IMPORTANT: Please read this EVALUATION Agreement (“Agreement”) before clicking the “accept” button, and/or using ANY OF THE CAREERPOINT USA, INC. (“cAREERPOINT”) PRODUCTS OR SERVICES, INCLUDING WITHOUT LIMITATION ANY SOFTWARE, APPLICATIONS, LIVE COACHING SERVICES, OR COACHING MATERIALS,that accompanY or is provided in connection with this Agreement. By clicking the “Accept” button, and/or using the coaching Services, APPLICATION, OR PLATFORM in any way, you are unconditionally consenting to be bound by and is becoming a party to this Agreement with careerpoint. If Evaluator does not unconditionally agree to all of the terms of this Agreement, use of the Services is strictly prohibited. If Evaluator has executed, or subsequently executes, an Evaluation Agreement or an End User Agreement with CAREERPOINT, then the terms and conditions of such executed Evaluation Agreement or End User Agreement, as applicable, shall govern and control your use of the Product.
Beta Services. CareerPoint is developing proprietary career advancement coaching services, which include without limitation, live coaching services (the “Coaching Services” and a platform (the “Platform”) that enables Evaluators to access certain features and functions through a web interface and/or mobile application, and the accompanying documentation and related software, applications, products, and services (together, the Coaching Services, Platform, and all related software, applications, product, and services, collectively referred to as the “Services”). Evaluator wishes to utilize an evaluation version of certain of the Services as provided by CareerPoint hereunder, and CareerPoint desires to make an evaluation version of such Services available to Evaluator, subject to the following terms and conditions. Subject to the terms and conditions of this Agreement, CareerPoint hereby grants Evaluator, during the Evaluation Period, non-exclusive, non-transferable, non-sublicensable right and license to access and use the Services solely for the purpose of evaluating the performance and functionality of the Services (the “Limited Purpose”). Evaluator agrees to use and evaluate the Services for the period set forth in writing by CareerPoint to Evaluator (including in writing) (the “Evaluation Period”). Company’s services outside the scope of this Agreement, if any, shall be provided pursuant to Company’s then-current applicable services policies and procedures (“Other Terms”). Nothing in any of Company’s Other Terms or any other existing agreements that Evaluator may have with Company apply to or are applicable to this Agreement, or Evaluator’s use of the Services offered hereunder. You represent and warrant that you shall not to violate any applicable local, state, national or international law, statute, ordinance, rule, regulation or ethical code in relation to your use of the Platform or Services and your relationship with any coaches or CareerPoint.
YOU ACKNOWLEDGE AND AGREE THAT THE SERVICES AND ALL CONTENT AND MATERIALS PROVIDED THROUGH THE SERVICES ARE PROVIDED FOR YOUR INFORMATION ONLY, AND THE CAREERPOINT PARTIES (AS DEFINED BELOW) DO NOT THEMSELVES PROVIDE SERVICES REQUIRING PROFESSIONAL LICENSURE (E.G., PHYSICIAN, DOCTOR, THERAPIST OR OTHER MEDICAL PROFESSIONAL SERVICES) AND THE SERVICES DO NOT CONTAIN OR CONSTITUTE, AND SHOULD NOT BE INTERPRETED AS, MEDICAL ADVICE OR OPINION. THE CAREERPOINT PARTIES DO NOT REPRESENT THAT THEIR COACHES ARE OPERATING UNDER ANY LICENSING AUTHORITY WHEN PROVIDING THE COACHING SERVICES.
COACHES. The coaches are independent providers who are neither our employees nor agents nor representatives. The Platform’s role is limited to enabling the Coaching Services while the Coaching Services themselves are the responsibility of the coach who provides them. If you feel the Coaching Services provided by the coach do not fit your needs or expectations, you may change to a different coach who provides services through the Platform. If a coach you have been connected with stops using the Platform at any time after you have been connected, we will send an email to notify you that your coach is no longer on the Platform and that you have the opportunity to match with a new coach. While we hope the Coaching Services are beneficial to you, you understand, agree and acknowledge that they may not be the appropriate solution for everyone’s needs and that they may not be appropriate for every particular situation and/or may not be a complete substitute for a face-to-face examination and/or care in every particular situation. THE PLATFORM IS NOT INTENDED FOR THE PROVISION OF CLINICAL DIAGNOSIS, CLINICAL TREATMENT, LEGAL SERVICES, ADVICE OR ARBITRATION OF ANY KIND.
ACCOUNT CREDENTIALS. You agree, confirm and acknowledge that you are responsible for maintaining the confidentiality of your password and any other security information related to your account (collectively “Account Access”). We advise you to change your password frequently and to take extra care in safeguarding your password. You agree to notify us immediately of any unauthorized use of your Account Access or any other concern for breach of your account security. You agree, confirm and acknowledge that we will not be liable for any loss or damage that incurred as a result of someone else using your account, either with or without your consent and/or knowledge. You agree, confirm and acknowledge that you are solely and fully liable and responsible for all activities performed using your Account Access. You further acknowledge and agree that we will hold you liable and responsible for any damage or loss incurred as a result of the use of your Account Access by any person whether authorized by you or not, and you agree to indemnify us for any such damage or loss. You agree and commit not to use the account or Account Access of any other person for any reason. You agree and confirm that your use of the Platform, including the Coaching Services, are for your own personal use only and that you are not using the Platform or the Coaching Services for or behalf of any other person or organization.
Intellectual Property. The Services (excluding the Evaluator Content (defined below) hosted thereon, if any) and all other materials provided by CareerPoint hereunder, including but not limited to all manuals, reports, records, programs, data and other materials, and all intellectual property rights in each of the foregoing, are the exclusive property of CareerPoint and its suppliers. Evaluator agrees that it will not, and will not permit any other party to: (a) access or use the Services except as set forth in this Agreement; (b) modify, adapt, alter or translate the Platform; (c) sublicense, lease, rent, loan, distribute, or otherwise transfer or make available the Services to any third party; (d) reverse engineer, decompile, disassemble, or otherwise derive or determine or attempt to derive or determine the source code (or the underlying ideas, algorithms, structure or organization) of the Services; (e) use or copy the Services except for the Limited Purpose; or (f) publish or disclose to any third party any performance benchmark tests or analyses or other non-public information relating to the Services or the use thereof.
Evaluator Content. “Evaluator Content” any and all information, data, texts, files, images and other materials that is provided, imported or otherwise submitted by Evaluator to or through the Platform or through the Coaching Services (including as communicated to any coaches contacted through the Services). As between Evaluator and CareerPoint, Evaluator will at all times remain the exclusive owner of such Evaluator Content. Evaluator hereby grants to CareerPoint a non-exclusive, worldwide, royalty-free, transferable, sublicenseable (through multiple tiers) and fully paid license to, and to permit third parties to, (i) use the Evaluator Content as necessary to provide the Services; (ii) create and use aggregated or de-identified Evaluator Content (A) to improve the Services and CareerPoint’s related product and service offerings; (B) to create new products and services relating to the Services (including analytics services such as providing benchmarking); (C) to generate and disclose statistics regarding use of the Services, provided, however, that no Evaluator only statistics will be disclosed to third parties without Evaluator’s consent; and (iii) use the Evaluator Content for academic or other research purposes. Evaluator represents and warrants that it has all rights, power and authority to grant the foregoing license, and that Company’s exercise of such rights, will not infringe, misappropriate or violate the rights of any third party, including any intellectual property, publicity or privacy rights.
Feedback. Evaluator understands and agrees that the Services represent a beta test version of unreleased software, products, applications and services that may contain bugs, defects, and errors. In exchange for the licenses granted to Evaluator to use such software, products, applications, and services, including without limitation Evaluator’s access to the Coaching Services, Evaluator agrees to use good faith efforts to test, use, and evaluate the Services in live operations, and to promptly report to CareerPoint, either orally or in writing, any errors, problems, defects, or suggestions for changes and improvements to the Services (collectively, “Feedback”). Evaluator acknowledges and agrees that all Feedback and all intellectual property rights therein are the exclusive property of CareerPoint, and hereby assigns to CareerPoint, all right, title and interest to any and all Feedback. Further, Evaluator acknowledges and agrees that Feedback may be used by CareerPoint in CareerPoint’s development of and be incorporated into a version of the Services CareerPoint may make available for commercial distribution (“Commercial Release”) or any other software or intellectual property created by CareerPoint. Without limiting the foregoing, CareerPoint may incorporate Feedback into its products and services and Evaluator will gain no rights in such products or services by virtue of having disclosed Feedback. Evaluator agrees and acknowledges that the products and services incorporating such Feedback will be the sole and exclusive property of CareerPoint, and Evaluator will gain no right, title or interest in or to the Services or any Commercial Release by virtue of Evaluator’s provision of Feedback to CareerPoint or for any other reason. CareerPoint has no obligation to create, distribute or otherwise offer a Commercial Release, and in the event of such Commercial Release, CareerPoint has no obligation to offer the Commercial Release to Evaluator or to offer Evaluator any discounted pricing schedules or special terms. Evaluator understands and agrees that the Commercial Release may contain functions and functionality, and perform in a manner significantly different from the current beta version of the Services. Accordingly, Evaluator acknowledges that any research or development performed, or business plans made, by Evaluator regarding or in reliance upon the Services are done entirely at Evaluator’s own risk.
Disclaimers of Warranties. Evaluator acknowledges that the purpose of this Agreement is to grant Evaluator the right to use CareerPoint for beta evaluation and trial use only, and the Services may contain bugs, errors, omissions and other problems To the maximum extent permitted by law, your use of the Services, including your participation in any coaching services or your interactions with any coaches, and all other materials are provided “AS IS” AND WITH ALL FAULTS. THE CAREERPOINT PARTIES MAKE NO WARRANTIES WITH RESPECT TO THE SERVICES, INCLUDING WITHOUT LIMITATION THE COACHING SERVICES, OR THE RESULTS OR USE THEREOF, WHETHER EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF TITLE, ACCURACY, INTERFERENCE WITH EVALUATOR’S QUIET ENJOYMENT, SYSTEM INTEGRATION, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. THE ENTIRE RISK ARISING OUT OF THE USE OR PERFORMANCE OF THE SERVICES IS WITH EVALUATOR. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY CAREERPOINT, AND OF ITS AGENTS OR EMPLOYEES, OR ANY COACHES SHALL IN ANY WAY INCREASE THE SCOPE OF THIS WARRANTY.
The Coaching Services are not medical, mental health or any other type of health service, such as psychotherapy or mental health counseling. No diagnosis or treatment of, or advice regarding, any medical or mental health condition or illness will be offered. The services provided by CareerPoint coaches cannot substitute for, and are not an alternative to, medical, psychiatric, psychological, psychotherapy, or other healthcare diagnosis and treatment when a medical or mental health condition or illness is present. You are advised to seek diagnosis, treatment, and advice regarding medical or mental conditions or illnesses from physicians practicing medicine, psychotherapists, psychologists, and other licensed healthcare and mental health professionals. Coaches are not allowed to use the Coaching Services to engage in rendering any type of psychological or healthcare advice for any Evaluator or for his or her particular situation. Under no circumstances will any of Evaluator’s interactions with any coach be deemed or construed to create a physician-patient relationship or a fiduciary duty of any kind whatsoever. IF CAREERPOINT BECOMES AWARE OF OR SUSPECTS ANY MEDICAL OR MENTAL CONDITIONS OR ILLNESS, CAREERPOINT MAY, AT ITS SOLE DISCRETION, TERMINATE ALL OR ANY PORTION OF THE SERVICES.
Limitation of Liability. IN NO EVENT WILL CAREERPOINT, ITS COACHES OR ITS SUPPLIERS (EACH, A “CAREERPOINT PARTY” AND COLLECTIVELY, THE “CAREERPOINT PARTIES”) BE LIABLE TO EVALUATOR OR ANY THIRD PARTY FOR THE COST OF PROCUREMENT OF SUBSTITUTE SERVICES, LOST PROFITS, LOST DATA, OR ANY SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL OR PUNITIVE DAMAGES, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY ARISING IN ANY WAY OUT OF THIS AGREEMENT OR EVALUATOR’S USE OR NON-USE OF THE SERVICES OR ANY RESULTS THEREOF OR INFORMATION OR CONTENT OBTAINED THEREFROM, EVEN IF CAREERPOINT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE TOTAL CUMULATIVE LIABILITY, RELATED TO THIS AGREEMENT, OF THE CAREERPOINT PARTIES SHALL BE LIMITED TO ONE HUNDRED DOLLARS (U.S. $100). The parties agree that the limitations of liability set forth in this section shall survive and continue in full force and effect despite any failure of consideration or of an exclusive remedy. The parties acknowledge that the prices have been set and the Agreement entered into in reliance upon these limitations of liability and that all such limitations form an essential basis of the bargain between the parties.
Confidentiality. The materials and software used to provide the Services constitute valuable trade secrets of the CareerPoint Parties. Evaluator will not disclose to any third party: any information about the Services, including its existence, design, performance characteristics, feedback, and test results.
Term And Termination. This Agreement commences when Evaluator accepts this Agreement and will continue in effect until CareerPoint terminates this Agreement upon written notice to the Evaluator. CareerPoint may also terminate this Agreement upon written notice to Evaluator in the event that Evaluator (a) breaches this Agreement, (b) uses the Services in violation of this Agreement, (c) uses the Services in violation of applicable laws, rules, regulations, or ethics rules or to engage in unethical scraping, reverse engineering or crawling. Evaluator may terminate this Agreement upon written notice to CareerPoint. Upon termination or expiration of this Agreement, Evaluator shall immediately cease all use of Services, and delete or destroy all copies of the Documentation in the possession or control of Evaluator. Sections 5 (Evaluator Content), 6 (Feedback), 7 (Disclaimers of Warranties), 8 (Limitation of Liability), 9 (Confidentiality), 10 (Term and Termination),11 (Release) and 12 (General Provisions) will survive the termination or expiration of this Agreement.
Release. You hereby release the CareerPoint Parties and their successors from claims, demands, any and all losses, damages, rights, and actions of any kind, including personal injuries, death, and property damage, that is either directly or indirectly related to or arises from your interactions with, or the conduct of, other users of the Services. If you are a California resident, you hereby waive California Civil Code Section 1542, which states, “A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party.” The foregoing release does not apply to any claims, demands, or any losses, damages, rights and actions of any kind, including personal injuries, death or property damage for any unconscionable commercial practice by a CareerPoint Party or for such party’s fraud, deception, false, promise, misrepresentation or concealment, suppression or omission of any material fact in connection with the Services provided hereunder.
General Provisions. This Agreement will be governed by the laws of State of Delaware, without reference to conflicts of law principles. In the event of a dispute regarding any matter under this Agreement, each party agrees to first make diligent and commercially reasonable efforts to resolve such dispute amicably with the other party. To the extent the dispute is not resolved in fifteen (15) days, the parties agree that any dispute regarding this Agreement shall then be subject to the exclusive jurisdiction of the courts in the State of Delaware, and each party hereby agrees to submit to the personal and exclusive jurisdiction and venue of such courts. Evaluator may not assign or transfer, by operation of law, change of control or otherwise, any of its rights under this Agreement to any third party without CareerPoint’s prior written consent. Any attempted assignment or transfer in violation of the foregoing will be void. All waivers must be in writing. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion. If any part of this Agreement is found void and unenforceable, it will not affect the validity of the balance of this Agreement, which shall remain valid and enforceable according to its terms. If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will remain enforceable and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law. This Agreement may be executed in one or more counterparts, each of which will be deemed an original and all of which will be taken together and deemed to be one instrument.