Thank you for choosing Empress' Software. This Master Services Agreement is intended to cover any and all software, products, and services.
PLEASE READ ALL OF THE FOLLOWING TERMS AND CONDITIONS OF SERVICE FOR THE SOFTWARE ("TOS") BEFORE USING THE SOFTWARE
By continuing to access, link to, or use the Software, or any services provided by or through the Software, you signify YOUR ACCEPTANCE OF THE TOS. Empress Media Asset Management, LLC ("Empress") reserves the right to amend, remove, or add to the TOS at any time. Such modifications shall be effective immediately. Accordingly, please continue to review the TOS whenever accessing, linking to, or using the Software. Your access, link to, or use of the software, or any service provided by or through the Software, after the posting of modifications to the TOS will constitute YOUR ACCEPTANCE OF THE TOS, as modified. If, at any time, you do not wish to accept the TOS, you may not access, link to, or use the Software. Any terms and conditions proposed by you which are in addition to or which conflict with the TOS are expressly rejected by Empress and shall be of no force or effect.
I. NOTICE OF COPYRIGHT(S)
eMAM Enterprise, Copyright © 2013, Empress Media Asset Management, LLC
II. GENERAL TERMS
A. USER CONSENT TO THE TOS
You represent that you have read and agree to be bound to by the TOS.
B. INTELLECTUAL PROPERTY
The Software, including but not limited to text, content, photographs, video, audio and graphics, products and services, and goods (the "Software") and as may be more fully described per the Statement of Work(s), is protected by copyrights, trademarks, service marks, international treaties, and/or other proprietary rights and laws of the U.S. The Software is also protected as a collective work or compilation under U.S. copyright and other laws and treaties. All individual articles, columns, code, and other elements making up the Software are also copyrighted works. You agree to abide by all applicable copyright and other laws, as well as any additional copyright notices or restrictions contained in the Software. You acknowledge that the Software has been developed, compiled, prepared, revised, selected, and arranged by Empress through the application of methods and standards of judgment developed and applied through the expenditure of substantial time, effort, and money and constitutes valuable intellectual property of Empress. You agree to protect the proprietary rights of Empress during and after the term of this agreement and to comply with all reasonable written requests made by Empress or its suppliers and licensors of content, equipment, or otherwise ("Suppliers") to protect their and others' contractual, statutory, and common law rights in the Software. You agree to notify Empress in writing promptly upon becoming aware of any unauthorized access or use of the Software by any individual or entity or of any claim that the Software infringes upon any copyright, trademark, or other contractual, statutory, or common law rights. All present and future rights in and to trade secrets, patents, copyrights, trademarks, service marks, know-how, and other proprietary rights of any type under the laws of any governmental authority, domestic or foreign, including rights in and to all applications and registrations relating to the Software (the "Intellectual Property Rights") shall, as between you and Empress, at all times be and remain the sole and exclusive property of Empress. All present and future rights in and title to the Software (including the right to exploit the Software and any portions of the Software over any present or future technology) are reserved to Empress for its exclusive use. Except as specifically permitted by the TOS, you may not copy or make any use of the Software or any portion thereof. Except as specifically permitted herein, you shall not use the Intellectual Property Rights or the Software, or the names of any individual participant in, or contributor to, the Software, or any variations or derivatives thereof, for any purpose, without Empress' prior written approval.
C. RESTRICTIONS ON USE
YOU MAY NOT USE THE SOFTWARE FOR ANY ILLEGAL PURPOSE OR IN ANY MANNER INCONSISTENT WITH THE TOS. YOU AGREE TO USE THE SOFTWARE SOLELY FOR YOUR OWN NONCOMMERCIAL USE AND BENEFIT, AND NOT FOR RESALE OR OTHER TRANSFER OR DISPOSITION TO, OR USE BY OR FOR THE BENEFIT OF, ANY OTHER PERSON OR ENTITY. YOU AGREE NOT TO USE, TRANSFER, DISTRIBUTE, OR DISPOSE OF ANY INFORMATION CONTAINED IN THE SOFTWARE IN ANY MANNER THAT COULD COMPETE WITH THE BUSINESS OF EMPRESS. YOU MAY NOT COPY, REPRODUCE, RECOMPILE, DECOMPILE, DISASSEMBLE, REVERSE ENGINEER, DISTRIBUTE, PUBLISH, DISPLAY, PERFORM, MODIFY, UPLOAD TO, CREATE DERIVATIVE WORKS FROM, TRANSMIT, OR IN ANY WAY EXPLOIT ANY PART OF THE SOFTWARE, EXCEPT THAT YOU MAY DOWNLOAD MATERIAL FROM THE SOFTWARE AND/OR MAKE ONE PRINT COPY FOR YOUR OWN PERSONAL, NONCOMMERCIAL USE, PROVIDED THAT YOU RETAIN ALL COPYRIGHT AND OTHER PROPRIETARY NOTICES. YOU MAY NOT RECIRCULATE, REDISTRIBUTE OR PUBLISH THE SOFTWARE WITHOUT EMPRESS' PRIOR WRITTEN CONSENT. MODIFICATION OF THE SOFTWARE'S CONTENT WOULD BE A VIOLATION OF THE COPYRIGHTS AND OTHER PROPRIETARY RIGHTS OF EMPRESS. ADDITIONALLY, YOU MAY NOT OFFER ANY PART OF THE SOFTWARE FOR SALE OR DISTRIBUTE IT OVER ANY OTHER MEDIUM INCLUDING BUT NOT LIMITED TO OVER-THE-AIR TELEVISION OR RADIO BROADCAST, A COMPUTER NETWORK OR HYPERLINK FRAMING ON THE INTERNET WITHOUT THE PRIOR WRITTEN CONSENT OF EMPRESS. YOU MAY NOT USE ANY OF THE TRADEMARKS, TRADE NAMES, SERVICE MARKS, COPYRIGHTS, OR LOGOS OF EMPRESS IN ANY MANNER WHICH CREATES THE IMPRESSION THAT SUCH ITEMS BELONG TO OR ARE ASSOCIATED WITH YOU OR, EXCEPT AS OTHERWISE PROVIDED HEREIN, ARE USED WITH EMPRESS CONSENT, AND YOU ACKNOWLEDGE THAT YOU HAVE NO OWNERSHIP RIGHTS IN AND TO ANY OF SUCH ITEMS. YOU WILL NOT USE THE SOFTWARE OR THE INFORMATION CONTAINED THEREIN IN UNSOLICITED MAILINGS OR SPAM MATERIAL. YOU WILL NOT USE ANY TRADEMARKS, TRADE NAMES, SERVICE MARKS, COPYRIGHTS, OR LOGOS OF EMPRESS UNSOLICITED MAILINGS OR SPAM MATERIAL. YOU WILL NOT SPAM OR SEND UNSOLICITED MAILINGS TO ANY PERSON OR ENTITY USING THE SOFTWARE. YOU AGREE TO COMPLY WITH ANY OTHER APPLICABLE TERMS AND CONDITIONS OF SERVICE SET FORTH IN THE SOFTWARE.
You acquire absolutely no rights or licenses in or to the Software and/or materials contained within the Software other than the limited right to utilize the Software in accordance with the TOS. Should you choose to download content from the Software, you must do so in accordance with the TOS. Such download is licensed to you by Empress ONLY for your own personal, noncommercial use in accordance with the TOS and does not transfer any other rights to you.
E. FEES AND PAYMENT TERMS.
(i) FEES AND EXPENSES
You agree to pay all fees due to Empress according to the prices and terms listed in the Statement of Work(s) ("SOW") for the purchase of the Software. You further agree to pay any and all other fees that may be incurred by you related to any supplemental products & services, professional services, and/or reinstatement of service fees, all in accordance with Empress' prices and policies as are current at the time such fees may be incurred.
(ii) PAYMENT TERMS.
On the Service Commencement Date you will be billed (the "Initial Bill") an amount equal to (i) all non-recurring charges indicated in the SOW and (ii) the monthly recurring charges for the first month of the term prorated for the number of calendar days remaining in such month. Subsequent monthly billing will occur on the first day of the calendar month of the term. Monthly recurring charges for all months will be billed (the "Recurring Bill") in advance of the provision of Software services, where applicable. All other charges for services received and expenses incurred for supplemental or professional services during a month will either be billed immediately or at the end of the month in which the services are provided. Payment for all fees is due upon receipt of Empress' invoice. All payments will be made timely in U.S. Dollars ("USD"). Notwithstanding anything to the contrary in this Agreement, Empress expressly reserves the right to alter, change or amend its billing practices in its sole discretion, including, but not limited to, the date on which such billing will occur and the types of charges that will be included in such bills.
(iii) LATE PAYMENTS.
Any payment not received within fifteen (15) days of the invoice date of the Initial Bill and thirty (30) days of the invoice date of any Recurring Bill (respectively, a "Payment Default") will accrue interest at a rate of two percent (2%) per month, or the highest rate allowed by applicable law, whichever is lower. You shall also be required to pay to Empress all expenses incurred by Empress in exercising any of its rights under this Agreement or applicable law with respect to a Payment Default, including, but not limited to, a late fee of $200.00, reasonable attorneys' fees and the fees of any collection agency retained by Empress.
You will be responsible for payment of any applicable state or federal taxes and similar fees now in force or imposed in the future.
F. DISCLAIMER AND LIMITATION OF LIABILITY.
(i) YOU AGREE THAT YOUR USE OF THE SOFTWARE IS AT YOUR SOLE RISK AND ACKNOWLEDGE THAT THE SOFTWARE AND ANYTHING CONTAINED WITHIN THE SOFTWARE, INCLUDING, BUT NOT LIMITED TO, CONTENT, SERVICES, GOODS, OR ADVERTISEMENTS ARE PROVIDED "AS IS" AND" AS AVAILABLE," AND THAT EMPRESS MAKES NO WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, AS TO THE SOFTWARE, INCLUDING, BUT NOT LIMITED TO, MERCHANTABILITY, NONINFRINGEMENT, TITLE, OR FITNESS FOR A PARTICULAR PURPOSE OR USE.
(ii) Empress does not warrant that the Software is compatible with your equipment or that the Software, or email sent by Empress or its representative, is free of errors or viruses, worms or "Trojan horses," or any other harmful, invasive, or corrupted files, and is not liable for any damage you may suffer as a result of such destructive features. You agree that Empress and its Suppliers, agents, directors, officers, employees, representatives, successors, and assigns shall have no responsibility or liability for: (i) any injury or damages, whether caused by the negligence of Empress, its parent, or their respective affiliates, Suppliers, agents, directors, officers, employees, representatives, general partner, subsidiaries, successors, and assigns, or otherwise arising in connection with the Software and shall not be liable for any lost profits, losses, punitive, incidental or consequential damages, or any claim against Empress by any other party; or (ii) any fault, inaccuracy, omission, delay, or any other failure in the Software caused by your computer equipment or arising from your use of the Software on such equipment. The content of other Software, web sites, services, goods, or advertisements that may be linked to the Software is not maintained or controlled by Empress. Empress is therefore not responsible for the availability, content, or accuracy of other software, web sites, services, or goods that may be linked to, or advertised on, the Software. Empress does not: (a) make any warranty, express or implied, with respect to the use of the links provided on, or to, the Software; (b) guarantee the accuracy, completeness, usefulness or adequacy of any other software, web sites, services, goods, or advertisements that may be linked to the Software; or (c) make any endorsement, express or implied, of any other software, web sites, services, goods, or advertisements that may be linked to the Software. Empress is also not responsible for the reliability or continued availability of the telephone lines, wireless services, communications media, and equipment you use to access the Software. You understand that Empress and/or third-party contributors to the Software may choose at any time to inhibit or prohibit their content from being accessed under the TOS.
(iii) You acknowledge that: (i) the provision of certain parts of the Software may be subject to the terms and conditions of other agreements to which Empress is a party; (ii) none of the information contained on this site constitutes a solicitation, offer, opinion, or recommendation by Empress to buy or sell any other software, web sites, services, or goods; and (iii) the information provided in the Software is not intended for use by, or distribution to, any person or entity in any jurisdiction or country where such use or distribution would be contrary to law or regulation. Accordingly, anything to the contrary herein set forth notwithstanding, Empress, its Suppliers, agents, directors, officers, employees, representatives, successors, and assigns shall not, directly or indirectly, be liable, in any way, to you or any other person for any: (a) inaccuracies or errors in or omissions from the Software; (b) delays, errors, or interruptions in the transmission or delivery of the Software; or (c) loss or damage a rising therefrom or occasioned thereby, or by any reason of nonperformance.
(iv) UNDER NO CIRCUMSTANCES, INCLUDING BUT NOT LIMITED TO NEGLIGENCE, SHALL EMPRESS, ITS SUPPLIERS, AGENTS, DIRECTORS, OFFICERS, EMPLOYEES, REPRESENTATIVES, SUCCESSORS, OR ASSIGNS BE LIABLE TO YOU FOR DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES EVEN IF EMPRESS HAS BEEN ADVISED SPECIFICALLY OF THE POSSIBILITY OF SUCH DAMAGES, ARISING FROM USE OF OR INABILITY TO USE THE SOFTWARE OR ANY LINKS OR ITEMS ON THE SERVICE OR ANY PROVISION OF THE TOS, SUCH AS, BUT NOT LIMITED TO, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS. APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY OR INCIDENTAL OR CONSEQUENTIAL DAMAGES. IN NO EVENT SHALL EMPRESS' TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES AND CAUSES OF ACTION (WHETHER IN CONTRACT OR TORT, INCLUDING BUT NOT LIMITED TO, NEGLIGENCE) EXCEED THE AMOUNT PAID BY YOU, IF ANY, FOR PURCHASING, USING AND ACCESSING THE SOFTWARE.
G. YOUR AUTHORITY TO AGREE TO THIS TOS.
You represent, warrant and covenant that: (i) you have the power and authority to enter into this agreement; and (ii) you are at least eighteen (18) years old.
You agree, at your own expense, to indemnify, defend and hold harmless Empress, its Suppliers, agents, directors, officers, employees, representatives, successors, and assigns from and against any and all claims, damages, liabilities, costs, and expenses, including reasonable attorneys' and experts' fees, arising out of or in connection with the Software, or any links in the Software, including, but not limited to: (i) your use or someone using your computer's use of the Software; (ii) use by someone using your account; (iii) a violation of the TOS by you or anyone using your computer (or account, where applicable); (iv) a claim that any use of the Software by you or someone using your computer (or account, where applicable) infringes any intellectual property right of any third party, or any right of privacy or publicity, is libelous or defamatory, or otherwise results in injury or damage to any third party; (v) any deletions, additions, insertions or alterations to, or any unauthorized use of, the Software by you or someone using your computer (or account, where applicable); (vi) any misrepresentation or breach of representation or warranty made by you contained herein; or (vii) any breach of any covenant or agreement to be performed by you hereunder. You agree to pay any and all costs, damages, and expenses, including, but not limited to, reasonable attorneys' fees and costs awarded against or otherwise incurred by or in connection with or arising from any such claim, suit, action, or proceeding attributable to any such claim. Empress reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with Empress in asserting any available defense. You acknowledge and agree to pay Empress' reasonable attorneys' fees incurred in connection with any and all lawsuits brought against you by Empress under the TOS and any other terms and conditions of service on this site, including without limitation, lawsuits arising from your failure to indemnify Empress pursuant to the TOS.
(a) You may terminate the TOS, with or without cause and at any time, by discontinuing your use and uninstalling the Software and destroying all materials obtained from the Software or professional services. (b) You agree that, without notice, Empress may terminate the TOS, or suspend your access to the Software or professional services, with or without cause at any time and effective immediately. The TOS will terminate immediately without notice from Empress if you, in Empress' sole discretion, fail to comply with any provision of the TOS. (c) Empress shall not be liable to you or any third party for the termination or suspension of the Software or professional services, or any claims related to the termination or suspension of the Software or professional services. Upon termination of the TOS by you or Empress, you must discontinue your use of the Software or professional services and destroy promptly all materials obtained from the Software or professional services and any copies thereof.
J. GOVERNING LAW.
The TOS shall be governed and construed in accordance with the laws of the United States and the State of New York, without giving effect to conflicts-of-law principles thereof. You agree to submit to the personal jurisdiction of the state and federal courts located in New York County in the State of Ne w York with respect to any legal proceedings that may arise in connection with the Service or from a dispute as to the interpretation or breach of the TOS.
K. UNITED STATES EXPORT CONTROL & FOREIGN ASSETS CONTROL REGULATIONS.
Empress does not represent that materials in the Software are appropriate or available for use in any particular location. Those who choose to use the Software do so on their own initiative and are responsible for compliance with all applicable laws. The Software is subject to U.S. export controls and may not be downloaded, exported or re-exported: (i) into (or to a national or resident of) Cuba, Iran, North Korea, Sudan, Syria, or any other country with respect to which the United States maintains trade sanctions prohibiting the shipment of goods; or (ii) to anyone on or acting on behalf of an entity on the U.S. Treasury Department's list of Specially Designated Nationals and Blocked Persons or the U.S. Commerce Department's Denied Persons List or Entities List or included in General Order 3 (15 C.F.R. Part 736, Supplement 1), which prohibits exports to Mayrow General Trading, affiliated entities and persons, and specified persons involved in the manufacture or sale of Improvised Explosive Devices (together referred to as "U.S. Prohibited Party Lists"). By downloading or using such software, you represent and warrant that you are not (a) located in or a national or resident of any country noted above that is subject to U.S. trade sanctions, or (b) on any U.S. Prohibited Party List or acting on behalf of any person or entity on any such list.
(i) You accept that Empress has the right to change the content or technical specifications of any aspect of the Software at any time in Empress' sole discretion. You further accept that such changes may result in your being unable to use or access the Software. The failure of Empress to exercise or enforce any right or provision of the TOS shall not constitute a waiver of such right or provision. Sections B through H, I(c), and J through O shall survive any termination of the TOS.
(ii) You agree that, except as otherwise expressly provided in this Agreement, or the SOW(s) or the terms and conditions of use of any third party software products, there shall be no third party beneficiaries to this Agreement.
(iii) You may not sell, assign or transfer its rights or delegate its duties under this Agreement, except as otherwise expressly provided herein, either in whole or in part without the prior written consent of Empress, and any attempted assignment or delegation without such consent will be void. Empress may assign this Agreement in whole or part. Empress also may delegate the performance of certain services to third parties.
(iv) During the term of this Agreement and for one (1) year thereafter, neither party will directly or indirectly recruit, solicit, or induce any employee, consultant or advisor of the other party to terminate his or her relationship with such other party without the prior written permission of the other party. Neither party shall directly or indirectly recruit a former employee, consultant, or advisor of the other party without the prior written consent of the other party, where the person has left either party and the time he or she left is less than one year. If the restriction in this paragraph is found by a court or competent jurisdiction to be unenforceable because it extends for too long a time or area, then it shall extend only over the maximum period of time, range of activities, or geographic are as to which it may be enforceable.
(v) You agree all notices, demands, requests or other communications required or permitted under this Agreement shall be deemed given when delivered personally, sent by facsimile upon confirmation, sent and received by return receipt, email, or upon receipt of delivery of overnight mail.
(vi) Empress is an independent contractor to and this Agreement will not establish any relationship of partnership, joint venture, employment, franchise or agency between you and Empress. You will not have the power to bind the Empress or to incur obligations on the Empress' behalf without prior written consent, except as otherwise may be expressly provided herein.
(vii) This Agreement, including all documents incorporated herein by reference, constitutes the complete and exclusive agreement between the parties with respect to the subject matter hereof, and supersedes and replaces any and all prior or contemporaneous discussions, negotiations, understandings and agreements, written and oral, regarding such subject matter.
(viii) Wherever terms of Statement of Work(s) shall conflict with this Agreement, the Statement of Work(s) shall prevail.
(ix)You agree that Empress may publicly refer to you, orally and in writing, as a customer in resumes, client lists, and in other promotional materials and communications, including, but not limited to, press releases, case studies, brochures, reports, letters and electronic media such as e-mail or Web pages.
The section titles in the TOS are used solely for the convenience of you and Empress and have no legal or contractual significance.
If any provision of the TOS is found invalid or unenforceable, that provision will be enforced to the maximum extent permissible, and the other provisions of the TOS will remain in force.
O. ENTIRE AGREEMENT.
The TOS and any other terms and conditions of service in the Software or SOW(s), and its successor, constitute the entire agreement between you and Empress and govern your use of the Software.
III. INTELLECTUAL PROPERTY ISSUES
A. GENERAL INQUIRIES:
Please send general inquiries regarding intellectual property issues to email@example.com.
B. COPYRIGHT AGENT
The Copy Right Agent for Copyright Infringement Claims (Digital Millennium Copyright Act): The designated agent to receive notification of claimed infringement under Title II of the Digital Millennium Copyright Act is: Heng Wang, Esq. Wang, Gao & Associates, P.C., 36 Bridge Street, Metuchen, NJ 08840, telephone (732) 767-3020, facsimile: (732) 343-6880, e-mail: firstname.lastname@example.org.
(i) "Software" means any software provided by Empress as described in the SOW(s), including but not limited to eMAM Enterprise © 2013 and any derivative(s) thereof, text, content, photographs, video, audio and graphics, products and services, goods and any copyright held by Empress.
(ii) "Products & Services(s)" means the specific products and services(s) provided by Empress pursuant to this Agreement.
(iii) "Professional Services" means any technical, consulting or support service provided by Empress.
(vi) "Service Commencement Date" means the date the Software, in physical hard-copy disk for install and download and/or by remote install, Empress will begin providing the service(s) as indicated on the SOW(s).
(v) "Empress" means Empress Media Asset Management, LLC including but not limited to Empress' proprietary technology, Empress' services, software tools, hardware designs, algorithms, software (in source and object forms), user interface designs, architecture, class libraries, objects and documentation (both printed and electronic), network designs, know-how, trade secrets and any related intellectual property rights (whether owned by Empress or licensed to Empress from a third party) and also including any derivatives, improvements, enhancements or extensions of Empress conceived, reduced to practice, or developed during the term of this Agreement by either party that are not uniquely applicable to or that have general applicability.