This end user license agreement (this “Agreement” or this “EULA”) is between AgencyAgile, Inc. (“AgencyAgile”, “we”, “us” or “our”) and you. By clicking the "I Accept" button below, or by indicating assent electronically or accessing any content or information provided by AgencyAgile online (the “Content”), you consent to be bound by this Agreement. Each time you access the Content or log into an account through which you are able to access or view the Content, you accept, on each such occasion, the terms and conditions of this Agreement. If you do not accept the terms and conditions of this Agreement, then do not accept this Agreement and do not access any Content.
Content. The type and scope of the Content will be determined in our sole discretion. The Content is provided to you under license; it is not sold to you. AgencyAgile is the owner of the Content, and you shall not acquire any rights in or to the Content, in part or in whole, except for the limited license rights described in this Agreement.
In addition to the requirements imposed by you in this EULA, your access to the Content is conditioned on the existence and fulfillment of a subscription agreement between AgencyAgile and your employer (the “Subscription Agreement”). If the limited license rights under the Subscription Agreement are suspended or terminated, then your limited license rights under this EULA shall be suspended or terminated (as applicable) with no prior notice to you.
License Grant. Subject to the terms of the Subscription Agreement and AgencyAgile’s receipt of a subscription fee covering your access and use of the Content, we hereby grant to you a nonexclusive, non-transferable, non-assignable license to access and view the Content during the term of this EULA on one or more computer devices (including but not limited to mobile devices) for your informational and educational purposes only. No other access or use of the Content is authorized under this EULA.
Restrictions. Your access to and use of the Content must be handled through an account paid for by your employer and established by us for that purpose. The account will require the use of a username and password (“Your Credentials”), and you are responsible for the security and confidentiality of Your Credentials. You are responsible for all activities that occur through the use of Your Credentials.
Your Credentials must only be used by you, and you are prohibited from enabling or allowing any third party to access, view, display, or use the Content using Your Credentials. Similarly, you are prohibited from accessing, viewing, or using the Content using any other person’s login credentials. If we believe that you are violating any of the foregoing restrictions, then we reserve the right to suspend your access to the Content until we are satisfied that the situation is remediated and not subject to repetition.
In addition to the foregoing, you agree that:
No Copying. You will not record, copy or reproduce, in part or whole, any Content without our prior written consent;
No Public Display. You will not access or display the Content in a manner that is intended to, or may likely lead to, the disclosure or use of the Content to persons other than you or other people who are authorized by us to access and view the Content;
No Unauthorized Distribution. You will not further distribute, demonstrate, display, or disclose the Content to any persons who are not authorized by us to access and view the Content; and,
Noncommercial Basis Only. You will use the Content solely for your personal, educational, and noncommercial purposes, and you will not remove any of the copyright notices from any Content that is authorized to be downloaded or copied.
Your Data. All information that you provide when you register with AgencyAgile or gain access to your account is acquired and stored by AgencyAgile (“Your Data”) and is made accessible to your employer and/or to parties designated by your employer to receive such information. AgencyAgile may use Your Data to provide your employer or you with Content-related support, or to generate reports or service-related documents that are requested by your employer from time to time. AgencyAgile may also use Your Data in a de-identified manner, and in the aggregate, to monitor or gauge the efficiency or effectiveness of the Content or the service through which the Content is provided to you.
Access; Availability. You must provide all equipment and Internet access necessary to download, access and view the Content. You are solely responsible for any costs you incur by accessing or viewing the Content through your mobile device. There may be interruptions in the functionality of our services from time to time. You understand and agree that we will be held harmless for any interruption or suspension of our services for any reason whatsoever.
You authorize us to communicate with you regarding the Content and any of our services using SMS, MMS, or email, or through any other technology or means of communication now known or which may be developed in the future. This authorization shall continue until and unless it is either (i) revoked in writing by you or (ii) this EULA is terminated, in which case all further communications to you will be handled in accordance with applicable law.
Term; Termination. This EULA will begin upon your acceptance of this Agreement (as indicated in the opening paragraph of this EULA), and will continue to apply until such time that it is terminated either by you or us. We may terminate this EULA immediately and without prior notice to you if (i) the Subscription Agreement is terminated or your limited license rights under the Subscription Agreement are terminated, or (ii) if you violate the terms of this EULA and such violation is not remedied by you within five (5) days after we notify you of the violation. You may terminate this EULA by (i) deleting your account with us, or (ii) providing us with written notice of termination.
LIMITATIONS OF LIABILITY. You expressly agree that your access to and use of the Content is at your own and sole risk. AGENCYAGILE MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THE CONTENT, WHICH IS PROVIDED FOR USE "AS IS" AND "AS AVAILABLE." AGENCYAGILE DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO THE CONTENT, OR YOUR ABILITY OR INABILITY TO ACCESS OR USE THE CONTENT. WE DO NOT WARRANT OR GUARANTEE THAT THE CONTENT WILL MEET YOUR REQUIREMENTS, OR THAT THE CONTENT IS FIT FOR ANY PARTICULAR PURPOSE OR THAT OUR SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE CONTENT OR THE SERVER THAT MAKES IT AVAILABLE IS FREE OF VIRUSES, WORMS, TROJAN HORSES, CANCELBOTS OR OTHER HARMFUL COMPONENTS. APPLICABLE LAW MAY NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU.
You agree that neither we nor any of our licensors, agents, suppliers, or service providers shall be liable to you, or any other third party, for any direct, special, indirect, incidental, consequential, exemplary, or punitive damages that may arise from your use, misuse, or inability to use the Content even if we have been advised of the probability of such damages. This limitation applies for any matter arising out of or relating to this EULA and your use of the Content, whether such liability is asserted on the basis of contract, negligence, or tort. In no event shall our maximum total aggregate liability hereunder for all damages exceed $100. Because some jurisdictions prohibit the exclusion or limitation of liability for consequential or incidental damages, the above limitation may not apply to you.
Indemnity. You agree to defend, indemnify, and hold us harmless, and our officers, directors, employees, independent contractors, telecommunication providers, and agents harmless, from and against any and all claims, actions, loss, liabilities, expenses, costs, or demands, including without limitation legal and accounting fees, for all damages directly, indirectly, and/or consequentially resulting or allegedly resulting from your use or inability to use the Content. We shall promptly notify you by electronic mail of any such claim or suit and cooperate fully (at your expense) in the defense of such claim or suit. We shall be provided with counsel of our choosing and shall control the reasonable disposition and settlement of any such claim or suit.
Notices; Electronic Notification. You consent to receive any privacy or other notices, agreements, disclosures, reports, documents, communications, or other records (collectively, “Notices”) electronically. All Notices provided to you electronically will be deemed to be "in writing." You acknowledge and agree that your consent to receive Notices electronically is being provided in connection with a transaction affecting interstate commerce that is subject to the federal Electronic Signatures in Global and National Commerce Act, and that we both intend that the Act apply to the fullest extent possible to validate our ability to conduct business with you by electronic means.
Governing Law; Venue. This EULA shall be governed under the laws of the state of California. The sole venue for all claims arising from or related to this EULA shall be Los Angeles County, California; provided, however, that a party may bring an action for temporary injunctive relief in any appropriate venue to prevent the actual or anticipated breach of this EULA. In any action brought to interpret or enforce the terms of this EULA, the prevailing party shall be entitled to an award of its reasonable attorneys’ fees and costs.
Force Majeure. We shall not be responsible for any failure to perform due to unforeseen circumstances or to causes beyond our reasonable control, including but not limited to: acts of God such as fire, flood, earthquakes, hurricanes, tropical storms or other natural disasters; war, riot, arson, embargoes, acts of civil or military authority, or terrorism; fiber cuts; strikes, or shortages in transportation, facilities, fuel, energy, labor or materials; failure of the telecommunications or information services infrastructure; hacking, SPAM, or any failure of a computer, server or software, for so long as such event continues to delay our performance.
Miscellaneous. Captions contained herein are inserted only as a matter of convenience or for reference and in no way define, limit, extend, or describe the scope of the terms of this EULA or the intent of any provision contained herein. It is the intent of the parties that neither these terms, nor any covenant contained herein, shall be construed against either party pursuant to the common law rule of construction against the drafter. If any provision of these terms shall be held invalid or unenforceable by any court of competent jurisdiction or as a result of future legislative action, such holding or action shall be strictly construed and shall not affect the validity or effect of any other provision of these terms. Any provision in this EULA which, by the nature of its terms, is intended to survive the termination of this EULA shall survive any such termination. This includes, but is not limited to, provisions related to AgencyAgile’s ownership rights, limitations of liability, indemnification, and your restrictions on the use and/or display of any Content provided to you hereunder.