HMG Plus, Inc. FOOD SERVICE CLIENT TERMS OF SERVICE
Welcome to HMG Plus, Inc. (“Site” or “HMG+ Site”), the world’s first 360 degree software operated by the HMG Plus, Inc. (“HMG+”), and dedicated to fulfilling the needs of hospitality service buyers (“Company(ies)”) and service professionals dedicated to the hospitality industry.
Our mission here at HMG+ is to provide a functional tool for hospitality service professionals and buyers and a place where people in the hospitality service industry can reach a network of peers for resources and support. The philosophy and spirit of “HMG+ Online” is one of community and all about building enjoyable and successful relationships between Companies and Service Pros. Thus, the overall intent is for all of Our users to conduct themselves, and treat each other, in a fair and reasonable manner.
By using the HMG+ Site (including any related Web sites linked hereto and on which this Agreement appears or is linked to), You are agreeing to these terms, and these terms will govern Your use of the Site (including all information, tools, features and other content accessible via the Site) and all transactions conducted through the Site, including but not limited to Your use of the HMG+ Services.
If You do not agree to these terms, You must cease use of the Site and all related “HMG+ Services” (as defined below). The terms “HMG+” or “us” or “we” or “our” refers to HMG Plus, Inc. owner of the Site, including any employees, suppliers, independent contractors, or affiliates who assist HMG+ with the provision and operation of the Site and Services. The term “You” or “Your” refers to the person accessing or using the Site, or the company or organization on whose behalf that person accesses the Site.
The Sections below relate to the terms of service specifically applicable to Hospitality Service Buyers or Companies. If a term is capitalized and not defined in this Company User Agreement, then it is defined in the General Terms of Service.
Becoming a “Registered Company” or “CLIENT” requires several steps to complete the registration process. First, You will fill out the initial part of the “Registration Form.” We will then issue You a unique account number (“User ID”) and You will create an accompanying password for access to Your account. Shortly thereafter, You will get a greeting phone call from Us and We will invite You (upon request) to attend an in-person introductory meeting with Us so that We can tell You more about the HMG+ Site and Services. At this meeting, We will also discuss the Service Pro rates applicable for each type of hospitality service You may seek, and We will create a “Rate Card” of all such rates for Your review. You will then complete the registration process by filling out the “My Account Profile” (or “Profile”) portion of Your Registration Form. We will then apply the Rate Card, and once You have reviewed and approved the Rate Card, Your account will be activated.
By registering to use the HMG+ Site, You are designating Yourself, or the Company You represent, as a “Hospitality Service Buyer,” and confirming that You may have events in the future that will need service professionals. We, in turn, will inform You of the availability of such service professionals through the Site, as well as provide You with other related services.
ORDERS –CREATING, FILLING AND BOOKING
As a Registered Company or Client (which can be an individual or business entity seeking to purchase hospitality services), You will be able to use the Site and Services to create service orders (“Order(s)”) and have access to a large community of “Registered Service Pros” who can provide the hospitality services You are seeking in such Orders. After You create a new Order, it becomes an “Open Order” that HMG+ and its technology, through the HMG+ Site and Services, will fill with “Qualified Service Pros,” who are Registered Service Pros possessing the background and criteria that match Your Company requirements, as disclosed in Your Profile. When all the positions in Your Open Order are filled and You have entered into a service contract with HMG+ that You accepted, then Your Open Order becomes a “Booked Order.”
The Service Pro will provide the services for each Booked Order in accordance with Your Company requirements for that Order, to the best of their ability. You must disclose all Company requirements in advance and immediately notify HMG+ of any changes to such requirements. After the Service Pro performs the services related to a Booked Order (referred to hereinafter as an “Event”), HMG+ will bill You for those services.
If You ever need to cancel or change a Booked Order in any way, You must notify HMG+ immediately. HMG+ will assist You with such changes through the HMG+ “Order Update Service” and You must pay any applicable fees, all as described below. If You have a last minute Order to place, You may use HMG+’s “ASAP Order Services” and pay the applicable fees, all as described below.
HMG+ DUTIES AND RESPONSIBILITIES
1. HMG+ will
a. Recruit, screen, interview, and assign its employees (“Assigned Employees”) to perform the type of work described on Exhibit A under CLIENT’s supervision at the locations specified on Exhibit A;
b. Pay Assigned Employees’ wages and provide them with the benefits that HMG+ offers to them;
c. Pay, withhold, and transmit payroll taxes; provide unemployment insurance and workers’ compensation benefits; and handle unemployment and workers’ compensation claims involving Assigned Employees;
d. Require Assigned Employees to sign agreements (in the form of Exhibit B) acknowledging
that they are not entitled to holidays, vacations, disability benefits, insurance, pensions, or
retirement plans, or any other benefits offered or provided by CLIENT; and
e. Require Assigned Employees to sign confidentiality agreements (in the form of Exhibit C)
before they begin their assignments to CLIENT.
CLIENT’s Duties and Responsibilities
2. CLIENT will
a. Properly supervise Assigned Employees performing its work and be responsible for its business operations, products, services, and intellectual property;
b. Properly supervise, control, and safeguard its premises, processes, or systems, and not permit Assigned Employees to operate any vehicle or mobile equipment, or entrust them with unattended premises, cash, checks, keys, credit cards, merchandise, confidential or trade secret information, negotiable instruments, or other valuables without HMG+’s express prior written approval or as strictly required by the job description provided to
c. Provide Assigned Employees with a safe work site, protected environment for their personal belongings and provide appropriate information, training, and safety equipment with respect to any hazardous substances or conditions to which they may be exposed at the work site;
d. Not change Assigned Employees’ job duties without HMG+’s express prior written approval; contact HMG+’s employees directly without our expressed written consent; book HMG+ employees directly, and
e. Exclude Assigned Employees from CLIENT’s benefit plans, policies, and practices, and not make any offer or promise relating to Assigned Employees’ compensation or benefits.
Payment Terms, Bill Rates, and Fees
3. CLIENT will pay HMG+ for its performance at the rates set forth in the CLIENT Rate Card and will also pay any additional costs or fees set forth in this Agreement. HMG+ will invoice CLIENT for services provided under this Agreement on a per event basis. Payment is due on receipt of invoice. Invoices will be supported by HMG+ online data or other agreed system for documenting time worked by the Assigned Employees. CLIENT’s signature on time sheet, submission of time online, or by email certifies that the documented hours are correct and authorizes HMG+ to bill CLIENT for those hours. If a portion of any invoice is disputed, CLIENT will pay the undisputed portion.
4. Assigned Employees are presumed to be nonexempt from laws requiring premium pay for overtime, holiday work, or weekend work. HMG+ will charge CLIENT special rates for premium work time only when an Assigned Employee’s work on assignment to CLIENT, viewed by itself, would legally require premium pay and CLIENT has authorized, directed, or allowed the Assigned Employee to work such premium work time. CLIENT’s special billing rate for premium hours will be the same multiple of the regular billing rate as HMG+ is required to apply to the Assigned Employee’s regular pay rate. (For example, when federal law requires 150% of pay for work exceeding 40 hours in a week, CLIENT will be billed at 150% of the regular bill rate.)
5. If CLIENT uses the services of any Assigned Employee as its direct employee, as an independent contractor, or through any person or firm other than HMG+ during or within one year after any assignment of the Assigned Employee to CLIENT from HMG+, CLIENT must notify HMG+ and (a) continue the Assigned Employee’s assignment from HMG+ for his or her next 16 weeks for CLIENT; or (b) pay HMG+ a fee in the amount of $3,000 for that Assigned Employee.
6. In addition to the bill rates specified Your Rate Card, CLIENT will pay HMG+ the amount of all new or increased labor costs associated with CLIENT’s Assigned Employees that HMG+ is legally required to pay—such as wages, benefits, payroll
taxes, social program contributions, or charges linked to benefit levels—until the parties agree on new bill rates.
7. Both parties may receive information that is proprietary to or confidential to the other party or its affiliated companies and their clients. Both parties agree to hold such information in strict confidence and not to disclose such information to third parties or to use such information for any purpose whatsoever other than performing under this Agreement or as required by law. No knowledge, possession, or use of CLIENT’s confidential information will be imputed to HMG+ as a result of Assigned Employees’ access to such information.
8. The parties agree to cooperate fully and to provide assistance to the other party in the investigation and resolution of any complaints, claims, actions, or proceedings that may be brought by or that may involve Assigned Employees.
Indemnification and Limitation of Liability
9. To the extent permitted by law, HMG+ will defend, indemnify, and hold CLIENT and its parent, subsidiaries, directors, officers, agents, representatives, and employees harmless from all claims, losses, and liabilities (including reasonable attorneys’ fees) to the extent caused by HMG+’s breach of this Agreement; its failure to discharge its duties and responsibilities set forth in paragraph 1; or the negligence, gross negligence, or willful misconduct of HMG+ or HMG+’s officers, employees, or authorized agents
in the discharge of those duties and responsibilities.
10. To the extent permitted by law, CLIENT will defend, indemnify, and hold HMG+ and its parent, subsidiaries, directors, officers, agents, representatives, and employees harmless from all claims, losses, and liabilities (including reasonable attorneys’ fees) to the extent caused by CLIENT’s breach of this Agreement; its failure to discharge its duties and responsibilities set forth in paragraph 2; or the negligence, gross negligence, or willful misconduct of CLIENT or CLIENT’s officers, employees, or authorized agents in the discharge of those duties and responsibilities.
11. Neither party shall be liable for or be required to indemnify the other party for any incidental, consequential, exemplary, special, punitive, or lost profit damages that arise in connection with this Agreement, regardless of the form of action (whether in contract, tort, negligence, strict liability, or otherwise) and regardless of how characterized, even if such party has been advised
of the possibility of such damages.
12. As a condition precedent to indemnification, the party seeking indemnification will inform the other party within 3 business days after it receives notice of any claim, loss, liability, or demand for which it seeks indemnification from the other party; and the party seeking indemnification will cooperate in the investigation and defense of any such matter.
13. The provisions in paragraphs 9 through 13 of this Agreement constitute the complete agreement between the parties with respect to indemnification, and each party waives its right to assert any common-law indemnification or contribution claim against the other party.
14. Provisions of this Agreement, which by their terms extend beyond the termination or nonrenewal of this Agreement, will remain effective after termination or nonrenewal.
15. No provision of this Agreement may be amended or waived unless agreed to in a writing signed by the parties.
16. Each provision of this Agreement will be considered severable, such that if any one provision or clause conflicts with existing or future applicable law or may not be given full effect because of such law, no other provision that can operate without the conflicting provision or clause will be affected.
17. This Agreement and the exhibits attached to it contain the entire understanding between the parties and supersede all prior agreements and understandings relating to the subject matter of the Agreement.
18. The provisions of this Agreement will inure to the benefit of and be binding on the parties and their respective representatives, successors, and assigns.
19. The failure of a party to enforce the provisions of this Agreement will not be a waiver of any provision or the right of such party thereafter to enforce each and every provision of this Agreement.
20. CLIENT will not transfer or assign this Agreement without HMG+’s written consent.
21. Any notice or other communication will be deemed to be properly given only when sent via the United States Postal Service or a nationally recognized courier, addressed to: HMG+, PO Box 407, Copake, NY 12516.
22. Neither party will be responsible for failure or delay in performance of this Agreement if the failure or delay is due to labor disputes, strikes, fire, riot, war, terrorism, acts of God, or any other causes beyond the control of the nonperforming party.
Term of Agreement
23. This Agreement will be for a term of one year from the first date on which both parties have executed it. The Agreement may be terminated by either party upon 45 days written notice to the other party, except that, if a party becomes bankrupt or insolvent, discontinues operations, or fails to make any payments as required by the Agreement, either party may terminate the
agreement upon 24 hours written notice.
COMPANY USER RULES
• As the person having access to HMG+ Company account, You agree to use Your real name and Your Company’s real name, and provide only accurate, complete registration and Profile information. You also agree to keep all such information up-to-date if it changes.
• You understand that access to the HMG+ Site and Services through Your account is personal to You, and no other person or entity may use or access Your account.
• You are responsible for preventing any unauthorized use of Your account, and You must notify us immediately in the event of any such unauthorized use.
• If HMG+ previously terminated an individual’s access and registration to the HMG+ Site and Services, then that individual may not register for a new or different account. You may not permit any such individuals to use Your account for themselves or on Your behalf.
• You agree to provide complete and accurate Company requirements for all Orders, and notify Us immediately of any changes.
• If You cannot hold an Event, as detailed in a Booked Order, You agree to immediately notify Us.
• You agree to pay all applicable HMG+ Fees and Event Fees in accordance with the terms of this Agreement.
• If, during an Event, You find any Service Pro to be performing below Your expectations in any way, You agree to dismiss him/her immediately, but understand that You are obligated to pay HMG+ for the time prior to dismissal.
During the term of this Agreement, or during the period in which the Company’s Account remains open with HMG+ (meaning You have not actively terminated the Account), whichever longer, and for twelve (12) months thereafter, You cannot, without HMG+’s prior written consent (the request for which must be sent to HMG+ as specified below), directly or indirectly solicit or accept hospitality services from, or induce, attempt to hire, or hire any Service Pro (including without limitation induce such Service Pro to reduce its business with HMG+) that it learned of, received information about, accepted an Offer or Bid from, or worked with as a result of using the HMG+ Site or Services. With respect to Company’s requirement to obtain HMG+’s prior written consent (as specified herein), Company must send its request to HMG+ via: (i) personal delivery (with valid receipt of acknowledgement); (ii) first class certified mail, return receipt requested, and postage prepaid; or (iii) an internationally recognized global delivery service with tracking system applied.
Company acknowledges and agrees that these restrictions are reasonable and necessary for the protection of HMG+ and its goodwill and legitimate business interests, and that HMG+ will be irreparably damaged if these restrictions are not specifically enforced, and the injury to HMG+ resulting from Company’s breach thereof is uncertain and not susceptible to precise computation. Therefore, HMG+ will be entitled to injunctive relief without being required to post a bond, as well as any other relief, including without limitation any indirect, consequential, incidental, special, punitive or exemplary damages, to which HMG+ may be entitled hereunder.
Should this section be held invalid, prohibited or unenforceable for any reason by any court of competent jurisdiction, then this section will be automatically deemed more narrowly drawn, as any such court is expressly authorized to redraw it, in a manner without invalidating the remaining portions thereof or affecting the validity or enforceability of such section in any other jurisdiction.
The Sections below, consisting of the “General Terms of Service,” apply to both Service Pros and Companies. If a term is capitalized and not defined in this General Terms of Service, then it is defined in the Service Pro User Agreement or Company User Agreement, whichever applicable.
CHANGES TO THE TERMS OF THE AGREEMENT
We may change the terms of this Agreement, whether they are in the General Terms of Service, the Service Pro User Agreement, or the Company User Agreement, or anywhere else on the HMG+ Site as described hereunder, at any time and in Our sole discretion. Any such modifications become effective immediately upon being posted to the Site. You are responsible for checking these terms periodically for changes. If You do not agree to any changes, if and when such changes may be made to the Agreement, You must cease use of the Site. If You continue to use the HMG+ Site after We post such changes, You are signifying Your acceptance of the new terms.
ELECTRONIC DELIVERY POLICY AND YOUR CONSENT
You agree that we may provide to you required notices, agreements, disclosures, terms and conditions, and any other information concerning the HMG+ Site or Services electronically. You agree that such electronic communications satisfy any legal requirement that such communications would satisfy if it were in writing. We will post all such notices on the home page of the HMG+ Site or on the relevant web page of the applicable service or feature. If you want to withdraw your consent to receive notices electronically, you must discontinue your use of the HMG+ Site.
HMG PLUS USER RULES
Since it is Our mission to bring together Service Pros and Companies in the HMG+site and help create successful relationships among everyone, it is Our overall intent that Our HMG+ Users conduct themselves, and treat each other, in a fair and reasonable manner. You acknowledge and agree that while using the HMG+ Site and Services, You will work with other HMG+ Users in a fair and reasonable manner, especially in situations where there might be a conflict related to services rendered or payment for such services.
While using the HMG+ Site, You agree
• Use the Site if You are not able to form legally binding contracts, are under the age of 18, or are temporarily or indefinitely suspended from our Site;
• Violate any laws (including without limitation those related to tax and employment), third party rights, or Our policies as described in any area of the HMG+ Site;
• Conduct or promote any illegal activities while using the Site or Services;
• Transfer your HMG+ account and User ID and password to another party without Our prior written consent;
• Impersonate another user;
• Copy, modify, or distribute any content on the Site;
• Fail to pay all applicable fees and taxes incurred in connection with the offer, bidding, acceptance and performance of Booked Gigs;
In addition, You represent and warrant that You have properly identified Yourself by entering Your own name and, if applicable the Company’s own name, and personal identifiers when registering for this Site and not those of any other person or entity.
SYSTEM AND SOFTWARE INTEGRITY
With regard to Our System and software
integrity, You agree not to:
• Use any device, software or routine, including but not limited to any viruses, trojan horses, worms, time bombs, cancel bots, denial-of-service attacks or malicious code, intended to damage or interfere with the proper working of the HMG+ Site, any transaction being conducted on Our Site, or any interest or property of HMG+, its third party suppliers or HMG+ Members, or to surreptitiously intercept or expropriate any system, software, data or personal information from the Site;
• Take any action that imposes an unreasonable or disproportionately large load on Our infrastructure, including but not limited to "spam" or other such unsolicited mass emailing techniques;
• Attempt to gain access to secured portions of the Site to which You do not possess access rights;
• Circumvent or manipulate Our fee structure, the Billing & Payment Process, or HMG+ Fees owed to Us;
• Take any action that may undermine any feedback or ratings systems within the HMG+ Site;
• Attempt to reverse engineer or jeopardize the correct functioning of the Site, or otherwise attempt to derive the source code of the software (including the tools, methods, processes, and infrastructure) that enables or underlies the Site.
CONTENT – LICENSE AND USE
1. License. You are solely responsible for information that you post on our Site, including but not limited to any posting in any public area or through any feature available on or through our Site, or any information you submit during the registration process. You grant us a non-exclusive, worldwide, perpetual, fully paid, irrevocable right to exercise all copyright, publicity and database rights with respect to this information, in any media known now or in the future. You also authorize us to sublicense those rights to our contractors or third party suppliers who help us provide the HMG+ Services.
2. Use of Content. In addition, when you use the HMG+ Site and Services, you obtain access to various kinds of information and materials, all of which we call “Content.”
You agree not to modify any Content posted by others.
You agree not to post or use any Content in any manner that:
• Infringes the copyright, trademark, trade secret, or other intellectual property or proprietary right of others,
• Violates the privacy, publicity, or other rights of third parties,
• Is discriminatory, defamatory, libelous, obscene, pornographic, threatening, abusive, harassing, hateful, or otherwise inappropriate, as determined by HMG+ in its sole discretion;
• Is false or inaccurate.
You also agree not to:
• Use the Site or Services to generate unsolicited email advertisements or spam;
• Distribute or post spam, chain letters, or pyramid schemes;
• Post, upload, download, distribute, print or use anything that may be harmful to minors;
• Use any automatic or manual process to search or harvest information from the Site or Services, or to interfere in any way with the proper functioning of the Site and Services;
We do not endorse any information posted by Service Pros or Companies, and We are not liable for any such information posted on the HMG+ Site, including without limitation any information posted about You, as a Service Pro or a Company.
We reserve the right to take any action, in Our sole discretion, with respect to information posted on Our Site which We believe is appropriate, including but not limited to termination of this Agreement, a user’s access to Our Site and Services, or removing content from the Site.
Though we strive to enforce these rules with all of Our HMG+ Members, whether they are Service Pros or Companies, You may be exposed through Our Site or Services to Content that violates Our policies or is otherwise offensive. We take no responsibility for Your exposure to Content on the Site, whether or not it violates Our policies. By its very nature, other people's information may be offensive, harmful, inaccurate, or in some cases may be mislabeled or deceptively labeled. All information and Content on the HMG+ Site is provided "AS IS" and may contain technical inaccuracies or typographical errors. In addition, the HMG+ Site may contain links to third party Web sites not under the control or operation of HMG+. When We provide links, We do so only as a convenience, and neither endorse nor are responsible for the content on any linked Web site or any link contained in a linked Web site.
You acknowledge and agree to use Our Site and Services at Your own risk.
SAFEGUARDING THE HMG PLUS COMMUNITY
HMG+ works to keep the HMG+ Site operating properly and the HMG+system safe. Without limiting other remedies, we may limit, suspend, or terminate Our service and user accounts, prohibit access to Our Site, delay, remove or modify hosted content, and take technical and legal steps to keep users off Our Site if We think that they are creating problems, possible legal liabilities, or acting inconsistently with the letter or spirit of Our policies. We also reserve the right to cancel unconfirmed accounts or accounts that have been inactive for a long time.
FEES AND SERVICES
We may add, delete or modify some or all of our services or features, and any related information on the Site, at any time. We may also change any of the HMG+ Fees from time to time, and such changes will be effective the date on which they are posted on the Site. Any such changes as described herein will be displayed on the home page of Our Site, in an “alert” or news section, or on the relevant web page of the applicable service or feature.
Other Services.From time to time, We may provide other services, features or tools which are set forth in separate sections of the HMG+ Site and subject to the terms of this Agreement, as well as additional terms on the Site. If You choose to use any of these services, features or tools, You may be charged, and agree to pay Us any fees that are described in those separate sections of the HMG+ Site.
This Agreement shall become effective as described above, and shall continue until terminated by HMG+ or you as described herein.
We may change or discontinue the Site or any of the Services at any time without prior notice. We reserve the right to terminate this Agreement at our election and for any reason, without prior notice. You may also terminate this Agreement and use of Our Site and Services, upon prior notice to Us and as specified on the Site. It is, however, Your responsibility to notify Us in such case, and that if Your account stays inactive for a certain period of time (as We determine), then We have the right to close Your account. In addition, this Agreement will automatically terminate in the event that You violate any of the terms and conditions hereunder.
In the event of any termination, Your access to the Site will cease immediately, and You agree to promptly pay any outstanding fees owed under this Agreement. In addition, if at the time of termination, a process (such as the Billing & Payment Process) has already begun (“Open Transaction”), then HMG+ will continue to perform HMG+ Service necessary to complete the Open Transaction, and You will be obligated to pay for any HMG+ Fee related to that transaction. Further, if a Booked Gig is scheduled to occur after the date of termination, then HMG+ will notify the Company of such termination and the Company will, in its sole discretion, decide whether it will permit that Service Pro to perform the Booked Gig in the future.
Our rights under this Agreement will survive any termination of this Agreement and/or Your access to or use of the HMG+ Site and any of the Services.
INTELLECTUAL PROPERTY OWNERSHIP
You acknowledge and agree that we and our licensors retain all rights, title and interest in and to the HMG+ Site and Services, consisting of data, coding, text, images and other information, and including those rights protected by international treaties, and by copyright, trademark, patent, and trade secret law and other proprietary rights. We are not granting any license to you under any of those laws by virtue of this Agreement. HMG+ and Giggo are our trademarks. Other product and company names that may be mentioned on the Site or provided as part of the Services may be trademarks of their respective owners. We reserve all rights that are not expressly granted to you in this Agreement. You may not reproduce, reverse engineer, decompile, disassemble, modify or create derivative works with respect to the HMG+ Site or any related intellectual property, including any services or features provided via the Site. You may not remove any copyright, trademark, or other intellectual property or proprietary notice or legend contained on the HMG+ Site, including any Site content.
We respect the intellectual property of others, and we ask you to do the same. If you believe that your work has been copied in a way that constitutes copyright infringement, please contact us.
• An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest;
• A description of the copyrighted work that you claim has been infringed;
• A description of where the material that you claim is infringing is located on the Site;
• your address, telephone number, and email address;
• 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
• A statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner's behalf.
DISCLAIMER OF WARRANTIES
ALL REFERENCES TO HMG+ BELOW INCLUDE HMG+’S AFFILIATES AND SUPPLIERS OR CONTRACTORS.
HMG+ PROVIDES HMGPLUS.COM, INCLUDING WITHOUT LIMITATION ALL CONTENT AND RELATED SERVICES, ON AN "AS IS", "WITH ALL FAULTS" AND "AS AVAILABLE" BASIS. WE HAVE NO CONTROL OVER, AND MAKE NO REPRESENTATIONS OR WARRANTIES REGARDING THE QUALITY, TRUTH, ACCURACY OR LEGALITY OF THE CONTENT POSTED BY HMG+ USERS OR OTHERS.
HMG+ DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, INCLUDING WITHOUT LIMITATION ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, TITLE, QUIET ENJOYMENT, AND SYSTEM INTEGRATION.
HMG+ MAKES NO WARRANTIES ABOUT THE ACCURACY, RELIABILITY, COMPLETENESS, OR TIMELINESS OF THE CONTENT OR SERVICE, OR THAT PROBLEMS WILL BE CORRECTED, OR THAT THE SITE IS FREE OF VIRUSES AND OTHER HARMFUL COMPONENTS. WE DO NOT GUARANTEE THAT OUR SITE AND SERVICES WILL MEET YOUR REQUIREMENTS, ARE ERROR-FREE, RELIABLE, AND ARE WITHOUT INTERRUPTION OR AVAILABLE AT ALL TIMES OR LOCATIONS OF YOUR CHOOSING. WE DO NOT GUARANTEE THAT THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE HMG+ SITE AND SERVICES, INCLUDING ANY MEMBER SERVICES, WILL BE EFFECTIVE, RELIABLE OR ACCURATE, OR MEET YOUR REQUIREMENTS.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM US THROUGH THE SITE, SERVICES OR OTHERWISE WILL CREATE ANY WARRANTY, REPRESENTATION OR GUARANTEE NOT EXPRESSLY STATED IN THIS AGREEMENT. WE DO NOT MAKE ANY REPRESENTATIONS OR WARRANTIES ABOUT THE PROTECTION OF YOUR INFORMATION OR DATA, NOR GUARANTEE DATA AVAILABILITY WHATSOEVER. YOU BEAR THE SOLE RESPONSIBILITY AND LIABILITY FOR MAINTAINING BACKUP OR ARCHIVE COPIES OF YOUR INFORMATION, DATA AND/OR SUBMISSIONS TO THE SITE.
HMG+ IS NOT AN EMPLOYMENT AGENCY OR A RECRUITING FIRM, AND MAKES NO REPRESENTATIONS OR GUARANTEES REGARDING THE EFFECTIVENESS OR TIMELINESS OF THE SITE OR THE SERVICE IN MEETING YOUR OBJECTIVES. HMG+ DOES NOT GUARANTEE ANY RESULTS, AND IS NOT RESPONSIBLE FOR ANY DECISIONS REGARDING ACCEPTANCE OF BIDS HEREUNDER AND ANY OTHER EMPLOYMENT OR STAFFING DECISIONS.
LIMITATION OF LIABILITY
YOU ACKNOWLEDGE AND AGREE THAT WE ARE ONLY WILLING TO PROVIDE ACCESS TO THE HMG+ SITE AND TO PROVIDE THE HMG+ SERVICES IF YOU AGREE TO CERTAIN LIMITATIONS OF OUR LIABILITY TO YOU AND TO THIRD PARTIES. IN NO EVENT WILL HMG+ BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES ARISING FROM YOUR USE OF, INABILITY TO USE, OR RELIANCE UPON THE HMG+ SITE AND SERVICES. THESE EXCLUSIONS APPLY TO ANY CLAIMS FOR LST PROFITS, LOST DATA, LOSS OF GOODWILL, LOST OPPORTUNITIES (FOR FREELANCING, EMPLOYMENT AND ANYTHING ELSE), WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, BUSINESS INTERRUPTIONS OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, EVEN IF WE KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES. WE WILL NOT BE LIABLE FOR ANY DAMAGES ARISING FROM THE TRANSACTIONS BETWEEN YOU AND OTHER HMG+ MEMBERS OR THIRD PARTIES, OR FOR ANY INFORMATION APPEARING ON OUR SITE OR ANY OTHER SITE LINKED TO OUR SITE. IN NO EVENT WILL HMG+ BE LIABLE TO YOU OR ANY THIRD PARTY IN CONNECTION WITH ANY ACT OR OMISSION OF ANY SERVICE PRO, COMPANY OR ANY THIRD PARTY.
THESE LIMITATIONS OF LIABILITY APPLY, REGARDLESS OF THE NATURE OF ANY CLAIM, WHETHER BASED ON WARRANTY, CONTRACT, TORT, OR ANY OTHER LEGAL OR EQUITABLE THEORY, AND WHETHER OR NOT HMG+ IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
YOU AGREE THAT YOUR SOLE REMEDY FOR ANY CLAIMS ARISING IN CONNECTION WITH THIS AGREEMENT IS TO DISCONTINUE USING THE SITE AND SERVICES. IN THE EVENT THAT A COURT DETERMINES THAT THE PRECEDING SENTENCE IS UNENFORCEABLE, THE AGGREGATE LIABILITY OF HMG+ TO YOU FOR ALL CLAIMS ARISING IN CONNECTION WITH THIS AGREEMENT WILL NOT EXCEED ALL FEES PAID BY YOU DURING THE LAST TWELVE (12) MONTHS FOR THE SPECIFIC SERVICE AT ISSUE.
In the event that you have a dispute with one or more of the HMG+ Members or any other user of the HMG+ Site, you release us (and our suppliers, agents and employees) from claims, demands and damages (actual, consequential, punitive, etc.) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with the HMG+ Site or Services, or such dispute. You waive the provisions of any state law limiting or prohibiting such a general release.
HMG+ reserves the right, but has no obligation, to monitor, or take any action HMG+ deems appropriate regarding disputes or conflicts that You, as a Service Pro or Company, may have with the other HMG+ Member (either a Company or Service Pro, whichever applicable). To the extent the law permits, You release us from any claims or liability related to any Content posted on the Site and from claims related to the conduct of any HMG+ Member. You hereby waive California Civil Code Section 1542 (and any similar provision in any other jurisdiction) which states: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which, if known by him must have materially affected his settlement with the debtor.”
INFORMATION OR COMPLAINTS
If you have a question or complaint regarding the HMG+, please send an email to info (@) hmgplus.com. You may also contact us by writing to HMG Plus, Inc. at PO Box 407, Copake, NY 12516, or by calling us at 877-644-2202. Registered users of the HMG+ Site and Services are notified in advance regarding any applicable fees for such use.
Under the California Civil Code Section 1789.3, users who are California residents are also entitled to the following consumer rights notice: California residents may reach the Complaint Assistance Unit of the Division of Consumer Services (aka Consumer Information Center) of the California Department of Consumer Affairs by mail at 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210 or by email at email@example.com.
This Agreement constitutes the entire agreement between you and HMG+, and governs your use of the HMG+ Site and Service, superseding any prior agreements between you and HMG+ with respect to the Site and Service. You also may be subject to additional terms and conditions that may apply when you use or purchase certain other services provided by HMG+ or its affiliate or suppliers. If any provision of the Agreement is found by a court of competent jurisdiction to be invalid or unenforceable, that portion will be construed consistent with applicable law and the remaining portions will remain in full force and effect. The failure of HMG+ to exercise or enforce any right or provision of the Agreement will not constitute a waiver of such right or provision. Our failure to act with respect to a breach by you or others does not waive our right to act with respect to subsequent or similar breaches. We do not guarantee we will take action against all breaches of this Agreement. No agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created by this Agreement. The section headings in the Agreement are for reference purposes only and have no legal or contractual effect.
You agree that your HMG+ account is non-transferable and any rights to your HMG+ User ID or contents within your account terminate upon your death. In our sole discretion, we may assign this Agreement at any time and provide you with notice of such assignment through your account or the HMG+ Site.
This Agreement and the contractual relationship between you and HMG+ will be governed by and construed in accordance with the laws of the State of New York without regard to its conflict of law provisions. You and HMG+ agree to submit to the personal and exclusive jurisdiction of the courts located within New York County, New York. You agree, however, that we may seek equitable relief in any jurisdiction when appropriate.
Except as explicitly stated otherwise, legal notices shall be served on HMG+'s registered agent in New York or to the email address you provided to HMG+ during the Registration Process, whichever applicable. Notice shall be deemed given twenty-four (24) hours after an email is sent, unless the sending party is notified that the email address is invalid. Alternatively, we may give you legal notice by mail to Your address provided during the Registration Process, and such notice shall be deemed given three (3) days after the date of mailing.
You agree that regardless of any statute or law to the contrary, any claim or cause of action You may have with respect to the HMG+ Site or Services, or this Agreement, must be filed within one (1) year after such claim or cause of action arose or be forever barred.
Last Updated: June 29, 2012