Terms and Conditions and use of Fannewscast.com (an offering from ITAgility, LLC)

 

This Software-as-a-Service License Agreement (the "Agreement") is between IT Agility LLC and the companies using our platform Software as a Service offering ("Customer"), and is effective as of use of the offering on the customer’s sites (the "Effective Date"). Company and Customer shall be individually referred to herein as "Party" and collectively as "Parties". The Parties agree as follows:

1. Definitions

"Authorized User" means any employees, agents, independent contractors or consultants of Customer who are authorized or otherwise designated or permitted by Customer to access and use the Services pursuant to this Agreement.

"Confidential Information" means any information that is proprietary or confidential to the Discloser or that the Discloser is obligated to keep confidential (e.g., pursuant to a contractual or other obligation owing to a third party). Confidential Information may be of a technical, business or other nature (including, but not limited to, information which relates to the Discloser's technology, research, development, products, services, pricing of products and services, customers, employees, contractors, marketing plans, finances, contracts, legal affairs, or business affairs). However, Confidential Information does not include any information that: (a) was known to the Recipient prior to receiving the same from the Discloser in connection with this Agreement; (b) is independently developed by the Recipient; (c) is acquired by the Recipient from another source without restriction as to use or disclosure; or (d) is or becomes part of the public domain through no fault or action of the Recipient.

"Customer Data" means any data transmitted by Customer or Authorized Users to Company in relation to Customer's and Authorized Users' use of the Services.

"Customer Interface" means the web-based interface hosted by Company by which Customer and Authorized Users may access the Services.

"Discloser" means a party that discloses any of its Confidential Information to the other party.

"Enhancement" means any correction, modification, customization, revision, enhancement, improvement, update, upgrade, new release or other change that is released generally by Company for similarly situated customers of the Services. Company shall not be obligated to provide Customer any new features or functionality for which Company generally charges a separate fee.

"Intellectual Property Rights" means all rights of a person or business entity in, to, or arising out of: (i) any U.S., international or foreign patent or any application therefore and any and all reissues, divisions, continuations, renewals, extensions and continuations-in-part thereof; (ii) inventions (whether patentable or not in any country), invention disclosures, improvements, trade secrets, proprietary information, know-how, technology and technical data; (iii) copyrights, copyright registrations, mask works, mask works registrations, applications, moral rights, patents, trademarks, trade secrets, and rights of personality, privacy and likeness, whether arising by operation of law, contract, license or otherwise; and (iv) any other similar or equivalent proprietary rights anywhere in the world.

"Recipient" means a party that receives any Confidential Information of the other party.

"Service Performance Standards" means the specifications for the performance and availability of the Services, as set forth in the attached Exhibit A.

"Services" means the operation of the Software on Company's hosting servers or those of its hosting service provider(s) intended to enable Customer and Authorized Users to interact with the same via the worldwide web.

"Software" means the software application known as Company with the features set forth in the attached Exhibit A and any Enhancements thereto made available to Customer and Authorized Users from time to time.

"Term" means the period of time specified in Section 9.1.

"Unauthorized Use" means any use, reproduction, distribution, disposition, possession, disclosure or other activity, including, without limitation, any reselling involving any aspect of the Services or Company Technology that is not expressly authorized under this Agreement or otherwise in writing by Company.

"User Identification" means the unique user identification name and password issued or otherwise assigned to each Authorized User for access to and use of the Services through the Customer Interface.

"Company Technology" means any know-how, processes, methodologies, specifications, designs, inventions, functionality, graphics, techniques, methods, applications, computer programs, user manuals, online documentation, products or other technology and materials of any kind, or any Enhancement thereto, used by Company in connection with the performance of the Services or made available by Company to Customer, any Authorized User or any third party.

2. The Services

2.1 Services. Subject to the terms and conditions of this Agreement, Company will make the Services available to Customer and Authorized Users during the Term according to the Service Performance Standards. Company may delegate the performance of certain portions of the Services to third parties, provided Company remains responsible to Customer for the delivery of the Services. Company will host and maintain the Customer Interface, and provide Customer and Authorized access to the Customer Interface pursuant to password protected user accounts. Company reserves the right to periodically change issued passwords. Company will provide prompt notice to Customer of any such password changes. Company may in its sole discretion modify, enhance or otherwise change the Software and/or Customer Interface upon prior written notice to the Customer.

2.2 Restrictions on Use of Services. Customer agrees not to use or launch any automated system other than the established interface, including without limitation, "robots," "spiders," "offline readers," etc., that accesses the Services in a manner that sends more request messages to the Company servers than a human can reasonably produce in the same period of time by using a conventional on-line web browser. Customer agrees not to collect or harvest any personally identifiable information, including account names, from the Services nor to use the communication systems provided by the Services for any commercial solicitation purposes. Customer agrees not to use any portion of the Services as a destination linked from any unsolicited bulk messages or unsolicited commercial messages. In addition, Customer agrees not to engage in any of the following prohibited actions: (i) attempting to interfere with, compromise the system integrity or security or decipher any transmissions to or from the servers running the Services; (ii) taking any action that imposes, or may impose at Company's sole discretion an unreasonable or disproportionately large load on our infrastructure; (iii) uploading invalid data, viruses, worms, or other software agents through the Services; (iv) impersonating another person or otherwise misrepresenting Customer's affiliation with a person or entity, conducting fraud, hiding or attempting to hide your identity; (v) interfering with the proper working of the Services; or (vi) bypassing the measures that Company may use to prevent or restrict access to the Services.

2.3 Nonexclusivity. Customer acknowledges that the rights granted to it under this Agreement are nonexclusive, and that, without limiting the foregoing, nothing in this Agreement will be interpreted or construed to prohibit or in any way restrict Company's right to (a) license, sell or otherwise make available the Company Technology or Services to any third party; (b) perform any services for any third party; or (c) license, purchase or otherwise acquire any software, technology, products, materials or services from any third party.

2.4 Suspension of Services. In the event Customer violates any of the terms set forth in Section 2.2 of this Agreement, or fails to pay any amount under the Agreement when due, in addition to any other remedies available at law or in equity, Company will have the right, in its sole reasonable discretion, to immediately suspend Customer's and Authorized Users' use and access to the Services.

3. License; Restrictions on Use

3.1 License to Customer. Subject to the restrictions and limitations set forth in this Section 3 and elsewhere in this Agreement, Company hereby grants to Customer a nonexclusive, nontransferable, limited license, during the Term of this Agreement, to enable Authorized Users to access and use the Services through the Customer Interface subject and according to the terms of this Agreement solely for the Authorized Users' internal use in the regular course of Customer's business.

3.2 General Restrictions and Limitations. Section 3.1 sets forth the entirety of Customer's right to access and use the Services and to make the Services available to Authorized Users. The License does not include the right to, and Customer will not directly or indirectly, (a) enable any person or entity other than Authorized Users to access and use the Services or Company Technology; (b) modify or create any derivative work based upon the Services or Company Technology; (c) engage in, permit or suffer to continue any copying or distribution of the Services or Company Technology; (d) grant any sublicense or other rights to the Services or Company Technology; (e) reverse engineer, disassemble or decompile all or any portion of, or attempt to discover or recreate the source code for, any software that is part of the Services or Company Technology; (f) remove, obscure or alter any Intellectual Property Rights notice related to the Software, the Services or the Company Technology; or (g) engage in, permit or suffer to continue any Unauthorized Use by any person or entity within Customer's control. Customer will ensure, through proper instructions and enforcement actions, that all access to and use of the Services by Customer or Authorized Users', or otherwise through Customer's facilities, equipment, identifiers or passwords, will conform to this Agreement and will be made and used solely for proper and legal purposes, and will be conducted in a manner that does not violate any law or regulation, the rights of any third party or this Agreement.

3.3 License to Company. Subject to the terms and conditions of this Agreement, Customer hereby grants Company a worldwide, non-exclusive, royalty-free license during the Term to use, reproduce, electronically distribute, transmit, have transmitted, perform, display, store, archive, and make derivative works of the Customer Data in order to provide the Services. Company shall have no right to sub-license or resell the Customer Data or any component thereof.

3.4 Reservation of Rights. Company reserves all rights to the Services not otherwise expressly granted in this Section 3.

4. Access to the Services

4.1 Equipment, Services and Facilities. Customer is solely responsible for providing, installing and maintaining at its own expense all equipment, facilities and services necessary to enable Authorized Users' access and use the Services through the Customer Interface, including, without limitation, all computer hardware and software, modems, printers, telephone service and Internet access.

4.2 Password. Customer will issue a User Identification to enable each Authorized User to access and use the Services through the Customer Web Site. Customer is solely responsible for tracking the User Identifications to specific Authorized Users and for ensuring the security and confidentiality of all User Identifications. Customer acknowledges that it is fully responsible for all liabilities incurred through the use of any User Identification and that any transaction under a User Identification will be deemed to have been performed by Customer. Customer will immediately notify Company of any unauthorized use of any User Identification or any other breach of security known to it. Use of any User Identification other than as provided in this Agreement will be considered a breach of this Agreement by Customer.

4.3 Hours of Operation; Scope of Services. Company reserves the right at any time and without prior notice to Customer to change the Services' hours of operation or to limit Customer's and Authorized Users' access to and use of the Services in order to perform repairs, make modifications or as a result of circumstances beyond Company's reasonable control. Company may alter or modify all or part of the Services from time to time. Such alterations and modifications, or both, may include, without limitation, the addition or withdrawal of features, products, services, software or changes in instructions.

4.4 Security. Company has implemented commercially reasonable technical and organizational measures designed to secure Customer Data from accidental loss and from unauthorized access, use, alteration or disclosure. However, Company cannot guarantee that unauthorized third parties will never be able to defeat those measures or use Customer Data for improper purposes. Customer acknowledges that all Customer Data is provided at Customer's and Authorized Users' own risk.

5. Right to Monitor. Company will have the right to review and monitor all use of the Services to ensure compliance with all of the terms of this Agreement.

6. Compensation

6.1 Fees. Customer will pay to Company the fees set forth on the Fee Schedule. Company will invoice Customer for all fees due and payable, and Customer shall pay all amounts invoiced within thirty (30) days of the date of Company's invoice.

6.2 Interest. Any amount not paid when due will bear interest at the rate of one and one-half percent (1.5%) per month or the maximum rate permitted by applicable law, whichever is less, computed and compounded daily from the date due until the date paid. Further, in the event of any action by Company to collect any amount not paid when due, Customer will pay or reimburse Company's costs of collection (including, without limitation, any attorneys' fees and court costs).

6.3 Audit. For the purpose of confirming the accuracy of any payment under this Section 6, Company will have the right (at its own expense) to audit Customer's usage of the Services at Customer's premises. Company shall provide Customer with reasonable advance written notice prior to such audit and such audit shall be conducted during regular business hours in a manner that does not interfere with normal business activities of Customer. If an audit reveals a discrepancy of 5% percent or more during the audited period, then Customer shall, in addition to correcting the discrepancy and paying any late interest, also reimburse Company for all costs of the audit.

6.4 Taxes. All fees are net. Customer will pay or reimburse all taxes, duties and assessments, if any due, based on or measured by amounts payable to Company in any transaction between Customer and Company under this Agreement (excluding taxes based on Company's net income) together with any interest or penalties assessed thereon, or furnish Company with evidence acceptable to the taxing authority to sustain an exemption therefrom.

7. Ownership

7.1 Customer Data. Subject only to the limited license expressly granted hereunder, as between Customer and Company, Customer shall retain all right, title and interest in and to the Customer Data and all Intellectual Property Rights therein. Nothing in this Agreement will confer on Company any right of ownership or interest in the Customer Data or the Intellectual Property rights therein. Customer is solely responsible for the Customer Data that Authorized Users upload, publish, display, link to or otherwise make available (hereinafter, “post”) on the Service, and Customer agrees that Company is only acting as a passive conduit for the online distribution and publication of the Customer Data. Company will not review, share, distribute, or reference any such Customer Data except as provided herein or as may be required by law. Customer agrees to take commercially reasonable steps to ensure that Authorized Users do not post Customer Data that: (i) may create a risk of harm, loss, physical or mental injury, emotional distress, death, disability, disfigurement, or physical or mental illness to you, to any other person, or to any animal; (ii) may create a risk of any other loss or damage to any person or property; (iii) may constitute or contribute to a crime or tort; (iv) contains any information or content that is unlawful, harmful, abusive, racially or ethnically offensive, defamatory, infringing, invasive of personal privacy or publicity rights, harassing, humiliating to other people (publicly or otherwise), libelous, threatening, or otherwise objectionable; (v) contains any information or content that is illegal; (vi) contains any information or content that you do not have a right to make available under any law or under contractual or fiduciary relationships; or (vii) contains any information or content that Customer knows is not correct and current. Customer represents that the Customer Data does not and will not violate third-party rights of any kind, including without limitation any Intellectual Property Rights, rights of publicity and privacy. Company takes no responsibility and assumes no liability for any Customer Data that Authorized Users or other third parties post or send over the Services. Customer understands and agrees that any loss or damage of any kind that occurs as a result of the use of any Customer Data that Customer sends, uploads, downloads, streams, posts, transmits, displays or otherwise makes available or accesses through Customer's or Authorized Users' use of the Services, is solely Customer's responsibility. Company is not responsible for any public display or misuse of Customer Data, except in the case of gross negligence or intentional misconduct by Company or its employees.

7.2 Company Technology. The Services, the Software and the Company Technology constitute or otherwise involve valuable Intellectual Property Rights of Company. Customer acknowledges that it obtains only license rights under this Agreement. No title to or ownership of the Services, the Software or the Company Technology, or any Intellectual Property Rights associated therewith is transferred to Customer, any Authorized User or any third party under this Agreement. Customer may choose to or Company may invite Customer and/or Authorized Users to submit comments or ideas about the Services, including without limitation about how to improve the Services or Company products (“Ideas”). By submitting any Ideas, Customer and Authorized Users agree that such disclosure is gratuitous, unsolicited and without restriction and will not place Company under any fiduciary or other obligation, that Company is free to disclose the Ideas on a non-confidential basis to anyone or otherwise use the Ideas without any additional compensation to Customer. Customer acknowledges that, by acceptance of Customer's or an Authorized User's submission, Company does not waive any rights to use similar or related ideas previously known to Company, or developed by its employees, or obtained from sources other than Customer.

7.3 Protection of Intellectual Property Rights. Customer will not infringe or violate, and will take appropriate steps and precautions for the protection of Company's Intellectual Property Rights. Without limiting the generality of the foregoing, Customer will (a) maintain access and use restrictions sufficient to prevent any Unauthorized Use; (b) not make the Services, the Software or the Company Technology available to any third party without the prior written consent of Company; and (c) otherwise use its best efforts to prevent any Unauthorized Use. Customer will immediately notify Company of any Unauthorized Use that comes to its attention and cooperate with Company to investigate and prevent the same. In the event of any Unauthorized Use relating to Customer's activities, any Authorized User or any of Customer's representatives, Customer will take all steps reasonably necessary to terminate such Unauthorized Use.

8. Confidential Information

Each party reserves any and all right, title and interest (including, without limitation, any Proprietary Rights) that it may have in or to any Confidential Information that it may disclose to the other party under this Agreement. The Recipient will protect Confidential Information of the Discloser against any unauthorized use or disclosure to the same extent that the Recipient protects its own Confidential Information of a similar nature against unauthorized use or disclosure, but in no event will use less than a reasonable standard of care to protect such Confidential Information; provided that the Confidential Information of the Discloser is conspicuously marked or otherwise identified as confidential or proprietary upon receipt by the Recipient or the Recipient otherwise knows or has reason to know that the same is Confidential Information of the Discloser. The Recipient will use any Confidential Information of the Discloser solely for the purposes for which it is provided by the Discloser. This paragraph will not be interpreted or construed to prohibit: (a) any use or disclosure which is necessary or appropriate in connection with the Recipient's performance of its obligations or exercise of its rights under this Agreement or any other agreement between the parties; (b) any use or disclosure required by applicable law (e.g., pursuant to applicable securities laws or legal process), provided that the Recipient uses reasonable efforts to give the Discloser reasonable advance notice thereof (e.g., so as to afford the Discloser an opportunity to intervene and seek an order or other appropriate relief for the protection of its Confidential Information from any unauthorized use or disclosure); or (c) any use or disclosure made with the consent of the Discloser. In the event of any breach or threatened breach by the Recipient of its obligations under this paragraph, the Discloser will be entitled to injunctive and other equitable relief to enforce such obligations.

9. Term and Termination.

9.1 Term. The Term of this Agreement will commence as of the Effective Date of this Agreement and will end upon the earlier of (a) the expiration of 60 months thereafter; or (b) termination in accordance with Sections 9.2 or 9.3 below.

9.2 Termination by Company. This Agreement may be terminated by Company: (i) if Customer defaults in the timely payment of any amounts due Company and fails to cure within ten (15) days of receipt of written notice; (ii) immediately if Customer breaches any provisions of Section 2; (iii) in the event of a material breach by Customer of any other provision of this Agreement and Customer fails to correct such breach within thirty (30) days of written notice; or (iv) upon the insolvency, bankruptcy, reorganization, or assignment for the benefit of creditors of Customer.

9.3 Termination by Customer. This Agreement may be terminated by Customer for any reason upon thirty (30) days written notice to Company. Email notification shall suffice as written notification to the company.

9.4 Effect of Termination. If the Term is terminated pursuant to and in accordance with this Section 9, then, unless otherwise specifically provided for in writing by the parties, the following will apply: (a) the license rights granted to Customer with respect to the Services, the Software and the Company Technology will terminate effective as of the effective date of the termination; (b) Customer will return to Company any and all Confidential Information of Company in the possession or control of Customer; (c) Company will return to Customer any and all Confidential Information of Customer in its possession or control; (d) unless otherwise agreed upon by the parties, Company will have no obligation to provide the Services to Customer or Authorized Users after the effective date of the termination; and (e) Customer will pay to Company any amounts payable for Customer's and Authorized User's use of the Services through the effective date of the termination.

10. Disclaimer of Warranties.

THE SERVICES, THE SOFTWARE, THE COMPANY TECHNOLOGY AND ALL OTHER ITEMS PROVIDED THEREIN ARE PROVIDED ON AN "AS IS" BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. USE OF THE SERVICES IS AT CUSTOMER'S SOLE RISK. COMPANY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, ARISING BY LAW OR OTHERWISE, WITH RESPECT TO ANY ERROR, DEFECT, DEFICIENCY, INFRINGEMENT OR NONCOMPLIANCE IN THE SERVICES, THE SOFTWARE, THE COMPANY TECHNOLOGY OR ANY OTHER ITEMS PROVIDED BY, THROUGH OR ON BEHALF OF COMPANY UNDER THIS AGREEMENT (INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT AND ANY IMPLIED WARRANTY ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE).

WITHOUT LIMITING THE FOREGOING, COMPANY, ITS SUBSIDIARIES, AND ITS LICENSORS DO NOT WARRANT THAT THE CONTENT IS ACCURATE, RELIABLE OR CORRECT; THAT THE SERVICES WILL MEET CUSTOMER'S REQUIREMENTS; THAT THE SERVICES WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION, UNINTERRUPTED OR SECURE; THAT ANY DEFECTS OR ERRORS WILL BE CORRECTED; OR THAT THE SERVICES ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. ANY CONTENT DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICES IS DOWNLOADED AT CUSTOMER'S OWN RISK AND CUSTOMER WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO ITS COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM SUCH DOWNLOAD.

COMPANY DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE SERVICES OR ANY HYPERLINKED WEBSITE OR SERVICE, OR FEATURED IN ANY BANNER OR OTHER ADVERTISING, AND COMPANY WILL NOT BE A PARTY TO OR IN ANY WAY MONITOR ANY TRANSACTION BETWEEN CUSTOMER AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES.

11. Indemnification

11.1 Indemnity by Customer. Customer agrees to defend, indemnify and hold harmless Company and its subsidiaries, agents, managers, and other affiliated companies, and their employees, contractors, agents, officers and directors, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney's fees) arising from: (i) Customer's and Authorized Users' use of and access to the Service, including any data or work transmitted or received by Customer or Authorized Users; (ii) Customer's or an Authorized User's violation of any term of this Agreement; (iii) Customer's or an Authorized User's violation of any third-party right, including without limitation any right of privacy, publicity rights or Intellectual Property Rights; (iv) Customer's or an Authorized User's violation of any law, rule or regulation of the United States or any other country; (v) any claim or damages that arise as a result of any of your User Content or any that are submitted via user accounts; or (vi) any other party’s access and use of the Service with your unique username, password or other appropriate security code.

11.2 Intellectual Property Rights Indemnity. If the Software becomes the subject of a claim of infringement of a U.S. copyright or misappropriation of a trade secret, Company will indemnify Customer against such claim provided that Customer gives Company prompt written notice of the claim, allows Company to direct the defense and settlement of the claim, and cooperates with Company as necessary for defense and settlement of the claim. If the Software becomes, or, in Company's opinion is likely to become, the subject of such a claim, Company shall have the right to obtain for Customer the right to continue using the Software, replace or modify the Software so that it becomes non-infringing, or terminate the license granted hereunder to such Software with refund to Customer of the license fee paid for such Software (less a reasonable charge for the period during which Customer has had available to it the use of such Software). Company will have no liability for any infringement claim to the extent it (i) is based on modification of a Software other than by Company; (ii) results from failure of Customer to use an updated version of a Software; (iii) is based on the combination or use of a Software with any other software, program or device not provided by Company if such infringement would not have arisen but for such use or combination; (iv) results from compliance by Company with designs, plans or specifications furnished by Customer; or (v) results from Customer's operation of the Software in a manner that is inconsistent with its intended use. THE FOREGOING STATES COMPANY'S ENTIRE LIABILITY AND CUSTOMER'S EXCLUSIVE REMEDIES FOR INTELLECTUAL PROPERTY RIGHTS INFRINGEMENT.

12. Limitations of Liability

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL COMPANY, ITS AFFILIATES, DIRECTORS, EMPLOYEES OR ITS LICENSORS BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES, THAT RESULT FROM THE USE OF, OR INABILITY TO USE, THIS SERVICE. UNDER NO CIRCUMSTANCES WILL COMPANY BE RESPONSIBLE FOR ANY DAMAGE, LOSS OR INJURY RESULTING FROM HACKING, TAMPERING OR OTHER UNAUTHORIZED ACCESS OR USE OF THE SERVICE OR YOUR ACCOUNT OR THE INFORMATION CONTAINED THEREIN.

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, COMPANY ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT; (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM CUSTOMER'S OR AUTHORIZED USERS' ACCESS TO AND USE OF THE SERVICES; (III) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SERVICE; (IV) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE THROUGH THE SERVICE; AND/OR (V) USER CONTENT OR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY. IN NO EVENT SHALL COMPANY, ITS AFFILIATES, DIRECTORS, EMPLOYEES, OR LICENSORS BE LIABLE TO YOU FOR ANY CLAIMS, PROCEEDINGS, LIABILITIES, OBLIGATIONS, DAMAGES, LOSSES OR COSTS IN AN AMOUNT EXCEEDING THE AMOUNT CUSTOMER PAID TO COMPANY HEREUNDER.

THIS LIMITATION OF LIABILITY SECTION APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER BASIS, EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.

13. Miscellaneous

13.1 Assignment. Customer may not delegate, assign or transfer this Agreement or any of its rights and obligations under this Agreement and any attempt to do so shall be void. Without limiting the foregoing, in the event of a sale of substantially all the assets of Customer or a merger, re-organization, or change in control of fifty percent (50%) or more of the equity of Customer, no transfer or assignment (including, without limitation, an assignment by operation of law) of this Agreement may be made without the prior written consent of Company.

13.2 Notices. Notices to the parties shall be in writing and shall be sent to the addresses first stated above, Attention: Legal, or such new address as a party specifies to the other in writing.

13.3 Applicable Law; Venue. This Agreement will be interpreted, construed and enforced in all respects in accordance with the laws of the State of California, without reference to its choice of law principles. Customer hereby consents to the exclusive jurisdiction and venue of the state and federal courts located in Los Angeles County, California with respect to any claim arising under or by reason of this Agreement.

13.4 Entire Agreement. This Agreement is the complete and exclusive statement of the agreement between the parties and supersedes all proposals, oral or written, and all other communications between the parties relating to the subject matter of this Agreement. Any terms and conditions of any purchase order or other instrument issued by Customer in connection with this Agreement which are in addition to, inconsistent with or different from the terms and conditions of this Agreement shall be of no force or effect. This Agreement may be modified only by a written instrument duly executed by authorized representatives of the parties. Any waiver by either party of any condition, term or provision of this Agreement shall not be construed as a waiver of any other condition, term or provision. If any provision of this Agreement is held invalid or unenforceable, the remainder of the Agreement shall continue in full force and effect.

14.5 Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed to be an original and each of which together shall constitute a single instrument.


 


 

EXHIBIT A: DESCRIPTION OF SOFTWARE SERVICE

 

 

Our technology utilizes human intelligence to identify relevant content sources and provides proprietary symantic web technology to search and find the latest relevant content. We offer links to several articles across a variety of sources so that you may click on the headline that interests you and you'll go directly to the site which published that story.

 

This Service is provided via an Application Programming Interface (API) to provide content to the customer intranet, internet or Facebook sites. The Service is designed to help you find information that resides on sites not owned or controlled by Company. The Service provides brief descriptions of news stories to help you identify the stories of interest to you. When you select a story, you will be linked to the news site on which that story appears. Company (IT Agility) owns and retains all intellectual property rights to the Service; but Company does not claim ownership rights to the full news stories, which are instead held by the sites to which the Service links.  IT Agility reserves the right to discontinue the Service or to change the content of the Service in any way and at any time, with or without notice to you, without liability.

You may only display the content of the Service for your own customer use and may not otherwise copy, reproduce, alter, modify, create derivative works. For example, you may not use the Service to sell a product or service; take the results from the Service and use any robot, spider, other device or manual process to create a similar product or service offering. If you are uncertain whether your intended use of the Service is permissible, please contact us.

 

Service Availability

Our goal is to ensure the Service is available 24 hours a day, 7 days a week, 365 days a year. To support that goal, we provide the following:

·         98% system availability commitment for the platform

·         Availability subscription credit of 10% for each percentage point below the availability target, up to 50% of the annual subscription fees.

·         We are not responsible for Facebook down time caused by the Facebook platform.

 

Support Response Time

If you contact our company for a support issue, we will provide:

·         Acknowledgement within 8 hours of your customer support request

·         Resolution or update within 24 hours of your request

·        Ongoing updates as needed