Preptel’s Subscription Agreement
Terms and Conditions
As set forth in the Subscription Order Form or any renewal thereof (the “Order”) Preptel Corporation (“Preptel”) and the individual identified in the Order (“Customer”) agree that Preptel Corporation shall make available to Customer the services identified in the Order (“Services”), subject to this Subscription Agreement (“Agreement”). Services may include, but are not limited to, Resumeter®, resume optimization, job searching, job descriptions, candidate report, business information, compensation, employee comments, legal or financial data and ratings of world-wide business entities supplied by Preptel or any affiliate of Preptel (“Information”).
1.1 Preptel grants to Customer a non-exclusive, non-transferable license (“License”) to use and display the Information specified in an Order, subject to the limitations contained in this Agreement and such Order. Preptel retains all ownership rights (including copyrights and other intellectual property rights) in the Services, in any form, and Customer obtains only such rights as are explicitly granted in this Agreement and such Order.
1.2 Each license is for a term of one (1) month, beginning on the effective date of the Order. The Service (i) is available only for the Customer specified on the Order; (ii) is intended only for each Customer’s individual use; and (iii) may not be shared with other persons or entities, either internally or externally. A Customer is authorized to access the Services during the term of this Agreement and according to the terms of the Order, either online, or after the Information has been downloaded in accordance with the terms of this Agreement. Preptel reserves the right to deny access to any Customer whose account violates the license terms for the Service.
2. Restrictions on Use
2.1 The Services are licensed for Customer’s use only and subject to any restrictions set forth in the Order. Customer will not provide Information, or other Services to others, whether directly in any media or indirectly through incorporation in a database, marketing list, report or otherwise, or use or permit the use of Information to generate any statistical or other information that is or will be provided to third parties (including as the basis for providing recommendations to others); use or permit the use of Information to prepare any comparison to other information databases that is or will be provided to third parties; or voluntarily produce Information in legal proceedings.
2.2 Customer will not use Information as a factor in establishing an individual’s eligibility for (i) credit or insurance to be used primarily for personal, family, or household purposes, or (ii) employment. In addition, Customer will not use any Service to engage in any unfair or deceptive practices and will use the Services only in compliance with applicable state, local, federal or foreign laws or regulations, including but not limited to laws and regulations promulgated by the Office of Foreign Asset Control, applicable export restrictions, and/or those laws and regulations regarding telemarketing, customer solicitation (including fax and/or e-mail solicitation), data protection and privacy.
2.3 If applicable, upon expiration or termination of a License with respect to particular Information, or upon receipt of Information that is intended to supersede previously obtained Information, unless Preptel instructs Customer otherwise, Customer will immediately delete or destroy all originals and copies of the Information, as applicable, and upon request, provide Preptel with certification thereof.
2.4 Upon reasonable notice and during regular business hours, Customer will permit Preptel to inspect the locations at, or computer systems on which, Information is used, stored or transmitted so that Preptel can verify Customer’s compliance with this Agreement.
2.5 Preptel reserves the right to monitor Customer’s use of the Service to ensure compliance with this Agreement and prevent fraudulent use. Such monitoring of use may include but will not be limited to determining whether or not the Service is accessed under the account from multiple computers, as well as noting downloads beyond the limit of the total number of records as may be set forth in the applicable Order or a disproportionate number of logins. Preptel reserves the right to limit access to the Services to (i) viewing or printing using a third party web browser print function, and (ii) downloading a maximum number of records. In addition, Customer shall be bound by any access and download limitations that are internal to a Service. Per 1-month term of the License, Customer shall be limited to downloading such records as may be set forth in the applicable Order or posted within a Service. All download limitations will be enforced at Preptel’s discretion. Customer may not make available a user name and password to any party. Systematic access or extraction of content from the Service, including, but not limited to, the use of “bots” or “spiders,” is prohibited. If such monitoring indicates you are not in compliance with this Agreement or if fraudulent activity is suspected, Preptel reserves the right to take such action as it deems necessary, including, but not limited to, suspension or termination of the account.
3. Billing Policy
The Services will commence on the date the Customer’s order is accepted by Preptel (the “Effective Date”) and will continue on the basis of successive billing periods of 30 days (with the first day of each billing period being a “Billing Date”) thereafter until terminated by either party. Preptel will charge the Client’s credit card on each Billing Date for the billing period beginning on that date. If funds are not available or Preptel otherwise is unable to collect any fees when due, Preptel may continue to submit charges on Customer’s credit card from time to time until all fees due are paid. Preptel may suspend all or any portion of the Services at any time when fees are due and unpaid.
Any fees due under this Agreement are net of any sales or use taxes, all of which are the sole responsibility of Customer.
Please note: Clients who are subscribed to monthly packages, who have surpassed the free trial period, will not be entitled to a refund. Free trial periods may vary in length and are specified with each order.
4.1 Though Preptel and its affiliates use extensive procedures to keep its database current and to promote data accuracy, Customer acknowledges that the Information will contain a degree of error.
4.2 ALL SERVICES AND INFORMATION ARE PROVIDED ON AN “AS IS,” “AS AVAILABLE” BASIS. OTHER THAN AS EXPLICITLY STATED IN THIS AGREEMENT, PREPTEL DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF ACCURACY, COMPLETENESS, CURRENTNESS, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. PREPTEL DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE AND DISCLAIMS ANY WARRANTY OR REPRESENTATION REGARDING AVAILABILITY OF A SERVICE, SERVICE LEVELS OR PERFORMANCE. PREPTEL WILL NOT BE LIABLE FOR ANY LOSS OR INJURY ARISING OUT OF, IN WHOLE OR IN PART, PREPTEL CONDUCT IN PROCURING, COMPILING, COLLECTING, INTERPRETING, REPORTING OR DELIVERING SERVICES OR INFORMATION.
5. Copyrights and Other Proprietary Rights
5.1 Information is proprietary, copyrighted works of Preptel and its affiliates and comprises: (i) works of original authorship, including compiled Information containing Preptel or its affiliates’ selection, arrangement and coordination and expression of such Information or pre-existing material it has created, gathered or assembled; (ii) trade secret and other confidential information, including information that derives value or potential value from not being readily known or available; and (iii) information that has been created, developed and maintained by Preptel or its affiliates at great expense, such that misappropriation or unauthorized use by others for commercial gain would unfairly and/or irreparably harm Preptel and its affiliates or reduce Preptel or its affiliates’ incentive to create, develop and maintain such information. Customer will not commit or permit any act or omission that would contest or impair Preptel or any affiliate’s proprietary and intellectual property rights in Information or that would cause the Information to infringe the proprietary or intellectual property rights of a third party. Customer will reproduce Preptel or its affiliate’s copyright and proprietary rights legend on all copies of Information.
5.2 Customer will not use any trademark, service mark or trade name of Preptel or any of Preptel’s affiliated companies or publish any press releases regarding this Agreement or any order. Customer shall not disclose the negotiated pricing or terms of this Agreement, or any order, to any third party.
5.3 Preptel represents and warrants to Customer that, to Preptel’s knowledge, the Information, when used in accordance with this Agreement, does not violate any existing, U.S. copyrights, patents, trademarks, or other intellectual property rights of any third party, as of the effective date of the applicable Order. The foregoing warranty does not apply to the extent Customer modifies the Information in any way or combines the Information with material from third parties.
5.4 Customer shall implement and maintain security measures with respect to the Information in Customer’s possession that effectively restrict access to Information, and protect Information from unauthorized use, alteration, access, publication and distribution. In no event shall such security measures be less restrictive than those Customer employs to safeguard its most confidential information. Customer shall supply Preptel with a description of such security measures at Preptel’s request. In the event of an actual or suspected breach of such security measures, Customer shall notify Preptel within 24 hours.
6.1 Client may terminate this Agreement at any time by giving Preptel notice at least twenty-four hours (24) hours prior to the next Billing Date. Preptel may also terminate this Agreement at any time by giving Client at least twenty-four (24) hours prior notice.
6.2 In the event of material breach of paragraph 1, 2 or 5, the non-breaching party may immediately terminate, or Preptel may suspend Services under, the applicable Orders without prior notice. In the event of material breach of any other part of this Agreement by Customer or Preptel, the non-breaching party may terminate this Agreement or particular Orders if such breach is not cured within thirty (30) days of written notice of breach.
6.3 The provisions set forth in paragraphs 2, 4, 5, 7, and 8 will survive the termination of this Agreement.
7. Limitation of Liability
7.1 EXCEPT FOR CLAIMS ARISING OUT OF VIOLATIONS OF PARAGRAPHS 1.2, 2 OR 5, AGGREGATE LIABILITY WITH RESPECT TO A PARTICULAR ORDER, FOR CUSTOMER, WILL NOT EXCEED THE AGGREGATE AMOUNT PAYABLE BY CUSTOMER TO PREPTEL PURSUANT TO SUCH ORDER, OR, FOR PREPTEL, THE AGGREGATE AMOUNT PAID TO PREPTEL BY CUSTOMER PURSUANT TO SUCH ORDER. ANY CLAIMS WILL BE BROUGHT, IN ACCORDANCE WITH THIS AGREEMENT, WITHIN 12 MONTHS OF THE FIRST OCCURRENCE GIVING RISE TO SUCH CLAIMS, OR SUCH CLAIMS WILL BE FOREVER BARRED.
7.2 PREPTEL SHALL NOT BE LIABLE FOR SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF PROFITS), EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
8. Choice of Law; Disputes
8.1 This Agreement is governed by and construed in accordance with the laws of the State of California, without regard to choice of law provisions. Any disputes arising out of this Agreement that cannot be resolved by the parties will be brought in state or federal court located in San Francisco, California.
8.2 Customer will pay all costs and expenses, including reasonable attorneys’ fees, that Preptel incurs in any action to enforce Customer’s obligations under this Agreement.
9.1 All prior agreements, both oral and written, between the parties on the matters contained in this Agreement are expressly cancelled and superseded by this Agreement. In no event shall any terms or conditions included on any form of Customer purchase order apply to the relationship between Preptel and Customer hereunder, unless such terms are expressly agreed to by the parties in writing. Any amendments of or waivers relating to this Agreement or any Order must be in writing signed by both parties.
9.2 Third parties (including affiliates of Preptel) that provide information, software or services to Preptel or its affiliates for use in providing the Services are intended third party beneficiaries of paragraphs 4 and 7.
9.3 This Agreement binds and inures to the benefit of the parties and their successors and permitted assigns, except that neither party may assign this Agreement without the prior written consent of the other party; however, Preptel may assign the Agreement to an affiliate or in connection with a merger or consolidation involving Preptel (so long as the assignment is to the newly merged or consolidated entity) or the sale of substantially all of Preptel’s assets (so long as the assignment is to the acquirer of such assets).
9.4 Customer’s use of the information must in all cases comply with all applicable laws and regulations.