Our Terms of Use
Latest Update: June 1, 2009
By using the Tischen.com web site, you are agreeing to be bound by the following terms and conditions herein (“Terms of Use”). You must be 13 years or older to use this site.
PLEASE READ THESE TERMS OF USE CAREFULLY AS THEY CONTAIN IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS, REMEDIES AND OBLIGATIONS. THESE INCLUDE VARIOUS LIMITATIONS AND EXCLUSIONS, AND A DISPUTE RESOLUTION CLAUSE THAT GOVERNS HOW DISPUTES WILL BE RESOLVED.
1. ACCEPTANCE OF TERMS
Tischen is an online service that allows users to search for individuals and entities that offer various labor and professional services. To do so effectively, Tischen Beramo provides a collection of online resources, including instant e-mail and mobile texting tools, and an open API that serves as an interface for third party developers (collectively referred to hereafter as “the Service”), subject to the following Terms of Use (“TOU”). By using the Service in any way, you are agreeing to comply with the TOU. In addition, when using particular Tischen services, you agree to abide by any applicable posted guidelines for all Tischen services, which may change from time to time. Should you object to any term or condition of the TOU, any guidelines, or any subsequent modifications thereto or become dissatisfied with Tischen in any way, your only recourse is to immediately discontinue use of Tischen. Tischen has the right, but is not obligated, to strictly enforce the TOU through self-help, community moderation, active investigation, litigation and prosecution.
2. MODIFICATIONS TO THIS AGREEMENT
We maintain the right to change, modify or otherwise alter these terms and conditions at any time and at our sole discretion. Such modifications shall become effective immediately upon the posting thereof. You must review this agreement on a regular basis to keep yourself apprised of any changes.
3. CONTENT
You understand that all offers, postings, messages, text, files, images, photos, video, sounds, or other materials (“Offers and Content”) posted on, transmitted through, or otherwise made available via the Service, are your sole responsibility. Moreover, you are entirely responsible for each individual job that you offer, request, receive or accept via the Service and for abiding by all local laws and regulations pertaining to the offer and performance of any job and payment of taxes on monies earned therefrom. You understand that Tischen does not control, and is not responsible for Offers and Content made available through the Service, and that by using the Service, you may be exposed to Offers and Content that are offensive, indecent, inaccurate, misleading, or otherwise objectionable. Furthermore, the Tischen site and Offers and Content available through the Service may contain links to other websites, which are completely independent of Tischen. Tischen makes no representation or warranty as to the accuracy, completeness or authenticity of the information contained in any such site. Your linking to any other websites is at your own risk. You agree that you must evaluate, and bear all risks associated with, the use of any Offers and Content, that you may not rely on said Offers and Content, and that under no circumstances will Tischen be liable in any way for any Offers and Content or for any loss or damage of any kind incurred as a result of the use of any Offers and Content posted, emailed or otherwise made available via the Service. You acknowledge that Tischen does not pre-screen or approve Offers and Content, but that Tischen shall have the right (but not the obligation) in its sole discretion to refuse, delete or move any Content that is available via the Service, for violating the letter or spirit of the TOU or for any other reason.
4. THIRD PARTY CONTENT, SITES, AND SERVICES
The Tischen site and Offers and Content available through the Service may contain features and functionalities that may link you or provide you with access to third party content which is completely independent of Tischen, including web sites, directories, servers, networks, systems, information and databases, applications, software, programs, products or services, and the Internet as a whole.
Your interactions with organizations and/or individuals found on or through the Service, including payment and delivery of goods or services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and such organizations and/or individuals. You should make whatever investigation you feel necessary or appropriate before proceeding with any online or offline transaction with any of these third parties.
You agree that Tischen shall not be responsible or liable for any loss or damage of any sort incurred as the result of any such dealings. If there is a dispute between participants on this site, or between users and any third party, you understand and agree that Tischen is under no obligation to become involved. In the event that you have a dispute with one or more other users, you hereby release Tischen, its officers, employees, agents and successors in rights from claims, demands and damages (actual and consequential) of every kind or nature, known or unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way related to such disputes and or our service.
5. NOTIFICATION OF CLAIMS OF INFRINGEMENT
If you believe that your work has been copied in a way that constitutes copyright infringement, or your intellectual property rights have been otherwise violated, please notify Tischen’s agent for notice of claims of copyright or other intellectual property infringement (“Notice Agent”), at
abuse@tischen.com
Please provide our Notice Agent with the following Notice:
a) Identify the material on the Tischen site that you claim is infringing, with enough detail so that we may locate it on the website;
b) 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;
c) A statement by you declaring under penalty of perjury that (1) the above information in your Notice is accurate, and (2) that you are the owner of the copyright interest involved or that you are authorized to act on behalf of that owner;
d) Your address, telephone number, and email address; and
e) Your physical or electronic signature.
Tischen will remove the infringing posting(s), subject to the procedures outlined in the Digital Millenium Copyright Act (DMCA).
6. PRIVACY AND INFORMATION DISCLOSURE
Tischen has established a Privacy Policy to explain to users how their information is collected and used, which is located at the following web address:
http://www.tischen.com/privacy
Your use of the Tischen website or the Service signifies acknowledgement of and agreement to our Privacy Policy. You further acknowledge and agree that Tischen may, in its sole discretion, preserve or disclose your Offers and Content, as well as your information, such as email addresses, IP addresses, timestamps, and other user information, if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to: comply with legal process; enforce the TOU; respond to claims that any Offers and Content violates the rights of third-parties; respond to claims that contact information (e.g. phone number, street address) of a third-party has been posted or transmitted without their consent or as a form of harassment; protect the rights, property, or personal safety of Tischen, its users or the general public.
7. CONDUCT
You agree not to post, email, text, or otherwise make available Offers and Content:
a) that are unlawful, harmful, threatening, abusive, harassing, defamatory, libelous, invasive of another's privacy, or are harmful to minors in any way;
b) that are pornographic or depict a human being engaged in actual sexual conduct;
c) that harass, degrade, intimidate or are hateful toward an individual or group of individuals on the basis of religion, gender, sexual orientation, race, ethnicity, age, or disability;
d) that violate federal, state, or local equal employment opportunity laws, including but not limited to, stating in any advertisement for employment a preference or requirement based on race, color, religion, sex, national origin, age, or disability;
e) with respect to employers that employ four or more employees, that violate the anti-discrimination provision of the Immigration and Nationality Act, including requiring U.S. citizenship or lawful permanent residency (green card status) as a condition for employment, unless otherwise required in order to comply with law, regulation, executive order, or federal, state, or local government contract;
f) that impersonate any person or entity, including, but not limited to, a Tischen employee, or falsely state or otherwise misrepresent your affiliation with a person or entity;
g) that include personal or identifying information about another person without that person’s explicit consent;
h) that are false, deceptive, misleading, deceitful, misinforming, or constitute “bait and switch”;
i) that infringe any patent, trademark, trade secret, copyright or other proprietary rights of any party, or Offers and Content that you do not have a right to make available under any law or under contractual or fiduciary relationships;
j) that constitute or contain “affiliate marketing,” “link referral code,” “junk mail,” “spam,” “chain letters,” “pyramid schemes,” or unsolicited commercial advertisement;
k) that include links to commercial services or web sites, except as allowed in “services”;
l) that advertise any service that is illegal or prohibited or restricted by any applicable law.
m) that contain software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;
n) that disrupt the normal flow of dialogue with an excessive amount of Offers and Content to the Service, or that otherwise negatively affect other users’ ability to use the Service; or
o) that employ misleading or manipulated identifiers in order to disguise the origin of Offers and Content transmitted through the Service.
Additionally, you agree not to:
q) create more than one profile per individual, duplicate your profile under variant user names, offer the same service as more than one person or profile, or post the same service in more than one metropolitan area;
r) contact anyone who has asked not to be contacted, or make unsolicited contact with anyone for any commercial purpose;
s) collect personal data about other users for commercial or unlawful purposes;
t) use automated means, including spiders, robots, crawlers, data mining tools, or the like to download data from the Service - unless expressly permitted by Tischen;
u) post non-job-related or otherwise irrelevant Content, repeatedly post the same or similar Content or otherwise impose an unreasonable or disproportionately large load on our infrastructure;
v) “stalk” or otherwise harass anyone;
w) attempt to gain unauthorized access to Tischen’s computer systems or engage in any activity that disrupts, diminishes the quality of, interferes with the performance of, or impairs the functionality of, the Service or the Tischen website; or
x) use any form of automated device or computer program that enables the submission of postings on Tischen without each posting being manually entered by the author thereof (an “automated posting device”), including without limitation, the use of any such automated posting device to submit postings in bulk, or for automatic submission of postings at regular intervals.
8. POSTING AGENTS
A “Posting Agent” is a third-party agent, service, or intermediary that agrees to post Offers and Content to the Service on behalf of others. To moderate demands on Tischen’s resources, you may not use a Posting Agent to post Offers and Content to the Service without express permission or license from Tischen. Correspondingly, Posting Agents are not permitted to post Offers and Content on behalf of others, to cause Offers and Content to be so posted, or otherwise access the Service to facilitate posting Offers and Content on behalf of others, except with express permission or license from Tischen.
9. NO SPAM POLICY
You understand and agree that sending unsolicited email advertisements to Tischen email addresses or through Tischen computer systems, which is expressly prohibited by these Terms, will use or cause to be used servers located in New York. Any unauthorized use of Tischen computer systems is a violation of these TOU and certain federal and state laws. Such violations may subject the sender and his or her agents to civil and criminal penalties.
10. PAID POSTINGS
We may charge a fee to post Offers and Content in some areas of the Service. The fee is an access fee permitting Offers and Content to be posted in a designated area. Each party posting Offers and Content to the Service is responsible for said Offers and Content and compliance with the TOU. All fees paid will be non-refundable in the event that Offers and Content are removed from the Service for violating the TOU.
11. LIMITATIONS ON SERVICE
You acknowledge that Tischen may establish limits concerning use of the Service, including the maximum number of days that Offers and Content will be retained by the Service, the maximum number and size of postings, email messages, or other Offers and Content that may be transmitted or stored by the Service, and the frequency with which you may access the Service. You agree that Tischen has no responsibility or liability for the deletion or failure to store any Offers and Content maintained or transmitted by the Service. You acknowledge that Tischen reserves the right at any time to modify or discontinue the Service (or any part thereof) with or without notice, and that Tischen shall not be liable to you or to any third party for any modification, suspension or discontinuance of the Service.
12. ACCESS TO THE SERVICE
Tischen grants you a limited, revocable, nonexclusive license to access the Service for your own personal use. This license does not include: (a) access to the Service by Posting Agents; or (b) any collection, aggregation, copying, duplication, display or derivative use of the Service nor any use of data mining, robots, spiders, or similar data gathering and extraction tools for any purpose unless expressly permitted by Tischen. A limited exception to (b) is provided to general purpose internet search engines and non-commercial public archives that use such tools to gather information for the sole purpose of displaying hyperlinks to the Service, provided they each do so from a stable IP address or range of IP addresses using an easily identifiable agent. “General purpose internet search engine” does not include a website or search engine or other service that specializes in classified listings or in any subset of classified listings such as jobs, services, or personals, or which is in the business of providing classified ad listing services.
Tischen permits you to display on your website, or create a hyperlink on your website to, individual postings on the Service so long as such use is for noncommercial and/or news reporting purposes only (e.g., for use in personal web blogs or personal online media). If the total number of such postings displayed or linked to on your website exceeds one hundred (100) postings, your use will be presumed to be in violation of the TOU, absent express permission granted by Tischen to do so. You may also create a hyperlink to the home page of Tischen sites so long as the link does not portray Tischen, its employees, or its affiliates in a false, misleading, derogatory, or otherwise offensive matter.
Use of the Service beyond the scope of authorized access granted to you by Tischen immediately terminates said permission or license. In order to collect, aggregate, copy, duplicate, display or make derivative use of the Service or any Content made available via the Service for other purposes (including commercial purposes) not stated herein, you must first obtain a license from Tischen.
13. TERMINATION OF SERVICE
You agree that Tischen, in its sole discretion, has the right (but not the obligation) to delete or deactivate your account, block your email or IP address, or otherwise terminate your access to or use of the Service (or any part thereof), immediately and without notice, and remove and discard any Offers and Content within the Service, for any reason, including, without limitation, if Tischen believes that you have acted inconsistently with the letter or spirit of the TOU. Further, you agree that Tischen shall not be liable to you or any third party for any termination of your access to the Service. Further, you agree not to attempt to use the Service after said termination. Sections 2, 4, 6 and 10-16 shall survive termination of the TOU.
14. PROPRIETARY RIGHTS
The Service is protected to the maximum extent permitted by copyright laws and international treaties. Offers and Content displayed on or through the Service are protected by copyright as a collective work and/or compilation, pursuant to copyrights laws, and international conventions. Any reproduction, modification, creation of derivative works from or redistribution of the site or the collective work, and/or copying or reproducing the sites or any portion thereof to any other server or location for further reproduction or redistribution is prohibited without the express written consent of Tischen. You further agree not to reproduce, duplicate or copy Offers and Content from the Service without the express written consent of Tischen, and agree to abide by any and all copyright notices displayed on the Service. You may not decompile or disassemble, reverse engineer or otherwise attempt to discover any source code contained in the Service. Without limiting the foregoing, you agree not to reproduce, duplicate, copy, sell, resell or exploit for any commercial purposes, any aspect of the Service.
Although Tischen does not claim ownership of content that its users post, by posting Offers and Content to any public area of the Service, you automatically grant, and you represent and warrant that you have the right to grant, to Tischen an irrevocable, perpetual, non-exclusive, fully paid, worldwide license to use, copy, perform, display, and distribute said Offers and Content and to prepare derivative works of, or incorporate into other works, said Offers and Content, and to grant and authorize sublicenses (through multiple tiers) of the foregoing. Furthermore, by posting Offers and Content to any public area of the Service, you automatically grant Tischen all rights necessary to prohibit any subsequent aggregation, display, copying, duplication, reproduction, or exploitation of the Offers and Content on the Service by any party for any purpose.
15. DISCLAIMER OF WARRANTIES
YOU AGREE THAT USE OF THE TISCHEN SITE AND THE SERVICE IS ENTIRELY AT YOUR OWN RISK. THE TISCHEN SITE AND THE SERVICE ARE PROVIDED ON AN “AS IS” OR “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND. ALL EXPRESS AND IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS ARE EXPRESSLY DISCLAIMED TO THE FULLEST EXTENT PERMITTED BY LAW. TO THE FULLEST EXTENT PERMITTED BY LAW, TISCHEN DISCLAIMS ANY WARRANTIES FOR THE SECURITY, RELIABILITY, TIMELINESS, ACCURACY, AND PERFORMANCE OF THE TISCHEN SITE AND THE SERVICE. TO THE FULLEST EXTENT PERMITTED BY LAW, TISCHEN DISCLAIMS ANY WARRANTIES FOR OTHER SERVICES OR GOODS RECEIVED THROUGH OR ADVERTISED ON THE TISCHEN SITE OR THE SITES OR SERVICE, OR ACCESSED THROUGH ANY LINKS ON THE TISCHEN SITE. TO THE FULLEST EXTENT PERMITTED BY LAW, TISCHEN DISCLAIMS ANY WARRANTIES FOR VIRUSES OR OTHER HARMFUL COMPONENTS IN CONNECTION WITH THE TISCHEN SITE OR THE SERVICE. Some jurisdictions do not allow the disclaimer of implied warranties. In such jurisdictions, some of the foregoing disclaimers may not apply to you insofar as they relate to implied warranties.
16. LIMITATIONS OF LIABILITY
UNDER NO CIRCUMSTANCES SHALL TISCHEN BE LIABLE FOR DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES (EVEN IF TISCHEN HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM ANY ASPECT OF YOUR USE OF THE TISCHEN SITE OR THE SERVICE, WHETHER THE DAMAGES ARISE FROM USE OR MISUSE OF THE TISCHEN SITE OR THE SERVICE, FROM INABILITY TO USE THE TISCHEN SITE OR THE SERVICE, OR THE INTERRUPTION, SUSPENSION, MODIFICATION, ALTERATION, OR TERMINATION OF THE TISCHEN SITE OR THE SERVICE. SUCH LIMITATION SHALL ALSO APPLY WITH RESPECT TO DAMAGES INCURRED BY REASON OF OTHER SERVICES OR PRODUCTS RECEIVED THROUGH OR ADVERTISED IN CONNECTION WITH THE TISCHEN SITE OR THE SERVICE OR ANY LINKS ON THE TISCHEN SITE, AS WELL AS BY REASON OF ANY INFORMATION OR ADVICE RECEIVED THROUGH OR ADVERTISED IN CONNECTION WITH THE TISCHEN SITE OR THE SERVICE OR ANY LINKS ON THE TISCHEN SITE. THESE LIMITATIONS SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW. In some jurisdictions, limitations of liability are not permitted. In such jurisdictions, some of the foregoing limitation may not apply to you.
17. INDEMNITY
You agree to indemnify and hold Tischen, its officers, subsidiaries, affiliates, successors, assigns, directors, officers, agents, service providers, suppliers and employees, harmless from any claim or demand, including reasonable attorney fees and court costs, made by any third party due to or arising out of Content you submit, post or make available through the Service, your use of the Service, your violation of the TOU, your breach of any of the representations and warranties herein, or your
violation of any rights of another.
18. GENERAL INFORMATION
The TOU constitutes the entire agreement between you and Tischen and governs your use of the Service, superceding any prior agreements between you and Tischen. The TOU and the relationship between you and Tischen shall be governed by the laws of the State of New York without regard to its conflict of law provisions. You and Tischen agree to submit to the personal and exclusive jurisdiction of the courts located within the county of New York. The failure of Tischen to exercise or enforce any right or provision of the TOU shall not constitute a waiver of such right or provision. If any provision of the TOU is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of the TOU remain in full force and effect. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Service or the TOU must be filed within one (1) year after such claim or cause of action arose or be forever barred.
19. VIOLATION OF TERMS AND LIQUIDATED DAMAGES
Please report any violations of the TOU, by emailing to:
abuse@tischen.com
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.
You understand and agree that, because damages are often difficult to quantify, if it becomes necessary for Tischen to pursue legal action to enforce these Terms, you will be liable to pay Tischen the following amounts as liquidated damages, which you accept as reasonable estimates of Tischen’s damages for the specified breaches of these Terms:
a. If you post a profile or Offers and Content that (1) impersonates any person or entity; (2) falsely states or otherwise misrepresents your affiliation with a person or entity; or (3) that includes personal or identifying information about another person without that person’s explicit consent, you agree to pay Tischen one thousand dollars ($1,000) for each such message.
b. If you send unsolicited email advertisements or text messages to Tischen email addresses or phone numbers, or through Tischen computer systems, you agree to pay Tischen twenty five dollars ($25) for each such email or text message.
c. If you post Offers and Content in violation of the TOU, other than as described above, you agree to pay Tischen one hundred dollars ($100) for each separate violation posted. In its sole discretion, Tischen may elect to issue a warning before assessing damages.
d. If you are a Posting Agent that uses the Service in violation of the TOU, in addition to any liquidated damages under clause (c), you agree to pay Tischen one hundred dollars ($100) for each and every Item you post in violation of the TOU. A Posting Agent will also be deemed an agent of the party engaging the Posting Agent to access the Service (the “Principal”), and the Principal (by engaging the Posting Agent in violation of the TOU) agrees to pay Tischen an additional one hundred dollars ($100) for each Item posted by the Posting Agent on behalf of the Principal in violation of the TOU.
e. If you aggregate, display, copy, duplicate, reproduce, or otherwise exploit for any purpose any Offers and Content (except for your own Offers and Content) in violation of these Terms without Tischen’s express written permission, you agree to pay Tischen three thousand dollars ($3,000) for each day on which you engage in such conduct.
Otherwise, you agree to pay Tischen’s actual damages, to the extent such actual damages can be reasonably calculated. Notwithstanding any other provision of these Terms, Tischen retains the right to seek the remedy of specific performance of any term contained in these Terms, or a preliminary or permanent injunction against the breach of any such term or in aid of the exercise of any power granted in these Terms, or any combination thereof.
