End User Licence Agreement
PILOTCART® LICENSE AND HOSTING AGREEMENT
IMPORTANT - BY UTILIZING PILOTCART SOFTWARE, YOU ARE ACCEPTING THE TERMS AND CONDITIONS OF THIS AGREEMENT. PLEASE READ THE FOLLOWING CAREFULLY BEFORE PROCEEDING. This Agreement is a legal agreement between you and Project A, Inc, the licensor of PilotCart software and associated on-line documentation that you access using this internet website (together referred in this Agreement as "PilotCart").
I. PilotCart License
1. License Grant. Subject to the terms of this Agreement, Project A, Inc grants you a non-exclusive, non-transferable license to access PilotCart remotely via browser on the server used by Project A, Inc to operate this website (the "Server") solely for purposes of creating and maintaining on the Server any interactive website developed using this website and with respect to which all required fees payable under this Agreement have been paid by you (each, a "Website").
2. Restrictions. You may not download or otherwise copy all or any portion of PilotCart. You may not sell, rent, license, lend, transfer or otherwise grant access to PilotCart to any other person or entity except as contemplated by the license granted to you above. You must comply with all applicable laws and regulations in your use of PilotCart. You may not modify, translate, reverse engineer, decompile disassemble or otherwise attempt to obtain or derive source code from all or any portion of PilotCart.
3. Proprietary Rights. Project A, Inc and its suppliers reserve all rights to PilotCart not expressly granted in this Agreement. Project A, Inc and its suppliers own PilotCart and all associated patent, copyright, trade secrets and other proprietary rights in PilotCart. No title or ownership of PilotCart or any associated proprietary rights are transferred to you or any other person by this Agreement.
4. Limited Warranty. Project A, Inc warrants that, for thirty (30) days from the date you first registered to use PilotCart, PilotCart will perform substantially according to the documentation included with PilotCart. Project A, Inc's and its suppliers' entire liability and your exclusive remedy for failure of PilotCart to comply with the foregoing warranty will be repair or replacement of PilotCart or, at Project A, Inc's option, return of any portion of the license fee paid to Project A, Inc by you for PilotCart. To receive this remedy, you must cease use of PilotCart and give Project A, Inc a written notice and description of the noncompliance within the warrantied period. This warranty applies only to you and is void if the failure of PilotCart has resulted from accident, abuse or misuse.
5. Third Party Suppliers. You expressly acknowledge that PilotCart contains, uses and accesses applications, programs and data licensed or provided to Project A, Inc by third party suppliers, and that such suppliers have disclaimed all warranties, express, implied or statutory, with respect to such applications, programs and data.
II. Website Hosting
1. Hosting Services. Project A, Inc grants you the right to develop and operate the Website on the Server, subject to and in accordance with the terms of this Agreement and such hosting policies, guidelines and specifications as Project A, Inc may, by notice to you, establish from time to time (the "WEB HOSTING TERMS AND CONDITIONS"). The WEB HOSTING TERMS AND CONDITIONS, if any, are incorporated in this Agreement or at www.projecta.com/legal.asp
2. Prohibited Uses. You shall not use, nor permit any third party to use, the Website or the website or any part thereof: (i) to violate any federal, state or local law, (ii) to transmit or post any obscene, indecent, or pornographic communication or material, (iii) to promote any illegal activities, (iv) to violate any intellectual property rights, (v) attempt to overcome or penetrate any security measures on the Server, or (vi) to upload or transmit any virus or harmful agent. You acknowledge that you may be subject to civil or criminal liability under the laws of various governmental jurisdictions as a result of any failure to abide by the provisions of this paragraph.
3. Control. You will be solely responsible for the development, operation and maintenance of the Website and all content and materials appearing in the Website, including without limitation (i) the technical operation of the Website, (ii) the accuracy and appropriateness of content and materials appearing in the Website, (iii) ensuring that the content and materials appearing in the Website do not violate or infringe upon the rights of any third party (including, for example, copyrights, trademarks, privacy or other personal or proprietary rights), and (iv) ensuring that the content and materials appearing in the Website are not libelous or otherwise illegal. You also will be solely responsible for accepting, processing and filling any customer orders generated through the Website, and for handling any customer inquiries and complaints arising therefrom. You shall inspect and monitor the Website as frequently and extensively as necessary to ensure its proper operation and compliance with the provisions of this Agreement, and to uncover any problems with the Website. To the fullest extent permitted by law, the Website will be deemed to be exclusively "under the control" of you and not "under the control" of Project A, Inc.
1. Amount. You will pay all applicable license, hosting and other fees relative to your use of PilotCart and the website in the amounts, in the manner and at the times specified on the website's fee schedule screen, as the same may be amended by Project A, Inc from time to time. The fee schedule is hereby incorporated in this Agreement in its entirety.
2. Taxes. The fees and other amounts payable under this Agreement do not include any sales, use, value-added or other taxes. All such taxes will be paid or reimbursed by you.
IV. General Terms
1. Termination. This Agreement may be terminated by any party to this Agreement at any time, with or without cause. Upon the effective date of any such termination, all rights granted to you will terminate, but Sections 1(b), 1(c), 2(d), 3 and 4 and all other provisions of this Agreement which may reasonably be construed as surviving such termination will survive the termination of this Agreement.
2. DISCLAIMER OF WARRANTIES. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, PROJECT A, INC AND ITS SUPPLIERS DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, WITH REGARD TO PILOTCART, SITE, SERVER OR YOUR USE OF OR INABILITY TO USE PILOTCART, SITE OR SERVER, INCLUDING, BUT NOT LIMITED TO, (I) ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE; (II) ANY WARRANTY THAT PILOTCART, SITE OR SERVER IS FREE FROM VIRUSES, BUGS, ERRORS OR OMISSIONS; AND (III) ANY WARRANTY OF NON-INFRINGEMENT.
3. LIMITATION OF LIABILITY. IN NO EVENT WILL PROJECT A, INC. OR ITS SUPPLIERS BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, ANY LOSS OF PROFITS OR DATA, BUSINESS INTERRUPTION OR OTHER PECUNIARY LOSS) ARISING OUT OF THE USE, INABILITY TO USE OR RESULTS OF USE OF PILOTCART, SITE OR SERVER, EVEN IF PROJECT A, INC. OR ITS SUPPLIERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL THE LIABILITY OF PROJECT A, INC. OR ITS SUPPLIERS (WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHER THEORY) ARISING OUT OF THE USE, INABILITY TO USE OR RESULTS OF USE OF PILOTCART, SITE OR SERVER EXCEED THE RESPECTIVE AMOUNTS PAID TO THEM BY YOU HEREUNDER.
4. Indemnity. You will indemnify and hold harmless Project A, Inc and its suppliers from any and all claims, damages, liabilities, costs and expenses (including, but not limited to, reasonable attorneys' fees) arising out of or related to (i) any content or materials appearing in, or products or services sold or offered by you through the website, or (ii) the development, use, operation or other activities with respect to the website (including, without limitation, any breach of the provisions of Section 2(b)). To the fullest extent permitted by law, the foregoing indemnity will apply regardless of any fault, negligence, or breach of warranty or contract of Project A, Inc or its suppliers.
5. Attorney Fees. In any litigation, arbitration, or other proceeding by which one party either seeks to enforce its rights under this Agreement (whether in contract, tort, or both) or seeks a declaration of any rights or obligations under this Agreement, the prevailing party shall be awarded its reasonable attorney fees, and costs and expenses incurred.
6. Excused Performance. Project A, Inc will not be liable for, or be considered to be in breach of or default under this Agreement on account of, any delay or failure to perform as a result of any cause or condition beyond its reasonable control, including the failure or interruption of any internet service.
7. Independent Contractors. Each party is an independent contractor and not an agent or representative of any other party. No party shall have any right or authority to create any obligation or make any representation or warranty in the name or on behalf of any other party. This Agreement shall not be interpreted or construed to create an association, joint venture or partnership between the parties or to impose any partnership obligation or liability upon any party.
8. U.S. Government Restricted Rights. If PilotCart is accessed or used by any agency or other part of the U.S. Government, the U.S. Government acknowledges that (i) PilotCart and accompanying materials constitute "commercial computer software" or "commercial computer software documentation" for purposes of 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-3, as applicable, and (ii) the U.S. Government's rights relating to PilotCart and accompanying materials are limited to those specifically granted in this Agreement.
9. Miscellaneous. This Agreement constitutes the entire agreement between you and Project A, Inc regarding PilotCart, the hosting of the Website and your use of the website. Project A, Inc will not be bound by any provision in any purchase order, receipt, acceptance, confirmation, correspondence or otherwise (other than terms contained therein identifying the products and quantities ordered), unless Project A, Inc specifically agrees in writing to such provision. This Agreement is governed by the laws of the State of California without reference to its choice of law principles.
10. INDEPENDENT REVIEW. YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT AND ALL RELATED SITE SCREENS REFERENCED AND INCORPORATED IN THIS AGREEMENT AND THAT YOU AGREE TO ALL ITS TERMS AND CONDITIONS. YOU HAVE INDEPENDENTLY EVALUATED ALL ASPECTS OF THIS AGREEMENT AND THE DESIRABILITY OF ENTERING INTO THE TRANSACTIONS CONTEMPLATED IN THIS AGREEMENT AND ARE NOT RELYING ON ANY REPRESENTATION, GUARANTEE OR STATEMENT OTHER THAN THOSE EXPRESSLY SET FORTH IN THIS AGREEMENT.