TERMS OF SERVICE
TERMS AND CONDITIONS
1. Introduction. Please read this page carefully. It contains the terms and conditions (the “Terms and Conditions”) governing your access to and use of the Brinkley, Clary & Thomas LLC Web Sites and the Services (as each are defined below) provided by Brinkley, Clary & Thomas LLC. or one of its divisions (collectively, “BCAT”). If you do not accept these Terms and Conditions or you do not meet or comply with their provisions, you may not use the BCAT Web Sites or Services. These Terms and Conditions are effective as of October 1, 2017.
2. Binding Agreement. These Terms and Conditions (as they may be amended from time to time by BCAT) form a binding agreement (the “Agreement”) between you and BCAT. Your access to or use of the BCAT Web Sites or Services indicates your acceptance of these Terms and Conditions. You are agreeing to use the Sites at your own risk.
3. Certain Definitions. The following definitions apply to this Agreement:
3.1 “BCAT Materials” includes any materials, methodologies, implementation plans or other intellectual property used during the provision of Services.
3.2 “BCAT Web Site” or the “Site” (collectively, the “Guardian Websites” or the “Sites”) means any web site under BCAT’s control, whether partial or otherwise and includes such Site’s Content, BCAT Materials and Services (as applicable in each context).
3.3 “Content” means BCAT’s web pages, web forms, programming (including software code used on the Sites and in the Services, including (i) tools, kits, and object libraries, (ii) all third-party or open source code embedded therein, and (iii) any upgrades, updates, releases, fixes, enhancements or modifications to the foregoing), graphics, images, design (color combinations and page layout), text, information, data, resumes stored in various commercial databases operated and licensed by BCAT, data submitted via the Sites by Users and other content made available through the Sites by BCAT.
3.5 “Document” refers to any posting to a Site, including, without limitation, resumes, waivers, profiles, birth certificates, etc.
3.6 “Employer” means a person or entity that is accessing a Site to access or manage Documents or to use the Services for any reason related to the purposes for which the Site is designed.
3.7 “Job Seeker” means a User who is accessing a Site to post Documents or information for an Employer or in any other capacity except as an Employer.
3.8 “Services” means any services provided by BCAT or its agents.
3.9 “User” refers to any individual or entity that uses any aspect of the Sites.
3.10 “You” or “you” means the person who is agreeing to these Terms and Conditions.
4. Intellectual Property Rights and Acceptable Use of the Sites and Services.
4.1 General Use Rules. The Sites are intended for individuals to post Documents or information for an Employer and for Employers to manage Documents and information for candidates for employment. You may use the Sites only for lawful purposes within the stated context of BCAT’s intended and acceptable use of the Sites. BCAT is the sole interpreter of the Sites’ intended and acceptable use.
4.2 BCAT Intellectual Property Rights. The Sites, the BCAT Materials and all right, title and interest in and to the Sites and BCAT Materials are the sole property of BCAT or its licensors, and are protected by United States and foreign copyright, trademark and other laws. Except for the limited licenses expressly granted to you in these Terms and Conditions, BCAT reserves for itself and its licensors all other rights, title and interest. Without limitation on the foregoing, you may not reproduce, modify, display, sell, or distribute the Content or BCAT Materials, or use them in any other way for public or commercial purpose. Notwithstanding anything to the contrary contained herein, this prohibition includes: (a) copying or adapting the HTML code used to generate web pages on the Sites; (b) using or attempting to use engines, manual or automated software, tools, devices, agents, scripts, robots or other means, devices, mechanisms or processes (including, but not limited to, browsers, spiders, robots, avatars or intelligent agents) to navigate, search, access, “scrape,” “crawl,” or “spider” any web pages or any Services provided on the Sites other than the search engine and search agents available from BCAT on such BCAT Sites and other than generally available third party web browsers (e.g., Internet Explorer, Firefox, Safari); and (c) aggregating, copying or duplicating in any manner any of the Content or information available from any of the BCAT Sites, without the express written consent of BCAT. The use of the Content on any other web site or in a networked computer environment for any purpose is strictly prohibited. The BCAT design logo and certain other names or logos are service marks or trademarks of BCAT, and all related product and service names, design marks and slogans are the service marks or trademarks of BCAT. In addition, the “look” and “feel” of the Sites (including color combinations, button shapes, layout, design and all other graphical elements) are also protected by BCAT’s trademarks, service marks and copyrights. Any code that BCAT creates to generate or display the Content or the pages making up the Sites is also protected by BCAT’s copyright. You must retain all copyright, trademark, service mark and other proprietary notices contained on the Content or BCAT Materials on any authorized copy you make of the Content or BCAT Materials. All other product and service marks contained on the Sites are the trademarks of their respective owners.
4.3 License to Use by Users. BCAT hereby grants you a limited, terminable, non-exclusive right to access and use the Sites: (i) if you are a Job Seeker, only for your personal use to post Documents or other information for an Employer; or (ii) if you are an Employer, to manage Documents and information for Job Seekers. You agree that you are solely responsible for the content of any Document you post to a Site and any consequences arising from such posting. Your use of the Sites is a privilege. BCAT reserves the right to suspend or terminate that privilege for any reason at any time, in its sole discretion.
4.4 Use of Aggregate Data. You understand and agree that BCAT owns and has the right to collect, extract, compile, synthesize, and analyze Aggregate Data. BCAT may use such Aggregate Data for any lawful business purpose without a duty of accounting to you, provided that the data and information is used only in an aggregated and anonymized form so that it cannot be identifiable as relating to you or to any other Job Seekers. “Aggregate Data” means de-identified aggregated data or information regarding Job Seekers’ educational or career history (including, by way of example and not limitation, aggregate data relating to Job Seekers’ occupation, location, salary, education and experience).
4.5 Other Specific Rules Regarding Site Usage. You represent, warrant and agree that you (a) are at least 18 years of age or older; and (b) will not use (or plan, encourage or help others to use) the Sites for any purpose or in any manner that is prohibited by these Terms and Conditions or by applicable law. It is your responsibility to ensure that your use of the Sites complies with these Terms and Conditions and all applicable laws.
4.6 User Submissions. BCAT welcomes your comments regarding the Services and the Sites and appreciates hearing from you. Please note, however, that BCAT does not accept or consider creative ideas, suggestions, inventions or materials other than those which it has specifically requested. If you submit feedback on the Services, please be specific in your comments and do not submit creative ideas, inventions, suggestions, or materials. If, despite this notice, you send BCAT creative suggestions, ideas, drawings, concepts, inventions, or other information (a “User Submission”), you understand and agree that the User Submission shall become the property of BCAT. User Submission and any elements contained in User Submissions, shall not be subject to any obligation of confidentiality on BCAT’s part, and BCAT will not be liable for any use or disclosure of any User Submission. BCAT shall exclusively own all now known or later discovered rights to the User Submission and shall be entitled to unrestricted use of the User Submission for any purpose whatsoever, commercial or otherwise, without compensation to you or any other person.
5. Third Party Providers. You acknowledge and agree that BCAT may provide the Services using third party providers, including subcontractors and consultants (the “Third Party Providers”). You agree that, as between BCAT and its Third Party Providers, BCAT will have sole responsibility for handling all billing and contract negotiations.
6. Disclaimers and Limitations on BCAT’s Liability.
6.1 Allocation of Responsibility BCAT assumes no responsibility for Documents posted by Users and no responsibility for the activities, omissions or other conduct of Users. BCAT acts as a portal for the online distribution and publication of User submitted information and has no obligation to screen communications or information in advance and is not responsible for screening or monitoring Documents posted by Users. If notified by a User of a Document which allegedly does not conform to these Terms and Conditions, BCAT may investigate the allegation and determine in good faith and in its sole discretion whether to remove or request the removal of such Document. BCAT has no liability or responsibility to Users for performance or nonperformance of such activities. BCAT may take any action with respect to User submitted information that it deems necessary or appropriate, in its sole discretion.
6.2 No endorsements by BCAT. Nothing on the Sites shall be considered an endorsement, representation or warranty with respect to any User or third party, whether in regards to its web site, products, services, hiring, experience, employment or recruiting practices, or otherwise.
6.3 WARRANTY DISCLAIMERS.
(a) THE SITES ARE PROVIDED ON AN ‘AS IS’ BASIS WITHOUT ANY WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED. BCAT, TO THE FULLEST EXTENT PERMITTED BY LAW, DISCLAIMS ALL WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT OF THIRD PARTIES’ RIGHTS, AND FITNESS FOR A PARTICULAR PURPOSE. BCAT MAKES NO WARRANTIES ABOUT THE ACCURACY, RELIABILITY, COMPLETENESS, OR TIMELINESS OF THE SITES.
(b) WITHOUT LIMITATION ON THE FOREGOING:
(i) BCAT DOES NOT WARRANT THAT THE SITES WILL OPERATE ERROR-FREE OR THAT THE SITES AND THEIR SERVERS ARE FREE OF COMPUTER VIRUSES OR OTHER HARMFUL MECHANISMS. IF YOUR USE OF THE SITES RESULTS DIRECTLY OR INDIRECTLY IN THE NEED FOR SERVICING OR REPLACING EQUIPMENT OR DATA, BCAT IS NOT RESPONSIBLE FOR THOSE COSTS.
(ii) BCAT makes no representations or guarantees regarding the Content of the Sites, including, but not limited to, broken links, inaccuracies or typographical errors.
(iii) BCAT MAKES NO REPRESENTATIONS OR GUARANTEES REGARDING THE EFFECTIVENESS OF THE SERVICES OR TIMELINESS OF THE SERVICES IN MEETING YOUR EMPLOYMENT OBJECTIVES.
6.4 DAMAGE LIMITATIONS, ALLOCATIONS OF LIABILITY AND EQUITABLE RELIEF.
(a) YOU ASSUME ALL RESPONSIBILITY AND RISK FOR YOUR USE OF THE SITES, THE INTERNET GENERALLY, AND THE DOCUMENTS THAT YOU USE, POST, PROVIDE OR ACCESS AND FOR YOUR CONDUCT ON AND OFF THE SITES.
(b) IN NO EVENT SHALL BCAT (OR ANY OF ITS OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, SUBSIDIARIES, AFFILIATES, AGENTS OR ADVERTISERS), BE LIABLE FOR ANY NON-DIRECT DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, INCIDENTAL AND CONSEQUENTIAL DAMAGES, LOST PROFITS, OR DAMAGES RESULTING FROM LOST DATA, LOST EMPLOYMENT OPPORTUNITY, OR BUSINESS INTERRUPTION) RESULTING FROM OR ARISING UNDER OR IN CONNECTION WITH SERVICES OR THE USE OR ACCESS TO, OR THE INABILITY TO USE OR ACCESS, THE SITES AND/OR ANY DOCUMENT, WHETHER BASED ON WARRANTY, CONTRACT, TORT, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT BCAT IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
(c) BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE LIMITATIONS SET FORTH IN THE PRECEDING PARAGRAPH MAY NOT APPLY TO YOU. IF ANY ARE HELD INAPPLICABLE OR UNENFORCEABLE FOR ANY REASON, THEN BCAT’S MAXIMUM LIABILITY TO YOU FOR ANY NON-DIRECT TYPE OF DAMAGES SHALL BE LIMITED TO U.S. $200.00 IN THE AGGREGATE.
(d) IN NO EVENT SHALL BCAT (OR ANY OF ITS OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, SUBSIDIARIES, AFFILIATES, AGENTS OR ADVERTISERS), BE LIABLE FOR ANY DIRECT DAMAGES IN EXCESS IN THE AGGREGATE OF US $200.00.
(e) Due to the nature of this Agreement, in addition to money damages, you agree that BCAT will be entitled to equitable relief upon a breach of this agreement by you.
6.5 User Authentication. Because User authentication on the Internet is difficult, BCAT cannot and does not confirm that each User is who they claim to be. Because BCAT does not and cannot be involved in User-to-User dealings or control the behavior of participants on the Sites, in the event that you have a dispute with one or more Users, you release BCAT from claims, demands and damages (actual and consequential and direct and indirect) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such disputes.
6.6 California Residents. If you are a California resident, you waive California Civil Code Section 1542, which says: “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.”
7. Links to Other Sites. BCAT contains links to third party web sites. These links are provided solely as a convenience to you and not as an endorsement by BCAT of the contents on such third-party web sites. BCAT is not responsible for the content of linked third-party sites and does not make any representations regarding the content or accuracy of materials on such third-party web sites. If you decide to access linked third-party web sites, you do so at your own risk.
8. Amendments to this Agreement and Changes to Sites. BCAT may revise these Terms and Conditions at any time by updating this page. Changes will be binding on you on the date they are posted on the Sites (or as otherwise stated in the any notice of such changes). Any use of a Site will be considered acceptance by you of the then-current Terms and Conditions (including any exhibits thereto) contained on such Site. If at any time you find the Terms and Conditions unacceptable, you may not use the applicable Site any longer. Any new or different terms supplied by you are specifically rejected by BCAT unless BCAT agrees to them in a signed writing specifically including those new or different terms. BCAT may change the Sites at any time.
9. Indemnity. You agree to defend, indemnify, and hold harmless BCAT (and its subsidiaries, affiliates, officers, directors, employees and agents) from and against any third party claims, actions or demands (including, without limitation, costs, damages and reasonable legal and accounting fees) alleging or resulting from or in connection with your use of the Sites, any Document posted by you, your use of the Services or your breach of this Agreement. BCAT shall use reasonable efforts to provide you prompt notice of any such claim, suit, or proceeding and may assist you, at your expense, in defending any such claim, suit or proceeding.
10.1 When you register on any of the BCAT Sites or in connection with the Services, you will be asked to create an account and provide BCAT with certain information, including but not limited to, a valid email address (“User Information”). You acknowledge and agree that you have no ownership rights in your account.
11. Questions and Notices. Questions concerning the use of the Sites should be directed to email@example.com. Notices to BCAT should be sent to the address listed on the Sites. We will send notice to you at the address submitted by you or to such other address as BCAT reasonably determines is an appropriate address for you.
12. General. BCAT contact information is listed on the Sites. BCAT makes no claims that the Content is appropriate or may be downloaded outside of the United States. Access to the Content may not be legal by certain persons or in certain countries, and such persons have no right to access or use the Sites. If you access BCAT from outside of the United States, you do so at your own risk and are responsible for compliance with the laws of your jurisdiction. This Agreement is governed by the internal substantive laws of the State of Iowa, without respect to its conflict of laws principles. Jurisdiction for any claims arising under this Agreement shall lie exclusively with the state or federal courts in the State of Iowa. The sole relationship between you and BCAT is that of independent contractors. If any provision of this Agreement is found to be invalid by any court having competent jurisdiction, the invalidity of all or part of a provision shall not affect the validity of the remaining parts and provisions of this Agreement, which shall remain in full force and effect. All provisions of this Agreement shall survive termination except those granting access or use to the Sites, and you shall cease all your use and access thereof immediately. You may not assign or transfer your obligations under this Agreement. No waiver of any term of this Agreement shall be deemed a further or continuing waiver of such term or any other term. Except as expressly provided by BCAT in a particular “Legal Notice,” or material on particular web pages of the Sites, this Agreement where applicable, constitute the entire agreement between you and BCAT.
13. Rules regarding Posting, Conduct and Security.
The following rules apply to your use of the Sites and/or the Services. The list of rules is for illustration only and is not a complete list of all posting, conduct and security rules.
13.1 Posting Rules:
(a) You may not post any Document to a Site that contains: (i) copyrighted material (unless you own the copyright or have the owner’s permission to post the copyrighted material); (ii) trade secrets (unless you own them or have the owner’s permission to post them); (iii) material that infringes on or misappropriates any other intellectual property rights, or violates the privacy or publicity rights of others; (iv) anything that is discriminatory, sexually explicit, obscene, libelous, defamatory, threatening, harassing, abusive, or hateful; or (v) anything that is embarrassing or offensive to another person or entity.
(b) You may not use a Document(s) to: (i) impersonate another person, living or dead; (ii) post false, inaccurate or misleading information, opinions or notices (commercial or otherwise) or chain letters; (iii) post advertisements, or solicitations of business (including, but not limited to, email processors, any pyramid scheme or “club membership”); provided, however that BCAT may allow posting of certain training and business opportunities (see 14.1(e) below).
(c) Your Document(s) must contain sufficient detail your qualifications as a candidate for employment.
(D) BCAT is under no obligation to monitor the Documents posted on the Sites, but it may monitor Documents at random. Documents found to violate the above Posting Rules may be removed at BCAT’s sole discretion.
13.2 Conduct Rules:
(a) You may not send unsolicited commercial email to Users.
(b) Protect your password. Your BCAT account and any related Services accessed through such account are to be accessed and used solely by you. Upon your successful registration for a BCAT account, you will be provided with a unique password that will permit you to access the account. You may not provide your password or otherwise permit access to your BCAT account to any third party. You are responsible for maintaining the confidentiality of your information and password. You agree to protect and keep your password confidential, to change your password on a regular basis, and to maintain appropriate and regularly updated malware scanning and cleaning tools on your network and individual computer(s).You are responsible for all uses of your account, whether or not authorized by you. If others use your password to post inappropriate material on the Sites, you risk losing your access to the Sites. You agree to notify BCAT immediately of any unauthorized use of your account or password.
(c) Report inappropriate postings or conduct to firstname.lastname@example.org
(d) You may not delete or revise any material posted by any other person or entity.
(e) If at any time BCAT comes to the understanding that you: (i) misled BCAT regarding your business practices and/or services, or (ii) purchased services that do not represent your precise business, BCAT reserves the right to terminate your Agreement.
13.3 Security Rules:
(a) Users are prohibited from violating or attempting to violate the security of the Sites, including, without limitation: (i) accessing data not intended for such User or logging into a server or account which the User is not authorized to access; (ii) attempting to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures without proper authorization; (iii) attempting to interfere with service to any User, host or network, including, without limitation, via means of submitting a virus to the Sites, overloading, “flooding”, “mail bombing” or “crashing”; (iv) sending unsolicited e-mail, including promotions and/or advertising of products or services; (v) forging any TCP/IP packet header or any part of the header information in any e-mail or newsgroup posting.
(b) Violation of these Security Rules may result in civil or criminal liability. BCAT will investigate occurrences which may involve such violations and may involve, and cooperate with, law enforcement authorities in prosecuting Users who are involved in such violations.
14. Copyright Complaints.
14.1 BCAT respects the intellectual property of others. It is BCAT’s policy to respond to claims of copyright and other intellectual property infringement. BCAT will promptly process and investigate notices of alleged infringement and will take appropriate actions under the Digital Millennium Copyright Act (“DMCA”) and other applicable intellectual property laws. Upon receipt of notices complying with the DMCA, BCAT may act expeditiously to remove or disable access to any material claimed to be infringing or claimed to be the subject of infringing activity and may act expeditiously to remove or disable access to any reference or link to material or activity that is claimed to be infringing. BCAT will terminate access for Users who are repeat infringers.
14.2 Notifying BCAT of Copyright Infringement: To provide BCAT notice of an infringement, you must provide a written communication to the attention of “Copyright Notice” care of email@example.com that sets forth the information specified by the DMCA (http://www.copyright.gov/title17/92chap5.html#512). Please also note that you may be liable for damages (including costs and attorneys’ fees) if you materially misrepresent that an activity is infringing your copyright.
15.3 Providing BCAT with Counter-Notification: If we remove or disable access to content in response to an infringement notice, we will make reasonable attempts to contact the owner or administrator of the affected site or content. If you feel that your material does not constitute infringement, you may provide BCAT with a counter notification by written communication to the attention of “Copyright Notice” at firstname.lastname@example.org that sets forth all of the necessary information required by the DMCA (http://www.copyright.gov/title17/92chap5.html#512). Please note that you may be liable for damages (including costs and attorneys’ fees) if you materially misrepresent that an activity is not infringing the copyrights of others. If you are uncertain whether an activity constitutes infringement, we recommended seeking advice of an attorney.