Last Modified: May 3, 2022
THESE TERMS OF USE (these “Terms of Use”) are entered into by and between Ampersand Professionals, Inc., a Delaware corporation (the “Company”), and you (the “User”) (Company and User each a “Party” and collectively, the “Parties”) as of the date user has submitted their agreement to the Terms of Service (“Effective Date”). All capitalized terms used in these Terms of Use have the meanings stated in the Professional Services Agreement, unless stated otherwise.
STATEMENT OF PURPOSE
A. Company is in the business of supporting traditional higher education career services departments utilizing technology, professional skills development, mentorship, and access to internship opportunities (collectively, “Company’s Business”); and
B. User desires to contract with Company for Company to perform the Services (as defined in the Services Agreement) in support of User new hires (“Professionals”) and Company desires to accept such engagement, pursuant to the terms and conditions of these Terms of Use and the Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and agreements herein contained, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
AGREEMENT
1. RELATIONSHIP OF THE PARTIES
1.1 Independent Contractor
. Both User and Company agree that the relationship created by this Agreement is that of an independent contractor of User, and this Agreement shall not be construed to create any association, partnership, joint venture, employment, or agency relationship between Company and User for any purpose. Company has no authority (and shall not hold itself out as having authority) to bind User, and Company shall not make any agreements or representations on User’s behalf without User’s prior written consent. Without limiting the above, the Parties are each individually responsible for payment of any taxes, including, without limitation, all Federal, State, and local personal and business income taxes, sales and use taxes, other business taxes, and licensing fees arising out of the Parties’ performance of the terms and conditions of this Agreement.
2. DATA AND PRIVACY
2.1 Definitions
. For the purposes of this Agreement, and without limitation, this Section 4, the Parties hereby agree and consent to the following definitions:
“User Data” means all information processed or stored through the Platform by User or on User’s behalf, or provided by User to Company in connection with Company’s performance of the Services. User Data does not include payment records, credit cards, or other information User uses to pay Company, or other information and records related to User’s account.
“De-Identified Data” refers to User Data or Professionals Data with the following removed: information that identifies or could reasonably be used to identify an individual person, a household, a Professional, or User.
“Professionals Data” means all information processed or stored through the Platform by each Professional or provided by User on behalf of a Professional.
2.2 Use of Data
. Company shall exercise reasonable efforts to prevent unauthorized disclosure of User Data or Professionals Data. Except as required for Company to perform the Services or as permitted under Section 3.3 below, Company will not give User Data or Professionals Data to any third party, except Company’s employees, contractors, or agents that have a need for such access to facilitate the Platform or in furtherance of Company’s performance of the Services.
2.3 Privacy Policy
. User acknowledges and agrees to be bound by Company’s privacy policy located at https://www.ampersandpro.com/privacy-policy, and User recognizes and agrees that nothing in this Agreement restricts Company’s right to alter such privacy policy.
2.4 De-Identified Data
. Notwithstanding the provisions above of this Article 2, Company may use, reproduce, sell, publicize, or otherwise exploit De-Identified Data (as defined below) in any way, in its sole discretion, including without limitation aggregated with data from other Users.
2.5 Required Disclosure
. Notwithstanding the provisions above of this Article 2, Company may disclose User Data or Professionals Data as required by applicable law or by proper legal or governmental authority. Company shall give User prompt notice of any such legal or governmental demand and reasonably cooperate with User in any effort to seek a protective order or otherwise to contest such required disclosure, at User’s expense.
2.6 Risk of Exposure
. User recognizes and agrees that hosting data online involves risks of unauthorized disclosure or exposure and that, in accessing and using the Platform, User assumes such risks. Company offers no representation, warranty, or guarantee that User Data or Professionals Data will not be exposed or disclosed through errors or the actions of third parties.
2.7 Data Accuracy
. Company shall have no responsibility or liability for the accuracy of data uploaded to the Platform by User or Professionals, including without limitation User Data, Professionals Data, and any other data uploaded by User or Professionals.
3. INTELLECTUAL PROPERTY OWNERSHIP
3.1 Definitions
. For purposes of this Agreement, and, without limitation, this Section 5, the Parties hereby agree and consent to the following definitions:
“Background IP” means all Intellectual Property developed, acquired, owned, or licensed by a Party (a) before Effective Date; or (b) independent of and exclusive from the Services or this Agreement, and (c) improvements, modifications, or enhancements to either (a) or (b) made by or on behalf of such Party.
“Developed IP” means any Intellectual Property, including, without limitation, the deliverables and Work Product (as defined below), that is created or developed and that results from, or is discovered by, Company or User in connection with the entering into or performance of this Agreement and is incorporated into any deliverables or otherwise described in any Schedule.
“Data” means any Intellectual Property, including, without limitation, any data or statistics generated in connection with the performance of this Agreement or resulting from performance of this Agreement. This may consist of feedback from internship supervisors, success rates, or information pertaining to the hiring of Professionals, but is not limited to these categories of information.
“Intellectual Property Right” means all patent rights, copyrights, trademark rights, rights in trade secret (if any), design rights, database rights, domain name rights, moral rights, and any other intellectual property rights (whether registered or unregistered) throughout the world.
3.2 Intellectual Property Ownership
. Except as otherwise set forth herein, the entire right, title, and interest in and to both: a) Company’s Background IP, and b) Developed IP related to the Services created by and in the course of the Parties’ performance of this Agreement (the foregoing collectively defined as the “Work Product”), are the exclusive property of Company. Certain Background IP owned by the Company, including the E-Learning Platform, Professional curriculum, and marketing materials shall be subject to, and provided by the Company to the User, pursuant to the Company License. Conditioned upon both the execution of this Agreement, and payment of the Fee by User to Company, pursuant to the terms and conditions of this Agreement, Company will begin to deliver physical and/or electronic (if and as applicable) possession of deliverables under this Agreement to User.
3.3 Data and Statistics from Platform
. Data generated from the Parties’ performance of this Agreement will be owned entirely by User. Upon completion of this Agreement and term, User hereby grants to Company and its successors and assignees and affiliates a perpetual, irrevocable, non-exclusive, royalty-free, sublicensable, transferrable, fully-paid, worldwide license to User Data and Professionals Data to make, have made, use, sell, distribute, display, reproduce, offer for sale, import, export any component of, and otherwise dispose of the Data (the “User License”).
4. TERM; TERMINATION; SURVIVAL
4.1 Term
. The initial term of this Agreement shall commence upon the Effective Date hereof and shall continue for one (1) year (the “Initial Term”). Upon ten (10) days prior to the end of the Initial Term, unless otherwise terminated as provided below, this Agreement shall automatically renew each ninety (90) days (each a “Renewal Term”) (Initial Term and Renewal Term, collectively the “Term”). At any time should User wish to add additional users into the Platform, or additional services, they can do so with 10 days written notice.
4.2 Termination
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a. For Convenience. Either Party may terminate and choose not to renew this Agreement for any or no reason, for any Renewal Term, upon thirty (30) days’ advance written notice to the other Party, prior to the start date of a Renewal Term.
b. For Cause. Either Party may terminate this Agreement effective immediately upon written notice to the other Party (the “Defaulting Party”), if such Defaulting Party materially breaches this Agreement, and such breach is incapable of cure, or with respect to a material breach capable of cure, the Defaulting Party does not cure such breach within five (5) days after receipt of written notice of such breach, which failure to make a payment of Compensation shall be a material breach.
4.3 Effects of Termination
. Upon expiration or termination of this Agreement for any or no reason:
a. Notice of Termination. Any such notice of termination shall be addressed to the Party at the address shown below or such other address as either Party may notify the other of and will be deemed given upon delivery if personally delivered, or forty-eight (48) hours after deposited in the United States mail, postage prepaid, registered or certified mail, return receipt requested.
b. Confidential Information and Materials. Upon termination of this Agreement, each Party shall (i) return to the other Party all documents and tangible materials (and any copies) containing, reflecting, incorporating, or based on the other Party’s Confidential Information (as defined below), (ii) permanently delete all of the other Party’s Confidential Information from its computer systems, and (iii) certify in writing to the other Party that it has complied with the requirements of this clause; provided, however, that Company may retain copies of any Confidential Information of User incorporated in the Work Product or Data to the extent necessary to allow it to make full use of the license of such information.
4.4 Survival
. Upon termination or expiration of the Term of this Agreement, all rights and duties of the Parties toward each other will cease except the provisions in Section 2, 3, 4.3, 4.4, 5, 6, 7, 8, and 9 shall survive any termination or expiration of this Agreement.
5. CONFIDENTIAL INFORMATION
5.1 Definition
. “Confidential Information” means, with respect to a Party, that Party’s Background IP, Developed IP, and any proprietary information, technical data, trade secrets, or know-how of such Party, including, but not limited to, research, business plans or models, product plans, products, services, computer software and code, developments, inventions, processes, formulas, technology, designs, drawings, engineering, hardware configuration information, User lists and Users, markets, finances, processes, or other business information disclosed by a Party (the “Disclosing Party”) either directly or indirectly in writing, orally, or by drawings or inspection of facilities, parts, or equipment to the other Party ( the “Receiving Party”). Confidential Information is deemed not to include any of the forgoing that (a) was known to Receiving Party before receipt from the Disclosing Party; (b) is or becomes publicly available through no fault of the Receiving Party; (c) is rightfully received by the Receiving Party from a third party without a duty of confidentiality; (d) is disclosed by the Disclosing Party to a third party without imposing a duty of confidentiality on the third party; or (e) is independently developed by the Receiving Party without a breach of this Agreement.
5.2 Non-Disclosure; Destroy; Disclosure Pursuant to Legal Process
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a. Subject to the terms of Section 5.2(d) below, Receiving Party agrees that it shall not, during the Term and for a period of three (3) years after the expiration or termination of this Agreement: (i) disclose the Confidential Information for any purpose whatsoever other than the performance of the terms and conditions of this Agreement, or (ii) disclose the Confidential Information to any third party, except as otherwise directed in writing by the Disclosing Party. Receiving Party shall use the same degree of care that it uses to protect its own Confidential Information to prevent any unauthorized use or disclosure of the Receiving Party’s Confidential Information of Disclosing Party, but no less than a reasonable degree of care.
b. Upon delivery of written request by Disclosing Party, except to the extent Disclosing Party’s Confidential Information cannot be returned or destroyed (or deleted, in the case of information stored in computer hard drives or cloud solutions) or to the extent prohibited by applicable law, Receiving Party will promptly return or destroy or delete all Confidential Information and all copies thereof. Any destruction of materials shall be confirmed by Receiving Party by means of a certificate executed by a duly authorized representative of Receiving Party. Any Confidential Information that cannot be returned or destroyed or deleted shall remain confidential, subject to the terms and conditions of this Agreement.
c. Should Receiving Party become legally compelled to disclose any portion of the Confidential Information in connection with a lawsuit or similar proceeding, Receiving Party shall give Disclosing Party prompt notice of that fact, including in its notice the legal basis for the required disclosure and the nature of the Confidential Information that must be disclosed. Receiving Party shall cooperate fully with Disclosing Party in obtaining a protective order or other appropriate protection relating to the disclosure and subsequent use of the Confidential Information. Receiving Party shall disclose only that portion of the Confidential Information that is legally required to be disclosed.
d. To the extent User is deemed a Receiving Party of any Confidential Information of Company, User is not restricted during or after the Term hereof from using, disclosing, reproducing, or publishing such Confidential Information in the development, use, financing, promotion, or sale of the Work Product or other deliverables derived from or using such Confidential Information of and received from Company, provided User has received prior written approval from Company specifying each such development, use, financing, promotion, or sale.
6. USER RESPONSIBILITIES AND RESTRICTIONS
6.1 Acceptable Use
. User shall not: (a) allow third parties to exploit the Platform, except Professionals as specifically authorized by this Agreement; (b) provide Platform passwords or other log-in information to any third party, except Professionals as specifically authorized by this Agreement; (c) share non-public Platform features or content with any third party, except Professionals as specifically authorized by this Agreement; (d) access the Platform in order to build a competitive product or service, to build a product using similar ideas, features, functions or graphics, or to copy any ideas, features, functions or graphics of the Platform; or (e) engage in web scraping or data scraping on or related to the Platform, including without limitation collection of information through any software that simulates human activity or any bot or web crawler. In the event that it suspects any breach of the requirements of this Section 6.1, including without limitation by Professionals, Company may suspend User’s access to the Platform without advanced notice, in addition to such other remedies as Company may have. Nothing in this Agreement shall require that Company take any action against User or any Professional or other third party for violating this Section 6.1 or this Agreement, but Company is free to take any such action it sees fit.
6.2 Unauthorized Access
. User shall take reasonable steps to prevent unauthorized access to the Platform, including without limitation by protecting its passwords and other log-in information. User shall notify Company immediately of any known or suspected unauthorized use of the Platform or breach of its security and shall use best efforts to stop said breach.
6.3 Compliance with Laws
. In its use of the Platform, User shall, and shall ensure all Professionals shall, comply with all applicable laws, including, without limitation applicable privacy or security laws.
6.4 Professionals; Access
. User is responsible and liable for: (a) use of the Platform by Professionals, including, without limitation, unauthorized Professionals conduct and any Professionals conduct that would violate the requirements of this Agreement applicable to User; and (b) any use of the Platform through User’s account, whether authorized or unauthorized.
7. DISCLAIMER; LIMITATION OF LIABILITY
7.1 Warranty Disclaimers
. USER HEREBY ACCEPTS THE PLATFORM “AS IS,” WITH NO REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OR ANY IMPLIED WARRANTY ARISING FROM STATUTE, COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING: (a) COMPANY HAS NO OBLIGATION TO INDEMNIFY OR DEFEND USER OR PROFESSIONALS AGAINST CLAIMS RELATED TO INFRINGEMENT OF INTELLECTUAL PROPERTY; (b) COMPANY DOES NOT REPRESENT OR WARRANT THAT THE PLATFORM WILL PERFORM WITHOUT INTERRUPTION OR ERROR; AND (c) COMPANY DOES NOT REPRESENT OR WARRANT THAT THE PLATFORM IS SECURE FROM HACKING OR OTHER UNAUTHORIZED INTRUSION OR THAT USER DATA OR PROFESSIONALS DATA WILL REMAIN PRIVATE OR SECURE.
7.2 Limitation of Liability
. COMPANY, ITS AGENTS AND REPRESENTATIVES HEREBY DISCLAIM ANY AND ALL LIABILITY FOR SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR INDIRECT DAMAGES, OR OTHER INCIDENTS OUTSIDE OF COMPANY’S CONTROL INCLUDING, WITHOUT LIMITATION, ACCIDENT OR SUDDEN TRAGIC CIRCUMSTANCE (INCLUDING LOSS OF USE AND PROFITS) ARISING OUT OF THIS AGREEMENT OR WITH RESPECT TO THE SERVICES OR THE PLATFORM, HOWEVER CAUSED, WHETHER FOR BREACH OF CONTRACT, NEGLIGENCE, OR OTHERWISE, EVEN IF THE BREACHING PARTY HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL THE COMPANY’S LIABILITY TO USER FOR MONETARY DAMAGES EXCEED AGGREGATE AMOUNT OF FEES ACTUALLY RECEIVED BY COMPANY AT THE TIME OF SAID BREACH. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
8. INDEMNIFICATION
8.1 User Indemnification
. Company shall defend, indemnify, and hold User harmless from and against any claim, loss, costs, suits, allegations, fines, or damages, including, but not limited to, reasonable attorneys’ fees, arising out of or resulting from (i) any action by a third party against User that is based upon any claim that any Services performed under this Agreement, or the result thereof, infringe a patent, copyright, or other proprietary right or violate a trade secret, (ii) any action by a third party that is based upon (A) any negligent, reckless, or intentionally wrongful act or omission of Company or Company’s employees or agents, (B) a determination by a court or agency that Company, or any of its employees, is not an independent contractor under this Agreement, or (iii) any breach by Company of any of the terms, conditions, covenants, representations, or warranties contained in this Agreement.
8.2 Company Indemnification
. User shall defend, indemnify, and hold Company harmless from and against any claim, loss, costs, suits, allegations, fines, or damages, including, but not limited to, reasonable attorneys’ fees, arising out of or resulting from (i) any action by a third party based upon any negligent, reckless, or intentionally wrongful act or omission of User or User’s assistants, employees, or agents; or (ii) any breach or alleged breach by User or User’s contractors, employees or agents of any of the terms, covenants, representations, or warranties contained in this Agreement.
9. MISCELLANEOUS
9.1 Disputes; Venue; Arbitration
. Except as provided in Section 9.3 (Equitable Relief) below, Company and User agree that any dispute or controversy arising out of, relating to, or in connection with the interpretation, validity, construction, performance, breach, or termination of this Agreement will be first settled through good faith negotiation. If the dispute cannot be settled through negotiation within fifteen (15) days of the commencement of such negotiations, the Parties agree that the dispute shall be exclusively resolved by arbitration in Harris County, State of Texas by at three (3) neutral arbitrators. The arbitration shall be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures and in accordance with the Expedited Procedures in those Rules, if applicable, (“JAMS Rules”) and subject to the Federal Arbitration Act, 9 U.S.C. Section 1, et. seq. A copy of the JAMS Rules may be found at https://www.jamsadr.com/rules-comprehensive-arbitration/ or by searching the internet for “JAMS Comprehensive Arbitration Rules”. Judgment on the arbiters’ award may be entered in any court having jurisdiction. The Parties hereby agree to waive any right to trial by jury. Arbitration shall be the sole, exclusive, and final remedy for any dispute between the Parties.
9.2 Governing Law
. The terms, conditions, and provisions of this Agreement and any dispute arising hereunder shall be governed by and under the laws of the State of Texas, without regard to its conflict of law principles.
9.3 Equitable Relief
. The Parties may, without limiting any other remedies, rights, or recourse under the laws of the State of Texas, apply and pray to any court of competent jurisdiction in Harris County, Texas, United State of America, for a temporary restraining order, preliminary injunction, or other interim or conservatory relief, as necessary, without posting any bond.
9.4 Entire Agreement
. These Terms of Use, the Services Agreement, along with any Schedules agreed to by the Parties, and other documents specifically incorporated herein by reference, is the entire agreement of the Parties and supersedes any prior agreements between them, whether written or oral, with respect to the subject matter hereof. The Parties are not bound by any oral or written expression or representation by either, or by any agent of either Party purporting to act for or on behalf of another, or by a commitment or arrangement not otherwise specified in this Agreement. In the event of any conflict between the terms of this Agreement and any Schedule hereto, the terms of this Agreement shall control and govern.
9.5 Amendments and Waivers
. Any term or provision of this Agreement may be amended, and the observance of any term waived, only by a writing signed by the Party to be bound. No waiver of any default of the terms or conditions of this Agreement will be deemed to be a waiver of any other default or any subsequent default of any terms or conditions of this Agreement but will apply solely to the instance to which such waiver is directed.
9.6 Notice
. Any notices or correspondence between the Parties shall be delivered to such address as may be provided by each Party from time to time.
9.7 Severability
. If a court of competent jurisdiction holds any provision of this Agreement, or its application to any person, place, or circumstance, to be invalid, unenforceable, or void, such provision shall be enforced to the greatest extent permitted by law, and the remainder of this Agreement and such provision as applied to other persons, places, and circumstances, shall remain in full force and effect.
9.8 Attorneys’ Fees
. In any legal action or other negotiation or proceeding brought to enforce the terms of this Agreement, the prevailing Party shall be entitled to recover its reasonable attorneys’ fees, fees, and costs. The non-prevailing Party in any legal action brought pursuant to, or arising out of, this Agreement, shall pay to prevailing Party all costs and fees incurred by such Party in such action, including, without limitation, all reasonable attorneys’ fees and out-of-pocket expenses and all other reasonable costs of enforcement of the terms and conditions hereof. As used herein, the “prevailing Party” means the Party in whose favor a final judgment, order, or decree is rendered or entered.
9.9 Counterparts; Headings
. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original, but all of which shall constitute one (1) and the same instrument. The headings provided for herein are for convenience and reference only and shall not be deemed a substantive part of this Agreement.
9.10 Recitals
. The recitals contained in this Agreement above are incorporated into and made an integral and substantive part of this Agreement.
9.11 Force Majeure
. The Parties shall not be liable or responsible, nor be deemed to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement, other than failures to make any payments owed under this Agreement, when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of the Parties, including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion, or hostilities (whether war is declared or not), terrorist threats or acts, riots, or other civil unrest, national emergency, revolution, insurrection, epidemic, lock-outs, strikes, or other labor disputes (whether or not relating to either Party’s workforce), or restraints or delays affecting carriers, or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown, or power outage, provided, if the event in question continues for a continuous period in excess of one hundred eighty (180) days, each Party shall be entitled to give notice in writing to the other Party to terminate this Agreement.
9.12 Assignment; Binding Effect
. Neither Party shall transfer or assign any of its rights or delegate any of its obligations hereunder, in whole or in part, whether voluntarily or by operation of law, without the other Party’s prior written consent. Any purported transfer, assignment, or delegation by a Party without such prior written consent shall be null and void ab initio and of no force or effect and shall cause the termination this Agreement immediately. Subject to the foregoing, this Agreement shall inure to the benefit of the Parties and their successors, transferees, and assignees.
QUESTIONS. Please contact Ampersand with any questions regarding these Terms of Service by emailing at admin@ampersandpro.com.
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