REMOTE APPROVAL WEBSITE LICENSE AGREEMENT
THIS WEBSITE (THE “REMOTE APPROVAL WEBSITE”) IS OWNED AND
OPERATED BY SOUTHERN GRAPHIC SYSTEMS, INC.,
A CORPORATION DULY INCORPORATED UNDER THE LAWS OF KENTUCKY,
HAVING ITS PRINCIPAL PLACE OF BUSINESS AT 626
WEST MAIN STREET, SUITE 500, LOUISVILLE, KENTUCKY 40202, (HEREINAFTER REFERRED TO AS “SGS”). YOUR USE OF
THIS WEBSITE IS SUBJECT TO THE FOLLOWING AGREEMENT (THE “AGREEMENT”) AS WELL AS
THE PRIVACY POLICY OF SGS. USE OF THIS WEBSITE IS CONDITIONAL UPON YOUR
ACCEPTANCE OF ALL THE TERMS OF THIS AGREEMENT WITHOUT LIMITATION OR
QUALIFICATION. BY CREATING AN ACCOUNT WITH SGS FOR THE USE OF THE WEBSITE OR
USING THE WEBSITE OR ANY APPLICATIONS THEREIN YOU, AS A CLIENT OR AN AUTHORIZED SERVICE RECIPIENT (AS DEFINED IN SECTION 1 OF THIS
AGREEMENT) ACCEPT ALL THE TERMS OF
THIS AGREEMENT. IF YOU DO NOT ACCEPT
THESE TERMS YOU MAY NOT USE THE WEBSITE.
In consideration of the ability to use this
website and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, you agree as follows:
1. DEFINITIONS
As used in this
Agreement:
1.1 “Affiliate” means an entity which directly or indirectly controls a Party, is directly or indirectly controlled by a Party, or is under direct or indirect control with such Party. A Party shall be deemed to “control” an entity if such Party possesses, directly or indirectly, the power to direct or cause the direction of the management and policies of such entity.
1.2 “Agreement” means this agreement.
1.3 “Authorized Service Recipients” means any persons or entities who have been authorized by the Client to access and use the SGS System or who access and use the SGS System using the Client’s password and/or username with Client’s permission.
1.4
“Confidential Information” means all
information disclosed (whether in writing, orally or by another means and
whether directly or indirectly) by a Party (the “Disclosing Party”) to another Party (the “Receiving Party”) that is marked or identified as confidential or
that a reasonable person would consider as confidential after the date of this
Agreement, including, without limitation, information relating to the
Disclosing Party’s (or any of its Affiliates’, customers’, agents’ or
employees’) operations, processes, plans or intentions, product information,
know-how, design rights, trade secrets and business affairs, but does not
include information which (i) is or becomes generally available to the public
other than as a result of disclosure by the Receiving Party, (ii) was within
Receiving Party’s possession on a non-confidential basis prior to its being
provided to the Receiving Party by or on behalf of the Disclosing Party, (iii)
is or becomes available to the Receiving Party on a non-confidential basis from
a source other than the Disclosing Party, or (iv) is independently developed by
the Receiving Party without the use of the Disclosing Party’s information. For the
avoidance of doubt, and notwithstanding anything to the contrary contained
herein, it is expressly understood and agreed that all parts of the SGS System
(as defined below) that require “controlled access,” including all SGS Services
(as defined below), SGS Content (as defined below) and Software (as defined
below) offered, comprised or embodied in such parts, shall be deemed Client’s
Confidential Information. As used
herein, “controlled access” means access that is protected by a pre-authorized
username and password.
1.5 “Client” means a person or entity who has an existing business relationship with SGS as verified by SGS and who has created an account to use the SGS System and to whom SGS has assigned username(s) and password(s).
1.6
“Client Data” means any information, data, content or material provided by Client or
by any Authorized Service Recipient.
1.7
“Dispute” has the
meaning set forth in Section 13.3.
1.8 “Intellectual Property Rights” means all rights (whether based upon statute, common law, contract or otherwise) associated with any of the following: copyrighted or copyrightable works (including, but not limited to, computer programs); trademarks, service marks, logos, trade dress, trade names, domain names, and other designations of source; trade secrets; discoveries, inventions, processes, methods and designs (whether or not patented or patentable); mask works and integrated circuit topographies; and any other kinds of intellectual or industrial property now or hereafter recognized under the laws of any country or jurisdiction.
1.9
“Modification” means any translation,
abridgement, condensation, retrenchment, revision, correction, improvement,
enhancement, customisation, expansion, addition, update, upgrade or other
modification to the SGS System, the SGS Services, any SGS Content or any
Software, or any portion thereof.
1.10
“Party” means either SGS, Client or Authorized Service Recipients. “Parties” means the three of them.
1.11
“SGS”
has the meaning set forth in the recitals above.
1.12 “SGS Content” means all texts, images, graphics, illustrations, audios, videos, templates, forms, data, information and other materials provided by SGS as part of the SGS System and/or the SGS Services, whether or not copyrighted or copyrightable. For the avoidance of doubt, “SGS Content” does not include Client Data or any Third Party Material (as defined below). Also, ”SGS Content” does not include Trademarks or Software.
1.13 "SGS Services" means the functionality and services provided by SGS through the SGS System which include (but are not limited to) enabling the Authorized Service Recipients to view ongoing project summaries and updates, generate business reports on performance, exchange business documents and graphic files for projects/jobs, enable online review of graphic files.
1.14
"SGS System” means, collectively, the
Remote Approval Website and the underlying system and platform
hosted by SGS utilizing Software and hardware to provide the SGS Services.
1.15
"Software" means any software or
computer program or application being part of the SGS System, whether owned by
SGS or used by SGS under license or permission from a third party.
1.16
“Third Party Material” means any
third-party Software, content or material that is part of the SGS System and
that is used by SGS under license or permission from their owners. For the avoidance of doubt, “Third Party
Material” does not include Client Data.
1.17
“Trademarks” means any and all names,
marks and logos appearing on or within the SGS System or otherwise in
conjunction with the SGS Services, whether owned by SGS or used or displayed by
SGS under license or permission from third parties, and whether registered or unregistered.
2. RIGHT OF ACCESS AND USE OF THIS WEBSITE AND THE WEB BASED SERVICES
2.1 Subject to the terms and conditions of this Agreement SGS hereby grants to Client the non-exclusive right to permit and enable Authorized Service Recipients to access and use the SGS System.
2.2 Client will be provided with username(s)/password(s) that provide access to the SGS System. SGS reserves the right to cancel or suspend a Client’s account at its sole discretion without any notice or liability to the Client including but not limited to cases where a Client’s account has been inactive for more than one (1) year.
2.3 Authorized Service Recipients shall use, and Client shall ensure that each Authorized Service Recipient shall use, the SGS System, and any associated electronic or written documentation relating thereto provided by SGS from time to time, solely for its own internal functions. Except as and only to the extent expressly permitted in this Agreement, Authorized Service Recipients shall not, and Client shall not permit Authorized Service Recipients or any third party to use, sub-license, sell, assign, convey, transfer, publish, copy, duplicate, distribute, disassemble, reverse engineer or otherwise deal with any Software or documentation to which Client and Authorized Service Recipients are given access under this Agreement and, without limiting the foregoing, Client and Authorized Service Recipients shall not use the SGS Services to provide information processing, computer service bureau or computer time sharing or similar services to any other person or entity or for any purposes other than its own internal functions or permit any third party to do any of these acts.
2.4 Client acknowledges and agrees to limit its use of the SGS System only to Authorized Service Recipients. Client shall be responsible for securing its passwords and/or usernames. Client shall be responsible for any actions taken using such passwords and/or usernames. SGS shall have the right to rely upon any information received in the SGS System from any person using a password and/or username assigned to Client and will incur no liability for such reliance and the use of the assigned password and/or username, whether or not authorized by Client, shall be solely the responsibility of and the risk of Client. SGS shall have at all times the right to unilaterally deny access to any portion of the SGS System to any Authorized Service Recipient. Client shall assume all responsibilities related to the access and use of the SGS System by Authorized Service Recipients and any act or omission of such Authorized Service Recipients shall be deemed to be an act or omission of Client. Without limiting the generality of the foregoing but for greater certainty, Client shall (i) take such actions as are necessary in order for it to maintain the confidentiality of, and prevent the unauthorized use of, each password and/or username, including entering into appropriate agreements with its suppliers, agents, employees or any third party who are Authorized Service Recipients, and (ii) immediately notify SGS in writing if Client’s username or password has been lost or stolen or if Client determines, or has reason to believe, that an unauthorized party has gained access to a password and/or username. Client authorizes SGS to rely upon any information and/or instructions set forth in any data transmission using the assigned password and/or username, without making further investigation or inquiry, and regardless of the actual identity of the individual transmitting the same, in connection with the operation of SGS.
2.5 Client and its Authorized Service Recipients may download and print as many copies of the Client Data contained in the SGS System or reports generated therefrom as reasonably necessary for Client’s and its Authorized Service Recipients’ internal use, provided that all such copies will be subject to the ownership and other provisions of this Agreement.
2.6 Client and Authorized Service Recipients may not reverse engineer, compile, reverse assemble, disassemble, modify or translate any portion of the SGS System or any Software.
2.7 Client acknowledges that as part of its continuous improvement program SGS shall have the right to contact and send mails and emails to Authorized Service Recipients designated by Client in accordance with SGS’s Privacy Policy.
2.8 The Client acknowledges that the SGS Services will be provided in a virtual environment and that the SGS System is being used concurrently by other clients of SGS.
3. SUPPORT AND PROFESSIONAL SERVICES
3.1 The support for the SGS Services is limited to: (i) Remote Approval Website performance monitoring, (ii) back‑up of user data, (iii) Authorized Service Recipients assistance to access SGS Services, (iv) limited Authorized Service Recipients assistance to use SGS Services, (v) assistance to detect Internet access problems of SGS Services. First line support is offered via telephone and e-mail by SGS. Support coverage is Monday – Friday, 8AM – 6PM Central US Time, standard business days. Support does not include: Authorized Service Recipients access problems to internet, Authorized Service Recipients training with PC, Authorized Service Recipients training with internet browser, Authorized Service Recipients training with mobile phone internet access, Authorized Service Recipients training with mobile phone, in depth Authorized Service Recipients training with SGS Services.
3.2 The Client acknowledges and agrees that all calls into the support center may be monitored and/or recorded for quality control purposes.
4. EVOLUTION OF THE SGS SERVICES
Client and Authorized Service Recipients acknowledge and agree that SGS may, in its sole discretion, make and implement Modifications any time and at any frequency during the Term and without providing any prior notice, but shall in no event be under any obligation to do so.
5. INTERRUPTION OR DISCONTINUATION OF THE SGS SERVICES
5.1 Maintenance Purposes
Client and Authorized Service Recipients acknowledge and agree that the SGS System and the SGS Services may be interrupted from time to time to allow the maintenance of the SGS System, including the Software and SGS’ databases and servers. SGS makes no representation or warranty, express or implied, that the SGS System and the SGS Services will be available and accessible at all times without interruption.
5.2 Breakdown in Internet Access
Client and Authorized Service Recipients acknowledge and agree that SGS makes no representation or warranty, express or implied, regarding the access to the Internet or any telecommunication network, be it by SGS or Client or any Authorized Service Recipients, or with respect to the capacity of the Internet or any telecommunication network to transport the Client Data at all times, and that any interruption or difficulty in accessing the Internet or any telecommunication network or in transmitting Client Data over the Internet or any telecommunication network, will affect the accessibility of the SGS System and the SGS Services. Client and Authorized Service Recipients acknowledge and agree that they accept such characteristics of the SGS System and the SGS Services.
5.3 Breakdown and Major Problems
SGS reserves the right to interrupt at all times the SGS System and the SGS Services relating to the provision of access to, and collecting and processing of, the Client Data in case of problems with the SGS System. It is understood that during such period of interruption, SGS may not be able to receive, collect, process or provide access to the Client Data.
5.4
For any other Cause
SGS further reserves the right, at all times and at its sole discretion, to temporarily interrupt or permanently discontinue offering the SGS System and the SGS Services.
6.2 Section 6.1 shall not apply to disclosure of Confidential Information to the Receiving Party’s employees, agents, representatives, auditors, advisors, contractors and subcontractors who have a need to access and use such Confidential Information for a purpose expressly permitted in this Agreement, provided that the Receiving Party shall inform such employees, agents, representatives, auditors, advisors, contractors and subcontractors of the confidential nature of such information and shall require them to keep such information in confidence.
6.3 No Party may use Confidential Information of any other Party for a purpose other than as expressly permitted in this Agreement. No Party shall, at any time, whether during the term of this Agreement or after its termination, use Confidential Information of any other Party for its own benefit or purposes (except as expressly permitted in this Agreement), or for the benefit or purposes of any other person.
6.4 Except as and only to the extent expressly permitted in this Agreement, no Receiving Party shall, without the consent of the Disclosing Party, at any time or in any manner, make or cause to be made any copies, pictures, duplicates, facsimiles or other reproductions or recordings of any type, or any abstracts or summaries of any material relating to Confidential Information, including reports, studies, memoranda, correspondence, manuals, records, plans or other written, printed or otherwise recorded material.
6.5 Each Party shall ensure that its directors, officers, employees, agents, representatives, auditors, advisors, contractors and subcontractors are made aware of and comply with the obligations of confidentiality and non-disclosure set forth in this Agreement as if they were Parties thereto.
6.6 Each Party acknowledges that any breach by the Party or any of its directors, officers, employees, agents, representatives, auditors, advisors, contractors and subcontractors of the obligations of confidentiality and non-disclosure set forth in this Agreement could cause irreparable harm and significant injury to the other Parties and their Affiliates that may be difficult to ascertain. Accordingly, each Party agrees that each of the other Party and its Affiliates shall, in addition to any other available rights and remedies, be entitled to seek and obtain immediate injunctive relief to enforce the confidentiality and non-disclosure obligations hereunder.
6.7 Each Receiving Party shall maintain security procedures that are commercially reasonable to ensure that the Disclosing Party’s Confidential Information is kept confidential.
6.8 The obligations of confidentiality and non-disclosure set forth in this Agreement shall be perpetual.
6.9 Upon termination of this Agreement, Client and Authorized Service Recipients shall return all Confidential Information of SGS then in their possession or control to SGS or, at the election of SGS, destroy the same (including permanently deleting all files and copies thereof from Client’s and Authorized Service Recipients’ computers, hard drives, databases, websites, servers and systems), which destruction shall be certified by an officer of Client.
7.1 The SGS System, all SGS Services, all SGS Content, all Trademarks (excluding those owned by third parties), all Software (excluding Third Party Material) and all Modifications (excluding Third Party Material) (all the foregoing are referred to hereinafter collectively as “SGS Properties”), and all Intellectual Property Rights therein and thereto, are and shall remain the exclusive property of SGS throughout the world. Any Third Party Material that is part of the SGS System and all Intellectual Property Rights therein and thereto are and shall remain the exclusive property of their respective owners. No title in or to any SGS Properties or any Third Party Material shall pass to Client hereunder.
7.2 All SGS Properties are protected by copyright, trademark and other intellectual property laws in the United States and in other jurisdictions and by all applicable international treaties. Consequently, except as expressly permitted in this Agreement, SGS Properties may not be copied, reproduced, republished, downloaded, posted, transmitted, distributed or modified, in whole or in part in any form whatsoever, without the express prior written consent of SGS. All Trademarks are the property of SGS and their respective third-party owners, and may not be used without express prior written permission of SGS or such third-party owners.
7.4 Subject to the confidentiality provisions of this Agreement, all Client Data input or uploaded by Client and Authorized Service Recipients to the SGS System are exclusively owned by Client, provided that SGS shall have the right to use and compile for its own business use information and data (including Client Data) in aggregated and anonymized form that does not identify Client. SGS shall own all right, title and interest in information and data compiled in such aggregated and anonymized form, including any information or knowledge derived therefrom that does not identify Client.
7.5 Client and Authorized Service Recipients acknowledge that any breach of their obligations with respect to the Intellectual Property Rights of SGS (including, without limitation, any breach of their duty of confidentiality with respect to SGS Confidential Information) will cause such SGS serious and irreparable harm, the value of which will be difficult to ascertain and that, in such event, SGS shall be entitled to seek injunctive or similar relief in addition to all other remedies available to it.
8. REPRESENTATIONS AND WARRANTIES
8.2 Each Authorized Service Recipient warrants and represents that the acceptance and performance of this Agreement do not and will not breach or constitute a default under any contract, agreement, or other undertaking or covenant applicable to such Authorized Service Recipient, and are not violating and will not violate the terms of any judgment, decree or order applicable to such Authorized Service Recipient.
8.3 Client and Each Authorized Service Recipient represent, warrant and covenant that it/he/she will not:
a) restrict or inhibit any other user from using the
SGS System;
b) post on the Remote Approval Website or transmit via the SGS System any unlawful, threatening, abusive, libelous, defamatory, obscene, vulgar, pornographic, profane or indecent information of any kind, or any blatant expression of bigotry, racism, hatred or harassment, including without limitation any transmission constituting or encouraging conduct that would constitute a criminal offence, give rise to civil liability or otherwise violate any local, provincial, federal or foreign law;
c) post on the Remote Approval Website or transmit via the SGS System any computer virus, worm, spyware, malware, or other malicious or harmful computer code, files or programs that are designed to invade, infiltrate, damage, disrupt, interfere with, or otherwise adversely affect the SGS System or any SGS Content or Software;
d) engage in any act to deceive or
mislead, including, without limitation, falsifying user information when
registering with the Remote Approval Website, impersonating or
otherwise misrepresenting affiliation, connection or association with any
person or entity;
e) hack, mail-bomb, flood, overload, attack or otherwise
sabotage, disrupt or interfere with the SGS System, or probe, scan or test
firewalls of the SGS System, or test the vulnerability of the SGS System, or
breach or attempt to breach the security or authentication routines of the SGS
System; or
f) use the SGS System or the SGS Services for a purpose not expressly permitted in this Agreement.
8.4 Client and Authorized Service Recipient represent and warrant that no Client Data provided to SGS under this Agreement contains any third party personal information or infringes upon any third party’s right, including any Intellectual Property Rights, and that they will comply at all times with applicable laws, including any applicable privacy laws.
8.5 THE SGS SYSTEM, ALL SGS SERVICES, ALL SGS CONTENT, ALL SOFTWARE, AND ALL MODIFICATIONS ARE PROVIDED TO THE CLIENT AND AUTHORIZED SERVICE RECIPIENTS ON AN “AS IS” BASIS AND “AS AVAILABLE” BASIS AND WITH ALL FAULTS. SGS EXPRESSLY DISCLAIMS ALL WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY THAT THE SGS SYSTEM, ALL SGS SERVICES, ALL SGS CONTENT, ALL SOFTWARE, AND ALL MODIFICATIONS WILL BE ERROR-FREE AND UNINTERRUPTED OR THAT ANY ERROR OR PROBLEM WILL BE CORRECTED OR THAT ALL SGS CONTENT WILL BE ACCURATE, TIMELY OR UP-TO-DATE. THE EXPRESS TERMS OF THIS AGREEMENT ARE IN LIEU OF ALL WARRANTIES, CONDITIONS, TERMS, UNDERTAKINGS AND OBLIGATIONS CREATED BY STATUTE, COMMON LAW, CUSTOM, TRADE USAGE, COURSE OF DEALING OR OTHERWISE, ALL OF WHICH ARE HEREBY EXCLUDED TO THE FULLEST EXTENT PERMITTED BY LAW. SGS HEREBY EXCLUDES ANY AND ALL IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY OR FITNESS FOR ANY PURPOSE, PARTICULAR, SPECIFIC OR OTHERWISE, INCLUDING ANY LEGAL WARRANTY OF QUALITY, TO THE FULLEST EXTENT PERMITTED BY LAW. TO THE EXTENT THAT THE JURISDICTION TO WHICH YOU ARE SUBJECT DOES NOT ALLOW EXCLUSION OF CERTAIN WARRANTIES, SUCH NON PERMITTED EXCLUSIONS MAY NOT APPLY TO YOU.
8.6 Without limiting the generality of the foregoing paragraphs but for greater certainty, SGS does not provide any warranty (i) on the reliability or accuracy of the information available on the SGS System and on the Remote Approval Website and shall not be made liable for any errors or omissions in such information; (ii) on the security of the SGS System and shall not be made liable for any security breaches, including without limitation, security breaches resulting from computer hackers, unlawful entry, unauthorized access, theft, disgruntled employees and other fraudulent acts; (iii) on the availability of the SGS System and shall not be made liable for an Authorized Service Recipient’s unsuccessful attempts to access the SGS System when it is down, whether because of periodic maintenance, a technical problem or otherwise; or (iv) on the reliability of the SGS System to retrieve or store information, including Client Data and shall not be made liable for any loss resulting from any loss of information of data, including Client Data;
9. LIMITATION OF LIABILITY
9.1 IN NO EVENT SHALL SGS INCUR ANY LIABILITY WHATSOEVER TO Client OR AUTHORIZED SERVICE RECIPIENT BASED UPON, BY REASON OF OR IN CONNECTION WITH THE SGS SYSTEM, ANY SGS SERVICES, ANY SGS CONTENT, ANY TRADEMARK, ANY SOFTWARE OR ANY MODIFICATION, INCLUDING, WITHOUT LIMITATION, LIABILITY FOR ANY LOSS OF USE OR INABILITY TO USE, LOSS OF DATA, LOSS OF PROFITS, SALES, REVENUES OR BUSINESS OPPORTUNITIES, OR FOR ANY OTHER DIRECT, INDIRECT, SPECIAL OR CONSEQUENTIAL LOSS OR DAMAGES, EVEN IF SGS HAS BEEN ADVISED OF THE POSSIBILITY THEREOF, AND REGARDLESS OF WHETHER SUCH LIABILITY IS BASED ON THE THEORY OF NEGLIGENCE, STRICT LIABILITY, BREACH OF CONTRACT OR OTHERWISE. CLIENT’S AND AUTHORIZED SERVICE RECIPIENT’S ONLY RECOURSE AND REMEDY HEREUNDER SHALL BE FOR CLIENT AND AUTHORIZED SERVICE RECIPIENT TO DISCONTINUE ACCESSING AND USING THE SGS SYSTEM AND THE REMOTE APPROVAL WEBSITE.
10. INDEMNIFICATION
10.2 Each Authorized Service Recipient agrees to save, indemnify and hold harmless SGS against all Losses, suffered or incurred by SGS or its directors, officers, employees and representatives as a result of or in connection with any claim (i) based on the allegation that any Client Data or any portion thereof infringes a third party’s right, including any trademark, service mark, copyright, trade secrets, patents or other Intellectual Property Rights; or (ii) resulting or arising from any breach by such Authorized Service Recipient of any of its obligations, representations, warranties or covenants set forth in this Agreement.
10.3 It is expressly understood and agreed that to the extent a claim is subject to indemnification by both Client and each Authorized Service Recipient, Client and each Authorized Service Recipient will be jointly and severally liable to SGS for indemnification against such claim.
11. TERM AND TERMINATION
11.1
This
Agreement shall become effective (i) between SGS and Client on the date the
Client creates an account with SGS and (ii) between SGS and Authorized Service Recipient on the date Authorized Service
Recipient accesses and uses the the SGS System and, unless otherwise terminated, shall remain in force
for an indeterminate term (the “Term”).
11.2
This
Agreement may be terminated by SGS at any time for convenience.
11.3
Upon
termination or expiry of this Agreement, all rights and obligations of the
Parties under this Agreement shall automatically terminate except for any such
rights of action accrued prior to such termination. For more certainty, the
following rights and liabilities shall survive termination of this Agreement
for any reason: Sections 6, 7, 8, 9, 10
and 11.
11.4
Upon
termination or expiry of this Agreement: (i) the Receiving Party shall, at
its own expense, immediately return to the Disclosing Party or otherwise
dispose of, as the Disclosing Party may instruct, all Confidential Information
which is in the Receiving Party’s possession or under its care or control and
one of its officers shall certify to the Disclosing Party that the foregoing
has been executed in compliance with the terms hereof. SGS will charge Client
reasonable expenses incurred for the return of any requested materials.
12. ASSIGNMENT
12.1
Neither
Client nor any Authorized Service Recipient may
assign or transfer any right, title, interest or liability granted hereunder,
without the prior written consent of SGS. Any authorized assignee hereunder
shall be bound by the terms and conditions hereunder and shall assume all
liabilities of the assignor under this Agreement. SGS shall be entitled to assign this
Agreement without the prior consent of the Client or any Authorized Service Recipient, and the assignee shall
thereafter be bound by the terms of this Agreement.
12.2
Subject to
Section 12.1, this
Agreement shall be effective, enforceable and binding on the Parties hereto,
their assigns, representatives, heirs and successors.
13. MISCELLANEOUS
13.1
For the
purposes of this Agreement, neither Party shall be deemed in any manner
whatsoever an agent or employee of the other Party. The Parties have entered
into this Agreement as independent contractors. Nothing in this Agreement
creates or shall be deemed to create a partnership or joint venture between the
Parties. Neither Party shall have the right to enter into contracts, pledge
security, or incur expenses or liabilities on behalf of the other Party.
13.2
This
Agreement shall be governed by and construed under and pursuant to the laws of
the State of New York, without regard to its conflicts of law principles. Subject to Section 11.5, the
Parties hereby irrevocably attorn to the exclusive jurisdiction of the courts
of the State of New York.
Any Dispute shall be
referred to and finally resolved by arbitration in New York, New York, in
accordance with the Rules of Arbitration of the International Chamber of
Commerce (the “ICC Rules”). The
language of the arbitration shall be English.
The arbitral tribunal (the “Tribunal") shall be composed of three (3) arbitrators, appointed as follows: each Party shall appoint an arbitrator, and the two arbitrators so appointed shall appoint a third arbitrator who shall be a lawyer with experience in arbitration and information technology and who shall act as chairman of the Tribunal. Should a vacancy arise because any arbitrator dies, resigns, refuses to act, or becomes incapable of performing his functions, the vacancy shall be filled by the method by which that arbitrator was originally appointed.
13.4
This
Agreement, together with any agreements and other documents to be delivered
pursuant hereto or concurrently herewith constitutes the entire agreement
between the Parties with respect to the subject matter contained herein, and
supersedes all prior agreements, negotiations, discussions and understandings,
written or oral, between Parties. There are no representations, warranties,
conditions, other agreements or acknowledgements, whether direct or collateral,
expressed or implied, which form part of or affect this Agreement.
13.5
Any waiver
of the rights under this Agreement, or consent to derogate from the terms
hereof, shall only be effective if in
writing and duly executed by the consenting Party, and only in the specific
case and for the specific purpose for which it has been granted.
13.6
This
Agreement may only be amended or completed by written agreement, duly executed
by each Party.
BY USING THIS WEB SITE YOU ACCEPT ALL ITS TERMS WITHOUT LIMITATION OR
QUALIFICATION