BY ACCESSING, USING THE MENTORPRO® SOFTWARE APPLICATION AND/OR SIGNIFYING YOUR ACCEPTANCE TO THIS SUBSCRIPTION AGREEMENT, YOU AGREE TO THE TERMS OF THIS ELECTRONIC AGREEMENT ON YOUR OWN BEHALF AND ON BEHALF OF THE PERSON LISTED IN THE ORDER, REGISTRATION, SIGN UP OR SIMILAR FORM (“ORDER FORM”). YOU REPRESENT AND WARRANT THAT YOU HAVE FULL AUTHORITY TO BIND THE ENTITY THAT YOU WORK FOR AND YOURSELF TO THIS SUBSCRIPTION AGREEMENT. IF YOU DO NOT AGREE TO THIS SUBSCRIPTION AGREEMENT AND DO NOT HAVE THE AUTHORITY AS PROVIDED HEREIN, DO NOT ACCESS, OR USE THE SERVICE (AS DEFINED IN THIS SUBSCRIPTION AGREEMENT).
NOTICE OF ARBITRATION AGREEMENT AND CLASS ACTION WAIVER: THIS AGREEMENT INCLUDES A BINDING ARBITRATION CLAUSE AND A CLASS ACTION WAIVER, SET FORTH BELOW, WHICH AFFECT YOUR RIGHTS ABOUT RESOLVING ANY DISPUTE WITH US. PLEASE READ IT CAREFULLY.
Note to Social Media Users. When purchasing products and services from this Website, our LinkedIn profile or other social media page, and when posting information to or otherwise communicating via that page or your own social media page, your activities online are subject to the Terms of Service, User’s Agreement, or other terms and conditions imposed by that social media website, which may contain terms and conditions different from this Agreement. Please see the following pages for further details:
O http://www.facebook.com/legal/terms (Facebook’s Statement of Rights and Responsibilities);
O http://www.snap.com/en-US/terms/ (SnapChat’s User’s Agreement);
O https://twitter.com/tos (Twitter’s Terms of Service);
O https://help.instagram.com/478745558852511 (Instagram’s Terms of Service);
O https://policy.pinterest.com/en/terms-of-service (Pinterest’s Terms of Service); and
O http://www.google.com/intl/en/policies/terms (Google’s Terms of Service).
Structure of this Agreement. This Agreement includes the General Terms and Conditions of Use for the Service in the form posted on our website at www.mentorpro.com (the “General Terms”), as the same may be amended, modified or supplemented from time to time.
Order of Priority. In the event of a conflict between a provision in this Agreement or the Order Form, the provision in the Order Form shall control. In the event of a conflict between this Agreement and a provision in the General Terms, the provision in this Agreement shall control.
Definitions. The capitalized terms used in this Agreement without definition shall have the meanings given to them in Exhibit A (Definitions).
Third Party Links and Services. During use of the Service, you may enter into correspondence with, purchase goods and/or services from, or participate in promotions of advertisers or sponsors showing their goods and/or services through the Service. Any such activity, and any terms, conditions, warranties or representations associated with such activity, is solely between you and the applicable third-party. MentorPro and its licensors shall have no liability, obligation or responsibility for any such correspondence, purchase or promotion between you and any such third-party. MentorPro does not endorse any sites on the Internet that are linked through the Service. MentorPro provides these links to you only as a matter of convenience, and in no event shall MentorPro or its licensors be responsible for any content, products, or other materials on or available from such sites. MentorPro provides the Service to you pursuant to the terms and conditions of this Agreement. You recognize, however, that certain third-party providers of ancillary software, hardware or services may require your agreement to additional or different license or other terms prior to your use of or access to such software, hardware or services
Agreement Term. Except as otherwise provided in an Order Form, and unless earlier terminated or extended as provided herein, the initial term of this Agreement (the “Initial Term”) shall commence on the Effective Date and continue thereafter for a period of one (1) year following the Effective Date. Thereafter, this Agreement shall automatically renew for successive one (1) year terms (each an “Extension Period”), unless User provides MentorPro with notice of its intent not to renew at least sixty (60) days prior to expiration of the Initial Term or the then current Extension Period, as applicable. The Initial Term and each Extension Period shall collectively be referred to as the “Term”.
MENTORPRO SOFTWARE AS A SERVICE SOLUTION
Grant of Rights. MentorPro hereby grants to User, its Affiliates, and each of the Authorized Users (as defined below) a non-exclusive, non-transferable, worldwide, subscription license, to access via a web-based interface and via a mobile application, execute and otherwise use MentorPro’s proprietary MentorPro software and applications, which software and applications are provided by MentorPro on a hosted basis (collectively, the “Service”) for User’s own internal business purposes. The foregoing grant of rights also includes a license to use any Related Documentation (as defined below). The rights and licenses set forth in this Section 3.1 are granted for the Term and any Termination Assistance Period.
Authorized Users. MentorPro will supply User with (or provide User the ability to create) user names and passwords that will permit User’s Authorized Users to access the Service. No right of sublicense is granted to User. “Authorized User(s)” will mean: (a) User, (b) Mentors, Mentees and MentorPro Administrators (as such terms are defined in the General Terms) and (b) the directors, officers, employees, partners, agents, and advisers of any of the foregoing entities that User permits to access the Service. Each Authorized User shall be required to execute and deliver, prior to his, her or their initial access to the Service, MentorPro’s End User License Agreement as the same shall be published on MentorPro’s website at www.mentorpro.com from time to time.
Related Documentation. User shall be entitled to make a reasonable number of copies of the Related Documentation in connection with its use of the Service hereunder.
General Restrictions. (a) You shall not (i) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Service or the Content in any way; (ii) modify or make derivative works based upon the Service or the Content; (iii) create Internet "links" to the Service or "frame" or "mirror" any Content on any other server or wireless or Internet-based device; or (iv) reverse engineer or access the Service in order to (a) build a competitive product or service, (b) build a product using similar ideas, features, functions or graphics of the Service, or (c) copy any ideas, features, functions or graphics of the Service.
You may use the Service only for your internal business purposes and shall not: (i) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (ii) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortuous material, including material harmful to children or violative of third party privacy rights; (iii) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (iv) interfere with or disrupt the integrity or performance of the Service or the data contained therein; or (v) attempt to gain unauthorized access to the Service or its related systems or networks.
You are responsible for all activity occurring under your User accounts and shall abide by all applicable local, state, national and foreign laws, treaties and regulations in connection with your use of the Service, including those related to data privacy, international communications and the transmission of technical or personal data. You shall: (i) notify MentorPro immediately of any unauthorized use of any password or account or any other known or suspected breach of security; (ii) report to MentorPro immediately and use reasonable efforts to stop immediately any copying or distribution of Content that is known or suspected by you or your Users; and (iii) not impersonate another MentorPro user or provide false identity information to gain access to or use the Service.
You will not violate any applicable law, contract, intellectual property or other third-party right or commit a tort, and you are solely responsible for your conduct while accessing or using the Service. Without limiting the foregoing, you will not:
Engage in any harassing, threatening, intimidating, predatory or stalking conduct;
Attempt to circumvent any content-filtering techniques we employ or attempt to access any feature or area of the Service that you are not authorized to access; or
Use the Service for any illegal or unauthorized purpose, or engage in, encourage or promote any activity that violates these Terms of Service.
You may only upload or otherwise share Customer Data that you have all necessary rights to disclose. You may not upload, store or share any Customer Data that:
Is unlawful, libelous, defamatory, obscene, pornographic, indecent, lewd, suggestive, harassing, threatening, invasive of privacy or publicity rights, abusive, inflammatory or fraudulent;
Would constitute, encourage or provide instructions for a criminal offense, violate the rights of any party or otherwise create liability or violate any local, state, national or international law;
May infringe any patent, trademark, trade secret, copyright or other intellectual or proprietary right of any party;
Contains any private or personal information of a third party, a client or patient, without such third party’s consent;
In addition, although we have no obligation to screen, edit or monitor Customer Data, we may delete or remove or suspend the use of Customer Data at any time and for any reason.
Support Services. During the Term, MentorPro shall provide User with technical support and maintenance for the Service (“Support Services”) in accordance with this Section 4. The Support Services shall include: (a) responding to and remedying problems with the Service (i.e., failures of the Service to operate in accordance with the Specifications) or User’s hardware; and (b) access to technical support in accordance with the terms of this Agreement. In addition, as part of the Support Services and without limiting any other MentorPro responsibilities, during the Term, MentorPro may update and/or upgrade the Service by implementing releases or successive versions of the Service as it deems commercially necessary. MentorPro agrees to make these updates, upgrades, and new releases and versions available to User at no additional charge and without any increase in the Fees hereunder.
Backup. MentorPro, at its expense, shall make a complete daily backup of all User Data (as defined below) stored by MentorPro under this Agreement, no less than once per day during the Term. Such backup copy of the User Data shall be stored in a secure, offsite location.
Law and Regulations. MentorPro shall and shall cause MentorPro’s agents to provide the Service, the Services and to perform their obligations under this Agreement in compliance with Laws and shall conform the Services to comply with changes in Law. MentorPro shall promptly identify and notify User of any changes in Law that relate to the performance, receipt or use of the Service and/or Services. MentorPro shall be responsible for any fines and penalties arising from any noncompliance with any Law relating to the performance, receipt or use of the Service and/or Services.
Service; Related Documentation. This is a subscription agreement for use of the Service and not an agreement for sale. Except for the rights granted to User under this Agreement, User acknowledges and agrees that, as between MentorPro and User, MentorPro owns all right, title, and interest in and to the Service and Related Documentation, and any other MentorPro IP.
MentorPro IP. With respect to any MentorPro IP other than the Service hereunder, MentorPro hereby grants to User a royalty-free, irrevocable, sub-licensable, non-exclusive license to use that MentorPro IP, in connection with User’s receipt and use of the Service and any Services, during the Term of this Agreement and the Termination Assistance Period.
User IP. User shall own the User IP and have all right, title and interest in and to the User IP. To the extent that MentorPro requires use of the User IP in connection with providing the Services, User hereby grants to MentorPro, solely as necessary to provide the Services, a non-exclusive, non-transferable, limited right to use, to the extent permissible under any third-party contracts to which such User IP may be subject, the User IP. Such license shall only be for the Term and Termination Assistance Period and shall be limited to the extent necessary for MentorPro to perform its obligations under this Agreement. MentorPro may sublicense, to the extent permissible under the applicable third party contracts to which such User IP may be subject, to MentorPro Agents the right to use the User IP solely to the extent necessary to provide those Services that such MentorPro Agents are responsible for providing and as may otherwise be agreed to by the Parties.
Generally. Except as set forth in this Agreement, the Parties do not, directly, by implication, or otherwise, grant to each other any rights or licenses, and neither Party shall have any ownership rights in any intellectual or tangible property of the other.
Third Party Material: Under no circumstances will MentorPro be liable in any way for any items or content posted by third parties or at the direction of users, including, but not limited to, for any errors or omissions in any content, or for any loss or damage of any kind incurred as a result of the use of any items or content posted, sold, purchased or otherwise transmitted via the Service. You acknowledge that MentorPro does not pre-screen items or content, but that MentorPro and its designees shall have the right (but not the obligation) in their sole discretion to refuse or remove any items or content that is available via the Service. Without limiting the foregoing, MentorPro and its designees shall have the right to remove any item or content that violates these Terms or is deemed by MentorPro, in its sole discretion, to be otherwise objectionable. You agree that you must evaluate, and bear all risks associated with, the use of any items or content, including any reliance on the safety, condition, accuracy, completeness, or usefulness of such items or content.
User Content Posted on the Site: You are solely responsible for the content you post or transmit on or through the Service (collectively, "User Content"). You will not post any content that you did not create or that you do not own all right, title and interest in and to, including, without limitation, all copyright and rights of publicity contained therein. By posting or otherwise transmitting any User Content you hereby grant and will grant to MentorPro and its affiliated companies a nonexclusive, worldwide, royalty free, fully paid up, transferable, sublicenseable, perpetual, irrevocable license to copy, display, transmit, perform, distribute, store, modify, make derivative works of and otherwise use in any manner your User Content in connection with the operation of the Service or any other products or services of MentorPro, or the promotion, advertising or marketing thereof, in any form, medium or technology now known or later developed (including without limitation publishing your User Content on the Internet or on Third Party Services such as Facebook, sharing it with blogs, etc., and allowing other users to share listings that include your User Content).You acknowledge and agree that any questions, comments, suggestions, ideas, feedback or other information about the Site or the Service ("Submissions"), provided by you to MentorPro are non-confidential and MentorPro shall be entitled to the unrestricted use and dissemination of these Submissions for any purpose, commercial or otherwise, without acknowledgment or compensation to you. You acknowledge and agree that MentorPro may preserve content and may also disclose content if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to: (a) comply with legal process, applicable laws or government requests; (b) enforce these Terms; (c) respond to claims that any content violates the rights of third parties; or (d) protect the rights, property, or personal safety of MentorPro, its users and the public. You understand that the technical processing and transmission of the Service, including your content, may involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices.
Infringement Policy: MentorPro respects the intellectual property of others, and we ask our users to do the same. MentorPro will promptly process and investigate notices of alleged infringement and will take appropriate actions under the Digital Millennium Copyright Act, the Copyright Act and other applicable intellectual property laws with respect to any alleged or actual infringement. If you believe that your work has been copied in a way that constitutes copyright infringement, or that your intellectual property rights have been otherwise violated, please provide our Copyright Agent with 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 Service, with enough detail that we may find it on the Service;
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 or intellectual property 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.
If you believe that your User Content that was removed (or to which access was disabled) is not infringing, or that you have the authorization from the copyright owner, the copyright owner's agent, or pursuant to the law, to post and use the content in your User Content, you may send a written counter-notice containing the following information to the Copyright Agent:
your physical or electronic signature;
identification of the content that has been removed or to which access has been disabled and the location at which the content appeared before it was removed or disabled;
a statement that you have a good faith belief that the content was removed or disabled as a result of mistake or a misidentification of the content; and
your name, address, telephone number, and email address, a statement that you consent to the jurisdiction of the federal court located within the State of Connecticut and a statement that you will accept service of process from the person who provided notification of the alleged infringement.
If a counter-notice is received by the Copyright Agent, MentorPro will send a copy of the counter-notice to the original complaining party informing that person that it may replace the removed content or cease disabling it in ten (10) business days. Unless the copyright owner files an action seeking a court order against the content provider, member or user, the removed content may be replaced, or access to it restored, in ten (10) to fourteen (14) business days or more after receipt of the counter-notice, at our sole discretion.
The above information should be sent to MentorPro's Copyright Agent for Notice of claims of copyright or other intellectual property infringement by email to the following address: firstname.lastname@example.org (Subject line: "DMCA Takedown Request"). You may also contact us by mail at:
297 Route 72 West, Suite 35
Manahawkin, New Jersey 08050, U.S.A.
FEES AND INVOICING.
Fees. The subscription Fees for the Service and the Fees for the Services provided under this Agreement (collectively, “Fees”) shall be as set forth in the Order Form.
Billing and Collection. (a) MentorPro charges and collects in advance for use of the Service. MentorPro will automatically renew and bill your EFT account or issue an invoice to you (a) every month for monthly licenses, (b) each year on the subsequent anniversary for annual licenses, or (c) as otherwise mutually agreed upon. The renewal charge will be equal to the then-current number of total licenses times the license fee in effect during the prior term, unless MentorPro has given you at least 30 days prior written notice of a fee increase, which shall be effective upon renewal and thereafter. Fees for other services will be charged on an as-quoted basis. MentorPro's fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and you shall be responsible for payment of all such taxes, levies, or duties, excluding only United States (federal or state) taxes based solely on MentorPro's income.
(b) You agree to provide MentorPro with complete and accurate EFT information, billing and contact information. This information includes your legal company name, street address, e-mail address, and name and telephone number of an authorized billing contact and Account Administrator. You agree to update this information within 30 days of any change to it. If the contact information you have provided is false or fraudulent, MentorPro reserves the right to terminate your access to the Service in addition to any other legal remedies.
(c) Unless MentorPro in its discretion determines otherwise: (i) entities with headquarters and a majority of users resident in the United States will be billed in U.S. dollars and subject to U.S. payment terms and pricing schemes ("U.S. Customers"); all other entities will be billed in U.S. dollars, Euros or local currency and be subject to either U.S. or non-U.S. payment terms and pricing schemes at the discretion of MentorPro("Non-U.S. Customers").
(d) If you believe your bill is incorrect, you must contact us in writing within 60 days of the invoice date of the invoice containing the amount in question to be eligible to receive an adjustment or credit.
(e) In addition to any other rights granted to MentorPro herein, MentorPro reserves the right to suspend or terminate this Agreement and your access to the Service if your account becomes delinquent (falls into arrears). Delinquent invoices (accounts in arrears) are subject to interest of 1.0% per month on any outstanding balance, or the maximum permitted by law, whichever is less, plus all expenses of collection. You will continue to be charged for licenses during any period of suspension. If you or MentorPro initiates termination of this Agreement, you will be obligated to pay the balance due on your account computed in accordance with Section 6.2 above. You agree that MentorPro may charge such unpaid fees to your EFT account or otherwise bill you for such unpaid fees. MentorPro reserves the right to impose a reconnection fee in the event you are suspended and thereafter request access to the Service. You agree and acknowledge that MentorPro has no obligation to retain User Data and that such User Data may be irretrievably deleted if your account is 30 days or more delinquent.
Expenses. Except as expressly mutually agreed by the Parties in writing, pre-approved in writing by User and invoiced by MentorPro on a pass-through basis without mark-up, all costs and expenses relating to the Services (including all costs and expenses related to travel and performance of the Services) are included in the Fees and shall not be charged to or reimbursed by User.
Service Taxes. Any sales, use or service taxes resulting from the provision of the Service and the performance of the Services that are identified by MentorPro to User in advance and stated as a separate line item on MentorPro’s invoice to which such taxes apply shall be the responsibility of User (“Service Taxes”). MentorPro shall be responsible for and shall pay to the appropriate taxing authority all Service Taxes collected from User. In the event that MentorPro fails to identify or charge any Service Taxes and the taxing authorities determine that Service Taxes are due, MentorPro shall be responsible for and shall pay the Service Taxes to the appropriate taxing authority. In addition, MentorPro shall be responsible for and shall pay any interest, levies and penalties related to any failure or delay by MentorPro in invoicing for or paying Service Taxes.
Other Taxes. Each Party shall be responsible for (a) any personal property taxes on property it owns or leases (other than property subleased to the other Party), (b) employment taxes of its own employees (including any taxes related to the long-term assignment of an employee that results in additional tax liability for the employee or employer) and (c) taxes based on its net income or gross receipts. For clarity, neither Party shall be liable to the other Party for any taxes, charges, or fees however described imposed by any tax jurisdiction on either Party, except for those Service Taxes described in this Section and only to the extent provided in this Section.
Confidential Information. From time to time, either Party (the “Disclosing Party”) may disclose or make available to the other Party (the “Receiving Party”), whether orally, electronically or in physical form, confidential or proprietary information of or in the possession of the Disclosing Party (including confidential or proprietary information of a third party that is in the possession of the Disclosing Party) in connection with this Agreement. The term “Confidential Information” shall include all information and data which at the time of disclosure either: (i) is marked as “Confidential” or “Proprietary”, (ii) is otherwise reasonably identified as the confidential or proprietary information of the Disclosing Party, or (iii) should reasonably be understood to be confidential or proprietary information of the Disclosing Party given the nature of the information and the circumstances surrounding its disclosure. Neither Party shall disclose the Confidential Information of the Disclosing Party to any third party without the prior written consent of the Disclosing Party and shall only access and use the Confidential Information as required to and for the limited purpose of performing its obligations under this Agreement; provided, that each Party may disclose Confidential Information of the other Party to its employees, contractors and professional advisors who need to know such information in order to perform their obligations related to this Agreement and who are contractually bound by confidentiality obligations that are at least as protective as those in this Agreement. Each Party shall use commercially reasonable care and discretion to avoid unauthorized use, disclosure, publication or dissemination of Confidential Information (which shall be no less than the standard of care used by a Party to protect its Confidential Information of a similar nature and shall require each Party to satisfy its other obligations under this Agreement). For Confidential Information that does not constitute a “trade secret” under applicable Law, these confidentiality obligations will expire three (3) years after the termination or expiration of this Agreement. For Confidential Information that constitutes a “trade secret” under applicable Law, these confidentiality obligations will continue until such information ceases to constitute a “trade secret” under such applicable Law. The Receiving Party will be responsible for any breach of this section by its employees, representatives, and agents and any third party to whom it discloses Confidential Information in accordance with this section. Upon the request of a Disclosing Party, the Receiving Party shall deliver to the Disclosing Party or destroy all copies of the Disclosing Party’s Confidential Information. The Receiving Party agrees to certify in writing to the Disclosing Party that it and each of its Affiliates has performed the foregoing.
Exclusions. For purposes hereof, the term Confidential Information will not include any information that the Receiving Party can establish by convincing written evidence: (i) was independently developed by the Receiving Party without use of or reference to any Confidential Information belonging to the Disclosing Party; (ii) was acquired by the Receiving Party from a third party having the legal right to furnish the same to the Receiving Party; or (iii) was at the time in question (whether at disclosure or thereafter) generally known by or available to the public (through no fault of the Receiving Party).
Required Disclosures. These confidentiality obligations will not restrict any disclosure required by order of a court or any government agency; provided, that the Receiving Party gives prompt notice to the Disclosing Party of any such order and reasonably cooperates with the Disclosing Party, at the Disclosing Party’s request and expense, to resist such order or to obtain a protective order.
Data Ownership and Privacy.
Ownership. User shall retain exclusive ownership of all rights in and to any and all User Data, in any form, including, but not limited to, User Data that is (a) loaded into the Service by or on behalf of User and/or any Authorized Users, and/or (b) generated by the Service based on such information, data or content (collectively, “User Data”). MentorPro is provided a limited license to the User Data for the sole and exclusive purpose of providing the Service to User in accordance with the terms of this Agreement. The foregoing license permits MentorPro to collect, process, store, generate, and display User Data only to the extent necessary and only as required for MentorPro to comply with its obligations under this Agreement. Any archival tapes containing the User Data shall be used by MentorPro and MentorPro Agents solely for back-up purposes. Without limiting MentorPro’s obligations under this Section 7.4.1, User Data shall be considered to be the Confidential Information of User. MentorPro will not use, sell, rent, transfer, distribute, or otherwise disclose or make available User Data (including User Data that is aggregated and/or anonymized) for MentorPro’s own purposes or for the benefit of any person or entity other than User without User’s prior written consent expressly authorizing the specific use and/or disclosure. MentorPro will not combine the User Data with data or information of MentorPro or any of MentorPro’s other customers.
REPRESENTATIONS AND WARRANTIES; DISCLAIMER OF WARRANTIES; LIMITATION OF LIABILITY.
Warranties: In addition to any other representations and warranties made by MentorPro under this Agreement, MentorPro represents, warrants, and covenants that:
The Services will be performed accurately, on time, in a professional and workmanlike manner, and in accordance with generally accepted industry best practices;
The Services will be performed, and the Service will be provided, in accordance with this Agreement and any applicable Specifications, Related Documentation and other requirements set forth in any Order Form;
MentorPro will re-perform any Services that are not performed in accordance with the requirements of this Agreement, promptly and in a timely manner, at no cost to User;
During the Term of this Agreement and during any Termination Assistance Period (i) the Service will be provided and perform in material conformity with this Agreement and the then-current Specifications and Related Documentation; (ii) MentorPro will comply with all applicable Laws in the performance of its obligations under this Agreement, including, without limitation, all Laws applicable to MentorPro’s processing and use of User Data; and (iii) the Service will not directly or indirectly violate any applicable law, statute, ordinance or regulation (including, without limitation, the laws and regulations governing export control, unfair competition, anti-discrimination or false advertising);
MentorPro will correct any defects or “bugs” in the Service at no charge to User; and
As to any Related Documentation, (i) MentorPro shall provide User with all Related Documentation that is customarily provided with the Service and Services and (ii) the Related Documentation shall be accurate, current and complete.
Re-performance and Repair. In the event of a breach of the representations and warranties in Section 8.1, MentorPro shall correct such breach by furnishing, repairing or replacing the Service and/or re-performing the applicable Service(s) in a prompt and timely manner commensurate with the nature and effect of such breach, but in no event later than thirty (30) days after notification from User, such that the corrected Service and/or re-performed Services comply with such representations and warranties. If the breach is not so corrected, then User may (in its sole discretion) either: (a) extend the time for MentorPro to correct such breach and satisfy the warranty; (b) conditionally accept the non-conforming Service or Services on the condition that MentorPro satisfy the warranty in accordance with a remediation plan provided by MentorPro and approved by User; or (c) receive a full refund of all Fees paid in connection with the Service or the Services at issue. If User selects option (a) but the breach is still not corrected within the extended time, User shall have the same options. Any repaired or replaced Service or re-performed Services shall be subject to the same representations and warranties and warranty period from the date correction is completed.
Additional Covenants. In addition to the representations and warranties specified in Section 12, MentorPro covenants that, during the Term and any Termination Assistance Period:
Neither the Service nor any of the Services, other MentorPro IP, or any other resources or items provided by MentorPro or MentorPro Agents shall infringe upon the IP rights of any third party in the United States or misappropriate any trade secret, confidential information or other proprietary right of a third party in the United States.
No viruses, spyware, malware, worms, trap doors, disabling code or similar items (“Malicious Code”) shall be coded or introduced into the Service, or information technology environment of User or the User Agents by MentorPro or MentorPro Agents or by a third party as a result of a breach by MentorPro of its obligations under this Agreement. MentorPro shall promptly notify User upon discovery of any Malicious Code. In the event Malicious Code is found to have been introduced into or affects the Service or information technology environment of User or the User Agents by MentorPro or MentorPro Agents or by a third party as a result of a breach of its obligations under this Agreement, MentorPro shall notify User and remove such Malicious Code and assist User in reducing the effects of such Malicious Code and, if the Malicious Code causes a loss of operational efficiency or loss of data, MentorPro shall restore such lost data;
The Services and each functionality provided as part of the Services or Service, as applicable, shall be compatible, interoperable and scalable with, and will not diminish the features or functions of, any other Services provided under this Agreement;
MentorPro shall not provide, or use or include in the Service or introduce into the technology environment of User or any User Agent, any software code (including any code included as part of the Service) that requires, as a condition of its use, modification or distribution that such software (or other software incorporated into, derived from or distributed with such software) be (a) disclosed or distributed in source code form, (b) licensed for the purpose of making derivative works, or (c) redistributed at no charge.
8.4 Disclaimer of Warranties
MENTORPRO AND ITS LICENSORS MAKE NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE SERVICE OR ANY CONTENT. MENTORPRO AND ITS LICENSORS DO NOT REPRESENT OR WARRANT THAT (A) THE USE OF THE SERVICE WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA, (B) THE SERVICE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (C) ANY STORED DATA WILL BE ACCURATE OR RELIABLE, (D) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (E) ERRORS OR DEFECTS WILL BE CORRECTED, OR (F) THE SERVICE OR THE SERVER(S) THAT MAKE THE SERVICE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE SERVICE AND ALL CONTENT IS PROVIDED TO YOU STRICTLY ON AN "AS IS" BASIS. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY MENTORPRO AND ITS LICENSORS.
8.5 Internet Delays
MENTORPRO'S SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. MENTORPRO IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
8.6 Limitation of Liability
IN NO EVENT SHALL MENTORPRO’S AGGREGATE LIABILITY EXCEED THE AMOUNTS ACTUALLY PAID BY AND/OR DUE FROM YOU IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. IN NO EVENT SHALL EITHER PARTY AND/OR ITS LICENSORS BE LIABLE TO ANYONE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THIS SERVICE, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE SERVICE, OR FOR ANY CONTENT OBTAINED FROM OR THROUGH THE SERVICE, ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION, REGARDLESS OF CAUSE IN THE CONTENT, EVEN IF THE PARTY FROM WHICH DAMAGES ARE BEING SOUGHT OR SUCH PARTY'S LICENSORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
8.7 Additional Rights
Certain states and/or jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental, consequential or certain other types of damages, so the exclusions set forth above may not apply to you.
8.8 Disclaimer of Warranties as to Use Outside of the United States
MentorPro is a United States-based service. We make no representation that any aspect of the Service is appropriate or available for use outside of the United States or may be used for persons who are not citizens of the United States or residents of other countries. Those who access the Service from other locations are responsible for compliance with applicable local laws. The Service is subject to applicable export laws and restrictions.
You agree not to hold MentorPro liable for the Content, actions, or inactions of you or other Users of the Service or of other third parties. As a condition of access to the Service, you release MentorPro (and its officers, directors, shareholders, agents, subsidiaries, and employees) from claims, demands, losses, liabilities and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with any dispute you have or claim to have with one or more other users of the Service or with other third parties, including whether or not MentorPro becomes involved in any resolution or attempted resolution of the dispute. If you are a California resident, you waive California Civil Code Section 1542, which says: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.” If you are a resident of another jurisdiction, you waive any comparable statute or doctrine.
Termination for Convenience. At any time after the Initial Term, either Party may terminate this Agreement, in whole or part, at any time without cause, by giving the other Party notice of the termination at least ninety (90) days prior to the termination date specified in the notice. In the event that a purported termination for cause by either Party is determined by a competent authority not to qualify as a termination for cause, then such termination by such Party shall be deemed to be a termination for convenience under this Section 9.1.
Default. The occurrence of any one or more of the following events shall constitute an event of default (each an “Event of Default”) under the Agreement:
If either Party defaults in the performance of any of its obligations under this Agreement, unless such breach is cured within thirty (30) days of written notice from the other Party;
If either Party repeatedly defaults in the performance of any of its obligations under this Agreement and such repeated defaults in the aggregate could reasonably be considered to be material, regardless of whether such repeated defaults were cured;
If either Party breaches any of its obligations under Section 8.1 (Confidentiality) or Section 9.5 (Termination Assistance);
If User fails to pay any amounts due under this Agreement within sixty (60) days after receipt of written notice from MentorPro of such failure to pay;
If either Party (a) files a petition in bankruptcy for liquidation, (b) has an involuntary petition in bankruptcy filed against it which is not challenged within ten (10) days and dismissed within thirty (30) days, (c) becomes insolvent, (d) makes a general assignment for the benefit of creditors, (e) is unable to pay its debts as they mature, (f) has a receiver appointed for its assets, (g) has any significant portion of its assets attached, (h) receives a “going concern” explanation or qualification from its external auditor or (i) otherwise ceases to function as a going concern or to conduct its operations in the normal course of business (each a “Bankruptcy Event”);
If either Party assigns this Agreement or delegates any duty imposed by it without complying with Section 11.1; or
If either Party is prevented from performing any part of its obligations hereunder due to a Force Majeure Event and such non-performance continues or is expected to continue for a period equal to or greater than fifteen (15) days.
Remedies. Upon the occurrence of any Event of Default, then, in addition to any other rights or remedies, the non-defaulting Party may have under this Agreement or any applicable Law, the non-defaulting Party may terminate this Agreement (in whole or in part) immediately upon written notice to the other Party (effective on the date stated on such notice).
Effect of Termination. Upon any termination or expiration of this Agreement, subject to Section 9.5: (i) User shall immediately cease any and all commercial use of and access to the Service, (ii) MentorPro shall immediately cease any and all use of and access to the User Data, (iii) User shall be liable to MentorPro for all Fees and Service Fees accruing through and including the effective date of termination, and (iv) all rights and licenses of MentorPro to the User Data hereunder shall immediately terminate. Within sixty (60) days following termination or expiration of this Agreement, User shall pay to MentorPro any Fees due and payable for the Service and any Services that were properly performed prior to the effective date of such termination or expiration, and MentorPro shall refund to User the unused portion of any pre-paid Fees, prorated as necessary. Termination shall be in addition to, and not in lieu of, any other remedies available to the terminating Party.
Termination Assistance. As requested by User prior to or upon termination or expiration of this Agreement, and for a period requested by User which may not exceed six (6) months after the termination or expiration of the Agreement (the “Termination Assistance Period”), MentorPro shall provide to User and its Affiliates such assistance as may be required to transition from MentorPro to an alternative service provider without interference with, interruption to or degradation of the Service and Services provided by MentorPro or the business, operations or systems of User or its Affiliates including the following: (i) continued provision of the Service and Services; (ii) any specific termination assistance required by mutual written agreement of the Parties; (iii) continued provision of the Support Services; and (iv) such additional services as are reasonably requested by User (the “Termination Assistance Services”). MentorPro shall provide the Termination Assistance Services in accordance with this paragraph without regard to the reason for a termination of this Agreement. The Term shall not be deemed to have expired or terminated until the Termination Assistance Services are completed. The Termination Assistance Services shall be invoiced monthly to User at the rates set forth in the Agreement for monthly subscription and Services Fees and shall be paid by User on a month-to-month basis; provided, that if the obligations described in clause (iv) of the definition of Termination Assistance Services cannot be performed by MentorPro with its then-current personnel and resources, then MentorPro shall notify User and User may authorize MentorPro to perform such additional services and to charge the personnel rates mutually agreed upon by the Parties for any activities that cannot be performed by the then-current personnel and resources.
Force Majeure Events. Neither Party will be liable for any failure in performance hereunder to the extent that such performance is prevented, delayed, or obstructed by acts of any federal, state, or local governmental authority; fires, floods, or other natural disasters; terrorism, riot, or acts of war; or severe weather conditions (each a “Force Majeure Event”) and the impacted delivery and performance dates will be extended by the period of the Force Majeure Event; provided, that the Party prevented from performing its obligations under this Agreement (the “Affected Party”): (a) has promptly notified the other Party upon becoming aware that any Force Majeure Event has occurred or is likely to occur, (b) has used commercially reasonable efforts to implement a Workaround and to minimize any delay in or interference with the performance of its obligations under this Agreement, and (c) did not cause or contribute to the cause of the Force Majeure Event. If a Force Majeure Event prevents MentorPro from performing any portion of its obligations under this Agreement, then User shall be relieved of the obligation to pay MentorPro any Fees for any such affected obligations.
Allocation of Resources. Whenever a Force Majeure Event causes MentorPro to allocate limited resources between or among MentorPro’s customers, MentorPro shall not provide any other customers with priority over User with respect to the allocation of such resources.
Assignment. Neither Party shall assign this Agreement, in whole or part, without the prior written consent of the other Party. The consent of any Party to any assignment of this Agreement shall not constitute such Party’s consent to further assignment. This Agreement shall be binding on the Parties and their respective successors and permitted assigns. Any assignment in contravention of this Section shall be void.
Notices. In any case where any notice, approval, agreement or other communication is required or permitted to be given under this Agreement, such notice, approval, agreement or communication shall be in writing and deemed to have been duly given and delivered: (a) if delivered in person, on the date of such delivery; (b) if sent by overnight express or registered or certified mail (with return receipt requested), on the date of receipt of such mail; or (c) if sent by electronic mail, upon the Party’s date of sending (supplemented by proof of same from the sending Party), provided, that notice is also sent on the same day by one of the methods set forth in clause (a) or (b) above. Such notice or other communication shall be sent to the following address(es) (or such other address(es) as a Party may designate from time to time in writing):
If to User:
If to MentorPro:
As set forth in the Order
297 Route 72 West, Suite 35
Manahawkin, New Jersey08050
Attn: Managing Member
Counterparts. This Agreement may be executed simultaneously in two or more identical counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same instrument. It shall not be necessary that any single counterpart hereto be executed by all parties hereto, so long as at least one counterpart is executed by each party. In the event that any signature is delivered by facsimile transmission or by e-mail delivery of a ".pdf" format data file or an electronic service such as DocuSign.com, such signature shall create a valid and binding obligation of the party executing (or on whose behalf such signature is executed) with the same force and effect as if such facsimile or ".pdf" signature page or digital execution were an original thereof. The parties further agree to execute any and all proper instruments and documents which may be necessary to effectuate the intentions and purposes of this Agreement.
Relationship. The Parties intend to create an independent contractor relationship and nothing contained in this Agreement shall be construed to make either User or MentorPro partners, joint venturers, principals, agents or employees of the other. No officer, director, employee, Affiliate or MentorPro Agent retained by MentorPro to perform work on User’s behalf under this Agreement shall be deemed to be an employee of User or a User Agent. Neither Party shall have any right, power or authority, express or implied, to bind the other.
Severability. To the fullest extent permitted by Law, if any provision of this Agreement, or the application thereof to any individual, entity, or circumstance, is held by a court of competent jurisdiction to be invalid or unenforceable, then (a) such provision shall be considered removed from the Agreement and (b) the remainder of this Agreement and the application of such provision to other persons or circumstances shall not be affected by such invalidity or unenforceability.
Waivers. No delay or omission by either Party to exercise any right or power it has under this Agreement shall impair or be construed as a waiver of such right or power. A waiver by any Party of any breach or covenant shall not be construed to be a waiver of any succeeding breach or any other covenant. All waivers must be signed by the Party waiving its rights.
Remedies Cumulative. No right or remedy herein conferred upon or reserved to either Party is intended to be exclusive of any other right or remedy, and each and every right and remedy shall be cumulative and in addition to any other right or remedy under this Agreement, or under applicable law, whether now or hereafter existing. The election by a Party of any remedy provided for in this Agreement or otherwise available to such Party shall not preclude such Party from pursuing any other remedies available to such Party at law, in equity, by contract or otherwise.
Entire Agreement. This Agreement, the General Terms, the Order Form, and any other agreement or document expressly referenced in this Agreement represent the entire agreement between the Parties with respect to its subject matter and supersedes all prior discussions and agreements between the Parties with respect to such subject matter.
Amendments. No amendment to, or change, waiver or discharge of, any provision of this Agreement shall be valid unless in writing and signed by the authorized representatives of both Parties.
Headings. The headings and subheadings are for the convenience of the Parties only and no special meaning will attach to the headings.
Arbitration; Dispute Resolution. In the event of any action, claim, proceeding, controversy or other dispute or disagreement (a “Dispute”) between you and MentorPro (including any dispute over the validity, enforceability, or scope of this dispute resolution provision), other than with respect to claims for injunctive relief, the Dispute will be resolved by binding arbitration pursuant to the rules of the American Arbitration Association Commercial Arbitration Rules. The place of the arbitration shall be in Trenton, New Jersey. In the event that there is any Dispute between you and MentorPro that is determined not to be subject to arbitration pursuant to the preceding sentence, you agree to submit in that event to the exclusive jurisdiction and venue of the courts of the State of New Jersey sitting in Ocean County or the United States District Court for the District of New Jersey (if it has jurisdiction). You agree that this Agreement and the relationship between you and MentorPro shall be governed by the Federal Arbitration Act and the laws of the State of New Jersey without regard to conflict of law principles or the United Nations Convention on the International Sale of Goods. Notwithstanding this, either party shall still be allowed to apply for injunctive or other equitable relief to protect or enforce that party’s Intellectual Property Rights in any court of competent jurisdiction where the other party resides or has its principal place of business.
Class Action Waiver. Any proceedings to resolve or litigate any Dispute in any forum will be conducted solely on an individual basis. Class arbitrations, class actions, private attorney general actions, consolidation of your Dispute with other arbitrations, or any other proceeding in which either party acts or proposes to act in a representative capacity or as a private attorney general are not permitted and are waived by you, and an arbitrator will have no jurisdiction to hear such claims. If a court or arbitrator finds that the class action waiver in this section is unenforceable as to all or some parts of a Dispute, then the class action waiver will not apply to those parts. Instead, those parts will be severed and proceed in a court of law, with the remaining parts proceeding in arbitration. If any other provision of this Dispute resolution section is found to be illegal or unenforceable, that provision will be severed with the remainder of this section remaining in full force and effect.
Governing Law; Venue. This Agreement will be deemed made in and governed by the laws of the State of New Jersey, U.S.A., without application of its principles of conflicts of law, except that if User is an agency or instrumentality of the Government of the United Staes, this Agreement will be deemed made in and governed by the federal laws of the United State of America applicable to contracts with agencies and instrumentalities of the United States Government, without application of its principles regarding conflicts of law. Each Party irrevocably agrees that any legal action, suit, or other proceeding brought by it in any way arising out of this Agreement must be brought solely and exclusively in the courts of the State of New Jersey sitting in Ocean County or the United States District Court for the Southern District of New Jersey (if it has jurisdiction). EACH PARTY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY CLAIM OR DISPUTE ARISING FROM OR RELATING TO THIS AGREEMENT.
Negotiated Terms. The Parties agree that the terms and conditions of this Agreement are the result of negotiations between the Parties and that this Agreement shall not be construed in favor of or against either Party by reason of the extent to which such Party or its professional advisors participated in the preparation of this Agreement.
Time. Time of delivery and performance is of the essence in this Agreement.
Incorporation and References. In this Agreement, except where otherwise provided or where the context expressly otherwise requires: (i) the division of this Agreement into separate sections and exhibits, and the insertion of headings and a table of contents shall be for convenience of reference only and shall not affect the construction or interpretation of this Agreement; and (ii) the words “include,” “includes” and “including” shall be deemed to be followed by the phrase “without limitation” and shall not be construed as creating an exhaustive list of possibilities.
Survival. The terms contained in Section 1 (Background), Section 5 (Intellectual Property), Section 6 (Fees and Invoicing), Section 7 (Confidentiality), Section 8 (Representations and Warranties), Section 9.4 (Effect of Termination), Section 9.5 (Termination Assistance), and Section 11 (Miscellaneous), as well as such other provisions which, by the nature of their terms, are intended to survive, shall survive termination or expiration of this Agreement.
“Affiliate” shall mean, as to any entity, any other entity that, directly or indirectly, Controls, is Controlled by or is under common Control with such entity.
“Control” shall mean, with respect to any entity, the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such entity, whether through the ownership of voting securities (or other ownership interest), by contract or otherwise.
“Fees” shall mean the amounts payable by User to MentorPro pursuant to this Agreement.
“Governmental Authority” shall mean any federal, state, municipal, local, territorial, or other governmental department, regulatory authority, judicial or administrative body, whether domestic, foreign or international.
“Intellectual Property” or “IP” shall mean any patents, copyrights, trademarks, trade secrets, and other proprietary or intellectual property rights.
“Law” shall mean any declaration, decree, directive, legislative enactment, order, ordinance, regulation, rule or other binding restriction of or by any Governmental Authority.
“User Agents” shall mean the Affiliates, employees, contractors, MentorPros or representatives of User, other than MentorPro and MentorPro Agents.
“User Data” means all data and information: (a) submitted to MentorPro or MentorPro Agents by or on behalf of User or any User Agents, (b) obtained, developed or produced by MentorPro or MentorPro Agents in connection with this Agreement, or (c) to which MentorPro or MentorPro Agents have access in connection with the provision of the Services and/or the Service.
“User IP” means the IP that is (a) owned, acquired or developed by or on behalf of User or the User Agents or (b) licensed, leased or otherwise obtained by User or the User Agents from a third party (excluding, for clarity, IP licensed, leased or otherwise obtained from MentorPro or MentorPro Agents pursuant to this Agreement) and used in connection with the provision of the Services.
“Related Documentation” shall mean all materials, documentation, Specifications, technical manuals, user manuals, flow diagrams, file descriptions and other written information that describes the function and use of the Service and/or the Services, as well as any written proposals, program manuals and marketing materials relating to the Service and/or the Services and provided by MentorPro to User.
“Specifications” means the functional and technical specifications for any Services or the Service set forth in (a) this Agreement, (b) an Order Form signed by both Parties, and (c) the applicable Related Documentation.
“MentorPro Agents” shall mean the employees, agents, subcontractors and representatives of MentorPro.
“MentorPro IP” shall mean the IP used in connection with the Service and Services that is (a) owned, acquired or developed by MentorPro prior to performance, or outside the scope, of the Services or provision of the Service; or (b) licensed, leased or otherwise obtained by MentorPro from a third party (other than User or User Agents) and any modifications or derivations of works of the foregoing that are created by MentorPro or MentorPro Agents. For the avoidance of doubt, “Service” shall be considered “MentorPro IP” hereunder.
“Service” means the Software as a Service solution specified in this Agreement and any modifications or derivations of the foregoing that are created or obtained by MentorPro and MentorPro Agents and which is licensed to and provided for Use by User pursuant to this Agreement, including, for clarity, any releases of such Service.
“Systems” means any software, machines, or hardware used by MentorPro to provide the Service and/or the Services.
“Use” means the right to load, access, execute, store, transmit, display, copy, maintain, modify, enhance, create derivative works of, make, and have made.