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PRE-RELEASE WEB SERVICES AGREEMENT
THIS PRE-RELEASE WEB SERVICES AGREEMENT (the “Agreement”) is entered into by and between Jobu Productions, a corporation with its principal offices at 224 W. 35th St, Ste 804A (“Service Provider”), and the entity on whose behalf the authorized representative clicking “I Agree” for the use of the Service (“Client”). By clicking “I Agree” or similar execution button on this page, Client is entering into a legally binding contract with Service Provider under this Agreement. If Client does not want to be bound by this Agreement, do not click “I Agree” and do not use the Service. The person clicking “I Agree” represents that he or she is authorized to enter into this Agreement on behalf of Client.
CLIENT ACKNOWLEDGES AND UNDERSTANDS THAT THE SERVICE IS STILL IN ITS PRE-RELEASE PHASE AND THAT THE SERVICE DOES NOT HAVE ALL OF THE FEATURES AND FUNCTIONALITY AND MAY NOT PERFORM AT THE LEVEL OR OFFER THE LEVEL OF SECURITY THAT SERVICE PROVIDER’S SERVICE WILL BE OFFERED AFTER RELEASE.
In consideration of the mutual covenants and agreements set forth herein, and other good and valuable consideration, receipt of which is hereby acknowledged, the parties agree as follows:
- SCOPE OF AGREEMENT. Service Provider offers a service and tools that allow Client to integrate customized educational materials and experiences into Client’s platform, and Service Provider also offers certain ancillary applications, analytics, documentation, and services to Client, all as more particularly described at Dialectcoachescorner.com (the “Service”), and Service Provider desires to make such Service available to Client.
DESCRIPTION OF SERVICES.
- Service. Subject to the terms and conditions contained in this Agreement, Service Provider agrees to use commercially reasonable efforts to furnish the Service and associated support services to Client, if any, ordered by Client and as may be further described on an invoice or Order Form agreed to by the parties and incorporated herein.
- Availability of Service. Service Provider will provide the Service on Service Provider’s servers, and will use commercially reasonable efforts to make the Service available to Client twenty four hours a day, seven days per week, three hundred sixty five days per year, except for certain scheduled service and maintenance or in the event of emergency or events of force majeure. Notwithstanding the foregoing, Service Provider will not be responsible for any downtime or failure to meet such Service availability goals. Service Provider will make good faith efforts to perform service and maintenance to the Service outside peak usage hours. Client acknowledges that availability of the Service may be affected by: (i) telecommunication network activity or capacity; (ii) hardware failures; (iii) compatibility with third party communication equipment, Internet access software and/or browsers not in accordance with the Service requirements; and/or (iv) spikes in usage of the Service. Service Provider disclaims any and all responsibility for any service interruption in connection with such activity, capacity, failure and/or compatibility. Client is responsible for providing all equipment and telecommunication services necessary to access the Service. Client is further responsible for saving all Client Materials (defined below) provided to Service Provider or any data, materials or information produced from the Service to its own storage media.
- Modifications to Service. Service Provider reserves the right to change the Service (including the content, appearance, design, functionality and all other aspects thereof), access procedures, tools, documentation, format requirements, communications protocols and services offered at any time for any reason.
- Customer Service, Training, and Technical Support. Service Provider will provide Client with reasonable online customer support and maintenance for the Service. Service Provider does not guarantee that the support will be available or that Service Provider will make the Service work on Client’s system or resolve all problems in connection therewith.
- Right to Remove. Service Provider has the right in its sole discretion to remove or block any text, images, artwork, technology, API feeds, model structures, algorithms, and other content, data, information, materials and other items provided or made available to Service Provider or on or through the Service by Client (“Client Materials”) at any time where Service Provider believes in good faith that (a) such Client Materials violate applicable laws, regulations, orders, or is in violation of Service Provider’s applicable policies and procedures, including without limitation any acceptable use policies; (b) removal or blocking is necessary because of exigent circumstances or to protect the safety, security, reputation, or integrity of the Service, Service Provider, or any third party; or (c) it is necessary in order to respond to law enforcement or any other governmental authority.
- Passwords. Client acknowledges that use of the Service requires that it register with Service Provider. Client shall cause all employees or subcontractors of Client authorized to access the Service (“Users”) to create a separate account to have access to the Service (“Registered Users”). Client shall cause each Registered User to (a) provide true, accurate, current and complete information about the User prompted by the registration form (such information being the "Registration Data") and (b) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. Service Provider has the right to suspend or terminate any Registered User account and refuse any and all current or future use of the Service (or any portion thereof) to anyone that provides false or inaccurate data. Each Registered User is entirely responsible for the security and confidentiality of such User’s password and account. Client and each Registered User are entirely responsible for any and all activities that occur under that Registered User’s account. Client shall immediately notify Service Provider of any unauthorized use of a Registered User’s account or any other breach of security of which Client becomes aware.
- Accuracy and Review of Client Material. Client assumes sole responsibility for: (a) the Client Materials; (b) providing Service Provider with timely access to the Client Materials; and (c) ensuring that the Client Materials do not infringe or violate any right of any third party.
- DATA BACKUP. Service Provider will make commercially reasonable efforts to back up the Client Materials and any other Client data hosted by Service Provider on the Service. Service Provider, however, disclaims any and all responsibility for any loss of data, information or materials from the Service. Client acknowledges that data conversion, processing and manipulation may involve human and/or machine errors, omissions, delays, and losses, including inadvertent loss of data or damage to media, that may give rise to loss or damage to Client. To the extent within its control, Client is responsible for adopting reasonable measures to limit the impact of such problems, including backing up data, and adopting procedures to ensure the accuracy of input data; examining and confirming results prior to use; and adopting procedures to identify and correct errors and omissions, replace lost or damaged media, and reconstruct data. Client is also responsible for complying with all local, state, and federal laws pertaining to the use and disclosure of any data. In the event of termination or expiration of this Agreement or disconnection of the Service, Service Provider may delete or store, in its discretion, any files, programs, data or messages associated with Client’s account.
- Service Provider’s Grant of License. So long as Client complies with Service Provider’s acceptable use policy, if any, Service Provider grants Client a limited, royalty-free, non-exclusive, non-transferable (except pursuant to a transfer or assignment of all or substantially all of Client’s assets or stock) license to use, access, input data into, process data through and publicly display the Service solely for Client’s legitimate business purposes. Client (or a Registered User) may not use, copy, modify, rent, loan, lease, sublicense, create derivative works or distribute the Service for any other purposes or make the Service available to more than the number of Registered Users in Client’s subscription plan. Service Provider grants no rights other than explicitly granted herein, and Client shall not exceed the scope of its license described in Client’s subscription plan. All techniques, know-how, software, tools and methods or rights thereto owned by Service Provider at the time this Agreement is executed, developed during the course of the design, development, and provision of the Service, or which are employed by Service Provider in connection with the Service, shall be and remain the property of Service Provider. Client shall not decompile, disassemble, or reverse engineer the Service or any elements of the Service, or otherwise derive source or object code from the Service or any elements thereof. Client agrees not to access the Service by any means other than through the interfaces that are provided by Service Provider. Client shall not do any "mirroring" or "framing" of any part of the Service, or create Internet links to the Service which include log-in information, user names, passwords, and/or secure cookies. Client will not in any way express or imply that any opinions contained in Client’s electronic communications are endorsed by Service Provider. Client shall ensure that all access and use of the Service by Users is in accordance with the terms and conditions of this Agreement, including but not limited to those Registered Users that are contractors and agents. Any action or breach by any of such contractors, agents or Affiliates shall be deemed an action or breach by Client.
- Client's Grant of License. Client hereby grants to Service Provider a worldwide, non-exclusive, royalty-free, license to use, access, distribute, reproduce, publicly perform, publicly display, digitally perform, make, have made, store, maintain and import all Client Materials for the purposes of providing and operating the Service and producing or making available all analytics and reports therefrom. The license may also be exercised on behalf of Service Provider by third parties acting on Service Provider’s behalf (e.g., technology partners, service providers and independent contractors).
- Feedback. Client agrees to provide feedback commencing on the date of this Agreement, which feedback shall disclose: (1) which portions of the Service have been used, (2) all errors or difficulties discovered in sufficient detail to allow Service Provider to recreate the errors and difficulties itself ) (collectively “Feedback”). All Feedback shall be considered the intellectual property of Service Provider. Service Provider shall have a right to use or incorporate into the Service (and Client will have no intellectual property interest in) any Feedback and any other suggestions, ideas, enhancement requests, recommendations or other information provided by Client relating to the operation of the Service.
- OWNERSHIP. As between Service Provider and Client, Service Provider (or its licensors) is the sole and exclusive owner, and will retain all right, title and interest in and to the Service, including without limitation all of the software comprising any portion thereof and all related services, specifications, documentation, technical information, corrections, modifications, additions, improvements and enhancements to and all intellectual property rights in the foregoing. As between Service Provider and Client, the Client Materials and any projects, reports, or results completed by Client using the Service shall be and remain the sole and exclusive property of Client. As between Service Provider and Client, all aggregated data generated from Client’s use of the Service shall be the sole and exclusive property of Service Provider. Service Provider shall have the right to use, create derivative works of, and otherwise exploit all data analytics and anonymous, aggregate usage data derived from Client Materials for Service Provider’s internal and research and development purposes (“Research Data”).
- Fees. AFTER the Pre-Release Trial agreement period client will pay Service Provider the subscription fees specified on the Client Order Form, if any, provided, however, that if no such Order Form has been entered into by the parties Client will pay Service Provider the subscription fees at the rates set forth by Service type on the pricing page of the Service Provider website, if any (the “Fees”). Service Provider may modify the Fees upon any renewal of the Agreement. Service Provider will provide Client with notice of the current Fees at least 30 days prior to the renewal date. Client shall pay Service Provider the Fees in U.S. funds monthly in advance via credit card or other mutually agreed process. If Client fails to pay the Fees within 30 days of the due date, Client’s credit card is rejected, or Service Provider otherwise does not receive payment, Service Provider may impose a late fee, suspend the Service, or both, in its discretion.
- Taxes. Client shall pay or reimburse Service Provider for all sales, use, transfer, privilege, excise, and all other taxes and all duties, whether international, national, state or local, however designated, which are levied or imposed specifically by reason of the performance by Service Provider under this Agreement; excluding, however, taxes measured by Service Provider’s profits, its overall sales, employment and similar taxes incurred in connection with persons performing services for Service Provider, and property or other taxes measured in whole or in part by the value of Service Provider’s assets.
TERM AND TERMINATION.
- Term. The initial term of this Agreement shall be for the Pre-Release Trial testing or evaluation period only, such period to be determined by Service Provider in its sole discretion (“Term”).
- Suspension for Cause. Service Provider may suspend Client’s access to the Service upon written notice in the event that Client exceeds the license described in Section 5.1, Client fails to pay any amount when due, Client breaches Section 9, or where Service Provider reasonably believes such action is necessary to protect the security or integrity of the Service or any data thereon.
- Termination for Cause. Except as otherwise provided for herein, either party may terminate this Agreement (a) upon the material breach of the other party, provided that the breaching party shall have ten (10) days to cure such breach following written notice unless the breach by its nature takes longer than ten (10) days to cure in which case the breaching party shall not be in breach so long as the party begins to cure the breach within ten (10) days and diligently completes such cure; (b) upon the cessation of business by either party or the filing of a petition in bankruptcy (voluntary or involuntary) with respect to a party, which in the case of an involuntary petition the party shall have sixty (60) days in which to vacate such petition; or (c) upon the failure by Client to pay any amount due hereunder, provided that Client shall have five (5) business days to cure such monetary breach following written notice.
- Effect of Termination. Upon any termination of this Agreement, all rights and obligations of the parties under this Agreement will be extinguished, except that (a) the rights and obligations under Sections 5.3, 6, 8.4, 11, 12, 13, and 16 will survive the termination of the Agreement, and (b) Client shall pay all unpaid and outstanding fees through the effective date of termination or expiration of the Agreement.
- LAWFUL CONDUCT. Client shall comply with all applicable local, state, and federal laws and regulations, and, to the extent that Client establishes offices outside the United States, applicable foreign laws, treaties, regulations, and conventions in connection with its use of the Service, including without limitation those related to privacy, electronic communications and anti-spam legislation. The Service is not designed for the transfer or processing of credit card or other sensitive financial information and is not PCI compliant. If Client stores, accepts or processes credit cards, Client is responsible for ensuring that its use of the Service to store or process credit card data complies with applicable Payment Card Industry Data Security Standards (“PCI DSS”) requirements and shall store credit card and social security data only in the designated fields for such data. In addition to Client's other obligations set forth herein, Client specifically acknowledges and agrees that: (i) Service Provider is not acting on your behalf as a Business Associate or subcontractor (as such terms are used, defined, or described in the Health Insurance Portability and Accountability Act of 1996, as amended and supplemented (“HIPAA”)); (ii) the Service is not HIPAA-compliant; and (iii) Client may not use the Service in any manner that would require Service Provider or the Service to be HIPAA-compliant. Client shall comply with the export laws and regulations of the United States and other applicable jurisdictions in using the Service and obtain any permits, licenses and authorizations required for such compliance. Without limiting the foregoing, (i) Client represents that it is not named on any U.S. government list of persons or entities prohibited from receiving exports, (ii) Client shall not authorize Users to access or use the Service in violation of any U.S. export embargo, prohibition or restriction, and (iii) Client shall comply with all applicable laws regarding the transmission of technical data exported from the United States and the country in which its Users are located. Client will not knowingly send any electronic communication from the Service that is unlawful, harassing, libelous, defamatory or threatening; provided that Client has taken commercially reasonable measures to prevent all such occurrences..
- WARRANTIES. Each party represents and warrants to the other party that (i) such party has the full corporate right, power and authority to enter into this Agreement and to perform that acts required of it hereunder; (ii) the execution of this Agreement by such party, and the performance by such party of its obligations and duties hereunder, do not and will not violate any agreement to which such party is a party or by which such party is otherwise bound; and (iii) when executed and delivered by such party, this Agreement will constitute the legal, valid and binding obligation of such party, enforceable against such party in accordance with its terms.
- Client agrees to indemnify and hold harmless Service Provider (its affiliates, subsidiaries, shareholders, officers, directors, employees, contractors, agents and representatives) (together, the “Service Provider Indemnified Parties”) against any cost, claim, liability or expense any of the Service Provider Indemnified Parties incur as a result of or arising out of or related to: (i) Client’s breach of this Agreement or of Client’s warranties, covenants and representations made hereunder; (ii) Client’s willful, negligent, tortuous or criminal acts or omissions; (iii) any improper use of Client’s Registration Data; and (iv) Client’s violation of any third party rights. The applicable Service Provider Indemnified Party shall provide Client written notice of any claim for it seeks indemnification under this Section.
- All third party products and services provided by Service Provider under this Agreement, if any, should not be deemed or understood as a recommendation, endorsement, guarantee or warranty of the professional services of any providers who provide financial services, health care services, or other regulated services. Client will indemnify Service Provider against and hold it harmless from any and all claims, liabilities, damages, costs and expenses arising from the transfer or processing of credit card or other financial, health care, or other sensitive information through the Service, including, without limitation, attorneys’ fees, relating to or arising out of any claim by any third party that the Service or its use has resulted in personal injury, economic loss or any other damages to any person or property.
- Each party acknowledges and agrees that it (and its subcontractor(s), if any), in performing its obligations under this Agreement, shall have access to or be directly or indirectly exposed to each other’s Confidential Information. Each party shall hold confidential all Confidential Information and shall not disclose such Confidential Information to third parties nor use the other party’s Confidential Information for any purpose other than as necessary to perform under this Agreement. Each party shall use reasonable measures and reasonable efforts to provide protection for each other’s Confidential Information, including measures at least as strict as those each party uses to protect its own Confidential Information. Such measures shall include, without limitation, requiring employees and independent contractors to sign a non-disclosure agreement before obtaining access to the other party’s Confidential Information and such other measures as the party takes to protect its Confidential Information or trade secrets in the course of its business. “Confidential Information” means information in the possession or under the control of a party relating to the technical, marketing, product and/or business affairs or proprietary and trade secret information of that party in oral, graphic, written, electronic or machine readable form, Client Materials, source code and information pertaining to usage and design of the Service, and the terms and conditions of this Agreement.
- The foregoing restrictions on disclosure shall not apply to Confidential Information which is (a) already known by the recipient, (b) becomes, through no act or fault of the recipient, publicly known, (c) received by recipient from a third party without a restriction on disclosure or use, or (d) independently developed by recipient without reference to the other party’s Confidential Information.
- Because of the unique nature of each party’s proprietary materials, each party understands and agrees that the other party will suffer irreparable injury in the event that a party fails to comply with any of the terms of this Section 12, and that monetary damages may be inadequate to compensate for such breach. Accordingly, each party agrees that the other party will, in addition to any other remedies available to it at law or in equity, be entitled to seek injunctive relief, without posting a bond, to enforce the terms of this Agreement against any actual or threatened breach of this Section 12.
DISCLAIMERS OF WARRANTY; LIMITATION OF LIABILITY.
- CLIENT ACKNOWLEDGES THAT THE SERVICE IS BEING OFFERED IS STILL IN A PRE-RELEASE PHASE AND, THEREFORE, IS EXPERIMENTAL IN NATURE. THEREFORE, THE SERVICE IS MADE AVAILABLE BY SERVICE PROVIDER TO CLIENT “AS IS” AND “WITH ALL FAULTS, ERRORS, BUGS AND DEFECTS.” SERVICE PROVIDER MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, AS TO THE CONDITION, CHARACTER, NATURE, CAPABILITY, PERFORMANCE, SECURITY, AVAILABILITY, SUITABILITY, TITLE, SOURCE OR ANY OTHER CHARACTERISTIC OF THE SERVICE OR ANY PORTION THEREOF. SERVICE PROVIDER HEREBY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICE OR THIS AGREEMENT, INCLUDING: (A) ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT; (B) ANY IMPLIED WARRANTY ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE; OR (C) ANY WARRANTY THAT THE SERVICE WILL BE SECURE OR ERROR-FREE, WILL MEET CLIENT’S REQUIREMENTS, WILL CONTAIN ANY PARTICULAR FEATURES OR FUNCTIONALITY, WILL ALWAYS BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY OR SECURE, OR OPERATE WITHOUT ERROR.
- EXCEPT WITH RESPECT TO DAMAGES OR LIABILITY ARISING FROM (A) A PARTY’S INDEMNIFICATION OBLIGATIONS UNDER THIS AGREEMENT, (B) A PARTY’S BREACH OF ITS OBLIGATIONS WITH RESPECT TO CONFIDENTIAL INFORMATION, OR (C) GROSS NEGLIGENCE OR INTENTIONALLY WRONGFUL ACTS OR OMISSIONS, IN NO EVENT SHALL (I) EITHER PARTY BE LIABLE FOR CONSEQUENTIAL, INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY OR SPECIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE SERVICE, INCLUDING ANY LOSS OF REVENUE, PROFITS, OR DATA, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND (II) EITHER PARTY’S TOTAL AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT FOR ALL CLAIMS ACCRUING DURING THE TERM OF THIS AGREEMENT EXCEED THE GREATER OF $500.00.
- EACH PARTY RECOGNIZES AND AGREES THAT THE WARRANTY DISCLAIMERS AND LIABILITY AND REMEDY LIMITATIONS IN THIS AGREEMENT ARE MATERIAL, BARGAINED FOR BASES OF THIS AGREEMENT AND THAT THEY HAVE BEEN TAKEN INTO ACCOUNT AND REFLECTED IN DETERMINING THE CONSIDERATION TO BE GIVEN BY EACH PARTY UNDER THIS AGREEMENT AND IN THE DECISION BY EACH PARTY TO ENTER INTO THIS AGREEMENT.
- NOTICES. Unless otherwise specifically provided in this Agreement, every notice or other communications required or permitted under this Agreement shall be valid only if in writing and shall be delivered by e-mail, fax, personal delivery; by nationally recognized overnight courier service; or by certified or registered mail, return receipt requested, addressed to the names and addresses of each party set forth on the corresponding invoice or order form.
- GENERAL PROVISIONS. This Agreement shall be governed by and interpreted in accordance with the internal laws of the State of New York without regard to its conflict of laws provisions. The titles of the sections of this Agreement are for convenience only and shall not affect the interpretation or construction of any section. The language used in this Agreement shall be deemed to be the language chosen by the parties hereto to express their mutual agreement. Any rule of construction to the effect that ambiguities are to be resolved against the drafting party shall not be applied in the construction or interpretation of this Agreement. The words “include” and “including” and variations thereof are not terms of limitation, but rather shall be deemed to be followed by the words “without limitation.” This Agreement, including the corresponding order form or invoice and any other policies referenced herein, represents the entire agreement between the parties with respect to the subject matter hereof and all other negotiations, understandings and agreements relating thereto, whether written or oral, including but not limited to all requests for proposal, proposals, payments or other forms, are nullified and superseded hereby. 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 prohibited by or invalid under applicable law, such provision shall be ineffective only to the extent of such prohibition or invalidity, without invalidating the remainder of such provision or the remaining provisions of this Agreement. A waiver of any of the terms of this Agreement, or any breach or default hereunder, shall not be deemed or construed as a waiver of such terms for the future or any subsequent breach or default, whether or not of the same or similar nature. This Agreement may only be modified, amended or supplemented in a written document signed by authorized signatories of both parties subsequent to the date of execution of this Agreement. If any litigation is brought to enforce, or arises out of, the Agreement or any term, clause, or provision hereof, the prevailing party shall be awarded its reasonable attorneys’ fees together with expenses and costs incurred with such litigation, including necessary fees, costs, and expenses for services rendered, as well as subsequent to judgment in obtaining execution thereof. Either party may use the name of and identify the other party as a client or provider in advertising, publicity, or similar materials distributed or displayed to prospective clients. This Agreement (or any Addendum or Purchase Order) may be executed by facsimile and in counterparts, which together will constitute one and the same instrument.