USER TERMS OF SERVICE

CLICK-TO-PROCEED AGREEMENT – MEMBERS

THIS CLICK-TO-PROCEED AGREEMENT describes the terms according to which, and conditions subject to which, DecisionDesk Inc., an Ohio corporation, will grant to you the right to use its cloud-based content submission, review and evaluation software platform.  Capitalized terms used in this Click‑To‑Proceed Agreement are defined in Section 9.

You may not click “Accept Terms of Service” unless you intend to enter into a legally binding and enforceable contract with DecisionDesk.  If you do not, you should click “Accept Terms of Service”

In consideration of these premises, and the representations, warranties and covenants set forth in this Agreement, and for other good and valuable consideration, the receipt and sufficiency of which you acknowledge, by clicking “Accept Terms of Service” you agree with DecisionDesk as to that set forth below.

 

1.     License Terms.

1.1           DecisionDesk hereby grants to you a limited, nonexclusive and nontransferable right and license for you to use the Software Product in accordance with this Agreement.

1.2           You may not (a) authorize or license any other party to use the Software Product or any part thereof (whether directly or indirectly), (b) modify or customize the Software Product or any part thereof, (c) create any derivative works in, or based on, the Software Product or any part thereof, (d) print, copy or reproduce the Software Product or any part thereof, (e) distribute, license, sublicense, promote, distribute, market, sell, lease, assign, convey, transfer or transmit the Software Product or any part thereof (whether physically or electronically) or (f) decompile, disassemble, decode or otherwise reverse engineer the Software Product or any part thereof.

1.3           All right, title and interest in and to each of the following is, shall be and at all times shall remain the exclusive property of DecisionDesk and any third parties whose software programs may have been, or may be, incorporated into the Software Product:  (a) the Software Product, the Object Code and the Source Code, (b) any software, software modifications, derivative works, processes, configurations, system referenced data, procedures and other intellectual property rights relating to data processing and information technology developed or held by either party hereto from its use of the Software Product or in the performance of its obligations according to this Agreement and (c) all copyright, trademark, patent, trade secret and intellectual property rights in the Software Product.  DecisionDesk, on behalf of itself and any third-parties with software that may have been, or may be, incorporated into the Software Product, reserves all of its, and all of such third-parties’, rights in the same.

1.4           Delivering Content to DecisionDesk may not be deemed a transfer to DecisionDesk of any right, title or interest therein except a perpetual and irrevocable right to use, modify, delete, supplement, publicly display, reproduce, distribute and transfer such Content via the Software Product and any other medium, which right is fully transferable by DecisionDesk.  You have no right whatsoever in the Content of any other User.

 

2.     Representations & Warranties.

2.1           DecisionDesk hereby represents and warrants to you that (a) it has the full right, power and authority to enter into, and fully perform its obligations according to, this Agreement and (b) DecisionDesk has the full right, power and authority to grant to you the rights and licenses described herein.

2.2           You hereby represent and warrant to DecisionDesk that (a) you have the full right, power, authority and capacity to enter into, and fully perform your obligations according to, this Agreement, (b) you are over the age of 13, (c) if you are under the age of majority, you have obtained the permission of your parent or guardian to use the Software Product, (d) all information you input into the Software Product is truthful and accurate, (e) your use of the Software Product does not violate any applicable law, (f) you own or otherwise have the legal right to deliver the Content to DecisionDesk, (g) your delivery of the Content to DecisionDesk does not result in you or any other party owing to any third party, and does not create in any third party the right to, any amounts, goods and/or services and (h) delivering the Content to DecisionDesk, nor the display of the Content to other users of DecisionDesk, including, specifically, the Reviewers, violates any of the rights of any person or entity.

 

3.     Fees.

3.1           If there are any Amounts Due by you, (a) you shall promptly pay the undisputed portion of such Amounts Due during the Invoice Period or (b) you hereby authorize DecisionDesk to obtain payment by using the credit card information you provided to DecisionDesk.  In respect of any Amounts Due, you shall be responsible for paying, and/or shall reimburse DecisionDesk for, all sales, use, excise, value-added, withholding or other taxes due or payable as a result of such Amounts Due (if any) and shall reimburse DecisionDesk for any fees, costs, expenses (including reasonable attorneys’ fees and costs) or other amounts incurred in collecting such Amounts Due (if any).  Interest at a rate of 1% per month shall accrue on any Amounts Due by you to DecisionDesk that are not paid when due.

3.2           You may request additional products and/or services by notifying DecisionDesk of such request.  Upon DecisionDesk’s acceptance of such request, the provisions of this Agreement Standard shall apply to DecisionDesk’s delivery and/or provision of such additional products and/or services.

 

4.     Use of the Software Product.

4.1           You hereby authorize DecisionDesk to access the Content, including any personal information you provide to DecisionDesk and any posting, regardless of whether you make such Content or postings publicly available, and to process such Content or postings in order to aid DecisionDesk in the creating Metrics.  The Metrics may also include any information uploaded or otherwise recorded by a Reviewer.  DecisionDesk shall maintain the Metrics so that neither you nor any Reviewer is specifically identified.

4.2           DecisionDesk performs technical functions necessary to offer the Software Product, including but not limited to transcoding and/or reformatting Content to allow its use throughout the Software Product.  DecisionDesk does not warrant the accuracy or quality of any such transcoding or reformatting and DecisionDesk disclaims all liability under any theory of equity or law out of any transcoding or reformatting.

4.3           When you sign up to become a User, we will ask you to choose a password.  You are entirely responsible for maintaining the confidentiality of your password.  You may not use the account, username, or password of another User at any time or to disclose your password to any third party.  You shall notify DecisionDesk immediately if you suspect any unauthorized use of your account or access to your password.  You are solely responsible for any and all use of your account.

4.4           The Software Product is for the personal use of Users.  The Software Product may not be used for direct commercial endeavors unless otherwise authorized by DecisionDesk.  DecisionDesk may remove commercial content in its sole discretion.  Illegal and/or unauthorized use of the Software Product, including collecting usernames, user id numbers, and/or email addresses of Users by electronic or other means for the purpose of sending unsolicited email or unauthorized framing of or linking to DecisionDesk’s website, or employing third party promotional sites or software to promote profiles for money, is prohibited.  Commercial advertisements, affiliate links, and other forms of unauthorized solicitation may be removed from User profiles without notice or explanation and may result in termination this Agreement.

4.5           DecisionDesk may reject, refuse to post or delete any Content for any or no reason, including Content that in the sole judgment of DecisionDesk violates this Agreement or which may be offensive, illegal or violate the rights of any person or entity, or harm or threaten the safety of any person or entity.  DecisionDesk assumes no responsibility for monitoring the Software Product for inappropriate Content or conduct.  If at any time DecisionDesk chooses, in its sole discretion, to monitor the Software Product, DecisionDesk nonetheless assumes no responsibility for the Content, no obligation to modify or remove any inappropriate Content, and no responsibility for the conduct of the User submitting any such Content.  You are solely responsible for the Content that you post on or through any of the Software Product, and any material or information that you transmit to other Users and for your interactions with other Users.

4.6           You are solely responsible for your interactions with other Users or any organization accepting or soliciting auditions or applications through the Software Product.  DecisionDesk may, but is not obligated to, become involved in any way with disputes between you and other Users or any organization accepting or soliciting auditions or applications through the Software Product.

 

5.     Indemnification; Limitations on Liability; Remedies.

5.1           You shall indemnify, defend and hold harmless DecisionDesk, and its shareholders, directors, officers, employees, agents and affiliates from and against any liabilities, costs, fees and/or damages that arise out of any claim for damages resulting from (a) any material inaccuracy or breach of the representations and warranties made by you in §2.2, (b) any material breach of a covenant made by you in this Agreement and/or (c) any material failure to perform, or any material failure to comply with, your obligations according to this Agreement.

5.2           THE SOFTWARE PRODUCT IS PROVIDED BY DECISIONDESK ON AN “AS-IS” BASIS.  ALL OTHER WARRANTIES, WHETHER ORAL OR WRITTEN, EXPRESS OR IMPLIED OR CONTRACTUAL OR STATUTORY, ARE EXPRESSLY DISCLAIMED.  WITHOUT LIMITATION, DECISIONDESK NEITHER REPRESENTS AND WARRANTS, NOR COVENANTS, THAT (a) THE OPERATION AND/OR USE OF THE SOFTWARE PRODUCT WILL BE UNINTERRUPTED OR ERROR-FREE, (b) THE SOFTWARE PRODUCT WILL PERFORM IN EVERY OPERATING ENVIRONMENT, (c) ALL DEFICIENCIES OR ERRORS IN THE SOFTWARE PRODUCT ARE CAPABLE OF CORRECTION OR (d) THE SOFTWARE PRODUCT MEETS THE REQUIREMENTS OF ANY PARTY WHATSOEVER.  THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ARE SPECIFICALLY DISCLAIMED.

5.3           NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, THE AGGREGATE DAMAGES THAT MAY BE RECOVERED BY YOU MAY NOT EXCEED AN AMOUNT CALCULATED BY DIVIDING “A” BY “B” WHERE “A” IS EQUAL TO THE FEES PAID TO DECISIONDESK BY THAT CLIENT WITH WHICH YOU ARE AFFILIATED IN THE CALENDAR YEAR IN WHICH A CLAIM IS BROUGHT AND “B” IS EQUAL TO THE NUMBER OF USERS OF SUCH CLIENT IN SUCH CALENDAR YEAR.

5.4           NEITHER PARTY HERETO MAY BE HELD LIABLE TO THE OTHER, OR TO ANY OTHER PARTY, FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES (INCLUDING LOST OR ANTICIPATED REVENUES OR PROFITS) ARISING FROM ANY CLAIM RELATING DIRECTLY OR INDIRECTLY TO THIS AGREEMENT, WHETHER BASED ON WARRANTY, CONTRACT OR TORT (WHETHER UNDER A THEORY OF NEGLIGENCE, STRICT LIABILITY OR OTHERWISE), EVEN IF AN AUTHORIZED REPRESENTATIVE OF SUCH PARTY IS ADVISED OF THE LIKELIHOOD OR POSSIBILITY THEREOF.

5.5           EACH PARTY HERETO ACKNOWLEDGES THAT THE OTHER PARTY HERETO HAS RELIED UPON THE LIMITATIONS ON LIABILITY SET FORTH IN THIS §5 AND, BUT FOR THEIR INCLUSION HEREIN, WOULD NOT HAVE ENTERED INTO THIS AGREEMENT.

5.6           You acknowledge (a) that DecisionDesk will suffer irreparable harm, and that the amount of monetary damages would be extremely difficult or impossible to calculate, if you breach your obligations according to this Agreement and (b) that if you breach your obligations according to this Agreement, DecisionDesk may seek, and you covenant not to dispute any attempt by DecisionDesk to seek, injunctive relief without proving actual damages and (c) that remedies sought by DecisionDesk in accordance with this §5.6 shall be in addition to, and without limitation of, any other rights to which DecisionDesk may be entitled according to this Agreement or Law.

 

6.     Your Obligations.

6.1           You shall (a) use the Software Product in accordance with this Agreement and all applicable Laws, (b) promptly report to DecisionDesk any flaws, errors, bugs, defects or other problems in or with the Software Product that you identify, (c) obtain the explicit consent of any person whose personally identifiable information you are inputting into the Software Product or, if such person is under the age of 13, the explicit consent of such person’s parent or legal guardian, (d) comply with the applicable provisions of the Privacy Policies and (d) otherwise comply with the provisions of this Agreement.

6.2           You may not use DecisionDesk’s logos or trademarks without DecisionDesk’s consent.

 

7.     Confidentiality.

7.1           If you receive Confidential Information, you (a) shall use such Confidential Information solely in connection with your proper use of the Software Product, (b) shall hold such Confidential Information in confidence and take reasonable precautions to protect such Confidential Information (including all precautions that you employ with respect to your confidential materials), (c) may not divulge any Confidential Information or any information derived therefrom to any third-party and (d) shall only divulge such Confidential Information to those who have a reasonable need to know such information.

7.2           The provisions of §7.1 may not be applied (a) to any Confidential Information that (1) is or becomes (through no improper action or inaction by you or those to whom you may have divulged such the) generally available to the public, (2) was in your possession or known by you prior to receiving it, (3) was properly disclosed to you without any obligation of confidentiality or (4) was discovered or created by you without reliance on such Confidential Information (as shown in your records) or (b) to disclosures required by Law or court order, provided that you (1) use reasonable efforts to limit disclosure and to obtain confidential treatment or a protective order with respect thereto, (2) have allowed DecisionDesk to participate in the proceedings related to such legal or court-ordered requirement (to the extent reasonably practical) and (3) cooperate reasonably with DecisionDesk’s efforts to contest or limit the scope of such required disclosure (if any).

 

8.     Term & Termination.

8.1           This Agreement shall remain in full force and effect until this Agreement’s termination according to §8.2.

8.2           DecisionDesk may terminate this Agreement (a) for any reason whatsoever, by notifying you of such termination no less than 10 days prior to the effective date thereof, (b) immediately, if you made a material inaccuracy of a representation or warranty in §2, (c) immediately, if you breach a covenant you made in this Agreement, (d) immediately, if you materially fail to perform, or comply with, your obligations according to this Agreement and (e) immediately, if you file a petition in bankruptcy, or have filed against you a petition in or if you make an assignment, or enter into some other arrangement, for the benefit of your creditors.

8.3                    Immediately upon the termination of this Agreement, (a) you will have no further right, title or interest in the Software Product or any part thereof, including any license in either of the same and (b) you will have no further right to use the Confidential Information and shall destroy or return, at the sole and absolute discretion of DecisionDesk, all copies thereof.

8.4           The provisions of §§1.2, 1.3, 3, 6 and 7, the provisions of this §8 and, as and where applicable, the provisions of §§9 and 10 shall survive any termination of this Agreement.

 

9.     Defined Terms.

“Agreement” means this Click-To-Proceed Agreement entered into by and between you and DecisionDesk.

“Amounts Due” means any amounts due to DecisionDesk according to the provisions of the Agreement.

“Confidential Information” means (a) information relating to this Agreement that is not generally known to the public or that constitutes a trade secret, (b) information that is owned, developed or otherwise acquired by DecisionDesk, including its financial data, business plans, customer information, software, programming, systems and use documentation, technical information, technology, designs, ideas, inventions, data, data formats and files, and all copies and tangible embodiments thereof, (c) the Software Product, the Object Code and the Source Code and (d) any software, software modifications, derivative works, processes, configurations, system referenced data, procedures and other intellectual property rights relating to data processing and information technology developed or held by DecisionDesk in the performance of its obligations according to this Agreement.

“Content” means the text, files, images, photos, video, sounds, musical works, works of authorship, applications, demographic information, any information personal to you, your likeness, or any other materials that you input into, post using or through the Software Product.

“DecisionDesk” means DecisionDesk Inc., an Ohio corporation.

“Law” means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree, other requirement or rule of law of any federal, state or local government or any agency or instrumentality thereof and any arbitrator, court or tribunal of competent jurisdiction.

“Metrics” means any type of measurement that might be used to gauge some quantifiable component of the Users and others using the Software Product.

“Object Code” means the machine-readable computer software code relating to the Software Product, including any Update or Upgrade, which code is substantially in binary form that is directly executable by a computer after processing without compilation or assembly.

“Privacy Policies” means each of the following, as the same may, from time-to-time, be amended by DecisionDesk in its sole discretion:  (a) DecisionDesk’s Privacy Policy, a copy of which may be found at http://www.decisiondesk.com/privacy‐policy/, and (b) DecisionDesk’s Privacy Policy for Users Under the Age of 13, a copy of which may be found at http://www.decisiondesk.com/privacy‐policy‐underage/.

“Reviewer” means an individual who, or entity that, may review, score, comment upon or otherwise access Content.

“Software Product” means DecisionDesk’s cloud-based content submission, review and evaluation software platform, including any third-party software embedded therein, any Updates and any Upgrades.

“Source Code” means (a) the computer software code comprising the statements, instructions and data relating to the Software Product displayed in a form readable and understandable by a programmer of ordinary skill, (b) technical documentation and specifications relating to the Software Product, including a description of the tools used to develop and maintain the Software Product, the compiler or assembler and compilation and execution procedures and (c) the computer software code, technical documentations and specifications relating to any Updates or Upgrades.

“Update” means any update, feature release (e.g., 2.0 to 2.1), patch release (e.g., 2.0.1 to 2.0.2), maintenance release, bug fix or modified form of the Software Product that performs comparable or improved functionality and which is not an Upgrade.

“Upgrade” means any new version or major release (e.g., 2.0 to 3.0) of the Software Product, including any changes to the Software Product that (a) substantially increase the speed, efficiency or ease of use of the Software Product or (b) add additional capabilities to, or otherwise improve the functions of, the Software Product.

“User” means any person who, or entity that, uses the Software Product.

 

10.  General Provisions.

10.1        Any notice required, or permitted, to be delivered by DecisionDesk hereunder shall be deemed delivered to you when delivered via the email address you provided to DecisionDesk and shall be deemed effective upon such delivery.

10.2        This Agreement, when taken together with the Privacy Policies, constitutes the entire agreement between the parties hereto as to the subject matter hereof and supersedes all prior documents, negotiations and drafts of such parties with respect to such subject matter, whether written or verbal.  No provision of this Agreement may be construed against either party hereto by reason of the drafting or preparation thereof.

10.3        DecisionDesk may change this Agreement from time to time and any such changes shall be effective upon your clicking“Accept Terms of Service” when requested to do so after any such change is made.

10.4        Any provision of this Agreement may be waived, terminated or discharged with DecisionDesk’s consent at any time and in its sole discretion.  The failure of DecisionDesk to insist upon the performance of any of the terms or conditions contained in this Agreement and/or to exercise any right hereunder, may not be construed as a waiver or relinquishment of the future performance of any such term or condition or the future exercise of such rights.

10.5        If any provision of this Agreement is held to be unenforceable, the parties hereto shall renegotiate each such provision in good faith in order to maintain the economic position enjoyed by each party prior to such holding with respect to each such provision rendered unenforceable.  If the parties hereto cannot agree upon an enforceable replacement for such provision, then (a) such provision shall be excluded from this Agreement, (b) the balance of this Agreement shall be interpreted as if such provision were so excluded and (c) thereafter, this Agreement shall be enforceable in accordance with its terms.

10.6        You may not assign this Agreement, in whole or in part, by operation of Law or otherwise, without DecisionDesk’s prior written consent.  Any attempt to do so shall be deemed null and void and of no legal force or effect.  This Agreement shall be binding upon and shall inure to the benefit of the parties’ successors and permitted assigns.

10.7        Neither party may be held liable for its failure to perform hereunder, or for any loss or damage, due to causes beyond its reasonable control, including governmental requirements, inability to obtain required export licenses, work stoppages, fire, civil disobedience, embargo, war, terrorism, riots, rebellions, earthquakes, strikes, floods, water and the elements, inability to secure equipment, raw materials or transport or similar occurrences.

10.8        Unless the context clearly requires otherwise, (a) the singular shall be deemed to include the plural and vice versa, (b) reference to any agreement, document or instrument shall be deemed to refer to such agreement, document or instrument as may be amended or modified and in effect from time to time, (c) “hereunder”, “hereof”, “hereto” and words similar thereto shall be deemed references to this Agreement as a whole and not to any particular provision hereof, (d) the words “include” and “including” shall be deemed to mean “without limitation” and shall be interpreted not to limit the generality of any description preceding such term, (e) with respect to the determination of any period of time, “from” means “from and including” and “to” means “to but excluding” and (f) any reference to a “§” or “§§” in this Agreement shall be construed as a reference to a section of this Agreement.

10.9        Neither this Agreement nor any provision contained herein may be construed as creating or constituting a partnership, joint venture or agency relationship between the parties hereto.  The relationship created hereby is strictly that of licensor and licensee.  For the avoidance of doubt, neither party hereto has the power or authority to, and no party hereto may, assume or create any obligation or responsibility on behalf of the other.

10.10     This Agreement shall be deemed fully and finally executed as soon as you click “Accept Terms of Service” and any copy hereof, together with evidence of your having done so, shall be deemed an original and all of which together shall constitute a single instrument.

 

CLIENT TERMS OF SERVICE

CLICK-TO-PROCEED AGREEMENT – CLIENT USER

THIS CLICK-TO-PROCEED AGREEMENT describes the terms according to which, and conditions subject to which, DecisionDesk Inc., an Ohio corporation, will grant to you the right to use its cloud-based content submission, review and evaluation software platform.  Capitalized terms used in this Click‑To‑Proceed Agreement are defined in Section 7.

You may not click “Accept Terms of Service” unless (1) you are authorized by a Client to use the Software Product and (2) you intend to enter into a legally binding and enforceable contract with DecisionDesk.  If you do not know if you are authorized by a Client to use the Software Product, you should contact the organization that directed you to access this website or any of DecisionDesk’s websites and inquire further.  If you are not so authorized, or you do not intend to be so bound, you should click “Accept Terms of Service”.

In consideration of these premises, and the representations, warranties and covenants set forth in this Agreement, and for other good and valuable consideration, the receipt and sufficiency of which you acknowledge, by clicking “Accept Terms of Service” you agree with DecisionDesk as to that set forth below.

 

1.     License Terms.

1.1           DecisionDesk hereby grants to you a limited, nonexclusive and nontransferable right and license for you to use the Software Product in accordance with this Agreement.

1.2           You may not (a) authorize or license any other party to use the Software Product or any part thereof (whether directly or indirectly), (b) modify or customize the Software Product or any part thereof, (c) create any derivative works in, or based on, the Software Product or any part thereof, (d) print, copy or reproduce the Software Product or any part thereof, (e) distribute, license, sublicense, promote, distribute, market, sell, lease, assign, convey, transfer or transmit the Software Product or any part thereof (whether physically or electronically) or (f) decompile, disassemble, decode or otherwise reverse engineer the Software Product or any part thereof.

1.3           All right, title and interest in and to each of the following is, shall be and at all times shall remain the exclusive property of DecisionDesk and any third-parties whose software programs may have been, or may be, incorporated into the Software Product:  (a) the Software Product, the Object Code and the Source Code, (b) any software, software modifications, derivative works, processes, configurations, system referenced data, procedures and other intellectual property rights relating to data processing and information technology developed or held by either party hereto from its use of the Software Product or in the performance of its obligations according to this Agreement and (c) all copyright, trademark, patent, trade secret and intellectual property rights in the Software Product.  DecisionDesk, on behalf of itself and any third-parties with software that may have been, or may be, incorporated into the Software Product, reserves all of its, and all of such third-parties’, rights in the same.

 

2.     Representations & Warranties.

2.1           DecisionDesk hereby represents and warrants to you that (a) it has the full right, power and authority to enter into, and fully perform its obligations according to, this Agreement and (b) DecisionDesk has the full right, power and authority to grant to you the rights and licenses described herein.

2.2           You hereby represent and warrant to DecisionDesk that you have the full right, power, authority and capacity to enter into, and fully perform your obligations according to, this Agreement.

 

3.     Indemnification; Limitations on Liability; Remedies.

3.1           You shall indemnify, defend and hold harmless DecisionDesk, and its shareholders, directors, officers, employees, agents and affiliates from and against any liabilities, costs, fees and/or damages that arise out of any claim for damages resulting from (a) any material inaccuracy or breach of the representations and warranties made by you in §2.2, (b) any material breach of a covenant made by you in this Agreement and/or (c) any material failure to perform, or any material failure to comply with, your obligations according to this Agreement.

3.2           THE SOFTWARE PRODUCT IS PROVIDED BY DECISIONDESK ON AN “AS-IS” BASIS.  ALL OTHER WARRANTIES, WHETHER ORAL OR WRITTEN, EXPRESS OR IMPLIED OR CONTRACTUAL OR STATUTORY, ARE EXPRESSLY DISCLAIMED.  WITHOUT LIMITATION, DECISIONDESK NEITHER REPRESENTS AND WARRANTS, NOR COVENANTS, THAT (a) THE OPERATION AND/OR USE OF THE SOFTWARE PRODUCT WILL BE UNINTERRUPTED OR ERROR-FREE, (b) THE SOFTWARE PRODUCT WILL PERFORM IN EVERY OPERATING ENVIRONMENT, (c) ALL DEFICIENCIES OR ERRORS IN THE SOFTWARE PRODUCT ARE CAPABLE OF CORRECTION OR (d) THE SOFTWARE PRODUCT MEETS THE REQUIREMENTS OF ANY PARTY WHATSOEVER.  THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ARE SPECIFICALLY DISCLAIMED.

3.3           NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, THE AGGREGATE DAMAGES THAT MAY BE RECOVERED BY YOU MAY NOT EXCEED AN AMOUNT CALCULATED BY DIVIDING “A” BY “B” WHERE “A” IS EQUAL TO THE FEES PAID TO DECISIONDESK BY THAT CLIENT WITH WHICH YOU ARE AFFILIATED IN THE CALENDAR YEAR IN WHICH A CLAIM IS BROUGHT AND “B” IS EQUAL TO THE NUMBER OF USERS OF SUCH CLIENT IN SUCH CALENDAR YEAR.

3.4           NEITHER PARTY HERETO MAY BE HELD LIABLE TO THE OTHER, OR TO ANY OTHER PARTY, FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES (INCLUDING LOST OR ANTICIPATED REVENUES OR PROFITS) ARISING FROM ANY CLAIM RELATING DIRECTLY OR INDIRECTLY TO THIS AGREEMENT, WHETHER BASED ON WARRANTY, CONTRACT OR TORT (WHETHER UNDER A THEORY OF NEGLIGENCE, STRICT LIABILITY OR OTHERWISE), EVEN IF AN AUTHORIZED REPRESENTATIVE OF SUCH PARTY IS ADVISED OF THE LIKELIHOOD OR POSSIBILITY THEREOF.

3.5           EACH PARTY HERETO ACKNOWLEDGES THAT THE OTHER PARTY HERETO HAS RELIED UPON THE LIMITATIONS ON LIABILITY SET FORTH IN THIS §3 AND, BUT FOR THEIR INCLUSION HEREIN, WOULD NOT HAVE ENTERED INTO THIS AGREEMENT.

3.6           You acknowledge (a) that DecisionDesk will suffer irreparable harm, and that the amount of monetary damages would be extremely difficult or impossible to calculate, if you breach your obligations according to this Agreement and (b) that if you breach your obligations according to this Agreement, DecisionDesk may seek, and you covenant not to dispute any attempt by DecisionDesk to seek, injunctive relief without proving actual damages and (c) that remedies sought by DecisionDesk in accordance with this §3.6 shall be in addition to, and without limitation of, any other rights to which DecisionDesk may be entitled according to this Agreement or Law.

 

4.     Your Obligations.

4.1           You shall (a) use the Software Product in accordance with this Agreement and all applicable Laws, (b) promptly report to DecisionDesk any flaws, errors, bugs, defects or other problems in or with the Software Product that you identify, (c) obtain the explicit consent of any person whose personally identifiable information you are inputting into the Software Product or, if such person is under the age of 13, the explicit consent of such person’s parent or legal guardian, (d) comply with the applicable provisions of the Privacy Policies and (d) otherwise comply with the provisions of this Agreement.

4.2           You may not (a) disclose the specific terms of this Agreement or the Subscription Agreement and/or (b) use DecisionDesk’s logos or trademarks without DecisionDesk’s consent.

 

5.     Confidentiality.

5.1           If you receive Confidential Information, you (a) shall use such Confidential Information solely in connection with your proper use of the Software Product, (b) shall hold such Confidential Information in confidence and take reasonable precautions to protect such Confidential Information (including all precautions that you employ with respect to your confidential materials and/or the confidential materials of that Client with which you are affiliated), (c) may not divulge any Confidential Information or any information derived therefrom to any third-party and (d) shall only divulge such Confidential Information to those who have a reasonable need to know such information.

5.2           The provisions of §5.1 may not be applied (a) to any Confidential Information that (1) is or becomes (through no improper action or inaction by you or those to whom you may have divulged such the) generally available to the public, (2) was in your possession or known by you prior to receiving it, (3) was properly disclosed to you without any obligation of confidentiality or (4) was discovered or created by you without reliance on such Confidential Information (as shown in your records) or (b) to disclosures required by Law or court order, provided that you (1) use reasonable efforts to limit disclosure and to obtain confidential treatment or a protective order with respect thereto, (2) have allowed DecisionDesk to participate in the proceedings related to such legal or court-ordered requirement (to the extent reasonably practical) and (3) cooperate reasonably with DecisionDesk’s efforts to contest or limit the scope of such required disclosure (if any).

 

6.     Term & Termination.

6.1           This Agreement shall remain in full force and effect until the sooner of (a) the Subscription Agreement’s termination and (b) this Agreement’s termination according to §6.2.

6.2           DecisionDesk may terminate this Agreement (a) for any reason whatsoever, by notifying you of such termination no less than 90 days prior to the effective date thereof, (b) if you made a material inaccuracy of a representation or warranty in §2, by notifying you of such termination no less than 30 days prior to the effective date thereof, (c) if you materially breach a covenant made by you in this Agreement, by notifying you of such breach and, if such breach is not cured within 30 days following DecisionDesk’s delivery of such notice, by further notifying you of such termination no less than 30 days prior to the effective date thereof, (d) if you materially fail to perform, or if you materially fail to comply with, your obligations according to this Agreement, by notifying you of such failure and, if such failure is not corrected within 30 days following DecisionDesk’s delivery of such notice, by further notifying you of such termination no less than 30 days prior to the effective date thereof and (e) if you file a petition in bankruptcy, or have filed against you a petition in bankruptcy and such petition is not dismissed within 90 days of being so filed or if you make an assignment, or enter into some other arrangement, for the benefit of your creditors, by notifying you of such termination and, in such notice, specifying the effective date thereof.

6.3                    Immediately upon the termination of this Agreement, (a) you will have no further right, title or interest in the Software Product or any part thereof, including any license in either of the same and (b) you will have no further right to use the Confidential Information and shall destroy or return, at the sole and absolute discretion of DecisionDesk, all copies thereof.

6.4           The provisions of §§1.2, 1.3, 3, 4 and 5, the provisions of this §6 and, as and where applicable, the provisions of §§7 and 8 shall survive any termination of this Agreement.

 

7.     Defined Terms.

“Agreement” means this Click-To-Proceed Agreement entered into by and between you and DecisionDesk.

“Client” means a party with which DecisionDesk has entered into a Subscription Agreement.

“Confidential Information” means (a) information relating to this Agreement that is not generally known to the public or that constitutes a trade secret, (b) information that is owned, developed or otherwise acquired by DecisionDesk, including its financial data, business plans, customer information, software, programming, systems and use documentation, technical information, technology, designs, ideas, inventions, data, data formats and files, and all copies and tangible embodiments thereof, (c) the Software Product, the Object Code and the Source Code and (d) any software, software modifications, derivative works, processes, configurations, system referenced data, procedures and other intellectual property rights relating to data processing and information technology developed or held by DecisionDesk in the performance of its obligations according to this Agreement.

“DecisionDesk” means DecisionDesk Inc., an Ohio corporation.

“Law” means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree, other requirement or rule of law of any federal, state or local government or any agency or instrumentality thereof and any arbitrator, court or tribunal of competent jurisdiction.

“Object Code” means the machine-readable computer software code relating to the Software Product, including any Update or Upgrade, which code is substantially in binary form that is directly executable by a computer after processing without compilation or assembly.

“Privacy Policies” means each of the following, as the same may, from time-to-time, be amended by DecisionDesk in its sole discretion:  (a) DecisionDesk’s Privacy Policy, a copy of which may be found at http://www.decisiondesk.com/privacy‐policy/, and (b) DecisionDesk’s Privacy Policy for Users Under the Age of 13, a copy of which may be found at http://www.decisiondesk.com/privacy‐policy‐underage/.

“Software Product” means DecisionDesk’s cloud-based content submission, review and evaluation software platform made available to the Client with which you are affiliated, including any third-party software embedded therein, any Updates and any Upgrades.

“Source Code” means (a) the computer software code comprising the statements, instructions and data relating to the Software Product displayed in a form readable and understandable by a programmer of ordinary skill, (b) technical documentation and specifications relating to the Software Product, including a description of the tools used to develop and maintain the Software Product, the compiler or assembler and compilation and execution procedures and (c) the computer software code, technical documentations and specifications relating to any Updates or Upgrades.

“Subscription Agreement” means an agreement entered into by DecisionDesk and the Client in which DecisionDesk, among other things, grants the right to use the Software Product, as the same may be amended, or otherwise supplemented, from time to time.

“Update” means any update, feature release (e.g., 2.0 to 2.1), patch release (e.g., 2.0.1 to 2.0.2), maintenance release, bug fix or modified form of the Software Product that performs comparable or improved functionality and which is not an Upgrade.

“Upgrade” means any new version or major release (e.g., 2.0 to 3.0) of the Software Product, including any changes to the Software Product that (a) substantially increase the speed, efficiency or ease of use of the Software Product or (b) add additional capabilities to, or otherwise improve the functions of, the Software Product.

 

8.     General Provisions.

8.1           Any notice required, or permitted, to be delivered by DecisionDesk hereunder shall be deemed delivered to you when delivered to the Client with which you are affiliated and shall be deemed effective (a) upon its receipt, when delivered personally, by courier, (b) the day delivered to it, if delivered by a reputable overnight delivery service, (c) upon delivery to it, if delivered via email and delivery is confirmed or (d) 48 hours after being deposited for delivery via certified or registered mail with postage prepaid if delivered in accordance with the provisions of the Subscription Agreement.

8.2           This Agreement, when taken together with the Privacy Policies, constitutes the entire agreement between the parties hereto as to the subject matter hereof and supersedes all prior documents, negotiations and drafts of such parties with respect to such subject matter, whether written or verbal.  No provision of this Agreement may be construed against either party hereto by reason of the drafting or preparation thereof.

8.3           DecisionDesk may change this Agreement from time to time and any such changes shall be effective upon your clicking“Accept Terms of Service” when requested to do so after any such change is made.

8.4           Any provision of this Agreement may be waived, terminated or discharged with DecisionDesk’s consent at any time and in its sole discretion.  The failure of DecisionDesk to insist upon the performance of any of the terms or conditions contained in this Agreement and/or to exercise any right hereunder, may not be construed as a waiver or relinquishment of the future performance of any such term or condition or the future exercise of such rights.

8.5           If any provision of this Agreement is held to be unenforceable, the parties hereto shall renegotiate each such provision in good faith in order to maintain the economic position enjoyed by each party prior to such holding with respect to each such provision rendered unenforceable.  If the parties hereto cannot agree upon an enforceable replacement for such provision, then (a) such provision shall be excluded from this Agreement, (b) the balance of this Agreement shall be interpreted as if such provision were so excluded and (c) thereafter, this Agreement shall be enforceable in accordance with its terms.

8.6           You may not assign this Agreement, in whole or in part, by operation of Law or otherwise, without DecisionDesk’s prior written consent.  Any attempt to do so shall be deemed null and void and of no legal force or effect.  This Agreement shall be binding upon and shall inure to the benefit of the parties’ successors and permitted assigns.

8.7           Neither party may be held liable for its failure to perform hereunder, or for any loss or damage, due to causes beyond its reasonable control, including governmental requirements, inability to obtain required export licenses, work stoppages, fire, civil disobedience, embargo, war, terrorism, riots, rebellions, earthquakes, strikes, floods, water and the elements, inability to secure equipment, raw materials or transport or similar occurrences.

8.8           Unless the context clearly requires otherwise, (a) the singular shall be deemed to include the plural and vice versa, (b) reference to any agreement, document or instrument shall be deemed to refer to such agreement, document or instrument as may be amended or modified and in effect from time to time, (c) “hereunder”, “hereof”, “hereto” and words similar thereto shall be deemed references to this Agreement as a whole and not to any particular provision hereof, (d) the words “include” and “including” shall be deemed to mean “without limitation” and shall be interpreted not to limit the generality of any description preceding such term, (e) with respect to the determination of any period of time, “from” means “from and including” and “to” means “to but excluding” and (f) any reference to a “§” or “§§” in this Agreement shall be construed as a reference to a section of this Agreement.

8.9           Neither this Agreement nor any provision contained herein may be construed as creating or constituting a partnership, joint venture or agency relationship between the parties hereto.  The relationship created hereby is strictly that of licensor and licensee.  For the avoidance of doubt, neither party hereto has the power or authority to, and no party hereto may, assume or create any obligation or responsibility on behalf of the other.

8.10        This Agreement shall be deemed fully and finally executed as soon as you click “Accept Terms of Service” and any copy hereof, together with evidence of your having done so, shall be deemed an original and all of which together shall constitute a single instrument.