Software license, ASSESSMENT SUBSCRIPTION and services agreement
This Software License, Assessment Subscription and Services Agreement (“Agreement”) is made and entered into by and between SuperCV, Inc. (“SuperCV” or “Licensor”) and the user of the Services (if a potential employer, “Employer”, and if a job seeker, “Jobseeker,” both Employer and Job Seeker being “Licensees”). The effective date of this Agreement (“Effective Date”) shall be the date the Licensee begins using the services available at SuperCareer.com or SuperCV.com (the “Services”), or affixes a signature hereto. Each Job Seeker, each Employer, and the Licensor are referred to herein individually as a “Party,” and are collectively referred to herein as the “Parties”.
WHEREAS, Licensor offers job matching services that brings together jobseekers and employers using proprietary algorithms utilizing utilize an innovative scientific system based on multiple variables, including use of SuperCareer.com and SuperCV.com (the “Websites”), and further offers online assessments (”Assessments”) that measure such Job Seeker characteristics as mental ability, work values, temperament, character, qualities, traits and other psychometric information (“Characteristics”) potentially relevant to job performance, personal interaction and overall fit between employees and potential employers; and
WHEREAS, such Assessments can assist Employers in matching Jobseekers with Employer job announcements; and
WHEREAS, Licensor maintains and utilizes tools in connection with the measurements described above that are designed to assist in detecting inconsistent and/or fraudulent responses; and
WHEREAS, Licensor may from time to time grant to Licensees access to the job matching services and/or Assessments (collectively, the “Services”) on certain terms and conditions; and
WHEREAS, Licensor desires to grant to Licensee, and Licensee desires to obtain from Licensor, access to the Services.
NOW, THEREFORE, in consideration of the premises and mutual covenants herein contained, and other good and valuable consideration the receipt and sufficiency of which are hereby acknowledged, the Parties hereto agree as follows:
ASSESSMENTS AND SERVICES.
Employers must provide Licensor with written job announcements containing sufficient information for Licensor to promote and fill relevant job positions, including without limitation required education, background, experience, job duties, and other pertinent job-related information, as well as advertising copy, logos, graphic art and photographs for use on the Websites or otherwise in connection with the Services (collectively, the “Job Information”). Job Information must accurately identify the Employer, and Employers must fill job positions in accordance with the terms described in the Job Information.
All Job Information provided to Licensor is subject to review and approval by Licensor or its designee. Licensor reserves the right to revise or reject for any reason in its sole discretion any Job Information submitted by Employers. Furthermore, and without limiting Employer representations, warranties or other obligations set forth in this Agreement, Licensor has the right in its sole discretion to remove, or direct Employers to remove, any or all portions of any Job Information provided by Employers that Licensor believes are, or may be, in violation of the terms of this Agreement.
Employers may not charge any Job Seeker for information about any job listed on the Websites or for placement into any job positions. Employers may not use the Websites to promote, without Licensor’s prior written permission, any other website, product or service. Licensor reserves the right to deny use of its Websites to any Employer that does not comply with the terms of this Agreement or that otherwise use any part of the Services in a manner deemed inappropriate by Licensor in Licensor’s sole discretion.
Employers authorize and grant a worldwide, royalty-free license to Licensor to distribute the Job Information on the Websites and/or in Licensor’s publications and other online resources and services owned and/or maintained by Licensor and/or its affiliates. In addition to the obligations of Employers as otherwise specified in this Agreement, Employers shall be solely responsible for selecting and providing the Job Information, verifying the accuracy of the Job Information, and obtaining all relevant permissions, licenses, releases or other authorizations necessary for Licensor’s use of the Job Information in connection with the Services.
The Parties acknowledge and agree that the confidence Job Seekers have in job announcements will be significantly undermined by inaccurate or misleading statements made by an Employer about any job or the Employer. The Parties further acknowledge and agree that any erosion of Job Seeker confidence in an Employer will likely cause an erosion of confidence in Licensor. As such, each Employer guarantees that all information to be supplied will be accurate and that the Employer will treat Job Seekers fairly and with respect. Employers will be solely responsible for the accuracy of the content of all job announcements and other related material, including without limitation email messages transmitted through the Website(s) or otherwise transmitted to Job Seekers in connection with this Agreement.
Licensor shall administer the Assessments and disclose the results of such Assessments to Employers paying for the same. Assessments are intended to assist Employers in determining Characteristics of potential employees and must not be used as the sole criteria for any selection, hiring or termination decision, whether relating to employment, consulting, or temporary placement. Licensor will perform the Assessments in accordance with its applicable practices. Employers shall be responsible for determining acceptable scores, assessment results and/or other information revealed by the Assessments based upon Employer’s requirements with respect to the specific job for which a Job Seeker is being assessed. Notwithstanding anything to the contrary contained in this Agreement, LICENSOR MAKES NO WARRANTIES, EXPRESS OR IMPLIED, WHETHER ARISING BY OPERATION OF LAW OR OTHERWISE, AND INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. IN PARTICULAR, LICENSOR WARRANTS NEITHER THAT THE ASSESSMENTS WILL SATISFY AN EMPLOYER’S REQUIREMENTS NOR THAT A JOB SEEKERS’S ASSESSMENT RESULTS WILL BE ABSOLUTE EVIDENCE OF THE JOB SEEKER’S PROFICIENCY, DEFICIENCY OR CHARACTERISTICS IN ANY AREA BEING ASSESSED.
As used herein, “Services” as defined above shall also include Licensor’s software accessible via the Internet using mobile and other devices.
Subject to the terms and conditions of this Agreement, including the exhibits heret, if any, Licensor grants to Licensee a non-exclusive, revocable, non-assignable, non-sublicenseable, non-transferable, license to access the Services solely for a Job Seekers’ personal, non-commercial use, or solely for an Employer’s internal business purposes.
Licensee has no other right to use the Services except as expressly granted herein. For the avoidance of doubt, the license granted to Licensee under Section 2 above is personal to Licensee and Licensee shall not permit any third party or affiliated entity of Licensee to have access to, or the benefit of, the Services without the prior written consent of Licensor. Licensee may not attempt to commercialize the Services in any way, including using the Services in connection with a service bureau. Licensee acknowledges that Licensee is solely responsible for providing and paying for all hardware and Internet access necessary to access and use the Services pursuant to this Agreement.
Licensees will ensure that all users comply with Licensee’s obligations under this Agreement. Licensee will not, and will ensure that all end users do not: (a) use the Services in any manner or for any purpose other than as expressly permitted by this Agreement, such as for employee recruiting; (b) sell, lend, rent, resell, lease, or sublicense the Services to any third party; (c) modify, alter, tamper with, repair or otherwise create derivative works of any part of the Services; (d) reverse engineer, disassemble or decompile the Services or attempt to derive source code from the Services; (e) remove, obscure or alter any proprietary right notice related to the Services; (f) use the Services to send unsolicited or unauthorized junk mail, spam, chain letters, pyramid schemes or any other form of duplicative or unsolicited messages; (g) store or transmit material: (1) that is illegal to store or transmit; (2) containing unlawful, defamatory, threatening, pornographic, abusive, or libelous material, (3) containing any material that encourages conduct that could constitute a criminal offense, (4) that violates the intellectual property rights or rights to the publicity or privacy of others, or (5) that contains malicious code; (h) interfere with or disrupt servers, networks or other equipment connected to or used to support the Services or other users’ access to the same, or violate the regulations, policies or procedures of such networks; (i) access or attempt to access other accounts hosted by Licensor or other computer systems or networks not covered by this Agreement, for which it does not have permission, through password mining or any other means; (j) access or use the Services in a way intended to avoid incurring fees or hiding usage that exceeds usage limits or quotas if any; or (k) engage in any data scraping. As used above, “data scraping” means using automated means (including but not limited to spiders, robots, crawlers, scrapers, deep-links, data-mining, data-gathering or extraction tools and the like), or any other automated methodology, algorithm or device or any manual process, to (for any purpose) monitor, copy, download or otherwise access data or content from a website.
Employers are free to establish a hypertext link from their websites to the Licensor’s Websites site so long as any such link does not state or imply any endorsement or sponsorship of the Employer by Licensor or any of its affiliates. However, without the prior written permission of Licensor, no Employer may frame any content of the Licensor’s Websites or incorporate into another website or service any intellectual property of Licensor or any of its licensors.
NO OBLIGATION TO SUPPORT.
Licensor shall have no obligation to support Licensee’s use of the Services in any way. Licensor may from time to time perform, or cause to be performed, modifications to the Services, including, but not limited to, maintenance, bug fixes and upgrades (collectively, “Updates”), as Licensor deems necessary or desirable. Such Updates may involve the temporary interruption of the Services, for which Licensor expressly disclaims any liability or responsibility. Licensor shall use commercially reasonable efforts to avoid extended disruption of Licensee’s access to the Services. In the event that Licensor, or a third party on Licensor’s behalf, develops an updated version of the Services and such updated version is provided as a generic release common to all the Licensor’s licensees, Licensee shall migrate to any such updated version of the Services within fifteen (15) business days from the date the updated version is released to Licensee.
REPRESENTATIONS AND WARRANTIES.
Employer accepts all liability for the content of all Job Information supplied by it to Licensor. Employer warrants to Licensor that: (a) Employer is the owner or licensee of all necessary and appropriate rights in and to the Job Information and other materials provided to Licensor to allow Licensor to perform the Services in accordance with this Agreement; and (b) all Job Information provided by Employer: (i) constitutes original works of authorship of (or works otherwise validly licensed to) Employer and is sublicensable to Licensor or is material in the public domain; (ii) is true, not libelous and not defamatory; (iii) does not infringe any trade name, trademark, trade secret, copyright, literary or other right, or invade or violate any privacy, personal or proprietary right, of any person or entity; (iv) does not constitute unfair competition with any other person or entity and complies with all applicable federal, state or local law or regulation; and (v) is not offensive, in poor taste or otherwise objectionable. Employer shall defend, indemnify and hold harmless Licensor and its affiliates, employees and agents from any and all claims, demands, liability, suits, costs and expenses arising by reason of or resulting from Licensor’s publication of Employer’s Job Information, any Job Seeker or other individual’s use of the Job Information, or any breach by Employer of the foregoing representations and warranties.
Each Party represents and warrants that: (i) it has all requisite power and authority to execute and deliver, and to perform its obligations under, this Agreement and to consummate the transactions contemplated hereby; (ii) the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby have been duly and validly authorized by all necessary action required on the part of such Party, and no other proceedings on the part of such Party are necessary to authorize this Agreement or to consummate the transactions contemplated hereby; and (iii) assuming the due authorization, execution and delivery of this Agreement by the other Party, this Agreement constitutes the valid and legally binding obligations of each such Party, enforceable against such Party in accordance with its terms, except as may be limited by bankruptcy, insolvency, reorganization or other laws affecting creditors’ rights generally and by general equitable principles.
LICENSEE RESPONSIBILITY FOR LICENSEE ACCOUNT.
Licensee hereby acknowledges that Licensee is solely responsible for all actions and communications undertaken or transmitted under Licensee’s Services account(s). Licensor bears no responsibility and assumes no liability for any content entered or otherwise transmitted by Licensee, or any employee or agent of Licensee, in connection with Licensee’s access to the Services. For the avoidance of doubt, Licensor shall have no liability whatsoever for any mistakes, defamation, falsehoods, omissions, obscenity, pornography, or otherwise, resulting from Licensee’s access to the Services.
Licensor reserves the right, but not the obligation, to remove any content or materials entered into the Services that it deems objectionable. Licensor may delete any content entered into the Services by Licensee and/or terminate any Licensee access, subscription or account, if Licensor, in its sole discretion, believes any such account: (i) involves fraud or any illegality; (ii) is the subject of well-founded complaints regarding Licensee’s conduct or performance in connection with Licensee’s access to the Services; (3) is the subject of a government complaint or investigation or (4) is being used by a Licensee in material breach of this Agreement.
Licensor is not responsible or liable for any representations or warranties as to price, quality or legality of any services offered, or any other terms and conditions, or for the ability of any third parties to offer or purchase such services, whether or not any such third parties have access to the Services. Licensor expressly disclaims any responsibility or liability for the payment or collection obligations under agreements between Licensee and any third parties.
Licensee acknowledges that from time to time Licensee shall enter data into the Services (“Third Party Data”). Licensee acknowledges that Licensor, via the Services, may use such information for the purposes intended, as well as in an anonymous, aggregate form for reporting and marketing purposes. Licensor does not intend, in the ordinary course of business, to review the content of private electronic messages unless addressed to Licensor, but such review is hereby authorized by all Licensees. Licensor shall use commercially reasonable efforts to maintain and preserve the privacy of Third Party Data; provided, that without limitation of any other rights of Licensor in this Agreement, Licensor may disclose Third Party Data pursuant to a good faith belief that such action is reasonably necessary to: (1) comply with a legal order; (2) enforce this Agreement; (3) protect the rights or interests of Licensor, users of Licensor’s websites and/or services, Licensor’s advertisers, or the public. Licensee is entirely responsible for any and all activities that occur in connection with Licensee’s accounts and passwords. Licensee agrees to keep all Clients’ password(s) confidential, and to immediately notify Licensor if Licensee knows, or has reason to believe, that the security of any the Services account has been compromised.
Licensor utilizes what Licensor believes to be reasonable physical, electronic and managerial procedures to safeguard and help prevent unauthorized access of, maintain data security for and correctly use the information Licensor collects online. However, while such reasonable efforts are aimed at protecting the confidentiality of private and personal information available as a result of use of the Website(s), Licensor cannot and does not warrant or guarantee the absolute safety and security of confidential data on the Internet.
Any writings provided by Licensor to an Employer in connection with Licensor’s performance of Assessments are solely for Employer’s internal use and benefit and may not be distributed to, discussed with, or otherwise disclosed to any third party without Licensor’s prior written consent. Employer agrees to indemnify and hold harmless Licensor, its officers, directors, employees or agents from all third party claims, actions, liabilities, costs and expenses including, but not limited to, reasonable attorneys’ fees that may arise from Employer’s distribution in violation of the terms of this Agreement of any Assessment results or other information provided by Licensor.
Licensee grants permission to Licensor to communicate with Licensee via telephone, fax, email and U.S. mail for any reason during the term of this Agreement and for six (6) months thereafter.
By submitting job information for display at one of the Websites, Employers agree to pay Licensor the fees applicable to the listing package selected, which fees are payable and non-refundable regardless of whether Employer’s job is filled as a result of the listing. Employers should take care in selecting the applicable listing package and inputting appropriate job information. Employers are solely responsible for confirming that submissions contain no erroneous information. Employers agree to pay all amounts owed to Licensor in U.S. dollars upon receipt of each invoice from Licensor. If payment is not received within thirty (30) days after receipt of an invoice, Licensor may, at its discretion, terminate an Employer’s access to and use of the Services, and charges for all fees earned, including without limitation for postings and advertising conducted on behalf of Employer, will become immediately due and payable. In addition, a service charge of 1.5% per month (18% per year), or the maximum rate allowed by law, whichever is less, will be applied to all past due balances, and Employer shall pay any and all attorneys’ fees and other costs of collection incurred by Licensor in collecting such amounts. Claims for billing errors must be made by Employer to Licensor in writing within five (5) days after the receipt of the applicable invoice/statement. Applicable terms, fees and rates are subject to change upon thirty (30) days prior written notice to Employer. Employer shall be obligated to pay and shall pay the modified fees unless Employer provides Licensor with written notice of termination of this Agreement within thirty (30) days after Employer’s receipt of such notice. Otherwise, any termination of this Agreement by Employer prior to expiration of the its then-current term will result in penalty equal to the greater of three (3) months’ billings or fifty percent (50%) of the fees otherwise collectible absent such termination.
In addition to the rates and charges referred to herein, Employers shall pay, where applicable, any federal, state, or local sales, use, excise, value added or other like tax on the Services provided to Employer under this Agreement.
Licensor holds all right, title and interest in and to all intellectual property and proprietary rights associated with the Services (collectively, “IP Rights”) and all such IP Rights shall remain with Licensor and/or its third party suppliers. Such IP rights include materials, documents, text, photographs, video, pictures, animation, sound recordings, computer programs, inventions (whether or not patentable) or other works of authorship created or developed in connection with or while providing any Services for a Licensee. Licensee acknowledges such IP Rights and will not take any action to jeopardize, limit or interfere in any manner with Licensor’s or its suppliers' ownership of, or rights with respect to, the Services. Title and related rights in the third party content accessed through the Services is the property of the applicable content owner and is protected by applicable law. The license granted under this Agreement gives Licensee no rights to any such third party content. SuperCareer.com®, SuperCV.com®, and their associated logos are trademarks of SuperCV, Inc. or its affiliates, and may be used only by SuperCV, Inc. for its benefit. The names of other products and services referred to on Licensor’s sites may be trademarks owned by affiliated or unaffiliated third parties. No Employer or Job Seeker may use any trademark or service mark appearing on any Licensor website site without the prior written consent of the owner(s) of the mark(s).
Licensees may have the opportunity to post or otherwise submit content and information, including but not limited to consumer reviews, opinions, concepts, inventions, techniques, know-how, data, materials or other postings or communications (collectively, “User Content”), to Licensor via the Website(s), whether by posting to a public area of the sites (e.g., blogs or message boards) or by other submission to Licensor through email or other means of electronic communication facilitated by Licensor. By submitting any such User Content to Licensor or posting any such User Content in any public area of the Website(s), Licensee: (i) grants Licensor and its owners, affiliates and licensees the royalty-free, perpetual, irrevocable, non-exclusive right and license to use, reproduce, modify, adapt, aggregate, translate, prepare derivative works from, publicly display, publicly perform and distribute such User Content (in whole or in part) alone or as incorporated into other works in any form, media or technology now known or hereafter developed, on a worldwide basis; (ii) grants Licensor and its owners, affiliates and licensees the right to use the name used by Licensee in connection with such submission or post, if and to the extent any or all of them so choose; and (iii) represents and warrants that Licensee has all of the rights to the User Content submitted or posted necessary to grant the rights to Licensor that are granted herein, the User Content is accurate, and the use of the User Content supplied or posted does not violate this Agreement and will not cause injury or damage to any person or entity. Licensee also permits any other user of the Website(s) to access, view, store or reproduce the User Content for that user’s personal use, which use may include disclosure to third parties. By posting or submitting such User Content, Licensee hereby waives any claim that Licensor misappropriated any such User Content or any portions thereof.
As used herein, “Licensor Confidential Information” shall include, but not be limited to, (i) trade secrets, know-how, inventions, techniques, processes, software programs, schematics, designs, customer lists, financial information, sales and marketing plans and business information of Licensor, (ii) the Services and all information furnished by Licensor to Licensee in connection therewith in written, graphic or machine-readable form, and all confidential, non-public, information of Licensor to which Licensee has had access in connection with this Agreement and (iii) the identity of, and Licensor’s relationships with, all third parties disclosed in connection with Licensee’s access to the Services. As used herein, “Licensee Confidential Information” shall mean all confidential, non-public, information of Licensee to which Licensor has had access in connection with this Agreement. Licensor Confidential Information and Licensee Confidential Information shall hereinafter be referred to as “Confidential Information.” Each Party agrees to maintain the confidentiality of the other Party’s Confidential Information using procedures no less rigorous than is reasonable under the circumstances and using efforts the same as those used to protect and preserve the confidentiality of its own Confidential Information. No Party shall, directly or indirectly: (i) transfer or disclose any of the other Party’s Confidential Information to any third party, except as contemplated by the purpose(s) of the Services; or (ii) take any other action with respect to the other Party’s Confidential Information inconsistent with the confidential and proprietary nature of such information. The foregoing restrictions on disclosure and use shall survive for three (3) years following termination of this Agreement, but shall not apply with respect to any Confidential Information which: (a) is in the public domain at the time of disclosure; (b) was in the possession of or demonstrably known by either Party (as the recipient Party) prior to such Party's receipt from the other Party (as the disclosing Party) without breach by the recipient Party of any confidentiality obligation to the disclosing Party or any of its affiliates; (c) is independently developed by either Party without use of the other Party's Confidential Information; or (d) becomes known to either Party (as the recipient Party) from a source other than the other Party without breach by the recipient Party of any confidentiality obligation to the other Party or any of its affiliates. If the receiving Party is requested or required to disclose any of the other Party’s Confidential Information pursuant to a subpoena, court order or other similar process (each, a “Court Order”), it is agreed that -- unless prohibited from doing by a competent authority -- the receiving Party shall provide the disclosing Party with notice of such request(s) so that the disclosing Party may seek an appropriate protective order. In the event that the disclosing Party is not successful in obtaining a protective order and the receiving Party is compelled to disclose the Confidential Information in question, the receiving Party may disclose such information in accordance with and for the limited purpose of compliance with the Court Order, without liability hereunder.
This Agreement shall remain effective unless and until either Party provides the other Party with written notice of its intent not to renew this Agreement.
Either Party may terminate this Agreement in the event of a material breach of this Agreement that is not cured within 30 days of written notice of such breach; provided, that, in the event of a breach of the Confidentiality provision herein, either Party may immediately terminate this Agreement. Without limitation of the foregoing, Licensor may cease providing services and terminate this Agreement for business reasons at any time.
Information about a particular job is supplied by the Employer, and information related to Job Seekers is provided by the applicable individuals. In both cases, such information is not provided by Licensor. Assessments are provided without warranty. As such, Licensor does not offer validation and/or verification services. Licensor does not claim, represent or guarantee in any way that any Resume, Curriculum Vitae, CV, job application, Assessment report, or information contained in any of the foregoing will be accurate. Licensor will use reasonably utilize measures aimed at tracking the consistency of information provided and will provide feedback and reporting mechanisms integrated into its job matching algorithms.
Licensor provides information available through its Websites for informational purposes only. Licensees may use the content, information, data and materials from, and the products and services—if any-- available through the Websites solely for the uses expressly authorized in this Agreement. Before any Licensee acts on any such content, information, data or materials, the License should independently confirm any facts that are considered by the Licensee to be important to any decision. IF LICENSEE RELIES ON ANY INFORMATION, PRODUCT, OR SERVICE AVAILABLE THROUGH THIS WEBSITE, LICENSEE EXPRESSLY AGREES THAT LICENSEE DOES SO SOLELY AT ITS OWN RISK AND LICENSEE UNDERSTANDS THAT LICENSEE IS SOLELY RESPONSIBLE FOR ANY DAMAGE OR LOSS THAT OCCUR IN CONNECTION WITH USE OF ANY INFORMATION, PRODUCT OR SERVICE.
EXCEPT AS MAY OTHERWISE BE PROVIDED IN THIS AGREEMENT, THE SERVICES ARE PROVIDED ON AN “AS IS, AS AVAILABLE” BASIS WITHOUT WARRANTY OR REPRESENTATION OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, NON-INFRINGEMENT OR THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. LICENSOR DOES NOT WARRANT THAT THE SERVICES ARE ERROR-FREE OR THAT THE SERVICES WILL RUN UNINTERRUPTED, OR THAT ANY OF THE SERVICES’ ERRORS CAN BE CORRECTED.
Third Party Communication.
Licensor may provide a variety of services on the Websites through which Licensees can directly interact with others, such as email services, blogging services, chat rooms, communications tools, forums and other public posting areas (“Communications Services”). Licensor cannot and does not review every posting made in these Communications Services. Licensees may well read any given posting before anyone on Licensor’s staff does. Licensees can expect these Communications Services to include information and opinions from a variety of individuals and organizations other than Licensor. Licensor does not endorse or guarantee the accuracy of any posting, regardless of whether the posting comes from a user, from a celebrity or “expert” guest, or from a member of Licensor’s staff, and Licensor is not responsible or liable for, and does not assume any responsibility in respect of, the views and opinions expressed.
Licensee understands that there may be delays, omissions, interruptions, inaccuracies and/or other problems with the information, products and services available through, published on or promoted over the Website(s), including information, products and services referred to, advertised or promoted on or sold through the Website(s). Neither Licensor nor its owners, affiliates, licensors or licensees warrant that the Website(s) will operate, be available, or otherwise be uninterrupted or error free; nor does Licensor or any of the foregoing make any warranty as to the results that may be obtained from use of the Website(s) or as to the accuracy, reliability or completeness of content or any information, product or service provided or made available through the Website(s).
Without limiting the foregoing, and without affecting any other limitation of liability herein, Licensee agrees that the entire aggregate liability, if any, of Licensor and its owners, affiliates, licensors and licensees arising out of any kind of legal claim (whether in contract, tort or under any other legal theory) arising out of access to or use of, or inability to use, the Website(s) or any information, products or services available through the Website(s), or use of any content that a Licensee posts on the Website(s) or submits to Licensor, will not exceed one hundred fifty dollars ($150).
Because some states/jurisdictions may not allow the exclusion or limitation of liability for consequential or incidental damages, some of these limitations may not apply to you.
LIMITATIONS OF LIABILITY.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL LICENSOR OR ITS SUPPLIERS BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF LICENSEE’S USE OF OR INABILITY TO USE THE SERVICES, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, OR ANY AND ALL OTHER COMMERCIAL DAMAGES OR LOSSES, EVEN IF ADVISED OF THE POSSIBILITY THEREOF, AND REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED. IN ANY CASE, LICENSOR'S ENTIRE LIABILITY UNDER ANY PROVISION OF THIS AGREEMENT SHALL NOT EXCEED IN THE AGGREGATE THE SUM OF THE FEES, IF ANY, LICENSEE PAID FOR THIS LICENSE IN THE TWELVE MONTH PERIOD PRECEDING ANY SUCH CLAIM, WITH THE EXCEPTION OF DEATH OR PERSONAL INJURY CAUSED BY THE NEGLIGENCE OF LICENSOR, WITH THE EXCEPTION OF THE $150 LIABILITY DESCRIBED IN SECTION 13 ABOVE, AND WITH THE EXCEPTION OF WHEN (AND TO THE EXTENT THAT) APPLICABLE LAW PROHIBITS THE LIMITATION OF SUCH DAMAGES IN SUCH CASES. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS EXCLUSION AND LIMITATION MAY NOT BE APPLICABLE. LICENSOR IS NOT RESPONSIBLE FOR ANY LIABILITY ARISING OUT OF CONTENT PROVIDED BY LICENSEE OR A THIRD PARTY THAT IS ACCESSED THROUGH THE SERVICES AND/OR ANY MATERIAL LINKED THROUGH SUCH CONTENT. NOTWITHSTANDING THE LIMITATIONS OF LIABILITY AND DISCLAIMER OF DAMAGES INCLUDED HEREIN, SUCH LIMITATIONS AND DISCLAIMERS SHALL NOT APPLY TO EITHER PARTY'S WILLFUL MISCONDUCT OR ITS INTENTIONAL BREACH OF THIS AGREEMENT OR LICENSEE’S BREACH OF THE CONFIDENTIALITY, NON-ASSIGNMENT AND NON-SUBLICENSING PROVISIONS OF THIS AGREEMENT.
Limitation of Liability / Indemnity.
LICENSOR SHALL HAVE NO DUTY TO INDEMNIFY LICENSEE OR ANY OF ITS EMPLOYEES, OFFICERS, DIRECTORS, AGENTS, CONSULTANTS OR AFFILIATES FOR ANY CLAIM RELATED TO THE SERVICES (INCLUDING LICENSEE'S USE THEREOF). Licensee hereby releases and agrees to indemnify, defend and hold harmless Licensor and its owners, affiliates, licensors and licensees from and against any and all claims, costs, demands, losses, damages and expenses, including, without limitation, attorneys’ fees, arising from or relating to (i) breach of this Agreement by Licensee or any matter for which Licensee is responsible or liable under the terms of this Agreement, (ii) third party claims with respect to use of any content provided by Licensee or submitted to Licensor, including, but not limited to, infringement of copyright, trademark, trade secret, patent, proprietary rights or any other claims, or (iii) any dispute between Licensee and any third party, including, without limitation, any other user, any advertiser or any party to any actual, prospective or terminated sale or transaction. Licensees who are California residents hereby waive California Civil Code Section 1542, which says: “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.”
Notification of Claims of Infringement.
Licensor respects the rights of all copyright holders and in this regard has adopted and implemented a policy that provides for the removal of content from the Websites under certain circumstances. If you believe that your work has been copied in a way that constitutes copyright infringement, please provide Licensor’s Copyright Agent the following information required by the Digital Millennium Copyright Act, 17 U.S.C. 512:
A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site;
Identification of the material that is claimed to be infringing or to be the subject of infringing activity, and information reasonably sufficient to permit us to locate the material;
Information reasonably sufficient to permit us to contact the complaining party (e.g., address, telephone number and email address);
A statement that the complaining party has a good faith belief that use of the material is unauthorized; and
A statement that the information in the notification is accurate and, under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
For copyright inquiries, including notification of claims of infringement, please email us at firstname.lastname@example.org.
This Agreement, or any rights or obligations hereunder, may not be assigned, in whole or in part, by Licensee without Licensor's prior written consent. Any attempted assignment or transfer in violation of this Section shall be void. This Agreement shall otherwise be binding upon and shall inure to the benefit of, and be enforceable by, the parties and their successors and assigns. In the event of a Change of Control of Licensee during the term of this Agreement, Licensor shall have the right to terminate this Agreement. For purposes of this provision, “Change of Control” shall mean any one or more of the following events: (a) The purchase or other acquisition by any one person, or more than one person acting as a group, of stock or membership shares of Licensee that, together with stock or membership shares held by such person or group, constitutes more than 50% of the total combined value or total combined voting power of all classes of stock or membership shares issued by Licensee; provided, however, that if any one person or more than one person acting as a group is considered to own more than 50% of the total combined value or total combined voting power of such stock or membership shares, the acquisition of additional stock or membership shares by the same person or persons shall not be considered a Change of Control; or (b) Any one person, or more than one person acting as a group, acquires or has acquired during the twelve (12) month period ending on the date of the most recent acquisition by such person or persons, direct or indirect beneficial ownership (as defined in Rule 13d-3 under the Securities Exchange Act of 1934) of stock or membership shares of Licensee constituting more than 50% of the total combined voting power of all classes of stock or membership shares issued by Client.
RELATIONSHIP OF THE PARTIES.
Each Party shall be acting as an independent contractor in performing under this Agreement, and shall not be considered or deemed to be an agent, employee, joint venturer or partner of any other Party. No Party shall have, or shall represent that it has, any power, right or authority to bind any other Party to any obligation or liability, to assume or create any obligation or liability or transact any business in the name or on behalf of any other Party, or make any promises or representations on behalf of any other Party, unless agreed to in writing.
No Party shall be required to perform any obligation under this Agreement so long as such performance is delayed or prevented by computer, telecommunications or other system outages, or by force majeure events, including but not limited to acts of God, strikes, lockouts, material or labor restrictions by any government authority, civil riot, floods or any other cause not reasonably within the control of, or preventable wholly or in part, by the applicable Party.
NO THIRD-PARTY BENEFICIARIES.
This Agreement has been entered into for the sole benefit of Licensor and Licensee, and in no event shall any third party beneficiaries be created thereby.
The provisions of this Agreement are severable, and in the event that one or more provisions are deemed illegal or unenforceable, the remaining provisions shall remain in full force and effect.
Each party agrees that facsimile, telephone, electronic mail, and/or U.S. mail are appropriate methods of communication and that notices communicated through these methods will constitute sufficient notice for purposes of this Agreement.
CHOICE OF LAW.
This Agreement shall be interpreted in accordance with and governed by the laws of the State of New York without regard to its conflicts of laws provisions. All Parties consent to the exclusive jurisdiction and venue of state and federal courts located in the New York, New York, U.S.A., for all disputes arising out of or relating to this Agreement, use of the Services or the information, products or services available in connection with this Agreement, and use of any material posted by any Party on Licensor’s websites or submitted to Licensor. All Parties agree that any and all causes of action arising out of or relating to this Agreement shall be resolved individually, without resort to any form of class action.
This Agreement may be signed in two counterparts, each of which shall be deemed to be an original, but all of which together shall form a single agreement.
AUTHORITY AND ACCEPTANCE.
Each of the undersigned Parties warrants that they have the full authority to sign and execute this Agreement.
These terms and conditions embody the entire agreement and understanding of the parties, and merge all prior discussions between them, as related to the Services. Failure to enforce at any time any of the provisions of this Agreement shall in no way be construed to be a waiver of such provisions, or to affect the validity of this Agreement.