This document sets out the Terms and Conditions ("Terms") on which Seiva Consulting, LLC ("Seiva") provides customers with access to certain recruitment management services through the greatfit.co website (“Great Fit").
Please read these terms carefully before using the website and the Workable services. You acknowledge and agree that by clicking on "I accept" on behalf of a nominated company or organization (in these terms, the "Client"), you agree that company or organization will be bound by these terms as a customer. You warrant and represent that you have full capacity and authority to enter into this agreement on behalf of the customer company or organization. As an individual user seeking a job (in these terms, a “Candidate”), you agree to be bound by these terms as a user, and warrant and represent that you have full capacity and authority to enter into this agreement. Candidates and Clients collectively shall be referred to as “Users”.
If you do not accept these terms, you will not be able to use the Great Fit website and its services.
Great Fit is owned and managed by Seiva Consulting, LLC.
In consideration for the payment of the Fees, Seiva shall provide the Client with the services as described on the Great Fit website, which allow the Client to post Jobs and accept applications to said jobs, search and browse Candidates, screen, track and collaboratively manage its hiring process, and allow Candidates to search and browse Jobs and Companies, post profile information, and submit job applications ("Services"). The Services essentially include the following key features:
For the avoidance of doubt, Seiva’s obligations shall be limited only to the provision of the Services and do not in any way include acting on the Client’s behalf. Nothing in these Terms is intended to, or shall be deemed to, establish any partnership or joint venture between the Client and Seiva, appoint either party as the agent of the other, nor authorize either party to make or enter into any commitments for or on behalf of the other party.
Seiva may at its discretion add, modify, suspend or cease (temporarily or permanently) the provision of any element of the Services upon notice to the Client.
Seiva shall have no obligation to notify Users in the event of an unplanned service downtime. In the event of a planned service downtime in respect of the Services or the Website, Seiva shall use reasonable efforts to notify the Customer in advance provided that Seiva is able to do so in that the contact information provided by the Client is accurate.
Access to Great Fit and the Services may be granted to the Client on a trial or ‘free’ basis ("Trial") for a period determined by Seiva, at its discretion. The Client acknowledges and agrees that during the Trial, these Terms shall apply, as well as the following specific terms:
In order to use the Services, Candidates and Clients shall first be required to register with Seiva by completing the online registration form on the Website.
Seiva shall send the User a confirmation email ("Confirmation Email") once it has accepted and confirmed the User’s registration. The User’s contract to use the Services on these Terms ("Contract") commences on the date of the Confirmation Email.
Seiva reserves the right to conduct verification and security procedures in respect of all information provided by the Client to Seiva. If Seiva has reason to believe that the information provided by the Client to register and use any of the Services breaches or is likely to breach any of the provision in these Terms, Seiva at its sole discretion may take any action that it deems appropriate including without limitation, to terminate the Client’s Contract.
These Terms shall apply to anyone who accesses and uses Great Fit and the Services through the Client’s account. The Client acknowledges and agrees:
The Client shall, and shall ensure its team members, keep any Client and member usernames and passwords ("Logins") safe and secure to ensure that they are not used without the Client’s permission. The Client must immediately notify Seiva if it has reason to believe that there has been unauthorized use or access to the Client’s Logins and/or the Client’s profile on Great Fit. The Client shall be solely responsible and liable for any breaches of these Terms arising out of or resulting from use of the Client’s Logins to access the Services and/or Great Fit, whether such use is authorized by the Client or not.
At any time upon notice to the Client, Seiva may require the Client to execute any further documents to confirm the Client’s acceptance of, or give full effect to, these Terms.
The Client shall at all times use the Services and the Great Fit website in accordance with these Terms.
The Client shall ensure that its use of the Services and/or the Great Fit website, including the submission of any information, data, images, videos, audio, files, links to external websites, communication between the Client and Candidates, and all other material of any format ("Submissions"):
Unless otherwise explicitly stated by Seiva, Seiva does not vet, verify the accuracy, correctness, and completeness, edit or modify any Submissions or any other information, data and materials created, used and/or published by the Client on Great Fit to determine whether they may result in any liability to any third party. The Client hereby warrants that the Client has the right to use all such information and material.
Nor does Seiva vet, verify the accuracy, correctness, and completeness of any data used in Candidate Profiles. No guarantee is given that any Candidate Profiles will be error free, and it is the responsibility of the Client to verify the accuracy of such information as well as relevance to hiring criteria before making any hiring decisions.
Seiva reserves the right to refuse to publish any Profiles or Jobs, or to at any time remove or edit a Profile or Job (in whole or in part), if Seiva has reason to believe that the Client’s use of the Services and/or the Great Fit website breaches these Terms.
Users shall not at any time use the Services and/or the Great Fit website with the purpose of impersonating another User or person; and use the information made available to the Client through its use of the Services and/or the Website for any purpose other than in connection with the recruitment of staff; and do anything whatsoever which shall or is likely to impair, interfere with, damage, or cause harm or distress to any person or all or any part of any computer, computer network, telecommunications service or infrastructure.
Seiva takes breaches of the Terms seriously and therefore reserves the right to take any action that Seiva deems necessary. This can include, without limitation, suspension or termination of the Client’s use of the Services and/or access to Great Fit. In certain circumstances Seiva may choose to initiate legal proceedings as appropriate if there is any illegal use of the Services and/or the Website, or disclose information to any third party who is claiming that any material posted or uploaded onto the Website constitutes a violation of their intellectual property rights, or of their right to privacy, or if the material is posted without that third party’s prior consent. The Client shall promptly notify Seiva if it is aware of any or any suspected breaches of this clause.
Seiva and Great Fit do not act as agents for the purposes of the hiring process. Great Fit simply provides Candidates a space to find and connect to prospective employers, and related software tools to highlight their availability. Candidates and Clients are solely responsible for any issues arising from the use of the Great Fit software or their use of its Services.
Any agreements created between a Client and a Candidate are not binding to Seiva or Great Fit in any way. We are not liable for, or obligated to enforce, any agreements between a Client and a Candidate. You will not consider Seiva or Great Fit, nor will Seiva or Great Fit be construed as, parties to such transactions, whether or not Seiva receives some form of remuneration in connection with the transaction, and Seiva will not be liable for any costs or damages arising out of or related to such transaction.
The Client shall ensure that any Job it publishes through Great Fit contains the sufficient information to allow a Candidate to make an informed decision as to applying for the role in question.
The Client warrants and represents that all information provided and in respect of the Company Profile and Jobs shall be correct, complete, accurate and up to date. In the event the information in the Job or the Company Profile is incorrect, incomplete, inaccurate or out of date, then the Client must immediately take all necessary steps to rectify such information.
The Client shall at all times use the Great Fit site and app in accordance with the applicable law and legislation and in particular, all applicable data protection, employment, and anti-discrimination legislation.
The Client alone is responsible for the use of Great Fit and its Services, interpretation of match results, and the Client’s internal management of the recruitment process, for each Candidate search the Client undertakes, and any opening advertised or Job posted by the Client through Great Fit.
The Client is also responsible for confirming:
The Client acknowledges that Seiva and Great Fit do not have any control over (and therefore can not reasonably accept any liability in respect to) the behavior, response, or actions of the Candidates. Seiva does not warrant, represent or guarantee that the Client will be able to fill the Job using Great Fit.
The Client shall at all times keep all information including without limitation, the Candidates’ Profiles, communication and correspondences between the Client, Seiva, and the Candidates, and all information relating to the Candidates and the recruitment process secure and confidential.
The Great Fit Services shall be specific to the Client organization’s account and the Client has no right whatsoever to resell the Services to any third party for any reason without the express written approval of Seiva.
The Client acknowledges and agrees that it is the Client’s responsibility to ensure it enters into any necessary contractual arrangements with Candidates (whether for temporary, casual, contract or permanent employment). The terms of employment and any contractual arrangements shall be negotiated and agreed between the Client and the approved Candidate directly. In the event there is a dispute of any kind between the Client and any Candidate (whether it relates to the interview or selection process, the contractual arrangements between the parties or otherwise) – collectively, a "Dispute" - the Client agrees Seiva is not liable for any loss or damage suffered by the Client resulting from any such Dispute and the Client hereby releases and holds harmless Seiva from any such loss or damage or any liability in relation to any Dispute.
The Client hereby indemnifies Seiva against all losses, liabilities, costs and expenses (including but not limited to legal costs) suffered or incurred by Seiva which arise directly or indirectly from any Dispute, or any breach of these terms by the Client.
The fees to access the Great Fit Website and its Services are as set out on the Website ("Pricing"). Other than where the Client is participating in a Trial as authorized by Seiva and Great Fit, the Client may only access the Website and certain Services by paying the Fees.
Unless stated otherwise on the Website or agreed by Seiva and Great Fit in writing, the Fees shall be payable by the Client monthly in advance, in the manner as set out on the Website.
All Fees are exclusive of VAT and all other taxes or duties, and are non-refundable for any reason whatsoever.
Seiva and Great Fit may offer Clients the option to purchase additional products and services that are supplied by third parties as set out on the Website or through email marketing campaigns. Use of such products by the Client shall be governed by the relevant third party’s terms and conditions, a copy of which shall be available from the relevant third parties. The Client shall comply with such third party’s terms and conditions.
Seiva reserves the right at any time to change the Great Fit Fees (including to begin charging for services that it is currently providing free of charge) and billing methods, either immediately upon posting on the Website, or by email delivery to the Users.
The Client may terminate their Contract at any time by cancelling their subscription on the Website. Fees paid in advance by the Client are non-refundable, unless expressly authorized by Seiva and Great Fit in writing.
Seiva shall be entitled to suspend and/or terminate the Client’s access and use of the Website and/or the Services:
Upon termination of the Client’s Contract in accordance with a breach of these Terms and Conditions, the Client may no longer access or use the Services and the Website.
The Client hereby warrants that (a) the Client has the right and capacity to enter into and be bound by these Terms; and (b) the Client shall comply with all applicable laws regarding the Client’s use of the Services and the Website; and (c) and the Client agrees to abide by the rules and reasonable directions of Great Fit relating to the Website as may be provided by Great Fit from time-to- time.
Seiva and Great Fit rely on other service providers (such as network providers, data centers, telecommunication providers) to make the Services and the Website available to the Client. Seiva takes all reasonable steps available to it to provide the Client with a good level of service, but Seiva does not guarantee that such service shall be fault free or uninterrupted at all times. Therefore neither Seiva nor Great Fit shall be liable in any way for any losses the Client may suffer as a result of delays or failures of the Services and Website as a result of Great Fit’s service providers.
Except as expressly set out herein, to the maximum extent permitted by law, Seiva expressly excludes all representations, warranties, obligations and liabilities in connection with the Services and the Website, including but not limited to the warranties of merchantability, non-infringement of intellectual property, accuracy, completeness, suitability for a particular purpose, and any warranties arising by statute or otherwise in law or from course of dealing, course of performance, or use of trade are hereby excluded and disclaimed.
Seiva may display or provide links or other interactions with third party websites and third party advertising banners on the Website ("Third Party Websites"). In particular, the Services may also provide the Client with the opportunity to connect and publish Jobs and other Client Information through Third Party Websites and other third party services such as social and business networking sites. Use of any such Third Party Websites and services shall be at the risk of the Client and subject to the terms and conditions of the Third Party Website provider.
GREAT FIT AND ITS SERVICES ARE PROVIDED TO USERS AS IS, FOR INFORMATION ONLY. SEIVA EXPRESSLY DISCLAIMS 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. ALL USERS WHETHER CANDIDATE OR CLIENT 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.
SEIVA MAKES 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 GREAT FIT.
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 PRECEDING PARAGRAPHS 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.
The Great Fit software includes areas where Candidates or Clients 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 Candidates and Clients who use Great Fit or its Services;
We are not required to and are not under any obligation to review, screen, edit, monitor, or remove any Content posted on our Website, although we reserve the absolute right to remove, screen, or edit any content at any time and for any reason without any notice to Users or any party affected;
We take no responsibility and assume no liability for any User Content that is posted, stored, uploaded, or transmitted via Great Fit or its Services, 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 Great Fit or its Services, whether arising in tort or contract, law or equity;
Clients and Candidates agree not to hold Seiva or any other User of Great Fit 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;
Seiva 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 Website, and Seiva takes no action to remove that Content or terminate that User’s account;
Your ability to use or interact with the Great Fit application 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.
USERS UNDERSTAND AND AGREE THAT IN NO EVENT SHALL SEIVA 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 SEIVA 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 USE OF GREAT FIT OR ITS SERVICES, 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 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.
The maximum aggregate liability of Seiva and Great Fit (including respective agents, sub-contractors or representatives thereof) under, arising from, or in connection with the provision of the Services and/or these Terms to a Client, whether arising in contract, tort (including negligence) or otherwise, shall not exceed a sum equivalent to the total Fees received by Seiva from said Client through the Great Fit app for a period of twelve (12) months preceding the event giving rise to liability. IN NO EVENT WILL SEIVA BE LIABLE TO A CLIENT FOR MORE THAN SEIVA’S SHARE OF THE FEES PAID BY THE CLIENT FOR THE TWELVE MONTH PERIOD DURING WHICH EMPLOYER FIRST ASSERTS A CLAIM.
Candidates acknowledge and agree that hiring decisions made by Clients or Users of the Great Fit Services are entirely the responsibility of those Clients or Users, and that Seiva and Great Fit are not liable for a Client’s use or interpretation of the Great Fit Services or Candidate Profile information provided therein.
To the extent permitted by law, Seiva expressly excludes:
The User agrees to defend, indemnify and hold harmless Seiva and Great Fit 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:
The User also agrees that you have a duty to defend us against such claims. You agree that this indemnity extends to requiring you to pay for our reasonable attorneys’ fees, court costs, settlements and disbursements.
Seiva and its licensors own all rights in the intellectual property rights relating to the Great Fit Services and the Website, including but not limited to all software forming part of the Website and Application (collectively, ”Software"). These works are protected by copyright laws and treaties around the world. Nothing in this Agreement will serve to transfer from Seiva to the User any of the Software, and all right, title and interest in and to the Software will remain exclusively with Seiva and/or Seiva’s licensors. All rights in and to the Software not expressly granted to the User are reserved by Seiva and the relevant third party licensors.
Candidates and Clients may draw the attention of other Users to the Client’s Submissions or materials posted on the Website. The User must not use any part of the submissions of other users, or any materials on Great Fit, for any purpose other than accessing the Website or obtaining a benefit from the Services in accordance with these Terms.
Users shall not, and shall ensure that its employees or collaborators shall not: (i) modify, translate, create or attempt to create derivative copies of or copy the Software or the Website in whole or in part; (ii) reverse engineer, decompile, disassemble or otherwise reduce the object code of the Software or the Website to source code form; (iii) distribute, sub-license, assign, share, timeshare, sell, rent, lease, transmit, grant a security interest in or otherwise transfer the Software or the Website or the Customer’s right to use the Software or the Website.
The Client warrants that the Client owns or has the right or license to use the intellectual property rights in the Client Information, the Jobs and all information and materials provided by the Client to Seiva and Great Fit.
The Client hereby grants Seiva a perpetual, sub-licensable, worldwide, royalty- free license to publish and make available through Great Fit the Client Information, Jobs and all other information and material provided by the Client to Seiva and Great Fit in respect of the Services, for the purpose of providing the Services to the Client.
The Client hereby indemnifies Seiva against all losses, liabilities, costs and expenses (including but not limited to legal costs) arising from or incurred by reason of any infringement of any intellectual property right by the use or possession of the Client Information, Jobs, and all other information and material provided by the Client to Seiva and Great Fit.
Great Fit and related documentation are "Commercial Items", as that term is defined at 48 C.F.R. §2.101, consisting of "Commercial Computer Software" and "Commercial Computer Software Documentation", as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein. Unpublished-rights reserved under the copyright laws of the United States.
If Seiva fails at any time to insist upon strict performance of its obligations under these Terms, or if it fails to exercise any of the rights or remedies to which it is entitled to under these Terms, this will not constitute a waiver of any such rights or remedies and shall not relieve the Client or Candidate from compliance with such obligations. No waiver by Seiva of any of these Terms shall be effective unless it is expressly stated to be a waiver and is communicated to the Client or Candidate in writing.
All notification and communication to Seiva or Great Fit should be sent to the contact details made available to Users on the Great Fit Website: [email protected]
If any of these Terms are determined by any competent authority to be invalid, unlawful or unenforceable to any extent, such term, condition or provision will to that extent, be severed from the remaining terms, conditions and provisions which shall continue to be valid to the fullest extent permitted by law.
These Terms represent the entire agreement between the Client or Candidate and Seiva in respect of use of the Great Fit website and its services, and shall supersede any prior agreement, understanding or arrangement, whether oral or in writing.
The User acknowledges that in entering into these Terms, the Client has not relied on any representations, undertaking or promise given by or implied from anything said or written whether on the Website, the Internet or in negotiation between the parties except as expressly set out in these Terms.
Seiva reserves the right to modify these Terms at any time. Any changes Seiva may make to this document in the future will be made available to the User on the Great Fit Website.
This Agreement shall be governed by the laws of the state of New Hampshire, 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, Seiva 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 New Hampshire 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 Seiva must abide by the following rules: (i) ANY CLAIMS BROUGHT BY YOU OR Seiva 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, Seiva 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) Seiva 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 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 Hampshire law or United States federal law. Notwithstanding the foregoing, either you or Seiva 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 New Hampshire. Additionally, notwithstanding this agreement to arbitrate, either party may seek emergency equitable relief before the state or federal courts located in New Hampshire, in order to maintain the status quo pending arbitration, and hereby agree to submit to the exclusive personal jurisdiction of the courts located within New Hampshire 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 Seiva 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 Hampshire. By using the Site or the Service in any manner, you agree to the above arbitration provision.