SHEMMASSIAN ACADEMIC CONSULTING
WEBSITE CONTENT LICENSING AGREEMENT
This Website Content License Agreement ("Agreement") is by and between SAC Educational Services, Inc., a California Corporation (“Licensor”) and the individual (“Licensee”) submitting payment for access to the materials subject to this Agreement (“Licensed Content”). Licensor and Licensee shall be referred to collectively as “Parties.”
WHEREAS, Licensor owns, operates, and controls the Licensor Site (as defined below);
WHEREAS, Licensor also owns and has the right to license the Licensed Content (as defined below);
WHEREAS, Licensee wishes to access Licensed Content for the sole purpose of Licensee’s individual preparation for either the MCAT and/or Licensee’s application for medical school; and
WHEREAS, Licensor is willing to license the Licensed Content to Licensee, subject to all terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants, terms and conditions set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
1. Definitions.
For purposes of this Agreement, the following terms have the following meanings. Other terms defined in the body of the Agreement shall have the meanings so given.
"Licensed Content" means those materials and content which are being purchased by Licensee when submitting any payments subject to this agreement.
"Licensor’s Site" means any and all websites operated by Licensor on or through which the Licensed Content is displayed.
2. Delivery of Content.
During the Term, except as otherwise set forth herein, Licensor shall make available to Licensee the Licensed Content via the Licensed Site. Licensor reserves the right to modify the Licensed Content or how a Licensee accesses Licensed Content at Licensor’s sole discretion and at any time and without providing any prior notice to Licensee. Licensor is not liable for delays or failures of delivery beyond its reasonable control. Licensor's sole responsibility for any such delay or failure is to deliver or re-deliver the relevant Licensed Content as soon as reasonably possible.
3. License Grants.
3.1 Content License.
Subject to Licensee’s on-going compliance with Section 3.2 and all other terms and conditions of this Agreement, Licensor grants to Licensee an exclusive (save for rights reserved to Licensor hereunder), non-transferable and non-sublicensable license, during the License Term, to access and use for their own individual and personal and private use only. Licensee is expressly prohibited from copying, downloading, reproducing, taking photos of, or otherwise creating a facsimile or derivative work of any of the Licensed Content for any reason. Licensee shall not cause or allow anyone else to do what they are not allowed to do themselves under this agreement. Licensee further agrees not to share any of the Licensed Content, whether in whole or in part, with anyone other than the Licensee submitting the payment subject to this Agreement. Failure to comply will result in Licensor immediately terminating all Licensee’s licenses. It shall also serve as grounds for Licensor cancelling any other Agreements which may exist between Licensor and Licensee.
3.2 Content License Restrictions.
The license granted in Section 3.1 is subject to the following:
(a) Licensee shall not permit the Licensed Content to be, or appear to be, reproduced, displayed or distributed on, as part of or in connection with any website or other online (including mobile) area other than the Licensor’s Site.
(b) Licensee shall not edit, alter, modify, combine with other content or create any derivative works of the Licensed Content without the prior written consent of Licensor.
(c) Licensee shall not display, and shall not permit others to display any images or content that is or could be reasonably construed to be offensive, pornographic, defamatory or libelous, infringing the intellectual property rights of any third party, promoting terrorism or other unlawful violence, or for any other purpose that violates applicable Law.
All uses of the Licensed Content that do not comply fully with the provisions of Sections 3.1 and 3.2 shall for all purposes be deemed beyond the scope of the license granted hereunder. Any violation Sections 3.1 and 3.2 by Licensee shall be a material breach of this Agreement for which Licensor may terminate this Agreement.
4. License Fees.
In consideration of the licenses granted and other undertakings by Licensor hereunder, Licensee shall pay Licensor a License Fee in the amount specified at the time of payment (“License Fee”). The License Fee may be collected by Licensor via any payment method approved by Licensor at the time of payment. Licensee agrees to use Licensor’s approved payment method for all transactions with Licensor for the Licensed Content. Licensee agrees to allow Licensor to store Licensee’s approved payment details to facilitate future payments of the Licensee Fee. License Fee shall be renewed monthly until canceled by Licensee. Licensee specifically authorizes Licensor to charge the full License Fee to the payment method on file each month. Licensee understands and agrees that each license period shall extend one month from either the initial payment or for one month from when Licensor processes a renewal License Fee in a subsequent month. Once Licensor processes a License Fee, that fee shall be earned by Licensor and shall be non-refundable. Licensor shall not provide refunds for lack of usage, dissatisfaction, or forgetting to cancel before Licensee’s license automatically renews. Licensee understands that a material breach of this Agreement shall result in the immediate revocation of any active licenses and no refunds shall be provided to Licensee.
License Fee is subject to change at any time and for any reason. Licensor may change the fees without notice to Licensee. Licensee agrees to pay any updated License Fee unless and until Licensee cancels this Agreement under the terms of this Agreement.
5. Term and Termination.
5.1 Effective Date.
The Effective Date of this Agreement shall be the date on which Licensor receives the first License Fee for access to the Licensed Content subject to this agreement.
5.2 Term.
This Agreement shall run from the Effective Date to 11:59 PM PST on the day before the same date of the next succeeding month and shall be renewed automatically with the fee paid on the same calendar date as the Effective date in each successive month until canceled by Licensee.
For example, if the Licensee submits the subject License Fee on January 1, the license will run from January 1 to January 31. If the Licensee does not inform Licensor of cancellation, then Licensor shall charge the Licensee again on February 1. That second license will run until February 28 (or 29th for a Leap Year) and will renew again on March 1.
However, if Licensee cancels their license before 11:59 PM PST on January 31 in the above referenced example, then the Licensee’s license shall run until 11:59 PM PST on January 31 without renewal.
5.3 Cancellation.
Licensee may cancel this Agreement anytime before their next scheduled License Fee is due using the cancellation feature on the Licensor’s processing payment portal used to check out.
6. Intellectual Property Rights.
You acknowledge and agree that the Licensed Content contains content or features that are protected by copyright, patent, trademark, trade secret or other proprietary rights and laws. Except as expressly authorized by Licensor, you agree not to modify, copy, frame, scrape, rent, lease, loan, sell, distribute or create derivative works based on the Licensed Content in whole or in part. In connection with your use of the Licensed Content you will not engage in or use any data mining, robots, scraping or similar data gathering or extraction methods. If you are blocked by Licensor from accessing the Licensed Content (including blocking your IP address), you agree not to implement any measures to circumvent such blocking (e.g., by masking your IP address or using a proxy IP address). Any rights not expressly granted herein are reserved by the Licensor.
Licensor’s name and logos are trademarks and service marks of Licensor (collectively the “Shemmassian Trademarks”). Nothing in this Agreement or the Licensed Content should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any of Shemmassian Trademarks displayed in the Licensed Content, without our prior written permission in each instance. All goodwill generated from the use of Shemmassian Trademarks will inure to Licensor’s exclusive benefit.
7. Miscellaneous.
7.1 Entire Agreement.
This Agreement, together with the attached Schedules and any other documents incorporated herein by reference, constitutes the sole and entire agreement of the Parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to such subject matter.
7.2 Assignment.
This Agreement is personal to Licensee. Licensee shall not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance, under this Agreement, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without Licensor's prior written consent. For purposes of the preceding sentence, and without limiting its generality, any merger, consolidation or reorganization involving Licensee (regardless of whether Licensee is a surviving or disappearing entity) will be deemed to be a transfer of rights, obligations or performance under this Agreement for which Licensor's prior written consent is required. No delegation or other transfer will relieve Licensee of any of its obligations or performance under this Agreement. Licensor may freely assign or otherwise transfer all or any of its rights, or delegate or otherwise transfer all or any of its obligations or performance, under this Agreement without Licensee's consent.
7.3 No Third-Party Beneficiaries.
This Agreement is for the sole benefit of the parties hereto and nothing herein, express or implied, is intended to or shall confer upon any other Person any legal or equitable right, benefit or remedy of any nature whatsoever, under or by reason of this Agreement.
7.4 Amendment and Modification.
Licensor may change this License Agreement at any time, for any reason, and without providing prior notice to Licensee. Any amendments shall be effective upon the renewal of the next licensing term following the amendment.
7.5 Severability.
If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal or unenforceable, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
7.6 Governing Law; Submission to Jurisdiction.
This Agreement shall be governed by and construed in accordance with the internal laws of the State of California without giving effect to any choice or conflict of law provision or rule. Parties agree this Agreement should be interpreted to the greatest degree possible so as to ensure that all terms of this Agreement comply with all applicable local, state, and federal laws and regulations.
7.7 Dispute Resolution – ARBITRATION CLAUSE.
In the event of a dispute arising out of this Agreement, the parties shall first negotiate in good faith in an effort to reach a settlement of the dispute. If having negotiated in good faith, the parties are unable to resolve their dispute, the parties shall submit the dispute to binding arbitration by a single arbitrator. The arbitration shall be governed by the Commercial Rules of Arbitration of the American Arbitration Association. The arbitration shall take place in San Diego, California. The arbitrator shall have jurisdiction over the conduct of discovery prior to the hearing. Notwithstanding the foregoing, nothing in this Section shall be construed to prohibit either party from seeking appropriate injunctive or other equitable relief in a court of competent jurisdiction.
You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the the Licensed Content or this Agreement must be filed within one (1) year after such claim or cause of action arose or be forever barred.
6.8 Attorneys' Fees.
In the event that any action, suit, or other legal or administrative proceeding is instituted or commenced by either party hereto against the other party arising out of this Agreement, the prevailing party shall be entitled to recover its reasonable attorneys' fees and court costs from the non-prevailing party.
6.9 Warranties.
YOUR USE OF THE LICENSED CONTENT IS AT YOUR SOLE RISK. THE LICENSED CONTENT IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED HEREIN, LICENSOR EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.
LICENSOR MAKES NO WARRANTY THAT (I) THE LICENSED CONTENT WILL MEET YOUR REQUIREMENTS, (II) THE LICENSED CONTENT WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (III) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE LICENSED CONTENT WILL BE ACCURATE OR RELIABLE, OR (IV) THE QUALITY OF ANY PRODUCTS, LICENSED CONTENT, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE LICENSED CONTENT WILL MEET YOUR EXPECTATIONS.
IN PURCHASING THE LICENSE AND USING THE LICENSED CONTENT, YOU WARRANT TO LICENSOR THAT YOU ARE ACCESSING THE LICENSED CONTENT SOLELY FOR YOUR OWN EDUCATIONAL BENEFIT. YOU FURTHER WARRANT THAT YOU ARE NOT AFFILIATED WITH NOR ARE YOU ACCESSING THE LICENSED CONTENT FOR ANY OTHER PERSON OR ENTITY (INCLUDING, BUT NOT LIMITED TO, ANY ENTITY WHICH IS OR REASONABLY COULD BE A DIRECT OR INDIRET COMPETITOR TO LICENSOR).
By entering into this Agreement, Licensee warrants that they are over the age of 18 and are legally permitted to enter into this Agreement for the benefit of the Beneficiary. Should any individual under the age of 18 enter into this Agreement, Company has the discretion to cancel this Agreement and retain License FEE. Should Licensee turn 18 before termination of this Agreement, Licensee shall be deemed to have ratified this Agreement.