Last Updated: December 16, 2022
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PLEASE REVIEW SECTION 16, TITLED THE "MANDATORY ARBITRATION AND CLASS ACTION WAIVER" CAREFULLY. UNLESS YOU OPT OUT OF ARBITRATION AS PROVIDED BELOW, THESE TERMS WILL REQUIRE YOU TO RESOLVE DISPUTES WITH THE COMPANY, NO MATTER WHEN ARISING OR ASSERTED, THROUGH BINDING INDIVIDUAL ARBITRATION (WITH LIMITED EXCEPTIONS). YOU ACKNOWLEDGE AND AGREE THAT YOU AND THE COMPANY EACH WAIVE THE RIGHT TO A TRIAL BY JURY, AND THE RIGHT TO PARTICIPATE AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION OR REPRESENTATIVE PROCEEDING.
In addition, you may also be asked to enter into additional agreements before being permitted to access certain of the Services. Those additional agreements are made a part of this Agreement and will govern your use of the Services covered by the additional agreements. In the event of a conflict between the terms of this Agreement and those additional agreements, the terms of the additional agreements shall govern.
The Company reserves the right, in its sole discretion, to modify or amend this Agreement at any time by posting a revised version on the Site or by otherwise providing notice to you in accordance with applicable law. The revised Agreement will be effective when posted on the Site. Your continued use or access of the Sites or Services constitutes acceptance of the updated Agreement. If you do not agree to any of the terms of the revised Agreement, you must not use or access the Site or Services.
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Opt-out of SMS Text Messages. You can opt out of the SMS message service by replying with the keyword "STOP", "END", or "QUIT" any time. After you unsubscribe, we may send you a final SMS message to confirm that you have been unsubscribed. However, this process will not unsubscribe you from other SMS programs to which you may have separately subscribed. You may receive assistance for the SMS message service by replying with the keyword "HELP" to the message received.
Carriers. We are able to deliver messages to mobile service providers. Carriers are not liable for delayed or undelivered messages. Your mobile service provider's standard data and messaging rates apply to all SMS correspondence we have with you (including those that we send to you, and those that you send to us). All charges are billed by and payable to your mobile service provider. If you have any questions about your text plan or data plan, please contact your mobile service provider. You represent that you are the owner or authorized user of the wireless device on which messages will be received, and that you are authorized to approve any applicable charges and to consent to receive calls, texts or other communications at the number you provide. If fees are charged to your wireless account invoice, we may provide your carrier with your applicable information in connection with such charges. Your wireless carrier and other service providers may also collect data about your wireless device usage, and their practices are governed by their own policies. You acknowledge and agree that the SMS message service is provided via wireless systems which use radios (and other means) to transmit communications over complex networks. We will not be liable for any delays in the receipt of any SMS messages, as delivery is subject to effective transmission from your network operator.
No Warranties. SMS message services are provided on an AS IS basis. We are not responsible for incomplete, lost, late, damaged, illegible or misdirected mobile messages or for any technical problems, malfunctions of any telephone lines, computer systems, servers, providers, hardware/software, lost or unavailable network connections or failed, incomplete, garbled or delayed computer transmission or any combination thereof. We are not responsible for any liability for damage to any computer system resulting from participation in or accessing or downloading information in connection with the SMS message service. We assume no responsibility for undeliverable mobile messages resulting from any form of active or passive mobile filtering by a user's mobile provider or for insufficient space in user's mobile phone account for messages. We do not guarantee that your use of the SMS message service will be private or secure, and we are not liable to you for any lack of privacy or security you may experience. You are fully responsible for taking precautions and providing security measures best suited for your situation and intended use of the SMS message service.
Use of the Site and the Services – Permissions and Restrictions. You may access and use the Site and the Services only for lawful purposes and solely in accordance with the terms of this Agreement. Newyorkjobdepartment.com reserves the right to discontinue any aspect of the Newyorkjobdepartment.com Site or Services at any time and without notice to you. All rights not expressly granted to you under this Agreement are reserved by Newyorkjobdepartment.com and its licensors.
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Modify or make derivative works based upon the Site or Services; or
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Access or make use of the Services and Site by scripts or automated services; or
Impersonate any person or use a name that you are not authorized to use; or
Compromise violate or impair system or network security or operation.
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Term, Termination. This Agreement shall be effective for as long as you use access the Site or the Services and Sections 5, 6, 7, 8, 9, 14, 16 and 17 shall survive termination or expiration of this Agreement, along with any other provisions of the Agreement that are intended to survive the Agreement. The termination of your membership shall terminate your access to any Services for which registration is required. Neither Newyorkjobdepartment.com nor any affiliate of Newyorkjobdepartment.com shall be liable to you or to any third party for termination of your membership for any reason.
Notice for California Users. Under California Civil Code Section 1789.3, users of the Services from California 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 North Market Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210.
MANDATORY ARBITRATION AND CLASS ACTION WAIVER.
PLEASE READ THIS "MANDATORY ARBITRATION AND CLASS ACTION WAIVER" SECTION CAREFULLY, AS IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE OR PARTICIPATE IN A LAWSUIT FILED IN COURT.
Informal dispute resolution procedure.
A dispute might arise between you and the Company. If that happens, the Company is committed to working with you to reach a reasonable resolution. For any issue or dispute that arises between you and the Company, both parties acknowledge and agree that they will first make a good faith effort to resolve it informally before initiating any formal dispute resolution proceeding in arbitration or otherwise. This includes first sending a written description of the dispute to the other party. For any dispute you initiate, you agree to send the written description of the dispute along with the email address associated with your account to the following email address: [email protected]. For any dispute that the Company initiates, we will send our written description of the dispute to the email address associated with your registration. The written description must be on an individual basis and provide at least the following information: your name; a description of the nature or basis of the claim or dispute; and the specific relief sought.
You and the Company then agree to negotiate in good faith about the dispute through an informal telephonic dispute resolution conference. The informal telephonic dispute resolution conferences shall be individualized such that a separate conference must be held each time either party intends to commence individual arbitration; multiple individuals initiating claims cannot participate in the same informal telephonic dispute resolution conference. If either party is represented by counsel, that party's counsel may participate in the informal telephonic dispute resolution conference, but the party also must appear at and participate in the conference. If the dispute is not resolved satisfactorily through this informal process within sixty (60) days after receipt of the written description of the dispute, you and the Company agree to the further dispute resolution provisions below.
The aforementioned informal dispute resolution process is a prerequisite and condition precedent to commencing any formal dispute resolution proceeding. The parties agree that any relevant limitations period and filing fee or other deadlines will be tolled while the parties engage in this informal dispute resolution process. Failure to engage in this process could result in the award of fees against you in arbitration.
Mutual arbitration agreement.
You and the Company agree that all claims, disputes, or disagreements that may arise out of the interpretation or performance of these Terms (including their formation, performance, and breach) or payments by or to the Company, or that in any way relate to the provision or use of the Services, your relationship with the Company, or any other dispute with the Company, shall be resolved exclusively through binding arbitration in accordance with this Section 16. This includes claims that arose, were asserted, or involve facts occurring before the existence of this or any prior Agreement as well as claims that may arise after the termination of this Agreement. This Agreement is governed by the Federal Arbitration Act ("FAA") in all respects, and evidences a transaction involving interstate commerce. You and the Company expressly agree that the FAA shall exclusively govern the interpretation and enforcement of this Agreement. If for whatever reason the rules and procedures of the FAA cannot apply, the state law governing arbitration agreements in the state in which you reside shall apply.
Except as set forth in this Section 16(b), the arbitrator, and not any federal, state or local court or agency, shall have exclusive authority to resolve all disputes arising out of or relating to the interpretation, applicability, enforceability or formation of these Terms and this Agreement, including, but not limited to any claim that all or any part thereof are void or voidable, whether a claim is subject to arbitration, and any dispute regarding the payment of JAMS administrative or arbitrator fees (including the timing of such payments and remedies for nonpayment). The arbitrator shall be empowered to grant whatever relief would be available in a court under law or in equity.
Notwithstanding the parties' decision to resolve all disputes through arbitration, each party retains the right to (i) elect to have any claims resolved in small claims court on an individual basis for disputes and actions within the scope of such court's jurisdiction; (ii) bring an action in state or federal court to protect its intellectual property rights (‘intellectual property rights" means patents, copyrights, moral rights, trademarks, and trade secrets and other confidential or proprietary information, but not privacy or publicity rights); and (iii) seek a declaratory judgment, injunction, or other equitable relief in a court of competent jurisdiction regarding whether a party's claims are time-barred or may be brought in small claims court. Seeking such relief shall not waive a party's right to arbitration under this agreement, and any filed arbitrations related to any action filed pursuant to this paragraph shall automatically be stayed pending the outcome of such action.
You and the Company agree to submit to the personal jurisdiction of any federal or state court in Suffolk County, Massachusetts, in order to compel arbitration, to stay proceedings pending arbitration, or to confirm, modify, vacate, or enter judgment on the award entered by the arbitrator; and in connection with any such proceeding, further agree to accept service of process by U.S. mail and hereby waive any and all jurisdictional and venue defenses otherwise available.
Except as set forth in Section 16(c) below, if any provision of this Agreement is found by an arbitrator or court of competent jurisdiction to be invalid, the parties nevertheless agree that the arbitrator or court should endeavor to give effect to the parties' intentions as reflected in the provision, and the other provisions thereof remain in full force and effect.
THE PARTIES UNDERSTAND THAT ARBITRATION MEANS THAT AN ARBITRATOR AND NOT A JUDGE OR JURY WILL DECIDE THE CLAIM, AND THAT RIGHTS TO PREHEARING EXCHANGE OF INFORMATION AND APPEALS MAY BE LIMITED IN ARBITRATION. YOU HEREBY ACKNOWLEDGE AND AGREE THAT YOU AND THE COMPANY ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY TO THE MAXIMUM EXTENT PERMITTED BY LAW.
Class action and collective relief waiver.
YOU AND THE COMPANY ACKNOWLEDGE AND AGREE THAT, TO THE MAXIMUM EXTENT ALLOWED BY LAW, EXCEPT AS SET OUT IN SECTION 16(g) BELOW, THERE SHALL BE NO RIGHT OR AUTHORITY FOR ANY DISPUTE TO BE ARBITRATED OR LITIGATED ON A CLASS, JOINT, COLLECTIVE OR CONSOLIDATED BASIS OR IN A PURPORTED REPRESENTATIVE CAPACITY ON BEHALF OF THE GENERAL PUBLIC (SUCH AS CLAIMS AS A PRIVATE ATTORNEY GENERAL OR FOR PUBLIC INJUNCTIVE RELIEF). EXCEPT AS SET OUT IN SECTION 16(g) BELOW, UNLESS BOTH YOU AND THE COMPANY OTHERWISE AGREE IN WRITING, THE ARBITRATOR MAY NOT PRESIDE OVER ANY FORM OF ANY CLASS, JOINT, COLLECTIVE OR REPRESENTATIVE PROCEEDING. THE ARBITRATOR MAY AWARD RELIEF (INCLUDING ANY DECLARATORY OR INJUNCTIVE RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO RESOLVE AN INDIVIDUAL PARTY'S CLAIM. THE ARBITRATOR MAY NOT AWARD RELIEF FOR OR AGAINST ANYONE WHO IS NOT A PARTY TO THE PROCEEDING.
This Class Action and Collective Relief Waiver and the provisions in Section 16(g) are an essential part of this "Dispute Resolution" section, and if it is deemed invalid or unenforceable with respect to a particular claim or dispute, neither you nor the Company may arbitrate such claim or dispute. Notwithstanding the foregoing, if a court or arbitrator (or where applicable, JAMS) determine that either the Class Action and Collective Relief Waiver or the provisions in Section 16(g) are not enforceable as to a particular claim or request for relief and all appeals from that decision have been exhausted (or the decision is otherwise final), then the parties agree that that particular claim or request for relief may proceed in court but shall be severed and stayed pending arbitration of the remaining claims. This provision does not prevent you or the Company from participating in a class-wide settlement of claims.
The arbitration will be administered by JAMS and resolved before a single arbitrator. If JAMS is not available to arbitrate, the parties will select an alternative arbitration provider, but in no event shall any arbitration be administered by the American Arbitration Association. Except as modified by this "Dispute Resolution" provision, JAMS will administer the arbitration in accordance with the JAMS Streamlined Arbitration Rules and Procedures for claims that do not exceed $250,000 and the JAMS Comprehensive Arbitration Rules and Procedures for claims exceeding $250,000, in each case applying the rules and procedures in effect at the time the arbitration is initiated, excluding any rules or procedures governing or permitting class or representative actions. You can find the JAMS rules and procedures here at this link. The Applicable JAMS rules and procedures are available at https://www.jamsadr.com/adr-rules-procedures/ or by calling JAMS at (800) 352-5267.
Only after the parties have engaged in a good-faith effort to resolve the dispute in accordance with the Informal Dispute Resolution Procedure provision, and only if those efforts fail, then either party may initiate binding arbitration as the sole means to resolve claims. A party who desires to initiate arbitration must deliver to JAMS and the other party a demand for arbitration which satisfies the following requirements: (1) the name, telephone number, mailing address, and email address of the party seeking arbitration (if you are seeking arbitration, you must provide the email address associated with your registration); (2) a statement of the legal claims being asserted and the factual bases of those claims; (3) a description of the remedy sought and a good-faith calculation of the amount in controversy (requests for injunctive relief or attorneys' fees shall not count toward the calculation of the amount in controversy unless such injunctive relief seeks the payment of money); (4) the party's original signature; and (5) the party's portion of the applicable filing fee. If the party seeking arbitration is represented by counsel, the demand for arbitration must also include counsel's name, firm, telephone number, mailing address, email address, and original signature.
If you are initiating arbitration, hard-copy service of the demand to the Company shall be made in accordance with JAMS's rules and procedures to the following address: Newyorkjobdepartment.com, 867 Boylston Street, 5th Floor, #1594, Boston, MA 02116, Attention: General Counsel, and a copy of the same shall also be emailed to [email protected]. If the Company is initiating arbitration, it will serve a copy of the demand to the email address associated with your account, as well as in hard copy if the Company knows your mailing address.
The arbitrator and/or JAMS may require amendment of any demand or counterclaim that does not satisfy these requirements. Where a party is represented by counsel, counsel's signature on the demand for arbitration or any other paper submitted to JAMS or the arbitrator constitutes a certification that such paper complies with the standard set forth in Federal Rule of Civil Procedure 11(b). The arbitrator has the right to impose sanctions in accordance with the JAMS rules and procedures for any claims or submissions the arbitrator determines to violate such standard, as well as for a party's failure to comply with the Informal Dispute Resolution Procedure contemplated by this Agreement.
Arbitration location and procedure.
Unless you and the Company otherwise agree, if you are a resident of the United States the arbitration will be conducted in the county where you reside, and if you are not a resident of the United States the arbitration shall be conducted in Suffolk County, Commonwealth of Massachusetts, United States of America. If the amount in controversy does not exceed $10,000 and you do not seek injunctive or declaratory relief, then the arbitration will be conducted solely on the basis of documents you and the Company submit to the arbitrator, unless the arbitrator determines that a hearing is necessary. If the amount in controversy exceeds $10,000 or seeks declaratory or injunctive relief, either party may request (or the arbitrator may determine) to hold a hearing, which shall be via videoconference or telephone conference unless the parties agree otherwise.
Subject to the applicable JAMS rules and procedures, the arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited, cost-efficient nature of the arbitration. The parties agree that the arbitrator may allow the filing of dispositive motions if they are likely to efficiently resolve or narrow issues in dispute. If a party timely serves an offer of judgment under Federal Rule of Civil Procedure 68, or any other state-law equivalent, and the judgment that the other party finally obtains is not more favorable than the unaccepted offer, then the other party shall pay the costs, including filing fees, incurred after the offer was made. Unless otherwise prohibited by law, all arbitration proceedings will be confidential and closed to the public and any parties other than you and the Company, and all records relating thereto will be permanently sealed, except as necessary to obtain court confirmation of the arbitration award (provided that the party seeking confirmation shall seek to file such records under seal to the extent permitted by law).
To increase the efficiency of administration and resolution of arbitrations, in the event 100 or more similar arbitration demands (those asserting the same or substantially similar facts, and seeking the same or substantially similar relief) presented by or with the assistance or coordination of the same law firm(s) or organization(s) are submitted to JAMS (or another arbitration provider selected in accordance with Section 19(d) if JAMS is unavailable) against the Company within reasonably close proximity, the arbitration provider shall (i) administer the arbitration demands in batches of 100 demands per batch (to the extent there are fewer than 100 arbitration demands left over after the batching described above, a final batch will consist of the remaining demands); (ii) designate one arbitrator for each batch; and (iii) provide for a single filing fee due per side per batch. Arbitrator selection for each batch shall be conducted to the greatest extent possible in accordance with the applicable JAMS rules and procedures for such selection, and the arbitrator will determine the location where the proceedings will be conducted. You agree to cooperate in good faith with the Company and the arbitration provider to implement such a "batch approach" or other similar approach to provide for an efficient resolution of claims, including the payment of single filing and administrative fees for batches of claims. This "Batch Arbitration" provision shall in no way be interpreted as authorizing class arbitration of any kind. The Company does not agree or consent to class arbitration, private attorney general arbitration, or arbitration involving joint or consolidated claims under any circumstances, except as set forth in this section 16(g).
The arbitrator will render an award within the time frame specified in the applicable JAMS rules and procedures. The arbitrator's decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court having jurisdiction thereof. The arbitrator will have the authority to award monetary damages on an individual basis and to grant, on an individual basis, any non-monetary remedy or relief available to an individual to the extent available under applicable law, the arbitral forum's rules, and this Agreement. The arbitrator's award of damages and/or other relief must be consistent with section 16(c) above and also must be consistent with the terms of the "Limitation of Liability" section above as to the types and the amounts of damages or other relief for which a party may be held liable. No arbitration award or decision will have any preclusive effect as to issues or claims in any dispute with anyone who is not a named party to the arbitration.
Attorneys' fees will be available to the prevailing party in the arbitration only if authorized under applicable substantive law governing the claims in the arbitration.
Pursuant to the applicable JAMS Rules and Consumer Arbitration Minimum Standards, you will be required to pay $250 to initiate an arbitration against the Company. To the extent the filing fee for the arbitration exceeds the cost of filing a lawsuit, the arbitrator may require the Company to pay the portion of that fee that exceeds the cost of filing suit. You are responsible for your own attorneys' fees unless the arbitration rules and/or applicable law provide otherwise. If the arbitrator finds the arbitration to be non-frivolous, the Company will pay all of the actual filing and arbitrator fees for the arbitration, provided your claim does not exceed $75,000. For claims above $75,000, fees and costs will be determined in accordance with applicable JAMS rules. The arbitration rules permit you to recover attorneys' fees in certain cases.
The parties agree that JAMS has discretion to modify the amount or timing of any administrative or arbitration fees due under JAMS's Rules where it deems appropriate (including as specified in Section 16(g)), provided that such modification does not increase the costs to you, and you waive any objection to such fee modification. The parties also agree that a good-faith challenge by either party to the fees imposed by JAMS does not constitute a default, waiver, or breach of this Section 16 while such challenge remains pending before JAMS, the arbitrator, and/or a court of competent jurisdiction, and that any and all due dates for those fees shall be tolled during the pendency of such challenge.
Right to opt-out of arbitration.
The updates to these Terms do not provide you with a new opportunity to opt out of arbitration if you agreed to a previous version of the Terms and did not validly opt out of arbitration. The Company will continue to honor any valid opt outs if you opted out of arbitration in a prior version of the Terms. If you register with the Company for the first time on or after December 15, 2022, you may opt out of arbitration. To opt out, you must notify the Company in writing no later than 30 days after first becoming subject to Section 16 of these Terms. Your notice must include your full name, mailing address, the email address associated with your registration, a clear statement that you want to opt out of this Mutual Arbitration Agreement, and your original signature. The notice cannot be signed by your attorney, agent, or other representative, and you may only opt out on behalf of yourself individually. You must send your opt-out notice by U.S. Postal Service certified mail to Newyorkjobdepartment.com, 867 Boylston Street, 5th Floor, #1594, Boston, MA 02116, Attention: General Counsel.
If you opt out of this Agreement, all other parts of this Agreement will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may have entered into with the Company or may enter into in the future with the Company. If you do not timely opt out of this Agreement, such action shall constitute mutual acceptance of the terms of this Agreement by you and the Company.
The Company will provide 30 days' notice of any changes to this Section, but any such changes will not apply to any individual claim(s) of which the Company already has actual notice. If the Company changes this Section after the date you first accepted this Agreement (or accepted any subsequent changes to this Agreement), you agree that your continued use of the Platform or Services 30 days after such change will be deemed acceptance of those changes. If you do not agree to such change, you may reject any such change by providing the written notice of such rejection by certified mail to: Newyorkjobdepartment.com, 867 Boylston Street, 5th Floor, #1594, Boston, MA 02116, Attention: General Counsel, and a copy of the same shall also be emailed to [email protected] within 30 days of the date such change became effective, as indicated in the "Last Updated" date above. To be effective, the notice must include your full name and clearly indicate your intent to reject changes to this section 16. If you reject changes pursuant to this paragraph and were already bound by an existing agreement to arbitrate disputes under a previous version of the Terms, then that existing arbitration agreement shall remain in full force and effect.
General Provisions. This Agreement is the complete and exclusive statement of the Agreement between Newyorkjobdepartment.com and you regarding the Services and supersedes any other agreement or proposal, oral or written (including information on the Site), and any other communications between Newyorkjobdepartment.com and you. This Agreement will be governed by the laws of the State of Massachusetts without regard to conflicts of law principles. The waiver of a breach of any provision of this Agreement will not operate or be interpreted as a waiver of any other or subsequent breach. If any provision of this Agreement is deemed unenforceable, such provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions will continue in full force and effect. You may not assign, delegate or otherwise transfer this Agreement or any of your rights or obligations under this Agreement without the prior written consent of Newyorkjobdepartment.com. Any such assignment, delegation or transfer in violation of the foregoing will be null and void.
Contact Us. Please contact us at [email protected] to report any violations of this Agreement or to ask any questions regarding this Agreement. You may also contact us at Newyorkjobdepartment.com, 867 Boylston Street, 5th Floor, #1594, Boston, MA 02116 Attention: User Support.