IMPORTANT – THIS IS A LEGAL AGREEMENT
WARNING: IN THE EVENT YOU ACCEPT THIS AGREEMENT IN ERROR, YOU ARE STRICTLY PROHIBITED FROM USING THE PRODUCT. USE OF THE PRODUCT BY YOU OR YOUR AGENT SIGNIFIES YOUR AGREEMENT TO BE BOUND BY THE TERMS OF THIS AGREEMENT.
- Product Terms
- Description. The Product is proprietary to Company and its licensors and is protected by intellectual property laws. User’s use and/or access to the Product is licensed and not sold. Company (for itself or its licensors) hereby reserves all rights not expressly granted to User, including, without limitation, the right to alter, modify, update, enhance, improve or create derivative or collective works incorporating the Product.
- License. Company grants User a limited, personal, nonexclusive, worldwide, revocable, nontransferable right to access and use the Product in its original, unmodified form as delivered by Company only and solely for internal purposes related to your business (and not for service bureau, re-use, re-sale, re-distribution, time-sharing or similar services) in accordance with the terms of this Agreement and all applicable laws, rules, and regulations. User is not permitted to use the Product on behalf of, or for, third parties without the written consent of Company. As between User and Company, User acknowledges that all ownership of the Product belongs to Company and its licensors. User shall not exceed the scope of User’s license to use the Product, and User shall not provide User’s Account Information (as defined below) to another User for any reason, including, without limitation, in order for such other User to access any features of the Product. Modification, reverse engineering, reverse compiling, discovery of the source code, and/or disassembly of the Product are expressly prohibited.
- Accessibility of the Product. If any portion of the Product is web-based or accessed electronically, user understands and agrees that from time-to-time that such Product and/or certain features or functionality of such Product may be inaccessible or inoperable for any reason, including, without limitation: (i) equipment or software malfunctions; (ii) periodic maintenance procedures or repairs which Company may undertake from time to time; or (iii) causes beyond the control of Company or which are not foreseeable by Company. User acknowledges that access to and/or features and functionality of the Product are provided over various facilities and communications lines, and that information will be transmitted over local exchange and Internet backbone carrier lines and through routers, switches and other devices (collectively, “carrier lines”) owned, maintained and serviced by third-party carriers, utilities, phone lines, and/or Internet service providers, all of whom are beyond Company’s control. Use of the carrier lines to access and use the Product and transmit information is solely at User’s risk and is subject to all local, state, federal and international laws.
- Equipment. User shall be solely responsible for providing, maintaining and ensuring the compatibility of all hardware, software, electrical and other physical requirements necessary for User’s access and use of the Product, including, without limitation, appropriate computer programs, telecommunications and Internet access connections and links, web browsers or other equipment, and programs and services required to access and use the Product.
- Fee & Taxes. As consideration for the license granted pursuant herein and for use of the Product, you agree to pay Company the license, which amount is non-refundable. All amounts due under this Agreement, unless otherwise stated, do not include any applicable value added tax or other taxes, which shall be added to the amount due to the Company. You shall be responsible for payment of all federal, state or local import, usage, value added, withholding or other taxes or duties associated with the supply or use of the Product or which may be levied or based on your use of the Product. If Company is required to pay any such taxes of fees, you agree to promptly reimburse Company for any such taxes or duties paid by Company.
- Account Information and Security. In order to access and use the Product, User may be required to register with Company and select a username and password or otherwise activate the Product for use (collectively, User’s “Account Information”). This Account Information shall be used only by User, and User may not share or otherwise disclose User’s Account Information to any other party. User shall be responsible for the security, confidentiality and integrity of all information that User receives, transmits through or stores using or through the Product. User shall be responsible for the security, confidentiality and integrity of User’s Account Information and for any authorized or unauthorized access and use of User’s account by any person. User has the affirmative responsibility to monitor and control access to User’s Account Information. If at any time User learns or suspects that User’s Account Information has been disclosed or otherwise made known to any person other than User, User agrees to immediately notify Company. As part of this registration process, User may be required to disclose User’s email address, name, phone number and physical address to Company and, if so, User is required to keep such information current.
- Monitoring. Company reserves the right, but has no affirmative obligation, to monitor User accounts to (i) operate each Product properly; (ii) administer and manage Company’s business; (iii) provide all Users with the highest quality products and services; (iv) verify compliance with laws or this Agreement; (v) protect Company and its users; and/or (vi) satisfy any law, regulation or other government request. User agrees that Company may collect and use technical and related information regarding User’s system and use of the Product, including, without limitation, technical information about User’s computer, system and application software, and peripherals, that is gathered periodically to facilitate the provision of updates, upgrades, support and other services (if any) related to the Product, to verify compliance with this Agreement, and to improve the Product and related services.
- Circumvention. User agrees not to access the Product or any other aspect of or information contained on the Product or any of the Company’s systems through any technology or means other than through User’s account using User’s Account Information. User agrees not to use or launch any automated system into the Product, including, without limitation, “robots”, “spiders”, “penetrating devices”, “offline readers,” “viruses”, “Trojan Horses”, “worms”, “disabling”, “lock out”, or any other malicious code or system, as such terms are understood in the computer industry. User agrees not to collect or harvest any personally identifiable information, including Account Information, from the Product or Company, nor to use the communications systems provided by the Product for any commercial solicitation.
- Intellectual Property
- Product. The Company Intellectual Property Rights (as defined below) are the valuable, confidential property of Company and its licensors. United States and international intellectual property laws protect such Company Intellectual Property Rights. User may use the Product as permitted herein and may not otherwise modify, adapt, translate, or create derivative or collective works based on the Product without the prior written consent of Company. As between the parties, Company owns all right, title, and interest in and to the Product, including, without limitation, all ancillary and interface software, all current and future enhancements, revisions, new releases and updates thereof and any derivative or collective works based thereon and all documentation thereto, all copyrights, trademarks, trade secrets, patents and goodwill therein, and all images, photographs, illustrations, graphics, audio and video created by or for Company therein (collectively, the “Company Intellectual Property Rights”).
- Copyright Violations. It is the policy of Company to terminate access and/or account of any User who infringes the copyrights or intellectual property rights of others and to expeditiously remove or disable access to the alleged infringing material or content, if Company is given proper notice of the infringement or infringing conduct by the copyright owner. If User believe any materials or content available on or through the Product infringe User’s copyright, User may request removal of those materials from the Product by contacting Company’s designated copyright agent (identified below) and providing the following information:
- Identification of the copyrighted work that User believes to be infringed. Please describe the work and where possible include a copy or the location (e.g., URL) of an authorized version;
- Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit Company to locate the material;
- User’s name, address, telephone number and (if available) e-mail address.
- A statement that User has a good faith belief that the use of the materials User notifies Company about is not authorized by the copyright owner, its agent or the law.
- A statement that the information that User has supplied is accurate and that “under penalty of perjury” User is the copyright owner or is authorized to act on the copyright owner’s behalf.
- A signature or the electronic equivalent from the copyright holder or authorized representative.
Copyright Notices should be submitted to:
100 Connell Drive, 2nd Floor
Berkeley Heights, NJ 07922
United States of America
- Trademarks. Any logo and any other trademarks owned or controlled by Company, whether or not included in the Product and any logos relating to the foregoing are trademarks or service marks of Company and its licensors (collectively, the “Company Trademarks”). All other trademarks, service marks and logos used in the Product are the trademarks, service marks or logos of their respective owners.
- Use of Intellectual Property. Except as otherwise expressly permitted by Company, User may not copy, reproduce, reform, republish, store, upload, post, transmit, analyze, adapt, reformat, print, distribute, commercially exploit or publicly display the Company Intellectual Property Rights, the Product, the Company Trademarks or the Confidential Information (as defined below) or any portion thereof in any manner whatsoever without the prior written consent of Company. User may not remove, reproduce, alter, use, display, modify, copy or obscure any copyrighted material, trademark, service mark, legal or other proprietary notices in or on any portions of the Company Intellectual Property Rights, the Product, the Company Trademarks, the Confidential Information or any portion thereof.
This Agreement, any other agreement between User and Company, and any other purchase terms set forth by Company at the time of purchase shall govern purchases of Product and/or use of the Product. Product types (including categories, sub-categories, and genres) and descriptions are provided for convenience, and Company does not guarantee their accuracy. Prices and availability of products are subject to change without notice. Errors will be corrected where discovered, and Company reserves the right to revoke any stated offer and to correct any errors, inaccuracies or omissions including after an order has been submitted and whether or not the order has been confirmed and your payment method accepted and charged.
- User Representations
This Agreement is effective upon User’s acceptance as set forth herein and shall continue in full force until terminated as set forth herein. This Agreement will terminate automatically without notice to User from Company if User fails to comply with any provision of this Agreement, and may be terminated by Company in its sole and absolute discretion. User may terminate this Agreement at the end of the then current term (where a term is applicable) and by terminating access to and removing the Product and notifying Company. Upon termination, User shall terminate use of the Product and destroy any copies of the Product in User’s possession. Except as expressly granted herein, User shall not be entitled to any refund on any portion of any fees or other charges paid in connection with this Agreement. Company reserves the right to discontinue or suspend any aspect of or access to the Product at any time. Company will terminate a User’s access to the Product if, under appropriate circumstances, such User is determined to be infringing another’s intellectual property or other rights.
- Disclaimer of Warranties
THE Product IS PROVIDED “AS IS,” “WHERE IS,” AND “AS AVAILABLE” WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED. USE OF THE Product IS AT USER’S SOLE RISK. Company DOES NOT WARRANT THAT USER’S USE OF THE Product WILL BE UNINTERRUPTED OR ERROR FREE, NOR DOES Company MAKE ANY WARRANTY AS TO THE ACCURACY OF ANY USER CONTENT OR AS TO ANY RESULTS THAT MAY BE OBTAINED BY USE OF THE Product WITH OR WITHOUT USER CONTENT. Company MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR APPLICATION, ARISING BY VIRTUE OF CUSTOM OF TRADE OR COURSE OF DEALING, TITLE, NON-INFRINGEMENT OR TIMELINESS, SUITABILITY, ACCURACY, OR FITNESS FOR A PARTICULAR PURPOSE IN RELATION TO THE Product OR USER CONTENT. USER IS SOLELY RESPONSIBLE FOR ANY AND ALL ACTS OR OMISSIONS TAKEN IN RELIANCE ON THE Product OR ANY INFORMATION OR USER CONTENT THEREIN, INCLUDING, WITHOUT LIMITATION, INACCURATE OR INCOMPLETE INFORMATION. ANY IMPLIED WARRANTIES THAT CANNOT BE DISCLAIMED ARE LIMITED TO THE SHORTEST PERIOD PERMITTED BY APPLICABLE LAW. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSIONS MAY NOT APPLY, AND OTHER LEGAL RIGHTS MAY BE GRANTED IN SUCH JURISDICTIONS.
THE COMPANY IS IN THE BUSINESS OF PROVIDING CONSULTING SERVICES AND IS NOT A LAW FIRM AND DOES NOT PROVIDE LEGAL ADVICE OR COUNSEL. THE SERVICES PROVIDED PURSUANT TO THIS AGREEMENT SHALL NOT BE CONSTRUED AS THE PROVISION OF LEGAL ADVICE OR COUNSEL AND COMPANY DISCLAIMS ALL LIABILITY WITH RESPECT TO ANY CLAIM OR ALLEGATIONS THAT THE SERVICES PROVIDED HEREUNDER ARE LEGAL IN NATURE. NO PART OF THE SERVICES SHALL BE DEEMED A LEGAL OPINION OR ACKNOWLEDGEMENT THAT CLIENT IS, OR AFTER ACCEPTANCE OF THE SERVICES WILL BE, IN COMPLIANCE WITH ANY OR ALL APPLICABLE LAW(S).
- Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER Company NOR ANY OF ITS LICENSORS, AFFILIATES OR SUBSIDIARIES SHALL BE LIABLE TO USER OR ANY OTHER PERSON FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES FOR ANY MATTER ARISING FROM OR RELATING TO THIS AGREEMENT, THE Product, THE USER CONTENT, OR THE INTERNET GENERALLY, INCLUDING, WITHOUT LIMITATION, USER’S USE OR INABILITY TO USE THE PRODUCT OR USER CONTENT, ANY CHANGES TO OR INACCESSIBILITY OF THE Product, ANY INACCURACY OR INCOMPLETENESS OF THE USER CONTENT OR INFORMATION CONTAINED IN THE Product, ANY DELAY, FAILURE, UNAUTHORIZED ACCESS TO OR ALTERATION OF ANY TRANSMISSION OR DATA, ANY MATERIAL DATA SENT OR RECEIVED OR NOT SENT OR RECEIVED, ANY TRANSACTION OR AGREEMENT ENTERED INTO THROUGH THE Product OR ANY DATA OR MATERIAL FROM A THIRD PERSON ACCESSED ON OR THROUGH THE Product, WHETHER SUCH LIABILITY IS ASSERTED ON THE BASIS OF CONTRACT, TORT, NEGLIGENCE OR OTHERWISE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER Company’S NOR ANY OF ITS AFFILIATES OR SUBSIDIARIES’ TOTAL LIABILITY FOR DIRECT DAMAGES SHALL EXCEED THE TOTAL FEES PAID, IF ANY, BY USER TO Company HEREUNDER. IF USER IS DISSATISFIED WITH THE Product, USER’S SOLE AND EXCLUSIVE REMEDY SHALL BE FOR USER TO DISCONTINUE USE OF THE Product AND TERMINATE THIS AGREEMENT IN ACCORDANCE WITH SECTION 8.
Company IS NOT PROVIDING LEGAL OR TAX ADVICE AND USE OF THE PRODUCT SHALL NOT BE DEEMED AS LEGAL OR TAX ADVICE. THE DISCLAIMER OF WARRANTIES AND THE LIMITATION OF LIABILITY AND REMEDY ARE A REFLECTION OF THE RISKS ASSUMED BY THE PARTIES IN ORDER FOR USER TO OBTAIN THE RIGHTS TO USE THE ProducT IN ACCORDANCE WITH THE TERMS OF THIS AgREEMENT. USER AGREES TO ASSUME THE RISK FOR: (i) ALL LIABILITIES DISCLAIMED BY Company CONTAINED HEREIN; AND (ii) ALL ALLEGED DAMAGES IN EXCESS OF THE AMOUNT, IF ANY, OF THE LIMITED REMEDY PROVIDED HEREUNDER.
USER SPECIFICALLY ACKNOWLEDGES AND AGREES THAT Company SHALL NOT BE LIABLE FOR USER CONTENT OR ANY RESULTS THAT ARE OBTAINED OR NOT OBTAINED THROUGH USE OF THE PRODUCT OR THE DEFAMATORY, OFFENSIVE OR ILLEGAL CONDUCT OF ANY THIRD PARTY AND THAT THE RISK OF HARM OR DAMAGE FROM THE FOREGOING IS BORNE SOLELY BY USER. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY, AND OTHER LEGAL RIGHTS MAY BE GRANTED IN SUCH JURISDICTIONS.
User agrees to indemnify, hold harmless and defend Company, any of its licensors, affiliates or subsidiaries and any members, officers, employees and agents of the foregoing, from and against any action, cause, claim, damage, debt, demand or liability, including reasonable costs and attorney’s fees, asserted by any person or entity, arising out of or relating to: (a) this Agreement or User’s violation of the terms and conditions thereof; (b) User’s use of the Product, including any data, User Content, communication or work transmitted or received by User; (c) any unacceptable use of the Product by User or through User’s account, including, without limitation, any statement, data or User Content posted, made, transmitted or republished by User which is prohibited as unacceptable under this Agreement; (d) gross negligence, fraud or any intentional or negligent act or omission of User; (e) User’s violation of any third party rights, including, without limitation, any intellectual property or privacy right; and (f) any claim that any User Content posted by User caused damage to a third party.
- Independent Contractors. The parties and their respective personnel are and shall be independent contractors and neither party by virtue of this Agreement shall have any right, power or authority to act or create any obligation, express or implied, on behalf of the other party.
- Amendment. No amendment or modification of this Agreement will be binding unless in writing and signed by Company. The terms of this Agreement will govern any upgrades to the Product provided by Company that replace or supplement the original Product, unless such upgrade is accompanied by a separate or substitute agreement in which case the terms of that agreement will govern.
- Assignment. User shall not assign any of its rights, duties or obligations under this Agreement without the prior written consent of Company, and any attempted assignment or delegation without such consent shall be void and of no effect.
- Waiver. No waiver of any term, provision or condition of this Agreement, whether by conduct or otherwise, in any one or more instances, shall be deemed to be, or shall constitute, a waiver of any other term, provision or condition hereof, whether or not similar, nor shall such waiver constitute a continuing waiver of any such term, provision or condition hereof. No waiver shall be binding unless executed in writing by the party making the waiver.
- Severability. If any provision of this Agreement is determined to be illegal or unenforceable, then such provision will be enforced to the maximum extent possible and the other provisions will remain fully effective and enforceable.
- Notice. Unless otherwise provided in this Agreement, all notices shall be in writing and shall be deemed to be delivered when sent by first-class mail, postage prepaid, or when sent by facsimile or e-mail to either party’s last known post office, facsimile or e-mail address, respectively. User hereby consents to notice by email. Unless otherwise provided in this Agreement, all notices shall be directed to the parties at the respective addresses given above or to such other address as either party may, from time to time, provide to the other party.
- Binding Arbitration. Any dispute, except for emergency injunctive relief, that the parties fail to resolve by shall be resolved by binding arbitration, which shall be conducted in the State of New York, County of New York. The arbitration shall be conducted in accordance with the Commercial Rules of the American Arbitration Association (“AAA”) which shall have jurisdiction over any dispute under this Agreement between User and Company, and shall be governed by the Federal Arbitration Act, 9 U.S. Code 1 et seq. Either party may commence arbitration by serving a written Demand for Arbitration on the other party. The parties shall attempt to agree on an arbitrator, but if the parties fail to reach such agreement within 20 days after the Demand for Arbitration is served, either party may request appointment of the arbitrator by the AAA of an arbitrator with relevant expertise. The person so appointed by AAA shall serve as the arbitrator for resolution of the dispute. If that person is disqualified for any reason, the AAA office shall appoint a substitute arbitrator. Each party shall bear its own costs and expense, including attorneys’ fees and expenses. Judgment on the arbitration award may be entered in any court having jurisdiction.
- Law. The validity, interpretation, and performance of this Agreement shall be controlled by and construed under the internal laws of the State of New York without regard to its choice of law principles. The state and/or federal courts located in the State of New York, County of New York shall have exclusive jurisdiction to hear any emergency equitable relief request filed by a party to this Agreement.
- JURY TRIAL WAIVER. TO THE FULLEST EXTENT PERMITTED BY LAW, EACH OF THE PARTIES HERETO WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THE AGREEMENT. EACH PARTY FURTHER WAIVES ANY RIGHT TO CONSOLIDATE ANY ACTION IN WHICH A JURY TRIAL HAS BEEN WAIVED WITH ANY OTHER ACTION IN WHICH A JURY TRIAL CANNOT BE OR HAS NOT BEEN WAIVED.
- Process. The parties irrevocably submit and consent, and irrevocably waive any and all objections which any party may now or hereafter have, to process being served in any such suit, action or proceeding referred to in the preceding subsection pursuant to the rules of the applicable court or arbitrator, including, without limitation, service by certified or registered mail, return receipt requested. No provision of this section shall affect the right of any party to serve process in any manner permitted by law or limit the right of any party to bring suits, actions or proceedings to enforce in any lawful manner a judgment issued by the state or federal courts located in or serving Chicago, Illinois, USA.
- No action arising under this Agreement may be brought by User more than one (1) year after the cause of action has accrued.
- Equitable Relief. The parties agree that breach of the provisions of this Agreement, including, without limitation, the unauthorized use or duplication of the Product, would cause irreparable harm and significant injury to Company which would be both difficult to ascertain and which would not be compensable by damages alone. As such, the parties agree that Company has the right to enforce the provisions of this Agreement by injunction (without necessity of posting bond), specific performance or other equitable relief without prejudice to any other rights and remedies Company may have for User’s breach of this Agreement.
- Attorney’s Fees. If any action in law or in equity or arbitration is necessary to enforce the terms of this Agreement, the prevailing party will be entitled to reasonable fees of attorneys, accountants, and other professionals, and costs and expenses in addition to any other relief to which such prevailing party may be entitled.
- Headings. The captions and headings of this Agreement are included for ease of reference only and will be disregarded in interpreting or construing this Agreement.
- Force Majeure. Neither party shall be responsible or liable for failure to fulfill its obligations under this Agreement (except for payment of any fees) due to any major unforeseeable event beyond the control of, and not caused by the fault or negligence of, such party or its agents, including, without limitation, an act of God, fire, earthquake, flood, explosion, action of the elements, war invasion, terrorism, insurrection, riot, mob violence, sabotage, inability to procure equipment, facilities, materials or supplies in the open market, failure of power, failure of transportation, failure of telecommunications systems or infrastructure, strike, lockout, action of labor unions, condemnation, requisition, law or order of government, civil or military authorities; provided that the party failing to perform in such event shall promptly resume or remedy, as the case may be, the performance of its obligations hereunder as soon as practicable.
- Survival. The terms and provisions of Sections 2-10, inclusive, shall survive any termination or expiration of this Agreement.
- Export Restrictions. Licensee agrees to comply with all S. and foreign export control laws and regulations, including but not limited to the U.S. Export Administration Act of 1979, as amended, and successor legislation, and the Export Administration Regulations passed by the Department of Commerce. Licensee expressly agrees that Licensee shall not export, directly or indirectly, re-export, divert, or transfer the Software or any direct product thereof to any destination, company or person restricted or prohibited by U.S. export controls.
- Entire Agreement. This Agreement, in conjunction with any other written agreement entered into between the parties, constitutes the complete and exclusive statement of the agreement between the parties with respect to the Product and supersedes any and all prior or contemporaneous communications, representations, statements and understandings, whether oral or written, between the parties concerning the Product.
USER HAS READ, CONSULTED WITH, UNDERSTOOD, AND ACKNOWLEDGED THE FOREGOING AGREEMENT AND AGREES TO BE BOUND BY ALL OF ITS TERMS AND CONDITIONS. USER HAS FULL AUTHORITY TO EXECUTE THIS AGREEMENT. PLEASE MANIFEST YOUR ASSENT TO THIS AGREEMENT BY CLICKING ON THE APPROPRIATE LINK BELOW.