HMGNY.COM FOOD SERVICE CLIENT TERMS OF SERVICE
INTRODUCTION
Welcome to HMGNY.com (“Site” or “HMG Site”), the world’s first online marketplace, operated by the Hospitality Marketing Group LLC (“HMG”), and dedicated to creating opportunities for freelance hospitality service professionals (“Service Pros”) and fulfilling the needs of hospitality service buyers (“Company(ies)”) seeking the services of these individuals.
Our mission here at HMG is to provide a marketplace for hospitality service professionals and buyers and a place where people in the hospitality service industry can reach out to a network of peers for resources and support. The philosophy and spirit of this “HMG Marketplace” 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.
The following terms and conditions, including without limitation those in the linked “Privacy Policy,” the “Company User Agreement” and the “General Terms of Service” (collectively, the “HMGNY.COM TERMS OF SERVICE” or “Agreement”), forms a binding agreement between You and Us. Please review the following terms carefully.
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 the Hospitality Marketing Group LLC, owner of the Site, including any 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.
OUR SERVICES AND FEES – IN GENERAL
HMG provides certain online services (“Services” or “HMG Services”) through the creation of an online marketplace community (“HMG Marketplace”) that help hospitality service buyers (here, Companies) find freelance hospitality service professionals (here, Service Pros) who are seeking gigs like the ones the Companies may be seeking to fulfill. More specifically, HMG will: (i) help a Service Pro learn of hospitality service opportunities that Companies have posted on the Site and match that particular individual’s criteria that are established by him/her; (ii) enable a Company to post service orders for hospitality service opportunities on the Site, and have such orders be filled by candidates (the Service Pros) whose criteria fit those that the Company is looking for; and (iii) assist registered Service Pros and Companies (“HMG Members”) with the logistics related to the Offer, Acceptance and Booking of such opportunities. In addition, the HMG Services include related services, such as those pertaining to invoicing, and others, all as described below.
COMPANY USER AGREEMENT
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.
YOUR ACCOUNT
Becoming a “Registered Company” (and thus an HMG Member) 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 the hospitality services of freelancers or independent contractors. We, in turn, will inform You of the availability of such freelancers through the Site, as well as provide You with other related services.
ORDERS –CREATING, FILLING AND BOOKING
As a Registered Company (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. The Qualified Service Pros will receive notifications of Your Open Order, be able to review Your Order, and make an Offer or Bid to provide the services or Decline the opportunity. When all the positions in Your Open Order are filled and You have entered into a service contract with each of the Qualified Service Pros that You accepted, then Your Open Order becomes a “Booked Order.”
The Service Pro must provide the services for each Booked Order in accordance with Your Company requirements for that Order. 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 help You with the billing and payment of the Booked Order through its “Billing & Payment Services,” as described below.
Please note that during the process of booking an Order, You have the right to require a background check on any Service Pro before accepting an Offer or Bid, and You may request such check to be conducted by either HMG or a third party. Your consideration (to be made in Your sole discretion) of any Service Pro may be contingent upon completion of his/her background check and the results of such check.
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. In addition, if a Service Pro cannot perform the services of a Booked Order, he/she will either personally find a replacement or request HMG to find such a replacement.
With regard to the actual transactions between Service Pros and Companies (such as offering, bidding on, accepting and performing services), You acknowledge and agree that HMG will not in any way be involved in the employment or contracting arrangement You have with any Service Pro, and that any services performed by a Service Pro are provided by him/her and under a separate contract between You and that Service Pro. HMG is not responsible for and will not control the manner in which the Service Pro performs his/her services and is not involved in that Service Pro’s behavior, conduct, performance of such services. Accordingly, We do not set or endorse: (i) any Service Pro’s skills, competency, conduct or quality of his/her performance; or (ii) the ability of Service Pros to offer hospitality services and/or perform services in accordance with a Company’s requirements. We are not responsible for any transaction and/or contact, or the result of any such transaction and/or contact made by and between a Service Pro and a Company.
HMG SERVICES FOR COMPANIES
HMG’s services (collectively, “HMG Services”) provided, through the HMG Site, to all Registered Companies include (1) Marketplace Services, (2) Billing and Payment Services, (3) 1099 Services, (4) Order Update Services, (5) ASAP Order Services, (6) Discrepancy Services, and (7) Other Services, all of which are described below.
1. Marketplace Services. HMG will provide You with an online marketplace so that You can create Orders and have access to a large community of freelance hospitality service professionals whose background and criteria can match those that You are looking for. HMG will also include other related information and tools, such as relevant Service Pro information and the ability to request certain Service Pros for Your Orders.
2. Billing and Payment Services. After an Event has occurred, HMG will help You handle paying the Service Pro through the HMG Billing & Payment Services. More specifically, HMG will prepare and submit to You online the invoice related to each Event, collect the applicable fee from You, and remit payments to the Service Pros. The Billing & Payment Services are described in further detail below in the “GENERAL TERMS OF SERVICE.”
With regard to the Billing & Payment Services, You acknowledge and agree that:
• We cannot and do not control whether any Service Pro will perform the services they offer on any Booked Order;
• HMG will not finalize an Invoice and You will not receive a final Invoice in the event that either You or the Service Pro has objected to the draft Invoice and are in the process of resolving the issue;
• If You waive Your right to review the Event Details (as defined below), all information (as received by HMG from You) regarding the Event will be automatically included in the final Invoice to the Company.
• If You fail to properly complete the Invoice Verification Process, the closing of Your Booked Order may be seriously hindered or delayed;
• HMG is not responsible for any wage withholdings nor for the determination of whether any sales and use taxes would apply.
3. 1099 Services. Through the HMG 1099 Services, We can issue Service Pros (and send You copies of) a summary on a Form 1099 of their Service Pro Payments made by You if the applicable Service Pro requests a 1099 and You agree to provide the information required to create such summary. The details are outlined below in the “GENERAL TERMS OF SERVICE.” You acknowledge and agree, that other than in connection with the 1099 Services, HMG is not obligated to determine the applicability of any taxes or to remit, collect or report any such applicable taxes.
4. Order Update Services. Should You ever need to cancel or change a Booked Order in any way, please notify Us immediately to take advantage of Our “Order Update Services.” We will assist You with such changes and please know that We may charge You an “Order Update Service Fee,” depending on how far in advance You make the request. (See “HMG Fees for Companies” section below for more details.)
5. ASAP Order Services. If You have a last minute Order (“ASAP Order”) to place, You may use HMG’s “ASAP Order Services” by notifying HMG immediately. HMG will assist You with such “ASAP Order” and We may charge You an “ASAP Order Service Fee,” depending on the requirements and constraints of the Order. (See “HMG Fees for Companies” section below for more details.)
6. Discrepancy Services. If You disagree with the Company as to the amount of Your Service Pro Payment or Your services rendered for a Gig, then You may contact the Company directly to resolve the issue, or request HMG to help You resolve the issue. HMG’s assistance here is part of its “Discrepancy Services,” which are offered, free of charge, only to Registered Service Pros, and is described in further detail below in the “GENERAL TERMS OF SERVICE.”
7. Other Services. Any other HMG Services are described below in the “GENERAL TERMS OF SERVICE.”
OUTSIDE THE SCOPE OF HMG SERVICES
You understand and agree that HMG will NOT provide any of the following as part of its Services to You, and that it is Your sole responsibility to seek the following or directly contact the applicable Service Pro about the following:
● Providing training.
● Providing uniforms, supplies, tools, materials or support staff required by a Company.
● Providing instructions on how to perform a specific job.
● Supervising or managing the Service Pros.
● Expecting Service Pros to report to HMG on a regular basis.
● Providing the Service Pro with transportation to the Event location, or reimbursement for travel.
● Dictating the Service Pro’s work schedule in any way.
● Establishing the pay rate or any other terms of an Order.
● Handling any problems or complaints or questions from the Service Pro regarding the work environment, performance or other terms and conditions of the Booked Gig, or any other employment and/or contracting issue the Service Pro raises.
Please note that You may provide the Service Pro with certain items, such as those above, depending on Your Company and its requirements for a particular Event.
HMG FEES FOR COMPANIES
Becoming a Registered Company with HMG and creating Orders through the HMG Site are free. We do, however, charge fees (“HMG Fees”) for using other HMG Services, such as those for filling and changing Orders. When You use a service that has a fee, You will have an opportunity to review and accept the fees that you will be charged based on Our information set forth in this Section below and other parts of the Agreement, as well as other sections of the HMG Site. You understand and agree that HMG may change, add to or delete any of the HMG Fees at any time, in Our sole discretion, and that You will have prior notice of and have the opportunity to accept or decline any such changed fees.
1. Marketplace Service Fees. In exchange for using Our Marketplace Services, You agree to pay HMG a “Marketplace Service Fee” for each Booked Order that is completed. The Marketplace Service Fee will be based on the Rate Card and types of services rendered for the applicable Booked Order.
2. Order Update Services. In exchange for using the Order Update Services to either cancel or change a Booked Order, You agree to pay HMG an “Order Update Service Fee” and that amount will depend on how far in advance Your request is made and the scope of the cancellation or change and applicable Booked Order.
3. ASAP Order Services. In exchange for using the ASAP Order Services, You agree to pay HMG an “ASAP Order Service Fee and that amount will depend on how far in advance Your request is made and the scope of the Order placed.
COMPANY USER RULES
• As the person having access to HMG Marketplace 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 acknowledge and agree that You are responsible for the payment and reporting of any and all taxes required of You by law. You understand that other than in connection with the 1099 Services, HMG is not obligated to determine the applicability of any taxes or to remit, collect or report any such applicable taxes.
• 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.
• You understand that a Service Pro only gets paid if You agree to the payment.
• If You cannot resolve a discrepancy in an Invoice with the Service Pro and HMG has already provided all relevant information that was collected through the Site for the relevant Event, then You understand and agree that You must seek the services of a third party to resolve such conflict and can no longer expect HMG to remain involved.
• 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 him/her for the time prior to dismissal.
• Except for violations of law or a material breach of the terms of this Agreement, a Service Pro who has performed services for You at an Event must be paid by You.
NON-SOLICITATION
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.
GENERAL TERMS OF SERVICE
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 any where 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 a 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 USER RULES
Since it is Our mission to bring together Service Pros and Companies in the HMG Marketplace 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 not to:
• 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;
• Disclose Personal Information (as defined in Our Privacy Policy) of other users in any way except as specifically permitted hereunder.
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, cancelbots, 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;
INFORMATION INTEGRITY
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 COMMUNITY
HMG works to keep the HMG Site operating properly and the HMG Marketplace 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.
Please report problems, offensive content, and policy violations to Us at user-reports@hmgny.com.
FEES AND SERVICES
Joining the HMG Marketplace by registering with Us and bidding on or offering hospitality service opportunities is free. We do charge fees for using other services, all as described in this Agreement and other sections of the HMG Site. Unless otherwise stated, all HMG Fees are quoted in U.S. Dollars. You are responsible for paying, in a timely manner and with a valid payment method, all such fees, and any applicable taxes or credit card processing fees. If your payment method fails or your account is past due, we may collect fees owed using other collection mechanisms, including without limitation charging other payment methods on file with us, retaining collection agencies and legal counsel, recovering reasonable collection costs and attorney’s fees, etc.
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.
1. Billing & Payment Services. After an Event has occurred, HMG will help HMG Users handle billing the Company or pay the Service Pro (whichever applicable) through the HMG Billing & Payment Services. The following describes the “Billing & Payment Process.”
To start the process of billing and payment, either the Company or Service Pro must provide the “Event Service Details,” such as start and end time of service, etc. The Company can provide the Event Service Details on the “Event Staff Sheet,” along with its rating of the Service Pro (“Marketability Rating”) and whether it would like to add that Service Pro to its “Request” list so that he/she can be automatically contacted for this Company’s next Open Order. The Service Pro can provide Event Service Details on the invoice form page, along with his/her answers to the Event and Company survey.
If We receive such details from only one party, We will generate a draft “Invoice” for both parties to review and verify (“Invoice Verification Process”). If We receive such details from both parties, We will combine the information received, notify both parties of any conflicting information or discrepancies, and send the draft Invoice for both parties to review. If the parties disagree on the conflicting information, then either party may contact the other party directly to resolve the conflict, or request HMG to assist through its “Discrepancy Services” (as defined below).
After any discrepancies have been resolved and both parties reviewed and verified the draft Invoice, the Company will receive the final Invoice online and pay for the Service Pro’s services rendered (including all applicable fees) (“Event Fee”). The following will then be deducted from the Event Fee: the “Order Fee,” which is a fee charged to the Company for HMG’s Marketplace Services; the “Billing & Payment Service Fee,” a fee charged to the Service Pro for HMG’s Billing & Payment Services; and any applicable credit card processing fees. The remaining balance is the “Service Pro Payment,” which is then sent to the Service Pro.
With regard to the Billing & Payment Process, You acknowledge and agree that:
• HMG, with any third party service providers’ assistance (including without limitation TillNow), is simply acting to process Invoices to Companies on behalf of Service Pros, and to receive and process Service Pro Payments from Companies for services rendered by Service Pros;
• Due to the inherent nature of the Internet and electronic communication transactions, neither HMG is nor any of its third party service providers (including without limitation TillNow) are responsible for the timeliness or accuracy of either Invoices or Service Pro Payments.
2. 1099 Services. If a Service Pro requests a 1099 Form and the applicable Company provides HMG the information required to create such a summary, then HMG will provide its 1099 Services by creating a summary on a Form 1099, issuing it to the Service Pro and the Company a copy.
3. Discrepancy Services. If either a Service Pro or Company disagrees with the other party as to the details of a draft Invoice for a performed Gig, then either party may contact the other party directly to resolve the issue, or either party may request HMG to help with such resolution. HMG’s assistance here, called the “Discrepancy Services,” are offered free of charge only to Service Pros and Companies who are HMG Members (i.e., registered with Us).
By using HMG’s Discrepancy Services, you agree and acknowledge that: (i) HMG’s role only consists of reviewing logistical information that was entered by either or both of the parties onto the Site; (ii) HMG is neither taking a position with either the Service Pro or the Company, nor making any conclusions with regard to the disagreement over any aspect of the Gig at issue; (iii) HMG is not providing legal services or legal counsel to You; and (iv) if You desire to have legal counsel, You will seek an independent legal counsel, at Your own expense, and not rely on HMG for any such counsel.
By using the Discrepancy Services, You hereby release HMG and all of Our subsidiaries and affiliates from any damages or liability whatsoever related to Your engagement by a Company or Your use of any of Our Services. You further agree to indemnify and hold harmless HMG and all of Our subsidiaries and affiliates against any and all damages or liability that We may incur, including attorneys fees and costs, in connection with our provision of Services to You. You agree to indemnify and hold harmless HMG and any of our subsidiaries and affiliates against any damages or liability you may suffer as a result of using the Discrepancy Services. If you do not agree to use Our Discrepancy Services under these terms, you may not elect to use such services.
4. 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.
TERMINATION
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.
PRIVACY
The HMG Privacy Policy, which is incorporated by reference into this Agreement, explains how We use Your information when You use the HMG Site and Services. Your ongoing use of Our Site and Services signifies Your consent to the information practices disclosed in Our Privacy Policy. You can access and modify the information You provide Us and choose not to receive certain communications (if applicable) by signing-in to Your account. If You object to Your information being used in the ways described in Our Privacy Policy, then please do not use Our Site or 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. Hospitality Marketing Group, 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.
COPYRIGHT CLAIMS
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 send to us, at copyright@hmgny.com, the following information:
• 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 HMGNY.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.
INDEMNIFICATION
Upon a request by HMG, you agree to defend, indemnify, and hold harmless HMG, its affiliates, and respective employees, contractors, officers, directors, and agents from all liabilities, claims, and expenses, including reasonable attorney's fees, that arise from your use or misuse of the HMG Site or Services, negligent or intentional wrongdoing by you in relation to the HMG Site or Services, or a discrepancy on an invoice or conflict regarding a hospitality service opportunity created in the HMG Marketplace. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will cooperate with us in asserting any available defenses.
RELEASE
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 Service, please send an email to questions@hmgny.com. You may also contact us by writing to HMG at 35 Worth Street, 4th Floor, New York, NY 10013, Attention: Member Services, or by calling us at 212-965-9600. 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 dca@dca.ca.gov.
MISCELLANEOUS
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: March 28, 2008