SKILLSPRING™
END USER LICENSE AGREEMENT
Last modified: August 9, 2019
Subject to the terms and conditions of this agreement (this “Agreement”) we provide access to and use of our SkillSpring “connection as a service” platform (“SkillSpring”), and a limited license to certain mobile applications and desktop client applications associated with SkillSpring that we may make available to you from time to time (the “Apps” and, together with SkillSpring, the “SkillSpring Software”). SkillSpring may be used to connect, via phone, video conference or other supported communication method, individuals who make themselves available to provide information and advice (“Experts”) with individuals who are seeking information or advice (“Consumers”). Additionally, a business’s SkillSpring account may be managed and operated by an individual that we have agreed to provide with an “Admin User” account (each, an “Admin User”). “We,” “us” and “our” as used throughout this Agreement refers to LifeOmic Connect LLC, a Delaware limited liability company. “You” and “your” as used throughout this Agreement refers to the party (other than us) accessing and using the SkillSpring Software as an Expert, Consumer, Admin User or other user.
1. Acceptance. By clicking “I agree” when this option is presented to you, or by otherwise accessing and using (and in the case of the Apps only, downloading and installing) the SkillSpring Software, you: (a) acknowledge that you have read and understand this Agreement, (b) represent that you are 18 years of age or older or are otherwise of legal age to enter into a binding legal agreement in your jurisdiction of residence, and (c) accept this Agreement and agree you are legally bound by its terms. You should read this Agreement carefully for the terms and conditions that govern your use of the SkillSpring Software. If you do not agree to these terms, do not click “I agree,” do not access or use (and in the case of the Apps only, do not download or install) the SkillSpring Software.
2. Changes to this Agreement. We may revise and update this Agreement from time to time in our sole discretion. Changes are effective immediately when we post them, but are not retroactive. You must check this page frequently so that you are aware of any changes. The date this Agreement was last modified is listed above. If you do not agree with any changes we make to this Agreement, you may exercise your right to terminate this Agreement as described below in Section 7. Your continued access to and use of the SkillSpring Software following the posting of a revised Agreement means that you accept and agree to the changes. You must immediately discontinue access or use of the SkillSpring Software (and in the case of the Apps only, immediately delete the Apps from your mobile device or computer) if you do not want to agree to the revised Agreement.
3. Right to Access SkillSpring Software and Restrictions.
a. License to Apps. So long as you comply with this Agreement, we grant you a limited, non-exclusive and non-transferable license to download, install and use the Apps, solely for the Permitted Use, on one or more mobile devices or computers owned or otherwise controlled by you, solely as (and in the form) in which we have provided the Apps to you, and strictly in accordance with this Agreement and the Documentation.
b. SkillSpring Authorization. So long as you comply with this Agreement, we authorize you, on a limited, non-exclusive and non-transferable basis, to access and use SkillSpring solely for the Permitted Use, solely as (and in the form) in which we have provided SkillSpring, and strictly in accordance with this Agreement and the Documentation.
c. Limitations and Restrictions. You must use reasonable efforts to prevent unauthorized access to or use of the SkillSpring Software. You must not, and you must not permit any other person or entity to, access or use the SkillSpring Software except as we’ve specifically allowed in this Agreement and, in the case of any third-party software or materials (including open source components) (“Third-Party Materials”) we provide with the SkillSpring Software, as allowed in the applicable third-party license agreement. Without limiting the generality of the preceding sentence, and except as expressly permitted in this Agreement, you must not do any of the following:
i. copy the SkillSpring Software or any portion thereof;
ii. modify, adapt, translate or create derivative works or improvements of the SkillSpring Software or any portion thereof;
iii. rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make available the SkillSpring Software or any features or functionality of the SkillSpring Software to any other person or entity for any reason, including by making the SkillSpring Software available on a network where it is capable of being accessed by more than one device at any time or through any time-sharing, service bureau or software as a service arrangement;
iv. reverse engineer, disassemble, decompile, decode, adapt or otherwise attempt to derive, gain access to or discover the source code of the SkillSpring Software or the underlying structure, ideas, know-how, algorithms or methodology relevant to the SkillSpring Software;
v. input, upload, transmit or otherwise provide to or through the SkillSpring Software any information or materials that are unlawful or injurious, or contain, transmit or activate any Harmful Code;
vi. bypass, breach or disable any security device, copy control or digital rights management tool, or other protection used by the SkillSpring Software;
vii. attempt to gain unauthorized access to, damage, destroy, disrupt, disable, impair, interfere with or otherwise impede or harm in any manner (A) the SkillSpring Software, (B) the server on which the SkillSpring Software is stored, (C) any server, computer or database connected to the SkillSpring Software, or (D) our ability to provide services to any other person or entity;
viii. access or use the SkillSpring Software in any way that infringes, misappropriates or otherwise violates any intellectual property right, privacy right or other right of any third party, or that violates any applicable law or regulation;
ix. access or use the SkillSpring Software for purposes of (A) benchmarking or competitive analysis, (B) developing, producing, marketing, distributing, licensing or selling any product or service that may compete with the SkillSpring Software, or (C) disclosing to our competitors, for any purpose, otherwise non-public information about the SkillSpring Software;
x. use the SkillSpring Software in any manner that is contrary to the Prohibited Uses and Content Standards in Section 3.d below, the applicable business’s privacy policy, or any other applicable documents or policies referenced herein;
xi. engage in any other conduct that restricts or inhibits anyone’s use or enjoyment of the SkillSpring Software, which otherwise attempts to interfere with the proper working of the SkillSpring Software, or which, as determined solely by us, our licensors and affiliates, may harm us or users of the SkillSpring Software or expose any of the foregoing to liability; or
xii. knowingly aid or assist any other person or entity in taking any of the actions prohibited by this Section 3.c.
d. Prohibited Uses and Content Standards. You may use the SkillSpring Software only for lawful purposes and in accordance with this Agreement, the applicable business’s privacy policy and any other applicable documents or policies referenced herein. Without limiting the generality of the foregoing, you agree specifically not to use the SkillSpring Software:
i. in any way that violates any applicable federal, state, local, international or foreign law or regulation;
ii. if you are under the age of 18;
iii. for the purpose of exploiting, harming, or attempting to exploit or harm minors in any way by exposing them to inappropriate content, asking for personally identifiable information, or otherwise;
iv. for the purpose of transmitting any communications or materials that (A) are defamatory, obscene, indecent, abusive, offensive, harassing, violent, hateful, inflammatory or otherwise objectionable; (B) promote sexually explicit or pornographic material, violence, or discrimination based on race, sex, religion, nationality, disability, sexual orientation or age; or (C) are false, misleading, or not provided in good faith;
v. for the purpose of transmitting, or procuring the sending of, any advertising or promotional materials including any “spam” or any other similar solicitation, or conducting commercial activities or sales, such as contests, sweepstakes and other sales promotions, barter or advertising, unless you have obtained from the recipient of such materials all consents required by applicable laws and regulations and such materials otherwise comply with all applicable federal, state, local, international or foreign laws or regulations;
vi. for the purpose of impersonating or attempting to impersonate any person, or misrepresent your identity or affiliation with any person or organization (including, but not limited to, us);
vii. to promote any illegal activity, or to advocate for, promote or assist in any unlawful act;
viii. in any manner that gives the impression that any communications or materials you provide emanate from or are endorsed by us or any other person or entity, if this is not the case.
e. User Contributions. You represent and warrant that you own or control all rights in and to the information and content you provide through the SkillSpring Software, and that all of the information and content you provide does and will comply with this Agreement, the applicable business’s privacy policy and any other applicable documents or policies referenced herein. You understand and acknowledge that you are responsible for any information or content you submit or contribute and you have full responsibility for such submissions and contributions, including the legality, reliability, accuracy and appropriateness thereof. We are not responsible, or liable to any party, for the content or accuracy of any such submissions or contributions or for the submissions or contributions of any other user of the SkillSpring Software (collectively, “User Contributions”).
f. Violations. We do not undertake to police or monitor use of the SkillSpring Software or the contents of any of communications or materials made available via the SkillSpring Software that are not contributed by us. However, if while using the SkillSpring Software you encounter communications or materials that violate the provisions of this Agreement, the applicable business’s privacy policy or any other applicable documents or policies referenced herein, please notify us by e-mail at privacy@lifeomic.com. We have the right to take any actions that we consider to be appropriate to ensure that the SkillSpring Software is provided and operated in an appropriate manner. We may take any action with respect to any User Contribution that we deem necessary or appropriate in our sole discretion, including if it believes that such User Contribution violates this Agreement, infringes any intellectual property right or other right of any person or entity, threatens the personal safety of users of the SkillSpring Software or the public or could create liability for us. Without limiting the foregoing, we have the right to fully cooperate with any law enforcement authorities or court order requesting or directing us to disclose the identity or other information of anyone posting any materials on or through the SkillSpring Software. YOU WAIVE ANY RIGHT TO ASSERT ANY CLAIMS RESULTING FROM ANY SUCH ACTION TAKEN BY US. We assume no liability for any action or inaction regarding transmissions, communications or content provided by any user or third party. We have no liability or responsibility to anyone for performance or nonperformance of the activities described in this Section.
g. Suspension of Services. We may suspend or deny your access to or use of all or any part of the SkillSpring Software, without any liability to you or others, if (i) we’re required to do so by law or court order; or (ii) you have (A) accessed or used the SkillSpring Software beyond the scope of the rights granted under this Agreement, (B) been involved in any fraudulent, misleading or unlawful activities relating to or in connection with the SkillSpring Software, (C) failed to comply with the limitations and restrictions described in Section 3.c or the Prohibited Uses and Content Standards in Section 3.d, or (D) otherwise failed to comply with this Agreement. Our remedies in this Section are in addition to, and not in lieu of, our termination rights in Section 7 and any other remedies available to us under the law or this Agreement.
h. Changes to the SkillSpring Software. We may make any changes to the SkillSpring Software that we deem necessary or useful to improve the SkillSpring Software or for any other reason, from time to time in our sole discretion. Such changes may include upgrades, bug fixes, patches and other error corrections and/or new features (collectively, including related Documentation changes, “Updates”). Updates may also modify or delete in their entirety certain features and functionality. All Updates shall be deemed a part of the SkillSpring Software governed by all the provisions of this Agreement pertaining thereto. Based on your mobile device settings, when your mobile device is connected to the Internet either: (i) the Apps will automatically download and install all available Updates pertaining to the Apps; or (ii) you may receive notice of or be prompted to download and install available Updates pertaining to the Apps. You must promptly download and install all Updates and you acknowledge and agree that the Apps or portions thereof may not properly operate should you fail to do so. You agree that we have no obligation to provide any Updates or to continue to provide or enable any particular features or functionality in the SkillSpring Software. If you do not agree with any changes we make to the SkillSpring Software, you may exercise your right to terminate this Agreement as described below in Section 7.
i. Subcontractors. We may, in our discretion, engage subcontractors in connection with providing the SkillSpring Software under this Agreement. You hereby specifically acknowledge and consent to our use of the following subcontractors to perform the described srvices under this Agreement (including processing of certain portions of Your Data), which such list may be updated from time to time in our sole discretion:
|
Subcontractor |
Services Provided |
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Amazon Web Services |
Cloud-based hosting and storage services for SkillSpring. Hosts and stores Your Data that is processed through SkillSpring. More information: https://aws.amazon.com/agreement/ |
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Stripe |
Secure, online payment processing. Processes name, billing address, e-mail address, telephone number and payment card information. More information: https://stripe.com/ssa including, for users of Stripe Connect https://stripe.com/connect/legal and including, for users of Stripe Chekcout https://stripe.com/checkout/legal. |
|
Twilio |
Communication APIs to connect calls between Experts and Consumers. Processes telephone number. More information: https://www.twilio.com/legal/tos. |
4. Using the SkillSpring Software.
a. Accessing the SkillSpring Software. We strive to provide a reliable and useful experience when using our SkillSpring Software, but we do not guarantee that our SkillSpring Software will be available at any specific time or that it will be free of errors, and we will not be liable for any reason if you cannot access the SkillSpring Software or if an error in the SkillSpring Software hinders any of its features or functionality.
b. Account Security. If you choose, or are provided with, a user name, password or any other piece of information as part of our security procedures, you must treat such information as confidential, and you must not disclose it to any other person or entity. If you permit any other person to use your account, you will be responsible for their activities while using the SkillSpring Software. You agree to notify us promptly of any unauthorized access to or use of any user name or password assigned to you or any other breach of security. Accessing the SkillSpring Software without proper user name and password is strictly prohibited, constitutes a breach of this Agreement resulting in the termination of your right to use the SkillSpring Software, and may violate copyright and other laws.
c. Collection and Use of Your Information; Privacy Policy. You acknowledge that when you use the SkillSpring Software, we will collect, use, maintain, protect and disclose information in accordance with (and as described in) our SkillSpring Privacy Policy. By using the SkillSpring Software, or by clicking to accept this Agreement when this option is made available to you, you also accept and agree to our Privacy Policy and consent to our collection, use and disclosure of your information as described in our Privacy Policy. If you do not want to agree to our Privacy Policy, you must not provide us with any personal information. You also specifically acknowledge and agree that, at your option and as directed by you, certain personal information that you provide will be shared with the businesses with which you choose to interact through the SkillSpring Software, and with the Experts, Admin Users, Consumers or other users with whom you choose to interact as part of your relationship with that business. Once you direct us to disclose the information you have provided to us to the business in this manner, the business will independently have the right to determine the purposes for which it will process this information (and any other information you choose to provide in such communications and interactions) and the means it will use to process such information, subject in each case to the business’s own privacy policy. We do not control (and are not responsible for) the applicable business’s policies and practices relating to their collection, use or disclosure of your information. We encourage you to review the responsible business’s privacy policy and to review our own Privacy Policy for more information.
d. Disclaimer of Professional Advice. You acknowledge and agree that we are not the provider of, we cannot and do not control, and therefore we will not be responsible or liable for (and we do not warrant the quality, timing, accuracy, availability, suitability, reliability, safety, completeness, legality or usefulness of), any communications, information or advice made available by one user to another user through the SkillSpring Software. We cannot and do not control, are not responsible for, and make no representations regarding the skills, talents, experience and/or qualifications of any Experts or whether any communications, information or advice provided by such Experts will meet the particular requirements of any person or entity. Any reliance that any person or entity places on such communications, information or advice is strictly at his, her or its own risk. We disclaim all liability and responsibility arising from any reliance placed on such communications, information or advice by you or by anyone who may be informed of any of the contents thereof. The availability of any Expert to provide communications, information or advice through the SkillSpring Software does not imply our endorsement of such services for the unique needs of any particular person or entity. All statements and/or opinions expressed by any Experts are solely the opinions of and the responsibility of the Expert. We do not offer, and our provision of the SkillSpring Software does not constitute, medical, legal, tax, accounting or other professional services or advice.
e. Responsibility for Interactions. The SkillSpring Software is solely designed to facilitate communications, payments and workflow between and among Experts and Consumers. We are not responsible for (and will not be liable for) interactions between and among users. We are not a party to any relationship or contract between any users that have elected to use the SkillSpring Software, except for our role (where applicable) as the limited authorized agent acting on behalf of the applicable business or on behalf of the applicable Expert for the purpose of accepting payments from Consumers and transmitting such payments (less our services fees) to the business or to the Expert (as applicable). All such dealings are solely between the applicable users. We will not be responsible for in any way intervening in, mediating or resolving any dispute between users. IN THE EVENT THAT YOU HAVE A DISPUTE WITH ONE OR MORE USERS, YOU HEREBY AGREE TO RELEASE US (AND ALL OF OUR OFFICERS, DIRECTORS, AGENTS, INVESTORS, SUBSIDIARIES, AND EMPLOYEES) FROM ANY AND ALL CLAIMS, DEMANDS, DAMAGES (ACTUAL OR CONSEQUENTIAL) OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, SUSPECTED AND UNSUSPECTED, DISCLOSED AND UNDISCLOSED, ARISING OUT OF OR IN ANY WAY CONNECTED WITH SUCH DISPUTES.
f. Responsibility for Your Data and Activities. As between you and us, you are solely responsible for (i) securing all rights, permissions and consents necessary to grant us and our subcontractors access to or use of any of Your Data, and (ii) the accuracy, quality, legality and appropriateness of all of Your Data, including, for the avoidance of doubt, ensuring that the use of any personal data in connection with your use of the SkillSpring Software complies with the applicable business’s privacy policy, user agreement and terms of service. As between you and us, you are solely responsible for all activities that occur in your SkillSpring account and for compliance with this Agreement. You must comply with all applicable local, state, federal, foreign or international laws, treaties, regulations or conventions in connection with your or your use of the SkillSpring Software, including without limitation the CAN-SPAM Act of 2003, the Telephone Consumer Protection Act of 1991 and its implementing regulations (TCPA), Do Not Call, Do Not Mail and similar Do Not Solicit regulations, the Personal Information Protection and Electronic Documents Act (PIPEDA) (Canada), Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data including the recitals and any equivalent or implementing legislation (GDPR), and other applicable laws related to privacy, publicity, data protection, electronic communications and anti-spamming laws.
g. Employment; Withholding. The SkillSpring service is not an employment service and we do not serve as an employer of you or any other user. As such, we will not be liable for any employment-related tax or withholding, including but not limited to unemployment insurance, employer’s liability, social security or payroll withholding tax in connection with your (or any other user’s) use of the SkillSpring Software. You understand and agree that if we are found to be liable for any tax or withholding tax in connection with your use of the SkillSpring Software, then you will immediately reimburse and pay to us an equivalent amount, including any interest or penalties thereon. You also acknowledge and agree that by communicating with others via the SkillSpring Software, we have not in any way engaged (and we do not purport to engage) you or any other user as an independent contractor of LifeOmic Connect LLC or any of its affiliates or service providers (or in any other principal-agent relationship of any sort) for any purpose whatsoever; such relationship is solely one of provider of the SkillSpring Software and consumer of the SkillSpring Software.
6. Intellectual Property Rights. You acknowledge and agree that the SkillSpring Software is provided under license, and not sold, to you. You acknowledge and agree that we (or the respective rights holders in any Third-Party Materials) own all right, title and interest in and to in and to our name, logos and other trademarks, the Services and the SkillSpring Software, including all associated features, functionality, software, content, materials and services made available thereon by us, including all new versions, updates, revisions, derivative works, improvements and modifications of the foregoing, the look and feel, ideas, algorithms, methods and concepts underlying or embedded in the foregoing and all related intellectual property rights (collectively, the “LifeOmic IP”). We are not granting you any right, license or authorization with respect to any of the LifeOmic IP except as we’ve specifically provided in Section 3 above (and subject to the limitations and restrictions in Section 3.c above). We and the respective rights holders in any Third-Party materials reserve all other rights in and to the LifeOmic IP. During the term of this Agreement, you hereby grant to us and our subcontractors all such rights and permissions in or relating to Your Data as are necessary to: (i) provide the SkillSpring Software to you; and (ii) enforce this Agreement and exercise our rights and perform our obligations under this Agreement. Additionally, during the term of this Agreement and thereafter, you hereby grant to us all such rights and permissions in or relating to Your Data, in de-identified and aggregated form only, as are necessary or useful for our research purposes, to prepare and disseminate aggregated statistical information, to improve the quality of our analytics and to improve the SkillSpring Software and our algorithms.
a. Term. The term of this Agreement commences when you first accept it in the manner provided in Section 1, and will continue in effect until terminated by you or by us as set forth in this Section 7.
b. Termination. In addition to any other termination rights described in this Agreement, this Agreement may be terminated:
i. at any time by you, provided that you cease all access to and use of the SkillSpring Software (and, in the case of the Apps only, by deleting the Apps and all copies thereof from your mobile devices and computers); and
ii. by us, at any time without notice.
iii. immediately and automatically without any notice if you violate any of the terms and conditions of this Agreement.
c. Effect of Termination. The exercise of any right of termination under this Agreement will not affect any rights of either party that have accrued prior to the effective date of termination and will be without prejudice to any other legal or equitable remedies to which a party may be entitled. If this Agreement is terminated, then: (i) except as expressly provided in Section 6 above, all rights, licenses and authorizations granted by one party to the other will immediately terminate; and (ii) you must cease all access to and use of the SkillSpring Software (and, in the case of the Apps only, delete the Apps and all copies thereof from your mobile devices and computers.
d. Surviving Terms. Sections 6 (Intellectual Property Rights), 7.c (Effect of Termination), 8 (Disclaimer of Warranties), 9 (Indemnification), 10 (Limitations of Liability), 11 (Limitation of Time to File Claims), 12 (Miscellaneous), 13 (Definitions) and this Section will survive any expiration or termination of this Agreement.
8. Disclaimer of Warranties. THE LIFEOMIC SOFTWARE IS PROVIDED TO YOU “AS IS,” “AS AVAILABLE” AND WITH ALL FAULTS AND DEFECTS, WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, WE, ON OUR OWN BEHALF AND ON BEHALF OF OUR AFFILIATES AND OUR AND THEIR RESPECTIVE LICENSORS AND SERVICE PROVIDERS, EXPRESSLY DISCLAIM ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO THE LIFEOMIC SOFTWARE AND ANY SUPPORT SERVICES PROVIDED TO YOU HEREUNDER, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OR TRADE PRACTICE. WITHOUT LIMITATION TO THE FOREGOING, WE PROVIDE NO WARRANTY OR UNDERTAKING, AND WE MAKE NO REPRESENTATION OF ANY KIND THAT THE LIFEOMIC SOFTWARE WILL MEET YOUR REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS OR SERVICES, OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS OR BE ERROR FREE OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF OR LIMITATIONS ON IMPLIED WARRANTIES OR THE LIMITATIONS ON THE APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO SOME OR ALL OF THE ABOVE EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU SOLELY TO THE EXTENT PROHIBITED BY LAW.
9. Indemnification. You agree to defend, indemnify and hold harmless us and our affiliates, and our and their licensors, service providers, employees, agents, officers and directors, from and against any claims, liabilities, damages, judgments, awards, losses, costs, expenses or fees (including reasonable attorneys’ fees) arising out of or relating to your violation of this Agreement.
10. Limitation of Liability. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL WE OR OUR AFFILIATES, OR ANY OF OUR OR THEIR RESPECTIVE LICENSORS OR SERVICE PROVIDERS, HAVE ANY LIABILITY FOR PERSONAL INJURY, PROPERTY DAMAGE, LOST PROFITS, COST OF SUBSTITUTE GOODS OR SERVICES, LOSS OF DATA, LOSS OF GOODWILL, BUSINESS INTERRUPTION, COMPUTER FAILURE OR MALFUNCTION, OR DIRECT DAMAGES IN AMOUNTS THAT IN THE AGGREGATE EXCEED $10.00 ARISING FROM OR RELATED TO YOUR USE OF OR INABILITY TO USE THE LIFEOMIC SOFTWARE OR ANY SUPPORT SERVICES WE HAVE PROVIDED TO YOU, OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES OF ANY KIND. THE FOREGOING LIMITATIONS WILL APPLY WHETHER SUCH DAMAGES ARISE OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE OR WE WERE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOU ARE RESPONSIBLE FOR IMPLEMENTING SUFFICIENT PROCEDURES AND CHECKPOINTS TO SATISFY YOUR PARTICULAR REQUIREMENTS FOR ANTI-VIRUS PROTECTION AND ACCURACY OF DATA INPUT AND OUTPUT, AND FOR MAINTAINING A MEANS EXTERNAL TO THE LIFEOMIC SOFTWARE FOR ANY RECONSTRUCTION OF ANY LOST DATA. ACCORDINGLY, WE WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY A DISTRIBUTED DENIAL-OF-SERVICE ATTACK, VIRUSES OR OTHER TECHNOLOGICALLY HARMFUL MATERIAL THAT MAY INFECT YOUR MOBILE DEVICE OR OTHER COMPUTER EQUIPMENT, COMPUTER PROGRAMS, DATA OR OTHER PROPRIETARY MATERIAL DUE TO YOUR USE OF THE LIFEOMIC SOFTWARE OR ANY SERVICES OR ITEMS OBTAINED THROUGH IT OR TO YOUR DOWNLOADING OF ANY MATERIAL POSTED ON IT, OR ON ANY WEBSITE LINKED TO OR FROM IT.
SOME JURISDICTIONS DO NOT ALLOW CERTAIN LIMITATIONS OF LIABILITY SO SOME OR ALL OF THE ABOVE LIMITATIONS OF LIABILITY MAY NOT APPLY TO YOU SOLELY TO THE EXTENT PROHIBITED BY LAW.
12. Miscellaneous. (a) Entire Agreement. This Agreement constitutes the entire agreement between you and us, and supersedes all prior negotiations, understandings or agreements (oral or written), between the parties regarding the subject matter of this Agreement (and all past dealing or industry custom). (b) Amendment, Severability and Waiver. Except as expressly provided in Section 2 above, no change, consent or waiver under this Agreement will be effective unless in writing and signed by the party against which enforcement is sought. Any delay or failure of either party to enforce its rights, powers or privileges under this Agreement, at any time or for any period, will not be construed as a waiver of such rights, powers and privileges, and the exercise of one right or remedy will not be deemed a waiver of any other right or remedy. If any provision of this Agreement is determined to be illegal or unenforceable, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. (c) Governing Law and Venue. This Agreement will be deemed to have been made in, and will be governed by and construed in accordance with the laws of, the State of Indiana, without regard to its conflicts of law provisions. The sole jurisdiction and venue for actions related to this Agreement will be the state or federal courts located in Indianapolis, Indiana, and both parties consent to the exclusive jurisdiction of such courts with respect to any such action. (d) No Third Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and nothing herein, express or implied, is intended to or will confer on any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
“Documentation” means the then-current online, electronic and written user documentation and guides we make available to you and to Users which describe the functionality, components, features or requirements of the SkillSpring Software, as we may update from time to time in our discretion.
“Harmful Code” means any software, hardware or other technology, device or means, including any virus, worm, malware or other malicious computer code, the purpose or effect of which is to permit unauthorized access to, or to destroy, disrupt, disable, distort, or otherwise harm or impede in any manner any (a) computer, software, firmware, hardware, system or network or (b) any application or function of any of the foregoing or the security, integrity, confidentiality or use of any data processed thereby.
“Permitted Use” means your personal use for facilitating communications between Experts and Consumers for the provision or receipt of information and advice.
“Your Data” means information, data and other materials that are collected, uploaded or otherwise received, directly or indirectly, from you by or through the SkillSpring Software. Your Data includes all User Contributions that you have submitted or contributed.