Workstream Terms of Use

1. Terms of Service Overview

Please read these Terms of Use (“Terms”) carefully as they apply to your access to and use of the website located at www.workstream.us and all associated web pages, websites or other pages (“Sites”) and any application, software, product, program widget, or short-code campaign (as described in Section 8), or other online or mobile resource or any content therein in any of the foregoing, in each case, that links to or references these Terms (collectively, “Services”) provided by Workstream Technologies, Inc, its subsidiaries and affiliates (each “Workstream”, “we”, “us”  or “our”.)

We reserve the right to modify these Terms from time to time at our sole discretion and without notice. Changes to our Terms become effective on the date they are posted. Material changes will be posted to the Site or otherwise communicated to you. Your continued use of any portion of the Services after any changes to the Terms have been posted will, on its own, signify your agreement to be bound by them. It is your responsibility to check these Terms periodically for changes.

We may supply different or additional terms, conditions, guidelines, policies, or rules in relation to some of our Services made available on or through Services (“Supplemental Terms”). Any Supplemental Terms become part of your agreement with us if you use the applicable Services and are hereby incorporated herein, and if there is a conflict between these Terms and the Supplemental Terms, the Supplemental Terms will control for that conflict.  

To use certain features of the Service, you may be required to provide certain information about yourself.  You represent and warrant that: (a) all information you submit is truthful and accurate; (b) you will maintain the accuracy of such information.

Please see our Privacy Policy for information about how we collect, use, share and otherwise process information about you. By using our Services, you agree that we may use your Personal Information in accordance with our Privacy Policy,  which is incorporated by reference into these Terms. Our Privacy Policy does not constitute Supplemental Terms.

SECTION 18 BELOW CONTAINS  A BINDING ARBITRATION AGREEMENT.  BY USING OUR SERVICES, YOU AGREE THAT ALL DISPUTES BETWEEN YOU AND WORKSTREAM WILL BE RESOLVED BY MANDATORY BINDING ARBITRATION. YOU FURTHER WAIVE ANY RIGHT TO PARTICIPATE IN A CLASS ACTION LAWSUIT, CLASS-WIDE ARBITRATION, AND YOUR RIGHTS TO A  JURY TRIAL   PLEASE READ SECTION 18 CAREFULLY.

 

2. Eligibility

You must be at least thirteen (13) years old to use our Services.  If you use our Services on behalf of another person or entity, (a) all references to “you” throughout these Terms will include that person or entity, (b) you represent that you are authorized to accept these Terms on that person’s or entity’s behalf, and (c) in the event you or the person or entity violates these Terms, the person or entity agrees to be responsible to us.  If you are a parent or legal guardian of a user under the age of 18 (or the age of legal majority), you will be fully responsible for the acts or omissions of such user in relation to our Services. Children under the age of 13 may not use the Services, and parents or legal guardians may not agree to these Terms on their behalf.

IF YOU ARE UNDER THE AGE OF 18 OR OTHERWISE UNDER THE AGE OF MAJORITY IN YOUR JURISDICTION, YOU MUST OBTAIN THE CONSENT OF YOUR PARENT OR LEGAL GUARDIAN PRIOR TO USING OUR SERVICES. IF YOU DO NOT HAVE CONSENT, YOU MUST NOT USE OUR SERVICES.

3. Support

If you have any questions regarding the Services, please contact us at service@workstream.is. Our mailing address is Workstream Technologies, Inc., 521 7th St., San Francisco, California 94103

4. Provision of Services

General

Workstream reserves the right to modify, improve, or discontinue any portion of the Services at our sole discretion and without notice to you, even if any modification, improvement, or discontinuance prevents you from being able to access the Services or related information. 

Workstream shall not be liable to you or anyone else for any damages that may arise from Workstream’s modification, discontinuation, or restriction on the availability of the Services (in whole or in part). 

By using the Services you agree that Workstream is not responsible for the content of the employer’s application, requirements, messages, screener questions, skills assessments, and that Workstream does not guarantee receipt of your application by the employer, or your receipt of messages from the employer. Please note that we do not choose the questions asked by employers or decide the job qualification criteria of employers. Employers are solely responsible for compliance with all applicable laws, including the Fair Credit Reporting Act and similar laws, anti-discrimination laws such as Title VII of the Civil Rights Act of 1964, as amended, the Age Discrimination in Employment Act, the Americans with Disabilities Act, and any applicable data protection or privacy laws. Employers are responsible for offering alternative methods of screening, if so required by the Americans with Disabilities Act or any similar law. You must contact the employer if you require alternative methods of screening.

Service may include chatbots

The Service may include chatbots, which allows you to take certain actions and interact with employers through the Service, such as applying for a job. (“Chatbot”). You understand that the Chatbot is an automated service that does not involve human interaction. It is your responsibility to ensure the accuracy and completeness of information submitted and received through the Chatbot. 

Service may electronic signature functionality

The Service may allow employers to request you sign documents electronically through our Service. This electronic signature service is provided by Workstream for two counterparties (usually a company, herein described as the “sending party,” subscribing to our Services and an employee, employee-candidate or contractor) to electronically sign documents (for example, but not limited to, agreements, policies and forms). When you sign a document using our Service you affirmatively consent to using electronic signatures through our Service and consent to conducting electronic business transactions and that you are able to access through the Service and the document you are signing electronically. When using our Service for signing a particular document, your consent applies only to the matter(s) covered by that particular document.

If you are an employee, employee-candidate or contractor and you choose to not use our electronic signature Service offered by an employer, you must request the employer send you a non-electronic copy for manual execution. Workstreams assumes no responsibility for providing you with a non-electronic version of the document. In the event you are choosing to sign the document manually, do not use our Service to sign the document or to return the document to the sending party.

If you have signed a document electronically through our Service and transmitted it back to the sending party, you will need to request the signed document from the sending party. If you later withdraw your consent to using our electronic signature Service, please notify the sending party and stop using the electronic signature Service. Note that the decision to stop using the electronic signature Service after you have already used it does not change the legality of the documents you have signed using an electronic signature prior to such revocation.

When parties sign a document electronically using our Service, the rights and obligations associated with that document are solely those of such parties. Workstream is not a party to the document and carries no liability or responsibility with respect to the correctness, validity or enforcement of the document. Furthermore Workstream has no liability or responsibility with respect to the legal or non-legal aspects of the document or any dispute arising as a result of the document. Workstream is only responsible for the provision of the electronic signature Service.

PLEASE NOTE THAT WORKSTREAM’S STATEMENTS CONTAINED HEREIN OR ELSEWHERE CONCERNING THE VALIDITY OF ELECTRONIC DOCUMENTS AND/OR THE SIGNATURE LINES OF DOCUMENTS THAT ARE ELECTRONICALLY SIGNED ARE FOR INFORMATIONAL PURPOSES ONLY; THEY ARE GENERAL IN NATURE AND SHOULD NOT BE CONSTRUED AS LEGAL ADVICE. UNDER FEDERAL AND STATE LAWS GOVERNING ELECTRONIC SIGNATURES, ELECTRONIC SIGNATURES ON CERTAIN TYPES OF AGREEMENTS ARE NOT ENFORCEABLE. WORKSTREAM HEREBY DISCLAIMS ANY RESPONSIBILITY FOR ENSURING THAT DOCUMENTS ELECTRONICALLY SIGNED THROUGH THE SERVICE ARE VALID OR ENFORCEABLE UNDER THE LAWS OF THE UNITED STATES OF AMERICA, ANY PARTICULAR STATE, OR ANY OTHER LEGAL JURISDICTION. YOU SHOULD CONSULT WITH LEGAL COUNSEL CONCERNING THE VALIDITY OR ENFORCEABILITY OF ANY DOCUMENT YOU MAY SIGN ELECTRONICALLY USING THE SERVICE.

5. Prohibited Conduct and Content

In addition to other restrictions outlined in these Terms, you agree you will not, and you will not permit, assist, encourage, or enable anyone else to, use our Services to violate any applicable law, contract, intellectual property right or other third-party right or commit a tort. You further agree that you will not, and you will not permit anyone else to:

• Use or attempt to use another user’s account or information, share your log-in information, or otherwise allow any other person or entity to use your account, without authorization from that user and Workstream;
• Impersonate or post on behalf of any person or entity you are not authorized to represent, or otherwise misrepresent your affiliation with a person or entity;
• Sell, resell or commercially use the Services except as expressly permitted by Workstream in writing;
• Copy, reproduce, distribute, publicly perform or publicly display all or portions of our Services, except as expressly permitted by us or our licensors in writing; 
• Modify our Services, remove any proprietary rights notices or markings, or otherwise make any derivative works based upon our Services;
• Use our Services other than for their intended purpose;
• Use our Services in any manner that could interfere with, disrupt, negatively affect or inhibit other users from fully enjoying our Services or that could damage, disable, overburden or impair the functioning of our Services in any manner;
• Use our Services in any manner that, in our sole discretion, circumvents the ordinary use or operation of the Service disrupts our pricing structure or ability to provide products, services or support to our customers, or directly competes with any of our product or offering;
• Reverse engineer any aspect of our Services or do anything that might discover source code or bypass or circumvent measures employed to prevent or limit access to any part of our Services;
• Use any data mining, robots or similar data gathering or extraction methods designed to scrape or extract data from our Services;
• Develop or use any applications that interact with our Services without our prior written consent;
• Link to any online portion of the Services in a manner that damages or exploits our reputation or suggests any form or association, approval, or endorsement by us;
• Interfere with or disrupt servers or networks used by Workstream to provide the Services or violate any third party regulations, policies or procedures of such servers or networks or harass or interfere with another user's full use and enjoyment of the Services;
• Intercept, examine, monitor, or otherwise observe any communications protocol used by a device, a client or a server communicating with the Services, whether through the use of a network analyzer, packet sniffer or other device or software;
• Bypass or ignore instructions contained in our robots.txt file; or
• Use our Services for any illegal or unauthorized purpose, or engage in, encourage, or promote any activity that violates these Terms.

We have the right to investigate suspicious activity or occurrences and may involve and cooperate with law enforcement authorities in prosecuting users who are involved in any unlawful or potentially unlawful activity or related occurrences.

6. Ownership

The Services, including the text, graphics, images, photographs, videos, illustrations, charts, photographs, interfaces, software, computer code, data, documentation and other components and content contained therein, and all intellectual property rights in the foregoing, are the exclusive property of  Workstream or, as applicable, our licensors, and are protected under both domestic and foreign laws. Except as explicitly stated in these Terms, all rights in and to the Services are reserved by us or our licensors. Any unauthorized use of any trademarks, trade dress, copyrighted materials, or any other intellectual property belonging to Workstream or any third party is strictly prohibited and may be prosecuted to the fullest extent of the law. Subject to your compliance with these Terms, you are hereby granted a limited, nonexclusive, nontransferable, non-sublicensable, revocable license to access and use our Services for your own personal use. Any use of the Services other than as specifically authorized herein, without our prior written permission, is strictly prohibited, will terminate the license granted herein and violate our intellectual property rights.

7. Trademarks

Workstream and our logos, our product or service names, our slogans and the look and feel of the Sites or any other component of the Services, are trademarks of Workstream and may not be copied, imitated or used, in whole or in part, except with our express, written permission. All other trademarks, registered trademarks, product names and company names or logos mentioned on the Sites, or any other component of the Services, are the property of their respective owners. Nothing in these Terms grants to you any rights in or to those third-party marks or materials without such third-party's consent. Reference to any products, services, processes or other information by trade name, trademark, manufacturer, supplier or otherwise does not constitute or imply endorsement, sponsorship or recommendation by us. 

8. Copyright Policy

We respect the intellectual property of others and asks that you do the same.  In connection with our Services, we have adopted and implemented a policy respecting copyright law that provides for the removal of any infringing materials and for the termination, in appropriate circumstances, of users of our Services who are repeat infringers of intellectual property rights, including copyrights.  If you believe that one of our users is, through the use of our Services, unlawfully infringing the copyright(s) in a work, and wish to have the allegedly infringing material removed, the following information in the form of a written notification (pursuant to 17 U.S.C. § 512(c)) must be provided to our designated Copyright Agent:

1. your physical or electronic signature;
2. identification of the copyrighted work(s) that you claim to have been infringed;
3. identification of the material on our services that you claim is infringing and that you request us to remove;
4. sufficient information to permit us to locate such material;
5. your address, telephone number, and e-mail address;
6. a statement that you have a good faith belief that use of the objectionable material is not authorized by the copyright owner, its agent, or under the law; and
7. a statement that the information in the notification is accurate, and under penalty of perjury, that you are either the owner of the copyright that has allegedly been infringed or that you are authorized to act on behalf of the copyright owner.

Please note that, pursuant to 17 U.S.C. § 512(f), any misrepresentation of material fact (falsities) in a written notification automatically subjects the complaining party to liability for any damages, costs and attorney’s fees incurred by us in connection with the written notification and allegation of copyright infringement.

The designated Copyright Agent for Company is: Legal Department 

Designated Agent: Workstream Technologies

Address of Agent: 521 7th Street

San Francisco, CA 94103

Telephone: (415) 669-8741

Email: service@workstream.is

 

Only notices pursuant to this Section 8 and notices relating to complaints in connection with user content should go to the Copyright Agent; any other feedback, comments or requests for support should be addressed to the address in Section 3.

9. SMS MESSAGING 

You may choose to use our Services to communicate with us or one of our clients or service partners, as applicable or to engage in another Service, via SMS technology. You may opt-in to communicate via SMS and/or MMS 5 digit short-code, and send and receive messages as described below.

When you agree to opt into our short code messaging service, we will send you an SMS message to confirm your signup and application.

You can cancel the SMS service at any time. Just text "STOP" to the short code. After you send the SMS message "STOP" to us, we will send you an SMS message to confirm that you have been unsubscribed. After this, you will no longer receive SMS messages from us.  If you want to join again, please reach out to the HR manager of the position for which you would like to receive text messages again. 

If at any time you forget what keywords are supported, just text "HELP" to the short code. After you send the SMS message "HELP" to us, we will respond with instructions on how to use our service as well as how to unsubscribe.

SMS messaging is not available on all carriers and carrier participation could change. As of date of these Terms, our text messages can be sent through most carriers. If you have questions about your carrier please contact them directly. A list of the participating carriers can be found here. The content is not compatible with all mobile device models. The list of participating carriers may be changed or updated at our sole discretion without prior notice. Neither Workstream nor the Carriers will be liable for any delays in the receipt of any SMS messages or changes to the participating carriers as delivery is subject to effective transmission from your carrier with active participation at that time. Neither Carriers nor Workstream are liable for delayed or undelivered messages.

Message and data rates may apply for any messages sent to you from us and to us from you. Message frequency may vary based on the Service. If you have any questions about your text plan or data plan, it is best to contact your wireless provider. For all questions about the services provided by this short code, you can send an email to service@workstream.is.

10. Feedback

You may voluntarily submit or otherwise communicate to us any questions, comments, suggestions, ideas, original or creative materials or other information about us or our Services (collectively, “Feedback”). You understand that we may use such Feedback for any purpose, commercial or otherwise, without acknowledgment or compensation to you, including to develop, copy, publish, or improve the Feedback or to improve the Services or develop new products or services in our sole discretion. We will exclusively own all improvements to the Services, or new products or service based on any Feedback. You understand that we may treat Feedback as nonconfidential.

11. Third-Party Content

We may provide information about or links to third-party products, employment opportunities, services, activities, or events, or we may allow third parties to make their content and information available on or through the Services (collectively, “Third-Party Content”). We may provide Third-Party Content as a service to those interested in such content.  You understand that by accessing Third-Party Content, you may see content that may be inaccurate, incomplete, delayed, misleading, illegal, offensive, or otherwise harmful. We cannot always prevent others' misuse of the Services, and you agree that we are not responsible for any such misuse. Workstream does not control or endorse any Third-Party Content, and makes no representations or warranties regarding, any Third-Party Content, including the accuracy, validity, timeliness, completeness, reliability, integrity, quality, legality, usefulness, or safety of Third-Party Content.  Your access to and use of such Third-Party Content is at your own risk and may be subject to additional terms, conditions, guidelines, policies, or rule (including terms of service or privacy policies of the providers of such Third-Party Content). You are solely responsible for deciding whether you will access or use any such Third-Party Content.

12. Indemnification

TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOU AGREE TO  INDEMNIFY, DEFEND AND HOLD HARMLESS WORKSTREAM AND OUR SUBSIDIARIES AND AFFILIATES, AND EACH OF OUR AND THEIR RESPECTIVE OFFICERS, DIRECTORS, AGENTS, PARTNERS, REPRESENTATIVES, SERVICE PROVIDERS, LICENSORS, AND EMPLOYEES (INDIVIDUALLY AND COLLECTIVELY, THE “WORKSTREAM PARTIES”) FROM AND AGAINST  ALL CHARGES, CLAIMS, DAMAGES, LOSSES, COSTS, LIABILITIES, AND EXPENSES (INCLUDING ATTORNEYS’ FEES) INCURRED AS A RESULT OF OR ARISING FROM A CLAIM, COMPLAINT, ALLEGATION, LAWSUIT, OR DEMAND ARISING OUT OF OR RELATING IN ANY WAY TO (A) YOUR ACCESS TO OR USE OF THE SERVICES; (B) SHARING YOUR LOGIN CREDENTIALS FOR THE SERVICE WITHOUT OUR AUTHORIZATION; (C) YOUR VIOLATION OF ANY APPLICABLE LAWS; (D) YOUR VIOLATION OF THESE TERMS; (E) YOUR VIOLATION, MISAPPROPRIATION OR INFRINGEMENT OF ANY RIGHTS OF ANOTHER (INCLUDING INTELLECTUAL PROPERTY RIGHTS OR PRIVACY RIGHTS); OR (F) YOUR CONDUCT IN CONNECTION WITH THE SERVICES. YOU AGREE TO PROMPTLY NOTIFY THE WORKSTREAM PARTIES OF ANY CLAIMS, COOPERATE WITH THE WORKSTREAM PARTIES IN DEFENDING SUCH CLAIMS AND PAY ALL FEES, COSTS AND EXPENSES ASSOCIATED WITH DEFENDING SUCH CLAIMS (INCLUDING ATTORNEYS' FEES). YOU ALSO AGREE THAT THE WORKSTREAM PARTIES WILL HAVE CONTROL OF THE DEFENSE OR SETTLEMENT, AT WORKSTREAM 'S SOLE OPTION, OF ANY CLAIMS. 

13. Warranty Disclaimer

YOU UNDERSTAND AND AGREE THAT YOUR USE OF THE SERVICES IS ENTIRELY AT YOUR OWN RISK AND THAT OUR SERVICES ARE PROVIDED "AS IS" AND "AS AVAILABLE". WORKSTREAM, ON BEHALF OF ITSELF AND  THE WORKSTREAM PARTIES, DISCLAIM ALL EXPRESS OR IMPLIED WARRANTIES, ENDORSEMENTS, OR REPRESENTATIONS WHATSOEVER AS TO THE OPERATION OF THE SERVICES, INFORMATION, CONTENT, MATERIALS, OR PRODUCTS. THIS INCLUDES, BUT IS NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.. IN ADDITION, WE DO NOT REPRESENT OR WARRANT THAT OUR SERVICE ARE ACCURATE, COMPLETE, RELIABLE, CURRENT, FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS OR CONTENT, OR ERROR-FREE OR THAT ACCESS TO THE SERVICES WILL BE UNINTERRUPTED. YOU ASSUME THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE SERVICES.

14. Termination of Use

We reserve the right to terminate your access to and use of all or any component of the Services, in whole or in part, at any time in its sole discretion and for any reason. Your obligations under these Terms will survive any such termination. Workstream shall not be liable to you or anyone else for any damages arising from or related to Workstream’s suspension or termination of your access to the Services, or in the event Workstream modifies, discontinues or restricts the availability of the Services (in whole or in part). 

15. Limitation of Liability

TO THE GREATEST EXTENT ALLOWED BY LAW, YOU EXPRESSLY AGREE AND HEREBY RELEASE THE WORKSTREAM PARTIES FROM ANY AND ALL LIABILITY CONNECTED WITH YOUR USE OF THE SERVICES, AND PROMISE NOT TO SUE THE WORKSTREAM PARTIES FOR ANY CLAIMS, ACTIONS, INJURIES, DAMAGES, OR LOSSES ASSOCIATED THEREWITH. 

YOU ALSO AGREE THAT IN NO EVENT WILL THE WORKSTREAM PARTIES BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES OR ANY DAMAGES WHATSOEVER (INCLUDING WITHOUT LIMITATION, DAMAGES FOR LOSS OF USE, DATA, INFORMATION, PROFITS OR BUSINESS INTERRUPTION)  ARISING OUT OF OR IN ANY WAY CONNECTED WITH (A) YOUR USE OR MISUSE OF THE SERVICES, (B) ANY DELAY OR INABILITY TO USE THE SERVICES, OR (C) ANY CONTENT OBTAINED THROUGH THE SERVICES, WHETHER BASED IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, EVEN IF WORKSTREAM HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES OR SUCH DAMAGES WERE FORESEEABLE. 

YOUR SOLE REMEDY AGAINST THE WORKSTREAM PARTIES FOR USE OF THE SERVICES IS TO STOP USING THE SAME.  NOTWITHSTANDING THE FOREGOING, IF WORKSTREAM IS FOUND TO BE LIABLE TO YOU FOR ANY DIRECT DAMAGE OR LOSS WHICH IS IN ANY WAY CONNECTED WITH YOUR USE OF THE, SERVICES, WORKSTREAM’S LIABILITY SHALL NOT EXCEED $100.00 UNITED STATES DOLLARS (USD). THE FOREGOING LIMITATIONS APPLY EVEN IF ANY AVAILABLE REMEDY SHOULD FAIL OF ITS ESSENTIAL PURPOSE. 

THE LIMITATIONS SET FORTH IN THIS SECTION 15 WILL NOT LIMIT OR EXCLUDE LIABILITY OF THE WORKSTREAM PARTIES FOR ANY MATTERS IN WHICH LIABILITY CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW. ADDITIONALLY, SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO SUCH LIMITATIONS OR EXCLUSIONS OF IN THIS SECTION 15 MAY NOT APPLY TO YOU.

16. Release

If you are a consumer who resides in California, you hereby waive your rights under California Civil Code § 1542, which provides:

“A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that if known by him or her, would have materially affected his or her settlement with the debtor or released party.”

17. Promotions

Any sweepstakes, contests, raffles, surveys, games, or similar promotions (collectively, “Promotions”) made available through the Services or by us may be governed by rules that are separate from these Terms. If you participate in any Promotions, please review the applicable rules, as well as please see our Privacy Policy. If the rules for a Promotion conflict with these Terms, the Promotion rules will govern.

18. Dispute Resolution 

Please read the following arbitration agreement in this Section (the “Arbitration Agreement”) carefully.  It requires you to arbitrate disputes with us or our Workstream Parties and limits the way you can seek relief from us or our Workstream Parties. 

a. Applicability of Arbitration Agreement

Any dispute, claim or controversy arising out of or relating to these Terms or the breach, termination, enforcement, interpretation or validity of these Terms, including the determination of the scope or applicability of this agreement to arbitrate (collectively, the “Dispute”), which cannot be resolved informally in accordance with Section 18(b) below, shall be resolved by binding arbitration on an individual basis under the terms set forth in this Arbitration Agreement. Notwithstanding the foregoing, in the event of any actual, alleged or threatened violation of confidentiality or violation of Workstream or its providers intellectual property or other proprietary rights, Workstream or its provider may immediately resort to court proceedings in a court of competent jurisdiction as set forth above in order to seek immediate injunctive relief without posting of a bond, proof of damages or other similar requirement. The institution of any action for injunctive relief does not constitute a waiver of the right or obligation of any party to submit any claim seeking relief other than injunctive relief to arbitration. This Arbitration Agreement applies to You and Workstream and any Workstream Party.

 

b. Informal Dispute Resolution

There might be instances when a Dispute arises between you and us. If that occurs, we are committed to working with you to reach a reasonable resolution. You and us agree that good faith informal efforts to resolve Disputes can result in a prompt, low‐cost and mutually beneficial outcome. You and us therefore agree that before either party commences arbitration against the other (or initiates an action in small claims court if a party so elects), we will personally meet and confer telephonically or via videoconference, in a good faith effort to resolve informally any Dispute covered by this Arbitration Agreement. If you are represented by counsel, your counsel may participate in the conference, but you will also participate in the conference.

 

c. Arbitration Rules and Forum

The arbitration proceeding will be administered by the American Arbitration Association (“AAA”) before a single arbitrator selected pursuant to the AAA rules. The decision of the arbitrator will be final and binding. Any final award or judgment may be filed and enforced in any court of competent jurisdiction. The parties shall share equally in the costs assessed for the arbitration, and each party shall bear its own attorneys’ fees and costs. Any arbitration proceeding may not be consolidated or joined with any other proceeding and will not proceed as a class action. 

 

THE PARTIES UNDERSTAND THAT THEY WOULD HAVE HAD A RIGHT OR OPPORTUNITY TO LITIGATE DISPUTES THROUGH A COURT, TO HAVE A JUDGE OR JURY DECIDE THEIR CASE, AND TO PARTICIPATE IN A CLASS ACTION OR OTHER PROCEEDING INVOLVING MULTIPLE CLAIMANTS, BUT THEY INSTEAD CHOOSE AND AGREE TO HAVE ALL DISPUTES AS SET FORTH HEREIN DECIDED THROUGH INDIVIDUAL ARBITRATION.

 

d. Place. 

The place of arbitration shall be San Francisco, California, unless otherwise agreed to in writing by all parties to the arbitration. The parties acknowledge that this Arbitration Agreement evidences a transaction involving interstate commerce, and the Federal Arbitration Act, 9 U.S.C. Sections 1–16, shall govern the interpretation, enforcement and proceedings pursuant to this Arbitration Agreement. The parties expressly agree that any and all actions taken under the Arbitration Agreement and related provisions, including but not limited to all filings, orders, judgments, and awards made in any arbitration proceeding, are confidential and may not be disclosed to any third party.

 

e. Survival. 

This Arbitration Agreement provision will survive the termination of these Terms. 

 

f. Time Limitation on Claims. 

The parties agree that they must initiate arbitration within one (1) year after any Dispute arose; otherwise, the Dispute is permanently barred.

 

g. Class Action Waiver. 

YOU AND WORKSTREAM 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 Workstream agree otherwise, the arbitrator may not 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 Agreement shall be null and void.

 

h. Waiver of Jury Trial

EXCEPT AS SPECIFIED IN SECTION 18(A)  YOU AND WORKSTREAM AND APPLICABLE WORKSTREAM PARTIES HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You, Workstream, and any of the Workstream Parties are instead electing that all covered claims and disputes shall be resolved exclusively by arbitration under this Arbitration Agreement, except as specified in Section 18(a) above. An arbitrator can award on an individual basis the same damages and relief as a court and must follow these Terms as a court would. However, there is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review. 

 

19. Governing Law

Any dispute arising from these Terms and your use of the Services will be governed by and construed and enforced in accordance with the laws of the State of Delaware, without regard to conflict of law rules or principles. If any dispute between the parties is not subject to arbitration, then the state and federal courts located in Dover County, Delaware, will have exclusive jurisdiction. You and Workstream waive any objection to the venue in any such courts. If your local law requires that consumer contracts be interpreted subject to local law and enforced in the courts of that jurisdiction, this section may not apply to you (but only to the extent that local law conflicts with this section). 

 

20. Disclosures for California Customers

If you are an individual residing in California, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Product of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210.

 

21. Terms Applicable To New Jersey Consumers

No provision in these Terms will apply to any consumer in New Jersey if the provision limits remedies for (i) negligence, (ii) products liability claims, (iii) the punitive damages laws, (iv) the New Jersey Uniform Commercial Code, or (v) failure to reasonably protect against harm arising from certain criminal acts of third parties (e.g., computer hacking and identity theft). The provisions of these Terms concerning the exclusion or limitation of certain damages are not applicable in New Jersey with respect to statutory damages, punitive damages, loss of data, and loss of or damage to property. Workstream reserves all rights, defenses, and permissible limitations under the laws of New Jersey and under the laws of your state.

 

22. Electronic Communications

For contractual purposes, you (a) consent to receive communications from Company in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Company provides to you electronically satisfy any legal requirement that such communications would satisfy if it were in a hardcopy writing. The foregoing does not affect your non-waivable rights.

 

23.Severability and No Waiver

If any provision or part of a provision of these Terms is unlawful, void or unenforceable, that provision or part of the provision is deemed severable from these Terms and does not affect the validity and enforceability of any remaining provisions. Workstream’s failure to exercise or enforce any right or provision of these Terms will not operate as a waiver of such right or provision.

 

24. Export Control

You are responsible for complying with the export laws and regulations of the United States and other applicable jurisdictions. Without limiting the generality of the foregoing, you represent, warrant, and covenant that you are not: (1) located in, or a resident or a national of, any country subject to a U.S. government embargo; (2) listed on any U.S. government list of prohibited or restricted parties; or (3) engaged in activities directly or indirectly related to proliferation of weapons of mass destruction.

 

25. Entire Agreement

These Terms (including any Supplemental Terms) reflect the entire agreement between you and us relating to the subject matter hereof and supersede all prior agreements, representations, statements and understandings of the parties. The section titles in these Terms are for convenience only and have no legal or contractual effect. Use of the word “including” will be interpreted to mean “including without limitation.” 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. You agree that communications and transactions between us may be conducted electronically. Please note that e-mail communications will not necessarily be secure; accordingly, you should not include credit card information or other sensitive information in your e-mail correspondence with us.

 

Contact us

Please direct any questions and concerns regarding these Terms to us at:  

Workstream

Legal Department

521 7th Street

San Francisco, California 94103

service@workstream.is