You may not modify, copy, transmit, display, reproduce, publish, license, create derivative works from, transfer, or sell any information, materials, software, designs, drawings, content, products or services from the Site (together "Content") in any form without DRISCOLL, INC’s prior written permission. You may print out a copy or download such reports, graphs, plans, charts, designs and drawings and similarly formatted compilation of information from the Site necessary, in your opinion, to accomplish the task at hand by DRISCOLL, INC solely for your personal use. In doing so, you may not remove or alter, or cause to be removed or altered, any copyright, trademark, trade name, service mark, or any other proprietary notice of legend appearing on any of the Content.
DRISCOLL, INC has the right at any time to change or discontinue any aspect or feature of the Site.
You may use the Site for lawful purposes only. You may not post or transmit through the Site any material which violates or infringes in any way upon the rights or others, which is unlawful, threatening, abusive, defamatory, invasive of privacy or publicity rights, vulgar, obscene, profane or otherwise objectionable, which encourages conduct that would constitute a criminal offense, give rise to civil liability or otherwise violate any law. DRISCOLL, INC will fully cooperate with any law enforcement authority or court order requesting or directing DRISCOLL, INC to disclose the identity of anyone posting such information or materials. DRISCOLL, INC reserves the right to terminate customers access to web portal if it is deemed that the customers activity has affected the quality of data and capability of the site.
Your use of and browsing in the Site are at your sole risk. Neither DRISCOLL, INC nor any other party involved in creating, producing or delivering the Site is liable to you for any direct, incidental, consequential, indirect, special or punitive damages arising out of your use of or access to the Site.
THE SITE IS PROVIDED TO YOU "AS IS" WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, WARRANTIES OF TITLE OR IMPLIED WARRANTIES OR MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES, SO SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU.
DRISCOLL, INC DOES NOT WARRANT THAT THE SITE OR ITS CONTENTS WILL BE UNINTERRUPTED OR ERROR FREE, NOR DOES DRISCOLL, INC MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SITE, OR AS TO THE ACCURACY, RELIABILITY OR CONTENTS OF ANY INFORMATION, SERVICE, OR PRODUCT PROVIDED THROUGH THE SITE.
DRISCOLL, INC does not assume any responsibility or risk for your use of the Site. DRISCOLL, INC does not guarantee or warrant that files available for downloading from the Internet will be free of infection of viruses, worms, Trojan horses or other code that manifest contaminating or destructive properties. You are responsible for implementing sufficient procedures and checkpoints to satisfy your particular requirements for accuracy of data input and output, and for maintaining a means external to the Site for the reconstruction of any lost data.
Payment. All Fees shall be due on the date Customer places its order. Delinquent payments shall bear interest at the rate of one-and-one-half percent (1.5%) per month (or the highest rate permitted by law, if less) from the payment due date until paid in full. Customer will be responsible for all reasonable expenses (including attorneys' fees) incurred by DRISCOLL, INC in collecting unpaid or delinquent amounts, except where such unpaid or delinquent amounts are due to billing inaccuracies attributable to DRISCOLL, INC. All payments due are in U.S. dollars unless otherwise indicated above
Taxes. Customer shall pay DRISCOLL, INC the fees in the amount and on the terms specified, free and clear of, and without any reduction for, any and all taxes. Customer shall pay any taxes, including sales, use, personal property, value-added, excise, customs fees, import duties or stamp duties or other taxes and duties imposed by governmental agencies of whatever kind and imposed with respect to all transactions under the Agreement, including penalties and interest, but specifically excluding taxes based upon DRISCOLL, INC's net income. When DRISCOLL, INC has the legal obligation to pay or collect such taxes, the appropriate amount shall be invoiced to and paid by Customer unless Customer provides DRISCOLL, INC with a valid tax exemption certificate authorized by the appropriate taxing authority.
Permissible Use. Customer agrees to use the Service only for purposes that are legal, proper and in accordance with this Agreement and all applicable policies or guidelines. In addition to this Agreement, Customer's use of certain DRISCOLL, INC services may be governed by policies or guidelines presented to Customer at the time Customer registers or accesses those services and which are specifically incorporated into this Agreement. Customer agrees to comply with all applicable export and re-export control laws and regulations, including the Export Administration Regulations (“EAR”) maintained by the U.S. Department of Commerce, trade and economic sanctions maintained by the Treasury Department's Office of Foreign Assets Control. A Customer in a country outside of the United States or Customer, when providing End User Accounts to End Users located outside the United States, agrees to additionally comply with any local rules regarding online conduct and acceptable content, including laws regulating the export and re-export of data to and from the United States or such other country.
Restrictions. Except as expressly permitted by DRISCOLL, INC, Customer shall not alter, delete or modify any attributions included within the Service. Customer agrees that it will not engage in any activity that interferes with or disrupts the Service or servers or networks connected to the Service. Customer agrees not to alter the Service or any information transmitted through the Service to End Users (except, with respect to the latter, as otherwise may be necessary to comply with the terms of this Agreement and/or commercially reasonable internal policies of Customer). Except as expressly set forth in this Agreement or as otherwise agreed by DRISCOLL, INC in writing, Customer shall not transmit, display or otherwise make available (or allow End Users or any other third party to transmit or make available) any content or documentation provided by DRISCOLL, INC to Customer in connection with the Services. Customer will not, and will not allow third parties to, use or access the Service in a manner not in compliance with the terms of the Agreement.
Confidential Information. In connection with performance of its obligations hereunder, a party (the “Discloser”) may disclose to the other party (the “Recipient”) certain information that the Discloser considers confidential and/or proprietary (“Confidential Information”) including, but not limited to, tangible, intangible, visual, electronic, present, or future information such as: (a) trade secrets; (b) financial information, including pricing; (c) technical information, including research, development, procedures, algorithms, data, designs, and know-how; (d) business information, including operations, planning, marketing interests, and products; (e) any bugs, defects, security problems, and other issues relating to the Service; and (f) the existence and terms of this Agreement and the discussions, negotiations and proposals related thereto. The Recipient will only have a duty to protect Confidential Information disclosed to it by the Discloser: (1) if it is clearly and conspicuously marked as “confidential” or with a similar designation; (2) if it is identified by the Discloser as confidential and/or proprietary before, during, or promptly after presentation or communication; or (3) if it is disclosed in a manner in which the Discloser reasonably communicated, or the Recipient should reasonably have understood under the circumstances, that the disclosure should be treated as confidential, whether or not the specific designation “confidential” or any similar designation is used. Customer acknowledges that the source and object code of the software underlying the Service (the “Software”) remains a confidential trade secret of DRISCOLL, INC and associated third parties and/or its licensors and that Customer is not entitled to review either the object code or the source code of the Software for any reason at any time. Recipient shall not disclose or cause to be disclosed any Confidential Information of Discloser, except to those employees, agents, representatives, or contractors of the parties who require access to the
Ownership; Restricted Use. DRISCOLL, INC or authorized third parties, and its licensors shall own all right, title and interest, including without limitation all Intellectual Property Rights (as defined below) relating to the Service (and any derivative works or enhancements thereof), including but not limited to, all software, technology, information, content, materials, guidelines, and documentation, except that DRISCOLL, INC does not own Customer Content, or any End User or third-party content and/or information used as a part of the Service, including the content of communications appearing as part of the Service. Customer shall not acquire any right, title, or interest therein, except for the limited use rights expressly set forth in the Agreement. Any rights not expressly granted herein are deemed withheld. “Intellectual Property Rights” means any and all rights existing from time to time under patent law, copyright law, semiconductor chip protection law, moral rights law, trade secret law, trademark law, unfair competition law, publicity rights law, privacy rights law, and any and all other proprietary rights, and any and all applications, renewals, extensions and restorations thereof, now or hereafter in force and effect worldwide. For the avoidance of doubt, DRISCOLL, INC does not own third party content contained in or provided as part of the Service, including any Additional Content. Customer shall not, and shall not allow any third party to: (i) transfer, sell, lease, syndicate, sub-syndicate, lend, or use for co-branding, timesharing, service bureau or other unauthorized purposes any Services or access thereto; (ii) modify, adapt, translate, prepare derivative works from, decompile, reverse engineer, disassemble or otherwise attempt to derive source code from any Service or any other DRISCOLL, INC technology or third party associates,, content, data, routines, algorithms, methods, ideas design, user interface techniques, software, materials, and documentation; (iii) remove, deface, obscure, or alter DRISCOLL, INC's copyright notice, trademarks or other proprietary rights notices affixed to or provided as a part of any Service, or any other DRISCOLL, INC technology, software, materials and documentation; (iv) “crawl”, “spider”, index or in any non-transitory manner store or cache information obtained from the Service; (v) create or attempt to create a substitute or similar service or product through use of or access to any of the Service or proprietary information related thereto; or (iv) use the Service for High Risk Activities. Any and all third party binary or source code included in each portion of the Service may be used only in conjunction with such portion of the Service, and such use shall be subject to all the terms and conditions of this Agreement. THE SERVICE OR ANY PORTION THEREOF MAY NOT BE USED, COPIED, TRANSFERRED, OR MODIFIED EXCEPT AS EXPRESSLY PERMITTED BY THIS AGREEMENT.
Publicity. Customer agrees not to issue any public announcement regarding the existence or content of this Agreement without DRISCOLL, INC's prior written approval. DRISCOLL, INC may: (i) include Customer's Brand Features in presentations, marketing materials, and customer lists (which includes, without limitation, customer lists posted on DRISCOLL, INC's web sites and screen shots of Customer's implementation of the Service); and (ii) issue a public announcement regarding the existence or content of this Agreement. Upon Customer's request, DRISCOLL, INC will furnish Customer with a sample of such usage or announcement.
Representations and Warranties. Each party represents and warrants that it has full power and authority to enter into the Agreement. Customer represents, warrants, and covenants that: (i) Customer owns and controls one hundred percent (100%) of the Customer Domain Name(s); (ii) Customer has and will maintain all rights, authorizations and licenses that are required to permit Customer to use the Service; (iii) the execution and delivery of this Agreement, and the performance by Customer of its obligations hereunder, will not constitute a breach or default of or otherwise violate any agreement to which Customer or any of its affiliates are a party or violate any rights of any third parties arising therefrom; (iv) Customer shall comply with all laws, regulations and ordinances applicable to or otherwise connected with Customer's use of the Service(s); and (iv) Customer has and will maintain all rights as shall be required to send the information it provides to DRISCOLL, INC pursuant to this Agreement.
Warranty Disclaimer. EXCEPT AS SPECIFIED IN THIS SECTION, ALL EXPRESS OR IMPLIED CONDITIONS, REPRESENTATIONS AND WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT AND ANY IMPLIED WARRANTY ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE, ARE HEREBY DISCLAIMED EXCEPT TO THE EXTENT THAT THESE DISCLAIMERS ARE HELD TO BE LEGALLY INVALID. DRISCOLL, INC AND ITS LICENSORS MAKE NO WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE AND/OR NON-INFRINGEMENT. DRISCOLL, INC ASSUMES NO RESPONSIBILITY FOR THE USE OF THE SERVICE(S). DRISCOLL, INC AND ITS LICENSORS MAKE NO REPRESENTATIONS ABOUT ANY CONTENT OR INFORMATION MADE ACCESSIBLE BY OR THROUGH THE SERVICE. DRISCOLL, INC MAKES NO REPRESENTATION THAT DRISCOLL, INC (OR ANY THIRD PARTY) WILL ISSUE UPDATES OR ENHANCEMENTS TO THE SERVICE. DRISCOLL, INC DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE SERVICE WILL BE UNINTERRUPTED OR ERROR FREE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO CUSTOMER. IN THAT EVENT, TO THE EXTENT PERMISSIBLE, ANY IMPLIED WARRANTIES ARE LIMITED IN DURATION TO NINETY (90) DAYS FROM THE EFFECTIVE DATE. THE SERVICE IS NOT FAULT-TOLERANT AND IS NOT DESIGNED OR INTENDED FOR USES SUCH AS THE OPERATION OF NUCLEAR FACILITIES, AIR TRAFFIC CONTROL OR LIFE SUPPORT SYSTEMS, WHERE THE FAILURE OF THE SERVICE COULD LEAD TO DEATH, PERSONAL INJURY, OR ENVIRONMENTAL DAMAGE (“HIGH RISK ACTIVITIES”).
Customer Indemnity. Customer will defend, through arbitration only, or at its option settle, any third party lawsuit or proceeding brought against DRISCOLL, INC based upon or otherwise arising out of: (i) Customer Content, Customer Domain Name(s) and/or Customer Brand Features; (ii) Customer’s use of the Service(s); (iii) Customer’s disclosure of End User information; (iv) any breach or non-compliance by Customer of this Agreement, any of DRISCOLL, INC’s policies, or Customer’s representations or the provision of warranties contained herein; and (v) any End User’s use of the Service.
DRISCOLL, INC Indemnity. DRISCOLL, INC will defend through arbitration only, or at its option settle, any third party lawsuit or proceeding brought against Customer based upon or otherwise arising out of a claim that DRISCOLL, INC and any of its third party technology used to provide the Service or any Driscoll, Inc Brand Feature infringe(s) or misappropriate(s) any copyright, trade secret or trademark of such third party. Notwithstanding the foregoing, in no event shall DRISCOLL, INC have any obligations or liability under this Section arising from: (i) use of any Service or DRISCOLL, INC Brand Features in a modified form or in combination with materials not furnished by DRISCOLL, INC, and (ii) any content, information or data provided by Customer, End Users or any other third parties. DRISCOLL, INC in its sole and reasonable discretion, reserves the right to terminate Customer’s continued use of any Service or DRISCOLL, INC Brand Features which are alleged or believed by DRISCOLL, INC to infringe.
General. Indemnification shall be limited to (a) payment by the indemnifying party (“Indemnitor”) of all damages and costs finally awarded for such claim, or (b) settlement costs approved in writing by the Indemnitor. The foregoing obligations shall exist only if the party seeking indemnification (“Indemnitee”): (i) promptly notifies the Indemnitor of such claim, (ii) provides the Indemnitor with reasonable information, assistance and cooperation in defending the lawsuit or proceeding, and (iii) gives the Indemnitor full control and sole authority over the defense and settlement of such claim. The Indemnitee may join in defense with counsel of its choice at its own expense. The Indemnitor shall only reimburse the Indemnitee for expenses incurred by the Indemnitee with the Indemnitor’s prior written approval.
Limitation of Liability. IN NO EVENT WILL DRISCOLL, INC OR ITS LICENSORS BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOST DATA, LOST PROFITS, LOST REVENUE OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY, INCLUDING BUT NOT LIMITED TO CONTRACT OR TORT (INCLUDING PRODUCTS LIABILITY, STRICT LIABILITY AND NEGLIGENCE), AND WHETHER OR NOT SUCH PARTY WAS OR SHOULD HAVE BEEN AWARE OR ADVISED OF THE POSSIBILITY OF SUCH DAMAGE AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY STATED HEREIN. IN NO EVENT WILL DRISCOLL, INC’S AND/OR ITS LICENSORS’ LIABILITY FOR ANY CLAIM ARISING OUT OF THIS AGREEMENT (WHEN AGGREGATED WITH DRISCOLL, INC’S LIABILITY FOR ALL OTHER CLAIMS ARISING OUT OF THIS AGREEMENT) EXCEED THE NET AMOUNT DRISCOLL, INC HAS ACTUALLY RECEIVED AND RETAINED UNDER THE AGREEMENT DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH SUCH CLAIM ARISES.
Term. Unless terminated earlier in accordance with this Agreement, this Agreement will begin on the Effective Date and expire one (1) year after the Effective Date (the “Initial Term”) and will automatically renew for additional one (1) year terms unless either party notifies the other party of its intent not to renew at least sixty (60) days prior to the end of the then-current term (the Initial Term and all such renewal terms, collectively, the “Term”).
Termination. DRISCOLL, INC may terminate this Agreement with six (6) months prior written notice to Customer. Notwithstanding the foregoing, DRISCOLL, INC may terminate this Agreement upon thirty (30) days’ written notice if Customer fails to cure any breach of this Agreement within such thirty (30) day period. In addition, DRISCOLL, INC may, immediately upon written notice: if DRISCOLL, INC reasonably determines that it is commercially impractical to continue providing the Service(s) in light of applicable laws; or if Customer is in material breach of this Agreement more than two (2) times notwithstanding any cure of such breaches. DRISCOLL, INC, upon notice the duration of which DRISCOLL, INC in its reasonable discretion may determine, reserves the right at any time and from time to time to make commercially reasonable modifications to the Service(s) (or any part thereof), including hours of operation and availability of any feature of the Service(s). Customer agrees that DRISCOLL, INCshall not be liable to Customer, any End User, or any third party for any modification, suspension, or termination of the Service provided for in this Agreement. Upon the expiration or termination of the Agreement for any reason: (i) all rights and licenses granted by DRISCOLL, INC shall cease immediately; (ii) each party shall promptly return to the other party, or destroy and certify the destruction of, all Confidential Information of the other party; and (iii) Customer’s rights to use any DRISCOLL, INC Brand Features, as permitted under the Agreement, shall cease immediately.
Suspension and Termination in the Event of an Injunction. DRISCOLL, INC may suspend performance under this Agreement in whole or in part with immediate effect if, as a result of a claim alleging facts that would constitute a breach of Customer’s representations and warranties made. Driscoll, Inc is obliged by final or temporary court order or magisterial decision to temporarily or permanently refrain from continuing to perform its obligations under this Agreement. DRISCOLL, INC's rights under this provision shall become effective on the date of the court order or magisterial decision or on the date of the service of the order irrespective of the possibility of appeal. If any suspension under this paragraph continues for more than six (6) months, DRISCOLL, INC may terminate this Agreement in whole or in part with immediate effect.
Miscellaneous. Customer may not assign or otherwise transfer its rights or delegate its obligations under this Agreement, without the prior written consent of DRISCOLL, INC. Any attempted assignment in derogation hereof shall be null and void. Customer agrees that there shall be no third party beneficiaries to this Agreement. This Agreement shall be governed by and construed in accordance with the laws of the State of Indiana and the federal U.S. laws applicable therein, excluding its choice of law provisions, and Customer and DRISCOLL, INC agree to submit to the personal and exclusive jurisdiction of the courts located in Allen County, Indiana. Neither party shall be liable for failing or delaying performance of its obligations (except for the payment of money) resulting from any condition beyond its reasonable control, including but not limited to, governmental action, acts of terrorism, earthquake, fire, flood or other acts of God, labor conditions, power failures, and Internet disturbances. If any provision of this Agreement is found void and unenforceable, it shall be replaced to the extent possible with a provision that comes closest to the meaning of the original provision. The unenforceability of any provision, however, shall not affect the validity of the balance of the Agreement, which shall remain valid and enforceable according to its terms. Any amendments or modifications to the Agreement must (i) be in writing; (ii) refer to the Agreement; and (iii) be executed by an authorized representative of each party. THIS AGREEMENT CONSTITUTES A COMPLETE INTEGRATION OF ALL UNDERSTANDINGS BETWEEN THE PARTIES AND IS THE ENTIRE AGREEMENT BETWEEN CUSTOMER AND DRISCOLL, INC RELATING TO THE SERVICE AND ALL TERMS HEREIN. THE TERMS AND CONDITIONS OF THIS AGREEMENT AND ANY SPECIFICALLY REFERENCED UNIFORM RESOURCE LOCATOR (AS SUCH URL MAY BE MODIFIED FROM TIME TO TIME, AS PROVIDED HEREIN) SHALL TAKE PRECEDENCE OVER ANY PURCHASE ORDER, WEB SITE RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT OR OTHER DOCUMENT WHETHER FORMALLY REJECTED BY DRISCOLL, INC OR NOT, AND ANY CONFLICTING, INCONSISTENT, OR ADDITIONAL TERMS CONTAINED THEREIN SHALL BE NULL AND VOID.