Cultivate Terms of Service
Last Updated: January 21, 2020
These Terms of Service (“Terms”) apply to your access to and use of the website and other online products and services (collectively, the “Service”) provided by Cultivate Team, LLC (“Cultivate” or “we”). By clicking “I Agree” or by using our Service, you agree to these Terms, including the mandatory arbitration provision and class action waiver in Section 10. If you do not agree to these Terms, do not use our Service.
If you have any questions about these Terms or our Service, please contact us at info@cultivateteam.org. For information about how we collect, use, share and otherwise process information about you, please see our Privacy Policy.
1. Eligibility; Authority
You must be at least 18 years of age to use our Service. By creating an account, you represent and warrant that you are 18 years of age or older. If you use our Service 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.
Ownership; Limited License
The Service, including the text, graphics, images, photographs, videos, illustrations and other content contained therein, are owned by Cultivate or our licensors and are protected under both United States and foreign laws. Except as explicitly stated in these Terms, all rights in and to the Service are reserved by us or our licensors. Subject to your compliance with these Terms, you are hereby granted a limited, nonexclusive, nontransferable, non-sublicensable, revocable license to access and use our Service for your own personal, noncommercial use. Any use of the Service 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.
2. Trademarks
CULTIVATE, and our logos, our product or service names, our slogans and the look and feel of the Service are trademarks of Cultivate and may not be copied, imitated or used, in whole or in part, without our prior written permission. All other trademarks, registered trademarks, product names and company names or logos mentioned on the Service are the property of their respective owners. Reference to any products, services, processes or other information by trade name, trademark, manufacturer, supplier or otherwise, or to individuals, does not constitute or imply any endorsement, affiliation, sponsorship or recommendation.
3. Feedback
You may voluntarily post, submit or otherwise communicate to us any questions, comments, suggestions, ideas, original or creative materials or other information about Cultivate or our Service (collectively, “Feedback”). You understand and agree that we have no obligation to treat Feedback as confidential and 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 in Cultivate’s sole discretion.
4. Third-Party Content; Third-Party Products and Opportunities
We may provide, or may provide links to or information about, third-party content on or through the Service, job and organization descriptions and candidate applications and resumes (collectively, “Third-Party Content”). We provide Third-Party Content as a service to those interested in such content. Cultivate does not control or endorse, and makes no representations or warranties regarding, any Third-Party Content, including without limitation regarding its accuracy or completeness. You acknowledge and agree that Cultivate is not responsible or liable for, and undertakes no responsibility to update or review, any Third-Party Content. Your access to and use of such Third-Party Content is at your own risk.
Cultivate may also provide through the Service various information about or links to third-party products, services, jobs or other opportunities (“Third-Party Products and Opportunities”). Cultivate does not endorse or make any representations or warranties regarding any Third-Party Products and Opportunities or regarding any organizations or candidate you may be connected with through the Service. Your dealings, interactions, or correspondence with such third parties, and any terms, conditions, warranties or representations associated with such dealings, are solely between you and such third party. Cultivate is not responsible or liable in any manner for any third-party products, services, opportunities, or candidates, or for any loss or damage of any sort incurred as the result of any products, services, opportunities, candidates, dealings or interactions.
5. Indemnification
To the fullest extent permitted by applicable law, you will indemnify, defend and hold harmless Cultivate and our officers, directors, agents, partners and employees (individually and collectively, the “Indemnified Parties”) from and against any losses, liabilities, claims, actions, judgements, demands, damages, expenses or costs (“Claims”) arising out of or related to (a) your violation of these Terms; (b) any false or misleading information you submit to Cultivate; (c) your violation, misappropriation or infringement of any rights of another (including intellectual property rights or privacy rights); or (d) your conduct in connection with the Service. You agree to promptly notify Indemnified Parties of any third-party Claims, cooperate with Indemnified 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 Indemnified Parties will have control of the defense or settlement, at Cultivate's sole option, 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 Cultivate or the other Indemnified Parties.
6. DISCLAIMERS
YOUR USE OF OUR SERVICE IS AT YOUR SOLE RISK. EXCEPT AS OTHERWISE PROVIDED IN A WRITING BY US, OUR SERVICE AND ANY CONTENT THEREIN ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. IN ADDITION, CULTIVATE DOES NOT REPRESENT OR WARRANT THAT OUR SERVICE ARE ACCURATE, COMPLETE, RELIABLE, CURRENT OR ERROR-FREE. WHILE CULTIVATE ATTEMPTS TO MAKE YOUR USE OF OUR SERVICE AND ANY CONTENT THEREIN SAFE, WE CANNOT AND DO NOT REPRESENT OR WARRANT THAT OUR SERVICE OR SERVERS ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. YOU ASSUME THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE SERVICE. WE ARE NOT LIABLE FOR ANY INTERACTIONS WITH OTHER USERS OR ORGANIZATIONS YOU MAY INTERACT WITH IN CONNECTION WITH THE SERVICE, INCLUDING IF WE CONNECT INDIVIDUALS WITH ORGANIZATIONS OR FORWARD USER RESUMES OR APPLICATIONS, NOR DO WE MAKE ANY REPRESENTATIONS OR WARRANTIES REGARDING ANY ORGANIZATIONS, POSITIONS, JOB DESCRIPTIONS, CANDIDATES, RESUMES, OR APPLICATIONS ACCESSED THROUGH THE SERVICE.
7. LIMITATION OF LIABILITY
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, CULTIVATE AND THE OTHER CULTIVATE PARTIES WILL NOT BE LIABLE TO YOU UNDER ANY THEORY OF LIABILITY—WHETHER BASED IN CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, WARRANTY, OR OTHERWISE—FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, PUNITIVE OR SPECIAL DAMAGES OR LOST PROFITS, EVEN IF CULTIVATE OR THE OTHER CULTIVATE PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
THE TOTAL LIABILITY OF CULTIVATE AND THE OTHER CULTIVATE PARTIES FOR ANY CLAIM ARISING OUT OF OR RELATING TO THESE TERMS OR OUR SERVICE, REGARDLESS OF THE FORM OF THE ACTION, IS LIMITED TO THE GREATER OF $5 OR THE AMOUNT PAID BY YOU TO USE OUR SERVICE.
THE LIMITATIONS SET FORTH IN THIS SECTION 7 WILL NOT LIMIT OR EXCLUDE LIABILITY FOR THE GROSS NEGLIGENCE, FRAUD OR INTENTIONAL MISCONDUCT OF CULTIVATE OR THE OTHER CULTIVATE PARTIES OR FOR ANY OTHER 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 THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU.
8. Release
To the fullest extent permitted by applicable law, you release Cultivate and the other Cultivate Parties from responsibility, liability, claims, demands and/or damages (actual and consequential) of every kind and nature, known and unknown (including claims of negligence), arising out of or related to disputes between users and the acts or omissions of third parties. 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 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.”
9. Transfer and Processing Data
In order for us to provide our Service, you agree that we may process, transfer and store information about you in the United States and other countries, where you may not have the same rights and protections as you do under local law.
10. Dispute Resolution; Binding Arbitration
Please read the following section carefully because it requires you to arbitrate certain disputes and claims with Cultivate and limits the manner in which you can seek relief from us, unless you opt out of arbitration by following the instructions set forth below. No class or representative actions or arbitrations are allowed under this arbitration provision. In addition, arbitration precludes you from suing in court or having a jury trial.
No Representative Actions. You and Cultivate agree that any dispute arising out of or related to these Terms or our Service is personal to you and Cultivate and that any dispute will be resolved solely through individual action, and will not be brought as a class arbitration, class action or any other type of representative proceeding.
Arbitration of Disputes. Except for small claims disputes in which you or Cultivate seeks to bring an individual action in small claims court located in the county of your billing address or disputes in which you or Cultivate seeks injunctive or other equitable relief for the alleged infringement or misappropriation of intellectual property, you and Cultivate waive your rights to a jury trial and to have any other dispute arising out of or related to these Terms or our Service, including claims related to privacy and data security, (collectively, “Disputes”) resolved in court. Instead, for any Dispute that you have against Cultivate you agree to first contact Cultivate and attempt to resolve the claim informally by sending a written notice of your claim (“Notice”) to Cultivate by email at info@cultivateteam.org. The Notice must (a) include your name, residence address, email address, and telephone number; (b) describe the nature and basis of the Dispute; and (c) set forth the specific relief sought. Our notice to you will be similar in form to that described above. If you and Cultivate cannot reach an agreement to resolve the Dispute within thirty (30) days after such Notice is received, then either party may submit the Dispute to binding arbitration administered by JAMS or, under the limited circumstances set forth above, in court. All Disputes submitted to JAMS will be resolved through confidential, binding arbitration before one arbitrator. Arbitration proceedings will be held in [county, state] unless you are a consumer, in which case you may elect to hold the arbitration in your county of residence. For purposes of this Section 10, a “consumer” means a person using the Service for personal, family or household purposes. You and Cultivate agree that Disputes will be held in accordance with the JAMS Streamlined Arbitration Rules and Procedures (“JAMS Rules”). The most recent version of the JAMS Rules are available on the JAMS website and are hereby incorporated by reference. You either acknowledge and agree that you have read and understand the JAMS Rules or waive your opportunity to read the JAMS Rules and waive any claim that the JAMS Rules are unfair or should not apply for any reason.
You and Cultivate agree that these Terms affect interstate commerce and that the enforceability of this Section 10 will be substantively and procedurally governed by the Federal Arbitration Act, 9 U.S.C. § 1, et seq. (the “FAA”), to the maximum extent permitted by applicable law. As limited by the FAA, these Terms and the JAMS Rules, the arbitrator will have exclusive authority to make all procedural and substantive decisions regarding any Dispute and to grant any remedy that would otherwise be available in court, including the power to determine the question of arbitrability. The arbitrator may conduct only an individual arbitration and may not consolidate more than one individual’s claims, preside over any type of class or representative proceeding or preside over any proceeding involving more than one individual.
The arbitration will allow for the discovery or exchange of non-privileged information relevant to the Dispute. The arbitrator, Cultivate, and you will maintain the confidentiality of any arbitration proceedings, judgments and awards, including information gathered, prepared and presented for purposes of the arbitration or related to the Dispute(s) therein. The arbitrator will have the authority to make appropriate rulings to safeguard confidentiality, unless the law provides to the contrary. The duty of confidentiality does not apply to the extent that disclosure is necessary to prepare for or conduct the arbitration hearing on the merits, in connection with a court application for a preliminary remedy or in connection with a judicial challenge to an arbitration award or its enforcement, or to the extent that disclosure is otherwise required by law or judicial decision.
You and Cultivate agree that for any arbitration you initiate, you will pay the filing fee (up to a maximum of $250 if you are a consumer), and Cultivate will pay the remaining JAMS fees and costs. For any arbitration initiated by Cultivate, Cultivate will pay all JAMS fees and costs. You and Cultivate agree that the state or federal courts of the State of New York and the United States sitting in Kings County, New York have exclusive jurisdiction over any appeals and the enforcement of an arbitration award.
Any Dispute must be filed within one year after the relevant claim arose; otherwise, the Dispute is permanently barred, which means that you and Cultivate will not have the right to assert the claim.
You have the right to opt out of binding arbitration within 30 days of the date you first accepted the terms of this Section 10 by emailing us at info@cultivateteam.org. In order to be effective, the opt-out notice must include your full name and address and clearly indicate your intent to opt out of binding arbitration. By opting out of binding arbitration, you are agreeing to resolve Disputes in accordance with Section 11.
If any portion of this Section 10 is found to be unenforceable or unlawful for any reason, (a) the unenforceable or unlawful provision shall be severed from these Terms; (b) severance of the unenforceable or unlawful provision shall have no impact whatsoever on the remainder of this Section 10 or the parties’ ability to compel arbitration of any remaining claims on an individual basis pursuant to this Section 10; and (c) to the extent that any claims must therefore proceed on a class, collective, consolidated, or representative basis, such claims must be litigated in a civil court of competent jurisdiction and not in arbitration, and the parties agree that litigation of those claims shall be stayed pending the outcome of any individual claims in arbitration. Further, if any part of this Section 10 is found to prohibit an individual claim seeking public injunctive relief, that provision will have no effect to the extent such relief is allowed to be sought out of arbitration, and the remainder of this Section 10 will be enforceable.
11. Governing Law and Venue
Any dispute arising from these Terms and your use of the Service will be governed by and construed and enforced in accordance with the laws of New York, except to the extent preempted by U.S. federal law, without regard to conflict of law rules or principles (whether of New York or any other jurisdiction) that would cause the application of the laws of any other jurisdiction. Any dispute between the parties that is not subject to arbitration or cannot be heard in small claims court will be resolved in the state or federal courts of New York and the United States, respectively, sitting in Kings County, New York.
12. Modifying and Terminating our Service
We reserve the right to modify our Service or to suspend or stop providing all or portions of our Service at any time. You also have the right to stop using our Service at any time. We are not responsible for any loss or harm related to your inability to access or use our Service.
13. Additional Terms and Amendments
We may supply different or additional terms in relation to some of our Service, and those different or additional terms become part of your agreement with us if you use those Service. If there is a conflict between these Terms and the additional terms, the additional terms will control for that conflict.
We may make changes to these Terms from time to time. If we make materials changes, we will provide you with notice of such changes, such as by sending an email, providing a notice through our Service or updating the date at the top of these Terms. Unless we say otherwise in our notice, the amended Terms will be effective immediately, and your continued use of our Service after we provide such notice will confirm your acceptance of the changes. If you do not agree to the amended Terms, you must stop using our Service.
14. Severability
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.
15. Miscellaneous
The failure of Cultivate to exercise or enforce any right or provision of these Terms will not operate as a waiver of such right or provision. These Terms reflect the entire agreement between the parties 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.
Under California Civil Code Section 1789.3, California consumers are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 N. Market Blvd., Suite N-112, Sacramento, California 95834, or by telephone at 1 (800) 952-5210.