Torqueware User Agreement
Original Version Effective date: October 9, 2012
This TorqueWare™ User Agreement (“User Agreement”) sets forth the legally binding terms for your (the “Customer”) access and utilization of that certain web-based calibration documentation system (the “Service”) commonly known as “TorqueWare™”, which is owned and operated by Alltite, Inc. (“Alltite”) and can be accessed at http://alltite.net/torqueware (the “Website”). The right to use the Service is offered subject to acceptance without modification of the terms and conditions contained herein. By clicking “I Accept” or by using the Service, Customer agrees to be bound by all the terms and conditions of this User Agreement.
1. RIGHT TO UTILIZE SERVICE
Subject to the terms and conditions of this User Agreement, Alltite hereby grants to Customer and its employees and agents (“End Users”) a non-exclusive license to access and utilize the Service on the Website for a period of one (1) year following that date of Customer’s acceptance of this User Agreement, unless terminated earlier as provided for herein. Following the expiration of the initial one (1) year period, Customer may continue using the Service until the date when Alltite elects to terminate this User Agreement and Customer’s access to the Service. Customer acknowledges that use of the Service is solely intended for Customer’s internal business purposes and Customer shall be solely responsible for regulating use of the Service by its End Users. In order to utilize the Service, Customer must obtain internet access. Customer shall be responsible for any Service fees associated with such internet access, including any carrier fees. In addition, Customer shall provide all equipment necessary to make such internet connection, including a computer and modem and/or a wireless access device.
2. CUSTOMER ACCOUNT
Alltite will provide Customer with an account (“Customer Account”), including a user name (“User Name”) and password (“Password”), for purposes of allowing Customer to access the Service on the Website. Customer shall be responsible for maintaining the confidentiality of its User Name and Password and for restricting access to the Service and Website to its End Users, and Customer agrees to accept responsibility for all End Users and third party activities that occur under its assigned Customer Account, User Name or Password. Company, and each End User, shall: (1) keep the Customer Account Password secure and confidential; (2) not permit any third parties to use any Customer Account, User Name or Password, except on behalf of Customer and only for Customer’s internal purposes; (3) refrain from using any other Customer Accounts, User Names or Passwords; (4) refrain from selling, trading, or otherwise transferring in any manner any Customer Account, User Name or Password to another party.
Customer shall notify Alltite of any known or suspected unauthorized use(s) of a Customer Account, or any known or suspected breach of security, including loss, theft, or unauthorized disclosure of any Password. Alltite may terminate Customer’s access to the Service in the event of Customer’s fraudulent, abusive, or otherwise illegal activity, and Alltite may report Customer to appropriate law enforcement agencies.
3. CONDITIONS OF THE SERVICE
This service is only available for customers that are in good standing with Alltite. Customer may not use the Service for any illegal or unauthorized purpose. Customer shall not, in the use of the Service, violate any applicable laws related to the Service (including, but not limited to, copyright laws). Customer agrees not to reproduce, duplicate, copy, sell, resell, license, sublicense, transfer or exploit any portion of the Service, use of the Service, or access to the Service without the express written permission by Alltite; it being expressly acknowledged by Customer that the look, feel and layout of the desktop images and portable document format (pdfs) are copyrighted materials, and Customer shall not reproduce, copy or attempt to replicate such images, singularly or as a whole. Customer acknowledges and understands that Alltite may use third party hosting partners to provide the technology required to run the Service. Customer shall not, directly or indirectly, (i) interfere or attempt to interfere with the Service or any activities conducted on the Website; or (ii) bypass any measures that Alltite may use to prevent or restrict access to the Service (or other accounts, computer systems or networks connected to the Service); (iii) decipher, decompile, disassemble, reverse engineer or otherwise attempt to derive any source code or underlying ideas or algorithms of TorqueWare™ or any part of the Service; or (iv) modify, translate, or otherwise create derivative works of any part of the Service. Customer shall abide by all applicable local, state, national and international laws and regulations related to the Service.
4. CANCELLATION AND TERMINATION
Alltite may, in its sole discretion, immediately suspend or terminate this User Agreement, and Customer’s right to access or utilize the Service, immediately in the event that Customer or any of its End Users breach any term of this User Agreement or any other agreement between the Customer and Alltite.
5. INTELLECTUAL PROPERTY
Customer acknowledges Alltite owns all right, title and interest in and to the Service, TorqueWare™ and the Website, and portions thereof, and Alltite shall remain the sole owner of same notwithstanding Customer’s usage. All of the information other than Customer’s data contained on the Website and the Service is a copyrighted work protected by applicable intellectual property laws. Alltite expressly retains all proprietary rights to its content and technology. However, Alltite shall not own any data, information or material submitted by Customer while utilizing the Service, unless Alltite specifically advises the Customer otherwise.
TORQUEWARE™ AND THE SERVICE ARE PROVIDED “AS IS”. ALLTITE MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AS TO THE OPERATION OF THE WEBSITE, OR THE CONTENT, INFORMATION, OR SERVICE INCLUDED ON THE WEBSITE. CUSTOMER AGREES THAT ITS USE OF THE SERVICE IS AT CUSTOMER’S SOLE RISK. ALLTITE EXPRESSLY DISCLAIMS TO THE FULLEST EXTENT PERMITTED BY LAW ALL EXPRESS, IMPLIED, AND STATUTORY WARRANTIES, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS AND ANY WARRANTIES REGARDING THE RESULTS, SECURITY, RELIABILITY, TIMELINESS, AND PERFORMANCE OF ALLTITE OR THE SERVICE. CUSTOMER ACKNOWLEDGES THAT ALLTITE HAS NO CONTROL OVER, AND NO DUTY TO TAKE ANY ACTION REGARDING WHICH END USER GAINS ACCESS TO THE WEBSITE OR SERVICE. ALLTITE DOES NOT WARRANT THAT THE SERVICE WILL MEET CLIENT’S REQUIREMENTS OR THAT THE OPERATION OF THE WEBSITE OR SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE OR THAT ALL ERRORS WILL BE CORRECTED.
7. LIMITATION OF LIABILITY
UNDER NO CIRCUMSTANCES SHALL ALLTITE OR ITS AFFILIATES BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES ARISING FROM OR RELATED TO COMPANY’S ACCESS TO, OR USE OF, THE WEBSITE OR SERVICE, WHETHER SUCH CLAIM IS BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE (EVEN IF ALLTITE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES). THE FOREGOING LIMITATIONS OF LIABILITY SHALL APPLY WHETHER THE DAMAGES ARISE FROM USE OR MISUSE OF AND RELIANCE ON THE WEBSITE OR THE SERVICE, FROM INABILITY TO USE THE SERVICE, OR FROM THE INTERRUPTION, SUSPENSION, OR TERMINATION OF THE SERVICE (INCLUDING SUCH DAMAGES INCURRED BY THIRD PARTIES). SUCH LIMITATION SHALL APPLY NOTWITHSTANDING A FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY AND TO THE FULLEST EXTENT PERMITTED BY LAW.
Customer shall defend, indemnify and hold harmless Alltite, its affiliates, officers, directors, employees and agents from and against any and all claims, liabilities, damages, losses or expenses, including reasonable attorneys’ fees and costs, directly or indirectly arising out of or in any way related to Customer’s access to, or use of, the Service or the Website, or the results or procedures derived from such access or use of the Service.
9. GOVERNING LAW/ARBITRATION.
The validity, performance, construction and effect of all matters arising out of or relating to this User Agreement shall be governed by, and construed in accordance with, the laws of the State of Kansas, and the parties hereby irrevocably submit to the exclusive jurisdiction of the courts of the State of Kansas or in any federal court sitting therein. In the event of any dispute or controversy arising out of or related to this User Agreement, including the interpretation of any provision of this User Agreement, which cannot be resolved informally by the parties, such dispute will be resolved by binding arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules then in effect, except as such rules may be modified by this User Agreement or by the mutual consent of the parties. Any arbitration proceeding conducted hereunder will be held in Wichita, Kansas and will be enforceable in any court of competent jurisdiction. No actions, regardless of form or basis, arising out of or related to this User Agreement may be brought by either party more than two (2) years after the cause of action has first accrued.
10. ASSUMPTION OF RISK.
All access to, and use of, the Service and Website (including any data, documents, results or procedures produced or derived from the Service) are intended only for persons having certain skill and know-how regarding proper bolting procedures. Customer and its End Users shall access and use the Service and Website (including any data, documents, results or procedure produced or derived from the Service) at their sole risk. Alltite assumes no responsibility or liability for liability or damages incurred from Customer’s use of the Service or Website (including any data, documents, results or procedures produced or derived from such use). Alltite will only be responsible for inputting Customer’s calibration data into TorqueWare™ to the extent such data is obtained or transmitted from Alltite’s transducers, or any third party specifically engaged by Alltite to perform certain calibrations on Alltite’s behalf.
Alltite reserves the right, at its discretion, to change, modify, add or remove all or any portion of this User Agreement at any time by posting a revised version of this User Agreement on Alltite’s Website. Customer acknowledges and understands that it has the affirmative duty and obligation to check the Website regularly for any changes to the terms of this User Agreement. Customer’s continued use of the Services or Website following the posting of any revised version of this User Agreement shall constitute Customer’s acceptance of all such changes. This User Agreement constitutes the entire agreement between the parties and expressly supersedes any prior dealings, understandings or arrangements, oral or written, between the parties. Waiver by either party of any breach of the terms or conditions contained herein will not be construed as a waiver of any subsequent or other breach. The invalidity or unenforceability of any provision of this User Agreement shall not affect the validity or enforceability of its other provisions. This transaction is solely for the benefit of Alltite and Customer and shall not be deemed to confer upon, or grant to, any third party any right, claim, cause of action or interest.