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Terms and Conditions
Last Modified: January 19, 2021
These Terms have provisions which limit our liability and impose obligations on you. You must review these Terms, along with any policies incorporated by reference, before using the Website.
Above Hospitality Inc. is a corporation formed pursuant to the Canada Business Corporations Act (R.S.C., 1985, c. C-44). In consideration for permitting your access to our website and services and other good and valuable consideration, you agree as follows:
These terms and conditions (the "Terms") form a legally binding agreement which govern your access to and use of Above Hospitality Inc.’s, ("we", "us" or "our") website, online web application hosted at https://abovehospitality.com, our iOS and Android mobile applications (if made available) and related services (collectively the "Website").
By using our Website, you, the user ("you" or "your"), represent and warrant that (i) you are at least eighteen (18) years old; and (ii) you have read and understand these terms and agree to be bound by them. If you are not eighteen (18) or do not agree to these Terms, you are not authorized to use our Website.
If you are using or accessing our Website on behalf of, or in the employ of, an organization (corporation, trust, partnership, etc.), you are agreeing to these terms for that organization and representing and warranting that you have the authority to bind that organization to these Terms. In such a case, "you" and "your" will also refer to that organization and yourself individually. For greater clarity, both you as an individual and your organization are legally bound by these terms which form an agreement between you and Above Hospitality Inc.
About Our Website
Our Website operates as a platform to connect users offering employment (referred to as “Regular Jobs”) and freelance opportunities (referred to as “Quick Shifts”) in the hospitality industry, with those seeking employment or freelance contract work. In doing so, we allow users to post Regular Job and Quick Shift advertisements.
Regular Job postings are intended to only include full and part-time employment, apprenticeships, internships and volunteer opportunities, casual employment, commission based employment, contract and freelance work, which are typically longer in duration. All Regular Job postings remain active on the Website for 30 days, unless cancelled by the corresponding Employer Account. Thereafter, the post will be archived in our systems and accessible for the applicable Employer Account to view.
Quick Shift job posting are intended to match employers with employees or freelancers on short notice willing to fill a time slot, from a few hours to a few shifts, typically with no ongoing work relationship being established.
All Quick Shift job postings will remain active on the Website for one week, unless cancelled by the corresponding Employer Account. Like Regular Job postings, once expired, the post will be accessible for the applicable Employer Account to view.
While we facilitate a connection and messaging between a prospective employer, employee or freelancers, we are not an employment agency. We do not directly hire or facilitate the payment of wages or fees. As an employer or as a party who engages a freelancer, you are responsible for entering such employment contracts or freelance contractor agreements as you and your legal counsel deem necessary or advisable. You are further responsible for ensuring all salaries, fees, taxes and statutory deductions and remittances are paid in accordance with, and that you comply, at all times, with applicable laws, rules and regulations in the jurisdictions which govern the employment or freelancer relationship.
If you are an employer with an account on the Website, you agree that we make no representations or warranties as to your ability to engage individuals as freelance contractors rather than short term employees. You should seek appropriate legal advice on the manner in which you engage a prospective employee or freelancer and your statutory and other obligations in doing so.
Establishing an Account
We also permit job seekers to create accounts (“Job Seeker Accounts”). A Job Seeker Account permits you to upload your employment history, educational background, a resume and create an online profile. Profile information connected to Job Seeker Accounts can be automatically shared with prospective employers upon applying for a job or freelance opportunity.
All types of account users are collectively referred to in these Terms as “User(s)” or “user(s)”.
We may allow you to complete portions of your account registration, via third party providers such as LinkedIn, Facebook and others. If you elect to establish your account via one or more third party provider, you agree to permit us to collect the personal information such third party sends us to establish your account.
We may also permit you to add a YouTube link to your profile to introduce yourself in a YouTube video.
Upon establishing a user account with us, we grant you a worldwide, non-transferable, non-exclusive license to access your account on the Website, in accordance with these Terms, but reserve the right to revoke said license and your access to our Website without cause or justification.
Account Not Transferable & Security
If you establish an account with us, access to your account is not transferrable and is only intended for the individual or entity that established the account. Upon setting up an account you will be required to create a username and password. You are responsible for safeguarding the password you use to access the Website and you agree not to disclose your password to any third party. For security purposes, you agree to use a unique password which you do not use to access any other online software, application or service. You agree you are responsible for any activity on your account, whether or not you authorized that activity. You agree to immediately notify us of any unauthorized use of your account.
While creating an account is free there are fees payable by each Employer Account to:
Upon establishing an Employer Account, you may list your job opportunities on the Website, only in accordance with these Terms and subject to the payment of your account fees (“Account Fees”). You will be required to provide a valid credit card for us to store on file, via our payment processor, to be billed in accordance with these Terms.
Our Account Fees are as set out in our Employer’s Registration Form, which will be provided to you separately, and are subject to change upon 30 days’ notice to you, whether via email or otherwise. Account Fees are also available from within your online dashboard in your account, with such fees being incorporated by reference herein.
All Account Fees and credit card details are collected via a third party payment processor. You agree that we may bill your credit card in accordance with these Terms and the Employer’s Registration Form. Account Fees are non-refundable, unless we have billed you in error. You agree that unless we have billed you in error, as determined by us, in our sole and absolute discretion, you will not seek a refund or chargeback directly with any credit card company, payment processor or bank.
Employer Account users can access their invoices and update their billing information by logging into their accounts and navigating to “billings and payment”.
Free Trial Offers
We may offer free trials in which we grant you the ability to post job listings for free, or at a discounted rate. Such free trials may be subject to additional terms and conditions referenced at the time of acceptance. Any such offers are subject to cancellation by us, at any time, in our sole discretion. Job postings made by you after the expiration of the trial period will be subject to these Terms and you agree that we may bill your credit card accordingly.
Job Alerts & Notifications
We may send you automated notification via email and text message:
Additional terms, as they relate to the fees you pay us, including but not limited to, price, tax, refunds and payment may be specified on the Website. Those terms, as amended from time to time, are hereby incorporated by reference and form part of this agreement.
Whether using an Employer Account or a Job Seeker Account, you agree:
You agree to only use our Website in accordance with the following acceptable use and code of conduct guidelines. You agree that you:
Your Relationship To Us
As an account holder or User, you agree, understand, represent and warrant that you are not (nor will you become) an employee, shareholder, joint venturer, agent or partner of ours (and expressly waive the application or operation of the Ontario Partnerships Act, R.S.O. 1990, c. P.5 and any similar legislation in any other jurisdiction which may deem a partnership to exist). You agree that you are an independent party and nothing contained herein shall be interpreted as creating any relationship other than that of independent contracting parties. You have no power or authority to bind us to any obligation, agreement, debt or liability, nor shall you hold yourself out as an agent or representative of ours.
OUR WEBSITE AND RELATED SERVICES DO NOT FACILITATE THE RESOLUTION OF DISPUTES BETWEEN USERS, INCLUDING FOR EXAMPLE, DISPUTES ARISING FROM AN EMPLOYMENT OR CONTRACTOR RELATIONSHIP BETWEEN USERS. IN THE EVENT OF A DISPUTE WITH ANOTHER USER, YOU AGREE THAT WE SHALL NOT BE A PARTY TO ANY SUCH DISPUTE, COURT, TRIBUNAL OR ARBITRAL PROCEEDING COMMENCED BY EITHER PARTY OR ANY USER AGAINST ANOTHER. YOU ARE RESPONSIBLE FOR SETTLING ALL DISPUTES YOU MAY HAVE WITH OTHER USERS.
ACCEPTANCE OF RISK AND DISCLAIMERS
YOU USE OUR WEBSITE AT YOUR OWN RISK.
EVERYTHING ON OUR WEBSITE AND PROVIDED AS PART OF OUR SERVICE OFFERING IS PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND INCLUDING ALL IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. TO THE FULLEST EXTENT PERMITTED BY LAW, WE HEREBY DISCLAIM ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY.
YOU ACKNOWLEDGE THAT WHILE WE MAY REMOVE JOB POSTINGS AT OUR OWN DISCRETION, WE DO NOT REVIEW OR PRESCREEN ALL JOB POSTINGS OR OTHER CONTENT. YOU ACCESS THOSE POSTING AND ALL OTHER INFORMATION AT YOUR OWN RISK.
AS WE MERELY FACILITATE THE CONNECTION OF USERS ONLINE WE DO NOT GUARANTEE, AMONG OTHER THINGS, (i) THE ACCURACY OF INFORMATION POSTED BY USERS, (ii) THE QUALITY OF EMPLOYMENT OPPORTUNITIES OR FREELANCE ENGAGEMENTS OFFERED BY USERS, OR (iii) THE RELIABILITY, SKILLS, REPUTATION, RESUMES OR OTHER CONTENT POSTED BY OTHER USERS.
IT IS YOUR OWN RESPONSIBILITY TO ASSESS THE RISK OF USING OUR WEBSITE AND THE RISK OF CONNECTING WITH OTHER USERS ONLINE OR IN-PERSON.
YOU AGREE THAT YOU ARE RESPONSIBLE FOR YOUR INTERACTIONS WITH OTHER USERS AND ACCOUNT HOLDERS YOU MEET ON THE WEBSITE, WHETHER THOSE INTERACTIONS TAKE PLACE ONLINE OR OFFLINE, IN PERSON.
YOU ACKNOWLEDGE AND AGREE THAT WE DO NOT PRESCREEN, VET OR PERFORM BACKGROUND CHECKS ON ALL USERS, ACCOUNT HOLDERS, LISTINGS, RESUMES OR JOB APPLICATIONS. AS SUCH, YOU ACCEPT ALL RISKS ASSOCIATED WITH HIRING, ENGAGING, MEETING AND INTERACTING WITH OTHER USERS AND ACCOUNT HOLDERS ON OR VIA OUR WEBSITE (INCLUDING OFFLINE, IN PERSON INTERACTIONS). WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, SUCH RISKS INCLUDE BUT ARE NOT LIMITED TO THE RISK OF PHYSICAL HARM FROM IN PERSON INTERACTIONS WITH OTHER USERS. YOU ARE RESPONSIBLE FOR TAKING APPROPRIATE SAFETY PRECAUTIONS WHEN CONNECTING WITH OTHER USERS AND ACCOUNT HOLDERS.
WHILE WE MAY CONDUCT BACKGROUND CHECKS VIA A THIRD PARTY PROVIDER AS PART OF THE SERVICES FOR PREMIUM ACCOUNT HOLDERS, WE MAKE NO REPRESENTATIONS OR WARRANTIES AS TO THE ACCURACY OR COMPLETENESS OF SUCH BACKGROUND CHECKS. YOU SHOULD CONDUCT YOUR OWN LAWFUL DUE DILIGENCE ON JOB CANDIDATES.
YOU AGREE THAT, WHILE WE STRIVE TO HAVE ERROR FREE AND UNINTERRUPTED WEBSITE, WE DO NOT GUARANTEE THE ABSENCE OF INTERRUPTIONS NOR SHALL YOU HOLD US LIABLE FOR ANY DAMAGE SUCH INTERRUPTIONS MAY CAUSE.
As Users are responsible for uploading their own information and job postings, we cannot guarantee the accuracy of any such information. It is your responsibility to ensure the accuracy of the information uploaded. We do not warrant that the contents of the Website, including, without limitation, images, reviews or other content are accurate or complete. We reserve the right, but have no obligation, to:
Disclosure Pursuant To Court Order, Subpoena Or Other Legal Process
We reserve the right to provide your content and information (including but not limited to your personal and business information) uploaded or collected by our Website to third parties if required by law (such as in response to a subpoena, court order or other legal process in any jurisdiction), and to cooperate with law enforcement authorities in the investigation of any criminal or civil matter.
If we are required by law to make any disclosure of your content or personal or business information, we may (but are not obligated to) provide you with written notice (to the extent permitted by law) prior to such disclosure so that you may take appropriate action.
We also operate the Website in conjunction with our independent contractors, including web developers. Our independent contractors may have access to your personal and business information in providing services to us, or providing you with access to the Website. We may use a variety of service providers, employees and servers in locations both inside and outside of Canada, which may make your personal information the subject of foreign laws and foreign legal proceedings.
To the extent permitted by law, without limiting the generality of this section, or any other section limiting our liability, you agree that we shall not be responsible for the acts or omissions, including the negligent acts or omissions, of our independent contractors or third party service providers.
LIMITATION OF OUR LIABILITY
YOU AGREE THAT, TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL WE, OUR AFFILIATES, OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, CONTRACTORS, AGENTS OR LICENSORS BE LIABLE, HOWSOEVER CAUSED (INCLUDING BY NEGLIGENCE OR OTHERWISE), FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES, REGARDLESS OF LEGAL THEORY AND WHETHER OR NOT WE HAVE BEEN WARNED OF THE POSSIBILITY OF SUCH DAMAGES AND WHETHER THOSE DAMAGES WERE FORESEEABLE OR NOT.
IF YOU ARE DISSATISFIED WITH THE WEBSITE OR OUR RELATED SERVICES, OR DO NOT AGREE WITH ANY PART OF THESE TERMS, OR HAVE ANY OTHER DISPUTE OR CLAIM WITH OR AGAINST US, OUR AFFILATES, OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, CONTRACTORS, AGENTS OR LICENSORS, THEN YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE ACCESSING AND USING THE WEBSITE.
IN ADDITION TO YOUR AGREEMENT TO NOT HOLD THE ABOVE ENTITIES AND PERSONS LIABLE FOR ANY DAMAGES, IN THE EVENT A COURT OR ARBITRATOR OF COMPETENT JURISDICTION DECLINES TO UPHOLD SAID CLAUSE, YOU AGREE THAT IN NO CIRCUMSTANCES SHALL THE AGGREGATE LIABILITY FOR ANY AND ALL CLAIMS RELATING TO OR IN ANY WAY ARISING FROM THE USE OF OUR WEBSITE, OR IN ANY WAY RELATED TO THESE TERMS, BE MORE THAN THE AMOUNTS PAID BY YOU TO US (IF ANY), OVER THE PRECEDING ONE (1) MONTH FROM DATE YOU FIRST RAISED YOUR CLAIM WITH US.
YOU AGREE AND ACKNOWLEDGE THAT ACCESS TO OUR WEBSITE, AND IF YOU ARE A PAYING USER, THE FEES PAID BY YOU, REFLECTS THE ALLOCATION OF RISK SET FORTH IN THESE TERMS AND THAT WE WOULD NOT ENTER INTO THIS AGREEMENT OR GRANT ACCESS TO THE WEBSITE OR OUR RELATED SERVICES WITHOUT THESE RESTRICTIONS AND LIMITATIONS ON OUR LIABILITY.
INDEMNIFICATION AND HOLD HARMLESS
Our Website contains open source and public domain content, licenced content as well as proprietary content owned by us and by third parties. You are not permitted to copy or distribute any content (including but not limited to text, images, trademarks, videos or audio) on the Website without the express consent of the owner. All other contents of the Website including, but not limited to, the computer code, is the property of Above Hospitality Inc. and/or our independent content providers ("ICPs") with all rights reserved. Without limiting the generality of the forgoing, you are not permitted to use any trademark or trade name of Above Hospitality Inc., including our logo, without our express permission.
All rights, title and interest in and to the Website, or components thereof (including the underlying software code), are and will remain the exclusive property of Above Hospitality Inc., our ICP’s and licensors, including all Intellectual Property Rights (as defined below), even if we incorporate any of your Feedback (as defined below) into subsequent versions.
The Website and content thereon is protected by copyright, trademark and other laws of Canada, the United States and foreign countries. Except as expressly permitted in these Terms, you may not reproduce, modify or prepare derivative works, distribute, sell, transfer, publicly display, publicly perform, transmit, or otherwise use the Website or any content thereon.
To ensure our ongoing ownership of the Website and all components thereof, all feedback, comments, ratings, reviews and suggestions for improvements (the "Feedback") that you provide to us or post to the Website, in any form, will immediately become our sole and exclusive property. You hereby irrevocably transfer and assign to us and agree to irrevocably assign and transfer to us all your rights, title and interest in and to all your Feedback, including all worldwide patent rights (including patent applications and disclosures), copyright rights, trade secret rights, and other intellectual property rights (collectively, the "Intellectual Property Rights") therein.
At our request and expense, you will execute documents and take such further acts as we may reasonably request to assist us in acquiring, perfecting and maintaining Intellectual Property Rights and other legal protections for your Feedback.
Our Website permits you and other Users the ability to upload and post content ("User Content"). We do not pre-screen all User Content uploaded or posted to the Website by you or other Users. You hereby grant us a non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to use any of your User Content that you post or upload to the Website to facilitate the ordinary use of the Website.
We may, but have no obligation to, remove User Content and accounts that we determine in our sole discretion to be, or likely be, unlawful, damaging, or violate any third party's intellectual property rights, these Terms or any policy incorporated by reference herein.
If you believe that your copyrighted work has been copied in a way that constitutes copyright infringement and is accessible on our Website, please notify our copyright agent at email@example.com. While we take no responsibility for any User who breaches your copyright or other intellectual property rights, we may, in our sole discretion and without liability, undertake to attempt to contact the infringer on your behalf and/or cancel the infringer's account or remove the content in question.
Whether or not we are affiliated with sites or third party vendors that may be linked to our Website, we are not responsible for their content (the "Linked Sites"). The Linked Sites are for your convenience only and you access them at your own risk. We and other Users provide links and references to material and postings on other websites not owned or operated by us. Links found on our Website are not an endorsement and we do not represent or warrant the accuracy or truth of the contents of information found on said websites. You access those links and corresponding sites at your own risk.
Law of the Contract (Governing Law) and Jurisdiction.
These Terms, all documents incorporated by reference and your relationship with us shall be governed by, construed and enforced in accordance with the laws of the Province of Ontario, Canada, (and any Canadian federal laws applicable therein) as such laws are applied to agreements entered and performed entirely within such province.
You hereby agree to irrevocably and unconditionally submit to the exclusive jurisdiction of the courts and tribunals of Ontario, Canada (including the Federal courts and tribunals as applicable therein) to settle any and all disputes arising out of or in any way related to these Terms, all documents incorporated by reference and your relationship with us.
If any provision of these Terms are found to be unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from this agreement and shall not affect the validity and enforceability of any remaining provisions.
No Construction Against Drafter
If an ambiguity or question of intent arises with respect to any provisions of these Terms, the Terms shall be construed as if drafted jointly by the parties and no presumption or burden of proof will arise favouring or disfavouring either party by virtue of authorship of any of the provisions of these Terms.
Waiver of Class Proceedings and Trial by Jury
To the extent permitted by law, you hereby waive your right to participate in any class action lawsuits against us, our contractors, employees, shareholders, successors, assigns and directors.
To the extent permitted by law, you further waive any right to a trial by jury, should such a right exist, in relation to any legal dispute connected to or in any way arising out of these Terms.
Incorporation by Reference
We make no representation and cannot guarantee the continued and ongoing availability of our Website. Where practical to do so, we will take reasonable measures to inform you if our Website is being discontinued.
You can stop using our Website at any time. Please contact us to learn more about cancelling your account.
We reserve the right to suspend your account or access to our Website at any time, with or without cause, and with or without notice, whether due to non-payment of your account or otherwise.
Your cancellation, suspension or termination of access to our Website shall not terminate this agreement. In particular, and without limiting the generality of the foregoing, any provision concerning the limitation of our liability, your indemnification obligations, settling disputes (including the jurisdiction and choice of law) shall remain binding.
Assignment of this Agreement
These Terms shall enure to the benefit of and is binding upon the parties and their respective successors and permitted assigns. You may not otherwise assign this agreement to any third party without our express written consent.
You agree that we may assign this agreement to any successor or assignee, whether pursuant to the purchase of our Website, the transfer of control of Above Hospitality Inc., or otherwise.
Right to Seek Injunction
Violation of these Terms may cause us irreparable harm and, therefore, you agree that we will be entitled to seek extraordinary relief including, but not limited to, temporary restraining orders, preliminary injunctions and permanent injunctions without the necessity of posting a bond or other security, in addition to and without prejudice to any other rights or remedies that we may have for a breach of these Terms.
Our failure to enforce any right or provision of these Terms will not be deemed a waiver of such right or provision.
In the course of using your account with us or using our Website, you may be required or by your actions may be deemed, to consent to the terms of agreements provided by certain third party service providers, including but not limited to, payment processors, credit card companies and banks. You agree that nothing in those agreements shall, in any way, alter these Terms or your obligations hereunder.
Any new features that augment or enhance the current Website, including the release of new versions, new products or services, tools and resources, shall be subject to these Terms. Continued use of the Website after any such changes shall constitute your consent to such changes.
AS OUR WEBSITE CONTINUES TO CHANGE, WE MAY, AT ANY TIME, REVISE THESE TERMS AND OUR POLICIES BY UPDATING THIS PAGE OR THE PAGE HOSTING THE RELEVANT POLICY. THE DATE OF THE LAST VERSION OF THESE TERMS IS POSTED ABOVE. AS YOU ARE BOUND BY THESE TERMS EACH TIME YOU VISIT OUR WEBSITE, YOU ARE RESPONSIBLE FOR PERIODICALLY REVIEWING THE AMENDMENTS TO THESE TERMS AND YOU ARE DEEMED TO HAVE ACCEPTED AND AGREED TO SUCH AMENDMENTS BY ACCESSING AND USING THE WEBSITE AFTER SUCH AMENDMENTS HAVE BEEN POSTED. IF YOU DO NOT AGREE WITH THE AMENDMENTS, YOU SHALL IMMEDIATELY STOP ACCESSING THE WEBSITE AND TERMINATE YOUR ACCOUNT, SUBJECT TO THE TERMS PROVIDED FOR HEREIN. WE MAY ALSO UNDERTAKE TO SEND YOU NOTICE OF ANY CHANGES TO THE TERMS OR POLICIES.
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