By accessing this web site, you (the "Customer") are agreeing to be bound by these web site Terms and Conditions of Use. If you do not agree with any of these terms, you are prohibited from using or access-ing this site.
1. Grant of License.
1.1 ERE Media hereby grants to Customer the nontransferable and nonexclusive right during the Subscription Period to permit Named Users employed by Customer to remotely access and use ERE Media's Internet Recruitment Online Training Service (the "Service") solely for Customer's own internal business purposes as permitted by this Agreement.
1.2 Customer shall not license, sell, rent, outsource or otherwise make the Service available to third parties other than Named Users. Customer shall be responsible for the acts and omissions of Named Users as if they were the acts and omissions of Customer. A license for a Named User shall not be transferred from one individual to another unless the original user no longer requires and is no longer permitted access to the Service, and then only on written notice to ERE Media.
1.3 The Service may contain links to external websites and/or information provided on such external websites by ERE Media's licensors and third-party service providers. ERE Media shall not be responsible for the contents of any linked website or information, nor for any damage or loss caused by Customer's use of or reliance on any content, goods or services available on or through any such linked websites.
2. Fees and Payment Terms. Customer shall pay ERE Media all fees due hereunder within thirty (30) days of the date of this Agreement. Fees are payable in US Dollars, and do not include taxes now or hereafter levied, all of which shall be for Customer's account. Customer may not withhold or reduce fees or set off any amount against fees owed for alleged defects in the Service. All fees not paid when due shall accrue interest at the lesser of 1.5% per month or the maximum rate allowed by law.
3. Customer's Obligations. Customer shall not, and shall ensure that its Named Users do not: (a) translate, decompile, reverse-engineer or otherwise modify any parts of the Service; (b) copy and store the products without ERE Media's prior written consent (provided that, should a product be download-able, it can be done only once and cannot be replaced if lost for any reason); (c) infringe the intellectual property rights of any entity; (d) interfere with or disrupt the Service or equipment or networks connected to the Service, or disobey any requirements, procedures, policies or regulations of networks connected to the Service; (e) circumvent the user authentication or security of the Service; (f) make any use of the Service that violates any applicable local, state, national, international or foreign law; or (g) except for licenses provided to Named Users as permitted in this Agreement, allow any third party to use any user identifications or passwords issued to or selected by Customer for access to the Service.
4. Proprietary Rights.
4.1 ERE Media or its licensors own all right, title and interest in the Service and in the content provided on the Service, as well as any improvements, design contributions or derivative works in or to the Service conceived or created by either party. All rights not expressly granted to Customer in this Agreement are reserved by ERE Media and its licensors.
4.2 ERE Media's and its licensors' logos, and other trademarks, service marks, and graphics used in connection with the Service are owned exclusively by ERE Media and/or its licensors, as applicable. Other trademarks, service marks, graphics, and logos used in connection with the Services may be the trademarks of their respective owners. Customer is granted no right or license with respect to any of the aforesaid trademarks and any use of such trademarks.
5. Term and Termination.
5.1 Subject to the rights of termination set forth below, this Agreement shall commence on the date set forth on the cover page and continue for a period of one year. The term shall be extended on an annual basis on written agreement of the parties.
5.2 Either party may terminate this Agreement with immediate effect by notice to the other party at any time if: (a) the breaching party is in breach of a material obligation under this Agreement and, if the breach is capable of remedy, has failed to remedy the breach within fourteen (14) days of receipt of notice from the non-breaching party giving particulars of the breach and requiring the breach-ing party to remedy the breach; or (b) the breaching party files a petition, or is the subject of a petition, in bankruptcy or ceases doing business in the ordinary course; or (c) the breaching party transfers more than 50% of its assets to another entity.
5.3 Without prejudicing ERE Media's right to avail of any other legal remedy or grounds of termination under this Agreement, ERE Media reserves the right to temporarily suspend the Service or terminate this Agreement if Customer does not use unique logins for each Named User accessing the Service.
6. ERE Media's Service Level Commitment. ERE Media provides a 99% uptime guarantee on avail-ability of the Service. In any given month, if the Service is unavailable for more than 1% of the time, not counting downtime for remedial or preventative maintenance, Internet outages or other issues outside of ERE Media's reasonable control, Customer may request a pro-rated credit for the downtime.
7. ERE Media's Limited Warranty. ERE MEDIA DOES NOT GUARANTEE, REPRESENT, OR WARRANT THAT CUSTOMER'S USE OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. THE SERVICE IS (EXCEPT AS EXPRESSLY STATED BY ERE MEDIA) PROVIDED "AS IS" AND "AS AVAILABLE" FOR CUSTOMER'S USE, AND ERE MEDIA SHALL HAVE NO LIABILITY TO CUSTOMER OR ANY THIRD PARTY BASED ON CUSTOMER'S USE OF OR RELIANCE ON SUCH CONTENT. NOTWITHSTANDING THE FOREGOING, ERE MEDIA WARRANTS THAT CUSTOMER'S USE OF THE SERVICES AS CONTEMPLATED BY THE AGREEMENT WILL NOT INFRINGE THE RIGHTS OF ANY THIRD PARTY. NO OTHER WARRANTIES OF ANY KIND ARE EXPRESSED OR IMPLIED, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR TITLE.
8. Limitation of ERE Media's Liability.
8.1 Subject to Sec. 7, Customer's sole and exclusive remedies for any damages or loss in any way connected with the Service, whether due to ERE Media's negligence or breach of any other duty, shall be, at ERE Media's option: (i) to bring the performance of the Service into compliance in all material respects with its functional specifications; or (ii) return of an appropriate portion of any payment made by Customer with respect to the affected portion of the Service.
8.2 Except for indemnification in connection with the warranty against infringement set forth in Section 6 above, under no circumstances shall ERE Media be liable to Customer or any other person or entity for damages under this Agreement in excess of the amount of fees paid or payable for the Service in the twelve (12) month period preceding the date on which the claim first arose.
8.3 UNDER NO CIRCUMSTANCES SHALL ERE MEDIA OR ANY OF ITS EMPLOYEES, LICENSORS OR VENDORS, OR CUSTOMER, BE LIABLE IN ANY AMOUNT FOR SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR INDIRECT DAMAGES, LOSS OF GOOD WILL OR BUSINESS PROFITS, WORK STOPPAGE, DATA LOSS, COMPUTER FAILURE OR MALFUNCTION, OR EXEMPLARY OR PUNITIVE DAMAGES.
9. Indemnification by Customer. Customer shall indemnify and hold ERE Media harmless from third party claims arising from or related to any use of the Service (a) in breach of this Agreement, (b) in contravention of any requirements, procedures, policies or regulations of ERE Media or its third-party providers applicable to the Service and made known to Customer, and (c) in violation of any applicable law or regulation or in violation of the legal rights of others.
10. Force Majeure. Neither party shall be responsible for failure or delay of performance if caused by an event outside the reasonable control of the obligated party. No event of force majeure shall excuse the Customer's obligation to pay for the Services.
11. Governing Law. The terms and conditions of this Agreement are governed by the laws of the State of New York without application of conflict of laws principles. The parties shall settle any dispute arising out of or related to this Agreement by binding arbitration in New York, NY in accordance with the Rules of the American Arbitration Association, pursuant to the Federal Arbitration Act. Judgment on any award may be entered in any court having jurisdiction. Nothing in this Section 11 shall restrict a party from seeking injunctive relief, without the necessity of posting a bond, in a court of competent jurisdiction.
12. Notices. Notices given under this Agreement must be in writing and deemed to have been given when received, if personally delivered; upon receipt of electronic confirmation, if transmitted by fax or email; the day after sent, if sent for next day delivery to a domestic address by recognized overnight delivery service (e.g., Federal Express); and upon receipt, if sent by certified or registered mail, return receipt requested.
13. Miscellaneous. Amendments to this Agreement must be in writing and must be set forth in a document signed by the party to be charged. Customer may not assign this Agreement, or sublicense any of its rights, without the ERE Media's prior written consent. This Agreement will be binding upon and inure to the benefit of the parties and their respective successors and assigns. The failure of a party to exercise or enforce any right under this Agreement shall not be deemed to be a waiver of that right, nor operate to bar the exercise or enforcement of that right at any time unless a right is specifically time limited. If any portion of this Agreement is held to be invalid or unenforceable, the remaining portions of this Agreement will remain in full force and effect. Any invalid or unenforceable portions will be interpreted to effect the intent of the original portion. Sections 3, 4, 7, 8 and 9 shall survive termination of this Agreement. This Agreement may be executed in counterparts, each of which when so executed shall be deemed to be an original and all of which when taken together shall constitute this Agreement.