TERMS OF SERVICE AGREEMENT
PLEASE READ THESE TERMS OF SERVICE CAREFULLY. THESE TERMS OF SERVICE CONTAIN IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS, REMEDIES AND OBLIGATIONS. THESE INCLUDE LIMITATIONS ON LIABILITY AND A DISCLAIMER OF ALL WARRANTIES.
By placing an order, creating an account, clicking to accept this Agreement, or using or accessing any services, including skills-based video content, and related analytics, candidate sourcing, and other value on services (the "Services") offered and provided by Parrut, Inc. (dba Uncubed), a Delaware corporation (“Uncubed”) on Uncubed’s website www.uncubed.com (the “Uncubed Platform”), you agree to all the terms and conditions of this Terms of Service Agreement (this “Agreement”). If you are using an Uncubed Service or related services on behalf of a company or other entity, then “Customer” or “you” means that entity, and you are binding that entity to this Agreement. You represent and warrant that you have the legal power and authority to enter into this Agreement and that, if the Customer is an entity, this Agreement and each Order Form (as defined below) is entered into by an employee or agent with all necessary authority to bind that entity to this Agreement. Please note that we may modify this Agreement as further described in the amendments section below. The terms specified in each applicable Order Form shall be incorporated by reference into this Agreement.
1. Scope Of Services
This Agreement governs Uncubed’s provision of Services to the Customer, including Uncubed collaborating with Customer to create skills-based videos for the Uncubed Platform (the “Video Content”) or otherwise use the Service. The Services which Uncubed is to provide Customer are described herein or in one or more ordering documents (each such document, an “Order Form”). The terms specified in each applicable Order Form, including any schedule or exhibit thereto, are hereby incorporated into this Agreement by reference.
2. ACCOUNT REGISTRATION AND USE
2.1 Use of Uncubed Services.
Subject to all terms and conditions of this Agreement, Uncubed grants Customer a worldwide, non-exclusive, non-transferable, non-sublicensable right and license during the applicable Subscription Term to access and use the Uncubed Services specifically designated in this Agreement or on an Order Form solely for Customer’s own business purposes, but only in accordance with the terms and conditions set forth in this Agreement.
2.2 Use by Others.
Customer may permit its Authorized Users to use the Uncubed Services provided their use is for Customer’s benefit only and remains in compliance with the terms and conditions set forth in this Agreement. Customer will be responsible and liable for all Authorized Users’ use and access and their compliance with the terms and conditions herein. Use by all Authorized Users in aggregate will count towards applicable Scope of Use restrictions.
2.3 General Restrictions
Customer shall not (and shall not allow or permit any third party to): (i) rent, lease, copy, transfer, sublicense or provide access to any Uncubed Service to a third party (except Authorized Users as specifically authorized above); (ii) incorporate any Uncubed Service (or any portion thereof) into, or use it with or to provide, any site, product or service, other than on Customer Properties owned-and-operated by Customer and as specifically permitted above; (iii) use any Uncubed Service (or any portion thereof) for time sharing purposes or for a third party’s benefit; (iv) publicly disseminate information regarding the performance of any Uncubed Service (which is deemed Uncubed’s Confidential Information); (v) modify or create a derivative work of any Uncubed Service (or any portion thereof); (vi) reverse engineer, disassemble, decompile, translate, or otherwise seek to obtain or derive the source code, underlying ideas, algorithms, file formats or non-public APIs to any Uncubed Service, except to the extent expressly permitted by applicable law and then only upon advance notice to Uncubed; or (vii) remove or obscure any proprietary or other notices contained in any Uncubed Service, including in any reports or output obtained from any Uncubed Service.
3. PRODUCTION, GRANT OF LICENSE, AND ACCESS TO VIDEO CONTENT
3.1 Production Costs and Expenses
Uncubed will be responsible for all production costs and expenses associated with each Video Content, provided, however, that Customer will be responsible for all costs and expenses incurred by Customer and its employees and agents, if any, in the creation and production of any Video Content.
3.2 Content Development and Subsequent Edits
Uncubed will be responsible for, and have sole control over, the creative and editorial creation of each Video Content. Customer shall have the right to review and approve any Video Content before it is published on the Uncubed Platform, such approval not to be unreasonably withheld or delayed. Once published, Uncubed may make edits at any time to any such Video Content and will notify Customer should such edits materially change the educational content of such video.
3.3 Content Ownership and Customer License
Except for Customer Submission (as defined below), Uncubed shall exclusively own all right, title and interest in the Video Content. Subject to the terms and conditions of this Agreement, Uncubed hereby grants Customer, for the duration of the Term of this Agreement, a non-exclusive license to use, reproduce, display and distribute the Video Content for promotional purposes provided that such use, reproduction, display, distribution and/or promotion is accompanied with reasonably prominent reference to Uncubed.com and a live URL link to Uncubed. Such license shall no longer be valid after termination of the Agreement, subject to the terms herein.
3.4 Display of Content on Uncubed Platform
Uncubed agrees to display the Video Content on the Uncubed Platform for the duration of the Term of this Agreement, and after such period Uncubed may continue displaying or discontinue displaying the Video Content at any time in its sole discretion, subject to the termination provisions of this Agreement.
3.5 Customer Submission
Uncubed acknowledges and agrees that all content contained in the Video Content to the extent created and/or supplied by Customer and its employees and agents, including but not limited to any and all notes, text, content, drawings, designs, graphics, images, know how, photographs, videos, works of authorship, material, information, work or product (collectively, “Customer Submission”), shall remain the property of Customer and its employees and agents, as applicable. Customer, for and on behalf of itself and its employees and agents, hereby grants Uncubed an irrevocable, royalty-free right and license (the “Submission License”) to use, reproduce and display each Customer Submission for the purpose of creating, reproducing, displaying, using and/or promoting the Video Content.
3.6 Access to Video Content
Customer acknowledges and agrees that Uncubed shall have the right in its sole discretion to sell, distribute, retransmit, reproduce, display and/or otherwise provide access to each Video Content to any third party and that nothing in this Agreement shall limit or otherwise restrict Uncubed from licensing each Video Content and/or providing any services to any other person or entity.
In addition to making each Video Content available on the Uncubed Platform, Uncubed may promote the Video Content through its publication, through its email newsletters, or through other advertising or communication with current or potential users of the Uncubed Platform. Such promotion is at the sole discretion of Uncubed, unless specified otherwise in the applicable Order Form.
4. USE OF CUSTOMER NAME AND TRADEMARKS
4.1 Rights, License, and Ownership
Uncubed agrees to display Customer’s name and/or logo on its applicable Video Content. Customer hereby grants to Uncubed a worldwide, royalty-free, non-exclusive, and non-assignable right and license to use, reproduce, distribute and display its trade names, logos, trademarks, service marks and registered marks, whether now existing or which may subsequently come into existence (collectively, “Customer Marks”) for the sole purpose of reproducing, displaying, using and/or promoting their Video Content. Uncubed acknowledges and agrees that Customer owns all right, title and interest in the Customer Marks and nothing in this Agreement will confer in Uncubed any right of ownership in any such Customer Marks.
4.2 Notice Requirement
In the event Customer receives any notice claiming or becomes aware that any of the Customer Marks infringe or otherwise violate any intellectual property or other third-party right, Customer shall immediately notify Uncubed in writing, including such detail as is available and necessary for Uncubed to evaluate and address such complaint, and fully cooperate with Uncubed in addressing such claims.
5. FEES, PAYMENT TERMS, AND ORDER FORMS
Customer will pay Uncubed the fees described on each applicable Order Form (the “Fees”). All Fees shall be due and payable to Uncubed per the terms specified in the Order Form and are based on the Services specified in the applicable Order Form rather than actual usage. Payment obligations are non-cancellable and subject to the termination provisions of this Agreement, all fees paid are non-refundable.
5.2 Payment Terms and Invoices
Customer shall pay Uncubed for all Fees with a valid check, money order, or payment by credit card. Customer shall be solely responsible for providing Uncubed with accurate and complete billing and contact information and for notifying Uncubed of any changes to such information. If Customer is paying by credit card, it hereby authorizes Uncubed to charge the applicable Fees and other amounts payable under their Order Form(s) automatically to Customer’s credit card without invoice.
5.3 Overdue Charges
Late Fee payments shall accrue interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid.
Customer shall be responsible for payment of all sales, use, property, value-added, withholding, or other federal, state or local taxes associated with its use of the Services. If Uncubed is required to pay any such taxes based on the licenses granted under this Agreement or on Customer's use of the Services, then such taxes shall be billed to and paid by Customer. For the avoidance of doubt, all Fees listed herein are exclusive of New York State Sales Tax.
6. TERMINATION AND REMOVAL OF VIDEO CONTENT FROM UNCUBED PLATFORM
After the Minimum Commitment, if any (as specified in the applicable Order Form) either Uncubed or Customer may terminate the Agreement at any time, for any reason, upon five (5) business days’ written notice by the terminating party to the other party. Customer may terminate prior to the expiration of the Minimum Commitment upon five (5) business days’ written notice to Uncubed provided all Fees related to the Minimum Commitment shall be due and payable and have been paid in full upon the date of such termination; and, in any event, all Fees then due and payable must be received by Uncubed prior to any termination.
6.2 Removal of Video Content from Uncubed Platform
Customer may request, at any time and for any reason, that Uncubed remove access to their Video Content on the Uncubed Platform. Subject to Customer’s compliance with the following sentence, Uncubed will remove such access within five (5) business days of receiving such written request, provided that all applicable Fees due and payable to Uncubed with respect to such Video Content have been paid in full. In the event Customer makes such request prior to the expiration of the Minimum Commitment, Customer shall pay all Fees payable with respect to the Minimum Commitment in full prior to the removal of access to the applicable Video Content.
Following any termination of this Agreement in accordance with the terms herein, the provisions of Sections 2.3, 3.3, 3.6, 8, 9, 10, 11 and 12 shall survive such termination.
Customer represents and warrants that (a) Customer is the sole and original author of each Customer Submission provided to Uncubed by it and that Customer has not and shall not knowingly incorporate into any Video Content any material from any other person; and (b) Customer is legally able and entitled under the laws of Customer’s jurisdiction to enter into this Agreement and to grant Uncubed the rights described in this Agreement. Customer does not represent or warrant that the Customer Submissions are or will be free of inaccuracies, complete or otherwise and are provided “as is” with no warranty, express or implied, of any kind and Customer disclaims any and all warranties of merchantability and fitness for a particular purpose. Except arising from any breach of the preceding representations and warranties, Customer shall not be responsible or liable for any damage, injury (including death) or loss resulting from or relating to the Customer Submissions and/or the Video Content whether to Uncubed or any third party.
Customer represents and warrants that it has obtained any and all releases, if required, related to the appearance of any employees, advisors, affiliates, or anyone else who may appear in the Video Content. Customer represents that the Video Content does not violate any law or infringe on any privacy, intellectual property, or other right of its employees, advisors, affiliates, or anyone else appearing in the Video Content.
Customer and Uncubed agree to keep confidential and not to use or to disclose to any third party at any time except as expressly authorized in writing by the other party or as required by law, any confidential technology, proprietary information, or trade secrets of the other party received in connection with the performance of this Agreement or the Services that should reasonably have been understood by the recipient, because of legends or other markings, the circumstances of disclosure or the nature of the information itself, to be proprietary or confidential to such disclosing party; provided, that nothing herein shall prevent disclosure to such party’s officers, directors, employees and representatives who need to know such information in connection with performance of this Agreement or the Services and have agreed to keep such information confidential in accordance with this Agreement; provided, further that no information shall be subject to the obligations of confidentiality set forth herein which (i) is or becomes public other than as a result of disclosure by the recipient; (ii) was known to the recipient prior to disclosure in connection herewith; (iii) becomes available to the recipient on a non-confidential basis from a source not known to be bound by confidentiality obligations with respect thereto; or (iv) is independently developed by the recipient. If Customer or Uncubed is required by law, regulation, or court order to disclose any such confidential information, such person shall promptly notify the disclosing party in writing prior to making such disclosure. The receiving party will reasonably cooperate with the disclosing party, at the disclosing party’s expense, in seeking a protective order or other remedy as requested by the disclosing party. If the disclosing party is not successful in obtaining any such protective order or other remedy, the receiving party shall furnish confidential information only to the extent legally required.
UNCUBED DOES NOT REPRESENT OR WARRANT THAT ANY VIDEO CONTENT IS OR WILL BE FREE OF INACCURACIES, ERRORS, BUGS, OR INTERRUPTIONS, OR IS RELIABLE, ACCURATE, COMPLETE OR OTHERWISE VALID. ALL VIDEO CONTENT SHALL BE PROVIDED “AS IS” WITH NO WARRANTY, EXPRESS OR IMPLIED, OF ANY KIND AND UNCUBED EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES AND CONDITIONS, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE. CUSTOMER’S USE OF THE VIDEO CONTENT IS AT CUSTOMER’S OWN DISCRETION AND RISK, AND CUSTOMER WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE THAT RESULTS FROM THE USE OF THE VIDEO CONTENT INCLUDING, BUT NOT LIMITED TO, ANY DAMAGE TO CUSTOMER’S COMPUTER SYSTEM OR LOSS OF DATA.
10. LIMITATION OF LIABILITY
IN NO EVENT SHALL EITHER UNCUBED OR CUSTOMER BE LIABLE TO THE OTHER OR ANY OTHER ENTITY FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, INDIRECT, LIQUIDATED OR EXEMPLARY DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS) ARISING FROM OR RELATED TO THIS AGREEMENT OR USE OF THE VIDEO CONTENT, WHETHER OR NOT SUCH DAMAGE WAS FORESEEABLE OR UNCUBED HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Customer agrees, at its own expense, to defend and hold harmless Uncubed from any claim or action brought against Uncubed based on or that arise from: (i) Customer’s or any Customer end user’s use of each Video Content (except for any such claim to the extent that such claim arises out of infringement by Customer of any third-party’s copyright ownership thereof); (ii) any alleged misrepresentation or breach of representation or warranty of Customer contained herein; or (iii) any alleged breach of any covenant or agreement to be performed by Customer hereunder, and to indemnify Uncubed against any and all damages and costs, including reasonable legal fees, incurred by Uncubed in connection with any such claim or action.
All notices under this Agreement must be in writing and sent by registered mail, courier, fax or email, provided however, that each party may only send notices relating to breach or termination of the Agreement by registered mail, courier or in-person delivery. Notices will be deemed to be received three (3) business days after being sent or on proof of delivery, if earlier.
Neither party may assign this Agreement to any other person or entity without the express prior written consent of the other party or its successor in interest, as applicable, except as expressly provided otherwise in this Agreement. Notwithstanding the foregoing, an assignment by either party of this Agreement by operation of law, as a result of a merger, consolidation, acquisition, amalgamation, or other transaction or series of transactions, or a sale of all or substantially all of Uncubed’s assets or those assets to which this Agreement relates shall not require consent from the other party.
This Agreement and all acts and transactions pursuant hereto and the rights and obligations of the parties hereto shall be governed, construed and interpreted in accordance with the laws of the State of New York, without giving effect to principles of conflicts of law. Each of the parties to this Agreement consents to the exclusive jurisdiction and venue of the courts of the state and federal courts of New York, New York.
If any part of this Agreement that is not fundamental is found to be illegal or unenforceable, this will not affect the validity and enforceability of the remainder of the Agreement. Any such provision which is found to be illegal, invalid or unenforceable shall apply with the minimum modification necessary to make it legal, valid and enforceable.
12.5 Entire Agreement
This Agreement contains the parties’ entire understanding regarding its subject matter and supersedes all proposals and other representations, statements, negotiations and undertakings in each case, verbal or written, relating to the same.
12.6 Prevailing Party Attorney’s Fees and Costs
If any action at law or in equity (including arbitration) is necessary to enforce or interpret the terms of this Agreement, the prevailing party shall be entitled to reasonable attorney’s fees, costs and necessary disbursements in addition to any other relief to which such party may be entitled.
12.7 Acknowledgement of Understanding
Each party acknowledges and represents that, in executing this Agreement, it has had the opportunity to seek advice as to its legal rights from legal counsel and that the person signing on its behalf has read and understood all of the terms and provisions of this Agreement. This Agreement shall not be construed against any party by reason of the drafting or preparation thereof.
Neither party shall, for any purpose, be deemed to be an agent of the other party and the relationship between the parties shall only be that of independent contractors. Neither party shall have any right or authority to assume or create any obligations or to make any representations or warranties on behalf of any other party, whether express or implied, or to bind the other party in any respect whatsoever.
12.9 Titles and Subtitles
The titles and subtitles used in this Agreement are used for convenience only and are not to be considered in construing or interpreting this Agreement.
12.10 Amendments and Modifications
This Agreement may only be amended, modified or supplemented by an agreement in writing signed by each party hereto. No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
Effective October 25, 2016