RESPONDENT RELEASE AGREEMENT
Updated June 15, 2020
Your membership and participation with Pennant, LLC (“Pennant”) is subject to the following Respondent Release Agreement (the “Agreement”), including the following terms and conditions regarding information provided by You through various Pennant surveys (collectively “Surveys” or “Survey”) and information collected by Pennant in relation to your use of Pennant. By accepting the terms of this Agreement, the person or entity responding to Surveys (referred to herein as “You”, “Your”, or “Participant”) agrees to be bound by the Agreement, as modified by Pennant from time to time in our sole discretion, and that this Agreement supersedes any prior terms and conditions between you and Pennant with regard to the subject matter herein. You agree as follows:
1. Nature of this Agreement. This Agreement governs Participant’s access to and use of Pennant’s websites and applications. By accessing or using Pennant and responding to Surveys, Participant agrees to comply with the terms as set forth in this Agreement.
2. Information and Content. Pennant collects information from and about multiple Survey participants (including You) in order to provide the best service possible to its users. Therefore, it is essential that Pennant is able to collect and use the information as described in this Agreement. Data collection is largely necessary for fulfilling Pennant’s contractual obligations towards Participants and providing the best experience for Pennant’s users.
Participant hereby acknowledges and agrees to allow Pennant the right to use Participant’s name and any other information provided by Participant through any Survey or Pennant platform. Pennant reserves the right to disclose any information provided by Participant (“Content”) and directly associate any such Content with Participant’s identity in any method it deems appropriate, including but not limited to posting Participant’s answers to Surveys verbatim on Participant’s personal profile page. Participant grants Pennant the right to use Participant’s name and any other identifying information provided in the dissemination of information and Content submitted and to associate any such Content with Participant’s account and identity. Participant shall have the right to revise, delete, or make edits to any information displayed on their profile if they so choose. Any edits must be done manually and may be requested by emailing any desired changes. Pennant agrees to make any revisions, deletions, or edits within 30 business days of receiving Participant’s request. While Pennant has no obligation to do so, Pennant reserves the right to review and delete any Content, or portion thereof, that it believes, in its sole discretion, violate the terms of this Agreement.
Pennant claims ownership in any Content that Participant submits or authorizes for use by Pennant. Participant further grants Pennant the rights to use such Content as set forth in this Agreement. By submitting or authorizing Pennant to display any Content on Pennant, Participant hereby grants to Pennant an unrestricted, irrevocable, perpetual, exclusive, fully-paid, worldwide, and royalty-free, license (with the right to sublicense through unlimited levels of sublicenses) to use, copy, perform, display, create derivative works of, adapt and distribute such Content in any and all media (now known or later developed).
To the greatest extent permitted by applicable law, Participant hereby expressly waives any and all of its moral rights applicable to Pennant’s exercise of the foregoing license. Participant agrees that this license includes the right for Pennant to provide, promote, and improve Pennant and to make Content submitted to or through Pennant available to other companies, organizations or individuals for the syndication, broadcast, distribution, promotion or publication of such Content on other media and services, subject to Pennant’s terms and conditions for such Content use. As further detailed in Section 5 below, no compensation will be paid with respect to the Content that Participant shares with Pennant. Participant should only submit Content to Pennant that Participant is comfortable sharing with others under the terms and conditions of this Agreement.
Without limiting the confidentiality, data protection and privacy rights terms set forth in this Agreement, Pennant has a perpetual right to use aggregated, anonymized, and statistical data regarding Content or other information provided by Participant or connected with Participant’s use of Pennant platforms and services (“Aggregated Data”) derived from the operation of the Pennant platforms and services provided to Participant. Nothing herein shall be construed as prohibiting Pennant from selling or utilizing such Aggregated Data for research and development purposes, in the provision of its services, or for operating or other purposes.
4. Confidential Information. Under no circumstances may Participant ever disclose information in violation of any legally enforceable confidentiality, non-disclosure or other contractual restrictions or rights of any third party, including any current or former employers or potential employers. Participant may not post any Content of which the Participant does not own or have the right to post in accordance with this Agreement. Under no circumstances will Pennant be liable to Participant or to any other party in the event that Participant discloses information in violation of legally enforceable confidentiality, non-disclosure or other contractual restrictions or rights of any third party.
5. Compensation. No compensation will be paid with respect to the Content that Participant shares with Pennant or provides though any Pennant Surveys or interviews. In exchange for completing Pennant’s initial Career Advice Survey (the “Initial Survey”), Pennant may provide, and Participant will may receive, a pre-determined period of complimentary access (the “Complimentary Access Period”) to Pennant’s website as a user commencing upon completion of the Initial Survey. The pre-determined amount of Complimentary Access, if any, will be disclosed to a potential Participant in writing prior to taking the Initial Survey. Complimentary Access will be revoked if Participant chooses to delete its profile or terminate its account during the Complimentary Access Period. Pennant reserves the right to terminate Participant’s account or delete Participant’s public profile pursuant to the terms of Section 6 of this Agreement during the Complimentary Access Period.
6. Termination. Participant may terminate its Pennant account at any time by providing written notice to Pennant. Likewise, Pennant reserves the right to terminate Participant’s account or delete Participant’s public profile at any time and for any reason without providing notice to Participant. Termination shall not relieve either party of its obligations under this Agreement intended to survive termination, which include, but are not limited to: Privacy, Application of the Agreement, Confidentiality, Information and Content, Indemnification, Confidential Information, Disputes; Arbitration; Governing Law, Indemnification and Limitation of Liability. Any breach by Participant of these terms and conditions may result, among other things, in immediate termination of Participant’s Pennant account.
7. Disputes; Arbitration; Governing Law. ANY DISPUTE OR CLAIM RELATING IN ANY WAY TO PARTICIPANT’S USE OF ANY PENNANT SERVICE WILL BE RESOLVED THROUGH BINDING ARBITRATION WITH THE AMERICAN ARBITRATION ASSOCIATION (“AAA”), RATHER THAN IN COURT. PARTICIPANT AGREES THAT BY ENTERING INTO THIS AGREEMENT, PARTICIPANT AND PENNANT EACH WAIVE THE RIGHT TO TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION. PARTICIPANT AND PENNANT AGREE THAT EACH PARTY MAY BRING CLAIMS AGAINST THE OTHER ONLY IN PARTICIPANT’S OR PENNANT’S INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. ANY ARBITRATION WILL TAKE PLACE ON AN INDIVIDUAL BASIS; CLASS ARBITRATIONS AND CLASS ACTIONS ARE NOT PERMITTED.
There is no judge or jury in arbitration, and court review of an arbitration award is limited. However, an arbitrator can award on an individual basis the same damages and relief as a court, including injunctive and declaratory relief or statutory damages, and must follow the terms of this Agreement as a court would. The arbitrator may grant any remedy that he or she deems just and equitable within the scope of this arbitration agreement, except that he or she may not, under any circumstance, grant a remedy inconsistent with or in violation of the Limitation of Liability. The award of the arbitrator shall be final and binding and judgment thereon may be entered in any court having jurisdiction. Participant hereby unconditionally and irrevocably submits to the jurisdiction of the federal and state courts of California.
8. Indemnification. Participant agrees to defend, indemnify, and hold Pennant and its affiliates, and its and their respective officers, directors, board members, board advisors, employees, partners, agents, managing members, managers, representatives, successors and assigns (collectively, the "Pennant Affiliates") harmless from any and all actions, causes of action, claims, charges, demands, costs, expenses, losses, liabilities and damages including reasonable attorneys' fees and costs, of any kind whatsoever directly or indirectly resulting from, arising out of or in connection with Participant’s use of Pennant, including due to or arising from Participant’s breach or violation of any and all provisions of this Agreement.
9. Limitation of Liability. The disclaimers and limitations on liability in this section apply to the maximum extent allowable under applicable law. Nothing in this section is intended to limit any rights Participant has which may not be lawfully limited. IN NO EVENT SHALL PENNANT OR PENNANT AFFILIATES BE LIABLE TO PARTICIPANT OR ANY THIRD PARTY FOR ANY DIRECT, INDIRECT (INCLUDING LOST PROFITS), CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL, OR PUNITIVE DAMAGES ARISING FROM PARTICIPANT’S USE OF PENNANT OR THIS AGREEMENT, EVEN IF PENNANT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, WHERE PERMITTED BY APPLICABLE LAW, PARTICIPANT AGREES THAT PENNANT AND PENNANT AFFILIATES’ LIABILITY TO PARTICIPANT FOR ANY DAMAGES ARISING FROM OR RELATED TO PARTICIPANT’S USE OF PENNANT (FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION), WILL AT ALL TIMES BE LIMITED TO THE FEES PAID BY PARTICIPANT TO PENNANT HEREUNDER FOR THE RELEVANT ACCOUNT FEES DUE IN THE MONTH SUCH LIABILITY IS ALLEGED TO HAVE ARISEN.
Participant acknowledges that he or she is familiar with the provisions of Section 1542 of the California Civil Code, which provides as follows: "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE AND THAT, IF KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY." Participant hereby expressly waives and relinquishes all rights and benefits under Section 1542 of the California Civil Code and any law or legal principle of similar effect in any jurisdiction with respect to the releases and/or discharges granted herein, including but not limited to the releases and/or discharges of unknown claims.
10. Right to Modify Terms. Pennant reserves the right to modify the terms and conditions found in this Agreement from time to time by posting the modification(s) on our website, . Unless otherwise specified by Pennant when posted, all modifications will be effective upon posting. If Participant does not agree to any modification(s), Participant’s only recourse will be to terminate his or her account with Pennant or ask to delete their public profile. If Participant continues use of his or her Pennant account after any modification becomes effective, then such use will constitute acceptance of such modification. No failure or delay by either party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder. Neither this Agreement nor any of the rights, interests or obligations hereunder may be assigned, delegated or otherwise transferred, in whole or in part, by operation of law or otherwise, by Participant without Pennant’s prior written consent (which consent we may withhold in our sole discretion), and any such assignment, delegation or transfer by Participant without such prior written consent shall be null and void and of no force or effect whatsoever. This Agreement shall be binding upon and inure solely to the benefit of any and all participants, Pennant and Pennant Affiliates. As used in this Agreement, the word “including” shall mean “including, without limitation,” in all cases. Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement is held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provision of this Agreement, and this Agreement shall be reformed, construed and enforced as if such invalid, illegal or unenforceable provision had never been contained herein.
11. Entire Agreement. This Agreement constitutes the entire agreement between Participant and Pennant regarding the use of Pennant and the terms herein shall supersede all prior proposals, negotiations, agreements, and understandings concerning the subject matter of this Agreement. Pennant’s failure to exercise or enforce any right or provision of the Agreement shall not operate as a waiver of such right or provision.