Partner eSpok

Licensee's agreement

Last Revised 12-Dec-2008


IT IS AGREED AS FOLLOWS:

  1. INTERPRETATION
    1. In this Agreement unless the context otherwise requires:

        2. "Licensor" means eSpok, LLC, a Florida limited liability company.

        "Licensee" means you. You represent that you are fully able and competent to enter into the terms, conditions, obligations, representations and warranties set forth in this Agreement. If you are using or creating a Licensee Network on the Licensor Platform as a representative of a company or legal entity, (i) you represent that you have the authority to enter into this Agreement on behalf of that company or entity, and (ii) you agree that the term "Licensee" in this Agreement refers to your company or legal entity.

        Licensor and Licensee together being the "Parties", and either one or both of them being a "Party";

        In accordance with the terms of this "Agreement", the Parties wish to enter into a licence arrangement whereby "Licensor" will provide "Licensee" with access to Licensor's Internet-based platform by providing Licensee with the "Licensee Account" for teaching purposes;

        "Rights" means all copyright, Services rights and all other intellectual property rights subsisting in the Services throughout the world for the full term of those rights and all renewals, revivals and extensions of such rights and including all causes of action, powers and benefits in respect of them and for exploitation in all forms and media;

        "Licensor Services" are services provided by Licensor to Licensee for a "Service Fee". "Licensor Services" means the Licensor Internet-based teaching platform (Platform or Licensor Platform) and services, including any Updates, in a format to be agreed between the Parties and that allows Licensee to build the Licensee Network; Licensor Services can be decomposed in different Modules that may or may not be accessible to Licensee;

        "Updates" means any substantive updates to the initial Services or Modules supplied by Licensor to Licensee pursuant to this Agreement.

        "Third Party Software" means software that is licensed to Licensee by third parties, including software that is subject to so-called "open source" licenses, which means any software licenses approved as open source licenses by the Open Source Initiative or any substantially similar licenses, including any license that, as a condition of distribution of the software licensed under such license, requires that the distributor make the software available in source code format, and including the GNU General Public License.

        "Licensor Technology" means the past, present and future content of the Licensor Platform, including all software in any format (including the Platform Code and Network Code), Embeddable Widgets, hardware, products, processes, algorithms, user interfaces, know-how, techniques, organization, designs, text, images, photographs, illustrations, audio or video material, artwork, graphic material, podcasts, advertising copy, databases, proprietary information, all copyrightable or otherwise legally protectible elements of the Licensor Platform and all other tangible or intangible materials related to, displayed, performed or distributed on the Licensor Platform and the Licensor Platform itself, including, the selection, sequence, and "look and feel" and arrangement of items on the Licensor Platform, and all Licensor domain names, patents, and other intellectual property.

        "Networks" or "Licensor Networks" consists of the Network Code and other Content created by any of Licensor's licensees or anybody who has been granted the rights by Licensor to create Content running on top of Licensor Platform. Licensor Networks features may include Network Member profiles, friends, invitations, RSS feeds, images, video, audio files, video-conference tools for online classes among others. "Licensee Network" is a Licensor Network created and operated by Licensee on the Licensor Platform.

        "Content" means (i) any work of authorship in a Licensor Network, including, comments, recommendations, forums, photos, videos, music, sounds, images, text, files, listings, logos, trademarks, postings, messages, tags, HTML code, JavaScript code and other content added to or submitted with any of the foregoing; or (ii) other materials posted on or transmitted through any Licensor Networks or the Licensor Platform. "Licensee Content" is any Content that Licensee submits to a Licensor Network or the Licensor Platform. Licensee Content includes the Content that Licensee make available (and not the Content that Network Members including Licensee Network Members make available). Content does not include Network Code or Platform Code.

        "Network Members" are Users who have registered with any of Licensor Networks and accept the Terms of Service that Licensor publish on all Licensor Networks. Any Network Members become a Licensor Members.

        "Licensor Members" are Users who complete a registration process with Licensor and obtain a Licensor valid account. Licensor Members may also (but are not required to) become Network Members.

        "Licensee Network Members" are Network Members who have registered with Licensee Network.

        "Member Data" is data collected from Users by Licensor, and any data provided in Network Members Profile (such as name, email, birthdates, time zone etc...).

        "Licensee Network Member Data" is Member Data collected from Licensee Network Members only.

        "Users" are all end users of the Licensor Platform, and include Licensee, any unregistered users, all Licensor Members, all Network Members, and all third-party applications developer.

        "Terms of Service" are the Terms of Service posted on www.espok.com, www.espok.org, and additionally on Licensor Networks, as modified from time to time.

    1. In this Agreement a reference to "writing" or "written" includes faxes and any non-transitory form of visible reproduction of words, including electronic mail.
  1. grant of rights
    1. Subject to the terms of this Agreement, Licensor hereby grants to Licensee for the duration of this agreement a limited, non-exclusive, non-transferable licence to be able to use the Licensor Services in connection with Licensee's teaching business. For clarity, Licensor Services are available to Licensee upon Licensee's payment of the Service Fee to Licensor. For clarity, aside from the foregoing limited license, Licensee acknowledges that Licensee shall acquire no rights in the Platform Code or Network Code.


      Licensee agrees that, all the intellectual property rights in the Licensor Platform and the Licensor technology are owned by Licensor or its licensors.

    1. The exercise by Licensee of its licensed rights under Clause 2.1 above shall be on condition that:
      1. Only customers or employees of Licensee, provided that they complete their registration to become a Network Member may have access and use of the Services. Licensee will be able to send invitations to its customers or employees by providing accurate data on the customer who will use the account. The account will be active if the User concerned (paying customers or employee) validates the data provided for its registration and accept Licensor Terms of Service as published on www.espok.org or on Licensee Network, after which it will become a Network member. Each account opened can only be used by one and only one User, and Licensee should not encourage Network Members to use an account for multiple Users. Licensee should alert Licensor if it is aware that one account of one of Licensee Network Members is being used by more than one User.
      1. Licensee shall not publish, supply, license, sublicense, assign, sell or distribute the whole or any part of the Services in any part of the world or to anyone other than its customers seeking assistance in learning without the prior written consent of Licensor;
      1. Licensee does not use any trade mark the same or similar to the "eSpok" trade mark without advance written permission from Licensor;
      1. Data within the whole or any part of the Services is only used by Licensee in connection with the provision of its services to its clients and customers; and
      1. Licensee will not, nor will allow any third party to decompile or reverse engineer or attempt to access the source code of the software underlying the Licensor Platform or Licensor Technology,
      1. Licensee will not copy, archive, store, reproduce, rearrange, modify, adapt, download, upload, create derivate works from, display, perform, publish, distribute, redistribute or disseminate any Licensor Technology.
      1. Licensee will not access the Licensor Platform to build a product using similar ideas, features, functions, interface or graphics of the Licensor Platform.
      1. Licensee will not access Licensor Platform to upload code or content to cause a breach of security to the Licensor Platform or any of its Network or Platform or interfere with the proper working of the Licensor Platform or prevent others from using the Licensor Platform.
      1. Licensee will not access (or attempt to access) any service on the Licensor Platform by any means other than as permitted in this agreement
      1. Licensee hereby agrees to pay a minimum of three hundred (300) Euros for each separate violation of the Sub-Sections 2.2.2 to 2.2.9
    1. Licensor reserves the right to use the whole or any part of the Services in connection with its own business and to enter into arrangements to license the use of the whole or any part of the Services to persons other than Licensee.
    1. Licensor will not advertise on the Licensee Network without advance written permission from Licensee.
  1. LICENSOR OWNERSHIP RIGHTS
    1. Licensee agrees that, as between Licensee and Licensor, Licensor owns all right, title and interest, including, all intellectual property rights, in and to the Licensor Technology.
    1. Licensee agrees that, as between Licensor and itself, Licensor owns all right, title and interest, including, all intellectual property rights, in and to the Member Data. Licensee shall not acquire any right, title or interest therein, except for the limited rights expressly set forth in this Agreement. Any rights not expressly granted herein, are reserved to Licensor. Licensee agrees to abide by all copyright notices, information, or restrictions contained in any part of the Licensor Platform. Licensee must not alter, delete, or conceal any copyright, trademark, patent, or other notices contained on the Licensor Platform, including notices on any Licensor Technology downloaded, transmitted, displayed, printed or reproduced from or using the Licensor Platform.
  1. LICENSEE CONTENT AND LICENSES TO LICENSEE CONTENT
    1. Licensor does not claim any ownership rights in Licensee Content. After posting Licensee Content, Licensee continues to retain ownership of Licensee Content, and Licensee continues to have the right to use and license Licensee Content in any way Licensee choose. The Content that Licensee uploads to any Licensor Network needs to comply with the terms of this Agreement. If this agreement terminates, Licensor does not retain any license rights except as provided below in the clause 4.
    1. Licensee hereby grants Licensor, during the course of its usage of the Licensor Platform, a nonexclusive, worldwide, royalty-free, perpetual, irrevocable, sublicenseable and transferable right and license to (i) use, reproduce, create derivative works of, distribute, publicly perform and publicly display Licensee Content (a) for the sole purpose of operating and making Licensee Content available on the Licensor Platform and in all current and future media in which the Licensor Platform may now or hereafter be distributed or transmitted or (b) for Licensor internal business purposes; and (ii) disclose metrics regarding Licensee Content on an aggregated basis for advertising, marketing and business development purposes. Without limiting the foregoing, Licensor reserves the right to retain copies of Content for archival purposes after termination of the Agreement.
    1. Licensee hereby agrees that if Licensee Content is removed from any Licensor Network due to a violation of these Terms take down notice or because such Content contains illegal images, Licensor shall have the right to use, reproduce and exploit Licensee Content in any manner without restriction, including in response to any subpoena or other judicial or administrative order, to assist government enforcement agencies or otherwise required by law and to protect the rights, property or safety of Licensor, any individual, or the general public.
    1. Licensee is responsible for making sure that he has all rights in Licensee Content, including the rights necessary for Licensee to grant the foregoing licenses to Licensee Content. Licensee is solely responsible for Licensee Content. Licensee understands that whether or not Licensee Content is published or marked private by Licensee, Licensor does not guarantee any confidentiality or privacy with respect to any of Licensee Content. Licensee agrees not to include any advertising in any of Licensee Content unless agreed in writing by licensor.
    1. Additionally, Licensee understands and agrees that Licensee Content that is displayed on the Licensee Network may continue to appear on Licensor Networks or Licensor Platform, even after termination of this agreement, as portions of Licensee Content may have been incorporated into Member profiles, RSS feeds or other features.
    1. Licensee acknowledges that Licensor and its designees reserve the right, but shall have no obligation, to pre-screen, filter, remove, refuse to accept, post, display, or transmit any Content through or on any Licensor Networks or the Licensor Platform in whole or in part at any time for any reason or no reason with or without notice and with no liability of any kind.
    1. Licensor makes no guarantee, either during or after the term of this Agreement, that Licensee Content will be safely stored on the Licensor Platform and Licensee should independently back-up Licensee Content.
  1. INDEPENDENT DEVLOPMENT; FEEDBACK
    1. Licensee agrees that Licensor may be independently developing software, content and other products or services that may be similar to Licensee Content and nothing in the Agreement will be construed as restricting or preventing Licensor from creating or fully exploiting such software, content and other items, without any obligation to Licensee.
    1. Licensee may from time to time elects, in its sole discretion, to provide suggestions, comments, improvements, ideas, recommendations or other feedback or materials to Licensor related to Licensee Network, the Licensor Platform (including the Network Code and Platform Code), or Licensor Networks, including, on the Licensor blog, Licensor Forum, by email, orally ("Feedback"). If Licensee elects to provide Licensor any such Feedback, Licensee hereby assigns all ownership in and to such Feedback to Licensor, and acknowledge that Licensor will be entitled to use and implement any such Feedback in any manner without restriction, and without any obligation of confidentiality, attribution or compensation to Licensor. To the extent the foregoing is deemed ineffective, Licensee also hereby grants Licensor a nonexclusive, perpetual, irrevocable, transferable, sublicensable, royalty free, fully paid up license to use and otherwise exploit Feedback.
  1. LICENSEE NETWORK
    1. Licensor wants to give Licensee as much freedom to create and control the Licensee Network it builds on top of the Licensor Platform as possible. Licensee may have its own agreement(s) or policies between itself and each of its Network Members, provided that each such agreement or policies do not supersede, amend or otherwise affect in any way any terms of this Agreement, or Licensor Terms of Service as posted at www.espok.org, www.espok.com or the Licensor platform and provided that Licensee allows Licensor to display the Licensor Terms of Service, Privacy Policy and any Guidelines on Licensee Network.
    1. Licensee understands that if the use of Licensee Network leads to bad performance or poor performance for the Licensor Platform or Licensor Networks, Licensor might limit temporarily or permanently the use of Licensee Network.
    1. Licensee agrees not to harvest any email addresses from Licensor Networks or the Licensor's Platform for the purpose of sending email in violation of applicable law or otherwise violate Licensor terms of service as posted at www.espok.org, www.espok.com or the Licensor platform or violates this agreement.
    1. Licensee acknowledges that Licensor may terminate the account of any of Licensee Network Members in accordance with the Terms of Service posted at www.espok.org, www.espok.com or the Licensor platform or the terms of this agreement.
    1. Licensee Network shall not be designed or implemented in a way that, as determined by Licensor in its sole discretion, might mislead a User into believing that: (i) he or she is interacting directly with Licensor when interacting with Licensee Network, or (ii) any of Licensee Network or Licensee content was created by or are endorsed by Licensor. Because Licensor wants Licensee to have as much freedom over Licensee Network as possible, Licensor takes no responsibility for any Content located in Licensee Network and Licensor has no obligation to monitor such Content or Licensee Network.
    1. Licensee acknowledges that Licensor also reserves the right to remove, preserve, and disclose any information or Content on any Networks or account it deems necessary or appropriate to (a) satisfy any applicable law, regulation, legal process or governmental request, (b) enforce this Agreement, including investigation of potential violations hereof, (c) detect, prevent, or otherwise address fraud, security, or technical issues, (d) respond to User support requests, (e) protect the rights, property, or safety of Licensor, its Users, and the general public, or (f) investigate or defend ourselves against third-party claims or allegations.
  1. LICENSEE NETWORK MEMBER DATA
    1. Licensee may have access to Licensee Network Member Data as part of the management of Licensee Network. Licensee agrees that the Licensee Network Member Data is subject to the Licensor Privacy Policy posted under the clause 3 of the Terms of Service.
    1. Member privacy is important to Licensor. Therefore, Licensee hereby agrees that its use and disclosure of Licensee Network Member Data and any Member Data shall:
      1. comply with all Guidelines; and
      1. be reasonably protective of each Network Member's rights and in no event shall Licensee observe standards of privacy and confidentiality in connection with the use and disclosure of Licensor Member Data or Licensee Network Member Data that are less stringent than the standards set forth in the Licensor Privacy Policy posted under the clause 3 of the Terms of Service.
    1. Licensee acknowledges that Licensor may receive requests from Users or persons authorized to act on behalf of such Users to modify or delete personally identifiable information relating to such Users on Licensee Network. Accordingly, Licensee agrees that, within 24 hours of any email request by Licensor, Licensee will: (a) delete all Licensee Network Member Data and other personally identifiable information in Licensee possession or control relating to a particular User as specified by Licensor; and (b) confirm such deletion in email notice to Licensor.
  1. SUPPORT AND INTERACTION
    1. Licensee is responsible for implementing and maintaining all support for Licensee Network(s), including answering questions from Licensee Network Members. This includes, if Licensee has created content (only as authorized by Licensor), fixing bugs that Network Members might find and tell Licensee about.
    1. Licensor might provide support directly to the Licensee Network Members in accordance with the description and fees set forth in Licensor's actual pricing hereto and if requested by Licensee.
  1. Payment Terms
    1. Licensee can purchase one or more Licensor Services from Licensor. The categories and prices of Licensor Services are subject to change from time to time. Licensor may choose to temporarily change the Service Fees for the Licensor Services for promotional or new services, and such changes are immediately effective when Licensor either posts the temporary promotional event or new service on the Licensor Platform or sends the temporary promotional event or new service via email to Licensee. Any changes to Service Fees for Licensor Services that are not temporary or promotional will be effective thirty (30) days after Licensor provide Licensee with notice by either posting such changes on the Licensor Platform or sending such changes via email to Licensee. The changes shall only apply prospectively to the Licensor Services Licensee purchased. Unless otherwise stated, all fees are quoted in Euros.
    1. Licensee is responsible for paying all fees and applicable taxes associated with Licensor Services in a timely manner with a valid payment method. Licensee authorize Licensor to charge Licensee's credit card, charge card, debit card, PayPal, or financial institution account (herein "Payment Method") for all charges to Licensee's accounts with Licensor. Licensee's Payment Method will be charged the current Service Fee for the Licensor Service that Licensee chooses on the date that Licensee requests this respective Licensor Service from Licensor. Licensee can request Licensor Services from Licensor either via email at subscription@espok.com or directly by operating the Licensee Network. Licensee agrees that Licensor may automatically charge the Service Fee to Licensee's Payment Method at the beginning of each recurring period. For example, if Licensee chooses a Licensor Service with a monthly plan, Licensee will be billed in advance on the first working day of each calendar month for continued use of the Licensor Services. Additionally, Licensor may offer a pre-pay payment option for payment of Licensor Services ("Pre-Payment Plan"). If Licensee opts for Pre-Payment plan, Licensee's Payment Method will be charged the then-current Service Fee for that Licensor Service at the commencement of each renewal period. Licensor shall be entitled to invoice Licensee for the price of the Licensor Services on or at any time after the first day of each calendar month.

    Licensee acknowledges and agrees that any credit card and related billing and payment information that Licensee provides to Licensor may be shared by Licensor with companies who work on Licensor's behalf, such as payment processors and/or credit agencies, solely for the purpose of checking credit, effecting payment to Licensor and servicing Licensee's account. The terms of Licensee's payment will be based on Licensee's chosen Payment Method and may be determined by agreements between Licensee and the financial institution providing such Payment Method. Licensee agrees to pay Licensor all charges incurred under Licensee's account for any Licensor Service in which Licensee or anyone else who uses Licensee's account (including employees, children, family and friends) enrols in accordance with this Agreement and any applicable Licensor Services policies. If Licensee's Payment Method fails or Licensee's account is past due, (a) Licensee agrees to pay all amounts due on Licensee's account upon demand, (b) Licensor may collect fees owed using other collection mechanisms (this includes charging other payment methods on file with Licensor) and (c) Licensor reserves the right to either suspend or terminate Licensee's Licensor Services or Licensee Account with Licensor, including deletion of Licensee Network from the Licensor Platform.

    Except as may be set forth in applicable Licensor Service Policies or Section 11 (Term and Termination), any fees charged to Licensee Account are non-refundable. Licensee agrees to submit any disputes regarding any charge to Licensee Account in writing to Licensor within thirty (30) days of such charge, otherwise such dispute will be waived and such charge will be final and not subject to challenge. Refunds (if any) made pursuant to such dispute, are at the discretion of Licensor

    1. Licensee is responsible for paying any governmental taxes imposed on Licensee's use of the Licensor Platform, including, but not limited to, sales, use, or value added taxes. If requested, Licensee will promptly furnish to Licensor the applicable receipts and/or certificates regarding such remittances as soon as reasonably practicable. To the extent that Licensor is obligated to collect such taxes, the applicable tax will be added to Licensee billing account.
  1. warranties
    1. Licensor warrants and undertakes (on its own behalf and on behalf of its employees and agents) to Licensee that:
      1. it has full power to enter into this Agreement, and
      1. the exercise of the Rights will not infringe the intellectual property rights of any third party.
    1. Except as specifically provided in this Clause 10, Licensor makes no warranties of any kind in connection with this agreement and excludes all conditions, warranties, terms and undertakings, express or implied, statutory or otherwise that would otherwise apply to this Agreement to the fullest extent permitted by the applicable law.
    1. Licensee hereby warrants to licensor
      1. that it will comply with all applicable local, state, national and international laws rules, and regulations in connection with its use of the Licensor Platform including its promotional or other activities off the Licensor Platform that relate to Licensee Network;
      1. Licensee has the right to grant to Licensor the rights granted herein and Licensee owns or has all necessary rights, title and interest in and to Licensee Content;
      1. Licensee content does not and will not:
        1. infringe, violate or misappropriate any third-party right, including any copyright, trademark, patent, trade secret, moral rights, privacy rights, rights of publicity, or any other intellectual property or proprietary right, or
        1. slander, defame, libel, or invade the right of privacy, publicity or other property rights of any person; and
        1. none of Licensee Content or Licensee Network contains any viruses, Trojan horses, trap doors, back doors, Easter eggs, worms, time bombs, cancelbots, or other computer programming routines that may potentially damage or interfere with the Licensor Platform, or intercept or expropriate any system data or personal information from the Licensor Platform.
  1. Term and termination
    1. This Agreement shall remain in full force and effect unless and until Licensee Account is terminated as provided herein. Licensee may terminate Licensee Account and end Licensee's use of the Licensor Platform at any time and for no reason by contacting us at subscription@espok.com. If Licensee terminates Licensee Account, Licensor will have no obligation to refund Licensee any fees Licensee may have paid except as may be required by applicable law
    1. Licensor has the right (at Licensor's sole discretion) for any reason with thirty (30) days notice to (i) delete, disable or deactivate Licensee Account, or otherwise terminate Licensee's access to or use of the Licensor Platform, (ii) remove and discard any Network Code or Content within any Licensee Network or anywhere on the Licensor Platform or (iii) shut down a Licensee Network with no liability of any kind to Licensee.
    1. Licensor may give notice in writing to Licensee to terminate this Agreement with immediate effect if:
      1. Licensee commits any material breach of any of the terms of this Agreement or Section 7 "Content" of the Terms of Service agreement posted at www.espok.com, which might be revised from time to time (in that case Licensee would be then alerted by email), and that breach (if capable of remedy) is not remedied within fifteen (15) business days of notice being given by Licensor requiring it to be remedied;
      1. an order is made or a resolution is passed for the winding up of Licensee or an order is made for the appointment of an administrator to manage the affairs, business and property of Licensee or a receiver and/or manager or administrative receiver is appointed in respect of all or any of Licensee's assets or undertaking or circumstances arise which entitle a competent court or a creditor to appoint a receiver and/or manager or administrative receiver or which entitle a competent court to make a winding up or bankruptcy order or Licensee takes or suffers any similar or analogous action in consequence of debt; or
      1. Licensee purports to assign any of its rights or obligations under this Agreement.
    1. Upon deactivating Licensee Account, this Agreement terminates and Licensee will no longer have a right to access Licensee Account, Licensee Content or Licensee Network Member Data. Licensor will not have any obligation to assist Licensee in migrating Licensee data, Licensee Content or Licensee Network Member Data off of the Licensor Platform and Licensor does not keep any back-up of any of Licensee Content or Licensee Network Member Data. Licensor is not responsible for deleting Network Code or Licensee Content on Licensee's behalf. Note that, even if Licensee Content is deleted from Licensor's active servers, it may remain in Licensor's archives (but Licensor has no obligation to archive or back-up Licensee Code or such Network Code or Licensee Content), and subject to the licenses set forth in this Agreement.
    1. In the event of the expiry or termination of this Agreement, howsoever arising, Licensee shall no later than fifteen (15) days from the date of expiry or termination destroy and certify the destruction of all copies of Licensor's software and any other materials in its possession and control.
    1. Licensee shall do nothing after the expiry or termination of this Agreement which might lead any person to believe that Licensee is still licensed to use the Services or is in any way connected with Licensor.
  1. INDEMNITY
    1. Licensee agrees to indemnify, defends, and hold harmless Licensor, and its successors, subsidiaries, affiliates, co-branders, contractors, employees, all third-party advertisers, technology providers, service providers or other partners, and each of their respective officers, directors, agents, shareholders, employees and representatives, from and against any third party claim, demand, loss, damage, cost, or liability (including, reasonable attorneys' fees) arising out of or relating to:
      1. Licensee Content or Licensee Network;
      1. Licensee use of any Third Party Applications;
      1. Licensee use or misuse of, or connection to, the Licensor Platform;
      1. Licensee breach or alleged breach of this Agreement;
      1. Licensee violation of any rights (including intellectual property rights) of a third party;
      1. Licensee use or misuse of any User data (including Licensor Member Data and Licensee Network Member Data), including, in violation of the Licensor Private Policy as posted in the Terms of Service;
      1. Licensee breach or alleged breach of any agreement or policy between Licensee and other Users.
    1. Licensor reserves the right, at Licensee expense, to assume the exclusive defence and control of any matter for which Licensee is required to indemnify Licensor and Licensee agrees to cooperate with Licensor defence of these claims. Licensee agrees not to settle any matter without the prior written consent of Licensor. Licensor will use reasonable efforts to notify Licensee of any such claim, action or proceeding upon becoming aware of it.
  1. Limit of liability
    1. This Section 13 sets out the limitations on the liability of Licensor, including but not limited to any liability for the acts and omissions of its respective employees, affiliates, agents and sub-contractors, to Licensee with respect to:
      1. any breach of its contractual obligations arising under this Agreement; and
      1. any representation, statement, act or omission given, made or carried out under or in connection with this Agreement whether such liability arises in contract, tort, negligence, misrepresentation, breach of statutory duty or otherwise howsoever.
    1. Except as expressly set forth in this Agreement, all conditions, warranties and representations expressed or implied by statute, common law or otherwise with respect to the Services are excluded to the fullest extent permitted by law and in no event shall Licensor be liable for any negligence or tortious loss or for any of the following losses or damage (whether such losses or damage were foreseen, foreseeable, known or otherwise and whether or not Licensor is advised of the possibility of loss, liability, damage or expense):
      1. loss of revenue, actual or anticipated profits (including for loss of profits on contracts), the use of money, anticipated savings, business, operating time or loss of use, opportunity, goodwill, reputation or damage to or corruption of data; or
      1. any indirect or consequential loss or damage howsoever caused (including, for the avoidance of doubt, where such loss or damage is caused by anyone accessing the Services or Licensor's software or hardware for an illegal or other purpose not authorized by Licensor.).
    1. LICENSEE EXPRESSLY AGREES THAT USE OF THE SERVICES IS AT LICENSEE'S SOLE RISK. NEITHER LICENSOR, ITS EMPLOYEES, AFFILIATES, AGENTS, MERCHANTS OR THE LIKE WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DO THEY MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES OR AS TO THE ACCURACY, RELIABILITY OR CONTENT OF ANY INFORMATION, SERVICE OR MERCHANDISE PROVIDED THROUGH THE SERVICES.
    1. THE SERVICES ARE PROVIDED ON AN "AS IS," "AS AVAILABLE" BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF TITLE OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OTHER THAN THOSE WARRANTIES THAT ARE IMPLIED BY AND INCAPABLE OF EXCLUSION, RESTRICTION OR MODIFICATION UNDER THE LAWS APPLICABLE TO THIS AGREEMENT. NO ORAL ADVICE OR WRITTEN INFORMATION GIVEN BY LICENSOR, ITS EMPLOYEES, AGENTS, MERCHANTS OR THE LIKE SHALL CREATE A WARRANTY, NOR SHALL LICENSEE RELY ON ANY SUCH INFORMATION OR ADVICE.
    1. UNDER NO CIRCUMSTANCES, INCLUDING NEGLIGENCE, SHALL LICENSOR OR ANYONE ELSE INVOLVED IN CREATING, PRODUCING OR DISTRIBUTING THE SERVICES BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES THAT RESULT FROM THE USE OF OR INABILITY TO USE THE SERVICES, INCLUDING BUT NOT LIMITED TO RELIANCE BY A CUSTOMER ON ANY INFORMATION OBTAINED ON THE SERVICES, OR THAT RESULT FROM ANY MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF FILES OR E-MAIL, ERRORS, DEFECTS, VIRUSES, DELAYS IN OPERATION, OR TRANSMISSION, OR ANY FAILURE OF PERFORMANCE, WHETHER OR NOT LIMITED TO ACTS OF GOD, COMMUNICATIONS FAILURE, THEFT, DESTRUCTION OR UNAUTHORIZED ACCESS TO ACCESS PROVIDER'S RECORDS, PROGRAMS OR SERVICES. CUSTOMER ACKNOWLEDGES THAT THIS PARAGRAPH 13.5 SHALL APPLY TO ALL CONTENT, MERCHANDISE OR SERVICES AVAILABLE THROUGH THE SERVICES. BECAUSE SOME STATES DO NOT ALLOW THE EXCLUSION OF OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH STATES LICENSOR'S LIABILITY IS LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
    1. Notwithstanding the foregoing, in no event shall the total liability of Licensor or its employees, affiliates, and agents for all damages, losses and causes of action whether in contract, tort, including negligence, or otherwise, either jointly or severally, exceed the aggregate amount paid by Licensee to Licensor in the six (6) months prior to the claimed injury or damage. The foregoing provisions of this Section 13 are for the benefit of Licensor, its employees, directors, affiliates, and agents, and each shall have the right to assert and enforce these provisions directly on their own behalf.
  1. Miscellaneous
    1. Assignment

    No Party shall without the prior written consent of the other Party assign, transfer or otherwise delegate (in whole or in part) the benefit of or the rights under this Agreement.

    1. Successors and Assigns

    This Agreement shall be binding on and ensure for the benefit of the Parties' successors and assigns approved the Parties.

    1. Costs

    All expenses incurred by or on behalf of either Party, including all fees of professional advisers employed by it in connection with the negotiation, preparation and execution of this Agreement, shall be borne by that Party.

    1. Force Majeure
      1. Neither Party shall be liable to the other Party for any delay or non-performance of its obligations under this Agreement to the extent that its performance is interrupted or prevented by Force Majeure, including flood and hurricane.
      1. Such delay or failure shall not constitute a breach of this Agreement and the time for performance shall be extended by a period equivalent to that during which performance is so prevented provided that if such delay or failure persists for sixty (60) days or more, the Party not affected may, at its option and if in its opinion it is reasonable for it to do so, terminate this Agreement by giving fourteen (14) days written notice of such termination to the other Party.
    1. Amendments

    No amendment or variation of this Agreement shall be effective unless it is in writing and signed by or on behalf of each of the Parties.

    1. Waivers and remedies

    The rights of each party under this Agreement are in addition to and not exclusive of rights under the general law and may be waived only in writing and specifically. Delay in exercising or non-exercise of any right under this Agreement is not a waiver of that right. Partial exercise of any right under this Agreement shall not preclude any further or other exercise of that right or any other right under this Agreement. Waiver of a breach shall not operate as a waiver of any subsequent breach.

    1. Entire Agreement

    This Agreement, constitutes the entire agreement between the Parties with respect to the subject matter of this Agreement and supersedes and extinguishes any prior drafts, agreements, undertakings, understandings, promises or conditions, whether oral or written, express or implied between the Parties relating to such subject matter.

    1. Rights of Third Parties

    A person who is not a party to this Agreement has no rights to enforce, or to enjoy the benefit of, any provision of this Agreement.

    1. Notices

    All notices between the Parties with respect to this Agreement shall be in writing and signed by or on behalf of the Party giving it. Any notice may be served by delivering it by hand, by electronic mail, by sending it by first-class pre-paid post, recorded or registered delivery or air mail, or by fax, to the address of the addressee set out above, or to such other address as the addressee may from time to time have notified for the purpose of this Clause.

    1. Counterparts

    This Agreement may be signed in any number of counterparts and by the Parties on different counterparts, but shall not be effective until each Party has signed at least one counterpart.

  1. GOVERNING LAW AND JURISDICTION
    1. This Agreement shall be governed by and construed in accordance with the laws of the State of Florida and the Parties hereby submit, and waive all challenges, to the exclusive jurisdiction of the state and federal courts with jurisdiction in Miami, Florida, U.S.A.
    1. Dispute Resolution and Arbitration
      1. If at any time any question, dispute or difference shall arise between the Parties as to any matter or thing of whatever nature arising under or in connection with this Agreement, (a "Dispute"), then either Party may give to the other notice in writing as to such Dispute (a "Dispute Notice") and upon receipt of such Dispute Notice the appropriate representatives of the Parties shall use their reasonable endeavours to resolve such Dispute in accordance with this Clause 15.2.1.
      1. In relation to any Dispute which can not be resolved pursuant to Clauses 15.2.1, each of the Parties irrevocably agrees that the resolution of such Dispute shall be dealt with by way of arbitration, in which case, such Dispute shall be referred to a single arbitrator for resolution under arbitration rules and procedures to be agreed between the Parties, or failing such agreement within twenty (20) business days of the date of the Dispute Notice, to an arbitrator legally qualified and experienced in disputes relating to Internet service licensing agreements nominated by a representative of the American Arbitration Association ("AAA") in accordance with the procedures of same, as amended or re-enacted from time to time, for arbitration to be conducted in Miami under AAA rules as at the date of the Dispute Notice, which rules are deemed to be incorporated by reference into this Clause 15.2.2 for these purposes.
      1. The decision of the arbitrator shall be final and binding on the parties, save in respect of manifest error and the costs of the arbitrator shall be borne equally between the Parties or as the arbitrator otherwise directs.