|
POP INTERACTIVE POINT & POSTSM JOBS LICENSE AGREEMENT
TERMS AND CONDITIONS
POP Interactive (Licensor) has developed and continues to develop
certain computer programs for use in conjunction with the World
Wide Web which enables the posting of jobs interactively on the
Internet; THEREFORE, for valuable consideration and the covenants
set forth below and in the schedule referenced herein, Licensor
and Licensee agree as follows:
1. DEFINITIONS:
"Account" or "Accounts" shall have the meaning as described in Schedule
1, attached hereto.
"Account License" shall have the meaning as described in Schedule
1.
"Effective Date" means the date stated above.
"Licensed Program" means the POINT&POSTSM Jobs Version 2.0 server
program, including user documentation, enhancements and derivative
products which are produced and delivered to Licensee by Licensor.
Such Licensed Program shall be in computer-readable form.
"User" or "Users" shall have the meaning as described in Schedule
1.
2. LICENSE:
2.1. Subject to the terms and conditions contained herein and payment
of the applicable License Fees, Licensor grants to Licensee a personal,
nontransferable and nonexclusive license:
2.1.1. to access and use the POINT&POSTSM Jobs user interface of
the Licensed Program via Internet, intranet and network connections
and through use of "browser" software that meets minimum user requirements
as described in Schedule 2, attached hereto.
2.1.2. to access and use (via Internet, intranet or network connections
through use of said browser software) the applicable Licensed Program
in accordance with Schedule 1, attached hereto.
2.2. Licensee may not copy the Licensed Program.
2.3. Licensee's use of the Licensed Program herein shall be strictly
in connection with Licensee's staffing and recruitment business.
2.5. Licensee agrees to faithfully reproduce, and not remove, any
copyright notice(s), and other proprietary legend(s) appearing on
the Licensed Program. Such copyright and other proprietary notice(s)
may appear in several forms, including machine readable form, and
Licensee agrees to reproduce such notice in each form in which it
appears, to the extent it is physically possible to do so. The phrase
"Powered by POINT&POSTSM Jobs" or the powered by POINT&POSTSM icon
graphic provided by Licensor with a link to the POINT&POSTSM Jobs
Web site home page shall appear on all Web pages using or generated
by the Licensed Program.
2.6. As consideration for the License granted hereunder, Licensee
shall pay to Licensor such Account Annual License Fees, Additional
User Annual License Fees, Monthly Usage Fees and other fees stated
in Schedule 1 hereto ("License Fee"). Unless otherwise agreed, such
License Fees are payable in advance and shall be non-refundable.
The License Fee specified in Schedule 1 is exclusive of any tariff,
duty, or tax, however designated, levied or based on either this
Agreement, any Account License hereunder, the Licensed Program and/or
Licensee's use thereof, and any materials or supplies agreed to
be furnished by Licensor under this Agreement, including, without
limitation, any sales or use taxes in any state and local privilege
or excise taxes based on gross revenue. Licensee agrees to pay and
be responsible for any and all of those taxes and levies (exclusive,
however, of taxes based on the Licensor's net income). Licensor
shall have the right, but shall have no obligation, to pay any of
those taxes or levies directly, in which event Licensee shall reimburse
Licensor, on demand, the amount so paid by Licensor. In no event
does the exercise or non-exercise by Licensor of the foregoing right
relieve Licensee of its obligations under this Agreement or impose
any liability whatsoever on Licensor.
2.7. Licensee shall not, and shall not authorize any third party
to, (i) reverse engineer, disassemble, decompile, create derivative
works and/or modify the Licensed Program; (ii) rent, lease, sell,
transfer, or sublicense the Licensed Program; (iii) electronically
transfer the Licensed Program; (iv) translate the Licensed Program
into another computer language; or (v) copy, reproduce or distribute
the Licensed Program.
3. PROGRAM REMAINS LICENSOR'S PROPERTY:
3.1. Title to Licensed Program, all copies thereof and all rights
therein, including all rights in patents, copyrights, and trade
secrets applicable thereto, shall remain vested in Licensor.
3.2. Licensee agrees that Licensed Program contains confidential
and proprietary information, know-how and inventions (hereafter
"Information") and agrees not to disclose, transfer, provide, or
otherwise make available in any form such Information, or any portion
thereof, to any person other than to those employees of Licensee
who have signed confidentiality agreements obligating them to Licensee
at least to the same extent as Licensee is obligated hereunder to
Licensor, except when, after, and to the extent that such Information
is generally known to the public, or was known to Licensee prior
to Licensee's receipt of it from Licensor, and that fact is evident
by records in Licensee's possession prior to that time. The provisions
of this paragraph will survive expiration or termination of this
Agreement.
4. DISCLAIMER OF WARRANTY:
THE LICENSED PROGRAM AND RELATED PRODUCTS AND SERVICES ARE PROVIDED
"AS IS" WITH ALL FAULTS AND WITHOUT ANY REPRESENTATIONS OR WARRANTIES.
THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY,
AND EFFORT IS WITH THE LICENSEE. THIS DISCLAIMER OF WARRANTY EXTENDS
TO LICENSEE AND TO LICENSEE'S CUSTOMERS OR USERS OF ITS PRODUCTS
AND SERVICES AND IS IN LIEU OF ALL WARRANTIES AND CONDITIONS WHETHER
EXPRESS, IMPLIED, OR STATUTORY, INCLUDING THE IMPLIED WARRANTIES
OF MERCHANTABILITY, FITNESS FOR PARTICULAR PURPOSE, TITLE AND NONINFRINGEMENT
WITH RESPECT TO THE LICENSED PROGRAM AND ITS RELATED PRODUCTS AND
SERVICES.
5. LIMITATION OF LIABILITY:
5.1. LICENSOR'S TOTAL LIABILITY HEREUNDER FOR DAMAGES OF ANY NATURE
SHALL NOT EXCEED THE TOTAL PAYMENT MADE BY LICENSEE FOR THE LICENSED
PROGRAM AND ITS RELATED PRODUCTS AND SERVICES UNDER THIS AGREEMENT.
THE EXISTENCE OF MORE THAN ONE CLAIM OR SUIT WILL NOT ENLARGE OR
EXTEND THE LIMIT. LICENSEE RELEASES LICENSOR FROM ALL OBLIGATIONS,
LIABILITY, CLAIMS OR DEMANDS IN EXCESS OF THE LIMITATION.
5.2. IN NO EVENT SHALL LICENSOR BE LIABLE FOR SPECIAL, INCIDENTAL
OR CONSEQUENTIAL DAMAGES, INCLUDING ANY LOST DATA, LOST PROFITS
OR LOST SAVINGS, EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY
OF SUCH DAMAGES, ANY COST OF PROCUREMENT OF SUBSTITUTE GOODS OR
SERVICES, OR FOR ANY CLAIM BY ANY THIRD PARTY. THE FOREGOING LIMITATION
AND OTHER LIMITATIONS CONTAINED IN THIS AGREEMENT MAY NOT BE APPLICABLE
IN SOME STATES OR JURISDICTIONS WHICH DO NOT ALLOW EXCLUSION OR
LIMITATION OF SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, OR THE
EXCLUSION OF IMPLIED WARRANTIES OR CONDITIONS.
6. CLIENT INDEMNIFICATION: Licensee shall indemnify and hold harmless
Licensor for any and all third party claims, losses and damages
(including reasonable attorney's fees and costs) arising out of
and resulting from Licensee's use of the Licensed Program, including
without limitation claims made by Licensee's customers and clients.
7. INDEMNIFICATION FOR LICENSEE CONTENT:
7.1. Licensee shall be solely responsible for the development, operation,
and maintenance of all materials that are posted to its Account
using the Licensed Program and that appear on the resulting Website
pages. For example, Licensee will be solely responsible for: (a)
The creation of any content that will appear on the site; (b) Ensuring
that materials posted on the site do not violate or infringe upon
the rights of any third parties (including, without limitation,
copyrights, trademarks, privacy, publicity, trade secret or other
personal or proprietary rights); (c) Ensuring that all materials
posted on the site are not libelous or otherwise illegal; (d) Ensuring
the accuracy and appropriateness of materials posted on the site.
7.2. POP disclaims all liability for the matters which are the responsibility
of Licensee as set forth in section 7.1, above. Further, Licensee
will defend, indemnify, and hold harmless POP from all claims, damages,
and expenses (including without limitation, reasonable attorney's
fees and costs) resulting from or arising out of such development,
operation, maintenance, and content responsibilities of Licensee
as set forth in section 9.1, above.
8. NOTICE: Any notices required or permitted hereunder shall be
given to the appropriate party at the address specified below or
at such other address as the party shall specify in writing. Such
notice shall be deemed given: upon personal delivery; if sent by
telephone facsimile, upon confirmation of receipt; if sent by electronic
mail, upon confirmation of receipt; or if sent by certified or registered
mail, postage prepaid, five (5) days after the date of mailing.
9. EXPORT CONTROL REGULATIONS: Licensee acknowledges and agrees
that none of the Licensed Program or underlying information or technology
may be downloaded or otherwise exported or re-exported (i) into
(or to a national or resident of) Cuba, Iraq, Libya, the countries
of the former Yugoslavia, North Korea, Iran, Syria or any other
country to which the U.S. has embargoed goods; or (ii) to anyone
on the U.S. Treasury Department's List of Specially Designated Nationals
or the U.S. Commerce Department's Table of Denial Orders. Licensee
further represents and warrants that it is not located in, under
the control of, or a national or resident of any such country or
on any such list.
10. GOVERNING LAW; VENUE: This Agreement shall be governed and interpreted
by the laws of the State of California, excluding its conflict of
laws provisions. Licensee agrees that any action brought for any
dispute between the parties relating to this Agreement shall take
place in, and Licensee consents to jurisdiction of, the Superior
Court for the County of San Francisco or the United States District
Court for the Northern California District in San Francisco, California.
11. SEVERABILITY; WAIVER. If any provision of this Agreement is
held to be invalid or unenforceable for any reason, the remaining
provisions will continue in full force without being impaired or
invalidated in any way. The parties agree to replace any invalid
provision with a valid provision which most closely approximates
the intent and economic effect of the invalid provision. The waiver
by either party of a breach of any provision of this Agreement will
not operate or be interpreted as a waiver of any other or subsequent
breach
12 HEADINGS. Headings used in this Agreement are for reference purposes
only and in no way define, limit, construe or describe the scope
or extent of such section or in any way affect this Agreement.
13. ASSIGNMENT: Except as provided herein, this Agreement may not
be assigned or otherwise transferred without the prior written consent
of Licensor. In the case of any assignment or transfer which may
be permitted under this Agreement, this Agreement or the relevant
provisions thereof shall be binding upon, and inure to the benefit
of, the successors, executors, heirs, representatives, administrators
and assigns of the parties hereto.
14. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original and all
of which shall be taken together and deemed to be one instrument.
POINT&POSTSM Jobs: Minimum User Requirements
The minimum user requirements to access the POINT&POSTSM Jobs user
interface is a PC or Macintosh running one of the following browsers:
Microsoft Internet Explorer version 4or above, Netscape version
4 or above. Due to the lack of standardization between browsers
and versions of browsers, the appearance and functionality of the
site may vary between browsers.
Some network configurations may be incompatible with accessing POINT&POSTSM
Jobs.
|
|
