These Terms and Conditions ("Agreement") are made as of the Effective Date by and between Petra Systems, Inc, (“PETRA”) a Delaware corporation with offices located at One Cragwood Road, South Plainfield, NJ (“Corporation”) and the Subscriber, as defined hereunder.
WHEREAS, Corporation has developed and owns the website www.petrasystems.com for use and access by Subscriber via the Internet; and
WHEREAS, Subscriber desires to access and use the www.petrasystems.com in accordance with the terms and provisions of this Agreement;
NOW, THEREFORE, in consideration of the mutual benefits of the covenants and restrictions herein contained, Subscriber and Corporation hereby agree as follows:
ARTICLE I: RECITALS AND DEFINITIONS
Section 1.01 — Recitals: The above recitals and identification of parties are true and correct.
Section 1.02 — Definitions: The following definitions shall apply:
Access: The term "access" and variants thereof (including, without limitation, "accessing" and "accessible") shall mean to store data in, retrieve data from or otherwise approach, display, reproduce, frame, establish a Link to, or make use of (directly or indirectly) through electronic means or otherwise.
Effective Date: The term "Effective Date" shall mean the date the Subscriber receives the Password from Corporation or accesses the Website, whichever occurs first.
Corporation Marks: The term "Corporation Marks" shall mean trademarks, trade names, service marks and trade dress of Corporation and parent companies, subsidiaries and affiliates of Corporation, including, without limitation, the Sunwave™.
Corporation System: The term "Corporation System" shall mean computer systems and communication equipment used for hosting the Website and providing Subscriber access to the Website.
Corporation Technology: The term "Corporation Technology" shall mean any and all Technology developed by or for Corporation.
Internet: The term "Internet" shall mean that certain global network of computers commonly referred to as the Internet, including (without limitation) the world wide web.
Licensed Content: The term "Licensed Content" shall mean third party Technology incorporated in whole or part into the Website.
Link: The term "Link" shall mean text, icons, graphic symbols that upon selection or activation, link or associate to, execute, access or retrieve an off-screen Web Site or Technology.
Password: The term "Password" shall mean that certain password and SUBSCRIBER name assigned by Corporation to Subscriber for accessing the Website as may be modified from time to time as provided hereunder.
Policy Statement: The term "Policy Statement" shall mean those certain written statements of policies (in printed or electronic form) concerning access to the Website as may be adopted by Corporation and as modified by Corporation from time-to-time.
(12) Restatements: The term "Restatements" shall mean Section 757 of the Restatement of Torts, Section 39 of the Restatement (Third) of Unfair Competition, Section 1 of the Uniform Trade Secrets Act and 18 U.S.C. §1839.
(13) Subscriber: The term "Subscriber" shall mean the individual or entity assigned the password used to access the Website.
(14) Technology: The term "Technology" shall mean information, data, ideas, works of authorship, computer software, source code, object code, executable code, software libraries, documentation, databases, database designs, data dictionaries, data models, fields, records, scripts, texts, interfaces, interface designs, screen displays, Web Sites, web pages, Links, visual works, graphic images, audio, video, compilations, formulas, methodologies, techniques, processes, procedures, adaptations, derivative works, computers, hardware, peripherals, components, networks, product lists, supplier lists and customer lists.
(15) Term: The term "Term" shall mean a period of time starting on the Effective Date and ending on the date either party cancels the Password as provided hereunder.
(16) Unauthorized Access: The term "Unauthorized Access" shall mean any access to the Website except for access during the Term for the exclusive purpose of viewing, browsing, retrieving, uploading and posting information on and ordering products through the Website using the Password on behalf of Subscriber in accordance with this Agreement.
(17) Unauthorized User: The term "Unauthorized User" shall mean any individual who accesses the Website except for Subscriber and employees and agents of Subscriber authorized by Subscriber to access the Website for purposes of viewing, browsing, retrieving, uploading and posting information on and ordering products through the Website during the Term using the Password on behalf of Subscriber in accordance with this Agreement.
(18) Web Site: The term "Web Site" shall mean that certain multimedia interactive product which is a compilation of data, information, computer software, graphics, audiovisual, components and coding formatted for use on the world-wide-web of the Internet and commonly referred to as a web site. The term "Website" shall also mean that certain Web Site referred to as www.petrasystems.com which is located on the Internet at www.petrasystems.com, including any and all Corporation Technology used, incorporated, stored or accessible therein, as implemented on the Corporation System and made accessible to Subscriber through the Internet using the Password.
ARTICLE II: SCOPE OF USE
Section 2.01 — Access: Corporation hereby grants Subscriber a non-exclusive, non-transferable and revocable license to access the Website, during the Term, solely for viewing, browsing, retrieving, uploading and posting information, and ordering products on or through the Website, subject to the terms and provisions of this Agreement.
Section 2.03 — Password: Subscriber hereby accepts responsibility for, and shall be liable for, all access to the Website in connection with the Password. Subscriber shall be responsible for the confidentiality of the Password. Modification of the Password shall be subject to the approval of Corporation
Section 2.04 — Unauthorized Access: Subscriber shall prevent Unauthorized Users from accessing the Website. Subscriber shall prevent Unauthorized Access to the Website.
Section 2.05 — Cancellation: Corporation may cancel the Password, for convenience and in the exclusive discretion of Corporation, upon providing written notice of such cancellation to Subscriber in accordance with Section 5.06 of this Agreement. Subscriber may cancel the Password, for convenience and in the exclusive discretion of Subscriber, upon providing written notice of such cancellation to Subscriber in accordance with Section 5.07 of this Agreement. Upon cancellation of the Password, Subscriber shall immediately cease and desist any and all access to and attempts to access the Website.
ARTICLE III: INTELLECTUAL PROPERTY
Section 3.01 — Ownership and Title: Title to the Website (excluding Licensed Content), including ownership rights to any and all patents, copyrights, trademarks and trade secrets in connection therewith shall be the exclusive property of Corporation
Section 3.02 — Unauthorized Use: Subscriber shall not copy or download the Website without the prior written consent of Corporation Subscriber shall not access, modify, reverse engineer, reproduce, display, perform or distribute, including (without limitation) by framing or similar means, the Website without the prior written consent of Corporation. Subscriber shall not (directly or indirectly) promote, advertise, market or provide any Web Site similar to or competitive with the Website.
Section 3.03 — Trademarks: Corporation shall retain all rights, title and ownership interests in the Corporation Marks and goodwill associated therewith. Subscriber acknowledges that, excepting the Corporation Marks, all other product, service and company names mentioned in the Website may be trademarks of their respective owners.
Section 3.04 — Proprietary Information: Subscriber shall hold Corporation Technology in strict confidence and shall not access or disclose Corporation Technology except as otherwise permitted under this Agreement. Subscriber hereby acknowledges and agrees that the Corporation Technology derives independent economic value (actual or potential) from not being generally known to other persons who can obtain economic value from its disclosure or use and not being readily ascertainable by proper means by other persons who can obtain economic value from its disclosure or use; is the subject of reasonable efforts under the circumstances to maintain its secrecy; and is a trade secret as defined under the Restatements.
Section 3.05 — No Contest: Subscriber shall not contest or aid in contesting the ownership or validity of the copyrights, trademarks, service marks and trade secrets (as applicable) of Corporation in connection with the Website.
Section 3.06 — Subscriber Submissions: Any Technology (except the Password and ordering information) uploaded, posted or submitted by Subscriber on the Website shall be deemed non-confidential. Subscriber hereby grants Corporation an irrevocable, worldwide, perpetual, nonexclusive license to access, use, reproduce, modify, adapt, release, perform, display, distribute, sell and disclose such Technology, in whole or in part, in any manner and for any purpose whatsoever, and to have and authorize others to do so. Subscriber represents and warrants that Subscriber possesses all necessary rights, title and interests to rightfully grant Corporation the foregoing license, free and clear of any encumbrances, third party interests and restrictions. Subscriber also represents and warrants that all information provided by Subscriber in connection with the Website and this Agreement is true, complete and accurate.
ARTICLE IV: WARRANTY AND INDEMNIFICATION
Section 4.01 — Express Warranties: Subscriber hereby acknowledges and agrees that Corporation (including officers, employees, agents, directors and independent contractors of Corporation has not made or granted to Subscriber any express warranties concerning the Website or any products and services offered through the Website. Subscriber hereby acknowledges that access to the Website does not constitute grant of an express warranty concerning any products and services offered through the Website and Subscriber hereby waives any and all claims of warranty based on the Website.
SECTION 4.02 — WARRANTY LIMITATION: THE WEBSITE IS PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND. CORPORATION, TO THE FULLEST EXTENT PERMITTED BY LAW, HEREBY DISCLAIMS AND SUBSCRIBER HEREBY WAIVES ALL WARRANTIES BY CORPORATION, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ALL IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND WARRANTIES OF NON-INFRINGEMENT OF THIRD PARTY RIGHTS IN CONNECTION WITH THE WEBSITE AND PRODUCTS AND SERVICES OFFERED THROUGH THE WEBSITE. CORPORATION DOES NOT WARRANT AND SUBSCRIBER HEREBY WAIVES ANY WARRANTY THAT USE OF OR ACCESS TO THE WEBSITE BY SUBSCRIBER WILL BE UNINTERRUPTED OR ERROR FREE. CORPORATION DOES NOT MAKE ANY WARRANTY AND SUBSCRIBER HEREBY WAIVES ANY AND ALL WARRANTIES AS TO THE RESULTS OBTAINED FROM USE OF THE WEBSITE OR AS TO THE ACCURACY, COMPLETENESS, TIMELINESS OR RELIABILITY OF THE WEBSITE. SUBSCRIBER HEREBY ACKNOWLEDGES AND AGREES THAT USE OF THE INTERNET AND THE WEBSITE SHALL BE AT THE SOLE AND EXCLUSIVE RISK OF SUBSCRIBER AND SUBJECT TO THE RESTRICTIONS, TERMS AND CONDITIONS, RULES, REGULATIONS, POLICIES, APPLICABLE LAWS AND CODES OF CONDUCT GOVERNING THE INTERNET AND THE WEBSITE.
Section 4.03 — Inaccuracies: Subscriber hereby acknowledges that the Website may contain errors, inaccuracies and omissions. Subscriber shall assume any and all risk of loss, harm or damage associated with Subscriber access to and use of the Website.
Section 4.04 — Limitation of Liability: Corporation shall not be liable for any lost profits or consequential, exemplary, incidental or punitive damages (including, without limitation, in connection with (i) use, performance or operation of the Website; (ii) use, performance or operation of the Internet or use of the Internet by Subscriber; (iii) loss of data; AND (IV) PRODUCTS AND SERVICES OFFERED THROUGH THE WEBSITE, regardless of the form of action, whether in contract or in tort, including negligence, AND regardless of whether Corporation has been advised of the possibility of such damages in advance or whether such damages are reasonably foreseeable.
Section 4.05 — Limitation of Damages: the sole remedy of subscriber for any reason and for any cause of action whatsoever in connection with this agreement, the Website, and products and services offered through the Website, regardless of the form of action, whether in contract or in tort, including negligence, shall be modification of the Website, as determined by Corporation.
Section 4.06 — Indemnification: Subscriber shall release, defend, indemnify and hold harmless Corporation (including its officers, directors, employees, affiliates, contractors and agents) from and against any expense, loss, cost or liability (including, without limitation, attorney fees and paralegal fees) arising from any and all claims, demands, damages or actions resulting from or related to (i) use by Subscriber of the Internet, Website or products or services offered through the Website (including, without limitation, any claims for breach of warranty, loss of data, libel, slander, invasion of privacy or false advertising); (ii) performance of the Website; (iii) Subscriber’s negligence or any tortious acts (or failures to act) of Subscriber; (iv) products or services offered through the Website; and (v) any breach by Subscriber of the obligations of Subscriber under this Agreement.
Section 4.07 — Export Assurance: Subscriber shall not perform any act in conflict with or in violation of the export laws and regulations of the United States of America, including (without limitation) the Export Administration Act, 50 U.S.C. §2401, et seq., the Export Administration Regulations, 15 C.F.R. Parts 730-774, the Arms Export Control Act, 22 U.S.C. §2751, and the International Traffic in Arms Regulations, 22 C.F.R. Parts 120-130, as amended.
Section 4.08 — Links: Subscriber hereby acknowledges that the Website may contain Links to third party Web Sites. Any such Links are provided solely as a convenience to Subscriber and do not constitute an endorsement by Corporation of such Web Sites and the third party content therein.
ARTICLE V: MISCELLANEOUS
Section 5.01 — Entire Agreement: This Agreement contains the entire understanding of the parties relating to the subject matter hereof and supersedes all previous verbal and written agreements between Corporation and Subscriber relating to the subject matter hereof.
Section 5.02 — Amendments and Modifications: Excepting modifications made to the Policy Statement by Corporation and modifications made to this Agreement by Corporation, any alteration, modification or amendment of this Agreement shall be void unless such alteration, modification or amendment is in writing and signed by an authorized representative of Corporation.
Section 5.03 — Severability: If a provision of this Agreement is rendered invalid, the remaining provisions shall remain in full force and effect.
Section 5.04 — Captions: The headings and captions of this Agreement are inserted for convenience of reference and do not define, limit or describe the scope or intent of this Agreement or any particular section, paragraph, or provision.
Section 5.05 — Governing Law: This Agreement shall be governed by the laws of the State of New Jersey, without regard to any rules of conflict or choice of laws which may require the application of laws of another state, and venue shall be Middlesex County, New Jersey.
Section 5.06 — Subscriber Notice: All notices to Subscriber shall be in writing. Notices to Subscriber shall be deemed delivered when posted conspicuously on the Website or when delivered to Subscriber electronically, by commercial overnight delivery service, by Certified or Registered Mail – Return Receipt Requested – or by hand. Notices to Subscriber shall be deemed given when dispatched. Notices posted conspicuously on the Website or delivered to Subscriber electronically (including, without limitation, electronic mail) shall be deemed written notices.
Section 5.07 — Corporation Notice: All notices to Corporation shall be in writing. Notices to Corporation shall be deemed delivered when delivered by commercial overnight delivery service, Certified or Registered Mail – Return Receipt Requested – or by hand to the address set forth below for Corporation. Notices to Corporation shall be deemed given on the date notice is received by Corporation (as evidenced in the case of Certified or Registered Mail by Return Receipt).
Petra Systems, Inc.
One Cragwood Road, Suite 303
South Plainfield, NJ 07080
Section 5.08 — Pronouns/Gender: Pronouns and nouns shall refer to the masculine, feminine, singular or plural as the context shall require.
Section 5.09 — Remedies: All remedies under this Agreement are in addition to equitable remedies and remedies provided by law and are cumulative. The parties hereby acknowledge and agree that damages at law will be an inadequate remedy to Corporation. In addition to remedies at law and other rights which may be available, Corporation shall have the right of specific performance, injunction or other equitable remedy (including, without limitation, the right to such equitable remedies prior to or pending arbitration) in the event of a breach or threatened breach of this Agreement by Subscriber.
Section 5.10 — Waiver: Waiver of a breach of this Agreement shall not constitute a waiver of any other breach. Failure to enforce any provision of this Agreement shall not constitute a waiver or create an estoppel from enforcing such provision. Any waiver of a provision of this Agreement shall not be binding unless such waiver is in writing and signed by the waiving party.
Section 5.11 — Survival: The terms and provisions of Sections 2.04 and 2.05 and Articles I, III, IV and V of this Agreement shall survive cancellation of the Password.
Section 5.12 — Public Announcements: All public announcements concerning the Website or the relationship of Subscriber and Corporation shall be subject to the prior written approval of Corporation
Section 5.13 — Arbitration: To ensure the rapid and economical resolution of disputes that may arise in connection with this Agreement, Corporation and Subscriber agree that any and all disputes, claims, or causes of action, in law or equity, arising from or relating to the enforcement, breach, performance, or interpretation of this Agreement, shall be resolved, to the fullest extent permitted by law, by final, binding and confidential arbitration in New York, New York conducted by the American Arbitration Association ("AAA") or its successor, under the then applicable rules of AAA. The Corporation and Subscriber acknowledge that by agreeing to this arbitration procedure, the Corporation and Subscriber both waive the right to resolve any such dispute through a trial by jury or judge or by administrative proceeding. The arbitrator shall: (i) have the authority to compel adequate discovery for the resolution of the dispute and to award such relief as would otherwise be permitted by law; and (ii) issue a written arbitration decision including the arbitrator's essential findings and conclusions and a statement of the award. The Corporation and Subscriber shall pay all of AAA' arbitration fees equally. Nothing in this Letter is intended to prevent either Party from obtaining injunctive relief in Court to prevent irreparable harm pending the conclusion of any arbitration. Notwithstanding the provisions of this paragraph, any claims by either party related to Proprietary Information claims or involving trade secrets shall be resolved through the Courts and not through the arbitration procedure described above.
Section 5.14 — Litigation Expense: In the event of litigation or arbitration arising out of or relating to this Agreement, each party shall pay its own costs and expenses of litigation or arbitration (excluding fees and expenses of arbitrators and administrative fees and expenses of arbitration).