TERMS OF USE

Last Updated: July 12, 2018

1. Acceptance of Terms

Welcome to OptimalResume.com, Inc. (“OptimalResume,” “we” or “us”) and our Terms of Use (these “Terms”). These Terms are important and affect your legal rights when and if you access or use one or more of our websites, including https://optimalresume.com and our organization-branded websites (collectively, the “Sites”) provided by OptimalResume, so please read them carefully. Note that Section 15 of these Terms contains a mandatory arbitration provision that requires the use of arbitration on an individual basis and limits the remedies available to you in the event of certain disputes. After reviewing these terms, please indicate your acceptance by clicking the “I Agree” button, all at the bottom of these Terms.

By accepting these Terms, you represent that you are 16 years of age or older and that you are the person whose data and information is being submitted.

If you do not agree to every provision of these Terms, you may not access or use the Site, or use any services, including without limitation any Subscription (as defined below) made available through the Site (collectively, the “Services”).

These Terms may be revised at any time for any reason, and OptimalResume may provide you notice of these changes by any reasonable means, including by providing notice through the Site. You can determine when we last updated the Site by referring to the “Last Updated” legend at the top of these Terms. We strongly recommend that you periodically visit this page of the Site to review these Terms. If you do not agree to the revised Terms, you may not access or use the Site, or use Services made available through the Site.

2. Registration

In order to access and use certain areas or features of the Site, you will need to register for an OptimalResume developer account. Each registration is for a single user only. Registration requires agreeing to these Terms and to our policies.

By creating an OptimalResume account, you agree to (a) provide accurate, current and complete account information, (b) maintain and promptly update, as necessary, your account information, (c) maintain the security of your account credentials, (d) be responsible for the acts or omissions of any third party who has authority to access or use the Site on your behalf, and (e) immediately notify us if you discover or otherwise suspect any security breaches related to the Site or your account. By logging into your account, you may update your registration data or personal information at any time. If you provide information that is untrue, inaccurate, not current or incomplete, we may suspend or terminate your account and refuse any and all current or future use of the Site.

By creating an OptimalResume account, you also authorize and request OptimalResume to use your personal information to communicate with you, and you further consent to receive electronic communications from OptimalResume (e.g., via email or by posting notices to the Site) and administrator users. These communications may include notices about your account (e.g., password changes and other transactional information) and are part of your relationship with us. You agree that any notices, agreements, disclosures or other communications that we send to you electronically will satisfy any legal communication requirements, including, but not limited to, that such communications be in writing. You should maintain copies of electronic communications from us by printing a paper copy or saving an electronic copy.

3. License to Access and use the Site and Site Content

Unless otherwise indicated in writing by us, the Site and all content and other materials contained therein, including, without limitation, the OptimalResume logo and all designs, text, graphics, pictures, information, data, software, User Content (as defined in Section 11), other files and the selection and arrangement thereof (collectively, “Content”) are the sole property of OptimalResume or our licensors, as applicable, and are protected by U.S. and international copyright and other laws.

Subject to these Terms, you are hereby granted a personal, non-exclusive, non-transferable, non-sublicensable license to access and make personal, non-commercial use of the Site and Content. All rights not expressly granted herein are reserved. You do not acquire any ownership interest in the Site or Content under these Terms, or any other rights thereto other than to use the Site in accordance with the license granted, and subject to all terms, conditions and restrictions of these Terms.

However, such license is subject to these Terms and does not include any right to, and you shall not, directly or indirectly: (a) sell, resell or use commercially the Site or Content, (b) distribute, publicly perform or publicly display any Content, (c) modify or otherwise make any derivative uses of the Site or Content, or any portion thereof, (d) use any data mining, robots or similar data gathering or extraction methods, (e) download (other than routine page caching by your web browser) any portion of the Site or Content, except as for intended purposes, (f) use the Site to stalk, threaten, or otherwise violate the rights of others, including without limitation others’ privacy rights or rights of publicity; (g) interfere with the Site or servers or networks used in connection with the Site; or (h) use the Site or Content other than for their intended purposes.

Any use of the Site or Content other than as specifically authorized herein, without our prior written permission, is strictly prohibited and will terminate the license granted herein. Such unauthorized use may also violate applicable laws, including, without limitation, copyright and trademark laws and applicable communications regulations and statutes. Unless explicitly stated by us, nothing in these Terms shall be construed as conferring any right or license to any patent, trademark, copyright or other proprietary rights of OptimalResume or any third party, whether by estoppel, implication or otherwise. This license is revocable at any time.

You will not remove, alter or conceal any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Content and you will not reproduce, modify, adapt, prepare derivative works based on, perform, display, publish, distribute, transmit, broadcast, sell, license or otherwise exploit the Content.

4. Trademarks

The OptimalResume logo, and any other OptimalResume product or service names, trademarks, logos, or other indicia (“Marks”) that may appear on the Site, or in connection with Services are the property of OptimalResume or its subsidiaries, affiliates or third parties, and may not be copied, imitated or used, in whole or in part, without our prior written permission. Nothing contained in the Site shall be construed as granting, by implication or otherwise, any license or right to use any such Mark without the prior written permission of OptimalResume or such third party that may own such Mark. Your misuse of any such Mark, or any other Content, is strictly prohibited.

5. Privacy and GDPR Compliance

PRIVACY AND DATA PROTECTION

OptimalResume is committed to processing and protecting the personal data collected through use of the Site in compliance with its obligations under applicable privacy laws, laws governing the privacy of Your personal data, including, if applicable to You, the European Union General Data Protection Regulation (“GDPR”), OptimalResume’s policy is to retain personal data solely as necessary to provide our Services, except that we may retain Your personal data for longer periods where reasonably necessary to comply with our legal obligations (including law enforcement requests), meet regulatory requirements, resolve disputes, maintain security, prevent fraud and abuse, enforce these Terms, or fulfill Your request to “unsubscribe” from further messages from us. This policy applies to personal data that You or others provided to us and personal data generated or inferred from Your use of our services, including all personal data related to job seekers and employer users. When OptimalResume is the data controller, we will decide how Your personal data is processed and for what purposes.

The Site permits developer users to have limited access to personal data of job seeker users for the limited purpose of assisting such job seekers in obtaining employment. For the avoidance of doubt, any and all personal data of such job seekers provided or otherwise made available through the Site belongs exclusively to the job seeker, and developer warrants and represents that it will not access and/or use such job seeker personal data for any purpose without the individual job seeker’s express written consent.

For additional information about Your rights and Your personal data, what data is collected, how it is processed, protected, shared, and how long it is retained, please see the OptimalResume Privacy Policy located at http://optimalresume.com/privacy.

Where OptimalResume has a good faith belief that such action is necessary to comply with a judicial proceeding, court order, warrant, administrative order, civil investigative demand, subpoena, or other valid process, OptimalResume may disclose IP addresses, personal information, and any contents of the Site where it is legally compelled to do so.

HOW WE PROTECT YOUR INFORMATION

We implement a number of security features to help ensure that Your information is safe.

·  We use industry standard technologies when transferring and receiving customer data exchanged between OptimalResume and third parties to ensure its security.

·  User data may be stored on servers maintained by Amazon Web Services and subject to their security safeguards which are continuously audited, with certifications from accreditation bodies across geographies and verticals. You can read more about Amazon Web Services’ security and compliance at https://aws.amazon.com/compliance/.

CHILDREN UNDER SIXTEEN

The Services are not intended for children under the age of sixteen (16, and if we learn that personal information is the information of a child under sixteen (16), we will attempt to delete the information as soon as possible. If you are under the age of eighteen (18), we encourage you to review these Terms and our Privacy Policy with an adult to understand what type of information we collect, how it is used and how it may be disclosed.

INTERNATIONAL USERS

These Terms and the OptimalResume Privacy Policy are accurate, comprehensive, prominently displayed, completely implemented, accessible and conform to the relevant data protection legislation. Please note that the Personal Information You submit to us may be transferred to the United States and other countries to be processed by us in order to provide this Site to You or for such other purposes as set forth in this Policy. If You are not a resident of the United States You consent and agree that we may collect, process, use, and store Your personal information, as discussed in these Terms, outside Your resident jurisdiction, including in the United States. Please be aware that United States law and laws of other countries where we may store and process Your data may offer different levels of protection for personal information than may be available in Your country. Whenever we disclose any personal information to third parties to the extent described above, we ensure that the transfer is in accordance with these Terms and the OptimalResume Privacy Policy, including all applicable data protection legislation.

You shall ensure that you comply with the applicable requirements of all applicable legislation and regulatory requirements in force from time to time relating to the use of personal data and privacy, including, without limitation, the GDPR. In addition, you acknowledge and agree to comply with the Data Processing Addendum attached to these Terms.

INDIVIDUALS IN THE EEA

Personal Data (as defined in GDPR or other relevant EU data protection law) that has been provided to Us and that You submit to us may be processed by us in order to provide this Site to You or for such other purposes as set forth in these Terms and the OptimalResume Privacy Policy. Your personal data may be transferred to the United States and other countries outside of the EEA which may offer different levels of protection for personal data than may be available in Your country. We ensure that all personal data is handled, processed, transferred and stored in accordance with relevant EU data protection law, and that adequate safeguards and procedures providing protection to Users’ personal data are in place. When You submit Your application to establish a developer account, You agree to our terms and privacy policy and, in particular, You expressly agree to the transfer of Your personal information for the purposes described in that policy.

UNSUBSCRIBE/DELETE PERSONAL DATA

You have many choices about how Your data is collected, used and shared. We describe our policies regarding the collection, use and disclosure of Your data in our Privacy Policy located at http://optimalresume.com/privacy 

Users may opt-out of receiving any or all communications from OptimalResume by following the “unsubscribe” link on communications received from OptimalResume or otherwise by contacting us at support@optimalresume.com.

CONTACT INFORMATION

To exercise any relevant rights, ask questions, or make a complaint, please contact OptimalResume via support@OptimalResume.com.

6. User Content

You are solely responsible and liable for all data, information and other materials (“User Content”) that you submit, upload, post, e-mail or otherwise transmit (“Transmit”) in connection with the Site. In addition, we have no control over, and shall have no liability for, any damages resulting from the use (including without limitation republication) or misuse by any third party of information made public through the Site.

You agree that you will not, and will not permit anyone else to, directly or indirectly:

·  Transmit any User Content that is unlawful, harmful, threatening, abusive, hateful, obscene, harassing, tortious, defamatory, libelous, slanderous, pornographic, profane, vulgar, offensive, lewd, invasive of another’s privacy or racially, ethnically or otherwise objectionable;

·  Transmit any User Content: (i) that you do not have the right to Transmit, under any law or contractual or fiduciary relationships, including, without limitation, any inside information or proprietary or confidential information; (ii) that infringes any patent, copyright, trademark or other intellectual property right or misappropriates any trade secret or right of privacy of any third-party; (iii) that constitutes unsolicited or unauthorized advertising or promotional materials, “spam,” “chain letters,” or pyramid schemes; or (iv) that contains any software routine, code, instruction or virus that is designed to disable, delete, modify, damage or erase software, hardware or data;

·  Forge headers or otherwise manipulate identifiers in order to disguise any User Content Transmitted through the Site.

Although we have no obligation to screen, edit or monitor User Content, we reserve the right, and have absolute discretion, to remove, screen or edit User Content posted or stored on the Site at any time and for any reason, and you are solely responsible for creating backup copies of and replacing any User Content you post or store on the Site at your sole cost and expense.

7. Rights in User Content

We do not claim any ownership interest in your User Content. However, by uploading, posting or submitting User Content to the Site or to our pages or feeds on third party social media platforms (e.g., our Facebook page, Instagram page, or Twitter feed, etc.), you hereby grant OptimalResume a nonexclusive, royalty-free, worldwide, perpetual, irrevocable and fully sublicensable right and license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, and display your User Content, in whole or in part, for the purpose of providing the Services. OptimalResume will only use and share personal data that you provide in accordance with our Data Privacy Policy at http://optimalresume.com/privacy.

You acknowledge and agree that OptimalResume may disclose or use any User Content that you Transmit for purposes that include, but are not limited to: (a) enforcing these Terms; (b) complying with any laws, regulations or rules of any a governmental entity or any department, agency or political subdivision thereof; (c) responding to claims that any User Content violates the rights of third parties; or (d) protecting the rights or property of OptimalResume, its customers or the public.

8. Feedback

Separate and apart from User Content, you can submit questions, comments, suggestions, ideas, original or creative materials or other information about OptimalResume, the Site, or our Services (collectively, “Feedback”). Feedback is nonconfidential and shall become the sole property of OptimalResume. OptimalResume shall own exclusive rights, including, without limitation, all intellectual property rights, in and to such Feedback and shall be entitled to the unrestricted use and dissemination of this Feedback for any purpose, commercial or otherwise, without acknowledgment or compensation to you.

9. Linked Sites

We have not reviewed all of the websites linked to the Site and are not responsible for the content of any third-party pages, any other websites linked to the Site, or any products or services offered by third parties linked to the Site. Nothing in the Site, including, without limitation, any links to other websites, should be construed as an endorsement of any products, services or information of any other persons or companies by OptimalResume. Your choice to link to any other website is at your own risk, and you agree to comply with all terms and conditions relating to such websites. OptimalResume reserves the right not to link, or to remove the link, to a particular website at any time. Any links to third party websites are provided as a convenience to you and are neither owned nor operated by OptimalResume. We have no control over these linked websites and make no representations or warranties with respect to these linked websites or third party products or services. Your viewing and use of any third-party websites is at your sole discretion and risk.

10.   OptimalResume API License

OptimalResume provides application programming interfaces (“API”s) that allow third parties to interoperate with the Services. Approved institutions can, and other developers may, be permitted to use the APIs made available by OptimalResume (each, an “OptimalResume API”). This Section 10 contains terms and conditions applicable to users of the OptimalResume API (including developers and approved institutions who have procured the services of a developer to develop a website containing the OptimalResume API) (“API Users”). If you are an approved institution that has procured a third-party developer to develop a website containing the OptimalResume API (“API Implementation”), this Section 10 applies to your and their use of the OptimalResume API, and you are responsible for their compliance with this Section to the same extent as though you were developing the API Implementation yourself.

If you are an API developer (“API Developer”) and not otherwise a user of the Services, the license set forth in this Section 10 applies to your use of the OptimalResume API, and the license set forth in Section 3 of the Terms does not apply to your use of the OptimalResume API. If you are also a user, the license set forth in Section 3 applies to your use of the Services apart from the OptimalResume API, and this Section 10 applies to your use of the OptimalResume API.

OptimalResume grants you a limited, revocable, non-exclusive, non-sublicensable license to use the OptimalResume API as provided by OptimalResume, in the manner permitted by the Terms. Such license does not license any other User Content to you. If you wish to use your API Implementation to display or deliver any User Content, you must obtain the prior agreement of that user to that use, by obtaining a license from the user, in terms of use governing the use by that user of your API Implementation, for your use of that User Content. This limited license is subject to the usage restrictions set forth in Section 3, and any further restrictions set out in your terms of use and privacy policy agreed to by the user. If you do not present terms of use and a privacy policy to our users upon their use of your API Implementation, you may not use the OptimalResume API and any rights under this Agreement are hereby void.

Your use of the OptimalResume API is also subject to the following additional restrictions.  You may not:

• Interfere or attempt to interfere in any manner with the proper workings of the OptimalResume API, or create or distribute any API Implementation that adversely affects the functionality or performance of the Services or adversely impacts the behavior of other applications using the OptimalResume API;

• Misrepresent your identity or intentions when communicating with us in relation to the OptimalResume API, use the developer credentials licensed to a different individual or entity, allow your credentials to be used by others, or mask your usage of the OptimalResume API;

• Use the OptimalResume API for any application that is directly competitive to the business operations of OptimalResume;

• Use the OptimalResume API in association with, or as a component of, any website that in the sole discretion of OptimalResume is determined to be obscene or otherwise inappropriate;

• Use the OptimalResume API for any application that constitutes, promotes or is used in connection with spyware, adware, other malicious programs or code;

• Use the OptimalResume API in any manner or for any purpose that violates any law or regulation, any right of any person, including but not limited to intellectual property rights, rights of privacy, or rights of personality;

• Replicate the “look and feel” of the OptimalResume Sites;

• Disparage or otherwise negatively represent OptimalResume in your API Implementation;

• Use the OptimalResume API for any application that attempts to replace or replicate the essential user experience or functionality of the Services;

• Build conversion functionality that converts Content from the Service to a competing product or service;

• Reverse engineer, decompile or otherwise attempt to extract the source code of the OptimalResume API or any part thereof; or

• At any time you are operating your API Implementation, solicit, interfere with, induce or otherwise endeavor to entice any of our Users to use a service that is competitive to the Services. 

OptimalResume has no responsibility to any person for any use or misuse of any User Content obtained through the OptimalResume API. OptimalResume may monitor your use of the OptimalResume API for any reason, including but not limited to: quality assurance, the improvement of OptimalResume products and services, and for verification of your compliance with these Terms. You shall not interfere with such monitoring or otherwise obscure from OptimalResume any aspect of your use of the OptimalResume API. You acknowledge that any use by us of your API Implementation for any of the above purposes shall not constitute our agreement to any terms of use associated with your API Implementation.

11.   No Resale

You are not permitted to resell or otherwise use the Services for commercial purposes.

12.   Indemnification

To the fullest extent permitted by applicable law, you agree to defend, hold harmless and indemnify OptimalResume, its subsidiaries and affiliates, business partners, contractors, OPTIMALRESUMEs and service providers, and their respective officers, employees, agents and representatives (collectively, the “OptimalResume Parties”) from and against any claims, liabilities, costs or damages, including reasonable attorneys’ fees and paralegal fees through final appeals, made by any third party, relating to or arising from your use of the Site, Services, any User Content that you Transmit to or through the Site, any Feedback you provide, any violation of these Terms by you, or any other act or omission by you, including your violation of any rights of another, arising from your use of the Site or the Services. You further agree that OptimalResume shall have control of the defense or settlement of any third party claims. This indemnity is in addition to, and not in lieu of, any other indemnities set forth in a written agreement between you and OptimalResume.

13.   Disclaimers

TO THE FULLEST EXTENT PERMISSIBLE BY LAW, THE SITE, THE CONTENT, AND ALL PRODUCTS AND SERVICES ARE PROVIDED ON AN “AS IS”, “AS AVAILABLE” AND “WITH ALL FAULTS” BASIS. TO THE FULLEST EXTENT PERMISSIBLE BY LAW, NEITHER OPTIMALRESUME NOR THE OPTIMALRESUME PARTIES MAKE ANY REPRESENTATIONS OR WARRANTIES OR ENDORSEMENTS OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, AS TO: (A) THE SITE; (B) THE SITE CONTENT; (C) USER CONTENT; (D) ANY PRODUCT OR SERVICE; OR (E) SECURITY ASSOCIATED WITH THE TRANSMISSION OF INFORMATION TO THE SITE. IN ADDITION, THE OPTIMALRESUME PARTIES HEREBY DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, THAT ANY RESULTS WILL BE ACHIEVED, NON-INFRINGEMENT, TITLE, CUSTOM, TRADE, QUIET ENJOYMENT, SYSTEM INTEGRATION AND FREEDOM FROM COMPUTER VIRUS.

THE OPTIMALRESUME PARTIES DO NOT REPRESENT OR WARRANT THAT THE SITE WILL BE ERROR-FREE OR UNINTERRUPTED; THAT DEFECTS WILL BE CORRECTED; OR THAT THE SITE, SERVICES OR THE SERVER THAT MAKES THE SITE AND SERVICES AVAILABLE IS FREE FROM ANY HARMFUL COMPONENTS, INCLUDING, WITHOUT LIMITATION, VIRUSES. THE OPTIMALRESUME PARTIES DO NOT MAKE ANY REPRESENTATIONS OR WARRANTIES THAT THE INFORMATION (INCLUDING ANY INSTRUCTIONS) ON THE SITE OR SERVICES IS ACCURATE, COMPLETE, OR USEFUL. YOU ACKNOWLEDGE THAT YOUR USE OF THE SITE AND SERVICES IS AT YOUR SOLE RISK. THE OPTIMALRESUME PARTIES DO NOT WARRANT THAT YOUR USE OF THE SITE OR SERVICES IS LAWFUL IN ANY PARTICULAR JURISDICTION, AND THE OPTIMALRESUME PARTIES SPECIFICALLY DISCLAIM SUCH WARRANTIES. SOME JURISDICTIONS LIMIT OR DO NOT ALLOW THE DISCLAIMER OF IMPLIED OR OTHER WARRANTIES SO THE ABOVE DISCLAIMER MAY NOT APPLY TO YOU TO THE EXTENT SUCH JURISDICTION'S LAW IS APPLICABLE TO YOU AND THESE TERMS.

BY ACCESSING OR USING THE SITE AND SERVICES YOU REPRESENT AND WARRANT THAT YOUR ACTIVITIES ARE LAWFUL IN EVERY JURISDICTION WHERE YOU ACCESS OR USE THE SITE AND SERVICES.

THE OPTIMALRESUME PARTIES DO NOT ENDORSE CONTENT AND SPECIFICALLY DISCLAIM ANY RESPONSIBILITY OR LIABILITY TO ANY PERSON OR ENTITY FOR ANY LOSS, DAMAGE (WHETHER ACTUAL, CONSEQUENTIAL, PUNITIVE OR OTHERWISE), INJURY, CLAIM, LIABILITY OR OTHER CAUSE OF ANY KIND OR CHARACTER BASED UPON OR RESULTING FROM ANY CONTENT.

14.   Limitation of Liability; Waiver

TO THE FULLEST EXTENT PERMISSIBLE BY LAW, YOU ASSUME TOTAL RESPONSIBILITY AND RISK FOR YOUR USE OF THE SITE AND THE SERVICES. ANY USE OF THE SITE OR THE SERVICES IS AT YOUR OWN RISK. YOU ACKNOWLEDGE AND AGREE THAT, IN CONNECTION WITH YOUR PARTICIPATION IN THE SERVICES, YOU MAY BE EXPOSED TO A VARIETY OF HAZARDS AND RISK, FORESEEN AND UNFORESEEN, WHICH MAY OR MAY NOT BE INHERENT IN THOSE ACTIVITIES.

TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL THE OPTIMALRESUME PARTIES BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING, BUT NOT LIMITED TO, LOSS OF REVENUE, INCOME OR PROFITS, LOSS OF USE OR DATA, LOSS OR DIMINUTION IN VALUE OF ASSETS OR SECURITIES, OR DAMAGES FOR BUSINESS INTERRUPTION) ARISING OUT OF OR IN ANY WAY RELATED TO THE ACCESS TO OR USE OF THE SITE, SERVICES OR CONTENT (INCLUDING, BUT NOT LIMITED TO, USER CONTENT, AND LINKS TO THIRD PARTY SITES), OR THE ORDER, RECEIPT OR USE OF ANY PRODUCT OR SERVICE, OR OTHERWISE RELATED TO THESE TERMS (INCLUDING, BUT NOT LIMITED TO, ANY DAMAGES CAUSED BY OR RESULTING FROM RELIANCE ON ANY INFORMATION OBTAINED FROM ANY OPTIMALRESUME PARTY, OR FROM EVENTS BEYOND THE OPTIMALRESUME PARTIES’ REASONABLE CONTROL, SUCH AS SITE INTERRUPTIONS, DELETIONS OF FILES OR EMAILS, ERRORS OR OMISSIONS, DEFECTS, BUGS, VIRUSES, TROJAN HORSES, DELAYS IN OPERATION OR TRANSMISSION OR ANY FAILURE OF PERFORMANCE, WHETHER OR NOT RESULTING FROM ACTS OF GOD, COMMUNICATIONS FAILURE, THEFT, DESTRUCTION OR UNAUTHORIZED ACCESS TO THE OPTIMALRESUME PARTIES’ RECORDS, PROGRAMS OR SYSTEMS), REGARDLESS OF THE FORM OF ACTION, WHETHER BASED IN CONTRACT, TORT (INCLUDING, BUT NOT LIMITED TO, SIMPLE NEGLIGENCE, WHETHER ACTIVE, PASSIVE OR IMPUTED) OR ANY OTHER LEGAL OR EQUITABLE THEORY (EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE).

TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL THE MAXIMUM AGGREGATE LIABILITY OF THE OPTIMALRESUME PARTIES (JOINTLY) ARISING OUT OF OR IN ANY WAY RELATED TO THE ORDER, RECEIPT OR USE OF SERVICES PURCHASED FROM THE SITE EXCEED THE AMOUNT PAID FOR SUCH SERVICES IN THE NINETY (90) DAYS PRIOR TO THE EVENT GIVING RISE TO SUCH LIABILITY. THE FOREGOING LIMITATIONS SHALL APPLY EVEN IN THE EVENT YOUR REMEDIES HEREUNDER FAIL OF THEIR ESSENTIAL PURPOSE, AND THE FOREGOING SHALL CONSTITUTE THE OPTIMALRESUME PARTIES’ SOLE LIABILITY AND OBLIGATION IN RESPECT HEREOF, REGARDLESS OF THE FORM OF ACTION, WHETHER BASED IN CONTRACT, TORT (INCLUDING, BUT NOT LIMITED TO, SIMPLE NEGLIGENCE, WHETHER ACTIVE, PASSIVE OR IMPUTED), OR ANY OTHER LEGAL OR EQUITABLE THEORY.

TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOU, ON BEHALF OF YOUR HEIRS, EXECUTORS, ADMINISTRATORS, LEGAL AND PERSONAL REPRESENTATIVES, HEREBY RELEASE, WAIVE, ACQUIT AND FOREVER DISCHARGE THE OPTIMALRESUME PARTIES FROM AND AGAINST, AND COVENANT NOT TO SUE ANY SUCH OPTIMALRESUME FOR, ALL CLAIMS YOU HAVE OR MAY HAVE ARISING OUT OF OR IN ANY WAY RELATED TO THESE TERMS.

IF YOU ARE A CALIFORNIA RESIDENT, YOU HEREBY WAIVE YOUR RIGHTS UNDER CALIFORNIA CIVIL CODE 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.”

15.   ARBITRATION AND CLASS ACTION WAIVER

PLEASE READ THE FOLLOWING SECTION CAREFULLY BECAUSE IT REQUIRES YOU TO ARBITRATE CERTAIN DISPUTES AND CLAIMS WITH OPTIMALRESUME AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM US.

TO THE FULLEST EXTENT PERMISSIBLE BY LAW, YOU AND OPTIMALRESUME AGREE THAT ANY DISPUTE, CLAIM OR CONTROVERSY ARISING OUT OF OR RELATING IN ANY WAY TO THESE TERMS, OR THE SERVICES SHALL BE FINALLY DECIDED BY BINDING ARBITRATION UNDER THE RULES OF THE AMERICAN ARBITRATION ASSOCIATION GOVERNING, AS APPLICABLE, CONSUMER OR COMMERCIAL DISPUTES BEFORE A SINGLE ARBITRATOR. Arbitration uses a neutral arbitrator to decide a dispute (instead of a judge or jury); arbitration allows for more limited discovery than in a court case; and the arbitration process and result is subject to very limited review by courts. In an arbitration you have the right, at your expense, to be represented by an attorney of your choosing. Arbitrators can award the same damages and relief under these Terms that a court can award under these Terms. You and OptimalResume agree that any in-person arbitral hearing would occur in the United States in the same county and state as your billing address if a consumer dispute and otherwise in Raleigh, North Carolina. OptimalResume further agrees that your filing fee for an arbitration will be capped at the amount set by the American Arbitration Association. You agree that, by agreeing to these Terms, the U.S. Federal Arbitration Act governs the interpretation and enforcement of this provision, and that you and OptimalResume are each waiving the right to a trial by jury or to participate in a class action. This arbitration provision shall survive termination of these Terms and the termination of your use of the Services. REGARDLESS OF THE FORUM, YOU AND OPTIMALRESUME AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and OptimalResume agree otherwise, the arbitrator may not join or consolidate more than one person’s claims with your claims, and may not otherwise preside over any form of a representative or class proceeding. If this specific provision is found to be unenforceable, then the entirety of this arbitration provision shall be null and void. The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim.

16.   Modifications to the Site and Services

We reserve the right in our sole discretion to modify, suspend or discontinue, temporarily or permanently, the Site (or any features or parts thereof) or the provision of any Services at any time.

17.   Termination

Notwithstanding anything contained in these Terms, we reserve the right, without notice and in our sole discretion, to terminate your right to access or use the Site and to order or receive and use the Services, at any time and for any or no reason, and you acknowledge and agree that we shall have no liability or obligation to you in such event and that you will not be entitled to a refund of any amounts that you have already paid to us, to the fullest extent permitted by applicable law.

18.   Governing Law and Jurisdiction

OptimalResume operates the Site from North Carolina, U.S. These Terms and the transactions they contemplate, including without limitation their interpretation, construction, performance and enforcement shall be governed by the laws of the state of North Carolina, U.S.A. without reference to conflict or choice of law provisions, as applicable to contracts made and performed entirely within such jurisdiction. The International Convention on the Sale of Goods, and other international treaties that are not mandatory with respect to contracts made and performed entirely in the U.S.A., shall not apply. If Section 18 is found to be unenforceable, the exclusive forum for the resolution of any dispute relating to these Terms shall be in the state courts of Wake County, North Carolina, U.S.A., or the United States District Court for the Eastern District of North Carolina, and you agree to personal jurisdiction of such courts over you with regard to any dispute relating to these Terms and agree to service of process on you by e-mail to the address you have submitted on the Site, if any, and by any other means permitted by law.

19.   Notice 

All notices, demands, or consents given by you under these Terms will be in writing and will be deemed given when delivered to OptimalResume at the following contact: legal@optimalresume.com. Any notices to you may be made via either e-mail or postal mail to the address in our records or via posting on the Site. Please report any violations of these Terms to OptimalResume at the contact listed above.

20.   Severability

If any term, clause or provision of these Terms is held invalid or unenforceable, then that term, clause or provision will be severable from these Terms and will not affect the validity or enforceability of any remaining part of that term, clause or provision, or any other term, clause or provision of these Terms.

21.   Survival

All rights and obligations of you and OptimalResume under these Terms which by intent or meaning have validity beyond or by their nature apply or are to be performed or exercised after the termination or expiration of these Terms shall survive the termination or expiration of these Terms for the period so specified, if any, or for perpetuity.

22.   Miscellaneous

These Terms constitute the entire agreement between you and OptimalResume relating to your access to and use of the Site and your order, receipt and use of Services. These Terms, and any rights and licenses granted hereunder, may not be transferred or assigned by you without the prior written consent of OptimalResume. No waiver of any provision of these Terms will constitute a waiver of such provision in any prior, concurrent or subsequent circumstance, and our failure to assert any right or provision under these Terms shall not constitute a waiver of such right or provision. Except as otherwise provided herein, these Terms are intended solely for the benefit of the parties and are not intended to confer third party beneficiary rights upon any other person or entity.

23.   Procedure for Making Claims of Copyright Infringement

We expect users of the Site to respect the intellectual property rights of others. If you believe in good faith that any of the content on the Site infringes your copyright, please provide our copyright agent the written information specified below.

(a) An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest;

(b) A description of the copyrighted work that you claim has been infringed;

(c) A description of where the material that you claim is infringing is located on the Site;

(d) Your address, telephone number and email address;

(e) A 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

(f) A statement by you, made under penalty of perjury, that the information in the notice is accurate and that you are the copyright owner, or are authorized to act on behalf of the owner, of an exclusive right that is allegedly infringed.

OptimalResume’s copyright agent for notice of claims of copyright infringement can be reached as follows:

OptimalResume.com, Inc.

Legal Officer

PO Box 729

Pittsboro, NC 27312

legal@optimalresume.com

+1 (877) 998-7654

EU SUBJECTS:  DATA PROCESSING ADDENDUM

This Addendum is hereby incorporated by reference into the Terms. To the extent that any provisions of this Addendum conflict with any provisions of the Terms being amended hereby, the provisions of this Addendum shall control.

1. Definitions.

(a) “OptimalResume Personal Data” means Personal Data Processed by you for or on behalf of OptimalResume.

(b) “Data Breach” means a “personal data breach” (as defined in GDPR), a “breach of the security or privacy of data or a system” or similar scenario (as defined in any other applicable Privacy Law) or any accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to, any OptimalResume Personal Data.

(c) “Data Breach Losses” means all liabilities, including all: (a) costs (including legal costs; investigations; forensic analyses; and costs for notifying individuals, regulators and others), claims, demands, actions, settlements, interest, charges, procedures, expenses, losses and damages (including relating to material or non-material damage) arising out of or related to the Data Breach; (b) costs for providing individuals with credit monitoring or other appropriate remediation services; (c) costs for responding to individual, regulator and media inquiries; and (d) to the extent permitted by the Privacy Laws: (i) administrative fines, penalties, sanctions, liabilities or other remedies imposed by a Supervisory Authority, government, administrative, or other regulatory authority; (ii) compensation which is ordered by a Supervisory Authority, government, administrative, or other regulatory authority to be paid to a Data Subject and (iii) the costs of compliance with investigations by a Supervisory Authority, government, administrative, or other regulatory authority.

(d) “Data Subject” has the meaning as defined in GDPR

(e) “Data Subject Request” means a request to exercise a Data Subject right of access, rectification, restriction of Processing, erasure (“right to be forgotten”), data portability, object to the Processing, or right not to be subject to an automated individual decision.

(f) “EEA Personal Data” means personal data (as defined in GDPR) pertaining to residents of the European Economic Area (EEA) and Switzerland.

(g) “GDPR” means Regulation (EU) 2016/679, the General Data Protection Regulation.

(h) “HIPAA” means, collectively, the Health Insurance Portability and Accountability Act of 1996, as amended and supplemented by the Health Information Technology for Clinical Health Act of the American Recovery and Reinvestment Act of 2009, Pub. Law No. 111-5, as amended from time to time, and the rules and regulations promulgated thereunder.

(i) “Personal Data” means any and all data (regardless of format) that (i) identifies or can be used to identify, contact or locate a natural person, or (ii) pertains in any way to an identified natural person. Personal Data includes obvious identifiers (such as names, addresses, email addresses, phone numbers, and identification numbers) as well as biometric data, “personal data” (as defined in the GDPR), and any and all information about an individual’s computer or mobile device or technology usage, including (for example) IP address, MAC address, unique device identifiers, unique identifiers set in cookies, and any information passively captured about a person’s online activities, browsing, application or hotspot usage or device location.

(j) “Privacy Laws” means all applicable U.S. federal, state, and international laws that regulate the Processing of Personal Data.  In particular, “Privacy Laws” includes, to the extent applicable to the activities of the parties under these Terms, HIPAA, GDPR, and other applicable laws that specify privacy, security or Data Breach notification obligations that affect Personal Data or the provision of the Services by you.

(k) “Processing” means any operation or set of operations which is performed upon Personal Data, whether or not by automatic means, such as collection, compilation, use, disclosure, duplication, organization, storage, alteration, Transfer, transmission, combination, redaction, erasure, or destruction.

(l) “Pseudonymization” means the processing of Personal Data in such a manner that the Personal Data can no longer be attributed to a specific Data Subject without the use of additional information, provided that such additional information is kept separately and is subject to technical and organizational measures to ensure that the processed Personal Data is not re-attributed to an identified or identifiable natural person.

(m)   “Security Audit Report” means a report of inspection findings issued to you by a certified public accounting firm or other independent professional engaged to perform an audit or inspection of all or any material portion of your information security program, including, without limitation, a Type II Service Organizational Control (SOC) report (based on the SSAE 16 or ISAE 3402 model) or any successor report thereto.

(n) “Sensitive Personal Data” is a subset of Personal Data, which due to its nature has been classified by law or by OptimalResume policy as deserving additional privacy and security protections. Sensitive Personal Data consists of: (i) all government-issued identification numbers, (ii) all financial account numbers (including payment card information and health insurance numbers), (iii) individual medical records, genetic, and biometric information, (iv) all data obtained from a U.S. consumer reporting agency (such as employee background investigation reports, credit reports, and credit scores), (v) user account credentials, such as usernames, passwords, security questions/answers, and other password recovery data, (vi) data elements that constitute “special categories of personal data” under the GDPR, namely EEA Personal Data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, or trade union membership, and the processing of genetic data, biometric data for the purpose of uniquely identifying a natural person, data concerning health or data concerning a natural person's sex life or sexual orientation, (vii) Personal Data concerning a child below the age of sixteen years, and (viii) any other Personal Data designated by OptimalResume as Sensitive Personal Data.

(o) “Services” means any and all goods and services that OptimalResume requests you to provide or perform under these Terms or any other contract or agreement that involves Processing of OptimalResume Personal Data.

(p) “Subprocessor” means any third party (including an affiliate of you) that provides any services to you and that may have access (including inadvertent access) to any OptimalResume Personal Data.

(q) “Supervisory Authority” means any European Union regulator, authority or body responsible for administering Privacy Laws subject to the jurisdiction of the European Union.

(r) “Transfer” means to disclose or otherwise make OptimalResume Personal Data available to a third party (including to any affiliate or Subprocessor of you), either by physical movement of the OptimalResume Personal Data to such third party or by enabling access to the OptimalResume Personal Data by other means.

2. General Obligations.

(a) The Parties acknowledge and agree that under the Terms you will Process OptimalResume Personal Data on behalf of OptimalResume. Schedule 1 to the Addendum sets out the nature and purposes of the Processing by you, the duration of the Processing, the types of Personal Data, and the categories of Data Subjects.

(b) You shall only Process or Transfer OptimalResume Personal Data in compliance with Privacy Laws and solely as authorized, in writing, by OptimalResume and solely as necessary to perform the Services. To the extent required by applicable Privacy Laws, you shall maintain complete and accurate written records of all categories of Processing activities carried out on behalf of OptimalResume.

(c) You shall promptly inform OptimalResume, in writing: (i) if it cannot comply with any Privacy Law or material term of its Agreement with OptimalResume with respect to OptimalResume Personal Data (if this occurs, you shall use reasonable efforts to remedy the non-compliance, and OptimalResume shall be entitled to terminate your further Processing of OptimalResume Personal Data); (ii) of any Data Subject Request from an individual who is (or claims to be) the subject of the OptimalResume Personal Data; (iii) of any Data Subject Request to any OptimalResume Personal Data received by you from any government official (including any data protection agency or law enforcement agency) unless it is explicitly prohibited by law from notifying OptimalResume of the request; or (iv) of any other Data Subject Requests with respect to OptimalResume Personal Data received from OptimalResume’s employees or other third parties. You understand that you are not authorized to respond to these requests, unless explicitly authorized by OptimalResume, in writing, or the response is legally required under a subpoena or similar legal document issued by a government agency whose laws and procedures are recognized under GDPR that compels disclosure by you. Notwithstanding the foregoing, you shall reasonably assist OptimalResume by appropriate technical and organizational measures, insofar as this is possible, for the fulfilment of OptimalResume’s obligation to respond to a Data Subject Request under Privacy Laws.

(d) Each party must employ commercially reasonable efforts to stay informed of the legal and regulatory requirements for its Processing of Personal Data. You represent, warrant, and covenant that your Processing is now and shall remain in compliance with all Privacy Laws that are applicable to the Processing of OptimalResume Personal Data and your own privacy notices. Nothing in these Terms relieves you of its own responsibilities and liabilities under the Privacy Laws, including co-operating with a Supervisory Authority, government, administrative, or other regulatory authority, designating a data protection officer (where necessary), and appointing a representative in the European Union (where necessary). Compliance by you with its own obligations under the Privacy Laws shall be at no additional expense to OptimalResume.

(e) If the Services involve the collection of Personal Data directly from individuals, you will provide the individuals with a clear and conspicuous privacy notice, which notice shall either: (i) be OptimalResume’s privacy notice, or (ii) your privacy notice, provided that such notice must address any legal requirements for such notices in the jurisdictions where it is given, be translated into the languages used in connection with your interaction with the individuals, and indicate that you are processing the data as a processor on behalf of OptimalResume. All such notices must be approved by OptimalResume.

(f) If the Personal Data will include “protected health information” (or “PHI”) as defined in the HIPAA Administration Simplification Rule, you, and OptimalResume shall execute an appropriate Business Associate Agreement as required by HIPAA.

(g) If the Personal Data will include EEA Personal Data, you, and OptimalResume shall ensure adequate protection for the EEA Personal Data. Each party shall comply with the provisions of GDPR and other Privacy Laws applicable to it, as a “controller” or a “processor” (as defined in GDPR). In the event of any Transfers of EEA Personal Data, the parties shall document adequate protection for the EEA Personal Data using another approved means.

(h) You shall reasonably cooperate with OptimalResume and with its affiliates and representatives in responding to inquiries, incidents, claims, and complaints regarding the Processing of the Personal Data or as otherwise needed for OptimalResume to demonstrate compliance with the Privacy Laws applicable to it and to respect individuals’ rights under such Privacy Laws.

3. Confidentiality and Data Access.

(a) Consistent with the confidentiality provisions of these Terms with OptimalResume, OptimalResume Personal Data is considered Confidential Information of OptimalResume and you must maintain all OptimalResume Personal Data in strict confidence, including exercising particular care in protecting OptimalResume Personal Data from loss, unauthorized access, unauthorized disclosure, or any other similar incident or event.

(b) You may disclose OptimalResume Personal Data to employees and contingent workers, but only to the extent such individuals require access to the OptimalResume Personal Data to perform the Services. Prior to allowing any employee or contingent worker to Process any OptimalResume Personal Data, you shall: (i) conduct an appropriate background investigation of the individual as permitted by law (and receive an acceptable response), (ii) require the individual to execute an enforceable confidentiality agreement committing the individual to use and protect the Personal Data consistent with the requirements of this Addendum (the form of which will be made available for review by OptimalResume on its request and in a form and substance reasonably acceptable to OptimalResume), and (iii) provide the individual with appropriate privacy and security training. You shall ensure that such confidentiality obligations survive the termination of the personnel engagement. You will also monitor its employees and contingent workers for compliance with the privacy and security program requirements, including any access to Personal Data.

4. Approvals for Transfers and Subprocessors.

(a) You shall not Transfer the OptimalResume Personal Data to any Subprocessors or other third parties unless such Processing is required to perform the Services, is bound by contract with you containing terms materially the same as those contained herein that requires it to comply with all applicable Privacy Laws, and is explicitly made subject to GDPR.

(b) You shall not Transfer the OptimalResume Personal Data across any national borders or permit remote access to or Processing of the OptimalResume Personal Data from outside of the country unless you have the prior written consent of OptimalResume for such Transfer and such Transfer complies with all applicable Privacy Laws. You understand that OptimalResume must authorize all such cross-border transfers, including by use of approved Transfer mechanisms.

5. Information Security Requirements.

(a) You shall have implemented and documented an information security program that includes appropriate administrative, technical, and physical measures to protect Personal Data against accidental or unlawful destruction, alteration, unauthorized disclosure or access, including, without limitation, any such minimum standards as required by Privacy Laws. You will regularly test and monitor the effectiveness of its safeguards, controls, systems, and procedures. You will periodically identify reasonably foreseeable internal and external risks to the security, confidentiality, and integrity of Personal Data, and ensure that these risks are addressed appropriately. you must use commercially reasonable efforts to ensure that its personnel are following the security policies and procedures referenced or set out in its information security program at all times.

(b) You shall have implemented and documented appropriate business continuity and disaster recovery plans to enable it continue or resume providing Services (including restoring access to the OptimalResume Personal Data) in a timely manner after a disruptive event.

(c) If the Processing involves the transmission of OptimalResume Personal Data over a network, you shall have implemented appropriate supplementary measures to protect the OptimalResume Personal Data against the specific risks presented by the Processing. OptimalResume Personal Data may not be transmitted over any unsecured network unless it has been appropriately encrypted.

(d) Where the business purposes can be achieved by applying Pseudonymisation to OptimalResume Personal Data, you shall modify processes and procedures to include Pseudonymisation to reduce the risks to Data Subjects and shall document the analysis and conclusion regarding Pseudonymisation. You shall encrypt OptimalResume Personal Data when transmitting it, whether externally or internally, or when storing it on a server, database, other stationary device, laptop, smartphone, or other mobile device, including mobile storage devices such as USB drives. OptimalResume Personal Data may not be stored on any portable computer devices or media (including, without limitation, laptop computers, removable hard disks, USB or flash drives, personal digital assistants (PDAs) or mobile phones, DVDs, CDs or computer tapes) unless it is encrypted.

(e) You will promptly and thoroughly investigate all allegations of accidental, unauthorized, or unlawful destruction, loss, alteration, disclosure of, or access to Personal Data, and you shall notify OptimalResume within 24 hours upon discovery of any accidental, unauthorized, or unlawful destruction, loss, alteration, disclosure of, or access to OptimalResume Personal Data. This notification must be made to OptimalResume at: legal@optimalresume.com. You shall provide OptimalResume with all information reasonably needed by OptimalResume to assess its incident response obligations.

(f) If the accidental, unauthorized or unlawful destruction, loss, alteration, disclosure of, or access to OptimalResume Personal Data arises out of and/or results from either: (i) the acts, errors, or omissions of you (or any you Subprocessor) or (ii) a failure of you to comply with the terms of these Terms, including this Addendum, you shall bear all costs associated with Data Breach Losses.

(g) Except where you have an alternative legal basis for processing, when you cease to perform Services for OptimalResume (and at any other time, upon request), you will either: (i) return the OptimalResume Personal Data (and all media containing copies of the OptimalResume Personal Data) to OptimalResume, or (ii) purge, delete and destroy the OptimalResume Personal Data. Electronic media containing OptimalResume Personal Data will be disposed of in a manner that renders the OptimalResume Personal Data unrecoverable. Upon request, you will provide OptimalResume with an Officer’s Certificate to certify its compliance with this provision. If you are required by applicable law to retain any OptimalResume Personal Data, you warrants that it shall: (i) ensure the continued confidentiality and security of the OptimalResume Personal Data, (ii) securely delete or destroy the OptimalResume Personal Data when the legal retention period has expired, and (iii) not actively Process the OptimalResume Personal Data other than as needed for to comply with law.

Schedule 1

Processing, Personal Data and Data Subjects

1. Purpose of processing

Assisting candidates in finding employment opportunities or assisting administrator users in helping candidates find employment opportunities.

2. Nature of processing

Review candidate personal data to assist in finding employment opportunities or to assist administrator users in helping candidates find employment opportunities.

3. Duration of the processing

The duration of these Terms.

4. Types of Personal Data

Candidate resumes, CVs, and other User Content, including name, address, email address, education, work history, professional associations, interest, and other relevant details.

5. Categories of Data Subject

Personal data in relation to a potential candidate for employment.