Terms of Service for End-Users
INTERVIEW MANAGEMENT SOLUTIONS IS WILLING TO GRANT YOU RIGHTS TO ESTABLISH AN ACCOUNT AND TO USE THE TILES™ SYSTEM OF INTERVIEW MANAGEMENT ONLY UPON THE CONDITION THAT YOU ACCEPT ALL OF THE TERMS CONTAINED IN THE TERMS OF SERVICE FOR END-USERS AGREEMENT. PLEASE READ THE SERVICE AGREEMENT CAREFULLY.
BY REGISTERING TO USE THE TILES™ SYSTEM OF INTERVIEW MANAGEMENT YOU WILL INDICATE YOUR AGREEMENT WITH THIS SERVICE AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY OR PERSON, YOUR ACCEPTANCE REPRESENTS THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY OR PERSON TO THE TERMS OF THIS SERVICE AGREEMENT.
TILES™ System of Interview Management TERMS OF SERVICE AGREEMENT
Effective Date as of first day TILES™ System of Interview Management services commence.
1.1.1 This is an agreement between you as ‘user’ of the TILES™ System of Interview Management software application.
1.1.2 All references to "we", "us", and "our‚ shall be construed to mean INTERVIEW MANAGEMENT SOLUTIONS PTY LTD, hereafter referred to as ‘IMS’.
1.1.3 If you are not acting on behalf of yourself as an individual, then "you", "your", “customer”, and "yourself" means your company or organization or the person you are representing. The company or organization you represent will be the one registered and paying for the TILES™ System of Interview Management.
1.1.4 The TILES™ System of Interview Management software application is licenced to Interview Management Solutions, an Australian based proprietary limited company. User and client entities will be deemed to have purchased the web service from INTERVIEW MANAGEMENT SOLUTIONS PTY LTD.
1.2 "Web Services." The web services are taken to include the TILES™ System of Interview Management software described and specified as part of the Purchase Agreement and any updates or upgrades to such services which may be generally released by IMS to all customers from time to time.
1.3 " TILES™ System." The computer hardware, software and other tangible equipment and intangible computer code necessary to deploy and serve the Services via the Site.
1.4 "Site." www.interviewmanagementsolutions.com website including the TILES™ System web portal.
1.5 "Authorized Users." The number of identifiable unique persons consisting of your personnel and outside consultants who are authorized to access and use the Services as determined by you but not exceeding the maximum number of users paid for. Authorized users may include your third party consultants, outsourcers, contractors and other service providers.
1.6 "Affiliate." With respect to you, any parent or subsidiary corporation, and any corporation or other business entity controlling, controlled by or under common control with you, which agrees in writing to be bound by all your obligations hereunder.
1.7 "User Data." User’s information or other data processed, stored or transmitted by, in or through the Services, including without limitation personal information relating to the User’s personnel, interviewees, and prospective interviewees such that the identity of such persons is apparent or can reasonably be determined from such personal information.
1.8 "Proprietary Rights." Any and all rights, whether registered or unregistered, in and with respect to patents, copyrights, confidential information, know-how, trade secrets, moral rights, contract or licensing rights, confidential and proprietary information protected under contract or otherwise under law, trade names, domain names, trade dress, logos, trademarks, service marks, and other similar rights or interests in intellectual or industrial property.
1.9 “Purchase Agreement”. Details of the purchase of Web Services from IMS are based on the terms, fees prevailing at that time on the IMS website www.interviewmanagementsolutions.com. Confirmation that you wish to proceed and commit to an ongoing subscription service is deemed to have taken place when the periodic subscription fee has been paid.
2.1 This Agreement between you and INTERVIEW MANAGEMENT SOLUTIONS PTY LTD consists of this Terms of Service Agreement.
3. Modification of Agreement. We reserve the right to modify this Agreement at any time by posting an amended Agreement that is always accessible through links placed on one of the Web Services or login pages and/or by giving you 14 days prior notice of a modification. You should check this Agreement periodically for modifications by scrolling to the bottom of this page for a listing of material modifications and their effective dates. IF ANY MODIFICATION IS UNACCEPTABLE TO YOU, YOUR ONLY RECOURSE IS TO TERMINATE THIS AGREEMENT. YOUR CONTINUED USE OF THE TILES™ SYSTEM SOFTWARE FOLLOWING OUR POSTING OF AN AMENDED AGREEMENT OR PROVIDING YOU NOTICE OF A MODIFICATION WILL CONSTITUTE BINDING ACCEPTANCE.
4. Web Services. We reserve the right to update and modify the Services from time to time.
5. Use and Restrictions. Subject to the terms and conditions of this Agreement, you may access and use the Web Services only through the login protocols provided to you, but only for your own internal purposes. All rights not expressly granted in this Agreement are reserved by the Service Providers and their licensors.
5.1 You will be granted authorized login protocols for the Web Services, and you agree not to use the Web Services in excess of your authorized login protocols. You agree not to access (or attempt to access) the Web Services by any means other than through the login protocols we provide. You agree not to access (or attempt to access) the Web Services through any automated means (including use of scripts or web crawlers).
5.2 You are not authorized to (i) resell, sub-licence, transfer, assign, or distribute the Web Services or content; (ii) modify or make derivative works based upon the Web Services or content; (iii) "frame" or "mirror" the Web Services or content on any other server or Internet- enabled device, or (iv) reverse engineer, decompile the Web Services or their enabling software for any purpose.
5.3 You will not use the Software Application for training or educational purposes under commercial arrangements without the prior written approval of IMS. Where IMS should grant written approval to You and/or a single legal entity to use the Software Application for training purposes under commercial arrangements as an 'Approved Trainer', You agree to (i) use the Software Application in accordance with the licence set forth in this Agreement; and (ii) allow IMS to use your entity logo on the IMS website within an ‘Approved Trainer’ section. Where such approval is granted by IMS, you may use the IMS logo and make reference to 'The TILES™ System of Interview Management' in your website and course content.
5.4 IMS reserves the right to decline your request for approval to use the Software Application for training or educational purposes under commercial arrangements without discussion. Where approval is granted, such approval may be rescinded by IMS by notice in writing at anytime.
6. Inquiries Regarding Web Services. You agree to make all inquiries regarding the TILES™ System and technical support directly to INTERVIEW MANAGEMENT SOLUTIONS PTY LTD.
7. Ownership. The software and technology used by INTERVIEW MANAGEMENT SOLUTIONS PTY LTD are protected by law, including, but not limited to, Australian copyright law and international treaties. The copyrights and other intellectual property rights in this material remain the property of the owner of the TILES™ System. Except for the limited rights granted herein, all other rights are reserved.
8. Termination. You agree that we may terminate your account and access to the TILES™ System for cause without prior notice, upon the occurrence of any one of the following: (i) any material breach of this Agreement, or (ii) requests by law enforcement or other government agencies. Termination of your account includes (i) removal of access to the TILES™ System, and (ii) deletion of your login protocols. Further, you agree that all terminations shall be made in our sole discretion, and that we will not be liable to you or any third-party for any termination of your account or access to the TILES™ System and/or data to which you lose access.
9. Your Account-Related Responsibilities. You are responsible for maintaining the confidentiality of your login protocols, and any additional information that we may provide regarding accessing the TILES™ System. If you knowingly share your login protocols with another person who is not authorized to use the TILES™ System, this Agreement is subject to termination for cause. You agree to immediately notify us of any unauthorized use of your login protocols or any other breach of security.
10. Mutual Exchange of Confidential Information. The parties anticipate that each may disclose confidential information to the other. Accordingly, the parties desire to establish in this Section terms governing the use and protection of certain information one party ("Owner") may disclose to the other party ("Recipient").
10.1 Definition of Confidential Information. For purposes hereof, "Confidential Information" means (i) the terms and conditions hereof, (i) non-public aspects of IMS web services’ and the operation thereof, the TILES™ System, and additional services provided by Interview Management Solutions, and IMS business and technical information, and data, (iii) Customer Data, and non-public aspects of Customer’s technology, computer programs, and business and technical information, and data.
10.2 Exclusions. The restrictions of this Agreement on use and disclosure of Confidential Information shall not apply to information that: (i) is in the possession or control of Recipient at the time of its disclosure hereunder; (ii) is, or becomes publicly known, through no wrongful act of Recipient; (iii) is received by Recipient from a third party free to disclose it without obligation to Owner, (iv) is independently developed by a party as evidenced by its written and dated records and without any breach of this Agreement; or (v) is the subject of a written permission to disclose provided by Owner. The Recipient may disclose Confidential Information of Owner pursuant to the requirements of a governmental agency or by operation of law, provided that such Recipient gives Owner written notice thereof as soon as practicable and reasonably cooperates with Owner to contest such disclosure.
10.3 Confidential Information. You agree that all non-public information that we provide regarding the Web Services, including without limitation, our pricing, marketing methodology, and business processes, is our proprietary confidential information. You agree to use this confidential information only for purposes of exercising your rights as our affiliate while in strict compliance with this Agreement, and you further agree not to use or disclose this confidential information for a period of three (3) years after termination as our affiliate.
11. Disclaimer of Actions of Third Parties. IMS does not and cannot control the flow of data to or from IMS TILES™ System, technology and other portions of the Internet. Such flow of data depends on the performance of Internet services provided or controlled by third parties. At times, actions or inactions of such third parties can impair or disrupt customer’s connections to the Internet (or portions thereof). Although IMS will use commercially reasonable efforts to take all actions it deems appropriate to remedy and avoid such events, IMS cannot guarantee that such events will not occur. IMS DISCLAIMS ANY AND ALL LIABILITY RESULTING FROM OR RELATED TO THE PERFORMANCE OR NON-PERFORMANCE OF INTERNET SERVICES PROVIDED OR CONTROLLED BY THIRD PARTIES.
12. Onward Transfer of Personal Information outside Your Country of Residence. Any personal information which we may collect on the Web Services will be stored and processed in our servers located in the UK and Australia. If you reside outside of those countries, you consent to the transfer of personal information outside your country of residence to the nearest geographical server location of either UK and Australia.
13. Export Control. We provide Web Services and use software and technology that may be subject to Australian export controls administered by the Australian Government Department of Foreign Affairs and Trade. You acknowledge and agree that the Web Services shall not be used in, and none of the underlying information, software, or technology may be transferred or otherwise exported or re-exported to, countries to which Australia maintains an embargo (collectively, "Sanction Regimes"). The lists of Sanctioned Regimes are subject to change without notice. By using the Web Services, you represent and warrant that you are not located in, under the control of, or a national or resident of a Sanctioned Regime.
14. Registration Data. Registration is required for you to establish an account with our Web Services. You agree (i) to provide certain current, complete, and accurate information about you as prompted to do so by our online registration form ("Registration Data"), and (ii) to maintain and update such Registration Data as required to keep such information current, complete and accurate. You warrant that your Registration Data is and will continue to be accurate and current, and that you are authorized to provide such Registration Data. You authorize us to verify your Registration Data at any time. If any Registration Data that you provide is untrue, inaccurate, not current or incomplete, we retain the right, in its sole discretion, to suspend or terminate rights to use your account. Solely to enable us to use information you supply us internally, so that we are not violating any rights you might have in that information, you grant to us a nonexclusive licence to (i) convert such information into digital format such that it can be read, utilized and displayed by our computers or any other technology currently in existence or hereafter developed capable of utilizing digital information, and (ii) combine the information with other content provided by us in each case by any method or means or in any medium whether now known or hereafter devised.
15. Monitoring. We reserve the right to monitor your access and use of the TILES™ System without notification to you.
16. Security. You shall be solely responsible for acquiring and maintaining technology and procedures for maintaining the security of your link to the Internet. As part of the Web Services, IMS shall implement reasonable and appropriate security procedures consistent with prevailing industry standards to protect data from unauthorized access by physical and electronic intrusion; provided, however, unless resulting from the failure of IMS to perform the forgoing obligations, the parties agree that IMS shall not, under any circumstances, be held responsible or liable for situations (i) where data or transmissions are accessed by third parties through illegal or illicit means, or (ii) where the data or transmissions are accessed through the exploitation of security gaps, weaknesses, or flaws unknown to IMS at the time. IMS will promptly report to you any unauthorized access to your data promptly upon discovery by Interview Management Solutions.
17. IMS will use diligent efforts to promptly remedy any breach of security that permitted such unauthorized access. In the event notification to persons included in your data is required, you shall be solely responsible for any and all such notifications at your expense.
18. The TILES™ System shall be operated in an environment where (i) all Customer Data shall be stored on files totally separate from those of other customers of Interview Management Solutions, or (ii) all files containing Customer Data are partitioned sufficient to protect the security and privacy of Customer Data.
19. Subscription Licence Term; Fees
19.1 Subscription Term. The initial term of the TILES™ System shall commence as of the Effective Date of upgrade to Professional User and shall continue for one calendar month [Professional user], unless specified otherwise. The initial term hereof shall automatically renew for successive one (1) calendar month terms unless the Customer cancels the subscription. Both the initial term and any renewal term are subject to earlier termination as otherwise provided herein. Either party may choose not to renew this Agreement without cause for any reason.
19.2 Subscription Fees and Payment Terms. The periodic subscription licence fees shall be payable on a monthly basis, in advance, unless agreed otherwise. Periodic subscription licence fee payments shall be as per the rate on Interview Management Solutions’ website www.interviewmanagementsolutions.com at period commencement whether that be the initial term or renewal period. The subscription fee will be on a per user basis as per the Purchase Agreement.
19.3 Guaranteed Minimum Term. The initial term and subsequent renewals of this web service are for a period of one calendar month, unless specified otherwise. If the Customer terminates the Agreement or ceases to continue making subscription fee payments prior to the expiration of the one (1) calendar month term for any reason, then subscription fees for the remainder of the initial one calendar month term shall accelerate.
20.1 Fee Increases. IMS may increase periodic subscription fees at any time with sixty (60) days prior notice to Customer.
20.2 Termination For Cause. Failure to comply with any of the material terms and conditions of this Agreement, including without limitation the payment of any ongoing subscription licence fee IMS may terminate this Agreement and any and all licence rights upon it forthwith.
20.3 There will be no refunds of any payments made in advance whatsoever. With appropriate notice the User will be responsible for stopping any future scheduled payments.
20.4 Subscription Fees. Customer shall pay to IMS periodic subscription fees for the Services and technical support services provided hereunder in accordance with the website www.interviewmanagementsolutions.com.
21. Taxes. All fees are exclusive of taxes or duties. If IMS is required to pay or collect any federal, state, local, value added, tax or duty on any fees charged under this Agreement, or any other similar taxes or duties levied by any governmental authority, excluding taxes levied on Interview Management Solutions' net income, then such taxes and/or duties shall be billed to and paid by Customer immediately upon receipt of Interview Management Solutions' invoice and supporting documentation for the taxes or duties charged.
22. Technical Support, Training, and Consulting Services. During the term hereof, the service provider shall provide technical support in the form of responses to questions by email or telephone at no additional charge. If additional services are required for the proper use and operation of the Services or if training or consulting services are requested, the service provider shall provide such services on a time and materials ("T&M") basis; that is, (i) Customer shall pay the service provider for all the time spent performing such services (including all travel time), plus materials, taxes, and reimbursable expenses; and (ii) the rates for such services shall be the service providers then-current standard rates when such services are provided.
23. Proprietary Rights Ownership. Ownership of the Proprietary Rights embodied in the Site, Services, and IMS Technology shall remain exclusively vested in and be the sole and exclusive property of IMS and its licensors. In addition Customer hereby transfers and assigns to IMS any rights Customer may have to any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Customer personnel relating to the Service. The www.interviewmanagementsolutions.com domain name, product names and logos associated with the Services are trademarks of IMS or third parties, and no right or licence is granted herein to use them, beyond that highlighted at paragraph 5. above.
24. Customer Representations and Warranties.
24.1 Customer represents and warrants that (i) the performance of its obligations and use of the Services (by Customer and its Authorized Users) will not violate any applicable laws, or regulations, including without limitation any and all laws and regulations regarding the transfer of personal information of residents of the European Union outside the European Union, or (ii) cause a breach of any agreements with any third parties or unreasonably interfere with the use by other IMS customers of IMS services.
24.2 Customer acknowledges that (i) IMS does not monitor the content of the information passing through the Services for purposes of verifying accuracy or legal compliance, and (ii) Customer will use commercially reasonable efforts to ensure that the information it and its Authorized Users transmit thereby complies with all applicable laws and regulations, whether now in existence or hereafter enacted and in force.
24.3 In the event of any breach by Customer of any of the foregoing representations or warranties, in addition to any other remedies available at law or in equity, IMS will have the right to suspend immediately any Services if deemed reasonably necessary by IMS to prevent any harm to IMS and its business. IMS will provide notice to Customer and an opportunity to cure, if practicable, depending on the nature of the breach. Once cured, IMS will promptly restore the Services.
25. Intellectual Property Indemnity. Except for third party software including without limitation open source software, IMS will indemnify, defend and hold harmless Customer and its Affiliates from and against any lawsuit, liabilities, loss, cost or expense arising out of a third-party claim made against Customer that the IMS Technology or Services infringe on any Australian, UK or U.S. intellectual property right of a third party; provided, however, that IMS is notified in writing of such claim promptly after such claim is made upon Customer. IMS shall have the right to control any defence of the claim. In no event shall Customer settle any such claim without Interview Management Solutions' prior written approval. IMS shall have no liability or obligation if the claim arises from (i) any alteration or modification to the IMS Technology or Services other than by Interview Management Solutions, (ii) any combination of the IMS Technology or Services by Customer with other programs or data not furnished by Interview Management Solutions, or (iii) any use by Customer of IMS Technology or Services that is prohibited by this Agreement or otherwise outside the scope of use for which the IMS Technology or Services are intended.
26. Options for Infringement Claims. If any party is enjoined from using the IMS Technology, or if IMS believes that the IMS Technology may become the subject of a claim of intellectual property infringement, IMS, at its option and expense, may: (i) procure the right for Customer to continue to use the Services; (ii) replace or modify the IMS Technology so as to make it non-infringing; provided, however, that the Services continue to conform to the descriptions and/or specifications provided in the applicable Purchase Order; or (iii) terminate this Agreement, in which case IMS shall refund to Customer any and all subscription fees paid in advance by Customer for those Services not provided by IMS and provide, at Customer’s request and free of charge, the Customer Data in a database document format. This Section and the preceding Section sets forth the entire liability of IMS to Customer for any infringement by the IMS Technology or Services of any intellectual property right of any third party. Notwithstanding the foregoing, this Section does not apply to third party software including without limitation open source software.
27. Liability Cap. Except for Interview Management Solutions’ indemnity expressly provided herein and Interview Management Solutions’ confidentiality obligations, in no event shall Interview Management Solutions' aggregate liability, if any, including liability arising out of contract, negligence, strict liability in tort or warranty, or otherwise, shall not exceed the total of subscription fees payable by Customer for the three (3) billing periods immediately preceding the claim for such liability.
28. Termination by IMS for End of Life. IMS intends to continue to provide and support the Services for the term of this agreement; provided, however, if, IMS determines in its sole discretion that it is no longer feasible to support the Services, IMS may terminate this Agreement for end of life at any time by providing one hundred eighty (180) days written notice to Customer.
29. Return of Materials. Within ten (10) days of the expiration or termination of this agreement, Customer shall return to IMS any materials provided by Interview Management Solutions.
30. Assignment. Customer shall not assign this Agreement or any right or interest under this Agreement, nor delegate any work or obligation to be performed under this Agreement, without Interview Management Solutions' prior written consent. Any attempted assignment or delegation in contravention of this Section shall be void and ineffective.
31. Continuing Obligations. The following obligations shall survive the expiration or termination hereof and the distribution grace period provided above: (i) any and all warranty disclaimers, limitations of liability and indemnities granted by either party herein, (iv) any covenant granted herein for the purpose of determining ownership of, or protecting, the Proprietary Rights, including without limitation, the Confidential Information of either party, or any remedy for breach thereof, and (v) the payment of taxes, duties, or any money to IMS hereunder.
32. Arbitration. Except for actions to protect intellectual property rights and to enforce an arbitrator’s decision hereunder, all disputes, controversies, or claims arising out of or relating to this Agreement or a breach thereof shall be submitted to and finally resolved by arbitration under the rules of the Australian Centre for International Commercial Arbitration (ACICA) then in effect. There shall be one arbitrator, and such arbitrator shall be chosen by mutual agreement of the parties in accordance with ACICA rules. The arbitration shall be conducted by telephone or online. The arbitrator shall apply the laws of Australia to all issues in dispute. The controversy or claim shall be arbitrated on an individual basis, and shall not be consolidated in any arbitration with any claim or controversy of any other party. The findings of the arbitrator shall be final and binding on the parties, and may be entered in any court of competent jurisdiction for enforcement.
33. Enforcements of any award or judgment shall be governed by the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards. Should either party file an action contrary to this provision, the other party may recover attorney's fees and costs up to $1000.00.
34. Applicable Law; Jurisdiction and Venue. This Agreement shall be construed under the laws of Australia, without regard to its principles of conflicts of law.
35. Severability. If any provision of this Agreement is declared invalid or unenforceable, such provision shall be deemed modified to the extent necessary and possible to render it valid and enforceable. In any event, the unenforceability or invalidity of any provision shall not affect any other provision of this Agreement, and this Agreement shall continue in full force and effect, and be construed and enforced, as if such provision had not been included, or had been modified as above provided, as the case may be.
36. Warranty Disclaimers. EXCEPT AS MAY BE PROVIDED IN ANY SEPARATE WRITTEN AGREEMENTS SIGNED BY THE PARTIES, THE WEB SERVICES ARE PROVIDED "AS-IS", AND NEITHER WE NOR ANY OF OUR LICENSORS MAKE ANY REPRESENTATION OR WARRANTY WITH RESPECT TO SUCH WEB SERVICES. THE SERVICE PROVIDER AND ITS LICENSORS SPECIFICALLY DISCLAIM, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, RELATING TO THE WEB SERVICES, INCLUDING BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, COMPLETENESS, TIMELINESS, CORRECTNESS, NON-INFRINGEMENT, OR FITNESS FOR ANY PARTICULAR PURPOSE. THE SERVICE PROVIDERS AND ITS LICENSORS DO NOT REPRESENT OR WARRANT THAT THE WEB SERVICES: (A) WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA, (B) WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, OR (C) WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THESE DISCLAIMERS CONSTITUTE AN ESSENTIAL PART OF THIS AGREEMENT. IF IMPLIED WARRANTIES MAY NOT BE DISCLAIMED UNDER APPLICABLE LAW, THEN ANY IMPLIED WARRANTIES ARE LIMITED IN DURATION TO THE PERIOD REQUIRED BY APPLICABLE LAW. SOME STATES OR JURISDICTIONS DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY MAY LAST, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. FURTHER, CUSTOMER ACKNOWLEDGES AND AGREES THAT THAT IMS HAS NO CONTROL OVER THE INTERNET, AND THAT IMS IS NOT LIABLE FOR THE DISCONTINUANCE OF OPERATION OF ANY PORTION OF THE INTERNET OR POSSIBLE REGULATION OF THE INTERNET WHICH MIGHT RESTRICT OR PROHIBIT THE OPERATION OF THE SERVICES.
37. Limitation of Liability. IN NO EVENT SHALL THE SERVICE PROVIDER AND/OR ITS LICENSORS BE LIABLE TO ANYONE FOR ANY DIRECT, INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THE WEB SERVICES, INCLUDING WITHOUT LIMITATION THE USE OR INABILITY TO USE THE WEB SERVICES, OR FOR ANY CONTENT OBTAINED FROM OR THROUGH THE WEB SERVICES, ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION, REGARDLESS OF CAUSE, EVEN IF THE PARTY FROM WHICH DAMAGES ARE BEING SOUGHT OR SUCH PARTY'S LICENSORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
38. Force Majeure. We shall not be liable for damages for any delay or failure of delivery arising out of causes beyond our reasonable control and without our fault or negligence, including, but not limited to, Acts of God, acts of civil or military authority, fires, riots, wars, embargoes, Internet disruptions, hacker attacks, or communications failures.
39. Survival. Those clauses the survival of which is necessary for the interpretation or enforcement of this Agreement shall continue in full force and effect in accordance with their terms notwithstanding the expiration or termination hereof, such clauses to include, without limitation, the following: Warranty Disclaimers, Limitation of Liability, Confidential Information, Security, Notices, Arbitration, Applicable Law, Jurisdiction and Venue, Severability, Force Majeure, and Miscellaneous.
40. Miscellaneous. This Agreement constitutes the entire understanding of the parties with respect to the subject matter of this Agreement and merges all prior communications, understandings, and agreements. This Agreement may be modified only by a written agreement signed by the parties. The failure of either party to enforce at any time any of the provisions hereof shall not be a waiver of such provision, or any other provision, or of the right of such party thereafter to enforce any provision hereof. The application the United Nations Convention of Contracts for the International Sale of Goods is expressly excluded. This licence is written in English, and English is its controlling language.