THIS IS A LEGAL AGREEMENT BETWEEN SUBSCRIBER AND K. P. Correll & Associates, LLC (KPC). BY ACCESSING AND/OR USING THE NUM.WIKI SERVICE, SUBSCRIBER IS AGREEING, ON BEHALF OF AN INDIVIDUAL AND/OR A LEGAL ENTITY, TO BE BOUND BY THE TERMS OF THIS AGREEMENT. SUBSCRIBER WARRANTS THAT SUBSCRIBER POSSESSES THE NECESSARY AUTHORITY TO BIND AN INDIVIDUAL AND/OR A LEGAL ENTITY TO THE TERMS OF THIS AGREEMENT.
These terms govern your use of our Num.Wiki website and our Pat. Num.Wiki trademarks (collectively, “Services”) By using the Services you agree to these terms. As discussed more in Section 4 below, you retain all rights and ownership you have in your content that you make available through the Services.
1. Terms and Definitions. As used in this Agreement, the following defined terms and definitions shall apply:
1.1. Agreement means this End User Service Agreement and any Services Description or any other documents incorporated herein by reference.
1.2. KPC means the legal entity K. P. Correll & Associates, LLC.
1.3. PAT. and PAT. NUM.WIKI are trademarks wholly owned by KPC
1.4. NUM.WIKI is a virtual marking repository website wholly owned by KPC and when used in conjunction with the KPC owned trademark PAT. NUM.WIKI can meet the virtual marking requirements of 35 U.S.C. 287.
1.5. Subscriber means the legal entity or individual that has subscribed to the Num.Wiki subscription service and has the right to use the Subscription Services subject to the terms of this Agreement.
1.6. Subscriber Content means data that Subscriber or Subscriber’s users upload or enter into Subscriber’s service account for storage and/or public viewing.
1.7. Subscriber Content includes but is not limited to Subscriber’s Article or Product information identifying said Article or Product.
1.8. Effective Date means the date of Subscription Services activation.
1.9. Infringement Claim means: any claim, suit or proceeding brought against a Subscriber based on an allegation that the Subscription Services, as provided by KPC and used by Subscriber in accordance with this Agreement, infringes upon any patent or any copyright or violates any trade secret rights of any third party; or, any claim, suit or proceeding brought against a Subscriber based on (i) Subscriber’s patent, trademark, or copyright infringement or alleged patent, trademark, or copyright infringement; or any other intellectual property infringement including trade dress or trade secrets.
1.10. Order means any subscription order or other ordering document submitted to KPC for the purposes of ordering Services under the terms and conditions of this Agreement.
1.11. Services mean the generally available subscription services provided by KPC via the NUM.WIKI website to Subscribers. KPC may update the Services at any time in its sole discretion.
1.12. Services Description means the specific terms applicable to the Services and that apply to Subscriber’s use of the Services selected by the Subscriber in the Subscription Order, as set forth at Num.Wiki subscription orders and hereby incorporated herein by reference.
1.13. Subscription Fee or Services Fee means the fee for Subscriber’s use of and access to the Services during the Subscription Term.
1.14. Subscription Service begins when KPC confirms Subscriber initial payment. KPC will invoice Subscriber the subscription fee stated at the time of initial subscription and every 91 days thereafter. In the event Subscriber changes to a new subscription tier during the 91 day period KPC shall, on the 91st day after last invoice, invoice the Subscriber the pro-rated fee for the number of days the new subscription was in use since last invoice and the new subscription fee.
1.15 Subscription fees are subject to change—KPC will notify Subscriber Approximately 91 days before any such changes. Subscriber can cancel anytime by contacting KPC. Canceling Subscriber subscription stops the fee charge at the start of Subscriber next billing term, 91st day after last invoice date—Subscriber service will continue through the end of Subscriber current term.
1.16. Subscription Term means the term for the services as subscribed to by Subscriber, as set forth in the Order.
2. Subscriber Rights and Restrictions.
2.1. Subscriber Access. During the Subscription Term of this Agreement, and upon payment of all applicable Subscription Fees, Subscriber may access and use the Services pursuant to and in accordance with the provisions of this Agreement.
2.2 KPC grants to Subscriber a non-exclusive license to use the PAT. NUM.WIKI trademarks on or in association with the Subscriber’s Articles or Products listed on the NUM.WIKI website as well as on packaging, promotional and advertising material associated therewith.
2.3 It is understood and agreed that said license described in section 2.2 shall pertain only to the Articles and/or Products currently or formerly listed on the NUM.WIKI website and does not extend to any other mark, product or service.
2.4. Subscriber may not grant any sublicenses to any third party without the prior express written consent of KPC which may be withheld for any reason.
2.5. Reverse Engineering. Except to the extent permitted by law, Subscriber may not modify, distribute, prepare derivative works of, reverse engineer, reverse assemble, disassemble, decompile or otherwise attempt to decipher any software or methods provided in connection with the Services.
2.6. Subscriber Use. Subscriber shall not access and/or engage in any use of the Services (i) in a manner that abuses or materially disrupts the networks, security systems, Services and/or websites of Num.Wiki (ii) to communicate any message or material that is false, harassing, threatening, indecent, obscene, slanderous, or otherwise unlawful, (iii) in a manner that violates privacy rights; (iv) in a manner that constitutes infringement of the intellectual property or other proprietary rights, (v) fraudulent or illegal purposes; and/or (v) that otherwise violates Num.Wiki policies, applicable laws, ordinances or regulations. Subscribers who are competitors may not use the Services directly or indirectly for competitive benchmarking or other competitive analysis. KPC has no obligation to monitor the Services or Subscriber’s use thereof or to retain the content of any user session. Subscriber is solely responsible for use of the Services by its users and any and all activities that occur under its Subscriber account. Subscriber agrees to indemnify and hold KPC harmless against any third party claim and/or liability resulting from Subscriber’s use of the Services.
2.7. Resale. Without prior agreement between KPC and Subscriber, the Subscriber shall not market, offer to sell, sell and/or otherwise resell the provided Services to any third party.
2.8. No Representation by Subscriber. Neither Subscriber nor any of its employees, representatives or authorized users of the Services under Subscriber’s account shall make any representations with respect to Num.Wiki, the Services or this Agreement, including, without limitation, that KPC is a warrantor or co-seller of any of Subscriber’s products and/or services.
2.9. Limited Grant of Rights. No other rights are granted hereunder to Subscriber except as expressly set forth in this Agreement.
3. Term and Termination.
3.1. Term. The terms and conditions of this Agreement shall be in effect commencing on the Effective Date and continuing for the Subscription Term.
3.2. Termination for Cause. At any time, either party may terminate this Agreement immediately upon written notice to the other party (i) if the other party breaches any of its material obligations under this Agreement and such breach is not cured within thirty (30) days of receipt of written notice from the non-breaching party, or (ii) if the other party becomes insolvent or bankrupt, liquidated or is dissolved, or ceases substantially all of its business. In addition, KPC may terminate this Agreement immediately upon written notice to Subscriber in the event Subscriber breaches Section 2 (“Subscriber Rights and Restrictions”).
3.3. Effect of Termination. Upon termination of this Agreement, Subscriber will immediately discontinue (i) all access to and use of the Services, (ii) representing that Subscriber is a user of the Services, and (iii) remove the PAT. NUM.WIKI mark from Subscriber articles in a reasonable time frame. KPC will immediately disable Subscriber’s account upon termination. Neither party shall be liable for any damages resulting from a termination of this Agreement in accordance with this Section 3; provided, however, the termination of this Agreement shall not affect any claim arising prior to such termination. The applicable definitions, use restrictions, intellectual property rights, warranty disclaimer, limitation of liability, contracting parties, and applicable additional terms set forth in Section 10 shall survive termination or expiration of this Agreement.
4. Subscriber Content. Subscriber retains all rights to any and all of its Subscriber Content. KPC shall not own or license any data, content, information or material in Subscriber’s Subscriber Content. KPC shall not view, access or process any Subscriber Content, except as necessary for the sole purpose of providing the Services to Subscriber and its users, as directed or instructed by Subscriber and its users (e.g., in the context of support requests) and as required by this Agreement, Num.Wiki policies, and/or applicable law. KPC and Subscriber shall apply reasonable technical, organizational and administrative security measures to keep Subscriber Content protected in accordance with industry standards. Subscriber is solely responsible for its Subscriber content. Subscriber shall comply with all intellectual property laws related to the Subscriber Content and legal duties applicable to Subscriber as a data controller by virtue of Subscriber submitting Subscriber Content to or storing Subscriber Content within the Services. Specifically, Subscriber shall provide the relevant persons and/or participants with all information or notices Subscriber is required by applicable privacy and data protection law to provide and, if necessary, obtain the consent of or provide choices to such persons and/or participants as required by such laws.
4.1. Level of Access. KPC does not monitor or control Subscriber’s content. The Subscriber is responsible for determining the limitations that are placed on Subscriber content and for applying the appropriate level of access to Subscriber content.
5. Proprietary Rights. Except for the limited subscription rights granted herein, Subscriber has no right, title or interest in or to the Services, system data used in providing the Services or any other software provided in connection with the Services or any intellectual property rights related thereto. Subscriber acknowledges that KPC or its licensors retain all proprietary right, title and interest in, or practiced in connection with, the Services and any system data, software, including, without limitation, all modifications, enhancements, derivative works, configuration, translations, upgrades and interfaces thereto.
6. WARRANTY. KPC WARRANTS THAT ANY SERVICES PROVIDED HEREUNDER WILL BE PERFORMED IN A PROFESSIONAL MANNER IN ACCORDANCE WITH INDUSTRY STANDARDS. KPC WARRANTS THAT ANY SOFTWARE PROVIDED HEREUNDER WILL PERFORM SUBSTANTIALLY IN ACCORDANCE WITH THE DOCUMENTATION PUBLISHED BY NUM.WIKI AND INCLUDED WITH THE SERVICES. KPC’s ENTIRE LIABILITY AND SUBSCRIBER’S EXCLUSIVE REMEDY UNDER THIS WARRANTY WILL BE, AT THE SOLE OPTION OF KPC AND SUBJECT TO APPLICABLE LAW, TO PROVIDE RESTORED SERVICE WHICH CONFORMS TO THESE WARRANTIES OR TO TERMINATE THE SERVICE(S) AND THIS AGREEMENT AND PROVIDE A PRO-RATED REFUND OF ANY PREPAID SUBSCRIPTION FEES FROM THE PERIOD OF NON-CONFORMANCE THROUGH TO THE END OF THE SUBSCRIPTION TERM. TO THE EXTENT PERMITTED BY APPLICABLE LAW KPC DISCLAIMS ALL OTHER WARRANTIES AND CONDITIONS, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING THOSE OF MERCHANTABILITY, SATISFACTORY QUALITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. KPC MAKES NO WARRANTY THAT ANY OF THE SERVICES WILL MEET THE REQUIREMENTS OF SUBSCRIBER OR THAT THE SERVICES WILL BE UNINTERRUPTED, TIMELY OR ERROR-FREE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES AND CONDITIONS, SO SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO SUBSCRIBER.
6.1 Pat. KPC specifically disclaims any liability for any actions resulting from Subscriber’s use of any Services. Subscriber may use and access the Services at Subscriber’s own discretion and risk, and is solely responsible for Subscriber content.
7.1. Subscriber shall indemnify and defend KPC against any Infringement Claim brought against KPC as a result of Subscriber infringement or alleged Subscriber infringement. Subscriber shall pay reasonable attorney’s fees, court costs, and damages finally awarded with respect to such Infringement Claim and the reasonable costs associated with any settlement of any such Infringement Claim by KPC. KPC will provide reasonable assistance in the defense of any such Infringement Claim. Subscriber will reimburse KPC for reasonable expenses incurred in providing such assistance.
7.2. Infringement Cures. Following notice of an Infringement Claim, and in the event an injunction is sought or obtained against Subscriber, the Subscriber shall, at its option and expense, either (i) procure for Subscriber the right to continue to use the Services, or (ii) replace or modify the Subscriber’s content to make their use non-infringing while being capable of performing the functions as described in the applicable Service Description. In the event the options set forth in Subsections (i) and (ii) herein above are not reasonably available, KPC may in its sole discretion, upon written notice to Subscriber, terminate this Agreement, cancel access to the Services and refund to Subscriber any prepaid, but unused Subscription Fees for the affected Service, if any.
7.3. Limitation. KPC assumes no liability, and shall have no liability, for any Infringement Claim based on (i) Subscriber’s infringement or alleged infringement; (ii) any modification of the Services by Subscriber or at its direction; (iii) Subscriber’s combination of the Services with third party services, programs, data, hardware, or other materials; or (iv) any Subscriber trademark infringement or alleged infringement involving any marking or branding.
7.4. KPC is not liable to Subscriber or anyone else for any special, incidental, indirect, consequential, or punitive damages whatsoever, including those (a) resulting from loss of use, data, or profits, whether or not foreseeable, (b)based on any theory of liability, including breach of contract or warranty, negligence or other tortious action, or (c) arising from any other claim arising out of or in connection with Subscriber’s use of or access to the Services.
8.1 Termination by Subscriber. Subscriber may stop using the Services at any time. Termination of Subscriber account does not relieve Subscriber of any obligation to pay any outstanding fees.
8.2 Termination by KPC. If KPC terminate these terms for reasons other than for cause, then KPC will make reasonable effort to notify Subscriber at least 30 days prior to termination via an email address Subscriber provides to Num.Wiki with instructions on how to retrieve Subscriber content. Unless stated otherwise, KPC may at any time terminate these terms with Subscriber if:
(a) Subscriber breaches any provision of these terms (or acts in a manner that clearly shows Subscriber does not intend to, or is unable to, comply with these terms);
(b) Subscriber fails to make the timely payment of fees for the Services;
(c) Pat. Num.Wiki is required to do so by law (for example, where the provision of the Services becomes, unlawful); or
(d) Pat. Num.Wiki elects to discontinue the Services or Software, in whole or in part, due to unforeseen circumstances (for example, changes in U.S. patent law).
9. Export Control Laws. The Services, content, and Subscriber use of the Software, Services, and content, may be subject to U.S. and international laws, restrictions, and regulations that may govern the import, export, and use of the Services, and content. Subscriber agrees to comply with all applicable laws, restrictions, and regulations. Subscriber shall indemnify and defend KPC against any civil law suits or criminal charges resulting from Subscriber’s failure to adhere to any particular applicable law.
10. Dispute Resolution.
10.1 Venue. Any claim or dispute Subscriber may have against KPC must be resolved by (a) a court located in Massachusetts, U.S.A., Subscriber agrees to submit to the personal jurisdiction of the applicable court for the purpose of litigating the claim or dispute.
10.2 Injunctive Relief. Notwithstanding the foregoing, in the event of Subscriber or others’ unauthorized access to or use of the Services or content in violation of these terms Subscriber agrees that KPC is entitled to apply for injunctive remedies (or an equivalent type of urgent legal relief) in any jurisdiction.
11. Notification of Copyright Infringement.
11.1 DMCA. KPC will respond to clear notices of copyright infringement consistent with the Digital Millennium Copyright Act (“DMCA”).
11.4 Copyright Agent. Our Copyright Agent for notice of claims of copyright infringement can be reached as follows:
270 Bellevue Ave., #326
The Copyright Agent will not remove content from the Services in response to phone or email notifications regarding allegedly infringing content, since a valid DMCA notice must be signed, under penalty of perjury, by the copyright owner or by a person authorized to act on his or her behalf. Please submit the notifications by fax or ordinary mail only and as further described by this section.
12.1 English Version. The English version of these terms will be the version used when interpreting or construing these terms.
12.2 Notice to KPC. Subscriber may send notices to KPC at the following address: 270 Bellevue Ave., #326, Newport, RI 02840, Attention: General Counsel.
12.3 Notice to Subscriber. Pat. Num.Wiki may notify Subscriber by email, postal mail, postings within the Services, or other legally acceptable means.
12.4 Entire Agreement. These terms constitute the entire agreement between Subscriber and KPC regarding Subscriber use of the Services and supersede any prior agreements between Subscriber and KPC relating to the Services.
12.5. This Agreement does not, and is not intended, to create an attorney-client relationship between Subscriber and KPC.
12.6 Non-Assignment. Subscriber may not assign or otherwise transfer these terms or Subscriber rights and obligations under these terms, in whole or in part, without KPC written consent. KPC may transfer its rights under these terms to a third party.
12.7 Severability. If a particular term is not enforceable, the unenforceability of that term will not affect any other terms.
12.8 No Waiver. KPC failure to enforce or exercise any of terms in this Agreement is not a waiver of that section or term.