Terms and Conditions for Top Echelon Services
THESE TERMS AND CONDITIONS FOR TOP ECHELON SERVICES (THE “AGREEMENT”) GOVERN YOUR USE, ACCESS, AND PURCHASE OF THE TOP ECHELON SOFTWARE, LLC (“TES”) SERVICES. BY ACCEPTING THIS AGREEMENT, BY CREATING OR REGISTERING AN ACCOUNT WITH TES, OR BY INDICATING YOUR ACCEPTANCE OR BY EXECUTING AN ORDER FORM OR SUBMISSION THAT REFERENCES OR LINKS TO THIS AGREEMENT, YOU (“YOU”, “YOUR”, OR “CUSTOMER”) AGREE TO THE TERMS OF THIS AGREEMENT. “PARTY” OR “PARTIES” SHALL MEAN, INDIVIDUALLY, YOU AND TES AS THE CONTEXT REQUIRE AND COLLECTIVELY, YOU AND TES.
IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THIS AGREEMENT, IN WHICH CASE THE TERMS “YOU” AND “CUSTOMER” AS USED IN THIS AGREEMENT SHALL REFER TO SUCH ENTITIES AND AFFILIATES. IF YOU DO NOT HAVE THE AUTHORITY, OR IF YOU DO NOT AGREE WITH THIS AGREEMENT, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.
If you are a competitor of TES, you can only access or use the Services upon TES’s prior written consent. You are prohibited from accessing or using the Services for the purposes of monitoring their availability, performance, or functionality, or for any other benchmarking or competitive purpose.
This Agreement was last updated on 1-31-23. It is effective between You and TES as of the date You accepted this Agreement (the “Effective Date”).
- TES has developed and owns online, web-based software applications, platforms, and services made available through the TES website,which include, for example, the CATS software and the Applicant Manager software (the “Services”). You would like to purchase the Services and TES would like to provide the Services to You in accordance with the terms and conditions set forth herein. For valuable and good consideration, the parties agree as follows.
- Definitions. As used in this Agreement, the following terms have the definitions set forth in this section. You by TES.
a. “Affiliate” means any entity that, directly or indirectly, through one or more intermediaries, controls, is controlled by or is under common control with such party. You acknowledge and agree that You are responsible for any claims, liability or damages arising from Your Affiliates.
b. “Applicable Law(s)” means any and all international, national, federal, provincial, state, and local laws, rules, and regulations, including as they may be enacted, amended, or replaced from time to time, that relate to or govern the terms of this Agreement or the provision, performance, use, or ownership of the Services.
c. “Authorized Users” means any individual who is authorized by You to use the Services on Your behalf or for Your benefit. Authorized Users, include, without limitation, Your employees, consultants, contractors, agents, or third parties with which You transact business with.
d. “Customer Support” routine answers to questions, error correction, and maintenance modifications requested by You via email or a messaging system within the software and provided during TES’s normal business hours. Customer Support does not include programming, detailed or specialized maintenance, provision of enhancements, or support different in kind or amount from that which is provided to other customers of the Service, including, without limitation, problems that may arise in interfacing or operating the Service or any of its components with unsupported, unusual, or proprietary systems.
e. “Customer User-Generated Content” means any User-Generated Content You or Your Authorized Users submit or transmit to TES or through or using the Services.
f. “Documentation” means any and all writings, correspondence, memorandums, pricing schedules, illustrations, graphs, reports, educational materials, information, plans, processes, models, trademarks, trade names, mailing lists, or other information and/or property provided to you by us that relates directly or indirectly to the Service or any component of the Service. The Documentation is considered TES’s Confidential Information.
g. “Intellectual Property Rights” means all past, present, and future rights of the following types that may exist or be created under any Applicable Law: (i) rights associated with works of authorship, including exclusive exploitation rights, copyrights, moral rights, and mask work rights, (ii) trademark and trade name rights and similar rights, (iii) trade secret rights, (iv) patent, industrial and technology property rights, and industrial design rights, (v) other proprietary rights in intellectual property of every kind and nature, and (vi) rights in or relating to registrations, renewals, extensions, combinations, divisions, and reissues of, and applications for, any of the rights referred to in clauses (i) through (vi).
h. “Malicious Code” means program code or programming instruction or set of instructions intentionally designed to disrupt, disable, harm, interfere with, or otherwise adversely affect computer programs, data files, or operations; or other code typically described as a virus or by similar terms, including Trojan horse, spyware, malware, malicious code, worm, or backdoor.
i. “Personal Data” means any information that identifies or locates a natural person (a “Data Subject”) or that, in combination with other reasonably available data, can be used to identify or locate a natural person.
j. “User-Generated Content” means all data, information, images, messages, documents, and any other content that is entered into, submitted to, posted on, uploaded to, transmitted, streamed, created, or displayed using, or otherwise provided via or using the Services by the users of the Service, including, without limitation, third party User-Generated Content and Customer User-Generated Content.
k. “Services” shall have the meaning set forth in Section 1 above, and includes, without limitation, any other service provided to You by TES.
3. Modifications. TES reserves the right, within its sole discretion, to modify, alter, or change the Services (or any component or feature thereof) and/or Documentation, including, without limitation, discontinuing the Services (or any component thereof). Any new modifications shall be subject to this Agreement. Continued use of the Services after any such changes shall constitute Your consent to any such modification(s). Additionally, TES reserves the right to modify and make updates to this Agreement at any time. All such changes to this Agreement shall be effective immediately upon posting. TES will provide notice to You of any material changes to this Agreement, including, without limitation, giving notice to You by posting an updated version of this Agreement. TES encourages You to regular check this Agreement and review the terms herein. You agree that Your acceptance of this Agreement is not made contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by TES regarding future functionality or features.
a. User Accounts. You are responsible for any Authorized User’s compliance with this Agreement. You will be responsible and liable for any Authorized Users’ use of the Services, including, without limitation, any transmission or posting of User-Generated Content to or through the Services. For You to access all or portions of the Services, TES will issue one or more Authorized User accounts to You. You will implement and maintain reasonable measures designed to ensure that each Authorized User only uses the Services through its assigned account and, further, You will not allow any Authorized User to share its account with any other person. You are responsible for maintaining the confidentiality of any information You use in connection with the Services, including Your username and password. You are responsible for all activity on Your account. If You believe someone else has accessed Your or Your Authorized Users’ account(s), or such a breach has actually occurred, You shall notify TES immediately and change your password.
b. Free Trials. TES may provide You all or a portion of the Services (and possibly for a period of time) free of charge under a trial or pilot program (“Free Trial”). You hereby agree and acknowledge that such Free Trial is provided as-is, without any warranties and that TES disclaims all liability for Your use thereof.
c. Preferred Membership. If You have or purchase the Top Echelon Network Membership as a part of the Services TES provides to You (“Preferred Services”), you hereby agree that this Section 4(c) shall apply to your registration for and access or use of the Preferred Services. In addition to all other disclaimers in this Agreement, including, without limitation, those set forth in Section 13, You acknowledge that TES does not warrant that any information, advice, or ideas You receive from TES (regardless of source) to be factual, nondiscriminatory, marketable, legally correct, non-infringing, non-defamatory, or fit for any particular purpose. You also acknowledge that You have a duty to verify all information sent to TES does not infringe or otherwise violate anyone’s rights. TES can terminate Your Preferred Services without notice, at any time, and for any reason or no reason at all.
d. Third Parties. TES may engage third parties to assist it in providing the Services or any part thereof provided that TES will remain liable for all acts or omissions of such third parties in the performance of this Agreement.
e. Suspension, Deactivation, and Termination. TES may, at any time, in its sole discretion, suspend, deactivate, or terminate Your and/or Your Authorized Users’ access to or use of the Services and may terminate this Agreement, without notice or liability, including, without limitation (i) if you breach this Agreement; (ii) if You act in an abusive manner; (iii) upon any unauthorized use of Your Authorized Users’ accounts; (iv) if You act in a manner inconsistent with Applicable Law; or (v) it becomes no longer commercially viable to provide the Services to You.
5. License and Restrictions.
a. License. During the Term of the Agreement and subject to the terms and conditions of this Agreement, TES grants to You a limited, non-sublicensable, non-transferable, revocable, non-assignable (except as otherwise permitted herein), nonexclusive license to access and use the Services subject to the restrictions in this Agreement.
b. Use Restrictions. You (i) will use the Services for Your business purposes only, and (ii) will not, by or for itself, any of Your Affiliates or Authorized Users, or any third party (a) sell, rent, license, assign, distribute, perform, or transfer any of the Services or Documentation; (b) modify, make derivative works or, or decipher, decompile, disassemble, reconstruct, translate, reverse engineer, or discover any source code of the Services or Documentation; (c) copy any Services or Documentation; (d) interfere with or disrupt the integrity or performance of the Services or Documentation; (e) send, store, access, post, transmit, link to, or otherwise distribute any spam, unlawful, infringing, obscene or libelous materials, or Malicious Code; or (f) remove from any Service or Documentation any language or designation indicating the confidential nature thereof or the proprietary rights of TES or its suppliers. In addition, You will not, and will not permit third parties to, (1) use any Service for the benefit of any third party, including but not limited to, on a time-sharing, outsourcing, service bureau, hosting, application service provider or managed service provider basis; (2) alter any aspect of any Service, except as expressly permitted under this Agreement; or (3) assign, transfer, distribute, or otherwise provide access to any of the Services unless pre-approved in writing by TES.
c. Termination of License. The above license will automatically terminate upon any failure by You to comply with this Agreement. This Agreement beings upon Your first access to or use of the Services and will continue in effect until termination in accordance with this Agreement.
d. Network Policies. Your use of and access to the Preferred Services is subject to the Top Echelon Network Policies , which are incorporated here. Additionally, all complaints and disputes between Top Echelon Network Members shall be made and dealt with in accordance with the TES Complaint and Dispute Procedures (together with the Top Echelon Network Policies, the “Additional Preferred Terms”) and You hereby agree to act in accordance with the foregoing procedures. The Additional Preferred Terms and any related services TES provides in connection therewith, are provided “AS IS” without indemnification or warranty of any kind, express or implied. You hereby acknowledge and accept that TES does not have any, and TES hereby disclaims, liability or responsibility with regard to the Additional Preferred Terms, any related services TES provides in connection therewith, and any result(s) thereof. Additionally, You hereby acknowledge that TES does not provide legal advice. Neither the inclusion of the Additional Preferred Terms, this Agreement’s requirements, nor the result(s) thereof constitute legal advice, legal opinions, or legal services.
e. Acceptable Use. You agree that you will not provide Customer User-Generated Content that (i) harasses, abuses, stalks, stalks, threatens, or otherwise violates the legal rights of others; (ii) is defamatory, libelous, indecent, pornographic, harassing, violent, hateful, obscene, or otherwise objectionable or harmful; (iii) promotes violence, sexually explicit or pornographic material, or discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age; (iv) infringes any Intellectual Property Right, privacy right, or publicity right of any other person; (v) contains material that could give rise to any civil or criminal liability under Applicable Laws; (vi) promotes illegal activity; or (vii) gives the impression that it is endorsed or approved by TES. You also agree that You will not, and will not permit any person on Your behalf to, (1) provide inaccurate, incomplete, or out-of-date information via the Services (including, without limitation, misrepresenting Your qualifications, background, experience, or affiliation with any organization); (2) create a false identity or hide Your true identity; (3) commit fraud or falsify information in connection with Your use of the Services; (4) access or use the Services to develop, create, produce, enhance, or add to any database; (5) engage in activities that aim to render the Service inoperable or make their use more difficult; or (6) access, use, or analyze the Services for any purpose that is to TES’s detriment or commercial disadvantage.
6. Privacy and Data Protection.
b. Data Protection. You are responsible for collecting and maintaining all Personal Data contained in Customer User-Generated Content in compliance with Applicable Laws, including, without limitation, all applicable data privacy and security laws. To the extent Customer User-Generated includes any Personal Data the Data Processing Addendum shall govern TES’s processing of such Personal Data.
7. Your Responsibilities and Warranties.
a. Use of Services Warranty. You represent and warrant that You will not use the Services to: (i) send unsolicited or unauthorized email, junk mail, spam, chain letters, or advertising. Nor will you make, create, solicit, transmit, upload, poll, implement, communicate, retrieve, or publish any comment, request, suggestion, proposal, image, data file, data fragment, or communication (including email); or (ii) use the Services or any of its components in a manner that is at all likely to (1) be perceived as pornographic, obscene, indecent, discriminatory, threatening, harassing, or defamatory; (2) violate another’s intellectual or personal property rights or invade another’s privacy; (3) contain a Malicious Code or corrupt data; (4) adversely affect the performance of the Service or any of its components; (5) misrepresent or impersonate another; (6) violate any applicable state, federal, or international law; (7) interfere with another’s use and enjoyment of the Services, (8) violate Applicable Law, (9) circumvent any of the TES source code or data files, (10) be perceived as providing you with any advantage in receiving portions of the software to the detriment of other TES customers, (11) be perceived as an unfair trade practice, (12) convert or cyber trespass upon any TES IP associated with the Service, or (13) obtain information from the Services in a non-manual manner.
b. No Scraping. You represent and warrant that you will not use or interact with the Service in a manner that (i) “crawls”, “scrapes”, or “spiders” any page, data, or portion of or relating to the Service or User-Generated Content (including, without limitation, whether through manual or automated means); (ii) run any form of spam on the Service or any processes that run or are activated while you are not logged into the Service, or that otherwise interfere with the proper working of the Service (including, without limitation, by placing an unreasonable load on the Service infrastructure); and (iii) circumvent or attempt to circumvent any features, limitations, or restrictions on or of the Services.
d. Compliance and Authority. You represent and warrant that Your use and access to the Services and any User-Generated Content does not violate Applicable Law (including, without limitation, all employment-related laws and regulations) and that You are responsible for the use and misuse of the Services and/or User-Generated Content by You and Your Authorized Users, including, without limitation, maintaining strict compliance with this Agreement and all Applicable Laws. You also represent and warrant that You have the full power and authority to enter into this Agreement and have obtained or will obtain, and continue to hold all necessary licenses, consents, permits, or other agreements required for You and Your Authorized Users to continue to comply with Your obligations under this Agreement.
e. Non-Competition. You represent and warrant that You are not a competitor to TES and that You will not access or use the Services for purposes of monitoring its availability, its performance, its functionality, or for benchmarking or competitive purposes.
8. Fees and Payment.
a. Fees. If You purchase any Services, then You will provide a valid Visa, MasterCard, or American Express credit card number that will be processed by a third party payment processor. Your card will be charged for Services on a monthly basis, unless otherwise agreed under Section 8(b). Alternatively, where the option is made available, You can pay applicable fees through ACH. Your acceptance of this Agreement constitutes Your authorization to charge all amounts due to Your credit card. If Your credit card does not have sufficient credit limits to pay any given invoice, TES reserves the right to suspend or terminate Your access to the Services unless You will pay the total charges within 48 hours and provide another credit card with sufficient credit limits. Invoices are due upon receipt, and You will make full and prompt payment of Your account balance upon receipt of any invoice. TES reserves the right to change, including, without limitation, increase, the fees. Such modifications to the fees shall become effective and applicable to You in the Renewal Term following such modification.
b. Annual Option. Where TES makes the option available to You, certain Services may be payable on an annual basis. If You purchase any Services under the annual option (where that option is available), then You will provide a valid Visa, MasterCard, or American Express credit card number that will be processed by a third party payment processor. We will charge Your credit card for the Services one time as follows: (1) fees for the month of signup, at our discounted rate and prorated to reflect the partial month of Services; and (2) fees for the following twelve (12) full months of services. Your acceptance of this Agreement constitutes Your authorization to charge all amounts due to Your credit card. Alternatively, where the option is made available, You can pay applicable fees through ACH. TES reserves the right to change, including, without limitation, increase, the fees. Such modifications to the fees shall become effective and applicable to You in the calendar Renewal Term following such modification.
c. Discounts. If TES provides You with a discount for any month (or year under the annual option), that discount shall only apply to the specific month (or year under the annual option) it is issued for. Unless otherwise agreed to between the parties, discounts will not carry over into subsequent months (or years under the annual option).
d. Late Payments; Reconnection. If You are paying on a monthly basis as set forth in Section 8(a) above, TES will charge you on a monthly basis for use of the Services and You hereby agree and acknowledge that such charges are non-refundable and non-cancellable. If You are paying on an annual basis as set forth in Section 8(b) above, TES will charge you on an annual basis for use of the Services and You hereby agree and acknowledge that such charges are non-refundable and non-cancellable. Without regard to the applicable payment options set forth in this Section, if we do not receive payment from You by the applicable due date of an invoice, TES can, in its sole discretion: (1) suspend or discontinue your access to the Services; and/or (2) charge You interest at the lesser of either eighteen percent (18%) per annum or the maximum rate allowable by law. If any payment by check is returned for insufficient funds or otherwise, You will pay TES $38 in addition to the original invoiced amount. You hereby agree to indemnify and reimburse TES for all costs incurred by TES in collecting overdue amounts, including, without limitation, reasonable attorneys’ fees. If Your access to the Services is suspended, discontinued, or terminate for any reason under this Agreement, TES can charge You a reconnection fee for any renewed access to the Services. Notwithstanding the foregoing, if TES does, in its complete and sole discretion, provide a refund to You, the refund will be provided to You in the same manner that You provided payment of the fees. For example, if You pay fees with a credit card, the refund will be made to that same credit card.
e. Billing Information and Reconnection Fee. You must notify TES of any new information within thirty (30) days of a change to Your billing, credit card, or other applicable payment information.
f. Taxes. You are solely responsible for paying all taxes associated with Your purchase(s) of the Services. If TES incurs a legal obligation to pay or collect taxes for which You are responsible, You will be invoiced the appropriate amount and You will promptly pay such invoice.
9. Term and Termination.
a. Term. The “Term” of this Agreement shall commence on the Effective Date and will continue for a period of:
i. Where You pay monthly under Sec. 8(a) above: one (1) month (“Initial Term”), and shall extend for additional, successive one (1) month periods (“Renewal Term”) until the earlier of (i) termination in accordance with this Agreement; or (ii) until either party provides written notice of non-renewal of this Agreement to the other party not less than ten (10) days prior to the expiration of the then current Initial Term or Renewal Term.
ii. Where You pay annually under Sec. 8(b) above: one (1) year (“Initial Term”), and shall extend for additional, successive one (1) year periods (“Renewal Term”) until the earlier of (i) termination in accordance with this Agreement; or (ii) until either party provides written notice of non-renewal of this Agreement to the other party not less than thirty (30) days prior to the expiration of the then current Initial Term or Renewal Term. Alternatively, and by providing TES with written notice no less than thirty (30) days prior to the end of the then current Initial Term or Renewal Term, You can change your account to pay monthly instead of annually.
b. Termination by TES. TES can terminate, suspend, or discontinue this Agreement, with or without cause, at any time upon written notice to You.
c. Termination for Cause. Either party can terminate this Agreement in whole or in part upon written notice to the other party, effective as of the date specified in such notice, if the other party has materially breached this Agreement and the breach is not cured within fifteen (15) days after the date of the initial written notice of such breach.
d. Effects of Termination. Upon the effective date of termination or discontinuation, You will (1) cease all use of the Service; (2) deliver to TES, or purge and destroy as directed by TES, any and all components of the Service; and (3) make arrangements with TES for the return of Customer User-Generated Content within forty-five (45) days from the effective date of termination. TES is not obligated to retain Customer User-Generated Content for any period of time greater than forty-five (45) calendar days from the effective date of termination or discontinuation. If You do not make mutually agreed to arrangements with TES to return Customer User-Generated Content to You within that time, TES may delete and/or dispose of it in our sole discretion. If the Services, or any component thereof, are terminated, all amount due to TES will become immediately owning and You acknowledge that you are not entitled to any refunds.
e. Survival. Those provisions, which by their nature are meant to survive the termination or expiration of this Agreement, shall survive any termination or expiration of this Agreement, including, without limitation Sections 7 through 9, and 11 through 17.
10. Support and Availability.
a. Customer Support and Training. Subject to Your compliance with the Agreement, we will provide You with Customer Support at TES’s regular hourly rate, unless You have purchased Preferred Services, in which case Customer Support will be provided at no additional charge. If Your request does not fall within “Customer Support” as defined herein, performance by TES will be subject to TES’s then current rates. Additionally, if requested and agreed to between the parties, TES will provide training at TES’s then current rates.
b. Enhancements. Any fully released enhancements will be provide to You as TES makes such enhancements and releases generally available and pursuant to the same terms and conditions as set forth herein.
c. Data Storage. You will receive data storage subject to TES’s published and then current storage rates and limitations set forth on the TES website as may be updated from time to time. TES will endeavor to notify You when Your storage reaches 90% of the maximum allowed, but TES’s failure to do so will not relieve You of Your obligation to pay for additional storage if You should exceed Your maximum storage capacity.
d. Availability and Hosting. TES will endeavor to provide You with a twenty-four (24) hour notice of system maintenance that requires downtime. However, TES is not required to provide notice and TES does not guarantee that TES will provide You with any such notice; nor does TES guarantee that the Service will be available to You at all times. Top Echelon will host the Services on its web servers and provide all technical and maintenance functions associated with hosting the Services. However, technical support that is not reasonably related to the virtual hosting of the Services is subject to TES’s then current rates. For an additional fee, TES may provide domain hosting services for Your website.
11. Proprietary Rights.
a. The Services. The Services and all related content and materials, including their text, audio, video, graphics, charts, photographs, interfaces, icons, software, computer code, data, trademarks, logos, slogans, names of products and services, documentation, other components and content (including any and all reports and analytics), and the design, selection, and arrangement of content are exclusively the property of TES or, as applicable, its suppliers and licensors, and are protected by copyright, trademark, and other Intellectual Property Rights pursuant to Applicable Laws. Any unauthorized use of any trademarks, trade dress, copyrighted materials, or any other Intellectual Property Rights belonging to TES or any third party is prohibited and may be prosecuted to the fullest extent of the law. The Services may contain references to third-party marks and copies of third-party copyrighted materials, which are the property of their respective owners. Except as may be expressly described in this Agreement, no licenses or other rights, express or implied, are granted by TES to You under any patent, copyright, trademark, trade secret, or other Intellectual Property Right of TES and all such rights are reserved and retained by TES. Copyright © 2015 Top Echelon Software, LLC. All rights reserved.
b. Third Party Software. The Services may be performed with or contain software governed by licenses from third parties (“Third Party Software”), including any software component that is subject to any open-source copyright license agreement (“Open Source”). Notwithstanding anything to the contrary in this Agreement, all Third Party Software is licensed to You solely under the terms of the corresponding third party license agreements, if applicable. TES makes no representation or warranty concerning Third Party Software and has no obligation or liability with respect to any Third Party Software.
c. User-Generated Content. The Services may allow You to provide User-Generated Content, including without limitation by participating in forums, user groups, or discussion boards, by uploading or providing photographs or other media, by submitting articles, by commenting on blog posts or articles, or by populating a user or company profile. You, alone, are responsible for Customer User-Generated Content that You provide, as well as Your use of any other user’s User-Generated Content, and for the legality, originality, and appropriateness thereof. User-Generated Content is not generated by TES. You understand and acknowledge that certain features of the Services may allow or require User-Generated Content that You provide to be made available, including publicly available, to other users and that, accordingly, those other users may be able to access and use Customer User-Generated Content. By providing Customer User-Generated Content You represent and warrant that You are the creator and owner of Customer User-Generated Content or that You otherwise have the full ability and all legal rights, permissions, and consents necessary to provide Customer User-Generated Content as contemplated by this Agreement. By providing Customer User-Generated Content, You agree not to claim that any use of that Customer User-Generated Content by TES, any other user, or any third party infringes or violates Your or any person’s Intellectual Property Rights, rights of privacy, rights of publicity, or other rights. Subject to the right and license granted to TES below, You retain any copyright or other Intellectual Property Rights You have in Your User-Generated Content.
d. User-Generated Content License. If You provide Customer User-Generated Content, You agree to grant, and You hereby grant, TES a perpetual, irrevocable, transferable, assignable, sublicensable, royalty-free, fully paid-up, worldwide right and license to copy, modify, adapt, reformat, reorganize, translate, excerpt, prepare derivative works of, store, publish, perform, display, license, exploit, and otherwise use and distribute, in all media and distribution methods now known or later developed, that Customer User-Generated Content for purposes of making it available to other users and the public, as well as for TES’s own business purposes (including, without limitation, for compliance with law, audit purposes, aggregation and analytics and the marketing and development of products and services).
e. User-Generated Content Review. TES reserves the right, but does not have the obligation, to, at any time and for any reason: review, prescreen, edit, redact, otherwise modify, reorganize, or recategorize User-Generated Content; delete User-Generated Content from the Services; and archive or otherwise store any User-Generated Content. TES reserves the right to impose limits on Service features (e.g., the ability to provide User-Generated Content) and to restrict Your access to all or parts of the Services at any time for any reason, including, without limitation, any breach of this Agreement. You understand that, even after removal or deletion, User-Generated Content You provided may remain viewable to and may have been copied or stored by other Service users and members of the public. If You believe that any content on the Services infringes any copyright that You own or control, please follow the process described below under “Copyright Policy.” If You believe that anything on the Services violates Applicable Law or breaches any provision of this Agreement, please notify TES.
f. Names and Marks. Unless TES gives You express written permission, You may not use TES’s names, trade names, trademarks, service marks, or logos (collectively the “TES Marks“) in any other manner or form, other than as described in this section, regardless of the reason or purpose. Subject to Your compliance with the Agreement and any other reasonable TES requirement (as may be provided by TES from time to time), TES grants You a revocable, non-transferable, non-sublicensable, non-assignable, non-exclusive, limited license to use the TES Marks in accordance with the terms and conditions of this Agreement and the specifications of the Services, a phrase such as “Powered by Top Echelon” or a TES trademark or logo must appear in a prominent location on the “home” page of the applicable website and all pages utilizing the Services to deliver content. You will provide TES from time to time with samples of Your usage of the TES Marks. TES reserves the right to terminate or suspend Your license to TES Marks at any time and in its sole discretion. In any event, the license granted in this section shall automatically terminate upon any termination or expiration of this Agreement.
g. Copyright Policy. TES respects the Intellectual Property Rights of others and TES asks that users do the same. In accordance with the Digital Millennium Copyright Act (“DMCA”), located at 17 U.S.C. § 512, and other Applicable Laws (to the extent the DMCA and such other laws apply), TES strives to expeditiously remove any infringing material from the Service if we become aware of the same. It is TES policy, in appropriate circumstances, to terminate the accounts or Service access of users who are repeat infringers charged with infringement. If You believe that anything on the Service infringes any copyright that You own or control, please provide the TES designated agent identified below with a notice that contains the following information:
i. A description of the copyrighted work(s) that you claim have been infringed;
ii. A description of the allegedly infringing material, including its location on the Service;
iii. A statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law;
iv. Your email address, telephone number, and mailing address;
v. A statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or are authorized to act on the copyright owner’s behalf; and
vi. An electronic or physical signature of a person authorized to act on behalf of the copyright owner.
Your notice must meet the then-current requirements implemented by the DMCA. Contact information for our designated agent for notice of claims of copyright infringement is: email@example.com.
a. Confidential Information. In addition to the information described as Confidential Information in this Agreement, “Confidential Information” shall mean any non-public and proprietary information that You knows or reasonably should know is Confidential Information of the other party, whether or not marked or identified as confidential or proprietary by TES and will remain TES’s sole property.
b. Obligations. You agree to take the same care with TES’s Confidential Information as You take to protect the confidentiality of Your own Confidential Information, but in no event less than a reasonable degree of care. You shall take (and shall cause Your employees and permitted agents receiving TES’s Confidential Information to take) all steps reasonably required to avoid disclosure of Confidential Information in Your possession to any third party, except with prior written consent of TES. You shall use TES’s Confidential Information only as necessary to perform its obligations under this Agreement. Your right to use TES’s Confidential Information expires upon expiration or termination of this Agreement, provided however, that Your obligation to continue protecting TES’s Confidential Information survives termination or expiration for any reason. If You have actual knowledge that Confidential Information of TES has been disclosed or accessed by an unauthorized party, You shall give TES prompt notice of such event in writing.
c. Exemptions. The prohibitions contained in this Section 12 will not apply to information (i) already lawfully known to You without use of TES’s Confidential Information; (ii) disclosed in published materials in the public domain; (iii) lawfully obtained from any third party not under a duty of confidentiality to TES; or (iv) independently developed by You without use of TES’s Confidential Information. You may disclose Confidential Information as required to comply with orders of governmental jurisdiction over it, if You (a) unless prohibited from doing so, give TES prompt written notice so that TES can seek a protective order or other appropriate remedy or approve the disclosure, as appropriate, (b) discloses only such Confidential Information as it is legally required to disclose, and (c) uses its best efforts to obtain confidential treatment for any Confidential Information so disclosed. The parties acknowledge that a breach of any of the confidentiality obligations in this Agreement may cause irreparable harm to the other party and its business, as to which monetary damages may be difficult to ascertain or an inadequate remedy.
13. Disclaimer of Warranties.
a. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES ARE PROVIDED “AS IS,” “AS AVAILABLE,” WITH ALL FAULTS, AND WITHOUT ANY WARRANTY OF ANY KIND AND TES EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND WITH RESPECT TO THE SERVICES (EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE), INCLUDING WITHOUT LIMITATION THOSE REGARDING AVAILABILITY, QUALITY, ACCURACY, MERCHANTABILITY, FITNESS FOR ANY USE OR PURPOSE, COMPATIBILITY WITH ANY STANDARDS OR USER REQUIREMENTS, TITLE, AND NONINFRINGEMENT, AS WELL AS ANY ARISING BY OPERATION OF LAW OR FROM A COURSE OF DEALING OR USAGE IN TRADE. YOUR USE OF THE SERVICES IS AT YOUR OWN RISK.
b. TES DOES NOT WARRANT OR GUARANTEE THE QUALITY, COMPLETENESS, TIMELINESS, OR AVAILABILITY OF THE SERVICES, NOR DOES TES WARRANT OR GUARANTEE THAT ANY DATA, INFORMATION, OR MATERIAL ON THE SERVICES IS ACCURATE OR RELIABLE. TES DOES NOT WARRANT OR GUARANTEE THAT AVAILABILITY OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE, THAT ANY DEFECTS IN THE SERVICES WILL BE CORRECTED, OR THAT THE SERVICES OR THE SERVERS THAT MAKE THE SERVICES AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL CONDITIONS OR COMPONENTS. TES IS NOT RESPONSIBLE FOR ANY TYPOGRAPHICAL ERRORS ON OR RELATED TO THE SERVICES. TES HAS NO RESPONSIBILITY FOR THE TIMELINESS, DELETION, MISDELIVERY, OR FAILURE TO STORE ANY USER COMMUNICATION OR USER-GENERATED CONTENT. SERVICES ARE NOT GUARANTEED TO IMPROVE ABILITIES, SKILLS, OR PERFORMANCE.
c. TES DOES NOT WARRANT OR GUARANTEE THAT YOUR USE AND/OR ACCESS TO THE SERVICES AND USER-GENERATED CONTENT IS COMPLIANCE WITH APPLICABLE LAW. YOU ACKNOWLEDGE THAT YOU ARE SOLELY RESPONSIBLE FOR ENSURING THAT YOUR USE AND/OR ACCESS TO THE SERVICES AND USER-GENERATED CONTENT IS FULLY COMPLIANT WITH ALL APPLICABLE LAWS, INCLUDING, WITHOUT LIMITATION, ALL EMPLOYMENT-RELATED LAWS AND REGULATIONS.
d. YOU ACKNOWLEDGE AND AGREE THAT THE SERVICES AND ACCESS THERETO MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET (INCLUDING YOUR INTERNET CONNECTION), WIRELESS NETWORKS, TELECOMMUNICATIONS, AND ELECTRONIC COMMUNICATIONS. TES IS NOT RESPONSIBLE FOR ANY DELAYS, INACCURACIES, DELIVERY FAILURES, OR OTHER FAILURES OR DAMAGE RESULTING FROM THOSE PROBLEMS OR ANY OTHER PROBLEMS OUTSIDE OF FALCON’S REASONABLE AND DIRECT CONTROL, INCLUDING WITHOUT LIMITATION TELECOMMUNICATIONS SERVICES, THE INTERNET, YOUR INTERNET CONNECTION, WIRELESS NETWORKS, AND ANY THIRD-PARTY SOFTWARE OR CONTENT.
e. NO ADVICE OR INFORMATION, ORAL OR WRITTEN, OBTAINED BY YOU FROM TES OR IN ANY MANNER FROM THE SERVICES CREATES ANY WARRANTY.
14. Limitation of Liability.
a. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL TES, ITS AFFILIATES OR RELATED ENTITIES, OR THEIR RESPECTIVE DIRECTORS, OFFICERS, OWNERS, EMPLOYEES, CONTRACTORS, REPRESENTATIVES, CONSULTANTS, AGENTS, SUPPLIERS, LICENSORS, SUCCESSORS, OR ASSIGNS (TOGETHER, “TES PARTIES”) BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL LOSS OR DAMAGE, OR ANY OTHER LOSS OR DAMAGE OF ANY KIND (INCLUDING DAMAGES FOR LOSS OF PROFITS, INTERRUPTION, LOSS OF DATA, OR ANY OTHER PECUNIARY LOSS), ARISING OUT OF OR IN CONNECTION WITH THE SERVICES OR YOUR ACCESS TO OR USE OF (OR INABILITY TO ACCESS OR USE) THE SERVICES, INCLUDING, WITHOUT LIMITATION, THE PROVISION OF INFORMATION AND ANY RELIANCE ON USER-GENERATED CONTENT OR TES IP, WHETHER THE CLAIM IS BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, WARRANTY, OR OTHERWISE, AND EVEN IF A TES PARTY HAS EXPRESS KNOWLEDGE OF THE POSSIBILITY OF THE LOSS OR DAMAGE. YOUR SOLE AND EXCLUSIVE REMEDY IS TO STOP ACCESSING AND USING THE SERVICES.
b. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES, SO SOME OF THE ABOVE EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU. TO THE EXTENT YOUR JURISDICTION DOES NOT ALLOW THE ABOVE EXCLUSIONS OR LIMITATIONS, THE EXCLUSIONS AND LIMITATIONS SHALL APPLY TO THE MAXIMUM EXTENT ALLOWED UNDER APPLICABLE LAW.
b. Procedures. TES will (i) promptly notify the You in writing of any claim, suit or proceeding for which indemnity is claimed, provided that failure to so notify will not relieve Your obligation except to the extent it is prejudiced thereby, and (ii) allow You to solely control the defense of any claim, suit or proceeding and all negotiations for settlement. In no event will You enter into any third party settlement or other agreements, which would in any manner whatsoever affect, the rights of, or bind TES in any manner to such third party, without the prior written consent of TES. Regardless of any conditions or restrictions mentioned in this Section 15, TES has the right, at its own cost and expense, to be represented by counsel of its choosing at any proceeding or settlement discussions related to any matter for which You are obligated to provide indemnification hereunder.
16. Governing Law and Dispute Resolution.
a. Dispute Resolution. In the event of a dispute between the parties arising under the Agreement, each party will act in a commercially reasonable manner to resolve the dispute without litigation.
b. Governing Law and Venue. This Agreement is governed by the laws of the State of Ohio, United States, without regard to or application of choice-of-law rules or principles. The parties irrevocably consent to the jurisdiction of the state and federal courts of Stark County, Ohio. Both parties waive any defense to personal jurisdiction in Ohio and venue in the state or federal courts of Stark County, Ohio. The United Nations Convention on Contracts for the International Sale of Goods does not apply. Client agrees that if this Agreement is translated into another language, the original English version governs.
c. Injunctive Relief. Each party hereby acknowledges that the unauthorized disclosure or use of Confidential Information (or threat thereof) or a breach or threatened breach of the other party’s Intellectual Property Rights, would cause irreparable harm to the other party and its business, as to which monetary damages may be difficult to ascertain or an inadequate remedy. Each party agrees that the other party shall have the right, in addition to its other rights and remedies, to seek injunctive relief for any violation of confidentiality obligations in this Agreement or the other party’s Intellectual Property Rights.
17. General Terms.
a. Relationship. This Agreement will not be construed as creating or constituting a partnership, joint venture, or agency relationship between the parties. Neither party will have the power to bind the other or incur obligations on the other’s behalf without the other’s prior written consent. This Agreement does not confer any rights, remedies, or benefits upon any person other than the parties.
b. Force Majeure. If either party is prevented from performing any of its obligations under this Agreement due to any cause beyond the party’s reasonable control, including, without limitation, an act of God, fire, flood, explosion, terrorism, disease, pandemic, war, embargo, government regulation, third party labor shortages, stoppages, or strikes, civil or military authority, acts or omissions of carriers, transmitters, providers, or acts of vandals, or hackers (each, a “force majeure event”), then the time for that party’s performance will be extended for the period of the delay or inability to perform due to such occurrence, except that You will not be excused from the payment of any sums of money owed by You. If a party suffering a force majeure event is unable to cure that event within sixty (60) days after the event commences, the other party may terminate this MSA. Notwithstanding the foregoing, neither party shall be relieved from its obligations under this Agreement with respect to Confidential Information by a force majeure event.
d. Assignment. You cannot assign this Agreement, in whole or in part, without the prior written consent of TES. Any attempt to do so will be a material breach of this Agreement and will be void. Subject to the foregoing, this Agreement is binding upon and inures to the benefit of the parties’ respective successors and assigns.
e. Waiver. This Agreement will be construed and interpreted fairly, in accordance with the plain meaning of its terms, and there will be no presumption or inference against the party drafting this Agreement in construing or interpreting the provisions hereof. No failure of either party to exercise or enforce any of its rights under this Agreement will act as a waiver of subsequent breaches and the waiver of any breach will not act as a waiver of subsequent breaches.
f. Severability. If any provision of this Agreement is held by a court or other tribunal of competent jurisdiction to be unenforceable, that provision will be enforced to the maximum extent permissible under Applicable Law and the other provisions of this Agreement will remain in full force and effect to the maximum extent permissible under Applicable Law.