Career Town Services. This is a legal agreement (“Agreement”) between CHAMPIONS OF DIVERSITY MEDIA INC. DBA CAREER TOWN NETWORK subscribers (hereinafter referred to as “Subscriber”) and Career Town Network LLC. (“Career Town”), for use of the Career Town services selected or initiated by Subscriber (the “Services”). Services in this Agreement do not refer to or include any professional services or works for hire (“Professional Services”). Professional Services must be memorialized in a statement of work, and will be governed by a separately executed agreement. In order to use certain Services, Subscriber may be required to download content, software, and/or required to agree to supplemental terms and conditions. These supplemental terms and conditions are hereby incorporated into this Agreement. Career Town may elect to change or supplement the terms of this Agreement from time to time at its sole discretion. Career Town will exercise commercially reasonable business efforts to provide notice to Subscriber of any material changes to this Agreement. Within five (5) business days of posting changes to this Agreement, they will be binding on Subscriber. If Subscriber does not agree with the changes, Subscriber should discontinue using the Services. If Subscriber continues using the Services after such five (5) business day period, Subscriber will be deemed to have accepted the changes to the terms of this Agreement. Use of the Services requires one or more compatible devices, Internet access (fees may apply), and certain software (fees may apply), and may require obtaining updates or upgrades from time to time. Because use of the Services involves hardware, software, and Internet access, Subscriber’s ability to use the Services may be affected by the performance of these elements. High speed Internet access is recommended. Subscriber acknowledges and agrees that such system requirements, which may change from time to time, are Subscriber’s responsibility.
1. Subscriber Information. Subscriber may be required to provide information in order to register for and/or use certain Services. Subscriber warrants that all such information is accurate.
2. Changes to Services / Beta Services. Career Town may, at its sole discretion, modify the features of the Services from time to time without prior notice. Career Town may also, at its sole discretion and from time to time, make available additional features and/or functionalities to a Service which may, but are not required to, be added to a Service by Subscriber at an additional cost (“Cost Feature”). If Subscriber elects to add a Cost Feature, it may do so by obtaining a quote from its local Career Town sales department. Career Town may, at its sole discretion, make available to Subscriber a “beta” version of any of the Services (the “Beta Services”) for purposes of evaluation and feedback. Subscriber acknowledges that the Beta Service(s) Subscriber is evaluating may contain bugs, errors and other problems and is provided to Subscriber “AS-IS.” Career Town disclaims any warranty or liability obligations to Subscriber of any kind with respect to the Beta Services. Subscriber further acknowledges the importance of communication between Career Town and Subscriber during Subscriber’s use of the Beta Services and hereby agrees to receive related correspondence and updates from Career Town. In the event Subscriber requests to opt-out from such communications, Subscriber’s participation in the Beta Services will also be canceled. Subscriber also hereby acknowledges that Career Town has not made any representations, promises or guarantees that the Beta Services will ever be announced or made available to anyone in the future and that Career Town has no express or implied obligation to Subscriber to announce or introduce the Beta Services. During the Career Town Beta program, Subscriber will be asked to provide feedback regarding Subscriber’s use of the Beta Service(s). Subscriber agrees that Career Town is free to use and incorporate into Career Town products and services any suggestions, ideas, recommendations, bug reports, or other feedback (including, but not limited to, feedback on any Beta Services) that Subscriber provides to Career Town without payment of compensation to Subscriber.
3. Payment.
a. All fees due under this Agreement or any Pricing Addendum shall be paid within five (5) days of the due date. Any overdue payment of fees due under this Agreement or any Pricing Addendum shall bear interest until paid at a rate equal to the lesser of 1.5% per month or the highest amount allowed by law. Career Town may suspend the Services for non-payment of undisputed fees. Additionally, Career Town is entitled to recover any reasonable sums expended in connection with the collection of sums not paid when due. Subscriber shall pay all taxes (exclusive of taxes based on the net income of Career Town), levies, or charges imposed by any governmental authority of any kind whatsoever applicable to any of the materials, goods, Services or related components provided by Career Town to Subscriber.
4. Term and Termination.
a. Term and Termination of Agreement. This Agreement will commence on the date Subscriber accepts this Agreement. Subscriber may terminate this Agreement by providing thirty (30) days prior notice to Career Town. Such termination will be effective on the last day of the then-current term, subject to thirty (30) days prior notice.
b. Surviving Provisions. The following provisions will survive the expiration or termination of this Agreement: Sections 4 (as to amounts due and owing as of this Agreement’s expiration or termination date), 6, 7, 8 and 9. Upon any termination of this Agreement, Subscriber must cease any further use of the Services and destroy any copies of associated software within its possession and control (to the extent not prohibited by applicable law).
5. Subscriber Responsibilities.
a. Account Number/Password. Except when Subscriber’s account number/password is obtained by a third party as a result of a material breach of Career Town’s physical or computer system security arising from circumstances within Career Town’s control, Subscriber agrees that Subscriber is solely responsible for maintaining the confidentiality of Subscriber’s username, account number and passwords. Subscriber agrees to immediately notify Career Town of any unauthorized use of Subscriber’s account of which Subscriber becomes aware.
b. Content. Except when Subscriber’s account is accessed by a third party as a result of a material breach of Career Town’s physical or computer system security arising from circumstances within Career Town’s control, Subscriber agrees that Subscriber is solely responsible for the content of all visual, written or audible communications or any other material (“Content”) displayed, uploaded, exchanged or transmitted on, through or by Subscriber’s account(s). Under no circumstances will Career Town be liable in any way for the Content, including, but not limited to, any errors or omissions in any Content, or any loss or damage of any kind incurred as a result of the use of, access to, or denial of access to the Content. Subscriber understands and agrees that by displaying, uploading, exchanging or transmitting Content while using the Services or otherwise providing Content to a Career Town website or space (“Site”), Subscriber automatically grants (and warrants and represents it has a right to grant) to Career Town a world-wide, royalty-free, sublicensable (so Career Town affiliates, contractors, resellers and partners can deliver the Services), perpetual, irrevocable license to use, modify, publicly perform, publicly display, reproduce and distribute the Content in the course of offering the Sites and/or the Services. If at any time Subscriber is dissatisfied with a Site or the Services or objects to any material on a Site, Subscriber’s sole remedy is to cease using the Site or the Services (to the extent not prohibited by applicable law). Career Town does not endorse and has no control over what Subscribers or other users of the Service (“User(s)”) post or submit to a Site. Subscriber shall contact Career Town Customer Support in accordance with the contact information provided in the applicable Services website if Subscriber becomes aware of misuse of the Services by any person. Career Town cannot guarantee the accuracy of any information submitted by any User of a Site, nor any identity information about any User. Career Town reserves the right, in its sole discretion, to reject, refuse to post or remove any profile, posting or other data, or to restrict, suspend, or terminate Subscriber’s or any User’s access to all or any part of a Site or Services at any time, for any or no reason, with or without prior notice, and without liability. Career Town may investigate any complaints and violations that come to its attention and may take any action that it believes is appropriate, including, but not limited to, issuing warnings, removing the Content, terminating accounts and/or User profiles or reporting Subscriber or any User to law enforcement authorities. However, because situations and interpretations vary, Career Town also reserves the right not to take any action.
c. Communications. Subscriber agrees that Subscriber will not use the Services to send unsolicited email outside Subscriber’s company or organization (e.g., “spam”) in violation of applicable law, falsify any email header information when sending emails (e.g., “spoofing”), or attempt to acquire sensitive information such as usernames, passwords and credit card details by masquerading as a trustworthy entity in an electronic communication (e.g., “phishing”). Subscriber further agrees not to use the Services to communicate any message or material that is harassing, libelous, threatening, obscene, or that would violate the intellectual property rights of any party, give rise to civil liability, constitute a criminal offense, or is otherwise unlawful under any applicable law or regulation. Although Career Town is not responsible for any such communications, Career Town may suspend any such communications of which Career Town is made aware of, at any time upon prompt notice to Subscriber. Subscriber agrees to indemnify, defend and hold harmless Career Town from any and all third party claims, liability, damages and/or costs (including, but not limited to, attorneys’ fees) arising from Subscriber’s violation of this Section 6.
d. Privacy. Use of the Sites and the Services constitutes consent by Subscriber to Career Town’s and/or its affiliates’ collection and use of such information and, for European Economic Area (EEA) customers, to the transfer of such information to a location outside the EEA. Use of Sites and the Services is also subject to Career Town’s Privacy Statement (located at http://www.CareerTown.Net) which is incorporated into this Agreement by this reference. The foregoing notwithstanding, Career Town may contact Subscriber via e-mail or otherwise with information relevant to Subscriber’s use of the Services and payment obligations, regardless of whether Subscriber has opted out of receiving such notices. Subscriber’s also agrees to have Subscriber’s name and/or email address listed in the header of certain communications Subscriber initiates through the Services.
6. Warranty Disclaimer. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, SUBSCRIBER UNDERSTANDS AND AGREES THAT THE SERVICES, SITES, AND ANY ASSOCIATED SOFTWARE, ARE PROVIDED “AS IS” AND “AS AVAILABLE.” TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW, CAREER TOWN, AND ITS SUPPLIERS, RESELLERS AND AFFILIATES, EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. CAREER TOWN, AND ITS SUPPLIERS, RESELLERS AND AFFILIATES, MAKE NO WARRANTY OR REPRESENTATION REGARDING THE SERVICES, ANY INFORMATION, MATERIALS, GOODS OR SERVICES OBTAINED THROUGH THE SERVICES OR THE SITES, OR THAT THE SERVICES WILL MEET ANY SUBSCRIBER REQUIREMENTS, OR BE UNINTERRUPTED, TIMELY, SECURE OR ERROR FREE. Some jurisdictions do not allow the disclaimer of implied warranties, so the above disclaimer may not apply to Subscriber. This limited warranty gives Subscriber specific legal rights, and Subscriber may also have other rights which vary by jurisdiction. Subscriber agree to indemnify, defend and hold harmless Career Town, its affiliates, officers, directors, employees, consultants, agents, suppliers and resellers from any and all third party claims, liability, damages and/or costs (including, but not limited to, attorneys’ fees) arising from Subscriber’s use of the Services, Subscriber’s violation of this Agreement or the infringement or violation by Subscriber or any other user of Subscriber’s account, of any intellectual property or other right of any person or entity. Without limiting the foregoing, the Services are not designed or licensed for use in hazardous environments requiring fail-safe controls, including without limitation operation of nuclear facilities, aircraft navigation/communication systems, air traffic control, and life support or weapons systems, and Career Town, and its suppliers, resellers and affiliates, specifically disclaim any express or implied warranty of fitness for such purposes.
7. Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL CAREER TOWN, OR ITS SUPPLIERS, RESELLERS OR AFFILIATES, BE LIABLE FOR ANY SPECIAL, INCIDENTAL, PUNITIVE, INDIRECT, EXEMPLARY OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, PROCUREMENT OF SUBSTITUTE GOODS AND/OR SERVICES, OR ANY OTHER PECUNIARY LOSS) INCLUDING BUT NOT LIMITED TO CLAIMS ARISING OUT OF, OR RESULTING FROM THE USE OF OR INABILITY TO USE THE SERVICES, THE SITES, OR ASSOCIATED SOFTWARE, WHETHER ARISING IN TORT (INCLUDING NEGLIGENCE), CONTRACT OR ANY OTHER LEGAL THEORY, EVEN IF CAREER TOWN HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY CASE, TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW, CAREER TOWN’S (AND ITS SUPPLIERS’, RESELLERS’ AND AFFILIATES’) MAXIMUM CUMULATIVE LIABILITY AND SUBSCRIBER’S EXCLUSIVE REMEDY FOR ANY CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL BE LIMITED TO THE AMOUNT ACTUALLY PAID BY SUBSCRIBER FOR THE SUBSCRIPTION SERVICE FEES IN THE PREVIOUS TWELVE (12) MONTHS PRECEDING THE EVENT OR CIRCUMSTANCES GIVING RISE TO SUCH CLAIMS EVEN IF ANY REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE. THIS LIMITATION IS CUMULATIVE AND NOT PER INCIDENT (I.E., THE EXISTENCE OF TWO OR MORE CLAIMS WILL NOT ENLARGE THIS LIMIT). Because some states and jurisdictions do not allow the exclusion or limitation of liability, the above limitation may not apply to Subscriber.
8. General.
a. Proprietary Rights. Career Town and/or its suppliers, as applicable, retain ownership of all proprietary rights in the Services and Sites (excluding all Subscriber Content) and in all trade names, trademarks, service marks, logos, and domain names (“Career Town Marks”) associated or displayed with the Services. Subscriber may not frame or utilize framing techniques to enclose any Career Town Marks, or other proprietary information (including images, text, page layout, or form) of Career Town without Career Town’s express written consent. Subscriber may not use any meta tags or any other “hidden text” utilizing Career Town Marks without Career Town’s express written consent. Subscriber shall retain ownership of all proprietary rights, copyright and any other rights it already holds in any Subscriber trade names, trademarks, service marks, logos, and domain names.
b. Use of Subscriber’s Name and Logo. For certain Services, Subscriber agrees that Career Town may use Subscriber’s name, logo and other trademarks or service marks of Subscriber (collectively “Subscriber’s Trademarks”) for the sole purpose of creating a co-branded site for Subscriber as part of the delivery of the Services. Nothing in this Agreement transfers to Career Town any right, title or interest in or to the Subscriber’s Trademarks, and all goodwill arising from use of the Subscriber’s Trademarks will inure to the Subscriber’s benefit.
c. Copyright. Subscriber retains copyright and any other rights it already holds in Content which Subscriber submits, posts or displays on or through, the Services. Subscriber may not post, modify, distribute, or reproduce in any way copyrighted material, trademarks, rights of publicity or other proprietary rights without obtaining the prior written consent of the owner of such proprietary rights. Career Town may deny access to the Sites or the Services to any User who is alleged to infringe another party’s copyright. Without limiting the foregoing, if Subscriber believes that Subscriber’s copyright has been infringed, it shall provide Career Town’s with the following information: (i) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; (ii) a description of the copyrighted work that Subscriber claim has been infringed; (iii) a description of where the material that Subscriber claim is infringing is located on the Services or a Site; (iv) Subscriber’s address, telephone number, and email address; (v) a written statement by Subscriber that Subscriber has a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; (vi) a statement by Subscriber, made under penalty of perjury, that the above information in Subscriber’s notice is accurate and that Subscriber is the copyright owner or authorized to act on the copyright owner’s behalf. In the event Subscriber’s content is removed pursuant to this process, Subscriber will receive information on how to file a counter-notice. Notices and counter-notices are legal notices distinct from regular Service activities or communications. As such, they are not subject to Career Town’s Privacy Policy. This means Career Town may publish or share them with third parties at Career Town’s discretion, and Career Town may produce them pursuant to a legal discovery request.
d. Assignment. Career Town may assign or delegate its obligations under this Agreement either in whole or in part, without the prior consent of Subscriber.
e. Governing Law. This Agreement and all actions for breach thereof will be governed, construed, and interpreted in accordance with the laws of the State of Ohio without regard to or application of choice of law rules or principles.
f. Interpretation and Conflicting Terms. This Agreement will be interpreted fairly in accordance with its terms and without any strict construction in favor of or against either party. This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof, and supersedes and replaces all prior or contemporaneous understandings or agreements, written or oral, regarding such subject matter. Career Town shall not be bound by terms additional to or different from those in this Agreement that appear in Subscriber’s acknowledgements, purchase orders, quotations, prior understandings, or in any other communications between the parties, unless such terms are expressly agreed to by amendment to this Agreement, and are executed by both Subscriber and Career Town. No person or entity not a party to this Agreement will be deemed to be a third party beneficiary of this Agreement or any provision hereof.
g. Force Majeure. Neither party will be responsible for failure of performance due to causes beyond its control. Such causes include (without limitation) accidents, acts of God, labor disputes, actions of any government agency, shortage of materials, acts of terrorism, or the stability or availability of the Internet or a portion thereof.
h. Waivers. The waiver of any one breach, default or right granted under this Agreement will not constitute the waiver of any subsequent breach, default or right granted. Any provision of this Agreement held to be illegal or unenforceable will be deemed amended to conform to applicable laws or regulations, or if it cannot be so amended without materially altering the intention of the parties, it will be stricken and the remainder of this Agreement will continue in full force and effect.
i. Use of the Services. Subscriber may use the Services only for as permitted under the terms and conditions of this Agreement or other written agreements between Subscriber and Career Town. Subscriber will not resell, distribute, use on a timeshare or service bureau basis, or otherwise directly generate income from the Services. Subscriber will not modify, make derivative works of, disassemble, decompile or reverse engineer the Sites, Services or any component thereof (except to the extent expressly permitted by law). For meeting Services, Subscriber may use the Services only for sessions or meetings in which Subscriber is an active participant.
j. Legal Compliance. Subscriber agrees that Subscriber will comply with all applicable laws and regulations in connection with Subscriber’s use of the Services, including, but not limited to: (a) with respect to personally identifiable information sent or received by Subscriber, all applicable privacy laws and regulations, (b) laws relating to the recording of communications, including, when required, advising all participants in a recorded Career Town meeting or event that the meeting or event is being recorded, and (c) laws relating to the use of VoIP-based services, if applicable. Subscriber represents that Subscriber is not an individual less than 18 years of age, or an emancipated minor, or over the age of 13 and possess legal parental or guardian consent to register for and use the Sites and Services. Subscriber acknowledges that the Services are subject to U.S. and local export control laws and regulations. Subscriber represents that Subscriber is not a citizen of an embargoed country or a prohibited end user under applicable U.S. or local export and anti-terrorism laws, regulations and lists. Subscriber will not export, re-export, divert, transfer or disclose any portion of the Services or any related technical information or materials, directly or indirectly, in violation of any applicable export law or regulation.
k. Career Town Software. In order to use certain Services, Subscriber may be required to download and install certain Career Town software (“Software”). In that event, Career Town hereby grants to Subscriber a limited, personal, non-exclusive, non-transferable, non-sublicensable license to use the Software as part of the Services in accordance with the terms of this Agreement. Subscriber may not use the Software for anything other than as intended by Career Town, and in conjunction with Subscriber’s lawful use of the Services. Subscriber may not use the Software in an attempt to, or in conjunction with, any device, program or service designed to circumvent technological measures employed to control access to, or the rights in, a content file or other work protected by the copyright laws of any jurisdiction. All rights not expressly granted by Career Town are hereby reserved. Subscriber agrees that Subscriber will not take any action to interfere with Career Town’s ownership of or rights in the Software. Subscriber agrees that, unless otherwise expressly permitted in this license, Subscriber will not: (i) reproduce, republish, display, frame, download (except as expressly authorized herein), distribute, or transmit the Software; (ii) to the extent permitted under applicable law, redistribute, encumber, sell, rent, lease, loan, sublicense, assign, or otherwise transfer rights to the Software; (iii) modify or create any derivative works based on the Software, including customization, translation, or localization; (iv) copy, reproduce, reuse in another product or service, modify, alter, or display in any manner any software or files, or parts thereof, included as part of the Software; (v) except to the extent expressly permitted by law, decompile, disassemble, reverse engineer, or otherwise attempt to derive the source code of the Software, or in any way ascertain, decipher, or obtain the communications protocols for accessing the Software, or the underlying ideas or algorithms of the Software (e.g., in an effort to develop other applications or services that provide similar or substitute or complimentary functionality to the Services); (vi) create or use any software other than as authorized by Career Town to access the Software; (vii) attempt to gain unauthorized access to the Software or to any account, application, platform, computer system or network associated with the Software; (viii) use the Software in any way that violates this Agreement, or any other agreements to which Subscriber is a party, or any law; and (ix) remove or alter any trademark, logo, copyright or other proprietary notices, legends, symbols or labels in or on the Software or associated with the Services.
l. Installation and Use of Third Party Services/Applications. Certain Services may allow Subscriber to evaluate and use third-party applications and/or services (“Third Party Offerings”). Subscriber’s use of Third Party Offerings will be governed by terms Subscriber must accept during the installation or registration process. Questions about the terms should be addressed directly to the Third Party Offering provider. Third Party Offerings may involve the exchange of data with the Services. Career Town is not responsible for Subscriber’s data outside of the Services or for modifications or deletions of Subscriber’s data made by third parties or their Third Party Offerings. If Subscriber has questions or concerns about the processing or handling of Subscriber’s data by Third Party Offering providers, Subscriber shall contact those providers directly. Subscriber bears all risks associated with using or relying upon Third Party Offerings. Career Town and the Third Party Offering provider does not warrant the accuracy, reliability, completeness, usefulness, non-infringement, or quality of any Third Party Offerings and hereby disclaims all express and implied warranties, including any implied warranties of merchantability or fitness for a particular purpose, relating to such Third Party Offerings. Career Town and the Third Party Offering provider shall not be liable or responsible in any way for any losses or damage of any kind, including lost profits or other indirect or consequential damages, relating to Subscriber’s use of or reliance upon any Third Party Offering.
