This Customer Electronic Access Agreement (‘Agreement’) is made by and between XYZ Fasteners, Inc. (‘XYZ Fasteners’), and the undersigned Customer (‘Customer’).
XYZ Fasteners is implementing an Internet-based version of its catalog of products, and is developing www.xyzfasteners.com (‘Website’) so that Website visitors may become better informed about XYZ Fasteners’s products, and to enable XYZ Fasteners to sell its products on-line utilizing the Internet.
XYZ Fasteners grants to Customer the following described ‘License’: a limited, non-exclusive, non-transferable license for use by Customer of XYZ Fastener’s Website link and its on-line ordering system software enabling Customer to access XYZ Fastener’s on-line catalog and providing Customer with the ability to purchase products as provided in this Agreement (collectively, the ‘Software’).
During the term of the License granted above, XYZ Fasteners will install or otherwise provide Customer with access to the Software. Customer will use the Software solely for its own account, and not allow use of the Software except by Customer’s employees pursuant to this Agreement at Customer’s address set forth below its signature to the Agreement (‘Customer’s Address’).
3.1 Customer will not share, lease, rent, sublicense, disseminate, convey, transfer, modify, reverse engineer, decompile, disassemble, decode, decrypt, copy, reproduce, broadcast, translate, disclose, publish, transmit or distribute, or create derivative works from, any of the Software.
3.2 During the term of this License, Customer will designate, subject to XYZ Fastener’s approval, one individual as Customer’s ‘Primary Administrator’ for the electronic account established byXYZ Fasteners for Customer (the ‘Account’).
3.3 Unless XYZ Fasteners determines otherwise, XYZ Fasteners will assign and provide to Customer’s Primary Administrator, by e-mail, Customer’s assigned logon identifier (‘User ID’) and a temporary password assigned by XYZ Fasteners enabling Customer’s Primary Administrator to use the Software and to access Customer’s Account.
3.4 Customer will promptly notify XYZ Fasteners of any change in the identity or e-mail address of its Primary Administrator. Customer will develop, document and cause its Primary Administrator to enforce Customer’s policies and restrictions regarding protection of Customer’s User ID and password, Customer’s use of the Software and Customer’s access to and use of its Account, and ensure Customer’s compliance with its obligations under this Agreement.
Customer represents, warrants and agrees that it is bound by each of the following, which are collectively referred to in this Agreement as the ‘Terms and Conditions’: the Website Usage Terms and Conditions, the Website Privacy Policy, the Terms and Conditions of Purchase (regarding the purchase and shipment of XYZ Fasteners products) and any modification, amendment or termination of the License or this Agreement, which are, from time to time, either posted by XYZ Fasteners on the Website, received by Customer from XYZ Fasteners, or sent by XYZ Fasteners to the Customer’s Primary Administrator’s e-mail address. XYZ Fasteners reserves the right to make changes to its Website and any or all Terms and Conditions. All such Terms and Conditions are incorporated into and made a part of this Agreement to the same extent as if such Terms and Conditions as may exist from time to time were amendments to this Agreement executed by XYZ Fasteners and customer. If there is ever any conflict between the provisions of this Agreement and the Terms and Conditions, the Terms and Conditions shall control.
Customer’s Primary Administrator may, on behalf of Customer, designate other employees of Customer who may have access to and use Customer’s User ID and/or password, which will enable them to place orders on Customer’s behalf. Customer agrees that: (i) each such employee shall be informed by the Primary Administrator of Customer’s Primary Administrator’s obligations under this Agreement, (ii) each such employees shall use the Software, Website, and Customer’s Account, User ID and password in accordance with the terms of this Agreement and the Terms and Conditions, and not otherwise, (iii) neither Customer, nor any of its Primary Administrator or other employees, nor any other person or entity, will misuse or otherwise disclose or permit use of or access to the Software, or Customer’s Account, User ID or password, and (iv) Customer is and will be responsible for any use of its Account, User ID and password including, but not limited to, ordering products and accessing the Website.
All right, title and interest in and to copyrights, trade secrets, patents and other intellectual property rights in the Software in any form on any medium including, but not limited to, software code, text, databases, compilations, scripts, techniques, algorithms, Customer IDs, images, icons, logos, graphics, methodologies and know-how, are and will remain the exclusive property of XYZ Fasteners and its licensors. XYZ Fasteners reserves all rights not expressly granted to Customer in this Agreement. The Software is an unpublished work and Customer shall not publish it or cause or permit it to be published without XYZ Fastener’s prior written consent. Customer will not remove or destroy any copyright, trademark or other proprietary markings or notices or confidentiality legends placed upon or contained within the Software or Website. Customer will not acquire any right to the trademarks, service marks or trade names of XYZ Fasteners and its licensors. At no time during or after the term of this Agreement will Customer contest, challenge or impair or assist others to contest, challenge or impair the trademarks or the registration thereof or attempt to register any confusingly similar trademarks, service marks or trade names. Comments, suggestions, improvements, ideas and other communications from Customer to XYZ Fasteners regarding the Software or the Website will become the sole property of XYZ Fasteners.
6.1 ‘Confidential Information’ shall include, but is not limited to, trade secrets, programs, methods of processing, program design and structure, programming techniques, databases, designs, methodologies, product prices, processes, supplier lists and supplier information, non-public plans for new products and services, know-how, code, software tools, ideas, and inventions (whether or not reduced to practice), and the existence and content of this Agreement. Customer acknowledges that, during the term of this Agreement, Customer may have access to some or all of XYZ Fastener’s Confidential Information which may be disclosed orally, in writing or electronically. Except as expressly permitted by this Agreement, Customer shall not use any of XYZ Fastener’s Confidential Information, and shall not transfer, disclose, disseminate, publish or communicate any of XYZ Fasteners’s Confidential Information to any person or entity. Customer agrees to use the same degree of care with respect to WXYZ Fastener’s Confidential Information that Customer uses to protect its own Confidential Information from unauthorized disclosure, but in no event less than a reasonable degree of care. Customer will advise those employees who access XYZ Fastener’s Confidential Information of the confidentiality requirements under this Agreement. Upon the earlier of expiration or termination of the License granted by this Agreement, Customer will return all copies of XYZ Fastener’s Confidential Information to XYZ Fasteners or, upon XYZ Fastener’s written request, destroy any such Confidential Information and represent and warrant such destruction in writing to XYZ Fasteners.
6.2 Customer will maintain the confidentiality of its Account, User ID and password, and restrict access to Customer’s computers to its authorized employees. Customer agrees to be responsible for all activities that occur utilizing its Account, User ID or password.
Customer recognizes that the transmission of data through the Internet, upgrading of Software, modification, or maintenance of the Website, and other events may interfere with Customer’s use or cause delays during the upload, download or transmission of information to and from the Website and otherwise. Customer agrees that XYZ Fasteners will not be liable for any such delays.
Customer acknowledges and agrees that Customer’s use of the Software and Website are at Customer’s own risk. Customer will, without additional consideration, immediately report to XYZ Fasteners any ‘bugs’, problems, errors and other difficulties which Customer recognizes or experiences in its use of the Software or Website, and cooperate with and assist XYZ Fasteners in any efforts made by it to test, improve or enhance the Software and Website. Any improvements and enhancements to the Software and Website are the sole property of XYZ Fasteners. Customer will promptly utilize and implement any upgrades or other changes to the Software and Website requested by XYZ Fasteners.
Customer is responsible for safeguarding and for each use and any misuse of its User ID and password. Customer will pay for each order of product placed through the Website utilizing Customer’s User ID. XYZ Fasteners may confirm each such order by transmitting an e-mail confirmation to Customer’s Primary Administrator. If Customer’s Primary Administrator does not receive any such e-mail confirmation, Customer must contact XYZ Fasteners directly to ensure placement of the order.
Customer’s prices for XYZ Fastener’s products ordered through the Website will be posted to Customer’s Account on the Website. Such prices are subject to change without notice.
XYZ Fasteners attempts to be accurate in describing its products and depicting them on its Website. However, XYZ Fasteners does not represent or warrant that product descriptions or other content of its Website are or will be accurate, complete, reliable, current, or error free. If a product offered by XYZ Fasteners is not as described, Customer’s sole remedy is to return it in unused condition pursuant to the Terms and Conditions.
Should Customer be in breach or default of any of its representations, warranties, agreements or other obligations under this Agreement or any of the Terms and Conditions including, but not limited to, failing to pay for products ordered within the payment terms set forth in XYZ Fastener’s Terms and Conditions, or exceeding Customer’s credit limit for products purchased, as set by XYZ Fasteners for Customer from time to time, XYZ Fasteners may, among other things, refuse to ship any products to Customer, restrict, limit, suspend or otherwise deny Customer further access to its Account or Website, and/or terminate the License granted by this Agreement. Customer shall keep, save, protect, indemnify and hold harmless XYZ Fasteners and its affiliates and their respective officers, directors, employees, agents, successors and assigns from any cost, claim, damage or expense, including, but not limited to, reasonable attorneys’ fees, suffered by any of them arising out of or relating to any breach or default by Customer of any of its representations, warranties or agreements under Agreement.
Customer agrees to maintain an operational e-mail account by which it can receive e-mails from XYZ Fasteners, and agrees to notify XYZ Fasteners of any changes to such e-mail account which would affect Customer’s receipt of e-mail from XYZ Fasteners. Customer consents and agrees to receive all notices, disclosures and other communications from XYZ Fasteners electronically, by either e-mail directed to Customer’s Primary Administrator, or by notices posted on the Website. Customer agrees to be bound by any agreements, notices, disclosures and other communications that XYZ Fasteners provides to Customer by e-mail, Website postings, invoices/statements or any reasonable means, and that such communications satisfy any legal requirement that any communications be in writing. Notices to Customer will be deemed received by Customer on the date of e-mailing by XYZ Fasteners, whether or not Customer actually receives or reads such e-mail.
The Software and Website are provided on an ‘AS IS’ AND ‘AS AVAILABLE’ BASIS, WITHOUT REPRESENTATION OR WARRANTY OF ANY KIND TO CUSTOMER OR ANY OTHER PERSON OR ENTITY. WITHOUT LIMITING THE FOREGOING, XYZ FASTENER DOES NOT MAKE AND DISCLAIMS ALL: EXPRESS OR IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, COMPATIBILITY, SYSTEM INTEGRATION, ACCURACY OF INFORMATIONAL CONTENT, NON-INFRINGEMENT, QUIET ENJOYMENT, AND TITLE. XYZ FASTENER MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AS TO THE OPERATION OF THE WEBSITE OR THE INFORMATION, CONTENT, MATERIALS, OR PRODUCTS INCLUDED ON THE WEBSITE, OR THAT XYZ FASTENER’S EMAILS, SOFTWARE OR THE WEBSITE ARE OR WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT CUSTOMER’S COMPUTER SYSTEM WILL NOT BE DAMAGED BY REASON OF SUCH USE, OR THAT USE OF THE SOFTWARE OR WEBSITE IS OR WILL BE ERROR FREE OR UNINTERRUPTED. CUSTOMER AGREE THAT IT’S USE OF THE WEBSITE IS AT CUSTOMER’S SOLE RISK AND THAT XYZ FASTENER WILL NOT BE LIABLE BY REASON OF SUCH USE. CUSTOMER AGREES THAT ANY EFFORTS BY XYZ FASTENER TO MODIFY ITS SOFTWARE, WEBSITE, PRODUCTS OR SERVICES SHALL NOT BE DEEMED OR CONSTRUED AS A WAIVER OF ANY OF THE FOREGOING LIMITATIONS, OR ACKNOWLEDGEMENT OR EVIDENCE OF ANY DEFECT, NON-CONFORMITY, OR FAILURE OF PURPOSE. CUSTOMER FURTHER AGREES THAT XYZ FASTENERS SHALL NOT BE LIABLE TO CUSTOMER OR ANY OTHER PERSON OR ENTITY FOR ANY LOSS OF PROFITS, LOSS OF USE, INTERRUPTION OF BUSINESS, OR ANY DIRECT OR INDIRECT, COMPENSATORY, INCIDENTAL, PUNITIVE, EXEMPLARY, CONSEQUENTIAL OR OTHER DAMAGES OR LOSSES OF ANY KIND WHICH MAY BE INCURRED OR SUSTAINED BY CUSTOMER, IT’S EMPLOYEES, AGENTS, SUCCESSORS OR ASSIGNS, ARISING OUT OF OR RELATING TO THE SOFTWARE, THE WEBSITE, THIS AGREEMENT OR OTHERWISE, EVEN IF XYZ FASTENERS WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR WAS GROSSLY NEGLIGENT. Customer agrees that XYZ FASTENER’s liability in connection with the software and the Website shall at all times be limited to the maximum extent permitted by law. Some jurisdictions do not permit the exclusion or limitation of liability for consequential, incidental or other damages. Customer agrees that, to the extent applicable law does not permit any specific exclusion or limitation to apply to Customer or this Agreement, such exclusion or limitation shall be severed from this Agreement.
The License granted pursuant to this Agreement shall expire at 12:01 a.m. on the fifth anniversary of the ‘DATE THIS AGREEMENT IS ACCEPTED BY XYZ FASTENERS’ (as noted on the last page of this Agreement). XYZ Fasteners may sooner terminate such License at any time, effective upon notice given to Customer. This Agreement shall terminate five (5) years after expiration or termination of the License. XYZ Fasteners may also restrict or discontinue Customer’s use of the Software or Account at any time within XYZ Fasteners sole discretion. If Customer is dissatisfied with the License, this Agreement, the Software or the Website, Customer’s sole remedy is to terminate the License, which termination will be effective twenty-four (24) hours after XYZ Fasteners receives written notice of termination from Customer. Not later than the time Customer gives such notice, Customer shall permanently delete the Software from Customer’s computers, and cease the use of the User ID and password.
15.1 Neither the License granted by this Agreement nor any right of Customer under this Agreement may be assigned by Customer, nor shall same be transferred by operation of law to any person or entity, or inure to the benefit of any person or entity, other than XYZ Fasteners and its affiliates, successors and assigns, and Customer.
15.2 Customer’s signatory to this Agreement represents, warrants and agrees that he or she: (i) is either an equity owner or the President of Customer, (ii) is duly authorized to enter into this Agreement on behalf of Customer, and (iii) has read this Agreement, fully understands its contents and intends to bind Customer thereby, and that Customer is bound by this Agreement.
15.3 If XYZ Fasteners files any action, suit, cross-claim, counter-claim or other proceeding to compel the performance of any obligations under this Agreement, or to seek any interpretation of this Agreement, or for damages by reason of any breach or default by Customer under this Agreement or the Terms and Conditions, and XYZ Fasteners prevails to any significant extent in any such action, suit, cross-claim, counter-claim or other proceeding, Customer shall pay toXYZ Fasteners, in addition to its costs, reasonable attorneys fees in an amount determined by a court of competent jurisdiction.
15.4 No waiver by XYZ Fasteners of any right under this Agreement shall be effective unless in a written authorized by XYZ Fasteners. No waiver by XYZ Fasteners of any right, obligation, agreement or condition will be deemed or construed as a waiver of any other right, obligation, agreement or condition in this Agreement or in any of the Terms and Conditions.
15.5 XYZ Fasteners and Customer submit to the exclusive jurisdiction of the state and federal courts, and agree that all proceedings brought to enforce or interpret, or with respect to or arising out of this Agreement shall be brought in such courts.
15.6 Unless otherwise provided in this Agreement, all notices, requests, confirmations, elections, waivers, determinations and other communications required or desired to be given pursuant to this Agreement shall be effective: (a) if given to Customer, then by e-mail addressed to the e-mail address of its Primary Administrator, or by sending same in writing, delivered by any means, to Customer at its Customer’s Address or, (b) if given to XYZ Fasteners, then by e-mail addressed to [email protected], with a copy in writing delivered by any means to XYZ Fasteners, Inc., 776 Marconi Ave, Ronkonkoma, NY 11779 Attention: Webmaster.
15.7 If any provision of this Agreement is held to be invalid by a court of competent jurisdiction, such provision will be deemed severed from this Agreement, and such invalidity will not effect any other provision of this Agreement, the balance of which shall remain in and have their intended full force and effect.
15.8 This Agreement may be executed in multiple counterparts, all of which together constitute a single instrument.
