| Language: |
1. ACCESS TO THE SERVICE
1.1 Subject to the terms of this Agreement, any specifications provided by Live CGI, and in exchange for the Fees, Live CGI hereby grants Customer a limited, nonexclusive, non-sublicensable license during the Term to access, install and use the Service solely for Customer’s internal and non- commercial purposes, except that Customer may make the Service available for Commercial Purposes solely for the Customer’s use at an individual location. The Customer may make the services available if the Parties have agreed upon a Service Fee. Live CGI will use commercially reasonable efforts to make the Service available to Customer pursuant to this Agreement. As part of the registration process, Customer will identify an administrative user name and password for Customer’s Live CGI account. Live CGI reserves the right to refuse registration of, or cancel passwords it deems inappropriate.
1.2 Live CGI may need to automatically update some of the Live CGI Content obtained through the Service or provide new Software (defined below) to keep the Service functioning properly, which could include bug fixes, patches, enhanced features, missing plug-ins and new versions. By using the Service, Customer agrees to such automatic updating.
1.3 Subject to the terms hereof, Live CGI will use commercially reasonable efforts to provide Customer with reasonable technical support services..
2. SERVICE RESTRICTIONS AND CUSTOMER OBLIGATIONS
2.1 Customer will not, directly or indirectly: (a) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Service or any software, documentation or data related to the Service (“Software”); (b) alter, change, edit, modify, translate, or create derivative works based on the Service or any Software (except to the extent expressly permitted by Live CGI in writing or authorized within the Service); (c) use the Service or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third party; (d) remove any proprietary notices or labels; or (e) use the Service or the Software for any Commercial Purpose unless set forth and agreed to by the Parties in an Order Form. Customer will ensure that its Authorized Users comply with these restrictions as well as any and all other restrictions applicable to users in this Agreement.
2.2 Further, Customer may not remove or export from the United States or allow the export or re-export of the Service, Software or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. As defined in FAR section 2.101, the Software and documentation are “commercial items” and according to DFAR section
252.227-7014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.
2.3 Customer represents, covenants, and warrants that Customer (a) will use the Service only in compliance with Live CGI’s standard written policies which may be provided by Live CGI to the Customer from time to time (the “Policy”), including the Acceptable Use Policy set forth on Exhibit A attached hereto, and all applicable laws and regulations; (b) owns or otherwise has and will have the necessary rights in and relating to the Customer Content, including any and all intellectual property and publicity rights so that, as received by Live CGI and collected, used, disclosed, displayed and otherwise processed in accordance with this Agreement, they do not and will not infringe, misappropriate or otherwise violate any Intellectual Property Rights, or any privacy or other rights of any third party or violate any applicable law; (c) the Customer Content is free of all viruses, Trojan horses, and other elements that could interrupt or harm the systems or software used by Live CGI to provide the Services; (d) the Customer is solely responsible for ensuring compliance with all privacy laws in all jurisdictions that may apply to the Customer Content and use of the Service provided hereunder; (e) Live CGI may exercise the rights in Customer Content granted hereunder without liability or cost to any third party; and (f) the Customer Content complies with the terms of this Agreement. Although Live CGI has no obligation to monitor Customer’s use of the Service, Live CGI may do so and may prohibit, suspend or terminate any use of the Services it believes may be (or alleged to be) in violation of the foregoing.
2.4 Solely as necessary to enable Live CGI to provide the Service, Customer hereby grants Live CGI a non-exclusive, royalty-free, irrevocable, worldwide, perpetual right and license (with right to sublicense through multiple tiers) to make, have made, use, import, export, execute, reproduce, distribute, modify, adapt, publicly display, publicly perform, make derivative works of, and disclose any Customer Content and all such rights and permissions in or relating to the Customer Content. Further, Customer grants Live CGI a non-exclusive, royalty free, irrevocable, worldwide, perpetual right and license (with right to sublicense through multiple tiers) to use the Customer Content for marketing and promotion of the Service and Live CGI.
3.5 Either Party may propose any material change or modification to the Service or Deliverables set forth in an Order Form or a Statement of Work (as applicable), and each such material change or modification will only take effect pursuant to a modified Order Form or Statement of Work (as applicable) (“Change Control”). \
3. RIGHT TO USE THE LIVE CGI NEWS ROOM
3.1 Subject to the terms of this Agreement, during the Term, Live CGI hereby grants Customer a personal, non- exclusive, nontransferable, and limited license to use the Live CGI News room solely to the extent necessary for use of the Service. All Live CGI News rooms provided to Customer, are licensed (not sold) to Customer by Live CGI only for use in conjunction with the Service. Customer may not claim title to, or an ownership interest in, any Live CGI News room, and Customer shall execute any documentation reasonably required by Live CGI. Live CGI shall retain ownership of the Live CGI News room, and no rights are granted to Customer other than a license to use the Live CGI News room under the terms expressly set forth in this Agreement.
3.2 At any time Live CGI may remove or change the Live CGI News room in its sole discretion in connection with providing the Service. Customer shall not remove, attempt to repair, or otherwise tamper with any Live CGI News room or permit others to do so, and shall not use the Live CGI News room for any purpose other than that authorized by the Agreement. Live CGI shall maintain the Live CGI News room in good operating condition during the Term of this Agreement; provided, however, that such maintenance shall be at Live CGI’s expense only to the extent that it is related to and/or resulting from the ordinary and proper use of the Live CGI News room. Customer is responsible for damage to, or loss of, Live CGI News room caused by its acts or omissions, and its noncompliance with this Agreement, or by fire, theft or other casualty, unless caused by the gross negligence or willful misconduct of Live CGI. Customer shall bear the entire risk of loss and damage to any and all items of Live CGI News room from any cause whatsoever, whether or not insured against, during the Term until the Live CGI News room is returned to Live CGI.
3.3 Upon delivery of the Live CGI News room, Customer shall promptly inspect and test such Live CGI News room. The Live CGI News room shall be deemed accepted by Customer unless Customer notifies Live CGI in writing within forty-eight
(48) hours of delivery that the Live CGI News room is defective.
3.4 THE LIVE CGI NEWS ROOM IS BEING PROVIDED TO THE CUSTOMER BY LIVE CGI “AS IS, WHERE IS”. LIVE CGI DOES NOT MAKE, HAS NOT MADE, SHALL NOT BE DEEMED TO MAKE OR HAVE MADE, AND EXPRESSLY DISCLAIMS TO CUSTOMER ANY WARRANTY OR REPRESENTATION, EITHER EXPRESS OR IMPLIED, WRITTEN OR ORAL, WITH RESPECT TO THE LIVE CGI NEWS ROOM PROVIDED HEREUNDER OR ANY COMPONENT THEREOF, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY AS TO DESIGN, COMPLIANCE WITH ANY LAW, RULE, SPECIFICATION, OR CONTRACT PERTAINING THERETO, QUALITY OF MATERIALS OR WORKMANSHIP, MERCHANTABILITY, FITNESS FOR ANY PURPOSE, USE OR OPERATION, SAFETY, IT BEING AGREED THAT ALL SUCH RISKS, AS
BETWEEN CUSTOMER AND LIVE CGI, ARE TO BE
BORNE BY CUSTOMER. Customer’s acceptance of the Live CGI News room in accordance with Section 5.3 shall be conclusive evidence as between Live CGI and Customer that the items of Live CGI News room referred to therein are acceptable for all purposes hereof.
4. OWNERSHIP RIGHTS
4.1 Customer shall own all right, title and interest in and to the (a) Customer Content, subject to the rights and permissions granted to Live CGI in Section 3.4 and (b) Deliverables, subject to Customer’s payment of applicable fees, provided, however, that Live CGI retains ownership of any Live CGI Content that may be embodied or otherwise included in the Deliverables. Live CGI will not be responsible or liable for any losses, costs, expenses, or any other forms of liability arising out of Customer's use of the Deliverables. By using any Deliverable for any purpose, Customer agrees to indemnify and hold Live CGI harmless for any and all damages and/or liability, however characterized, arising from such use of the Deliverables. Customer shall not sell, resell, transfer or distribute the Deliverables to any third party. Customer also agrees not to (and not to authorize or permit others to) reverse engineer, deconstruct or disassemble any Deliverables.
4.2 Live CGI shall own and retain all right, title and interest in and to (a) the Service, the Software, and all improvements, enhancements and modifications thereto and derivative works thereof; (b) any and all software, applications, inventions or other technology developed in connection with Customization Services or support, except for Deliverables; (c) any and all data generated from the Service, and (d) all Intellectual Property Rights related to any and all of the foregoing. No other rights or licenses to Live CGI intellectual property are granted except as expressly set forth herein. Notwithstanding the foregoing in this Section 6.2, to the extent that Live CGI incorporates any Live CGI Content in a Deliverable, Live CGI hereby grants Customer a non-exclusive, worldwide, right and license to use, such Live CGI Content incorporated into any Deliverable in connection with Customer’s use of such Deliverable in accordance with the terms and conditions of this Agreement.
5. WARRANTY AND DISCLAIMER
Live CGI shall use reasonable efforts consistent with prevailing industry standards to maintain the Service in a manner which minimizes errors and interruptions in the Service. The Service may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Live CGI or by third-party providers, or because of other causes beyond Live CGI’s reasonable control, but Live CGI shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. HOWEVER, LIVE CGI DOES NOT WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICE. EXCEPT AS
EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICE AND ANY CUSTOMIZATION SERVICES ARE PROVIDED “AS IS,” “WHERE IS” AND AS AVAILABLE AND LIVE CGI DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON- INFRINGEMENT.
6. LIMITATION OF LIABILITY
NOTWITHSTANDING ANYTHING TO THE CONTRARY, LIVE CGI AND ITS SUPPLIERS, SERVICE PROVIDERS, (INCLUDING BUT NOT LIMITED TO ALL LIVE CGI NEWS ROOM AND TECHNOLOGY SUPPLIERS), CONTRACTORS, SUBCONTRACTORS, OFFICERS, AFFILIATES, REPRESENTATIVES, AND EMPLOYEES SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND LIVE CGI’S REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY CUSTOMER TO LIVE CGI FOR THE SERVICE UNDER THIS AGREEMENT IN THE SIX (6) MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT LIVE CGI HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
7. INDEMNIFICATION
Customer hereby agrees to defend, indemnify and hold harmless Live CGI and its Representatives against any and all damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees) in connection with any and all claims or actions that arise from Customer’s (a) violation or an alleged violation of this Agreement, including a breach of any representation or warranty; (b) violation of any third-party right, including any right of privacy or Intellectual Property Rights; (c)
violation of any applicable, law, rule or regulation; or (d) negligence or willful misconduct.
8. PUBLICITY RIGHTS
Customer hereby agrees that Live CGI may identify Customer as its customer in Live CGI’s promotional materials, including without limitation on its website and in any press releases (the “Publicity Right”). Customer hereby grants Live CGI a non-exclusive, royalty-free, revocable, worldwide right and license to use and display Customer’s name and logo for the purposes of such Publicity Right. Customer may not publicly announce this Agreement or the parties’ relationship or use Live CGI’s name, logos or marks without Live CGI’s prior written consent in each case.
9. MISCELLANEOUS
If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable or sublicensable by Customer except with Live CGI’s prior written consent. Live CGI may transfer, assign and subcontract any of its rights and obligations under this Agreement without consent. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind Live CGI in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. This Agreement shall be governed by the laws of the State of New York without regard to its conflict of laws provisions.
Exhibit A Acceptable Use Policy
This Acceptable Use Policy is to help you understand what type of content and conduct is allowed on the Service and to ensure a safe and respectful environment. Customer agrees to ensure that Authorized Users comply with this Acceptable Use Policy at all times when accessing or using the Service.
By accessing or using the Service, you agree to the following restrictions:
(a) you shall not use the Service to promote sexually explicit or abusive content, and you shall not use the Service in any way that is unlawful, threatening, harassing, slanderous, defamatory, abusive, invasive of privacy, or intended to or likely to incite violence, or that infringes, misappropriates, or otherwise violates the proprietary or legal rights of any person or entity;
(b) your use of the Service is personal to you, and you shall not, distribute, transfer, sublicense, or in any way permit any third party individual, entity, or distributor to access, distribute, or use the Service;
(c) you may not share or disclose your username and password with any third party and you are responsible for maintaining the confidentiality of your username and password;
(d) you are responsible for all authorized and unauthorized use of your user account;
(e) you shall not, directly or indirectly: (i) reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, know-how, or algorithms relevant to or comprising the Service (or any element thereof), or any software, documentation or data related to the Service
(collectively, “Software”); (ii) alter, change, edit, modify, translate, or create derivative works based on the Service (or any element thereof) or any Software; (iii) use the Service or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third party; or (iv) remove any proprietary notices or labels.
(f) you will not use the Service in a manner in violation of any applicable law, rule, or regulation;
(d) you will not tamper with the Service in any way;
(g) you will not create or compile a database of the Service or content on the Service, and you will not otherwise access, use, download, or copy the Service or its content in order to compete with Live CGI;
(h) you will not use the Service or its content to design, develop, operate, support, market, distribute, or otherwise make available any program, application, or service (including without limitation any device, technology, product, service, computer program, application, or website that enables or provides access to, use of, operation of, or interoperation with the Service;
(i) you will not solicit others through the Service for any purpose;
(j) you will use the Service to transmit any software viruses or any other computer code intended to interrupt, destroy, or limit the functionality of the Service or otherwise be technologically harmful; and
(k) you will not use the Service in any manner that may adversely affect Live CGI’s resources or the availability of the Service to others, or in any way that disrupts the operation of the Service.
Although Live CGI has no obligation to monitor your use of the Service, Live CGI may do so and may prohibit, suspend, or terminate any use of the Service that Live CGI believes might be (or is alleged to be) in violation of this policy and/or any applicable law, rule, or regulation. Further, Live CGI does not promise to make the Service available, and Live CGI may terminate your access at any time if Live CGI ceases to make the Service. You acknowledge that Live CGI (and its licensors) exclusively owns all rights, titles, and interests in and to the Service.
1.1 Subject to the terms of this Agreement, any specifications provided by Live CGI, and in exchange for the Fees, Live CGI hereby grants Customer a limited, nonexclusive, non-sublicensable license during the Term to access, install and use the Service solely for Customer’s internal and non- commercial purposes, except that Customer may make the Service available for Commercial Purposes solely for the Customer’s use at an individual location. The Customer may make the services available if the Parties have agreed upon a Service Fee. Live CGI will use commercially reasonable efforts to make the Service available to Customer pursuant to this Agreement. As part of the registration process, Customer will identify an administrative user name and password for Customer’s Live CGI account. Live CGI reserves the right to refuse registration of, or cancel passwords it deems inappropriate.
1.2 Live CGI may need to automatically update some of the Live CGI Content obtained through the Service or provide new Software (defined below) to keep the Service functioning properly, which could include bug fixes, patches, enhanced features, missing plug-ins and new versions. By using the Service, Customer agrees to such automatic updating.
1.3 Subject to the terms hereof, Live CGI will use commercially reasonable efforts to provide Customer with reasonable technical support services..
2. SERVICE RESTRICTIONS AND CUSTOMER OBLIGATIONS
2.1 Customer will not, directly or indirectly: (a) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Service or any software, documentation or data related to the Service (“Software”); (b) alter, change, edit, modify, translate, or create derivative works based on the Service or any Software (except to the extent expressly permitted by Live CGI in writing or authorized within the Service); (c) use the Service or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third party; (d) remove any proprietary notices or labels; or (e) use the Service or the Software for any Commercial Purpose unless set forth and agreed to by the Parties in an Order Form. Customer will ensure that its Authorized Users comply with these restrictions as well as any and all other restrictions applicable to users in this Agreement.
2.2 Further, Customer may not remove or export from the United States or allow the export or re-export of the Service, Software or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. As defined in FAR section 2.101, the Software and documentation are “commercial items” and according to DFAR section
252.227-7014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.
2.3 Customer represents, covenants, and warrants that Customer (a) will use the Service only in compliance with Live CGI’s standard written policies which may be provided by Live CGI to the Customer from time to time (the “Policy”), including the Acceptable Use Policy set forth on Exhibit A attached hereto, and all applicable laws and regulations; (b) owns or otherwise has and will have the necessary rights in and relating to the Customer Content, including any and all intellectual property and publicity rights so that, as received by Live CGI and collected, used, disclosed, displayed and otherwise processed in accordance with this Agreement, they do not and will not infringe, misappropriate or otherwise violate any Intellectual Property Rights, or any privacy or other rights of any third party or violate any applicable law; (c) the Customer Content is free of all viruses, Trojan horses, and other elements that could interrupt or harm the systems or software used by Live CGI to provide the Services; (d) the Customer is solely responsible for ensuring compliance with all privacy laws in all jurisdictions that may apply to the Customer Content and use of the Service provided hereunder; (e) Live CGI may exercise the rights in Customer Content granted hereunder without liability or cost to any third party; and (f) the Customer Content complies with the terms of this Agreement. Although Live CGI has no obligation to monitor Customer’s use of the Service, Live CGI may do so and may prohibit, suspend or terminate any use of the Services it believes may be (or alleged to be) in violation of the foregoing.
2.4 Solely as necessary to enable Live CGI to provide the Service, Customer hereby grants Live CGI a non-exclusive, royalty-free, irrevocable, worldwide, perpetual right and license (with right to sublicense through multiple tiers) to make, have made, use, import, export, execute, reproduce, distribute, modify, adapt, publicly display, publicly perform, make derivative works of, and disclose any Customer Content and all such rights and permissions in or relating to the Customer Content. Further, Customer grants Live CGI a non-exclusive, royalty free, irrevocable, worldwide, perpetual right and license (with right to sublicense through multiple tiers) to use the Customer Content for marketing and promotion of the Service and Live CGI.
3.5 Either Party may propose any material change or modification to the Service or Deliverables set forth in an Order Form or a Statement of Work (as applicable), and each such material change or modification will only take effect pursuant to a modified Order Form or Statement of Work (as applicable) (“Change Control”). \
3. RIGHT TO USE THE LIVE CGI NEWS ROOM
3.1 Subject to the terms of this Agreement, during the Term, Live CGI hereby grants Customer a personal, non- exclusive, nontransferable, and limited license to use the Live CGI News room solely to the extent necessary for use of the Service. All Live CGI News rooms provided to Customer, are licensed (not sold) to Customer by Live CGI only for use in conjunction with the Service. Customer may not claim title to, or an ownership interest in, any Live CGI News room, and Customer shall execute any documentation reasonably required by Live CGI. Live CGI shall retain ownership of the Live CGI News room, and no rights are granted to Customer other than a license to use the Live CGI News room under the terms expressly set forth in this Agreement.
3.2 At any time Live CGI may remove or change the Live CGI News room in its sole discretion in connection with providing the Service. Customer shall not remove, attempt to repair, or otherwise tamper with any Live CGI News room or permit others to do so, and shall not use the Live CGI News room for any purpose other than that authorized by the Agreement. Live CGI shall maintain the Live CGI News room in good operating condition during the Term of this Agreement; provided, however, that such maintenance shall be at Live CGI’s expense only to the extent that it is related to and/or resulting from the ordinary and proper use of the Live CGI News room. Customer is responsible for damage to, or loss of, Live CGI News room caused by its acts or omissions, and its noncompliance with this Agreement, or by fire, theft or other casualty, unless caused by the gross negligence or willful misconduct of Live CGI. Customer shall bear the entire risk of loss and damage to any and all items of Live CGI News room from any cause whatsoever, whether or not insured against, during the Term until the Live CGI News room is returned to Live CGI.
3.3 Upon delivery of the Live CGI News room, Customer shall promptly inspect and test such Live CGI News room. The Live CGI News room shall be deemed accepted by Customer unless Customer notifies Live CGI in writing within forty-eight
(48) hours of delivery that the Live CGI News room is defective.
3.4 THE LIVE CGI NEWS ROOM IS BEING PROVIDED TO THE CUSTOMER BY LIVE CGI “AS IS, WHERE IS”. LIVE CGI DOES NOT MAKE, HAS NOT MADE, SHALL NOT BE DEEMED TO MAKE OR HAVE MADE, AND EXPRESSLY DISCLAIMS TO CUSTOMER ANY WARRANTY OR REPRESENTATION, EITHER EXPRESS OR IMPLIED, WRITTEN OR ORAL, WITH RESPECT TO THE LIVE CGI NEWS ROOM PROVIDED HEREUNDER OR ANY COMPONENT THEREOF, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY AS TO DESIGN, COMPLIANCE WITH ANY LAW, RULE, SPECIFICATION, OR CONTRACT PERTAINING THERETO, QUALITY OF MATERIALS OR WORKMANSHIP, MERCHANTABILITY, FITNESS FOR ANY PURPOSE, USE OR OPERATION, SAFETY, IT BEING AGREED THAT ALL SUCH RISKS, AS
BETWEEN CUSTOMER AND LIVE CGI, ARE TO BE
BORNE BY CUSTOMER. Customer’s acceptance of the Live CGI News room in accordance with Section 5.3 shall be conclusive evidence as between Live CGI and Customer that the items of Live CGI News room referred to therein are acceptable for all purposes hereof.
4. OWNERSHIP RIGHTS
4.1 Customer shall own all right, title and interest in and to the (a) Customer Content, subject to the rights and permissions granted to Live CGI in Section 3.4 and (b) Deliverables, subject to Customer’s payment of applicable fees, provided, however, that Live CGI retains ownership of any Live CGI Content that may be embodied or otherwise included in the Deliverables. Live CGI will not be responsible or liable for any losses, costs, expenses, or any other forms of liability arising out of Customer's use of the Deliverables. By using any Deliverable for any purpose, Customer agrees to indemnify and hold Live CGI harmless for any and all damages and/or liability, however characterized, arising from such use of the Deliverables. Customer shall not sell, resell, transfer or distribute the Deliverables to any third party. Customer also agrees not to (and not to authorize or permit others to) reverse engineer, deconstruct or disassemble any Deliverables.
4.2 Live CGI shall own and retain all right, title and interest in and to (a) the Service, the Software, and all improvements, enhancements and modifications thereto and derivative works thereof; (b) any and all software, applications, inventions or other technology developed in connection with Customization Services or support, except for Deliverables; (c) any and all data generated from the Service, and (d) all Intellectual Property Rights related to any and all of the foregoing. No other rights or licenses to Live CGI intellectual property are granted except as expressly set forth herein. Notwithstanding the foregoing in this Section 6.2, to the extent that Live CGI incorporates any Live CGI Content in a Deliverable, Live CGI hereby grants Customer a non-exclusive, worldwide, right and license to use, such Live CGI Content incorporated into any Deliverable in connection with Customer’s use of such Deliverable in accordance with the terms and conditions of this Agreement.
5. WARRANTY AND DISCLAIMER
Live CGI shall use reasonable efforts consistent with prevailing industry standards to maintain the Service in a manner which minimizes errors and interruptions in the Service. The Service may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Live CGI or by third-party providers, or because of other causes beyond Live CGI’s reasonable control, but Live CGI shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. HOWEVER, LIVE CGI DOES NOT WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICE. EXCEPT AS
EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICE AND ANY CUSTOMIZATION SERVICES ARE PROVIDED “AS IS,” “WHERE IS” AND AS AVAILABLE AND LIVE CGI DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON- INFRINGEMENT.
6. LIMITATION OF LIABILITY
NOTWITHSTANDING ANYTHING TO THE CONTRARY, LIVE CGI AND ITS SUPPLIERS, SERVICE PROVIDERS, (INCLUDING BUT NOT LIMITED TO ALL LIVE CGI NEWS ROOM AND TECHNOLOGY SUPPLIERS), CONTRACTORS, SUBCONTRACTORS, OFFICERS, AFFILIATES, REPRESENTATIVES, AND EMPLOYEES SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND LIVE CGI’S REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY CUSTOMER TO LIVE CGI FOR THE SERVICE UNDER THIS AGREEMENT IN THE SIX (6) MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT LIVE CGI HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
7. INDEMNIFICATION
Customer hereby agrees to defend, indemnify and hold harmless Live CGI and its Representatives against any and all damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees) in connection with any and all claims or actions that arise from Customer’s (a) violation or an alleged violation of this Agreement, including a breach of any representation or warranty; (b) violation of any third-party right, including any right of privacy or Intellectual Property Rights; (c)
violation of any applicable, law, rule or regulation; or (d) negligence or willful misconduct.
8. PUBLICITY RIGHTS
Customer hereby agrees that Live CGI may identify Customer as its customer in Live CGI’s promotional materials, including without limitation on its website and in any press releases (the “Publicity Right”). Customer hereby grants Live CGI a non-exclusive, royalty-free, revocable, worldwide right and license to use and display Customer’s name and logo for the purposes of such Publicity Right. Customer may not publicly announce this Agreement or the parties’ relationship or use Live CGI’s name, logos or marks without Live CGI’s prior written consent in each case.
9. MISCELLANEOUS
If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable or sublicensable by Customer except with Live CGI’s prior written consent. Live CGI may transfer, assign and subcontract any of its rights and obligations under this Agreement without consent. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind Live CGI in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. This Agreement shall be governed by the laws of the State of New York without regard to its conflict of laws provisions.
Exhibit A Acceptable Use Policy
This Acceptable Use Policy is to help you understand what type of content and conduct is allowed on the Service and to ensure a safe and respectful environment. Customer agrees to ensure that Authorized Users comply with this Acceptable Use Policy at all times when accessing or using the Service.
By accessing or using the Service, you agree to the following restrictions:
(a) you shall not use the Service to promote sexually explicit or abusive content, and you shall not use the Service in any way that is unlawful, threatening, harassing, slanderous, defamatory, abusive, invasive of privacy, or intended to or likely to incite violence, or that infringes, misappropriates, or otherwise violates the proprietary or legal rights of any person or entity;
(b) your use of the Service is personal to you, and you shall not, distribute, transfer, sublicense, or in any way permit any third party individual, entity, or distributor to access, distribute, or use the Service;
(c) you may not share or disclose your username and password with any third party and you are responsible for maintaining the confidentiality of your username and password;
(d) you are responsible for all authorized and unauthorized use of your user account;
(e) you shall not, directly or indirectly: (i) reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, know-how, or algorithms relevant to or comprising the Service (or any element thereof), or any software, documentation or data related to the Service
(collectively, “Software”); (ii) alter, change, edit, modify, translate, or create derivative works based on the Service (or any element thereof) or any Software; (iii) use the Service or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third party; or (iv) remove any proprietary notices or labels.
(f) you will not use the Service in a manner in violation of any applicable law, rule, or regulation;
(d) you will not tamper with the Service in any way;
(g) you will not create or compile a database of the Service or content on the Service, and you will not otherwise access, use, download, or copy the Service or its content in order to compete with Live CGI;
(h) you will not use the Service or its content to design, develop, operate, support, market, distribute, or otherwise make available any program, application, or service (including without limitation any device, technology, product, service, computer program, application, or website that enables or provides access to, use of, operation of, or interoperation with the Service;
(i) you will not solicit others through the Service for any purpose;
(j) you will use the Service to transmit any software viruses or any other computer code intended to interrupt, destroy, or limit the functionality of the Service or otherwise be technologically harmful; and
(k) you will not use the Service in any manner that may adversely affect Live CGI’s resources or the availability of the Service to others, or in any way that disrupts the operation of the Service.
Although Live CGI has no obligation to monitor your use of the Service, Live CGI may do so and may prohibit, suspend, or terminate any use of the Service that Live CGI believes might be (or is alleged to be) in violation of this policy and/or any applicable law, rule, or regulation. Further, Live CGI does not promise to make the Service available, and Live CGI may terminate your access at any time if Live CGI ceases to make the Service. You acknowledge that Live CGI (and its licensors) exclusively owns all rights, titles, and interests in and to the Service.