BeSkilled Terms of Service Agreement
This BeSkilled Terms of Service Agreement (this "Agreement") is made between BeSkilled (also known as Idea Crossing, Inc.), a California corporation ("BeSkilled"), and any person or company ("Customer") who completes the registration, submission and payment process to participate in BeSkilled’s “Pitch Yourself Makeover Challenge” service, a personal branding service for which features and functionality are further described below (the "Service").
THIS AGREEMENT IS A "CLICK-WRAP" AGREEMENT. BY CLICKING THE ACCEPTANCE BUTTON, CUSTOMER EXPRESSLY AGREES TO AND CONSENTS TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF CUSTOMER DOES NOT CLICK THE ACCEPTANCE BUTTON, THEN BESKILLED WILL PROMPTLY CANCEL THIS TRANSACTION AND CUSTOMER MAY NOT ACCESS OR USE THE SERVICE.
Subject to the terms, conditions and restrictions set forth in this Agreement, BeSkilled hereby grants to Customer, and Customer hereby accepts, for the term of this Agreement, a revocable, non-exclusive, non-transferable limited right, without the right to grant sublicenses, to access and use solely for the purposes of its own self or business (a) the Service and (b) any user instructions, including without limitation information, data, text, editorial content, design elements, look and feel, formatting, graphics, images, photographs, videos, music, sounds and other content contained in or delivered via the Services or otherwise made available by BeSkilled in connection with the Services (the "Content"), or other related materials, in both eye-readable and machine-readable printable form, that may from time to time be supplied to Customer by BeSkilled to facilitate the participation in the Service (the "Materials"). BeSkilled shall retain all right, title and interest in and to the Service, the Content, the Materials and its methodologies, processes, techniques, ideas, concepts, trade secrets and know-how (including, without limitation, any software or methodologies, processes, techniques, ideas, concepts, trade secrets and know-how that BeSkilled may develop or supply in connection with this Agreement). Customer shall not: (i) disassemble, reverse engineer, decompile or otherwise attempt to derive source code from the Service; (ii) modify, adapt, create derivative works based upon or translate the Service, the Content or the Materials; (iii) assign, re-license or sublicense the Service, the Content, the Materials or its right to the use of the Service, the Content and the Materials; (iv) transfer, lease, loan, resell for profit, distribute or otherwise grant any rights in the Service, the Content or the Materials in any form to any third party; or (v) use the Service, the Content or the Materials to engage in any activity deemed by BeSkilled to be in conflict with the purpose of the Service, reputable business practices or the spirit or intent of this Agreement. Customer shall be solely responsible for providing and maintaining all hardware and software and other requirements for Customer’s use of the Service (including, without limitation, Internet access and a compatible web browser). Customer shall be solely responsible for any authorized or unauthorized access to Customer’s account by any person, it being understood that Customer bears all responsibility for the confidentiality of Customer’s password and all use, or charges incurred from use, of the Service with Customer’s password. BeSkilled shall have no obligation to provide Customer with any updates or upgrades to the Service or to otherwise provide additional training or support for the Service, it being understood that any decision by BeSkilled to do so shall be in its sole discretion.
B. Customer Input
Any rights in and to any information provided to BeSkilled by Customer ("Customer Input") shall be owned and retained by Customer. Subject to the foregoing and Section C, Customer hereby grants to BeSkilled all rights and licenses to Customer Input necessary for Customer to use the Service and BeSkilled to collect, store, maintain, compile, synthesize, analyze, process and use Service Data (as defined below). Customer shall maintain an adequate back-up of all Customer Input, and BeSkilled shall not be responsible to Customer for any deletion, destruction, damage, loss or failure to store or back-up any Customer Input. Customer agrees not to use the Service in connection with any Customer Input that: (a) to a reasonable person may be abusive, obscene, pornographic, defamatory, harassing, grossly offensive, vulgar, threatening or malicious; (b) contains any material of a third party without the permission or right to do so; (c) actually or potentially infringes the copyright, trademark, patent, trade secret or other intellectual property right of any third party; or (d) violates any law applicable to Customer or Customer Input or any obligation or restriction agreed to by Customer with any third party. Customer shall defend, indemnify and hold harmless BeSkilled for, from and against any and all losses, costs, damages, liabilities or expenses (including, without limitation, reasonable attorneys’ fees) incurred or arising from any third party claim arising out of or relating to (i) Customer Input or the use thereof by BeSkilled in connection with the Service, whether or not in breach of the foregoing obligation, or (ii) a breach of the foregoing obligation. BeSkilled is under no obligation to review any Customer Input for its accuracy or any potential liability to Customer or BeSkilled under any law or to any third party.
C. Service Data; Service Output
All rights in and to any data and information that BeSkilled may record, collect, compile or synthesize in connection with the Service or otherwise resulting from or relating to the use or operation of the Service ("Service Data") shall be owned exclusively by BeSkilled. BeSkilled may record, collect, store, maintain, compile, synthesize, analyze, process and use Service Data for any lawful purpose without any duty of accounting to Customer or any obligation to pay Customer. For the avoidance of doubt, but without limitation, Service Data includes the deliverables provided by BeSkilled to Customer (e.g., headline and bio) and any testimonials or other feedback provided to BeSkilled by Customer with respect to the Services and such deliverables (“Service Output”) and Customer agrees that BeSkilled may use the Service Output for any lawful purpose without any duty of accounting to Customer or any obligation to pay Customer. Customer may use any copy of such deliverables that Customer maintains for any lawful purpose without any duty of accounting to BeSkilled or any obligation to pay BeSkilled in addition to the Fees (as defined below).
Customer shall pay BeSkilled for access to and use of the Services any then-applicable subscription charges or other fees (if any, the "Fees"). The Fees shall be due and payable at the time indicated by BeSkilled and are non-refundable and non-transferable. If Customer has specified a credit card or a bank account as an authorized payment mechanism under this Agreement, then Customer hereby grants BeSkilled the right to charge the applicable credit card or debit the applicable bank account for the Fees. Customer shall be responsible for and shall pay BeSkilled all currency conversion charges, sales, use, value-added, personal property or other tax, duty or levy of any kind (including, without limitation, interest and penalties thereon) imposed now or later by any governmental entity. In the event Customer fails to pay any amount when due and payable under this Agreement, BeSkilled may immediately suspend or terminate this Agreement and Customer’s access to and use of the Service. Until paid in full, any such amount due and payable shall bear a late charge equal to 1.5% per month (or, if less, the maximum amount permitted under applicable law). Customer shall be responsible for the fees and expenses of any collection agencies, attorneys or courts used by BeSkilled for collection of any such amount due and payable.
E. Limited Warranty
Each party represents and warrants to the other party, for the term of this Agreement, that it has the full legal right and power, without the consent of any other person or company, to execute and deliver this Agreement, to perform its obligations under this Agreement and to grant to the other party any rights granted hereunder. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION E, THE SERVICE, THE CONTENT, THE MATERIALS AND THE SERVICE OUTPUT MATERIALS ARE PROVIDED ON AN "AS IS" BASIS AND CUSTOMER’S USE OF ANY OF THE FOREGOING IS AT ITS OWN RISK. BESKILLED DOES NOT MAKE ANY REPRESENTATIONS OR WARRANTIES WITH RESPECT TO ACCESS OR USE THE SERVICE (INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES ON OUTCOMES, RESULTS AND THE LIKE). BESKILLED DOES NOT MAKE ANY OTHER REPRESENTATIONS OR WARRANTIES, WHETHER EXPRESS OR IMPLIED (INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR TITLE OR ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE), RELATED TO THE SERVICE, THE CONTENT, THE MATERIALS, THE SERVICE OUTPUT AND ANY SERVICES OF BESKILLED RELATED THERETO OR THIS AGREEMENT. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVE BY BESKILLED TO CUSTOMER WILL CREATE ANY REPRESENTATION OR WARRANTY ON BEHALF OF BESKILLED.
F. Risk Allocation
UNDER NO CIRCUMSTANCES SHALL BESKILLED BE LIABLE TO CUSTOMER OR ANY OTHER PERSON FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES FOR ANY MATTER ARISING FROM OR RELATING TO THIS AGREEMENT OR THE SERVICE, THE CONTENT , THE MATERIALS, THE SERVICE OUTPUT AND ANY SERVICES OF BESKILLED RELATED THERETO (INCLUDING, WITHOUT LIMITATION, CUSTOMER’S INABILITY TO ACCESS OR USE THE SERVICE). IN NO EVENT SHALL BESKILLED’S TOTAL LIABILITY TO CUSTOMER OR ANY OTHER PERSON FOR ANY DIRECT DAMAGES ARISING FROM OR RELATING TO THIS AGREEMENT OR THE SERVICE, THE CONTENT, THE MATERIALS, THE SERVICE OUTPUT AND ANY SERVICES OF BESKILLED RELATED THERETO (INCLUDING, WITHOUT LIMITATION, CUSTOMER’S OUTCOMES OR RESULTS AFTER USE OR USE OF THE SERVICE FOR FROM THE SERVICE OUTPUT) EXCEED THE TOTAL FEES PAID BY CUSTOMER TO BESKILLED UNDER THIS AGREEMENT (OR, IF NO FEES WERE PAID, $100). The provisions of this Section F are intended to apply in all circumstances, regardless of the grounds or nature of any claim asserted (including, without limitation, contract, statute, any form of negligence, whether of Customer, BeSkilled or others, tort, strict liability or otherwise) and whether or not the party seeking remedy was advised of the possibility of the damage or loss asserted, to the extent not contrary to applicable law. Customer acknowledges that interfaces for the Service may be inaccessible or inoperable from time to time for any reason (including, without limitation, errors, malfunctions or other causes that may or may not be within the control of BeSkilled) and, as such, agrees that BeSkilled shall have no liability or responsibility to Customer if such interfaces are inaccessible or inoperable.
G. Term and Termination
The term of this Agreement shall start on the date that Customer clicks the acceptance button for this Agreement and continue indefinitely, unless earlier terminated by either party, with or without cause, at any time upon notice to the other party. Notice of termination by Customer shall be made by accessing Customer’s account through the web-based interface and clicking the termination button within the "account settings" feature of such interface. Notice of termination by BeSkilled shall be made by delivery of a termination notice to Customer to the e-mail address provided for Customer’s account or any other e-mail address that Customer provides to BeSkilled. All provisions of this Agreement survive termination of this Agreement for any reason whatsoever. Upon any termination of this Agreement, all rights and licenses granted to Customer under this Agreement shall cease (and Customer shall immediately cease all access to and use of the Service) and BeSkilled may delete or destroy any Customer Content held by BeSkilled.
Customer hereby grants to BeSkilled the right and license to use the name (and, if applicable, logo) of Customer in its promotional materials to indicate Customer’s use of the Service. The name and logo of BeSkilled and the product and service names and logos associated with the Service are trademarks of BeSkilled or its third-party providers, and no right or license is granted to Customer to use such names or logos.
I. Entire Agreement; Amendment and Waiver
This Agreement constitutes the entire understanding and agreement between Customer and BeSkilled and supersedes any and all prior or contemporaneous oral or written communications with respect to the subject matter hereof. The terms and conditions of this Agreement may not be amended, waived or modified other than in a writing signed by both BeSkilled and Customer. No failure or delay of either party to exercise any rights or remedies under this Agreement shall operate as a waiver thereof, nor shall any single or partial exercise of any rights or remedies preclude any further or other exercise of the same or any other rights or remedies, nor shall any waiver of any rights or remedies with respect to any circumstances be construed as a waiver thereof with respect to any other circumstances. This Agreement may not be assigned or transferred (by operation of law or otherwise) by Customer without prior written approval by BeSkilled, which approval may be withheld in BeSkilled’s sole discretion.
J. Interpretation and Enforcement
This Agreement is a "click-wrap" agreement, which shall be deemed executed and delivered by both parties upon Customer clicking the acceptance button for this Agreement. This Agreement shall be governed by the laws of the State of California without regard to its conflict of laws principles. If any provision of this Agreement, or the application of such provision to any person or circumstances, is held invalid, then the remainder of this Agreement, or the application of such provision in any and all other respects, shall not be affected thereby and shall nevertheless be enforced to the maximum extent consistent with the intent of this Agreement. Customer agrees that any action or proceeding instituted by Customer resulting from, arising out of, relating to or in connection with this Agreement shall be tried and litigated exclusively in the state and federal courts located in Los Angeles County, California, United States of America within one (1) year after the claim or cause of action arises upon which such claim or proceeding is based. Each party acknowledges and agrees that a breach by such party of any obligation under Section A, Section B or Section C may give rise to irreparable injury to the other party and, therefore, such party agrees that the other party shall be entitled to equitable relief (including, without limitation, injunction and specific performance) in the event of any such breach in addition to any and all other remedies available to the other party at law or in equity.
Any notice made by either party under or in connection this Agreement shall be delivered via e-mail, unless otherwise expressly provided by this Agreement. Customer shall deliver any such notice to BeSkilled at pitchyourself@BeSkilled.com. BeSkilled shall deliver any such notice to Customer to the e-mail address provided for Customer’s account or any other e-mail address that Customer provides to BeSkilled.
L. Features and Functionality
This Section L describes the features and functionality of the Service as of the date that Customer clicks the acceptance button for this Agreement. Notwithstanding such description, Customer acknowledges and agrees that BeSkilled may from time to time, in its sole discretion, update, change, revise, suspend or discontinue any features or functionalities of the Service with or without notice to Customer.