Effective Date: June 17, 2011
1.1"Affiliate(s)" shall mean any entity directly or indirectly controlling, controlled by, or under common control with Network Standard Corporation.
1.2"Content" shall mean NetDiligence Content and/or Portal Vendor Content.
1.3"NetDiligence," "we," "us," and "our" shall mean Network Standard Corporation, and subsidiary thereof and any Affiliate, and the Portal licensor (if applicable).
1.4"NetDiligence Content" shall mean any documents, information, articles or other materials created or licensed by NetDiligence and the Portal licensor (if applicable) for use with respect to, displayed on the Portal.
1.5"Portal" shall mean the website located at www.eriskhub.com, www.netdiligence.com, and any sub-domains, replacement sites or successors related thereto, and any NetDiligence Content and/or Portal Vendor Content displayed thereon.
1.6"Portal Vendor" shall mean those individuals or organizations associated with or displayed on the Portal that provide goods or services to third parties and any other person or entity that furnishes or makes content, documents, products, goods materials or services accessible through the Portal or that is otherwise related to the Portal.
1.7"Portal Vendor Content" shall mean any documents, information, articles or other materials supplied by a Portal Vendor to NetDiligence.
2. USE OF THE PORTAL AND CONTENT
NetDiligence hereby grants to you, subject to limitations set forth in this Agreement (including without limitation those in subsection 2.2 herein), a non-exclusive, limited right and license to access and use the Portal; provided, however, that NetDiligence may terminate this license to access and use the Portal at any time in the event NetDiligence determines, in its sole and absolute discretion, that you have violated this Agreement or have otherwise misused the Portal in any way. As between you and NetDiligence, except for those rights granted to you pursuant to this Agreement, NetDiligence owns and shall retain all right, title, and interest in and to the Portal, and any portions thereof. You shall not have any other rights or licenses except for the specific rights and licenses granted under this Agreement.
Prohibited Uses of Portal.
You agree not to do any of the following:
- Use the Portal for any commercial, advertising or illegal purpose or in contravention of the terms and conditions contained in this Agreement;
- Access, monitor or copy any Content or information posted on or inputted into this Portal using any robot, spider, scraper or other automated means;
- Take any action that imposes, or may impose, in our sole discretion, an unreasonable or disproportionately large load on, or interfere with, or block access to, the Portal;
- Post or transmit any false, misleading, unlawful, threatening, libelous, defamatory, obscene, indecent, inflammatory, pornographic or profane material or any material that could constitute or encourage conduct that would be considered a criminal offense, give rise to civil liability, or otherwise violate any law;
- Copy, use, display, create derivative works of or distribute any Content or other material in violation of any copyright, trademark or other proprietary right, or that is a trade secret;
- Deep-link to any portion of this Portal for any purpose without our express written permission;
- "Frame", "mirror" or otherwise incorporate any part of this Portal into any other website without our prior written authorization; or
- Upload or transmit to the Portal, or use any device, software or routine with respect to the Portal that contains, any malicious code;
- Download or copy of account information for the benefit of another vendor or any other third party; or
- Bypass any measures used by NetDiligence to prevent or restrict access to the Portal
Any unauthorized use by you shall terminate the permission or license granted to you by NetDiligence.
The Portal is the sole and exclusive property of NetDiligence. The Content displayed on the Portal, other than as provided herein or in the separate Terms and Conditions regarding eRiskRx, is the property of NetDiligence and/or other parties. NetDiligence and its licensors retain all right, title and interest (including all copyright, trademark, patent, trade secrets, and all other intellectual property rights) in the Portal and Content. The Portal and Content is protected by copyright, trademark, patent, trade secrets, unfair competition, and other laws of world, through the application of local laws or international treaties. Any unauthorized use, reproduction or modification of the Portal or Content may violate such laws, and is strictly prohibited under this Agreement.
The trademarks, logos and service marks ("Marks") displayed on the Portal are the property of NetDiligence and other parties. You are prohibited from using any Marks for any purpose including, but not limited to use as metatags on other pages or sites on the World Wide Web without the written permission of NetDiligence or such third party which may own the Marks. All information and content including any software programs available on or through the Portal ("Content") is protected by copyright. Users are prohibited from modifying, copying, distributing, transmitting, displaying, publishing, selling, licensing, creating derivative works or using any Content available on or through the Site for commercial or public purposes.
NetDiligence does not claim ownership of any materials you make available through the Portal. With respect to such materials you submit or make available for inclusion through the Portal, you grant NetDiligence a perpetual, irrevocable, non-terminable, worldwide, royalty-free and non-exclusive license to use, copy, distribute, publicly display, modify, create derivative works, and sublicense such materials or any part of such materials. You hereby represent, warrant and covenant that any materials you provide do not include anything (including, but not limited to, text, images, music or video) to which you do not have the full right to grant the license specified in this Section 2.3.
Removal of Content from Portal.
In NetDiligence's sole and absolute discretion, NetDiligence may handle, organize, take down, display, present, remove and/or delete Content and any other information, documents, materials, articles, papers or trademarks related to this Agreement at any time.
NetDiligence is in no way endorsing any Content or representing that such Content is true, relevant, appropriate, accurate or complete. NetDiligence is in no way endorsing any Portal Vendor or any goods, services or content related to any Portal Vendor. You agree that it is your sole responsibility to conduct an investigation of the background and qualifications of each Portal Vendor that you retain to ensure that such Portal Vendor is qualified and meets your specific needs. You agree that the use of any Portal Vendor's goods or services is at your own risk.
Links to Other Websites.
This Portal may contain hyperlinks to websites operated by parties other than NetDiligence. Such hyperlinks are provided for reference only. Our inclusion of hyperlinks to such websites does not imply any endorsement of the material on such websites or any association with their operators. We do not control such websites and are not responsible for their contents or the information handling practices of such websites or those operating them. You should carefully review the terms and conditions of use of these sites, because those terms and conditions will apply to your visit to these other sites. Further, it is up to you to take precautions to ensure that whatever links you select or software you download (whether from this Portal or other websites) is free of such items as viruses, malicious code, worms, trojan horses, defects and other items of a destructive, disruptive or harmful nature.
No Legal Advice.
Information contained on or made available through the site is not intended to and does not constitute legal advice, recommendations, mediation or counseling under any circumstance and no attorney-client relationship is formed.
We reserve the right to investigate complaints or reported violations of this Agreement and misuses of the Portal or Content, and to take any action we deem appropriate, including but not limited to reporting any suspected unlawful activity to law enforcement officials or regulators and disclosing any information necessary or appropriate to such persons or entities relating to your profile, email addresses, usage history, posted materials, IP addresses and traffic information.
Modification of the Portal.
Without prior notice to you, any aspect of the Portal may be changed, supplemented, deleted, updated, discontinued, suspended, or modified at any time. However, we make no commitment to update Content, or maintain the accuracy, completeness, relevancy, appropriateness or timeliness of such Content. You agree that NetDiligence shall not be liable to you or for any delay or other damages that might result from any such change, supplement, deletion, updating, modification, suspension, or discontinuance.
3. YOUR ACCOUNT
If you register for an account on the Site, you must select a User ID and password and provide NetDiligence with accurate, complete, and updated contact information, identification details and any other form of authentication required as part of the registration process, in NetDiligence's sole discretion. Failure to do so constitutes a violation of this Agreement, which may result in immediate termination of your license to access and use the Portal. You agree not to impersonate any person or entity or falsely state or otherwise misrepresent your identity or affiliation with a person or entity. You shall register for and use your account on the Portal, and purchase and use the products and services available through the Portal in strict compliance with (1) this Agreement, and (2) all applicable laws, rules and regulations (collectively, “Laws”).
Password Protection and Responsibility.
If you register for and use an account on the Portal, you are responsible for maintaining the confidentiality of your account and password and for restricting access to your computer, and you agree to accept responsibility for all activities that occur under your account or password. If you are accessing and using the Portal on someone else’s behalf, you represent that you have the authority to bind that person as a principal to these Agreement, and you agree to accept liability for harm caused by that person’s wrongful use of the Portal.
All notices from NetDiligence intended for your receipt shall be deemed delivered and effective when sent to the email address provided by you during the registration process. If your email address changes, you must update the email address you provided in connection with your account.
You may terminate your account at any time, for any reason, by following the instructions on the Update Profile page available at https://www.eriskhub.com/clients/profile.php. NetDiligence reserves the right to refuse service, terminate accounts, remove content, or cancel accounts for any reason, in its sole discretion.
4. WARRANTIES; DISCLAIMER
You warrant, represent and covenant that: (a) you have the full power and authority to enter into this Agreement and to perform your obligations hereunder, without the need for any consents, approvals or immunities not yet obtained; (b) your performance under this Agreement shall not breach any oral or written agreement with any third party or any obligation owed by you to any third party to keep any information or materials in confidence or in trust; (c) all or information supplied by you to us is true and accurate; (d) you shall not provide false, misleading, unlawful, threatening, libelous, defamatory, obscene, indecent, inflammatory, pornographic or profane information, or any information that could constitute or encourage conduct that would be considered a criminal offense, give rise to civil liability, or otherwise violate any law; (e) any documents or information provided to us does not and shall not infringe, misappropriate or violate any patent, copyright, trademark, trade secret, publicity, privacy or other intellectual property or other rights of any third party; (f) you have the right to grant the rights and assignments granted herein, without the need for any assignments, releases, consents, approvals, immunities or other rights not yet obtained; (g) you shall comply with all applicable laws and regulations related to your performance of this Agreement; and (h) you shall not allow any unauthorized individuals to access and use the access or use the Portal.
ALL CONTENT, PRODUCTS, AND SERVICES ON THE PORTAL, OR OBTAINED FROM A WEBSITE TO WHICH THE PORTAL IS LINKED (A "LINKED SITE") ARE PROVIDED TO YOU "AS IS" WITHOUT WARRANTY OF ANY KIND EITHER EXPRESS OR IMPLIED INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, SECURITY OR ACCURACY. EXCEPT AS SET FORTH IN THIS SECTION 3.2 OR AS OTHERWISE EXPRESSLY SET FORTH IN THIS AGREEMENT, NEITHER PARTY MAKES, AND EACH PARTY HEREBY DISCLAIMS, ANY OTHER REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT, AND ANY REPRESENTATIONS OR WARRANTIES CONCERNING THE SERVICES, CONTENT OR LICENSE (INCLUDING WITHOUT LIMITATION, THE ACCURACY, COMPLETENESS, TIMELINESS OR TRUTHFULNESS OF SUCH CONTENT). NETDILIGENCE DOES NOT ENDORSE AND IS NOT RESPONSIBLE FOR (A) THE ACCURACY OR RELIABILITY OF ANY OPINION, ADVICE OR STATEMENT MADE THROUGH THE PORTAL BY ANY PARTY OTHER THAN NETDILIGENCE, (B) ANY CONTENT PROVIDED ON LINKED SITES OR (C) THE CAPABILITIES OR RELIABILITY OF ANY PRODUCT OR SERVICE OBTAINED FROM A LINKED SITE.
OTHER THAN AS REQUIRED UNDER APPLICABLE CONSUMER PROTECTION LAW, UNDER NO CIRCUMSTANCE WILL NETDILIGENCE BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY YOUR RELIANCE ON INFORMATION OBTAINED THROUGH THE PORTAL OR A LINKED SITE, OR YOUR RELIANCE ON ANY PRODUCT OR SERVICE OBTAINED FROM THE PORTAL OR A LINKED SITE. IT IS THE RESPONSIBILITY OF THE USER TO EVALUATE THE ACCURACY, COMPLETENESS OR USEFULNESS OF ANY OPINION, ADVICE OR OTHER CONTENT AVAILABLE THROUGH THE PORTAL, OR OBTAINED FROM A LINKED SITE.
5. LIMITATION OF LIABILITY
IN NO EVENT SHALL NETDILIGENCE AND ITS SUBSIDIARIES, AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS BE LIABLE FOR ANY ACT, ERROR OR OMISSION BY ANY PORTAL VENDOR, LOSS OF PROFITS, LOSS OF USE, LOSS OF DATA, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES IN CONNECTION WITH OR ARISING OUT OF THIS AGREEMENT, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT OR OTHERWISE), AND WHETHER OR NOT THE POSSIBILITY OF SUCH DAMAGES HAS BEEN DISCLOSED TO THE PARTIES IN ADVANCE OR COULD HAVE BEEN REASONABLY FORESEEN BY SUCH PARTIES. NETDILIGENCE'S TOTAL LIABILITY ON ANY CLAIM, LOSS OR LIABILITY ARISING OUT OF OR CONNECTED WITH THIS AGREEMENT WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, SHALL NOT EXCEED ONE HUNDRED UNITED STATES DOLLARS ($100).
You shall indemnify and hold harmless, and at NetDiligence's request defend, NetDiligence and its Affiliates, subsidiaries, successors and assigns (and its and their officers, directors, employees, sublicensees, customers and agents) from and against any and all claims, losses, liabilities, damages, settlements, expenses and costs (including reasonable attorneys' fees and court costs) (the foregoing, collectively, "Claim(s)") which arise directly or indirectly out of or relate to your actions or omissions resulting in: (a) any breach (or claim or threat thereof that, if true, would be a breach) of this Agreement by you, including any breach or alleged breach of any representation, warranty or covenant set forth in Section 4; (b) any fee dispute with a Portal Vendor; (c) any employment-related claims; (d) any defective, incomplete, non-performing, under-performing, malfunctioning or inadequate goods (including without limitation software and hardware) developed, created or licensed by you; (f) any personal/bodily injury and property damage; (g) any infringement, misappropriation or violation by you of any patent, copyright, trademark, trade secret, publicity, privacy or other proprietary or other rights of any third party; and (h) any content provided by the you. NetDiligence shall notify you promptly of any Claim for which indemnification is sought; provided, however, that the failure to give such notice shall not relieve you of your obligations hereunder. NetDiligence may, at its option and expense, participate and appear on an equal footing with you in the defense of any Claim that is conducted by you as set forth herein.
NetDiligence, in its sole discretion, may, at any time and without advance notice or liability, terminate or restrict your access to all or any component of the Portal, even if access continues to be allowed to others. Upon such termination or suspension, you must immediately discontinue use of the Portal, and destroy any copy you have made of any portion of the Portal. Accessing the Portal after such termination, suspension, or discontinuation shall constitute an act of trespass. NetDiligence shall not be responsible to you to such suspension or termination.
8. INDEPENDENT CONTRACTOR RELATIONSHIPS
Relationship with You.
NetDiligence's relationship with you shall be that of an independent contractor and nothing in this Agreement should be construed to create a partnership, joint venture, agency or employer-employee relationship between the you and NetDiligence. Neither party is the agent of the other party and neither party is authorized, or has any authority, to make any representation, contract or commitment on behalf of the other party, or otherwise bind the other party in any respect whatsoever. Further, it is not the intention of this Agreement or of the parties hereto to confer a third party beneficiary right of action upon any third party or entity whatsoever, and nothing in this Agreement shall be construed to confer upon any third party other than the parties hereto a right of action under this Agreement or in any manner whatsoever.
Relationship with Portal Vendors.
You agree that NetDiligence's relationship with Portal Vendors shall be that of an independent contractor and nothing in this Agreement (or any other agreement) should be construed to create a partnership, joint venture, agency or employer-employee relationship between the NetDiligence and any Portal Vendor. No Portal Vendor is the agent of NetDiligence and no Portal Vendor is authorized, or has any authority, to make any representation, contract or commitment on behalf of NetDiligence, or otherwise bind NetDiligence in any respect whatsoever. Separate terms and conditions may apply to the content, documents, products, goods, materials or services of Portal Vendors and other third parties. Please read these separate terms and conditions carefully. You agree that your use, reliance upon or purchase of any content, information, documents, products, goods, materials or services of Portal Vendors or other third parties is entirely at your own risk. You agree that NetDiligence is in no way responsible or liable for any act, error or omission by any Portal Vendor.
9. EQUITABLE RELIEF
You recognize that the covenants contained in Sections 3, 4 and 5 of this Agreement are reasonable and necessary to protect the legitimate interests of NetDiligence, that NetDiligence would not have entered into this Agreement in the absence of such covenants, and that your breach or threatened breach of such covenants may cause NetDiligence irreparable harm and significant injury, the amount of which shall be extremely difficult to estimate and ascertain, thus, making any remedy at law or in damages inadequate. Therefore, you agree that NetDiligence shall be entitled, without the necessity of posting of any bond or security, to seek the issuance of injunctive relief by any court of competent jurisdiction enjoining any breach or threatened breach of such covenants and for any other relief such court deems appropriate. This right shall be in addition to any other remedy available to NetDiligence hereunder or otherwise, whether at law or in equity.
The waiver by NetDiligence of a breach of or a default under any provision of this Agreement shall not be effective unless in writing and shall not be construed as a waiver of any subsequent breach of or default under the same or any other provision of this Agreement, nor shall any delay or omission on the part of NetDiligence to exercise or avail itself of any right or remedy that it has or may have hereunder operate as a waiver of any right or remedy.
This Agreement has shall be interpreted fairly in accordance with its terms and without any construction in favor of or against either you or NetDiligence. As used in this Agreement, "include," "includes," "including," and "e.g." shall mean "including, without limitation." The captions and section and paragraph headings used in this Agreement are inserted for convenience only and shall not affect the meaning or interpretation of this Agreement.
12. MODIFICATIONS AND NOTIFICATION OF CHANGES.
13. GOVERNING LAW; VENUE
This Agreement is to be construed in accordance with and governed by the internal laws of the Commonwealth of Pennsylvania without giving effect to any choice of law rule that would cause the application of the laws of any jurisdiction other than the internal laws of the Commonwealth of Pennsylvania to the rights and duties of the parties. Any legal suit, action or proceeding arising out of or relating to this Agreement shall be commenced in a federal court in the United States District Court for the Eastern District of Pennsylvania or in state court in the County of Philadelphia, Pennsylvania, and each party hereto irrevocably submits to the exclusive jurisdiction and venue of any such court in any such suit, action or proceeding.
If the application of any provision of this Agreement to any particular facts or circumstances shall for any reason be held to be invalid, illegal or unenforceable by a court, arbitration panel or other tribunal of competent jurisdiction, then (a) the validity, legality and enforceability of such provision as applied to any other particular facts or circumstances, and the other provisions of this Agreement, shall not in any way be affected or impaired thereby and (b) such provision shall be enforced to the maximum extent possible so as to effect the intent.
15. PROCEDURE FOR CLAIMS OF INTELLECTUAL PROPERTY INFRINGEMENT
NetDiligence respects the intellectual property of others, and we ask you to do the same. NetDiligence may, in appropriate circumstances and at its discretion, disable and/or terminate your accounts if we suspect you may be infringing the intellectual property of a third party. If you believe that your work has been copied in a way that constitutes copyright infringement, or your intellectual property rights have been otherwise violated, please provide NetDiligence’s Copyright Agent the following information:
- An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest;
- A description of the copyrighted work or other intellectual property that you claim has been infringed;
- A description of where the material that you claim is infringing is located on the Portal;
- Your address, telephone number, and email address;
- a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law;
- A statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner's behalf.
NetDiligence's agent for notice of claims of copyright or other intellectual property infringement can be reached as follows:
Copyright Agent: Sharon Lyon 5410 Schumacher Lane, Houston, TX 77056 281.919.1033
NetDiligence may update this mailing address from time to time. You agree that changes to this mailing address shall not constitute a modification to this Agreement for the purposes of Section 11 of this Agreement.
If you believe that a notice of copyright infringement has been improperly submitted against you, you may submit a Counter-Notice, pursuant to Sections 512(g)(2) and (3) of the Digital Millennium Copyright Act. You may complete the Counter-Notice Regarding Claim of Copyright Infringement form, or otherwise provide a written communication which contains:
- Your physical or electronic signature;
- Identification of the material removed or to which access has been disabled;
- A statement under penalty of perjury that you have a good faith belief that removal or disablement of the material was a mistake or that the material was misidentified;
- Your name and telephone number, and a statement that you consent to the jurisdiction of the Federal District court (i) in the judicial district where your address is located if the address is in the United States, or (ii) located in the Eastern District of Pennsylvania (County of Philadelphia, Pennsylvania), if your address is located outside the United States, and that you will accept service of process from the Complainant submitting the notice or his/her authorized agent.
Please submit your Counter-Notice to NetDiligence’s Copyright Agent via e-mail or mail to the addresses specified above.
16. FORCE MAJEURE
NetDiligence shall be excused from performance under these Terms and Conditions to the extent it is prevented from or delayed from performing, in whole or in part, as a result of an event or series of events caused by or resulting from (1) weather conditions or other elements of nature or acts of God, (2) acts of war, acts of terrorism, insurrection, riots, civil disorders or rebellion, (3) quarantines or embargoes, (4) labor strikes, or (5) other causes beyond the reasonable control of NetDiligence.
17. ENTIRE AGREEMENT
You acknowledge and agree that these Terms and Conditions constitute the complete and exclusive agreement between you and NetDiligence concerning your access to and use of the Site, and supersede and govern all prior proposals, agreements, or other communications, whether oral or in writing, with respect to the Site. You represent, warrant, and covenant that your access to and use of the site will comply with these Terms and Conditions.
You may not assign these Terms and Conditions (or any rights, benefits or obligations hereunder) by operation of law or otherwise without the prior written consent of NetDiligence, which may be withheld at NetDiligence’s sole discretion. Any attempted assignment that does not comply with these Terms and Conditions shall be null and void. NetDiligence may assign these Terms and Conditions, in whole or in part, to any third party in its sole discretion.
19. EFFECT OF TERMINATION/SURVIVAL OF TERMS
Notwithstanding any other provisions of this Agreement, or any general legal principles to the contrary, any provision of this Agreement that imposes or contemplates continuing obligations on a party will survive the expiration or termination of this Agreement, and all other rights and obligations of the parties under this Agreement shall expire.
20. HOW TO CONTACT US
If you have any questions, comments, requests or concerns related to this Agreement, please visit: https://www.eriskhub.com/contact_us.php. You also may write to:
P.O. Box 204
Gladwyne, Pennsylvania 19035
21. EFFECTIVE DATE
June 17, 2011