7. ADDITIONAL TERMS
7.1 Third-Party Services. The services provided to Licensee under this Agreement include certain services developed, provided or maintained by third-party service providers of Licensor (“Third Party Providers”). Access to or use of any those services (“Third Party Services”) by Licensee is subject to any separate agreement that Licensee may enter into (or may have entered into) relating to those Third Party Services (each, a “Third Party Service Agreement”).
The terms of any Third Party Service Agreement will apply to the applicable Third Party Services provided under that Third Party Service Agreement in addition to the terms of this Agreement. Except as set forth in this Agreement, the terms of any Third Party Service Agreement will control in the event of a conflict between the terms of this Agreement and that Third Party Service Agreement. Each Third Party Provider retains all right, title and interest in and to all Third Party Services and all software, hardware or other technology used to provide those services, and any additions, improvements, updates, and modifications thereto.
Each Third Party Provider will be a beneficiary of the terms of this Agreement as to the Third Party Services provided by the Third Party Provider and will have all rights necessary to enforce this Agreement against Licensee in the case of any breach of those terms.
7.2 Content. Licensee will be responsible for all data, information and other content (“Content”) provided by Licensee in connection with the services provided under this Agreement. Licensee will not provide and will not permit any third party to provide or to use the services provided under this Agreement to provide, any Content that:
(a) infringes, misappropriates or violates any intellectual property or other rights of any third-party;
(b) is defamatory, harmful to minors, obscene or child pornographic;
(c) contains any viruses or programming routines intended to damage the services or any software, hardware or other technology used to provide the services or surreptitiously intercept or expropriate any data or information; or
(d) is false, misleading or inaccurate.
Licensor and its Third-Party Providers will not be responsible or liable for any deletion, correction, destruction, damage, loss or failure to store or back-up any Content. Licensor and its Third Party Providers may take remedial action if any Content violates this Section, however Licensor and its Third Party Providers are under no obligation to review any Content for accuracy or potential liability.
7.3 Performance or Benchmark Testing. Licensee may not disclose the results of any benchmark test using the LockedOn program to any third party without Licensor’s prior written approval. This obligation shall continue in full force and effect for a period of two (2) years after the date of such testing.
7.4 Consent to receiving emails. You agree to receive emails from LockedOn.
7.5 Consent to use of data. You agree that Licensor and its affiliates may collect and use Content and technical information you provide as a part of services related to the LockedOn program. You also agree that Licensor may use information and statistics concerning your use of the LockedOn program and that these may be displayed publicly on the Licensor’s website and the LockedOn program. You also agree that your user name on the LockedOn program and your listings, sales and commissions may be displayed publicly on the Licensor’s website and the LockedOn program as part of the Licensor’s rankings of users of the LockedOn program, such as its World Rankings system.
7.6 Governing Law. This Agreement shall be construed, and the legal relations between the parties hereto shall be determined, in accordance with the laws of New South Wales Australia, excluding its conflicts of law principles. The venue for any claims arising under this Agreement shall be the courts located in New South Wales, Australia and the parties agree to submit to the exclusive personal jurisdiction of such courts.
7.7 Force Majeure. Except with respect to the obligation to pay the Licensee fees when due, neither party shall be deemed in default of this Agreement because of a delay or failure in performance of its obligation resulting from any cause beyond its reasonable control (a “Force Majeure”), provided it gives reasonably prompt notice of the Force Majeure condition to the other party and uses reasonable efforts to mitigate the delay or failure.
7.8 Severability. If any provision of this Agreement is unenforceable, such provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions will continue in full force and effect. Without limiting the generality of the foregoing, the parties agree that Clause 6 will remain in effect notwithstanding the unenforceability of any other provision of this Agreement.
7.9 Entire agreement. This Agreement and the description of the LockedOn program on the Licensor’s website constitutes the entire agreement between the parties and supersedes all prior or contemporaneous conditions, agreements, communications or representations, whether oral or written, relating to the subject matter hereof. The Licensee acknowledges that it has not relied on any statement or representation by the Licensor or an employee or agent of the Licensor in entering into this Agreement.
7.10 Disclosure. The Licensor receives commissions for third party services providers such as SMS credits, and property export (“portal push”) services.