Last Modified: October 20th, 2020
Communo Platform Agreement
Acceptance of the Communo Platform Agreement
This Communo Platform Agreement (the “Agreement”) is entered into by and between you (“Customer”) and Communo Corp. (“Communo” “we,” or “us”)(also referred to herein as a “Party,” or jointly as the “Parties”) and governs your access to and use of the online platform located at app.communo.com (the “Communo Platform”), including any content, functionality, and services offered on or through the Communo Platform.
Communo Platform; Access and Use.
- Communo Platform. The Communo Platform is an on-demand talent sourcing platform that matches highly-vetted talent with advertising agencies and brands seeking to staff projects or positions.
- Provision of Access. Subject to and conditioned on Customer’s payment of Fees, Communo hereby grants Customer a non-exclusive, non-transferable right to access and use the Communo Platform during the Term, in accordance with the terms and conditions herein. Communo shall provide to Customer the necessary information to allow Customer to access the Communo Platform.
- Use Restrictions. Customer shall not use the Communo Platform for any purposes beyond the scope of the access granted in this Agreement. Customer shall not at any time, directly or indirectly: (i) copy, modify, or create derivative works of the Communo Platform, in whole or in part; (ii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Communo Platform; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Communo Platform, in whole or in part; (iv) remove any proprietary notices from the Communo Platform; or (v) use the Communo Platform in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law.
- Reservation of Rights. Communo reserves all rights not expressly granted to Customer in this Agreement. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Customer or any third party any intellectual property rights or other right, title, or interest in or to the Communo Platform.
- Suspension. Notwithstanding anything to the contrary in this Agreement, Communo may temporarily suspend Customer’s access to any portion or all of the Communo Platform if Communo reasonably determines that doing so will protect its legal or commercial interests.
Customer Responsibilities; Community Guidelines.
- Customer Profile. Customer must complete a user profile (“Profile”), which you consent to be shown to other users and to be shown to the public. You agree to provide true, accurate, and complete information on your Profile and all registration and other forms you access on the Communo Platform or provide to us and to update your information to maintain its truthfulness, accuracy, and completeness. You agree not to provide any false or misleading information about your identity or location, your business, your skills, or the services your business provides and to correct any such information that is or becomes false or misleading.
- Contractor Payment, Classification. Customers that retain a freelancer through the Communo Platform are solely responsible, and assume all liability, for: (i) the classification of such freelancers as employees or independent contractors; and (ii) paying such freelancers in accordance with applicable law for work performed and in accordance with all applicable terms.
Fees and Payment.
- Fees. Customer shall pay Communo the fees (“Fees”) as set forth at in their agreement with Communo without offset or deduction.
- Taxes. All Fees and other amounts payable by Customer under this Agreement are exclusive of taxes and similar assessments. Customer is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Customer hereunder, other than any taxes imposed on Communo’s income.
- Confidential Information. From time to time during the Term, either Party may disclose or make available to the other Party information about its business affairs, products, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information (collectively, “Confidential Information”). Confidential Information does not include information that, at the time of disclosure is: (a) in the public domain; (b) known to the receiving Party at the time of disclosure; (c) rightfully obtained by the receiving Party on a non-confidential basis from a third party; or (d) independently developed by the receiving Party. The receiving Party shall not disclose the disclosing Party’s Confidential Information to any person or entity, except to the receiving Party’s employees who have a need to know the Confidential Information for the receiving Party to exercise its rights or perform its obligations hereunder. Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required (i) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the Party making the disclosure pursuant to the order shall first have given written notice to the other Party and made a reasonable effort to obtain a protective order; or (ii) to establish a Party’s rights under this Agreement, including to make required court filings. Each Party’s obligations of non-disclosure with regard to Confidential Information are effective as of the Effective Date and will expire five years from the date first disclosed to the receiving Party; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations of non-disclosure will survive the termination or expiration of this Agreement for as long as such Confidential Information remains subject to trade secret protection under applicable law.
Intellectual Property Ownership; Feedback.
- Communo IP. Customer acknowledges that, as between Customer and Communo, Communo owns all right, title, and interest, including all intellectual property rights, in and to the Communo IP. “Communo IP” means the Communo Platform and any and all intellectual property provided to Customer in connection with the foregoing. For the avoidance of doubt, Communo IP does not include Customer Data.
- Customer Data. Communo acknowledges that, as between Communo and Customer, Customer owns all right, title, and interest, including all intellectual property rights, in and to the Customer Data. Customer hereby grants to Communo a non-exclusive, royalty-free, worldwide license to reproduce, distribute, and otherwise use and display the Customer Data and perform all acts with respect to the Customer Data as may be necessary for Communo to provide the Communo Platform to Customer. “Customer Data” means information, data, and other content, in any form or medium, that is submitted, posted, or otherwise transmitted by or on behalf of Customer through the Communo Platform.
- Third-Party Intellectual Property. Any information or content expressed or made available by a third party is that of the respective author(s) or distributor(s) and not of Communo. Communo neither endorses nor is responsible for the accuracy or reliability of any opinion, advice, information, or statement made on the Communo Platform by anyone other than Communo’s authorized agents acting in their official capacities. The Communo Platform may contain links to third-party websites. The Communo Platform may also contain applications that allow you to access third-party websites via the Communo Platform. Such third-party websites or applications are owned and operated by the third parties and/or their licensors. The inclusion of any link or application on the Communo Platform does not imply that we endorse the linked site or application. You use the links and third-party websites at your own risk and agree that your use of an application or third-party website accessed via the Communo Platform is on an “as is” and “as available” basis without any warranty for any purpose.
- Copyright Non-Infringement Policy. Communo is committed to complying with all applicable copyright laws and requires all users to comply with these laws. Accordingly, you may not use the Communo Platform to store any material or content, or disseminate any material or content, in any manner that constitutes an infringement of third party intellectual property rights, including rights granted by U.S. copyright law. If you are the owner of any copyrighted work and believe your rights under U.S. copyright law have been infringed by any material on the Communo Platform, you may take advantage of certain provisions of the Digital Millennium Copyright Act (the “DMCA”) by complying with Communo’s Proprietary Rights Infringement Reporting Procedures.
- Feedback. If Customer transmits any communications or materials to Communo by mail, email, telephone, or otherwise, suggesting or recommending changes to the Communo IP, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (“Feedback”), Communo is free to use such Feedback irrespective of any other obligation or limitation between the Parties governing such Feedback.
- Warranty Disclaimer. THE PLATFORM IS PROVIDED “AS IS” AND COMMUNO HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. COMMUNO SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. COMMUNO MAKES NO WARRANTY OF ANY KIND THAT THE COMMUNO PLATFORM, OR ANY RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER Communo PLATFORM, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE.
- Communo Indemnification. Communo shall indemnify, defend, and hold harmless Customer from and against any and all losses, damages, liabilities, costs (including reasonable attorneys’ fees) (“Losses”) to the extent such Losses are caused by any third-party claim, suit, action, or proceeding (“Third-Party Claim”) that the Communo Platform, or any use of the Communo Platform in accordance with this Agreement, infringes or misappropriates such third party’s intellectual property rights, provided that Customer promptly notifies Communo in writing of the claim, cooperates with Communo, and allows Communo sole authority to control the defense and settlement of such claim. If such a claim is made or appears possible, Customer agrees to permit Communo, at Communo’s sole discretion, to modify or replace the Communo Platform, or component or part thereof, to make it non-infringing, or obtain the right for Customer to continue use. If Communo determines that neither alternative is reasonably available, Communo may terminate this Agreement, in its entirety or with respect to the affected component or part, effective immediately on written notice to Customer. This Section 7(a) will not apply to the extent that the alleged infringement arises from: use of the Communo Platform in combination with data, software, hardware, equipment, or technology not provided by Communo or authorized by Communo in writing; modifications to the Communo Platform not made by Communo; Customer Data; or Third-Party Products.
- Customer Indemnification. Customer shall indemnify, hold harmless, and, at Communo’s option, defend Communo from and against any Losses resulting from any Third-Party Claim that the Customer Data, or any use of the Customer Data in accordance with this Agreement, infringes or misappropriates such third party’s intellectual property rights and any Third-Party Claims based on Customer’s negligence or willful misconduct; use of the Communo Platform in a manner not authorized by this Agreement, provided that Customer may not settle any Third-Party Claim against Communo unless Communo consents to such settlement, and further provided that Communo will have the right, at its option, to defend itself against any such Third-Party Claim or to participate in the defense thereof by counsel of its own choice.
- Sole Remedy. THIS 7(c) SETS FORTH CUSTOMER’S SOLE REMEDIES AND COMMUNO’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE Communo PLATFORM INFRINGE, MISAPPROPRIATE, OR OTHERWISE VIOLATE ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.
- Limitations of Liability. IN NO EVENT WILL COMMUNO BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (a) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (b) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (c) LOSS OF GOODWILL OR REPUTATION; (d) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY, OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (e) COST OF REPLACEMENT GOODS OR Communo PLATFORM, IN EACH CASE REGARDLESS OF WHETHER COMMUNO WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. IN NO EVENT WILL COMMUNO’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE EXCEED THE TOTAL AMOUNTS PAID TO COMMUNO UNDER THIS AGREEMENT IN THE ONE-YEAR PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
Term and Termination.
- Term. The initial term of this Agreement will continue in effect for one (1) year and will automatically renew for successive one (1) year terms unless earlier terminated pursuant to this Agreement’s express provisions or either Party gives the other Party written notice of non-renewal at least thirty (30) days prior to the expiration of the then-current term.
- Termination. Early cancellation of your annual subscription will result in an early cancellation fee equal to 3 months membership dues. With the completion of a short online exit survey, your credit card on file will be charged the early cancellation fee and all future scheduled billing and access to the community will be suspended immediately. In addition to any other express termination right set forth in this Agreement: Communo may terminate this Agreement, effective on written notice to Customer, if Customer fails to pay any amount when due hereunder. Either Party may terminate this Agreement, effective on written notice to the other Party, if the other Party materially breaches this Agreement, and such breach is incapable of cure, or being capable of cure, remains uncured thirty (30) days after the non-breaching Party provides the breaching Party with written notice of such breach. Either Party may terminate this Agreement, effective immediately upon written notice to the other Party, if the other Party: becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; makes or seeks to make a general assignment for the benefit of its creditors; or applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
- General. This Agreement, together with 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, and representations and warranties, both written and oral, with respect to such subject matter. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice”) must be in writing. All Notices must be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), or certified or registered mail (in each case, return receipt requested, postage pre-paid). In no event shall Communo be liable to Customer, or be deemed to have breached this Agreement, for any failure or delay in performing its obligations under this Agreement, if and to the extent such failure or delay is caused by any circumstances beyond Communo’s reasonable control, including but not limited to acts of God, flood, fire, earthquake, explosion, war, terrorism, invasion, riot or other civil unrest, strikes, labor stoppages or slowdowns or other industrial disturbances, or passage of law or any action taken by a governmental or public authority, including imposing an embargo. No amendment to or modification of this Agreement is effective unless it is in writing and signed by an authorized representative of each Party. No waiver by any Party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof. If any provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. This Agreement is governed by and is to be construed in accordance with the laws of the Province of Alberta and the laws of Canada applicable therein and treated in all respects as an Alberta contract. The parties hereby irrevocably and unconditionally attorn to the exclusive jurisdiction of the courts of the Province of Alberta and all courts competent to hear appeals therefrom.