Terms of Use

‍

Last Updated: Jan 17, 2024

‍

1. Acceptance of the Terms of Use

Marketir, Inc. d/b/a Formative Search Partners and WISE (“Formative” “we,” “us,” “our” or the “Company”) operates this website located at formativesp.com and womeninsaleseverywhere.com (the “Site”). By accessing the Site and/or using the services, features, content, or applications that may be offered from time to time by Formative in connection with the Site and/or Formative’s business (collectively, the “Services”), you agree to be bound by all of the provisions of this Terms of Use Agreement (the “TOU”). If you do not accept and agree to all of the provisions of the TOU, please do not access the Site or use the Services. Formative reserves the right to modify the TOU or add or remove terms at any time or modify or discontinue any aspect of the Services at anytime without any liability to you, and each such modification, addition or deletion will be effective immediately upon posting on the Site. Your use of the Site or the Services following any such posted notice constitutes your continuing agreement to be bound by and your acceptance of the TOU as so modified. It is therefore important that you review the TOU regularly. If you do not agree to be bound by all of the terms of the TOU as presently in effect when you access the Site, you are not authorized to access the Site and/or use the Services, and you must immediately discontinue doing so. As used in this TOU, the terms “user”, “you” and “your” mean each individual or individual on behalf of an entity, as the case may be, that accesses, browses or uses the Site or the Services in any manner. If you are accessing the Site and/or using the Services on behalf of an entity (an “Employer User”), you represent and warrant to Formative that you have the authority to bind such entity to the TOU. Your agreement to the TOU will be treated as an agreement on behalf of the entity you represent to accept and agree and be bound by all provisions of the TOU.

2. Use of the Site and Prohibited Conduct.

You may only use the Site and the Services if you are at least 13 years of age. If you are under the age of 18 or under the age of majority in the jurisdiction in which you are located, you may only use the Site and the Services under the supervision of a parent or legal guardian. You may not use the Site if you are under 13 years of age. Formative reserves the right to require you to provide Formative with proof of your age and, if applicable, approval of your use of the Site and the Services by your parent/legal guardian. Formative may terminate your access to and use of the Site and the Services without notice if it determines that you do not meet the foregoing eligibility requirements or for any other reason. As a condition of your access to the Site and use of the Services, you are prohibited from, among other things: (i) posting, uploading, exhibiting, communicating or distributing content which violates any applicable laws, rules or regulations or which Formative, in its sole and absolute discretion, deems to be inappropriate, (ii) engaging in conduct which violates any applicable laws, rules or regulations or which Formative, in its sole and absolute discretion, deems to be inappropriate, (iii) uploading advertisements or any other materials that Formative, in its sole and absolute discretion, deems to be inappropriate or transmitting unsolicited information, materials or data (including, without limitation, “spam” messages), (iv) transmitting any worms or viruses or any code of a destructive nature or that attempts to automatically gather information from the screen (i.e., screen scraping), or using automated systems (i.e., “bots”) to upload multiple streams of data (such as for multiple Candidates at once), and (v) using excessive bandwidth (as determined in Formative’s sole and absolute discretion). Your ability to use the Site and the Services is a privilege, not a right, and Formative reserves the right, in its sole and absolute discretion, to take any action that it deems proper, without notice, to prevent any violation, enforce any provision or correct any alleged violations of the TOU or any applicable law, including, without limitation, terminating, disabling, discontinuing or canceling the account or otherwise banning any user for any reason, whether or not specifically listed above. You may also cancel your account at any time, and you are solely responsible for doing so. Upon any such termination, whether by Formative or you, all of your User Content (as defined below) will be immediately deleted from the Site and the Services. Please note that this information cannot be recovered once your account has been terminated.

3. Proprietary Property.

The Site and the Services constitute and contain proprietary property/content of Formative (including, without limitation, text, scripts, graphics, interactive features, company logos, copyrights, trademarks and service marks) (collectively, the “Formative Proprietary Property”) and may contain proprietary property/content provided by other users or third parties) (together with the Formative Proprietary Property, the “Proprietary Property”). Formative owns and retains all rights in and to the Formative Proprietary Property. You do not have the right to use the Proprietary Property except as authorized by Formative for use of the Services. For the avoidance of doubt, you may not copy, modify, edit, translate, publish, broadcast, transmit, distribute, perform, display, sell or otherwise use the Proprietary Property or any other content appearing on or through the Site or the Services

4. User Content

The Site and the Services may be used to, among other things, transmit and store (i) resumes (or CVs), (ii) files associated with the process of hiring a candidate (hereinafter referred to as “Candidate”), and (iii) job descriptions and comments with respect to the foregoing. You may also generate other content on the Site or in connection with the Services, including, without limitation, audio, audio interviews, comments, suggestions, ideas, notes, drawings, concepts or other information disclosed or offered by you through the Site or in connection wit the Services. Any content that any User generates or creates on the Site or in connection with the Services, including, without limitation, all of the content detailed above, shall be referred to herein as “User Content.” You are responsible for any charges incurred by you in connection with the posting of User Content, which charges may include texting and phone charges required by your carrier. You grant to us and our owners, affiliates, representatives, licensors and assigns a non-exclusive, fully-paid, royalty-free, world-wide, universal, transferable license to display, publicly perform, distribute, store, broadcast, transmit, reproduce, modify, prepare derivative works and otherwise use and reuse all or any part of the User Content by any means or medium currently invented or invented in the future. We reserve the right to display advertisements, as well as a “powered by Formative” graphic or text link, in connection with the User Content. You acknowledge and agree that generating or creating your User Content is entirely voluntary and shall be deemed to be non-confidential. You understand that the Site and the Services may be used for transmission of your User Content, and your User Content may be transferred unencrypted over the Internet. You hereby consent to such unencrypted transmission. Your usage of this service is not intended to be private. You understand that Formative is in the business of actively promoting and marketing both job listings (“Job Listings”) of Employer Users and candidate profiles (“Candidate Profiles”) of individual Users seeking jobs, and you acknowledge and agree that Formative can use any and all User Content to market and promote any Job Listing or Candidate Profile as it deems necessary, advisable or appropriate in its sole and absolute discretion. You acknowledge and agree that Formative has both internal and external resources which may have developed, or may in the future develop, ideas, content, programming and the like identical to or similar to your User Content and you agree that Formative will not incur any obligation or liability to you or otherwise as a result of (i) any such similarities or (ii) Formative’s review of any of the User Content. You hereby irrevocably assign to Formative, throughout the universe in perpetuity, all rights of every kind and nature (whether currently existing or hereafter developed), including copyright, in and to your User Content, and Formative shall be entitled to unrestricted use of your User Content for any and all purposes whatsoever, commercial or otherwise, without any payment or other obligation to you or any other person involved with the creation and/or submission to Formative of any User Content. You hereby waive any and all of your moral rights and similar rights with respect to any User Content. Formative does not pre-screen User Content, and it cannot ensure that it will promptly remove objectionable User Content after it has been posted. You understand that any and all User Content that you provide or create must comply with all applicable laws, rules and regulations. Formative may take any action with respect to any User Content, including its removal that it, in its sole and absolute discretion, deems necessary, advisable or appropriate. Formative may reject and/or remove any User applications in its sole discretion for any reasons permitted by law. Such reasons may include because an application does not meet an employer job post requirements, the application is incomplete, contains offensive content or is determined to be fake.

5. Digital Millennium Copyright Act.

We take copyright infringement very seriously. The Digital Millennium Copyright Act of 1988 (the “DMCA”) provides recourse for any copyright owners who believe that material appearing on the Internet infringes upon their rights under U.S. copyright law. If you believe in good faith that any User Content made available on the Site or in connection with the Services infringes your copyright, you (or your agent) may send us a notice requesting that such User Content be removed or access to it be blocked. Notices and counter-notices must meet the then-current statutory requirements imposed by the DMCA (see http://www.loc.gov/copyright for details). Notices and counter-notices should be sent to us by email at support@formativesp.com. We may disclose your identity to any third party who claims that any of your User Content violates their rights, including their copyright or other intellectual property rights. It is also our policy to terminate the User accounts of repeat infringers.

6. Third-Party Sites.

6.1 Links to Third Party Sites.

The Site and the Services may contain links to independent third-party websites and/or services (collectively, the “Linked Sites”). The Linked Sites are not under Formative’s control, and Formative does not endorse, is not responsible for and shall have no liability to you with respect to the business practices, privacy policies or content, materials, information, merchandise, products or services displayed, featured, mentioned, advertised, distributed or sold on or through such Linked Sites.

6.2 Access to Third Party Sites.

You may authorize or authenticate Formative to collect information from websites, accounts or services not affiliated with Formative (such as through a LinkedIn Token or Facebook Access Token). You may be required to provide your username and password for certain services which do not have authentication tokens or similar means of access in order to allow Formative to access those services on your behalf. By providing your login credentials or otherwise authenticating Formative through the use of tokens or similar means, you expressly request and authorize Formative to login to these third-party social networks and websites as your agent, for the purpose of aggregating content which you authorized Formative to access. Formative does not share your passwords with third parties and will only use this information to update your personal information. As information provided through Formative is collected from different sources, you acknowledge and agree that Formative is not responsible, and you are solely responsible, for the quality, authenticity, or truthfulness of information or content provided through the Site or the Services at all times. Formative does not control the information you provide through these third-party social networks and websites. If you want to change your preferences with regard to how an applicable third party website collects or uses your information in connection with the Services, you should review the privacy practices of such website and adjust your privacy or other settings directly through them.

7. Privacy.

Use of the Site and the Services is subject to the Formative Privacy Policy (the “Privacy Policy”). The terms of the Privacy Policy are incorporated by reference into the TOU. Please read our Privacy Policy for more details.

8. Disclaimer; Exclusion of Warranties.

FORMATIVE PROVIDES ITS USERS WITH A SELECTION OF SERVICES, TOOLS AND RESOURCES WITH THE GOAL OF ADDING AN EFFECTIVE, INFORMATIVE STEP INTO THE HIRING PROCESS. FORMATIVE IS NOT AN EMPLOYMENT AGENCY. FORMATIVE DOES NOT ENDORSE ANY THIRD PARTIES, OR THIRD PARTY CONTENT, INCLUDING, WITHOUT LIMITATION, JOB SEARCHES OR OTHER OPPORTUNITIES, POSTED ON OR THROUGH THE SITE OR IN CONNECTION WITH THE SERVICES. FORMATIVE MERELY SERVES AS A VENUE FOR INTERACTIONS BETWEEN EMPLOYERS AND JOB SEEKERS. FORMATIVE IS NOT INVOLVED IN THE ACTUAL TRANSACTIONS BETWEEN EMPLOYERS AND JOB SEEKERS. FORMATIVE SHALL NOT BE RESPONSIBLE FOR ANY HIRING OR OTHER DECISIONS MADE BY ANY INDIVIDUAL OR ENTITY IN CONNECTION WITH ANY EMPLOYMENT OPPORTUNITY POSTED ON OR THROUGH THE SITE OR IN CONNECTION WITH THE SERVICES. YOU EXPRESSLY UNDERSTAND AND AGREE THAT FORMATIVE SHALL NOT BE CUMULATIVELY LIABLE FOR ANY DAMAGES IN EXCESS OF US$1000 OR FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES RESULTING FROM THE USE OF OR INABILITY TO USE THE SERVICE. IN NO EVENT WILL WE BE LIABLE FOR LOST PROFITS OR ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE SERVICE (HOWEVER ARISING INCLUDING NEGLIGENCE). YOUR USE OF THE SERVICES IS AT YOUR SOLE RISK. THE SERVICES ARE PROVIDED ON AN ”AS IS“ AND ”AS AVAILABLE“ BASIS WITHOUT ANY WARRANTY OR CONDITION, EXPRESS, IMPLIED OR STATUTORY. WE DO NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE. WE DO NOT WARRANT THAT THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE WILL BE ACCURATE OR RELIABLE. WE DO NOT WARRANT THAT THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR EXPECTATIONS, OR THAT ANY ERRORS IN THE SERVICE WILL BE CORRECTED. SOME STATES DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU. THE FOREGOING DISCLAIMERS SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW

9. Governing Law; Disputes.

9.1 Governing Law.

The TOU shall be governed by, and construed in accordance with, the laws of the State of New York, without regard to its conflict of law provisions or the conflict of law provisions of any other jurisdiction.

9.2 Disputes Resolution.

Most of your concerns can be resolved quickly and to your satisfaction by contacting us by email at support@formativesp.com. IN THE UNLIKELY EVENT THAT WE ARE UNABLE TO RESOLVE A COMPLAINT YOU MAY HAVE TO YOUR SATISFACTION (OR IF WE HAVE NOT BEEN ABLE TO RESOLVE A DISPUTE WE HAVE WITH YOU AFTER ATTEMPTING TO DO SO INFORMALLY), YOU AND WE EACH AGREE TO RESOLVE THOSE DISPUTES THROUGH BINDING ARBITRATION OR IN SMALL CLAIMS COURT, RATHER THAN PROCEEDING IN A COURT OF GENERAL JURISDICTION. YOU AND WE FURTHER AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN AN INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Arbitration is more informal than a lawsuit in court and uses a neutral arbitrator instead of a judge or jury. Arbitrators can award the same damages and relief that a court can award. Any arbitration under the TOU will take place on an individual basis; class arbitrations and class actions are not permitted even if the arbitral body permits claims to proceed on a class wide basis. You further waive any and all rights and benefits otherwise provided by any statutory or non-statutory law of any jurisdiction that would purport to limit the scope of a release or waiver. You waive and relinquish all rights and benefits that you have or may have under Section 1542 of the Civil Code of the State of California or any similar provision of the statutory or non-statutory law of any other jurisdiction to the full extent that you may lawfully waive all such rights and benefits. YOU ACKNOWLEDGE THAT THIS SECTION IS A MATERIAL INDUCEMENT FOR FORMATIVE TO ENTER INTO THE TOU.

10. Indemnity.

You agree to indemnify, defend and hold harmless Formative, its parent, subsidiaries, affiliates, licensors and assignees and their respective officers, directors, managers, agents, partners and employees, from and against any and all losses, liabilities, claims, damages and demands, including, but not limited to, reasonable attorneys’ fees, made by any third party due to or arising out of (i) your access to and/or use of the Site and the Services, including, without limitation, any content, services and/or products offered thereby or in connection therewith; (ii) a violation or breach by you, or any user of your account, of any terms of the TOU, including, without limitation, a breach of any of the representations, warranties or agreements set forth in the TOU (including, without limitation, a violation of any third party right, including without limitation any copyright, property, or privacy right); and/or (iii) any User Content that you post on or through the Site or the Services, including, without limitation, any claim that your User Content, in whole or in part, caused damage to a third party. This defense and indemnification obligation will survive following the termination of your use of the Site and the Services.

11. Miscellaneous.

Formative has the right to assign its rights and/or delegate obligations under this TOU, in whole or in part, to any third party. You do not have the right to assign your rights and/or delegate your obligations under the TOU. The failure of Formative to exercise or enforce any right or provision of the TOU shall not operate as a waiver by Formative of such right or provision. The section titles in the TOU are for convenience only and have no legal or contractual effect. The TOU operates to the fullest extent permissible by law. If any provision of the TOU is held by a court or other tribunal of competent jurisdiction to be unlawful, void or unenforceable, such provision (i) is deemed severable from the TOU and does not affect the validity and enforceability of any remaining provisions which shall remain in full force and effect and (ii) shall be limited or eliminated to the minimum extent necessary to comply with the applicable law. The provisions of this TOU shall inure to the benefit of, and be binding upon, each party and their respective representatives, heirs, distributees and permitted assigns, whether or not any such person shall have agreed in writing to be bound by this TOU. THE FOLLOWING SECTION ALSO APPLIES TO YOU IF YOU ARE USING THE SERVICES OR THE SITE ON BEHALF OF ANY ENTITY FOR RECRUITING SERVICES (“EMPLOYER” or an “EMPLOYER USER”). A “CANDIDATE” MEANS ANY PERSON SEEKING A JOB.