Terms & Conditions
AGREEMENT TO TERMS AND CONDITIONS OF USE
THESE TERMS AND CONDITIONS OF USE CONSTITUTE A BINDING AGREEMENT BETWEEN YOU AND FLIPSIDE PRODIGY INC. d/b/a AGENCY ACCESS.COM.
(i) the website shall be deemed solely based in the state of New York in the United States of America; and
(ii) the website shall be deemed a passive website that does not give rise to personal jurisdiction over Agency Access, either specific or general, in jurisdictions other than the state of New York. These Terms and Conditions shall be governed by the internal substantive laws of the state of New York, without respect to its conflict of laws principles. Any claim or dispute between you and Agency Access that arises in whole or in part from the website shall be submitted to binding arbitration under the then in force rules of the American Arbitration Association. These Terms and Conditions, together with the Privacy Notice and any other legal notices published by Agency Access on the website, shall constitute the entire agreement between you and Agency Access concerning the website. If any provision of these Terms of Service is deemed invalid by a court of competent jurisdiction or a binding arbitrator, the invalidity of such provision shall not affect the validity of the remaining provisions of these Terms and Conditions, which shall remain in full force and effect. No waiver of any term of these Terms and Conditions shall be deemed a further or continuing waiver of such term or any other term, and Agency Access' failure to assert any right or provision under these Terms and Conditions shall not constitute a waiver of such right or provision. Agency Access reserves the right to amend these Terms and Conditions at any time and without notice, and it is your responsibility to review these Terms and Conditions for any changes. Your use of the website following any amendment of these Terms and Conditions will signify your assent to and acceptance of its revised terms. YOU AND AGENCY ACCESS AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE WEBSITE MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
OWNERSHIP OF WEBSITE AND ITS CONTENT
This Website is owned and operated by Agency Access. All of the information and content featured or displayed on the Website (the "Content"), including, but not limited to, listings of artists, representatives, advertising agencies, design studios, corporate art departments and support services, text, graphics, photographs, images, illustrations and software, is owned by or licensed to Agency Access or its advertisers.
"Agency Access", "agencyaccess.com" and the Agency Access or agencyaccess.com logos are trademarks and trade names (the "Trademarks") of Flipside Prodigy Inc., which you cannot use without our prior specific written permission. Nothing on the Website shall be construed as granting a license or right to use Agency Access' Trademarks without its permission.
LISTING PRODUCTS AND SUBSCRIPTION
Agency Access offers access to its database of creative professionals in advertising, editorial, book publishing, graphic design, major corporate marketing departments and other related support services. A Subscriber may purchase listings under a full access subscription service, if the Subscriber purchases a full-access subscription they enter into a purchase agreement with Agency Access.
A Subscription permits the Subscriber to view information regarding the listings and offers direct contact information for creative personnel at advertising agencies, design firms, interactive/multimedia design firms, magazine and book publishers, and in-house corporate art departments.
The Subscription also offers further detail including titles and e-mail if available, and the contact's buying habits. All information accessible with the Subscription may be downloaded.
Agency Access seeds its mailing to detect possible violation, fraud and unauthorized distribution.
Unless otherwise specified, the agreement between the Subscriber and Agency Access is for an initial period of 12 months (the "initial term").
Unless otherwise specified within the Terms and Conditions of Service of the product, service and/or program all products and/or services purchased by subscribers and provided by Agency Access, its officers, employees, agents and/or assigns will expire twelve (12) months following the date of activation of the product and/or service. Agency Access may, at its sole discretion, extend the expiration date of the product and/or service up to a maximum of six (6) months. Agency Access may, at its sole discretion, levy a charge on the subscriber for extending the expiration date of the product and/or service.
NEWSLETTERS AND PROMOTIONS
By entering into this Agreement with Agency Access you are subscribing to all email newsletters, email promotions and direct mail promotions produced by Agency Access and its affiliates. You may opt out of our email promotions and newsletter at any time by clicking the unsubscribe link located in our emails. You can also call directly and ask to be removed for any email or direct mail promotions or newsletters. Members and expired members that wish to unsubscribe need to properly select the unsubscribe links on both the newsletter and email promotions separately or contact Agency Access directly to be removed. We value your privacy, neither Agency Access nor its affiliates will sell or rent your contact information to any third parties.
Agency Access requires the Subscriber to use the data and information obtained on the Website in compliance with any and all applicable U.S. Federal and State laws, rules and regulations, including, but not limited to, those concerning fax broadcasts, e-mail transmissions, and direct marketing. A person who violates such laws, rules or regulations may be subject to civil and criminal penalties. The Subscriber shall abide by current business practices respecting the privacy of consumers and shall not imply to an individual that any specific information is known about that individual.
The Subscriber shall keep confidential user names, passwords, contacts, lists, and any other information derived from the Subscriber's use of the database and the Agency Access website. The Subscriber shall not allow any individual or entity to use or view any of the contacts or information derived from the Subscriber's relationship with Agency Access. The Subscriber shall not supply or enter any information into the database that is false, defamatory, harmful, viral in nature, vindictive or negative in any way. The Subscriber shall not use any information obtained from Agency Access for an illegal purpose or for any purpose that can be reasonably construed as objectionable.
The Subscriber agrees to protect user names and passwords. If a User ID is misplaced or is delivered to another individual, or the Subscriber allows another individual to use, view or access the database, the Subscriber shall be liable for the purchase of a full membership and any fees, including, but not limited to attorneys' fees, incurred by Agency Access to investigate and retrieve the membership cost, and the cost of a duplicate subscription and any remedy awarded to Agency Access under law or equity.
GRANT OF LICENCE
The Subscriber may access to the database to:
- use the database for promotional purposes.
- use the database for the term for which subscriber has applied for and paid.
- formulate and construct a list tailored to the Subscriber's application based upon the Subscriber's needs.
- use the database to download, search, construct a mailing list and send emails.
The Subscriber shall not:
- copy, alter or change in any way the information contained in the database.
- use the name Agency Access for promotional purposes.
- include the name Agency Access in any promotional product.
- allow any third party access to the database.
- participate in any activity deemed to be unacceptable by Agency Access.
- participate in any activity that may be construed as damaging, detrimental, or competitive to the database or Agency Access.
- interfere with the seeding of the database or the detection of a seed by Agency Access.
- sell, assign, publish, distribute, hand out, allocate, issue, dispense, allow any other entity or person access to, or convey any part of the database or any part of any information obtained through the database, without the express written consent of Agency Access.
Upon termination of this agreement, the Subscriber shall immediately discontinue using any information, software or other materials provided to the Subscriber by Agency Access. The Subscriber shall return or destroy any items relating to the services and products provided by Agency Access (including but not limited to data, media, software, hardware and electronic and printed documentation). The Subscriber shall purge any data from all stationary and removable computer storage devices and media containing data.
The Subscriber shall indemnify and hold Agency Access harmless from any unlawful use, misappropriation, or action arising from the Subscriber's use or reproduction of material obtained from the database.
Any information, software or other material provided to the Subscriber by Agency Access is for limited use and shall be confined within the limited use. The Subscriber shall not alter or construe the information for the purpose of changing its original meaning or representation.
The Subscriber's access to the database and website may be suspended or terminated upon any of the following occurrences:
- Failure to pay the membership cost.
- Suspicion by Agency Access that the Subscriber username or password has been lost, stolen, sold, conveyed or loaned to a person not entitled to view or have access to the database.
- Suspicion that the Subscriber has distributed materials to individuals or entities not entitled to access the database.
- The term of the Subscriber's Subscription has expired and has not been renewed.
- The Subscriber uses the database other than for its intended purpose.
The Subscriber shall abide by the terms of Agency Access' Security Policy (see "SECURITY" below). The Subscriber shall not, except with written consent from Agency Access, use or permit the use of the information from the database:
- to generate any statistical information;
- to prepare any comparison to other information data bases, which is sold, rented, published, furnished or in any manner provided to a third party;
- in connection with individual credit, employment or insurance applications;
- by or for the benefit of any party other than the Subscriber;
- to be published, distributed or disclosed to others;
- for the purpose of compiling, enhancing, verifying, supplementing adding to, or deleting from any mailing list, geographic or trade directories, business directories, classified directories, classified advertising, or other compilation of information which is sold, rented, published, furnished or in any manner provided to a third party.
The Subscriber must deliver to Agency Access the content of any advertisement the Subscriber wishes for Agency Access to broadcast (the "Copy") at least three days before the desired email broadcast date. All Copy is subject to Agency Access's approval. Agency Access reserves the right to reject any Copy that advertises or promotes any product or service, including, but not limited to, illegal activity, illegal products, illegal product paraphernalia, sexual paraphernalia, adult films or other media, weapons, illicit activities, chain letters, pyramid fund raising, or similar types of material. Notwithstanding Agency Access' reservation of this right, Agency Access is not liable for any failure to advise the Subscriber of the nature of any such Copy.
DETAILS OF BROADCAST
The email messages broadcast by Agency Access shall identify the members contact information and will be required to contain an opt-out feature that allows the recipient to be electronically removed from the individual member's database.
HARDWARE SOFTWARE AND DATABASE
TERMS OF PAYMENT
The Subscriber shall pay the fees charged by Agency Access in accordance with the schedule specified on the sign up form.
Agency Access does not offer refunds of any type (see "LIMITATION OF LIABILITY" below). If the Subscriber fails to pay the full amount of the charges detailed in any Agency Access invoice within 30 days of such invoice, the unpaid amount shall accrue interest at a rate of 1.5% per month (18% per annum) or the maximum rate allowed by law, if lower. The Subscriber shall pay all of Agency Access' costs of collection, including, without limitation, Agency Access' reasonable attorneys' fees if applicable.
DISCLAIMERS AND LIMITATIONS OF WARRANTIES
THIS WEB SITE AND ITS CONTENT IS PROVIDED "AS IS." AGENCY ACCESS EXCLUDES AND DISCLAIMS TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW ANY WARRANTY, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY OR FITNESS FOR A PARTICULAR PURPOSE. AGENCY ACCESS IS NOT LIABLE FOR DAMAGES OF ANY KIND ARISING FROM USE OF THIS SITE, INCLUDING, BUT NOT LIMITED TO DIRECT, INDIRECT, INCIDENTAL, PUNITIVE AND CONSEQUENTIAL DAMAGES. THE FUNCTIONS EMBODIED ON, OR IN THE MATERIALS OF THIS WEBSITE ARE NOT WARRANTED TO BE UNINTERRUPTED OR WITHOUT ERROR. THE SUBSCRIBER ASSUMES THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION DUE TO THE SUBSCRIBER'S USE OF THIS WEBSITE. EXCEPT AS OTHERWISE REQUIRED BY APPLICABLE LAW, NEITHER AGENCY ACCESS NOR ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS OR CONTRACTORS ARE LIABLE FOR DAMAGES OF ANY KIND (INCLUDING, WITHOUT LIMITATION, LOST PROFITS, DIRECT, INDIRECT, COMPENSATORY, CONSEQUENTIAL, EXEMPLARY, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES) ARISING OUT OF SUBSCRIBER'S USE OF, OR INABILITY TO USE, OR THE PERFORMANCE OF THIS WEBSITE OR THE CONTENT ON THIS WEBSITE, WHETHER OR NOT AGENCY ACCESS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Agency Access uses reasonable efforts to ensure the accuracy, correctness and reliability of the Content, but it makes no representations or warranties as to the Content's accuracy, correctness or reliability. Agency Access will not knowingly promote or display inaccurate information, provided it has actual knowledge of its inaccuracy. Agency Access will correct or remove inaccurate information within a reasonable time after receiving actual notice of its inaccuracy.
THIRD PARTY LINKS
There may be links to other websites from the Agency Access website. Such other websites are not owned, operated or controlled by Agency Access, and Agency Access is not responsible for content contained on any such website or for any loss incurred as the result of a Subscriber's use of such website. The Subscriber waives any and all claims against Agency Access regarding its inclusion of links to outside websites or the use of those websites.
LIMITATION OF LIABILITY
RELATIONSHIP OF THE PARTIES
Agency Access and the Subscriber are independent contractors, and there is no partnership or agency relationship between them.
A user of this website (the "Site") is prohibited from violating or attempting to violate the security of the Site, by (a) accessing information not intended for such user or logging onto a server or an account which the user is not authorized to access; (b) attempting to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures without proper authorization; (c) attempting to interfere with service to any user, host or network, including but not limited to, submitting a virus to the Site, overloading, "flooding," "spamming," "mail-bombing" or "crashing."
The user understands that for security purposes and to ensure that the Site remains available to all users, all network traffic is monitored to identify unauthorized attempts to upload or change information, or otherwise cause damage or conduct criminal activity. To protect the Site from unauthorized use and to ensure that the Site and the Agency Access Systems (the "Systems") are functioning properly, a user is subject to having its activities monitored and recorded by authorized personnel. Anyone using this Site or the Systems expressly consents to such monitoring and acknowledges that if such monitoring reveals evidence of possible abuse or criminal activity, Agency Access may provide the results of such monitoring to the appropriate government officials. Except for users who voluntarily provide Agency Access with personally-identifying information and except for authorized enforcement investigations, no attempt is made to identify individual users or their usage habits.
Violations of Site or System security may result in civil or criminal liability. Agency Access will investigate occurrences that may involve such violations and will cooperate with law enforcement authorities in prosecuting a user involved in such violations. A user shall not use any device, software, script or routine to interfere or attempt to interfere with the proper working of the Site or any activity being conducted on the Site. A user shall not use or attempt to use any engine, software, tool, agent or other device or mechanism (including without limitation browsers, spiders, robots, avatars or intelligent agents) to navigate or search the Site, other than the search engine and search agents available from Agency Access and other generally-available third party web browsers (for example, Netscape Navigator, Microsoft Explorer). Agency Access does not warrant the comprehensiveness, completeness, or accuracy of its databases or lists.
EUROPEAN DATABASE RIGHTS
In European Union law, DATABASE RIGHTS are sui generis, specifically coded laws on the copying and dissemination of information in computer databases (i.e. meaning of its own kind or unique in its characteristics).
A DATABASE RIGHT is considered to be a PROPERTY RIGHT comparable to but distinct from COPYRIGHTthat exists to recognize the investment that is made in compiling a database, even when this does not involve the 'creative' aspect that is reflected by copyright.
Property is defined as any physical or intangible entity that is owned by a person or jointly by a group of people or a legal entity like a corporation. Depending on the nature of the property, an owner of property has the right to consume, sell, rent, mortgage, transfer, exchange or destroy it, or to exclude others from doing these things.
Copyright is a legal concept giving the creator of original work exclusive rights to it, usually for a limited time. Generally, it is "the right to copy", but also gives the copyright holder the right to be credited for the work, to determine who may adapt the work to other forms, who may perform the work, who may financially benefit from it, and other related rights. It is a form of intellectual property (like the patent, the trademark, and the trade secret) applicable to any expressible form of an idea or information that is substantive and discrete.
On 11 March 1996 the Council of the European Union passed Directive No. 96/9/EC on the legal protection of databases, giving specific and separate legal rights (and limitations) to certain computer records. Article 1(2) defines a database as "a collection of independent works, data or other materials arranged in a systematic or methodical way and individually accessible by electronic or other means".
Non-electronic databases are also covered (paragraph 14 of the preamble). Any computer program used to create the database is not included in Directive No. 96/9/EC (paragraph 23 of the preamble), however Copyright protection of software is governed by Directive 91/250/EEC.
Under Article 3, databases which, "by reason of the selection or arrangement of their contents, constitute the author's own intellectual creation" are protected by copyright as collections: no other criterion may be used by Member States. Any copyright in the database is separate from and without prejudice to the copyright in the entries.
This shall not prevent the lawful use of the database by a lawful user (Article 6(1)).
Database rights specifically protect the "qualitatively and/or quantitatively substantial investment in either the obtaining, verification or presentation of the contents". Database Rights are held in the first instance by the person or corporation who made the substantial investment.
The holder of Database Rights may prohibit the extraction and/or re-utilization of the whole or of a substantial part of the contents, the "substantial part" is evaluated qualitatively and/or quantitatively and reutilization is subject to the exhaustion of rights, which in the case of data is 15 years.
Users may not "perform acts which conflict with normal exploitation of the database or unreasonably prejudice the legitimate interests of the maker of the database", nor prejudice any copyright in the entries.
Database Rights last for fifteen years from the end of the year that the database was made available to the public, or from the end of the year of completion for private databases (Article 10). Any substantial change which could be considered to be a substantial new investment will lead to a new term of database rights, which could, in principle, be perpetual. Database Rights are independent of any copyright in the database, and the two could, in principle, be held by different people. An owner has the right to object to the copying of substantial parts of their database, even if data is extracted and reconstructed piecemeal. Database Rights under the EU are created automatically, vested in the employers of creators (when the action of creation was part of employment), and do not have to be registered to have effect.
OFFERED CONTENT AND USER SUBMISSIONS
The Agency Access website allows for the submission of Offered Content, including, but not limited to images, graphics, video, audio, text, captions, comments, messages, and network communications, submitted by you and other users. Some Offered Content is limited to subscribers while other User Submissions may be made by users who are not subscribers. You understand that whether or not such Offered Content or User Submissions are published, Agency Access does not guarantee any confidentiality with respect to those submissions.
You shall be solely responsible for your own Offered Content and/or User Submissions and the consequences of posting or publishing them. With regard to such Offered Content and User Submissions, you affirm, represent, and/or warrant that:
(i) you own or have the necessary licenses, rights, consents, and permissions to use and authorize Agency Access to use all patent, trademark, trade secret, copyright or other proprietary rights in and to any and all Offered Content and/or User Submissions to enable inclusion and use of such Offered Content and/or User Submissions in the Implied Purpose contemplated by the website and these Terms of and Conditions of Use; and
(ii) you have the written consent, release, and/or permission of each and every identifiable individual person in the Offered Content to use the name or likeness of each and every such identifiable individual person to enable inclusion and use of the Offered Content in the manner contemplated by the website and these Terms and Conditions. For clarity, you retain all of your ownership rights in your Offered Content. However, by submitting the Offered Content to Agency Access, you hereby grant Agency Access a worldwide, non-exclusive, royalty-free, sub-licenseable and transferable license to use, reproduce, distribute, prepare derivative works of, display, and perform the Offered Content in connection with the website and Agency Access's business, including without limitation for promoting and redistributing part or all of the website (and derivative works thereof) in any media formats and through any media channels. The foregoing license granted by you terminates upon the removal or deletion of such Offered Content from the website.
In connection with Offered Content and User Submissions, you further agree that you will not:
(i) submit material that is protected by copyright, by trade secret, or otherwise subject to third party proprietary rights, including privacy and publicity rights, unless you are the owner of such rights or have permission from their rightful owner to post the material and to grant Agency Access all of the license rights granted herein;
(ii) publish falsehoods or misrepresentations that could damage Agency Access or any third party;
(iii) upload, post, e-mail, post links to or submit material that is harmful, abusive, tortious, vulgar, unlawful, obscene, defamatory, libelous, threatening, pornographic, harassing, hateful, racially, sexually or ethnically offensive, or encourages conduct that would be considered a criminal offense, give rise to civil liability, violate any law, or is otherwise inappropriate;
(iv) post advertisements or solicitations of business other than advertisements or solicitations of business reasonably necessary to use the website for its Intended Purpose;
(v) impersonate another person;
(vi) involve the transmission of "junk mail," "chain letters," "pyramid schemes," or unsolicited mass mailing, instant messaging, "spimming," or "spamming";
(vii) upload, post, email, otherwise transmit, or post links to any material that exploits the images of children under 18 years of age, or that discloses personally identifying information belonging to children under 18 years of age;
(viii) harm minors in any other way;
(ix) make any sexual request on behalf of a minor or make any sexual request of a minor;
(x) "stalk" or otherwise harass another; collect or store personally identifying information about other users for unlawful purposes;
(xi) impersonate any person or entity, including, but not limited to, Agency Access officials, employees, consultants, or otherwise, or falsely state or otherwise misrepresent your affiliation with a person or entity;
(xii) upload, post, email, otherwise transmit, or post links to any material that you do not have a right to transmit under any law or regulation or under contractual or fiduciary relationships (such as inside information, or proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements);
(xiii) upload, post, email, or otherwise transmit, or post links to any material that facilitates hacking;
(xiv) upload, post, email, otherwise transmit, or post links to any material that contains software viruses, worms, Trojan horses, time bombs, trap doors or any other computer code, files or programs or repetitive requests for information designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment or to diminish the quality of, interfere with the performance of, or impair the functionality of the website;
(xv) use automated means, including spiders, robots, crawlers, or the like to download data from any Agency Access database;
(xvi) harvest, modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display or in any way exploit any Offered Content from any Agency Access database, including, without limitation, by incorporating data from any Agency Access database into any email or "white pages" products or services, whether browser-based, based on proprietary client-site applications, web-based, or otherwise;
(xvii) sell, distribute, or make any commercial use of data obtained from any Agency Access database or make any other use of data from any Agency Access database in a manner which could be expected to offend the person for whom the data is relevant;
(xviii) create and maintain an Agency Access user profile that contains hyperlinks to content not permitted on Agency Access;
(xix) disrupt the normal flow of dialogue in a chat room, cause a screen to "scroll" faster than other users of the website are able to type, or otherwise act in a manner that negatively affects other users' ability to engage in real time exchanges;
(xx) interfere with or disrupt the website or servers or networks connected to the website, or disobey any requirements, procedures, policies or regulations of networks connected to the website;
(xxi) access the website after your account or access has been terminated by Agency Access; or
(xxii) upload, post, email, otherwise transmit, or post links to any material, or act in any manner that is offensive to the Agency Access community or the spirit of these Terms and Conditions.
Agency Access does not endorse any Offered Content or User Submission or any opinion, recommendation,or advice expressed therein, and Agency Access expressly disclaims any and all liability in connection with Offered Content and User Submissions. Agency Access does not permit copyright infringing activities and infringement of intellectual property rights on its website, and Agency Access will remove such Offered Content if properly notified that such Offered Content infringes on another's intellectual property rights. Agency Access reserves the right to remove Offered Content and other User Submissions without prior notice. Agency Access will also terminate a User's access to its website if such User is determined to be a repeat infringer. A repeat infringer is a User who has been notified of infringing activity more than twice and/or has had Offered Content and/or User Submissions removed from the website more than twice. Agency Access also reserves the right to decide whether Offered Content or a User Submission is appropriate and complies with these Terms and Conditions for violations other than copyright infringement and violations of intellectual property law, such as, but not limited to, pornography, obscene or defamatory material, or excessive length. Agency Access may remove such Offered Content and/or User Submissions and/or terminate a User's access for uploading such material in violation of these Terms and Conditions at any time, without prior notice and at its sole discretion. If Agency Access terminates your subscription because you have breached these Terms and Conditions you shall not be entitled to the refund of any unused portion of subscription fees.
In particular, if you are a copyright owner or an agent thereof and believe that any Offered Content and/or User Submission or other content infringes upon your copyrights, you may submit a notification pursuant to the Digital Millennium Copyright Act ("DMCA") by providing our Copyright Agent with the following information in writing (see 17 U.S.C 512(c)(3) for further detail):
(i) a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
(ii) identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site;
(iii) identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled and information reasonably sufficient to permit the service provider to locate the material;
(iv) information reasonably sufficient to permit the service provider to contact you, such as an address, telephone number, and, if available, an email address;
(v) a statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
(vi) a statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
Agency Access' designated Copyright Agent for notifications of claimed infringement can be reached at:
Agency Access Inc.
360 Motor Parkway, Suite 700
Hauppauge, NY, 11788, U.S.A.
You acknowledge that if you fail to comply with all of the requirements of this Section 5(D), your DMCA notice may not be valid.
You understand that when using the website, you will be exposed to Offered Content and/or User Submissions from a variety of sources, and that Agency Access is not responsible for the accuracy, usefulness, safety, or intellectual property rights of or relating to such Offered Content and/or User Submissions. You further understand and acknowledge that you may be exposed to Offered Content and/or User Submissions that are inaccurate, offensive, indecent, or objectionable, and you agree to waive, and hereby do waive, any legal or equitable rights or remedies you have or may have against Agency Access with respect thereto, and agree to indemnify and hold Agency Access, its owners/operators, directors, agents, affiliates, and/or licensors, harmless to the fullest extent allowed by law regarding all matters related to your use of the website.
Agency Access permits you to link to materials on the website for personal purposes and as may be reasonably necessary to use the website for its Intended Purpose only. Agency Access reserves the right to discontinue any aspect of the website at any time.
The Agency Access blog is a blog for professional visual artists, and the editorial staff reserves the right to accept or deny any and all blog submissions. You acknowledge the sole right of Agency Access to reject or remove blog submissions that do not, in the sole opinion of the editorial staff, reflect the content, style and professionalism it seeks to represent. You also acknowledge the right of the editorial staff to evaluate and rank blog submissions as it deems appropriate. As a result of its editorial activities, some blog posts may achieve greater or lesser exposure, and by submitting a blog post, you acknowledge the possibility of this outcome.
The relief offered by this force majeure provision is the exclusive remedy available to the Nonperforming Party with respect to aForce Majeure Event. The parties waive the common law defenses of impossibility and impracticability with respect to the Force Majeure Events and any event or act that might be deemed a Force Majeure Event under the common law.
Specific Performance. The Subscriber recognizes that a breach of this agreement by the Subscriber will cause irreparable injury and that money damages may be inadequate to remedy the injury to Agency Access. Therefore, in the event of a breach or threatened breach of this agreement, Agency Access is entitled to equitable relief, including injunctive relief and specific performance, without the posting of a bond or other security, and without proof of actual damages.
Jurisdiction and Venue. A Subscriber bringing a legal action or proceeding against Agency Access arising out of or relating to this agreement or the transactions it contemplates shall bring the legal action or proceedings in either the United States District Court for the Eastern District of New York, or in any court of the State of New York sitting in Suffolk County.
The Subscriber waives, to the fullest extent permitted by law, (i) any objection which it may now or later have to the laying of venue of any legal action or proceeding arising out of or relating to this agreement and all of the transactions it contemplates, brought in the United States District Court for the Eastern District of New York or any court of the State of New York sitting in Suffolk County; and (ii) any claim that any action or proceeding brought in any such court has been brought in an inconvenient forum.
GENERAL AGREEMENT FOR CAMPAIGN MANAGER PROGRAM SERVICES
In this Agreement, the party who is contracting to receive services will be referred to as "The Client" and the party who will be providing the services will be referred to as "Agency Access."
This Agreement for Services (this "Agreement") is made effective as of the date of invoice from Agency Access to the Client, by and between The Client and Flipside Prodigy Inc. (d.b.a. Agency Access), of 360 Motor Pkwy, Ste 700. Hauppauge, NY 11788.
1. PAYMENT FOR SERVICES. In exchange for the Services detailed in the invoice The Client will pay compensation to Agency Access for the Services) as detailed in this Agreement.
Agency Access's invoice will be due and payable by The Client upon receipt unless alternative payment schedules have been agreed. Interest shall be payable at the rate of 1.5% per month on all overdue accounts.
2. TERM. This Agreement will remain in effect for a minimum term of (12) months and a maximum term of (15) months. However clauses 5 and 6 will survive for an additional twelve (12) months following the termination of this Agreement.
3. WORK PRODUCT OWNERSHIP. Work product that is proprietary to the Client remains in the ownership of the client at all times. Any other copyrightable works, ideas, discoveries, inventions, patents, products, or other information (collectively the "Work Product") developed in whole or in part by Agency Access in connection with the Services will be the exclusive property of Agency Access. Upon request, The Client will execute all documents necessary to confirm or perfect the exclusive ownership of Agency Access to the Work Product.
4. SCHEDULES. It is a condition of the Campaign Manager series of program(s) services ("CM Program") that participants make all reasonable efforts to maintain the schedule(s) ("Schedules") set out within the CM Program(s) and/or any Extended Program(s) ("Extended Program") and to comply with all requests, requirements and deadlines as set out within the CM Program(s) and/or any Extended Program(s).
Should the program participant fail to adhere to the Schedules and/or reasonably comply with all requests, requirements and deadlines set out within the CM Program(s) and/or any Extended Program(s) which necessitates additional time in order to complete the CM Program(s) and/or any Extended Program(s), Agency Access will levy an additional charge of one hundred dollars ($100) per month for a maximum of six (6) months in order for the program participant to continue and complete the program.
Should a program participant fail to adhere to schedules and/or reasonably comply with all requests, requirements and deadlines set out within the CM program(s) and/or any Extended Program(s) which necessitates even further additional time in order to complete the program and program participant elects not to extend the program long enough to complete all of the remaining portions of the program it is understood and agreed that (i) Agency Access will not accelerate component(s) within the program in order to complete it within the scheduled program timeframe, (ii) any unused services within the Campaign Manager Program(s) package originally purchased by participant will expire, and (iii) Agency Access will not be under any obligation to refund any money for any of the expired services.
5. CONFIDENTIALITY. Agency Access, and its employees, agents, or representatives will not at any time or in any manner, either directly or indirectly, use for the personal benefit of Agency Access, or divulge, disclose, or communicate in any manner, any information that is proprietary to The Client. Agency Access and its employees, agents, and representatives will protect such information and treat it as strictly confidential. This provision will continue to be effective after the termination of this Agreement.
Upon termination of this Agreement, unless otherwise agreed, Agency Access will return to The Client all records, notes, documentation and other items that were used, created, or controlled by Agency Access during the term of this Agreement.
Neither Agency Access nor The Client will, without the other's prior written consent disclose to any third party any information concerning the business or method of working of the other party which may be revealed to it during the period of the Agreement and for a period of 12 (twelve) months after termination of this Agreement except as required by law or to the extent that such information may become public knowledge or may be acquired or generated by either party independently from the other otherwise than by reason of a breach of this clause.
6. PERSONNEL. Without the prior written consent of the other party Agency Access nor The Client shall for the duration of this Agreement or for a period of 12 (twelve) months after termination of the Agreement employ, attempt to employ or procure the employment by third party of any person who has been in the employment of the other the preceding twelve months.
7. WARRANTY. Agency Access shall provide its services and meet its obligations under this Agreement in a timely and workmanlike manner, using knowledge and recommendations for performing the services which meet generally acceptable standards in Agency Access's community and region, and will provide a standard of care equal to, or superior to, care used by service providers similar to Agency Access on similar projects.
8. REMEDIES. In addition to any and all other rights a party may have available according to law, if a party defaults by failing to substantially perform any provision, term or condition of this Agreement (including without limitation the failure to make a monetary payment when due), the other party may terminate the Agreement by providing written notice to the defaulting party. This notice shall describe with sufficient detail the nature of the default. The party receiving such notice shall have 10 days from the effective date of such notice to cure the default(s). Unless waived by a party providing notice, the failure to cure the default(s) within such time period shall result in the automatic termination of this Agreement.
9. NO LIABILITY FOR CONSEQUENTIAL DAMAGES. It is expressly agreed that in no event shall Agency Access, its licensors, or suppliers be liable for any damages whatsoever (including, without limitation, damages for lost profits, loss of data, business interruption, or other consequential, exemplary, special or indirect losses) arising from Client's use, or inability to use, the services or work products produced by Agency Access, regardless of whether Agency Access has been advised of the possibility of such damages. Some States do not allow the limitation or exclusion of liability for incidental or consequential damages, so the above limitation or exclusion may not necessarily apply to Client.
Except in respect of liability for death or personal injury arising from Agency Access's negligence or in respect of fraudulent misrepresentation (which in both cases, shall be unlimited), Agency Access's entire liability under the Agreement shall be limited to the amount actually paid by Client for the services provided by Agency Access in the month of Client's claim.
10. ENTIRE AGREEMENT. This Agreement contains the entire agreement of the parties, and there are no other promises or conditions in any other agreement whether oral or written concerning the subject matter of this Agreement. This Agreement supersedes any prior written or oral agreements between the parties.
11. SEVERABILITY. If any provision of this Agreement will be held to be invalid or unenforceable for any reason, the remaining provisions will continue to be valid and enforceable. If a court finds that any provision of this Agreement is invalid or unenforceable, but that by limiting such provision it would become valid and enforceable, then such provision will be deemed to be written, construed, and enforced as so limited.
12. AMENDMENT. This Agreement may be modified or amended in writing, if the party obligated under the amendment signs the writing.
13. FORCE MAJEURE. Neither party shall be liable to the other for any default in the performance of this Agreement by reason of any act or cause beyond the reasonable control of such party.
14. GOVERNING LAW. This Agreement shall be construed in accordance with the laws of the State of New York and the parties agree to submit to the exclusive jurisdiction of the Superior or State Courts of Suffolk County in connection with any legal actions hereunder.
15. NOTICE. Any notice or communication required or permitted under this Agreement shall be sufficiently given if delivered in person or by certified mail, return receipt requested, to the address set forth in the opening paragraph or to such other address as one party may have furnished to the other in writing.
16. ASSIGNMENT. Neither party may assign or transfer this Agreement without the prior written consent of the non-assigning party, which approval shall not be unreasonably withheld.
TERMS AND CONDITIONS OF ESTIMATING ASSIGNMENT
The Estimating Assignment (the "Assignment") is made effective as of the date first set out overleaf, by and between The Client and Flipside Prodigy Inc. (d.b.a. Agency Access), of 360 Marcus Blvd, Ste. 700. Hauppauge, NY 11788. The party who is contracting to receive services will be referred to as "The Client" and the party who will be providing the services will be referred to as "Agency Access."
1. PAYMENT FOR SERVICES. In exchange for the Services detailed overleaf The Client will pay compensation to Agency Access for the Services as detailed in these Terms and Conditions.
Agency Access's invoice will be due and payable by The Client upon receipt unless alternative payment schedules have been agreed. Interest shall be payable at the rate of 1.5% per month on all overdue accounts.
2. WORK PRODUCT OWNERSHIP. Work product that is proprietary to the Client remains in the ownership of the client at all times. Any other copyrightable works, ideas, discoveries, inventions, patents, products, or other information (collectively the "Work Product") developed in whole or in part by Agency Access in connection with the Services will be the exclusive property of Agency Access. Upon request, The Client will execute all documents necessary to confirm or perfect the exclusive ownership of Agency Access to the Work Product.
3. CONFIDENTIALITY. Agency Access, and its employees, agents, or representatives will not at any time or in any manner, either directly or indirectly, use for the personal benefit of Agency Access, or divulge, disclose, or communicate in any manner, any information that is proprietary to The Client. Agency Access and its employees, agents, and representatives will protect such information and treat it as strictly confidential. This provision will continue to be effective after the conclusion of this Assignment.
Unless otherwise agreed, Agency Access will return to The Client all records, notes, documentation and other items that were used, created, or controlled by Agency Access during the term of this Assignment.
Neither Agency Access nor The Client will, without the other's prior written consent disclose to any third party any information concerning the business or method of working of the other party which may be revealed to it during the period of the Assignment and for a period of 12 (twelve) months after the conclusion of this Assignment except as required by law or to the extent that such information may become public knowledge or may be acquired or generated by either party independently from the other otherwise than by reason of a breach of this clause.
4. WARRANTY. Agency Access shall provide its services and meet its obligations during this Assignment in a timely and workmanlike manner, using knowledge and recommendations for performing the services which meet generally acceptable standards in Agency Access's community and region, and will provide a standard of care equal to, or superior to, care used by service providers similar to Agency Access on similar projects. Client is required to approve the Assignment in writing by email or by letter to Agency Access prior to the submission of the Assignment.
CLIENT HEREBY WARRANTS THAT CLIENT UNDERSTANDS (i) THAT AGENCY ACCESS DOES NOT GUARANTEE THAT THE ASSIGNMENT CONTEMPLATED HEREUNDER WILL HAVE A SUCCESSFUL OUTCOME, AND (ii) THAT ESTIMATES ARE SUBJECT TO A NORMAL TRADE VARIANCE OF TEN (10) PER CENT.
5. REMEDIES. In addition to any and all other rights a party may have available according to law, if a party defaults by failing to substantially perform any provision, term or condition of this Assignment (including without limitation the failure to make a monetary payment when due), the other party may terminate the Assignment by providing written notice to the defaulting party. This notice shall describe with sufficient detail the nature of the default. The party receiving such notice shall have 10 days from the effective date of such notice to cure the default(s). Unless waived by a party providing notice, the failure to cure the default(s) within such time period shall result in the automatic termination of this Assignment.
6. NO LIABILITY FOR CONSEQUENTIAL DAMAGES. It is expressly agreed that in no event shall Agency Access, its licensors, or suppliers be liable for any damages whatsoever (including, without limitation, damages for lost profits, loss of data, business interruption, or other consequential, exemplary, special or indirect losses) arising from Client's use, or inability to use, the services or work products produced by Agency Access, regardless of whether Agency Access has been advised of the possibility of such damages. Some States do not allow the limitation or exclusion of liability for incidental or consequential damages, so the above limitation or exclusion may not necessarily apply to Client.
Except in respect of liability for death or personal injury arising from Agency Access's negligence or in respect of fraudulent misrepresentation (which in both cases, shall be unlimited), Agency Access‘s entire liability under the Agreement shall be limited to the amount actually paid by Client for the services provided by Agency Access in the month of Client's claim.
7. ENTIRE AGREEMENT. This document contains the entire agreement of the parties pertaining to the Assignment, and there are no other promises or conditions in any other agreement whether oral or written concerning the subject matter of this document. This document supersedes any prior written or oral agreements between the parties.
8. SEVERABILITY. If any provision of these Terms and Conditions will be held to be invalid or unenforceable for any reason, the remaining provisions will continue to be valid and enforceable. If a court finds that any provision of these Terms and Conditions is invalid or unenforceable, but that by limiting such provision it would become valid and enforceable, then such provision will be deemed to be written, construed, and enforced as so limited.
9. AMENDMENT. This document may be modified or amended in writing, if the party obligated under the amendment signs the writing.
10. FORCE MAJEURE. Neither party shall be liable to the other for any default in the performance of this Assignment by reason of any act or cause beyond the reasonable control of such party.
11. GOVERNING LAW. This document shall be construed in accordance with the laws of the State of New York and the parties agree to submit to the exclusive jurisdiction of the Superior or State Courts of Suffolk County in connection with any legal actions hereunder.
12. NOTICE. Any notice or communication required or permitted under these Terms and Conditions shall be sufficiently given if delivered in person or by certified mail, return receipt requested, to the address set forth in the opening paragraph or to such other address as one party may have furnished to the other in writing.
13. ASSIGNMENT. Neither party may assign or transfer this Assignment without the prior written consent of the non-assigning party, which approval shall not be unreasonably withheld.
The EU adopted the Directive on Data Protection (the "EU Directive"), which requires EU member states to adopt laws protecting Personal Data collected within their borders. These laws must, among other provisions, restrict the transfer of Personal Data only to countries that have data protection laws deemed "adequate" under standards established in the EU Directive. The U.S. Department of Commerce and the European Commission have agreed on the Principles to enable U.S. Companies to satisfy the requirement under EU law that adequate protection be given to Personal Data transferred from the EU to the U.S.
"agencyaccess.com" - means Flipside Prodigy Inc., a New York corporation, and its domestic and foreign subsidiaries, divisions, groups, and affiliates.
"Identifiable Person" - means a natural person that is or can be identified, directly or indirectly, as a particular person by reference to an identification number or to one or more aspects of the person's physical, physiological, mental, economic, cultural or social identity. Identifiable Persons may include any employee, applicant, former employee, or retiree of Flipside Prodigy Inc, its operating divisions, or subsidiaries in the EU.
- is any information about an Identifiable Person that is within the scope of the EU Directive;
- is received by Agency Access in the U.S. from the EU;
- is recorded in any form;
- is about, or pertains to, a specific individual; and can be linked to that individual.
Personal Data does not include information that is encoded, made anonymous, or publicly available information that has not been combined with non-public Personal Data.
"Processing" - means any online, offline or manual processing and includes such activities as copying, filing, and inputting Personal Data into a database.
"Sensitive Data" - is data that pertains to medical or health conditions, racial or ethnic origin, political opinions, religious or philosophical beliefs, trade union membership, sexual orientation or any other data that is identified as "sensitive" by the Identifiable Person.
Where Agency Access collects Personal Data directly from Identifiable Persons in the EU, it will inform them about the type of Personal Data collected, the purposes for which it collects and uses the Personal Data, the types of non-agent third parties to which Agency Access discloses or may disclose that information, and the choices and means, if any, Agency Access offers individuals for limiting the use and disclosure of their Personal Data. Notice will be provided in a clear and conspicuous language when individuals are first asked to provide Personal Data to Agency Access, or as soon as practicable thereafter, and in any event before Agency Access uses or discloses the information for a purpose other than that for which it was originally collected. Where Agency Access receives Personal Data from their subsidiaries or operating divisions in the EU, it will use and disclose such information in accordance with the notices provided by such entities and the choices made by the individuals to which the Personal Data relates.
To the extent practical and appropriate, Agency Access collects Personal Data directly from the Identifiable Person. In those cases where Agency Access collects Personal Data from other persons, it takes measures to respect the privacy preferences of the Identifiable Persons. Examples of when Agency Access may seek information from others include, without limitation, evaluating employees, recruiting, benefit administration and succession planning.
Agency Access will offer Identifiable Person(s) the opportunity to choose (opt-out) whether their Personal Data is (a) to be disclosed to a non-agent third party or (b) to be used for a purpose other than the purpose for which it was originally collected or subsequently authorized by the individual. In addition, where consent of Identifiable Persons or their representatives is required by law, contract or agreement for the collection, use, or disclosure of Personal Data, Agency Access will request such consent and respect the Identifiable Person's choice in such matters.
In certain limited or exceptional circumstances, in accordance with the Safe Harbor Principles, Agency Access may disclose Personal Data without notice or the consent of the Identifiable Person. For example, this may occur when Agency Access is required to disclose information by law or legal process or in the vital interests of the Identifiable Person, such as when life or health are at stake.
Except as provided by the Safe Harbor Principles or applicable law, an Identifiable Person must give affirmative permission (opt in consent) before Agency Access will disclose Sensitive Data to a third party or use Sensitive Data for a purpose other than those for which it was originally collected or subsequently authorized by the Identifiable Person. Agency Access will provide Identifiable Persons with reasonable mechanisms to exercise their choices.
Agency Access takes commercially reasonable precautions to protect Personal Data against loss, misuse and unauthorized access, disclosure, alteration, destruction and theft. These precautions include password protections for online information systems and restricted access to Personal Data. Employees and subscribers are responsible for assisting to maintain security through safeguarding Personal Data, e.g., by protecting passwords used to access Agency Access's computer systems, by keeping paper records under lock and key when not in use, and by disposing of files and reports no longer needed in a secure manner.
Agency Access takes reasonable steps to keep Personal Data accurate, complete, and up-to-date. Each Identifiable Person is responsible for informing Agency Access or its EU affiliates or subsidiaries of any changes in Personal Data so that the information that Agency Access possesses about him or her is accurate, complete and up-to-date. Agency Access retains Personal Data only as long as necessary to meet the purposes for which it was collected or as required by law, contractual agreement or the Safe Harbor Principles. Agency Access uses reasonable procedures, following retention guidelines, to ensure that it archives or destroys Personal Data no longer required for the purposes for which it was originally collected, unless otherwise agreed to by the Identifiable Person.
Agency Access provides Identifiable Persons with a reasonable opportunity to examine their Personal Data, to challenge its accuracy and to have it corrected, amended or deleted as appropriate, subject to certain exceptions. Upon request, Identifiable Persons will be given reasonable access to the Personal Data Agency Access possesses about them. Reasonable access means that requests for access are made during normal business hours, following Agency Access standard procedures, and that the frequency of access requests is not excessive. If an Identifiable Person is denied access to Personal Data, Agency Access will provide such Identifiable Person with the reason(s) for denying access and a contact point for further inquiries. If the Identifiable Person notifies Agency Access that the Personal Data on file is incorrect and provides Agency Access with appropriate supporting documentation, Agency Access will either correct the Personal Data or direct the Identifiable Person to the source of the information for correction. If, upon review, Agency Access believes that the existing Personal Data is correct, Agency Access will inform the Identifiable Person. If the Identifiable Person continues to dispute the accuracy of the Personal Data, Agency Access will note that dispute in the record of the Identifiable Person contained in the Agency Access database upon written request.
The Safe Harbor Principles provide for some exceptions to the obligation to provide access to Personal Data. Access to confidential or proprietary information, such as business reorganization or succession plans, or where granting access has to be balanced against the privacy interests of others, may be restricted. In addition, access may be denied when the information requested relates to an ongoing investigation, litigation or potential litigation, where the burden or expense of providing access would be disproportionate to the risks to the privacy of the Identifiable Person or when the rights of persons other than the Identifiable Person would be violated.
Enforcement and Dispute Resolution
The Chief Executive Officer of Agency Access is responsible for:
- Overseeing responses to inquiries and resolutions of complaints relating to the privacy of Identifiable Persons;
This policy may be amended from time to time, consistent with the requirements of the Safe Harbor Principles. A notice of any amendment will be posted on Agency Access's web page at www.agencyaccess.com.
Terms and Conditions