THIS IS A LEGALLY BINDING AGREEMENT AND AFFECTS YOUR RIGHTS
a. Agreement Binding. The pages, facilities, services, and capabilities of or accessible through the Websites (the “Service”) provided by us are designed to let you (the “End User”) and others communicate with us and access data, information, tools, services, and other materials (all of this material is collectively called the “Content”). End User agrees that it may be necessary or prudent within our sole discretion to revise, amend, or supplement this Agreement from time to time. A printed version of this Agreement and of notice given in electronic form, if any, shall be admissible in judicial or administrative proceedings based upon or relating to this Agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.
b. Digital Millennium Copyright. Agent for Notice of Claimed Copyright Infringement: We respect the intellectual property rights of authors. To assist copyright owners, we have appointed an agent to receive notifications of claims of copyright infringement regarding materials available or accessible on, through, or in connection with our services. Any person authorized to act for a copyright owner may notify us of such claims by contacting the following address: Attn: Benstream, 954 Lexington Ave, Suite 20430, New York, NY 10021 or [email protected] and providing all relevant information, including the elements of notification set forth in 17 U.S.C. 512, and most particularly, Section 512(c)(3)(A). The contact information for the agent is also available from the Register of Copyrights.
c. User Accounts Subject to Other Agreement. An End User may only create an account and receive access to the Services in connection with an agreement between Benestream and the employer or principal of the End User, on whose behalf the End User accesses the Services. This Agreement is subject to the terms of such other agreement.
2. Access and Activity
a. Open Areas and Password Areas. Some areas of the Service may be accessible without password access control (“Open Areas”). End User shall be assigned a password or access code (“Password”) in order to access, to view, and to use some aspects of the Service (“Password Areas”) and, if applicable, to upload Content onto the Service. To the extent that we possess the right to use, display, distribute, copy, alter, or publicly perform and the right to authorize such acts with respect to the Content and the Service, the following limited licenses apply: (1) in Open Areas, we grant to End Users accepting this Agreement a personal, nonexclusive, nonassignable and nontransferable license to use and display Content and to access and to use the Service; and (2) in Password Areas, the issuance of any Password by us shall operate as a personal, nonexclusive, nonassignable and nontransferable license to use and display Content and to access and to use the Service in the Password Areas, within the scope of access and use supported by the Password in the course of normal web browsing, during the session for which the Password is accepted only; provided, however, that the foregoing shall not authorize any activity or access that is otherwise indicated in writing by us to be unauthorized, whether by this Agreement, or a separate document or communication from us (such as pop-up, e-mail or postal mail).
b. Express Limitations. The limitations of use entered into between Benestream and the employer or principal of End User are incorporated herein by reference. Without limiting the foregoing, all copying, distribution, publication, use, public display, or public performance not specifically authorized by this Agreement is prohibited unless done with our express written permission and the owner of the material. End User acknowledges and agrees that the following provisions apply to all Content (including without limitation all facts, data and original, creative works) made available on or through the Service, and that the making available or compiling of Content, or other services and facilities of the Service each comprise good and sufficient consideration for End User’s promise to refrain from any acts that would otherwise be unprohibited by the laws of copyright, trade secret, patent or any other law:
- In any copying, redistribution, or publication of copyrighted material, any changes to or deletion of author attribution or copyright notice are prohibited. End User assumes all risks regarding the determination of whether any Content is the subject of copyright, is in the public domain, or is otherwise subject to limitations by contract or law.
- Software accessible by or on the Service may not be reverse engineered unless specifically authorized by the owner of the software. As a condition of End User’s use of the Service, End User represents and warrants to us that End User will not use the Service for any purpose that is unlawful or prohibited by this Agreement.
- End User may not use the Service in any manner that could damage, disable, overburden, or impair the Service or interfere with any other entity’s use and enjoyment of the Service.
- End User may not download, access, copy, decompile, compile, manipulate, or otherwise obtain or use any of the data, information, or other Content made available on or through the Service for any purposes other than End User’s individual evaluation of discrete Content for the purposes for which it is provided by us.
- End User may not resell, display, distribute, sublicense access to (whether or not any of such act are for commercial gain or advantage), or take any commercial actions with any Content or portion of the Content, regardless of whether such content comprises facts or original or creative content.
- End User may not obtain or attempt to obtain any materials or information through any means that are apparently not intentionally made available or provided for through the Service; this includes any attempts to access any Password Areas of the Service without registering or by registering under inaccurate or incomplete information.
- Any activities taken in violation of this paragraph 2 (b) by End User (or End User’s representatives or those acting with End User’s Password or consent) automatically void any license provided by this Agreement or that may otherwise be implied or expressly granted.
a. Compliance with Law. End User agrees not to publish on the Service, or any other aspect of the Service, any Content that (i) violates or infringes upon the rights of any others (including without limitation the right of privacy or the right of publicity, copyright, or trade secrets), (ii) may be illegal, abusive, profane, obscene, immoral, indecent, threatening, slanderous, libelous, scandalous, or offensive to an average person, (iii) is derogatory toward any other End User, (iv) contains or triggers any virus or other software or code that may harm, interfere with, or alter the operation of any equipment, software, data, or Content of Benestream, any End User, or any third party,or (v) violates any law, regulation, or regulatory advisory opinion, including particularly, but without limitation, those in the areas of antitrust, fair trade and competition, and securities laws. End User agrees not to solicit the performance of any activity that is prohibited by law or to solicit through the Service other end users to become end users or purchasers of competitive services or goods. End User agrees to comply with all applicable laws, rules and regulations in connection with this Agreement.
b. Discretion of Benestream. Violations by End User of any provision of this Agreement, including without limitation the provisions of this Section 3, may be dealt with in our sole discretion by removal of violating Content without notice, denial or suspension of access, reporting to government authorities, or any such other remedies or actions as may be otherwise legally available to us or any aggrieved party, including the provisions of the Digital Millennium Copyright Act, the Computer Fraud and Abuse Act, and the No Electronic Theft Act.
c. End User Responsible. End User and/or End User’s employer or principal shall be solely responsible for the accuracy and completeness of Content published on the Service by End User and shall not publish any Content unless the End User and/or End User’s employer or principal owns all legal rights and clearances to such Content as necessary in order for End User to comply with Section 3(a). End User shall not publish any copyrighted Content through use of the Service without (a) the express permission of the owner(s) of all copyrights rights involved, or person(s) specifically authorized by such owner(s) to convey such permission, and (b) obtaining in the favor of Benestream and its assigns from such owners the express permission, license, and consent to license and to sublicense such copyright rights to any End User of the Service under this Agreement. End User’s publishing of any Content is a representation that such licenses and sublicenses as described in this Section 3 have been secured.
d. Benestream Property. End User acknowledges and agrees that all Content created by or for us and all aspects of the Service (including without limitation, software code, screen views or templates, interfaces, html (or other pertinent language) mark-up, and any other writing or expression) are not within the public domain. End User may not reproduce, redistribute, retransmit, publish or otherwise transfer, or commercially exploit, any Content received or accessed through the Service, except as expressly provided in this Agreement or the agreement between Benestream and End User’s employer or principal. End User agrees not to use our trademarks, logos, symbols, or any other mark, device, or commercial identifier of or any aspect of the Service without our express written consent.
e. Links to Third Party Sites. The Service may, from time to time, contain links to other web pages or Internet resources (“Linked Sites”). The Linked Sites may not be under our control, and we are not responsible for the contents of any Linked Site, including without limitation any link contained in a Linked Site, or any changes or updates to a Linked Site. We are not responsible for any Content or any transmission received from any Linked Site. We provide such links to End User only as a convenience, and the inclusion of any link does not imply endorsement by us of the site or any association with its operators unless otherwise stated.
a. End User acknowledges that the Password Areas of Service may contain information of a confidential and sensitive nature. All information accessible in Password Areas of the Service, except as provided in Section 4(b), below, shall be deemed proprietary and confidential (“Confidential Information”), and End User agrees to treat such Confidential Information as confidential, and to hold it in trust for us. In particular, without limitation, End User will not disclose or allow to be disclosed such information without our express written consent. End User will at a minimum employ the same standards to maintain the confidentiality of the Confidential Information as it employs to protect its own proprietary information and trade secrets.
b. The restrictions and obligations under this Section 4 concerning confidentiality shall not apply to any portion of the Confidential Information that: (i) is generally known in the form, compilation, organization, on the Service to the general public through no act or failure to act of End User; (ii) may be demonstrated to have been known to End User at the time of the receipt thereof as evidenced by tangible records that existed prior to End User’s obtaining the information from us; (iii) subsequently is obtained rightfully from a third party who lawfully possessed the information and who had the right to make such disclosure, or (iv) is independently developed by End User without assistance of, reference to, or reliance upon Confidential Information.
a. Permissible. We may modify this Agreement at any time, and may discontinue or revise any or all other aspects of the Content or Service in its sole discretion and without prior notice. If we make such a modification, such modification will be posted on the Service, or sent via e-mail or postal mail in a manner reasonably calculated to reach End User. End User agrees that use of the Service is an acknowledgment and agreement to the terms and conditions of the Agreement, and that continued use of the Service following any revision, amendment, or supplement is sufficient consideration for, and indicates agreement to, such revisions, amendments, or supplements.
b. Limitations. Any acknowledgment by us of an e-mail or other communication of the End User that is in any way inconsistent with, or adds to, the provisions of this Agreement is null and void to the extent of such inconsistency.Neither the course of conduct between parties nor trade practice may act to modify the provisions of this Agreement. We may authorize or allow our contractors and other third parties to provide to us and/or to End User services necessary or related to making the Service available and to perform obligations and exercise our rights under this Agreement.
6. NON-TRANSFERABILITY. End User’s right to use the Service or to designate users is not transferable and is subject to any limits established by us. End User may not sublicense, assign or transfer this license. Any attempt to sublicense, assign or transfer any of the rights, duties or obligations under this license is void.
7. EQUIPMENT AND SERVICE PROVIDERS. End User is responsible for and must provide all telephone and other equipment and services necessary to access the Service and use the Software.
9. LIMITATIONS, WARRANTIES, AND INDEMNIFICATION. The limitations of liability, warranties, and indemnification provisions set forth in the agreement between Benestream and End User’s employer or principal are incorporated by reference herein and shall apply as between Benestream and End User’s employer or principal.
10. BENEFIT OF SECTIONS. The provisions of Sections 2, 3, 4, and 9 are for the benefit of Benestream and its affiliates, officers, directors, employees, and agents; and each shall have the right to assert and enforce such provisions directly on its own behalf against End User
11. GOVERNING LAW / JURISDICTION. This Agreement is made in Tennessee, and shall be governed by and construed in accordance with the laws of Tennessee except that no conflicts-of-laws provision shall be invoked so as to use the laws of any other jurisdiction. End User consents to jurisdiction of the courts residing in the State of Tennessee for all disputes arising out of or in connection with this agreement, and such courts shall have exclusive venue and jurisdiction over such disputes. By consent and agreement of End User, venue is proper in the courts within Davidson County, Tennessee.
12. SEVERABILITY. If any provision of this Agreement is determined to be invalid, it shall be deemed severed from the remainder of the Agreement to the extent of such invalidity, and all other provisions shall remain in full force and effect.
13. TERMINATION. This Agreement is effective until terminated by either party. End User may terminate this agreement at any time by discontinuing use of and access to the Service and destroying all materials obtained from the Service. We reserve the right, in our sole discretion, to terminate or suspend any End User’s password, access, and ability to use the Service at any time, without notice. The provisions of Sections 2(b) – 7 and 9 – 15 shall survive any termination of this Agreement.
14. INJUNCTIVE RELIEF. End User acknowledges and agrees that any violation of the terms of this Agreement relating to the disclosure, use, copying, distribution, display or publishing of Content (including without limitation, trademarks) may result in irreparable injury and damage to us and our affiliates that may not be adequately compensable in money damages, and for which we and our affiliates will have no adequate remedy at law. End User therefore consents and agrees that we and our affiliates may obtain injunctions, orders or decrees as may be reasonably necessary ensure compliance with this Agreement. End User waives any requirement of bond that may apply for issuance of any injunctions, orders, or decrees.
15. RELIANCE. WE DO NOT ENDORSE, ASSERT OR STAND BEHIND THE TRUTHFULNESS OR RELIABILITY OF OPINIONS, ADVICE OR STATEMENTS GIVEN OR MADE BY ANYONE OTHER THAN AUTHORIZED COMPANY SPOKESPERSONS IN ANY MANNER ON OR THROUGH THE SERVICE. OTHER END USERS ARE NOT AUTHORIZED COMPANY SPOKESPERSONS.
By using this Service, I acknowledge and agree I have read and understand this Agreement and agree to be bound by its terms. I choose to use the Service and to abide by the terms and conditions set forth here.