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1. Terms and Conditions
1.1 Agreement; Effective Date. The terms and conditions described below in this agreement and in all referenced and incorporated agreements, contracts, policies, addenda, schedules, exhibits, and/or other documents mentioned and incorporated (collectively, the “Agreement”) are a binding legal contract between Colony Labs, Inc., a Delaware corporation (aka, Scribe) (“Scribe”) and Enterprise (as defined below) that may authorize such user (“Enterprise”), of the Scribe Website, website-accessed Account, Scribe applications, such as the Smart Recorder, and all related applications, products and/or services (“Scribe Services”). Upon execution of this Agreement by Scribe and Enterprise, Enterprise agrees to be bound by the terms and conditions of this Agreement as of that date (the “Effective Date”). “Enterprise” herein shall include such Enterprise and any users authorized by the Enterprise.
1.2 Changes and Amendments. Scribe may at any time, through mutual written agreement between Scribe and Enterprise, amend, change, and/or update this Agreement, or any part of it, by providing sufficient advanced notice to Enterprise. If any change in the Scribe Fees is a substantial and permanent increase, then Scribe will provide advance notice of the increase. In the case of a mutually executed Order Form, the fees listed in the Order Form shall only change upon renewal or through mutual written agreement between Scribe and Enterprise. Any revisions and/or modifications of this Agreement will take effect on the later of the date of posting or the noted effective date.
2. Definitions
Capitalized terms used in this Agreement have the meanings set forth in this Section 2 (Definitions) of this Agreement, or as defined elsewhere in this Agreement.
2.1 “Account” means a login-accessed portion of the Scribe Website that may allow access to unique functionality, and to which account authorized Enterprise users are granted access by (i) registering a unique username, password, and profile, (ii) agreeing to unique terms and conditions, including on behalf of the Enterprise authorizing its access and use, as the case may be, and (iii) receiving approval of registration by Scribe.
2.2 “Authorized Enterprise Users” or “User” shall have the meaning set forth in Section 4.1 (Enterprise Users).
2.3 “Confidential Information” has the meaning set forth in Section 16 (Confidentiality) of this Agreement.
2.4 “Content” means any and all information in any medium that is capable of being stored by computer, including without limitation any links, text, graphics, data, software, sound, music, photographs, data models, spreadsheets, audio, video, maps, database, etc.
2.5 “Enterprise” shall have the meaning set forth in Section 3 of this Agreement.
2.6 “Intellectual Property Rights” means all intellectual property and proprietary rights anywhere in the world under the laws of any state, country, territory, and/or other jurisdiction, as may now exist or hereafter come into existence, whether statutory, common law, or otherwise, including without limitation any and all patent rights (including patent applications and disclosures), copyright rights, trade secret rights, moral rights, know-how, database rights, mask work rights, rights of publicity, Marks (whether registered or unregistered), and all goodwill relating to the foregoing and any and all applications therefore and
2.7 “Mark” means any trademark, trade name, trade dress, service mark, corporate name, design, logo, domain name, and/or other indicator of the source or origin of any product or service.
2.8 “Scribe Website” means the websites collectively of Scribe, including the homepage that is typically found at www.scribehow.com, and such other websites maintained by Scribe and its affiliates from time to time.
2.9 “Services” means individually and collectively the Scribe Website, related cloud-based services and functionality, Smart Recorder, and such other applications, services, and/or products of Scribe made available from time to time under legal and/or commercial terms and conditions established and offered by Scribe.
2.10 “Smart Recorder” means that browser extension application and/or software incorporated into the Scribe Services and commonly known as the Smart Recorder.
3. Website Use and Account Registration
3.1 Account Registration. To use login-accessed portions of the Scribe Website and to use certain cloud-based services and/or applications, products, and/or services, authorized Enterprise users must create and register an Account or be provisioned an account by an Enterprise administrator and be approved by Scribe. By initiating registration of such an Account, authorized Enterprise users reaffirm commitment to the terms and conditions of this Agreement and that they are legally bound by them. Nevertheless, Enterprise acknowledges and agrees that Scribe is under no obligation to accept such registration and may decline any such registration for any lawful reason, including without limitation lack of operational capacity, business operation interruptions, and/or other business considerations.
3.2 Users Profile. User must create a profile for itself or be provisioned a profile by Enterprise administrator, and if registering on behalf of an Enterprise, then also a profile of such Enterprise, and User must always provide accurate, truthful, and complete information and maintain and update such profile or profiles to ensure ongoing accuracy, completeness, and truthfulness. User agrees not to provide any false or misleading information about its identity or location, its business, an Enterprise’s identity, location, and/or business, and User agrees to correct any such information that is or becomes false or misleading, and to respond promptly to any requests for verification of such information.
3.3 Enterprise Account Registration. If User registers an Account as an employee or agent on behalf of an independent business enterprise, partnership, company, sole proprietorship, and/or other entity (the “Enterprise”), User represents and warrants the following: (i) it is either a legal entity or an individual who is eighteen (18) years or older (or has otherwise reached the age of majority in the jurisdiction in which User is located, but is not less than sixteen (16)) in each case who can form legally binding contracts; (ii) it is an employee or agent of, and properly authorized to act for and bind, such Enterprise; (iii) it will use the Scribe Services for business purposes only; and (iv) it will comply with any licensing, registration, regulatory, and/or other legal requirements with respect to its business, or the business for which it is acting, and with respect to the use of the Scribe Services.
3.4 Authorized Use. Enterprise and User agree not to allow another person to create or register an Account on Enterprise or User behalf or benefit, except that a user may create an Account on behalf of an enterprise and/or company, as authorized by such, and such enterprise and/or organization shall assume full responsibility for the use of its account and each user accessing the Account, including any access and/or use of the Scribe Services. User agrees not to share its username or password with any person, except such person or persons who are properly authorized to access and use User’s Account or that of the Enterprise. User agrees that Scribe may assume that any person using the Account with its username and password is authorized to act for User, and it agrees to immediately notify Scribe in the event of unauthorized access of User’s Account (or that of the Enterprise), unauthorized use of any Scribe Services, and/or unauthorized disclosure of any User’s username and/or password. User acknowledges and agrees that all User and Account information, and any rights, privileges, and/or licenses User claims (including those of the Enterprise that User acts on behalf of), will be subject to verification at any time and from time to time, including without limitation against third-party databases or government and/or legal registrations or documents. User and Enterprise authorize Scribe and its agents to make inquiries and to investigate as necessary to validate all User, Enterprise, and Account information, including without limitation identity, location, email addresses, authorization to act for any enterprise and/or company, etc. User and Enterprise also agrees to provide evidence to verify any or all of the foregoing when requested by Scribe, to the satisfaction of Scribe in its sole discretion. Until such time, Scribe may suspend User access to the Scribe Website and/or Scribe Services.
3.5 Suspension or Termination. In addition to any other remedies available hereunder, Scribe may at any time immediately suspend and/or terminate this Agreement and User or Enterprise access to its Account and/or Scribe Services, if any one violates any of the terms of this Agreement.
4. Enterprise Users and Responsibility
4.1 Enterprise Users. Subject to the terms and conditions of this Agreement, Scribe may make the Services available to an Enterprise and its authorized users, and the rights granted in this Section may be exercised by a limited number of users designated by Enterprise, which number shall be no greater than the number mutually agreed upon in writing by Enterprise and Scribe, and the identity of which shall be specified by Enterprise during its initial online registration for the Scribe Services (“Authorized Enterprise Users”). Such users specified by Enterprise and designated as Authorized Enterprise Users may be replaced by Enterprise at any time and from time to time during the term hereof, and the users previously designated as Authorized Enterprise Users shall no longer be permitted to access or use the Services. Authorized Enterprise Users shall have no personal rights whatsoever to access or use the Services, which access and use shall be solely by the permission of Enterprise, subject to the terms and conditions of this Agreement.
4.2 Responsibility and Liability for Users. Enterprise shall remain responsible to ensure that all Authorized Enterprise Users act in conformity with the terms and conditions of this Agreement, all applicable Order Forms, if any, and with any and all applicable laws. Enterprise shall at all times remain solely responsible and liable for the activities and actions of such Authorized Enterprise Users while accessing and using the Services and any related applications, products, and/or services and for any and all of their acts and/or omissions. Enterprise shall prevent unauthorized users and third parties from accessing and/or using the Services by means of instrumentalities under Enterprise’s control.
5. Grant of Rights to Use the Services
5.1 Grant of Right to Access and Use. Subject to the terms and conditions of this Agreement, Scribe grants to Enterprise and/or authorized Enterprise users, as the case may be, a limited, revocable, nonexclusive, non-transferable, non-sublicensable right (or to Enterprise during the Term): (i) To access and use the Scribe Services, as may be more particularly described in a mutually executed writing between Scribe and User or Enterprise, if any, by means of login functionality located on the Scribe Websites; (ii) to upload User or Authorized Enterprise User Content to the Scribe Services and to organize such Content; and (iii) to print or export such Content, or such portions or combinations thereof, as Scribe may enable and allow, and User or Authorized Enterprise User may execute, through use of the functionality of the Scribe Services.
5.2 Scribe Smart Recorder and Applications Licenses. Subject to the terms and conditions of this Agreement, when User or Authorized Enterprise User downloads, installs, and/or uses the Smart Recorder and/or any other applications related to the Scribe Services, whether of its own or as an Authorized Enterprise Users on behalf of the Enterprise, then Scribe grants to such User, subject to compliance with the terms hereof (including without limitation Section 6) a limited, revocable, non-exclusive, non-transferrable, non-sublicensable right and license only to: (i) By means of and through a web browser, or as otherwise permitted, download the Smart Recorder and/or other applications related to the Scribe Services, as specifically permitted by Scribe, to a computer or device owned and/or licensed and controlled by User or Enterprise, as the case may be; (ii) Use the Smart Recorder and/or other applications, as specifically permitted by Scribe, related to the Scribe Services only for lawful purposes and only within the scope of this Agreement. No other rights to the Smart Recorder and/or other applications whatsoever are granted hereby. All rights not expressly and specifically granted hereunder are reserved to Scribe. All use of such Smart Recorder and/or other applications is governed by and shall at all times be in compliance with the terms of this Agreement, as such may be updated, revised, and/or changed from time to time by Scribe in its sole discretion, and such shall be posted on the Scribe Website and/or otherwise made available to User or Authorized Enterprise Users.
6. Responsibilities Concerning Content and Services
6.1 Content Quality and Disclaimer. Enterprise and Authorized Enterprise Users shall have sole responsibility and liability for the accuracy, quality, fitness, integrity, non-harmfulness, reliability, legality, appropriateness, and/or copyright of any and all User Content and any and all other Content that is inputted and/or uploaded to the Scribe Services, and/or otherwise made available to third parties. While reserving the right, Scribe shall have no obligation or duty to review, evaluate, check, filter, censor, and/or approve such Content, nor any websites that link to, or are linked from such Content or the Services that result from User or Enterprise’s activities. User and Enterprise agrees that Scribe shall not be responsible nor liable for any use or effects of such Content nor any third-party links or websites.
6.2 Non-Exclusive Rights. Each party to this Agreement acknowledges and agrees that the rights granted to the other party in this Agreement are non-exclusive, and that, without limiting the generality of the foregoing, except as expressly and specifically set forth herein, nothing in this Agreement shall be deemed or construed to prohibit either party from participating in similar business arrangements as those described herein, including without limitation soliciting third party advertisements or other materials, serving advertisements or other materials to third parties, serving advertisements or other material to third parties’ websites, or hosting or permitting third parties to place advertisements on such party’s websites, whether or not, in each such case, such advertisements are competitive with the products, services, or advertisements of the other party.
6.3 Endorsements and Content Disclaimers. A link to or from the Scribe Website and/or Services does not represent or imply that Scribe endorses any third-party website and/or Content. Scribe does not endorse any such website and/or Content nor represent that such is accurate, useful, fit, beneficial, appropriate, legal, and/or not harmful. Such websites and/or Content could be offensive, indecent, inappropriate, illegal, and/or objectionable, and/or they could include technical inaccuracies, typographical mistakes, harmful elements, and/or other errors; or violate or infringe the privacy, publicity rights, intellectual property rights, or other proprietary rights of third parties. Scribe shall not be responsible for any harm resulting from anyone’s access, use, purchase, uploading, and/or downloading of any Content, including without limitation any User Content, nor any derived therefrom, nor for any harm resulting from third-party websites and their Content accessed and/or used by means of links or references made in Content, including without limitation User Content.
6.4 Misuse of Services Prohibited. With respect to the Services and any related applications, products, and/or services, Enterprise and Authorized Enterprise Users may not and shall not, nor allow any third party to: (i) modify, disassemble, decompile or reverse engineer them (ii) copy them and/or make any derivative works thereof; (iii) use information from them to build a database for resale or for access by a third party in direct or indirect competition with them; (iv) delete or in any manner alter the copyright, Mark, and other proprietary rights notices, if any, of Scribe, its licensors, and/or its suppliers appearing on such. Enterprise and Authorized Enterprise Users shall not license, sell, rent, lease, transfer, assign, distribute, display, host, outsource, disclose or otherwise commercially exploit or make them available to any third party or other party (other than to an Authorized Enterprise User consistent with the terms and conditions and purpose of this Agreement); (v) attempt to disable or circumvent any security mechanisms used by them or any applications running on the Services; (vi) engage in any activity that interferes with or disrupts them (or the servers and networks which are connected to the Services); (vii) rent, lease, provide access to, and/or sublicense any elements of the Services to a third party or use them on behalf of, or to provide services to, third parties; (viii) access them in a manner intended to avoid incurring fees or exceeding usage limits or quotas; (ix) access them for the purpose of bringing an intellectual property infringement claim against Scribe or for the purpose of creating a product and/or service competitive with them; or (x) use any robot, spider, site search/retrieval application or other manual or automatic program or device to retrieve, index, “scrape,” “data mine” or in any way gather Content from them. Furthermore, User and Enterprise may not and shall not, nor allow any third party to, upload, record, publish, post, link to, transmit or distribute Content, or otherwise utilize the Services and any related applications, products, and/or services in a manner that: (a) advocates, promotes, incites, instructs, informs, assists or otherwise encourages violence, inappropriate behavior, and/or any illegal activities; (b) infringes or violates the copyright, patent, trademark, service mark, trade name, trade secret, or other Intellectual Property Rights of any third party and/or Scribe, or any rights of publicity or privacy of any party; (c) attempts to mislead others about User’s or Enterprise’s identity or the origin of a message or other communication, or impersonates or otherwise misrepresents User’s or Enterprise’s affiliation with any other person or entity, or is otherwise materially false, misleading, or inaccurate; (d) promotes, solicits or comprises inappropriate, harassing, insensitive, abusive, profane, hateful, defamatory, libelous, threatening, obscene, indecent, vulgar, pornographic or otherwise inappropriate, objectionable, and/or unlawful content or activity; (e) is harmful to minors; (f) utilizes or contains any viruses, malware, spyware, Trojan horses, worms, time bombs, and/or any other similar software, data, or programs that may damage, detrimentally interfere with, surreptitiously intercept, or expropriate any system, data, personal information, or property of another; or (g) violates any law, statute, ordinance, or regulation (including without limitation the laws and regulations governing export control, unfair competition, anti-discrimination, or false advertising). Scribe reserves the right (but shall have no obligation) to monitor and remove Content from the Services, in its sole discretion. User and Enterprise agree to immediately take down any User-supplied (including that of Authorized Enterprise Users) Content that violates the above terms and/or any other terms of this Agreement, including pursuant to a takedown request from Scribe. Scribe also reserves the right to directly take down such Content. Except as expressly permitted by Scribe in writing or through the standard functionality and features of the Services, User (including Authorized Enterprise User) shall not create Internet "links" to the Services or "frame" or "mirror" any part of the Service, including any Content contained in the Services, on any other server or device.
6.5 User Agreements. This Agreement incorporates by reference and shall include any and all of Scribe’s terms of use, user agreements, user policies, and all other terms and conditions posted from time to time on the Scribe Services (excluding the Scribe privacy policy), including any and all revisions, updates, and/or changes thereto that may be posted from time to time by Scribe (“User Policies”). Each time User or an Authorized Enterprise User uses the Services, then User and Enterprise shall be deemed to have agreed to be bound by such User Policies. This Agreement does not incorporate the Scribe privacy policy, which is specifically excluded from this Agreement.
6.6 Equipment. User and Enterprise shall be responsible for obtaining and maintaining any and all equipment and ancillary services needed to connect to, access, and/or otherwise use the Services, including, without limitation, hardware, software, computers, smartphones, tablets, servers, and the like (collectively, “Equipment”), and User and Enterprise shall be solely responsible to ensure the compatibility of such Equipment with the Services and any related applications, products, and/or services. User and Enterprise shall also be responsible for maintaining the security and integrity of the Equipment, including without limitation managing appropriate connectivity, access, accounts, and/or login credentials and passwords.
7. Service Commitment
7.1 Availability. Scribe will use commercially reasonable efforts consistent with prevailing industry standards to (i) provide and maintain the Services in a manner that that minimizes errors and malicious code, (ii) ensure the reasonable accessibility of the Services, and (iii) ensure that updates to the Services shall not degrade their functionality, capabilities, or features and that any such updates shall be backward compatible with the databases and system architecture employed with previous versions. The Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, whether scheduled by Scribe or by third-party providers, or whether because of causes beyond Scribe’s reasonable control. Scribe will, to the extent practicable, give User (including Authorized Enterprise User) advance notice prior to initiating a planned or an unplanned maintenance operation, and such notice shall indicate the estimated timing of such planned or unplanned maintenance operation.
7.2 Design and Technical Parameters. User and Enterprise acknowledge and agree that the Scribe Services will undergo regular updates, improvements, and/or modifications, and all access and use by User or Authorized Enterprise Users shall at all times be subject to the current design and technical parameters set by Scribe from time to time in its sole discretion. 7.3 Data Use Rights. User and Enterprise acknowledges and agree that Scribe shall have the right to collect and analyze all manner of data and/or information relating to the provision of, use of, and performance of various aspects of the Services, and Scribe shall be free during and after the term of this Agreement (or during and after the Term, with respect to any Enterprise) to use such data and/or information in a manner that anonymizes or reasonably masks, disguises, or protects Confidential Information: (i) to improve and enhance the Services, (ii) to maintain the integrity of the Services, (iii) for customer service or billing purposes, (iv) to disclose such data solely in aggregate and/or other de-identified form in connection with its business; and/or (v) for other legitimate developmental, diagnostic, and/or business purposes. Upon the termination or expiration of this Agreement, User and Enterprise acknowledge and agree that it shall have a limited period of only thirty (30) days to retrieve data.
8. Scribe Fees
8.1 Services Fees. Enterprise shall pay Scribe the fees as agreed upon in writing by Scribe in an order form, purchase order, or other mutually executed writing (the “Fees”).
8.2 Payment Terms. The Fees shall be paid in full, without right of offset, upon the due date or within thirty (30) days of the date invoiced, whichever is earlier. The Fees are non-refundable and non-cancelable, and Scribe reserves the right to charge interest on such fees and other amounts due or payable hereunder that are not timely paid at a rate of one and one-half percent (1.5%) per month, or the highest rate permitted by applicable law, whichever is less, plus all expenses of collection. User and Enterprise shall be solely responsible for any and all fees and charges and taxes associated with the payment of Fees and/or fees for the Services, other than United States taxes based on Scribe’s net income.
8.3 Invoices. Any invoices submitted shall be sent to Enterprise’s representative or such other person as may be designated by Enterprise. Such shall provide Scribe with a purchase order or contract control number for use, if and when invoicing under this Agreement. Scribe agrees that it will provide the order number on each invoice, if and when one is submitted, in Scribe’s discretion. If a purchase order is issued by Enterprise, the parties to this Agreement agree that any such issuance is for convenience of the issuer, that any terms and conditions of any such purchase order shall have no effect whatsoever upon the legal relationship of the parties to this Agreement, that the terms and conditions of this Agreement remain the sole governing terms and conditions.
8.4 Taxes. The fees and charges under this Agreement do not include any sales, use, excise, transaction and/or other similar taxes levied against or upon the rights of use or license or the furnishing or delivery or receipt of the Services and any related applications, products and/or services pursuant to this Agreement, nor do they include any other charges or fees, imposed by government, bank, or other. User shall be responsible for all fees and charges and taxes associated with the payment for the Scribe Services, other than United States taxes based on Scribe’s net income.
9. Term and Termination
9.1 Termination for Inactivity. Subject to the terms and conditions hereof and applicable law, if a User and/or Authorized Enterprise User Account remains inactive for three (3) months, then Scribe may suspend, deactivate, and/or delete the Account, terminate access to the Scribe Services, and/or terminate this Agreement.
9.2 Enterprise Term. This Agreement shall begin on the earlier of the date an Authorized Enterprise User accesses and/or use the Services, or the date mutually agreed upon in an order form, purchase order, or other mutually executed writing between Enterprise and Scribe, and shall continue until such expiration as the parties shall have agreed upon in such order form, purchase order, or other mutually executed writing, unless earlier terminated in accordance with the terms and conditions of this Agreement (the “Term”).
9.3 For Cause Termination or Response. Without limiting Scribe’s other rights or remedies, Scribe may, but is not obligated to, temporarily or indefinitely revoke or limit access to the Scribe Services, deny User registration, and/or permanently revoke access to the Scribe Website and/or Scribe Services (including any of an Authorized Enterprise User) if: (i) Enterprise breaches the letter or spirit of any terms and conditions of this Agreement; (ii) Scribe suspects or becomes aware that Enterprise has provided false or misleading information to Scribe; (iii) Scribe believes with reasonable justification that Authorized Enterprise User actions may cause legal liability for User, other Users, any Enterprise, and/or Scribe or its affiliates, may be contrary to the interests of the User community, and/or may involve illicit or illegal activity; or (iv) Scribe is required by law, legal process, or law enforcement. If such Account is temporarily or permanently closed, such User may not use the Scribe Website, Account, and/or Scribe Services under the same Account or a different Account or re-register under a new Account without Scribe’s prior written consent. Except as otherwise required by law, if an Enterprise’s Account is closed for any aforementioned reason (including any of an Authorized Enterprise User), Enterprise will no longer have access to data, messages, files, and/or other material it keeps on the Scribe Services and any closure of such Enterprise’s Account may involve deletion of any Content stored in the Account for which Scribe will have no liability whatsoever. Scribe, in its sole discretion and as permitted or required by law, may retain some or all of the Account information.
9.4 Termination for Other Reasons. Either party to this Agreement may immediately terminate this Agreement in the event of any of the following: (i) the other party ceases to carry on its business; (ii) the institution of bankruptcy, receivership, insolvency, reorganization or other similar proceedings by or against the other party, if such proceedings have not been dismissed or discharged within thirty (30) calendar days after they are instituted; (iii) the appointment of a receiver for all or substantially all of the other party’s assets; or (iv) any change in applicable laws that make continued performance under this Agreement unlawful or commercially unreasonable.
9.5 Survival. After this Agreement terminates, the terms of this Agreement that expressly or by their nature contemplate performance after this Agreement terminates or expires will survive and continue in full force and effect. The termination of this Agreement for any reason will not release User, Enterprise, or Scribe from any obligations incurred prior to termination of this Agreement or that thereafter may accrue in respect of any act or omission prior to such termination.
10. Intellectual Property Rights
10.1 Retained Rights. User and Enterprise acknowledge and agree that Scribe and its licensors and suppliers retain and own all rights, title and interests in and to the following and all Intellectual Property Rights related thereto: (i) the Scribe Services and/or Services and any and all related applications, products, and/or services; (ii) the components and/or any and all other materials, data and/or information provided and/or made available by Scribe to Users (including Authorized Enterprise Users) in connection with any of the foregoing; and (iii) any and all configurations, derivative works, developments, modifications, adaptations, changes, alterations, edits, conversions, improvements and/or the like made to, arising out of, and/or resulting from any of the foregoing. All rights not expressly and specifically granted under this Agreement, are reserved to Scribe and its licensors and suppliers, and there are no implied rights. Under no circumstances will anything in this Agreement be construed as granting, by implication, estoppel, or otherwise, a right or license to any party’s intellectual property or proprietary technology other than in strict accordance with the terms of this Agreement.
10.2 Feedback. Enterprise and Authorized Enterprise Users may provide comments, remarks, suggestions, feedback, know-how regarding the Scribe Services and/or Services. Such Users and Enterprise grant Scribe the right to use such feedback without any limitations, restrictions, and/or requirement of compensation. Authorized Enterprise User and Enterprise acknowledge and agree that Scribe and its vendor, suppliers, and/or licensors shall own all right, title and interest in and to all Intellectual Property Rights in and to and any suggestions, enhancement requests, feedback, or recommendations provided by Authorized Enterprise User relating to the Scribe Services, including all unpatented inventions, patent applications, patents, design rights, copyrights, Marks, know-how and other trade secret rights, and all other Intellectual Property Rights, derivatives or improvements thereof.
11. Warranty Disclaimer
EXCEPT AS EXPRESSLY PROVIDED OTHERWISE IN THIS, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, SCRIBE SERVICES AND/OR SERVICES AND ANY AND ALL APPLICATIONS, PRODUCTS, AND/OR SERVICES RELATED THERETO AND/OR MADE AVAILABLE TO AUTHORIZED ENTERPRISE USER AND ENTERPRISE ARE PROVIDED “AS IS” AND “WITH ALL FAULTS” AND SCRIBE AND ITS LICENSORS, VENDORS, AND SUPPLIERS DISCLAIM ANY AND ALL WARRANTIES, GUARANTEES, PROMISES, REPRESENTATIONS, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, COURSE OF DEALING, COURSE OF PERFORMANCE, TITLE, QUIET ENJOYMENT, NON-INFRINGEMENT, PERFORMANCE, ACCURACY, SYSTEM INTEGRATION OR COMPATIBILITY, AND CONTENT AND/OR DATA ACCURACY. SCRIBE, ON BEHALF OF ITSELF AND ITS LICENSORS, VENDORS, AND/OR SUPPLIERS, DOES NOT WARRANT THAT THE SCRIBE SERVICES AND/OR SERVICES AND/OR ANY RELATED APPLICATIONS, PRODUCTS, AND/OR SERVICES RELATED THERETO AND/OR MADE AVAILABLE TO USER (INCLUDING AUTHORIZED ENTERPRISE USER) WILL MEET THE REQUIREMENTS OR EXPECTATIONS OF SUCH, THAT THE OPERATION AND/OR USE OF THE FOREGOING WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ANY ERRORS WILL BE CORRECTED. ENTERPRISE AND USER (INCLUDING AUTHORIZED ENTERPRISE USER) ACKNOWLEDGE AND AGREE THAT THE DISCLAIMERS, LIMITATIONS, AND EXCLUSIONS OF LIABILITY SET FORTH IN THIS AGREEMENT FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES, AND THAT, ABSENT SUCH DISCLAIMERS, LIMITATIONS, AND EXCLUSIONS, THE TERMS OF THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, THE ECONOMIC TERMS, WOULD BE SUBSTANTIALLY DIFFERENT.
12. Limitation of Liability
Enterprise agrees that Scribe shall not be liable for any damages or losses arising out of, related to, or in connection with the Scribe Services, including, but not limited to: (i) inability to use them; (ii) delays or disruptions relating thereto; (iii) viruses or other malicious software obtained by accessing, or linking thereto; (iv) glitches, bugs, errors, or inaccuracies of any kind in them; (v) damage to Authorized Enterprise User’s hardware devices arising from the use thereof; (vi) the content, actions, or inactions of third parties’ use of them; (vii) a suspension or other action taken with respect to such Enterprise’s Account (including the Account of any Authorized Enterprise User); (vii) such Enterprise’s reliance on the quality, accuracy, or reliability of postings, profiles, ratings, recommendations, and feedback used on, or made available through the Scribe Services; and (viii) such Authorized Enterprise User need to modify practices, content, or behavior or its loss of or inability to do business, as a result of changes to the terms of service.
ADDITIONALLY, IN NO EVENT WILL SCRIBE, ITS AFFILIATES, ITS LICENSORS, SUPPLIERS, VENDORS, AND/OR ANY THIRD-PARTY SERVICE PROVIDERS BE LIABLE FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, OR INDIRECT COSTS OR DAMAGES, INCLUDING, BUT NOT LIMITED TO, LITIGATION COSTS, INSTALLATION AND REMOVAL COSTS, OR LOSS OF DATA, PRODUCTION, PROFIT, AND/OR BUSINESS OPPORTUNITIES.
THE LIABILITY OF SCRIBE, ITS AFFILIATES, ITS LICENSORS, VENDORS, SUPPLIERS, AND ITS THIRD-PARTY SERVICE PROVIDERS TO ANY USER (INCLUDING ANY AUTHORIZED ENTERPRISE USER) AND/OR ENTERPRISE FOR ANY CLAIM AND/OR CLAIMS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, ANY OTHER TERMS OF SERVICE, AND/OR ANY OTHER RELATIONSHIP BETWEEN THE PARTIES WILL NOT EXCEED, IN THE AGGREGATE, THE SEMI-ANNUAL FEES HEREUNDER. THESE LIMITATIONS WILL APPLY IN THE AGGREGATE TO ANY LIABILITY, ARISING FROM ANY CAUSE OF ACTION WHATSOEVER ARISING OUT OF, RELATED TO, OR IN CONNECTION WITH THIS AGREEMENT, ANY OTHER TERMS OF SERVICES, AND/OR ANY OTHER AGREEMENT AND/OR RELATIONSHIP BETWEEN AND/OR AMONG THE PARTIES, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH COSTS OR DAMAGES AND EVEN IF THE LIMITED REMEDIES PROVIDED HEREIN FAIL OF THEIR ESSENTIAL PURPOSE. SOME STATES AND JURISDICTIONS DO NOT ALLOW FOR ALL OF THE FOREGOING EXCLUSIONS AND LIMITATIONS, SO TO THAT EXTENT, SOME OR ALL OF THESE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY.
13. Enterprise Representations and Indemnifications
Enterprise and Authorized Enterprise Users represent, warrant, and covenant that (i) its use of the Scribe Services, its uploading, inputting, and/or organizing of any Content, and its release of such Content for posting and/or display on the Services and/or public or non-public websites shall comply with all laws, rules, and regulations, including without limitation any and all laws, rules, and regulations related to the public disclosure of business and financial data or information, including without limitation any and all rules and/or regulations promulgated by the Securities and Exchange Commission; (ii) all its Marks and any use allowed hereunder, will not infringe, misappropriate, or otherwise violate any rights of any third party; (iii) it is the sole and exclusive owner, valid licensee, and/or authorized user of all right, title and interest in and to such Content and/or any and all other Content that it inputs, uploads, organizes, integrates and/or uses by means of the Services (“Posting”), and that any such Posting will not infringe, whether indirectly (e.g., contributorily or by induced infringement) or directly, upon any copyright, Mark, patent, proprietary right, and/or Intellectual Property Right of any third party in the United States or in any country or jurisdiction worldwide; and (iv) there are no suits or proceedings, pending or threatened (or for which any basis exists) alleging any such type of infringement. Enterprise and Authorized Enterprise Users represent and warrant and covenant that it has no obligations to any third party that in any way limits or restricts its ability to receive, use, display, post, disseminate, and/or distribute such Content described above. Authorized Enterprise User and/or Enterprise agree to hold harmless, defend, and indemnify Scribe and all related parties from and against any and all claims, actions, costs, expenses, losses, damages arising out of and/or related to a breach of this Section’s representations, warranties, and/or covenants.
14. Indemnifications
Enterprise and Authorized Enterprise User shall hold harmless, defend, and indemnify Scribe, its affiliates, its licensors, vendors, and suppliers, and each of their respective directors, officers, managers, employees, representatives, and agents (“Indemnified Parties”) for all Indemnified Claims and Liabilities (as defined below) relating to or arising out of Authorized Enterprise User’s and/or Enterprise’s (i) access and/or use of the Scribe Services and/or Services; (ii) provision of any Content developed, provided, posted, disseminated, published, and/or otherwise related to its use of the Scribe Services provided by User (including any Authorized Enterprise User); (iii) failure to comply with this Agreement and/or any related agreements and/or terms of service; (iv) failure to comply with applicable law; (v) negligence, willful misconduct, and/or fraud; and (vi) defamation, libel, violation of privacy rights, unfair competition, and/or infringement of Intellectual Property Rights or allegations thereof to the extent caused by it.
“Indemnified Claim and Liabilities” means any and all claims, damages, liabilities, costs, losses, and/or expenses, including reasonable attorneys’ fees and including without limitation all related to recovering applicable insurance proceeds, arising from or relating to any allegation, claim, suit, proceeding, investigation, demand, and/or action brought by User, Authorized Enterprise User, Enterprise, and/or any third party against any Indemnified Parties.
15. Choice of Law
This Agreement and any claim will be governed by and construed in accordance with the laws of the State of Delaware, without regard to its conflict of law provisions and excluding the United Nations Convention on Contracts for the International Sale of Goods (CISG). If located outside the United States, Authorized Enterprise User and Enterprise agree that the California state courts of Santa Clara County (or, if there is federal jurisdiction, the United States District Court for the Northern District of California) will have jurisdiction and venue with respect to any claim arising out of or relating to this Agreement and consents to the personal jurisdiction and venue of those courts.
16. Confidential Information
16.1 Definition. “Confidential Information” means any information in any form related to this Agreement and its purposes disclosed by a party hereto (the “Discloser”), or disclosed on behalf of such party by its affiliates or representatives, to the other party (the “Recipient”), including without limitation any trade secrets, technology, source code, object code, software, inventions, know-how, information that Discloser considers and treats as confidential, or that a reasonable person would believe is confidential based on the nature of the information. Confidential Information does not include information that (i) at the time of disclosure, is available to the general public, (ii) becomes available to the general public through no fault of Recipient, (iii) is received by Recipient at any time from a third party without breach of a non-disclosure or confidentiality obligation to Discloser, (iv) is known to Recipient at the time of disclosure, as demonstrated by documentary evidence, (v) is developed independently by Recipient without access to any of Discloser’s Confidential Information, or (vi) is approved for disclosure by prior written permission of Disclosure or a corporate officer of Discloser, including without limitation pursuant to the terms of this Agreement.
16.2 Restrictions. Recipient shall use Discloser’s Confidential Information only for the purposes of this Agreement and/or as provided by the terms of this Agreement (the “Purpose”). Except as permitted by this Agreement, Recipient shall not disclose to any third party any of Discloser’s Confidential Information that is obtained directly or indirectly from Discloser or its affiliates or representatives. Recipient may only disclose the Confidential Information of Discloser to its representatives who are required to have it to further the Purpose. Recipient must inform any such representative of the confidential nature of the information and cause the representative to comply with the terms of this Agreement as if it were the Recipient, and Recipient will be liable for any breach of this Agreement by any such representative. Recipient will exercise the same degree of care toward the Confidential Information as Recipient exercises toward its own confidential information, but not less than reasonable care. Recipient agrees to take all reasonable steps to protect the secrecy of, and avoid disclosure or use of, the Discloser’s Confidential Information in order to prevent it from falling into the public domain or possession of unauthorized persons. Recipient agrees to immediately notify Discloser in writing of any use and/or disclosure in violation of this Agreement. Each party, however, may disclose Confidential Information of the other pursuant to the order or requirement of a court, administrative agency, or other governmental body, provided that the disclosing party gives reasonable notice to the other party to contest such order or requirement. Recipient agrees and acknowledges that any such breach or threatened breach of these terms of confidentiality may cause irreparable injury to Discloser so that, in addition to any other remedies available, Discloser may seek injunctive relief against the threatened or actual breach.
17. General Provisions
17.1 Entire Agreement. This Agreement, alongside any data protection agreement and/or order form executed between the parties, if applicable, sets forth the entire agreement and understanding between the parties hereto relating to the subject matter hereof and thereof and cancels and supersedes any prior or contemporaneous discussions, agreements, representations, warranties, and other communications between them, written or oral, to the extent they relate in any way to the subject matter hereof and thereof. The section headings are included for ease of reference only and have no binding effect. Even though Scribe may have drafted this Agreement, Authorized Enterprise User and Enterprise represent that each has had ample time to review and decide whether to agree to the terms and conditions of this Agreement. If an ambiguity or question of intent or interpretation of these terms and conditions arises, no presumption or burden of proof will arise favoring or disfavoring one party or the other because of the authorship of any provision of the terms and conditions of this Agreement.
17.2 Modifications, Waiver. No modification or amendment to this Agreement will be binding upon Scribe unless they are agreed in a written instrument signed by a duly authorized representative of Scribe, posted on the Scribe Website as an official modification and amendment of this Agreement, or noticed by Scribe in writing as an official amendment and modification of this Agreement (including by email). Scribe’s failure to act with respect to a breach by User, Authorized Enterprise User, and/or Enterprise does not waive Scribe’s right to act with respect to subsequent or similar breaches. Scribe does not guarantee we will take action against all breaches of this Agreement.
17.3 Assignability. Authorized Enterprise User and Enterprise may not assign this Agreements, or any of its rights or obligations hereunder, without Scribe’s prior written consent in the form of a written instrument signed by a duly authorized representative of Scribe. Any attempted assignment or transfer in violation of this subsection will be null and void. Subject to the foregoing restrictions, the terms and conditions of this Agreement are binding upon and will inure to the benefit of the successors, heirs, and permitted assigns of the parties.
17.4 Severability; Interpretation. If and to the extent any provision of this Agreement is held illegal, invalid, or unenforceable in whole or in part under applicable law, such provision or such portion thereof will be ineffective as to the jurisdiction in which it is illegal, invalid, or unenforceable to the extent of its illegality, invalidity, or unenforceability and will be deemed modified to the extent necessary to conform to applicable law so as to give the maximum effect to the intent of the parties. The illegality, invalidity, or unenforceability of such provision in that jurisdiction will not in any way affect the legality, validity, or enforceability of such provision in any other jurisdiction or of any other provision in any jurisdiction.
17.5 Force Majeure. The parties to this Agreement will not be responsible for the failure to perform, or any delay in performance of, any obligation hereunder for a reasonable period due to pandemics, disease, labor disturbances, accidents, fires, floods, telecommunications or Internet failures, strikes, wars, riots, rebellions, blockades, acts of government, governmental requirements and regulations or restrictions imposed by law or any other conditions beyond the reasonable control of such party.
17.6 Language. The English language version of this Agreement will be controlling in all respects and will prevail in case of any inconsistencies with translated versions, if any. The Scribe Services are controlled and operated from Scribe’s facilities in the United States.
17.7 Non-US Website Access. Scribe makes no representations or warranty that the Scribe Services are appropriate or available for use outside of the United States. Those who access or use the Scribe Services from other jurisdictions do so at their own risk and are entirely responsible for compliance with all applicable foreign, United States, state, and local laws and regulations, including, but not limited to, export and import regulations, including the Export Administration Regulations maintained by the United States Department of Commerce and the sanctions programs maintained by the Department of the Treasury Office of Foreign Assets Control. User, Authorized Enterprise User, and Enterprise must not directly or indirectly sell, provide access to, export, re-export, transfer, divert, or otherwise dispose of any software or service to any end user without obtaining any and all required authorizations from the appropriate government authorities. Such Users also warrant that they are not prohibited from receiving US origin products, including services or software. In order to access or use the Scribe Services, User, Authorized Enterprise User, and/or Enterprise must and hereby represents that it is not: (i) a citizen or resident of a geographic area in which access to or use of the Scribe Services is prohibited by applicable law, decree, regulation, treaty, or administrative act; (ii) a citizen or resident of, or located in, a geographic area that is subject to US or other sovereign country sanctions or embargoes; or (iii) an individual, or an individual employed by or associated with an entity, identified on the US Department of Commerce Denied Persons or Entity List, the US Department of Treasury Specially Designated Nationals or Blocked Persons Lists, or the US Department of State Debarred Parties List or otherwise ineligible to receive items subject to US export control laws and regulations or other economic sanction rules of any sovereign nation. User agrees that if its country of residence or other circumstances change such that the above representations are no longer accurate, that User will immediately cease using the Scribe Services and its license to use the Scribe Services will be immediately revoked.
17.8 Electronic Records. In connection with this Agreement, Authorized Enterprise User or Enterprise may be entitled to receive, or Scribe may otherwise provide, certain records from Scribe or its affiliates, such as contracts, notices, and communications, in writing. To facilitate User’s use of the Scribe Services, User and Enterprise give permission to provide these records to electronically instead of in paper form.
17.9 Audit. Authorized Enterprise User and Enterprise agree that, on Scribe’s request, it will certify in writing its compliance with the terms of this Agreement.
17.10 Publicity. Enterprise and Authorized Enterprise User grant Scribe a trademark license during the Term to include Enterprise’s primary logos in any customer list, press release, and/or on the Scribe Website. Goodwill associated with such trademarks inures solely to Enterprise.
17.11 Automatic Renewal. This Agreement shall be renewed automatically for a succeeding term of one (1) year each unless either party gives written notice to the other at least sixty (60) days prior to the expiration of the contract end date listed on the applicable Order Form.
