written permission, or collects or solicits another person’s personal information for commercial or unlawful purposes;
6.1.8. you will not post anything that implies that the User Content is in any way endorsed or sponsored by PowerToFly;
6.1.9. you will not harass, annoy, threaten or intimidate any other Users of the Platform;
6.1.10. you will not misrepresent identity, including but not limited to the use of a pseudonym;
6.1.11. you will not use an image that is not your likeness or a head-shot photo for your profile;
6.1.12. you will not use scripts, bots or other automated technology to access the Platform, and
6.1.13. you will not attempt to circumvent PowerToFly’s messaging tools or booking platform, or attempts to avoid applicable PowerToFly fees.
6.2. You agree that you will not: (a) permit any third party to access and/or use the Service; (b) rent, lease, loan, or sell access to the Service to any third party; (c) interfere with, disrupt, alter, translate, or modify the Service or any part thereof, or create an undue burden on the Service or the networks or services connected to the Service, including any external websites that are linked to via the Service; (d) reverse engineer or access the Service in order to (i) build a competitive product or service, (ii) build a product using similar ideas, features, functions or graphics of the Service, or (iii) copy any ideas, features, functions or graphics of the Service; (e) without PowerToFly’s express written permission, introduce software or automated agents or scripts to the Service so as to produce multiple accounts, generate automated searches, requests and queries, or to strip or mine data from the Service; (f) perform or publish any performance or benchmark tests or analyses relating to the Service or the use thereof; or (g) cover or obscure any page or part of the Service via HTML/CSS, scripting, or any other means, if any.
6.3. In addition, you agree not to use, or encourage or permit others to use, the Platform or Service to (w) stalk and/or harass another; (x) harm minors in any way; (y) impersonate any person or entity, or falsely state or otherwise misrepresent your affiliation with a person or entity; or (z) engage in any chain letters, contests, junk email, pyramid schemes, spamming, surveys or other duplicative or unsolicited messages (commercial or otherwise).
7. Fees; payment. You shall pay the fees set forth in the applicable Order Form. PowerToFly shall issue invoices to you for the fees set out in any Order Form. You shall pay all properly invoiced amounts due to PowerToFly upon your receipt of such invoice, unless different payment terms are set out in the Order Form. All payments hereunder shall be in US dollars. You shall be responsible for all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state or local government entity on any amounts payable by you hereunder; provided that in no event shall you pay or be responsible for any taxes imposed on, or with respect to, PowerToFly’s income, revenues, gross receipts, personnel or real or personal property or other assets.
7.1 You acknowledge that for 12 months from the time you identify or are identified by any Candidate through the Platform (the “Non-Circumvention Period”) to perform, you must use the Platform as your exclusive method to request services from Candidates, or you must inform PowerToFly of communications via email, phone, instant messenger/chat service, or by any other means. If you attempt to circumvent the Platform, you agree to pay PowerToFly:
7.1.1 an opt-out fee equal to 40% of the Candidate’s estimated annual salary during the Non-Circumvention Period; and
7.1.2 interest at the rate of 10% per annum or the maximum rate permitted by applicable law, whichever is less, calculated from the date you first makes payment to the Candidate until the date you pay the fee in Section 7.2.
7.2 Except if you pay the opt-out fee as outlined above, you agree not to circumvent the payment methods and/or structures offered through the Platform and Services. By way of example, you shall not solicit Candidates identified through the Platform to contact, hire, work with, or pay outside of the Platform.
7.3 In the event payments are not received by PowerToFly within 60 days of the invoice due date, PowerToFly may (a) charge an initial late fee of 5% of the past due, and thereafter charge interest on any such unpaid amounts at a rate of 5% per month, or if lower, the maximum amount permitted under applicable law, until paid, and (b) suspend your access to the Service until payment has been made in full.
7.4 Individual User fees are nonrefundable as set forth in the applicable Order Form. To cancel your participation in our VIP Membership Program, email email@example.com.
8. Confidentiality; publicity.
8.1. Definition of Confidential Information. “Confidential Information” means all information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Your Confidential Information includes your Content; our Confidential Information includes the Services and Content (other than your Content), the terms and conditions of the Terms and all Order Forms (including pricing), as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by us. However, Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party.
8.2. Use of Confidential Information. The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) to (i) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of the Terms and (ii) except as otherwise authorized by the Disclosing Party in writing, limit access to Confidential Information of the Disclosing Party to those of its and its affiliates’ employees and contractors who need that access for purposes consistent with the Terms and who are bound by confidentiality agreements with the Receiving Party containing protections not materially less protective of the Confidential Information than those herein. Neither party will disclose the terms of the Terms or any Order Form to any third party other than its affiliates, legal counsel and accountants without the other party’s prior written consent, provided that a party that makes any such disclosure to its affiliate, legal counsel or accountants will remain responsible for such affiliate’s, legal counsel’s or accountant’s compliance with this “Confidentiality” section. Notwithstanding the foregoing, we may disclose the terms of these Terms of Service and any applicable Order Form or Supplemental Terms in connection with a strategic transaction or to a subcontractor to the extent necessary to perform our obligations to you under the Terms, in any case under terms of confidentiality materially as protective as set forth herein.
8.3. Compelled disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to that Confidential Information.
8.4. General marketing material. We may use the name of Company User including, but not limited to, in press releases, social media accounts and channels, news, interviews, promotional materials, advertisements in any medium, and financial reports in reference to this agreement without any written permission, fees, payments, licensing, royalties, or any type of compensation paid to Company User for use of Company User’s name and Trademarks.
9. IP ownership. Subject to the limited rights expressly granted hereunder, we and our licensors reserve all of our/their right, title and interest in and to the Services and Content, including all of our/their related intellectual property rights. No rights are granted to you hereunder other than as expressly set forth herein.
10. Term; termination.
10.1. Term of agreement. The Terms commence on the date first written above and continues until all Order Forms hereunder have expired or have been terminated.
10.2. Term of subscriptions. The term of each subscription shall be as specified in the applicable Order Form. Except as otherwise specified in an Order Form, subscriptions will automatically renew for additional periods equal to the expiring Subscription Term or one year (whichever is shorter), unless either party gives the other notice of non-renewal at least 30 days before the end of the relevant Subscription Term. Except as expressly provided in the applicable Order Form, renewal of promotional or one-time priced subscriptions will be at our applicable list price in effect at the time of the applicable renewal.
10.3. Termination. A party may terminate these Terms of Service or any Order Form or Supplemental Terms for cause (i) upon 30 days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
10.4. Refund or payment upon termination. If the Terms is terminated by us in accordance with Section 10.3, you will pay any unpaid fees covering the remainder of the term of all Order Forms. In no event will termination relieve you of your obligation to pay any fees payable to us for the period prior to the effective date of termination.
10.5. Effect of termination.
10.5.1. Upon the termination or suspension of your account, you will no longer have access to the portions of the Platform and Services that require account registration. If your account is terminated, your profile will no longer be displayed, but other Content you have posted or transmitted (e.g., Reviews, messages to other Users) may or may not (in our sole discretion) remain on the Platform.
10.5.2. You acknowledge and agree that: (a) caching of, copies of or references to your Content may not be immediately removed; (b) such removed Content may persist in backups (not available to others) for a reasonable period of time; and (c) such removed Content may be available (and stored on our servers) through the accounts of other Users, such as because of Re-Posting.
10.5.3. You understand and acknowledge that you have no ownership rights in your account and that if you cancel your account, or if your account is terminated, all of your account information from the Platform, including, but not limited to, your profile, Content and Reviews will be marked as deleted and may be deleted from PowerToFly’s databases and will be removed from any public area of the Platform.
10.5.4. The sections titled “Fees; payment”, “Confidentiality”, “IP ownership”, Term; termination”, “Risk allocation” and “Miscellaneous” will survive any termination or expiration of the Terms.
11. Risk allocation.
11.1. Indemnification by us. We will defend you against any claim, demand, suit or proceeding made or brought against you by a third party alleging that the Services infringe or misappropriate such third party’s intellectual property rights (a “Claim Against You”), and will indemnify you from any damages, attorney fees and costs finally awarded against you as a result of, or for amounts paid by you under a settlement approved by us in writing of, a Claim Against You, provided you (a) promptly give us written notice of the Claim Against You, (b) give us sole control of the defense and settlement of the Claim Against You (except that we may not settle any Claim Against You unless it unconditionally releases you of all liability), and (c) give us all reasonable assistance, at our expense. If we receive information about an infringement or misappropriation claim related to a Service, we may in our discretion and at no cost to you (i) modify the Services so that they are no longer claimed to infringe or misappropriate, (ii) obtain a license for your continued use of that Service in accordance with the Terms, or (iii) terminate your subscriptions for that Service upon 30 days’ written notice and refund you any prepaid fees covering the remainder of the term of the terminated subscriptions. The above defense and indemnification obligations do not apply to the extent a Claim Against You arises from Content, a Third Party Site or your use of the Services in violation of the Terms or applicable Order Forms.
11.2. Indemnification by you. You will defend us against any claim, demand, suit or proceeding made or brought against us by a third party alleging that any of your Content infringes or misappropriates such third party’s intellectual property rights, or arising from your use of the Services or Content in violation of the Terms, Order Form or applicable law (each a “Claim Against Us”), and you will indemnify us from any damages, attorney fees and costs finally awarded against us as a result of, or for any amounts paid by us under a settlement approved by you in writing of, a Claim Against Us, provided we (a) promptly give you written notice of the Claim Against Us, (b) give you sole control of the defense and settlement of the Claim Against Us (except that you may not settle any Claim Against Us unless it unconditionally releases us of all liability), and (c) give you all reasonable assistance, at your expense.
11.3. Exclusive remedy. This Section 11 states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of claim described in this Section 11.
11.4. Limitation of liability. IN NO EVENT SHALL THE AGGREGATE LIABILITY OF EACH PARTY TOGETHER WITH ALL OF ITS AFFILIATES ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID BY YOU AND YOUR AFFILIATES HEREUNDER FOR THE SERVICES GIVING RISE TO THE LIABILITY IN THE TWELVE MONTHS PRECEDING THE FIRST INCIDENT OUT OF WHICH THE LIABILITY AROSE. THE FOREGOING LIMITATION WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, BUT WILL NOT LIMIT YOUR AND YOUR AFFILIATES’ PAYMENT OBLIGATIONS UNDER THE “FEES; PAYMENT” SECTION ABOVE.
11.5. Exclusion of consequential and related damages. IN NO EVENT WILL EITHER PARTY OR ITS AFFILIATES HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT FOR ANY LOST PROFITS, REVENUES, GOODWILL, OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER, BUSINESS INTERRUPTION OR PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY OR ITS AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF A PARTY’S OR ITS AFFILIATES’ REMEDY OTHERWISE FAILS OF ITS ESSENTIAL PURPOSE. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.DISCLAIMER OF WARRANTIES
11.6. Disclaimers. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. CONTENT AND BETA SERVICES ARE PROVIDED “AS IS,” EXCLUSIVE OF ANY WARRANTY WHATSOEVER. EACH PARTY DISCLAIMS ALL LIABILITY AND INDEMNIFICATION OBLIGATIONS FOR ANY HARM OR DAMAGES CAUSED BY ANY THIRD-PARTY HOSTING PROVIDERS.
12.1. Governing law and venue. New York law governs these Terms of Service and any Order Forms and Supplemental Terms, as well as any claim, cause of action or dispute that might arise between you and PowerToFly, without regard to conflict of law provisions. For any such claim, cause of action or dispute, you agree and consent to the exclusive jurisdiction and venue of the state and federal courts of the State of New York, City and County of New York. In the event of a dispute arising out of the Terms of Service or any Order Forms or Supplemental Terms, and prior to either party initiating legal action relating to such agreements, the parties agree to attempt to resolve any dispute by good faith negotiation between the parties.
12.2. Discrimination. PowerToFly does not discriminate against any User because of race, color, national or ethnic origin, age, religion, disability, sex, sexual orientation, gender identity and expression, veteran status or any other characteristic protected under applicable federal or state law.
12.3. Entire agreement and order of precedence. These Terms of Service, together with any Order Forms or Supplemental Terms entered into between you and us that incorporate the terms hereof by reference, is the entire agreement between you and us regarding your use of the Services and Content and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. Except as otherwise provided herein, no modification, amendment, or waiver of any provision of the Terms will be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted. The parties agree that any term or condition stated in your purchase order or in any other of your order documentation (excluding Order Forms) is void. In the event of any conflict or inconsistency among the following documents, the order of precedence shall be: (1) the applicable Order Form, (2) the applicable Supplemental Terms, and (3) these Terms of Service.
12.4. Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other party’s prior written consent (not to be unreasonably withheld); provided, however, either party may assign these Terms of Service in its entirety (together with all Order Forms and Supplemental Terms), without the other party’s consent to its affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets.
12.5. Relationship of the parties. The parties are independent contractors. The Terms do not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.
12.6. International access. The Platform and Services may be accessed from countries other than the United States. This Site and the Services may contain references to services that are only available within the United States and U.S. territories. Any such references do not imply that such services will be made available outside the United States. If you access and use this Site outside the United States you are responsible for complying with your local laws and regulations.
12.7. Severability. If any provision of the Terms is held unenforceable, then such provision will be modified to reflect the parties’ intention, and all remaining provisions of the Terms shall remain in full force and effect.
12.8. Waiver. Any waiver or failure to enforce any provision of the Terms on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
12.9. Third Party Sites. The Platform may include links to other websites (including other sites that are framed within the Platform) or applications, or functionality to connect with other websites (each, a “Third Party Site”) or advertisements. We do not control or endorse any Third Party Site or advertisements, and we are not responsible for any content, product, advertising and other materials presented in or provided by such Third Party Site or advertisement. your use and access of a Third Party Site is at your own risk, and is subject to the terms and conditions for such Third Party Site. PowerToFly makes no effort to review any of the Third Party Sites agreements for any purpose, including but not limited to, for accuracy, legality or non-infringement, and PowerToFly is not responsible for any Third Party Site content or agreements.
12.10. DMCA NOTICES. We have a copyright agent, which limits our liability under the Digital Millennium Copyright Act. It is our policy to terminate the account of any user who repeatedly infringes copyright upon prompt notification to PowerToFly by the copyright owner or the copyright owner’s legal agent. Without limiting the foregoing, if you believe that your work has been copied or posted on the Platform or through the Service in a way that constitutes copyright infringement, please provide our copyright agent 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 Platform 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. Contact information for the PowerToFly’s copyright agent for notice of claims of copyright infringement is as follows: