‘Retail Price Professional-Beta version
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(“Provider”) and any company (“Company”) and any person employed by Company and
authorized by Company to act on behalf of Company (“User”) who is a registered user of the
services Provider provides, including access to information and data about products and pricing associated with the tire and vehicle industries (the “Service”) through Web sites owned, operated and provided by Provider (the “Web Sites”).
BY CHECKING THE ACCEPTANCE BOX OR ACCESSING, USING OR INSTALLING
ANY PART OF THE SERVICE, USER AND, THROUGH THE AUTHORIZATION OF USER
BY COMPANY, COMPANY SIMULTANEOUSLY EXPRESSLY AGREES AND
CONSENTS TO BE BOUND BY ALL OF THE TERMS OF THIS AGREEMENT IF USER
DOES NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, USER MUST NOT
CHECK THE BOX INDICATING ACCEPTANCE, PROVIDER WILL PROMPTLY CANCEL
THIS TRANSACTION AND USER MAY NOT ACCESS, USE OR INSTALL ANY PART OF
1. Service Terms and Limitations
a. Description. The Service is proprietary to Provider and is protected by intellectual property laws and international intellectual property treaties. User’s access to the Service is licensed and not sold. Provider agrees to provide User with a personal, non-transferable and non-exclusive account, which enables User to access and use the Service.
b. The Service will be limited to a total number of five (5) Users.
c. Accessibility. User agrees that from time to time the Service may be inaccessible or inoperable for any reason, including, without limitation: (i) equipment malfunctions; (ii) periodic maintenance procedures or repairs which Provider may undertake from time to time; or (iii) causes beyond the control of Provider or which are not reasonably foreseeable by Provider.
d. Equipment. User shall be solely responsible for providing, maintaining and ensuring
compatibility with the Service, all hardware, software, electrical and other physical requirements for User’s use of the Service, including, without limitation, telecommunications and internet access connections and links, web browsers or other equipment, programs and services required to access and use the Service.
e. Relationship to Other Agreements. This Agreement governs the use of the Service provided via the Web Sites. The terms and conditions of this Agreement do not alter, control or otherwise affect the terms and conditions of any other agreement governing the relationship between Provider and Company, or the payment obligations of either Company or Provider to the other (the “Other Agreements”). If any provision of this Agreement is in conflict with the provisions of any Other Agreements, the provisions of the Other Agreements shall control.
f. Links. The Web Sites may contain links to third party sites that Provider does not own or
maintain. With respect to those sites, Provider assumes no liability, and does not endorse or
make any representations about any information, products, or services associated with those sites, or any results that may be obtained from using such sites. User’s access and use of such third-party sites and use of any information obtained as a result of that access, is at User’s sole risk.
g. Software. If User downloads software from the Web Sites, the software, including all files,
images, contained in or generated by the software, and accompanying data (together, the
“Software”) is deemed to be licensed to Company by Provider solely for Company’s internal
business purposes. Neither title nor intellectual property rights are transferred to Company or User, but remain with Provider, who owns full and complete title. Neither Company nor User may resell, decompile, reverse engineer, disassemble, or otherwise convert the Software to a human perceivable form.
2. Intellectual Property and Confidentiality
a. Copyright and Other Proprietary Rights. Provider owns and retains the copyrights and other proprietary rights in the Service and in its name, except for public domain material. All
copyrightable material displayed on, or downloaded from, Provider’s Web Site is copyrighted, and may not be copied, performed, displayed, distributed, published, redistributed, transmitted or retransmitted without permission of the copyright owner, except for use for Company’s internal business purposes. No User may remove, alter or cover any copyright or other proprietary notices placed on Provider’s Web Site.
b. Intellectual Property Rights of Third Parties. Users posting material on or through the Service or obtaining material from sources other than Provider on or through the Service, shall not do so in any manner that infringes the copyrights or other intellectual property rights of third parties.
Should Provider obtain actual knowledge of such violations, Provider will remove or disable
connection to the violating material. Provider has the right to terminate User’s and / or
Company’s access to the Web Site, in whole or part, and to terminate this Agreement if, in the
opinion of Provider, User becomes a repeat or flagrant abuser of third parties’ copyrights or other intellectual property rights. Furthermore, if Provider is subject to liability or incurs costs in defending any allegation of liability resulting from User’s postings, Company shall indemnify and make Provider whole, including paying reasonable attorney’s fees.
c. Confidentiality. User should not submit any information the User deems confidential or
proprietary thorough the Web Sites. All User submission, including, but not limited to, remarks, comments, questions, hints, suggestions, ideas, graphics, or other submission, (collectively, “Submissions”) will forever be the property of Provider. Provider will not be required to treat any Submissions as confidential and will not be liable for any ideas for its business (including without limitation, service, product, or advertising ideas) and will not incur any liability as a result of any similarities that may appear in future Provider operations. Without limitation, Provider will have exclusive ownership of all present and future existing rights to Submissions of every kind and nature everywhere. Provider will be entitled to use the Submission for any commercial or other purpose whatsoever without compensation to User or any other person sending the Submissions.
While Provider has made all reasonable efforts to make the Service secure, Company shall be solely responsible for any authorized or unauthorized access to User’s account by any person. User agrees to bear all responsibility for the confidentiality of User’s password.
4. User Representations
User represents and warrants to Provider that: (a) User is over the age of eighteen and has the power and authority to enter into and perform User’s obligations under this Agreement and to act on Company’s behalf; (b) all information provided by User to Provider is truthful, accurate and complete; and (c) User shall comply with all terms and conditions of this Agreement, including, without limitation, the provisions set forth at Section 3.
5. Prohibited Uses
User is solely responsible for any and all acts and omissions that occur under User’s account or password, and User agrees not to engage in unacceptable use of the Service, which includes, without limitation, use of the Service to disseminate, store or transmit files, graphics, software or other material that actually or potentially infringes the copyright, trademark, patent, trade secretor other intellectual property right of any person, fraudulent use or any other misuse of the Service.
This Agreement is effective upon User’s acceptance as set forth herein and shall continue in full until terminated. Provider reserves the right, in its sole discretion and without notice, at any time and for any reason, to: (a) remove or disable access to all or any portion of the Service; (b) suspend User’s and / or Company’s access to or use of all or any portion of the Service; and (c) terminate this Agreement.
7. Disclaimer of Warranties.
PROVIDER, ON BEHALF OF ITSELF AND ITS AFFILIATES, MAKES NO
REPRESENTATIONS AND WARRANTIES OF ANY KIND, STATUTORY OR
OTHERWISE, REGARDING OR RELATING TO BETA SERVICES OR DATA. TI, ON
BEHALF OF ITSELF AND ITS AFFILIATES, DISCLAIMS ALL REPRESENTATIONS
AND WARRANTIES, STATUTORY, EXPRESS, IMPLIED AND OTHERWISE, WRITTEN
OR ORAL, WITH RESPECT TO (A) THE BETA SERVICES AND DATA, INCLUDING
THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE, AND NON-INFRINGEMENT, AND (B) THE QUALITY, FUNCTIONALITY, OPERABILITY, AVAILABILITY, ACCURACY, USE, OR PERFORMANCE OF BETA
SERVICES OR DATA, WHETHER ARISING BY LAW, COURSE OF DEALING, COURSE
OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE. NEITHER TI NOR ITS
AFFILIATES REPRESENT OR WARRANT THAT BETA SERVICES OR DATA ARE
FREE OF ERRORS OR OF VIRUSES OR OTHER MALICIOUS CODE ORIGINATING
FROM THIRD PARTIES. USER EXPRESSLY AGREES THAT ITS ACCESS AND USE OF
THE PORTAL THROUGH THE INTERNET IS AT USER’S SOLE RISK.
8. Limitation of Liability.
a. IN NO EVENT WILL PROVIDER OR ANY OF ITS AFFILIATES BE LIABLE TO
USER OR ANY PERSON OR ENTITY FOR ANY DIRECT, INDIRECT, SPECIAL,
INCIDENTAL, CONSEQUENTIAL, PUNITIVE, OR OTHER DAMAGES ARISING
OUT OF OR RELATING TO THE BETA SERVICES OR DATA, OR USER’S
ACCESS OR USE OF THE BETA SERVICES OR DATA, REGARDLESS OF THE
THEORY OF RECOVERY, WHETHER SUCH DAMAGE WAS FORESEEABLE,
WHETHER TI OR AN AFFILIATE HAS BEEN ADVISED OF THE POSSIBILITY OF
SUCH DAMAGES, OR THE FAILURE OF ANY AGREED OR OTHER REMEDY OF
ITS ESSENTIAL PURPOSE.
b. PROVIDER’S MAXIMUM AGGREGATE LIABILITY UNDER THIS AGREEMENT
OR WITH RESPECT TO ANY BETA SERVICES OR DATA OR THE ACCESS OR
USE (OR INABILITY TO USE) OF ANY OF THEM, WHETHER IN WARRANTY,
CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, SHALL NOT EXCEED
10% OF THE AGGREGATE FEES USER HAS PAID TI IN THE THREE-MONTH
PERIOD IMMEDIATELY PRECEDING THE EVENT FIRST GIVING RISE TO THE
User and Company agree to indemnify, hold harmless and defend Provider, its members,
managers, officers, employees and agents from and against any action, cause, claim, damage, debt, demand or liability, including reasonable costs and attorney’s fees, asserted by any person, arising out of or relating to: (a) this Agreement; (b) User’s use of the Service, including any data or work transmitted or received by User; and (c) any unacceptable use of the Service, including, without limitation, any statement, data or content made, transmitted or republished by User which is prohibited as unacceptable at Section 5.
a. Independent Contractors. The parties and their respective personnel are and shall be
independent contractors and neither party by virtue of this Agreement shall have any right, power or authority to act or create any obligation, express or implied, on behalf of the other
b. Amendment. Provider shall have the right, at any time and without notice, to add to or modify the terms of this Agreement. In the event of Provider amending this Agreement, User shall be notified when accessing the Service upon the amendment being made effective. Notification shall be in the form of the acceptance check box with access to the amended Agreement re-appearing. Acceptance by User shall constitute delivery to and acceptance by Company of theamended version of this Agreement.
c. Waiver. No waiver of any term, provision or condition of this Agreement, whether by conduct
or otherwise, in any one or more instances, shall be deemed to be, or shall constitute, a waiver of any other term, provision or condition hereof, whether or not similar, nor shall such waiver constitute a continuing waiver of any such term, provision or condition hereof. No waiver shall be binding unless executed in writing in accordance with article 10.e by the party making the waiver .
d. Severability. If any provision of this Agreement is determined to be illegal or unenforceable, then such provision will be enforced to the maximum extent possible and the other provisions will remain fully effective and enforceable.
e. Notice. All notices shall be in writing and shall be deemed to be delivered when sent by first-class mail, postage prepaid, or when sent by facsimile or e-mail to either parties’ last known post office, facsimile or e-mail address, respectively. Company hereby consents to notice by email.
f. Law. This Agreement is made in and shall be governed by and construed and performed in all respects in accordance with the Laws of North Carolina, USA and the parties submit to the exclusive jurisdiction of any federal, national or state Court located in such jurisdiction.
g. Attorney’s Fees. If any action in law or in equity is necessary to enforce the terms of this
Agreement, the prevailing party will be entitled to reasonable fees of attorneys, accountants, and other professionals, and costs and expenses in addition to any other relief to which such prevailing party may be entitled.
h. Headings. The captions and headings of this Agreement are included for ease of reference
only and will be disregarded in interpreting or construing this Agreement.
i. Force Majeure. If the performance of any part of this Agreement by either party is prevented, hindered, delayed or otherwise made impracticable by reason of any flood, riot, fire, judicial or governmental action, labor disputes, act of God or any other causes beyond the control of either party, that party shall be excused from such to the extent that it is prevented, hindered or delayed by such causes.
j. Entire Agreement. Excepted as may be otherwise provided by Section 1.d, this Agreement
constitutes the complete and exclusive statement of the agreement between the parties with respect to the Service and supersedes any and all prior or contemporaneous communications, representations, statements and understandings, whether oral or written, between the parties concerning the Service.
k. Assignment. Neither Provider or User may assign, this Agreement, these terms and the Service without the prior written consent of the other party, which consent will not be unreasonably withheld, except that Provider may, without the prior written consent of User, assign this Agreement, these terms and the Service to an affiliate or to a purchaser of all of its membership interests or of all or substantially all of its assets.