Electric 66 Terms and Conditions
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THIS AGREEMENT is made and entered into betweenElectric66 and the SUBSCRIBER named above ("SUBSCRIBER") with respect to the service known as Electric66 which is owned by Neil McVey and which is a computer on-line service in which SUBSCRIBER shall have the right to access its own system. Subject to the terms and conditions of this Agreement, Electric66. authorizes SUBSCRIBER to access and utilize Electric66 throughout the term of this Agreement.
1. Electric66. Throughout the term of this Agreement, SUBSCRIBERS shall be permitted to provide password access to Electric66 to that number of users ("USERS") for which Subscriber has paid the required fee in order for USERS to perform such activities as uploading information for potential suppliers to submit their offers, add and delete such information and such other lawful purposes as Electric66 permits. Electric66. may, without advance notice or liability, add, discontinue, or revise any aspect of Electric66, including, without limitation, such aspects as scope of service, availability of service, time of service availability, or the hardware and/or software required for SUBSCRIBER to access and use Electric66, subject to the terms and conditions of this Agreement.
2. SUBSCRIBER Equipment and Remote Connect Charges. SUBSCRIBER shall be responsible for obtaining and maintaining, at its own expense, all computer hardware, software, communication equipment, internet access accounts and access lines necessary to access and utilize Electric66
3. User Passwords and Use Thereof. All USERS will be responsible for maintaining the confidentiality of their passwords and SUBSCRIBER will be responsible for all activities and charges resulting from the use of their edition of Electric66, including unauthorized use.
4. Conduct of SUBSCRIBER. SUBSCRIBER agrees that all USERS authorized by SUBSCRIBER to access Electric66 shall use Electric66 only for lawful purposes. SUBSCRIBER and its USERS will not post or transmit on or through Electric66 any libelous, obscene, or otherwise unlawful information of any kind, and they will not engage in any conduct involving Electric66 that would constitute a criminal offense or give rise to civil liability under any local, nationl or other law or regulation and SUBSCRIBER and its USERS will not upload, post, reproduce or distribute to or through Electric66 any material protected by copyright, privacy or other proprietary right without first obtaining the written permission of the owner thereof. Any complaint with regard to "SPAM" may result in the immediate termination of Subscribers access to Electric66. SUBSCRIBER acknowledges that Electric66, Electric66 software and software accessible through Electric66 contain copyrighted and other proprietary and confidential information and material, and SUBSCRIBER and its USERS will respect all such proprietary rights and take such precautions as may be reasonably necessary to protect private, confidential and other proprietary information and material from unauthorized use or disclosure.
5. Accuracy and Validity of Information and Opinions. Electric66. will make a reasonable effort to ensure that information it contributes to Electric66 is timely and accurate. However, Electric66. does not endorse or warrant and assumes no responsibility whatsoever for the timeliness, accuracy, reliability, completeness or usefulness of any statement, opinion, advice, service or other information contributed to Electric66
6. Monitoring of Electric66. Electric66. may, in its discretion, monitor Electric66 and SUBSCRIBERS and USER'S use thereof to determine and ensure compliance with this Agreement and to protect itself and other USERS of Electric66 from fraudulent, unlawful, dangerous or abusive use of Electric66. Electric66 may also intercept and disclose any content, record, use or other information to the extent reasonably necessary to protect the rights of Electric66., for mechanical or service quality control as permitted by law, or to comply with any law, regulation, or governmental request. Electric66. may also, in its discretion, review, edit, refuse to post or remove any material or information submitted or transmitted to Electric66. Electric66 will not, however, intentionally intercept or disclose any private e-mail message unless required or permitted by law to do so, and Electric66. shall be under no obligation to monitor, review, screen, edit or otherwise control any information or material contributed to Electric66.
7. Electric66 Licenses. Electric66 hereby grants to SUBSCRIBER a non-exclusive, non-transferable license to use Electric66 and to have its USERS use Electric66 in accordance with the terms and conditions of this Agreement. SUBSCRIBER agrees to respect the copyright and other proprietary rights of third party licensors of Electric66 and to abide by the terms of license agreements applicable thereto and to ensure that its USERS also abide by the terms of license agreements applicable thereto.
7.1 Throughout the term of this Agreement, SUBSCRIBER and its USERS may use Electric66 solely for the purpose for which it is intended and SUBSCRIBER may use Electric66 for the number of USERS for which SUBSCRIBER has paid the applicable fee to Electric66.
7.2 Electric66. is the copyright owner of Electric66. The technical procedures, processes, methods of operation, and concepts which are embodied within Electric66 are trade secret information of Electric66 and/or its licensor(s). This license is not a sale of a copy of Electric66 and does not render SUBSCRIBER or its USERS the owner of a copy of Electric66. Ownership of Electric66 and all components and copies thereof shall at all times remain with Electric66 and its licensor(s), regardless of who may be deemed the owner of the tangible media in or on which Electric66 may be copied, encoded or otherwise fixed. However all data and files submitted by SUBSCRIBER and its USERS to Electric66 shall at all times be the property of SUBSCRIBER.
7.3 SUBSCRIBER and its USERS may not make any copies of Electric66. SUBSCRIBER will make all reasonable efforts to prevent any unauthorized copying of Electric66 or disclosure or use of Electric66.'s or any third party licensor's trade secret information, and SUBSCRIBER will advise its USERS who are permitted access to Electric66 of the restrictions upon duplication, reverse engineering, disclosure and use contained in this Agreement. SUBSCRIBER will be liable for any unauthorized copying, reverse engineering, disclosure and/or use by its USERS, employees or agents.
7.4 SUBSCRIBER will not lease, rent, sell, pledge, assign, sublicense, loan or otherwise transfer to any third party any part of Electric66 or any copy thereof or any of SUBSCRIBER'S rights under this Agreement without the prior written consent of Electric66..
7.5 Subject to the limitations of paragraph 11, Electric66. will indemnify SUBSCRIBER and hold SUBSCRIBER harmless against costs, expenses and liabilities upon any claim by any third party that Electric66 infringes or violates any copyright, trademark or trade secret rights of such third party, provided that: a) SUBSCRIBER notifies Electric66. within seven (7) days in writing of any notice of any such claim; b) SUBSCRIBER cooperates with Electric66. in all reasonable respects in connection with the investigation and defense of any such claim; c) Electric66. shall have sole control of the defense of any action on any such claim and all negotiations for its settlement or compromise; and d) should Electric66 become, or in Electric66.'s opinion be likely to become, the subject of a claim of copyright, patent or trademark infringement or trade secret misappropriation, SUBSCRIBER will permit Electric66., at Electric66.'s option and expense, either to: i) procure for SUBSCRIBER the right to continue using Electric66, ii) replace or modify the same so that it becomes non-infringing; or iii) terminate this license insofar as the use of Electric66 is concerned, and refund to SUBSCRIBER the proportionate amount of prepayment fee paid to Electric66. for the period for which such payment has not been earned. Notwithstanding anything herein to the contrary, however, Electric66 shall have no obligation or liability to SUBSCRIBER under any provision of this paragraph if any copyright, patent or trademark infringement or trade secret misappropriation claim is based upon the use of Electric66 in a manner other than that for which it was furnished by Electric66 or upon any modification by or for SUBSCIBER, in such a way as to cause it to become infringing.
7.6 If Electric66 does not conform to and perform substantially in accordance with Electric66.'s specifications, Electric66. will endeavor to correct any failure of Electric66 to so conform or perform; provided that: a) SUBSCRIBER gives Electric66. written notice of any such claimed failure to so conform or perform within said fifteen (15) day period of the effective date; and b) such failure to so conform or perform is not, in Electric66.'s reasonable opinion, a result of any modification of or damage to Electric66 or its operating environment or of SUBSCRIBER and its USER'S failure to operate Electric66 in the proper hardware and software environment. SUBSCRIBER'S sole and exclusive remedy for breach of the foregoing warranty shall be that: a) Electric66 will endeavor to correct within a reasonable time any reported failure of Electric66 to substantially conform to or perform substantially in accordance with Electric66.'s specifications; or b) in the event that Electric66 shall fail or be unable for any reason to correct any failure of Electric66 to substantially conform to or perform substantially in accordance with Electric66.'s specifications, SUBSCRIBER may terminate this license and cease using Electric66, and Electric66 will refund to User the full amount of any license fee paid to Electric66 from the date any error is reported.
8. On-line Software Updates. Electric66 may, when feasible, remotely update any version of Electric66, either with or without notice to SUBSCRIBERS or its USERS. Such updates may occur automatically or may occur pursuant to prompts which appear on SUBSCRIBERS or its USERS terminal screen during use of Electric66. Any updated version of Electric66 furnished to SUBSCRIBER by Electric66 will be subject to all of the same terms and conditions of this license or other license agreement applicable to the version being replaced. Electric66 may send email communications and intersystem messages to SUBSCRIBERS explaining new features of the Electric66 software and other news concerning Electric66.
9. Electric66 Help Desk. Throughout the term of this Agreement, Electric66. will maintain e-mail support help desk to assist paying SUBSCRIBERS in their use of Electric66 as posted on www.Electric66.co.uk
10. DISCLAIMER OF WARRANTIES. EXCEPT AS EXPRESSLY PROVIDED ABOVE, Electric66, AND INFORMATION AVAILABLE THROUGH Electric66 ARE FURNISHED BY Electric66 AND ACCEPTED BY USER "AS IS" AND "AS AVAILABLE", WITHOUT ANY WARRANTY WHATSOEVER. ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE, ARE SPECIFICALLY EXCLUDED AND DISCLAIMED. Electric66 DOES NOT WARRANT THAT Electric66, OR INFORMATION OBTAINED THROUGH Electric66 WILL MEET SUBSCRIBER'S REQUIREMENTS, THAT THE OPERATION OF Electric66 WILL BE UNINTERRUPTED OR ERROR FREE, OR THAT ALL FAILURES OF THE Electric66 TO SUBSTANTIALLY CONFORM TO OR PERFORM SUBSTANTIALLY IN ACCORDANCE WITH Electric66.'S SPECIFICATIONS WILL BE CORRECTED. EXCEPT AS EXPRESSLY PROVIDED ABOVE AND IN SUCH WARRANTIES, IF ANY, AS MAY BE PROVIDED BY THIRD PARTY VENDORS OF EQUIPMENT OR SOFTWARE UTILIZED IN CONNECTION WITH Electric66, THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF Electric66, AND INFORMATION OBTAINED THROUGH Electric66 IS WITH SUBSCRIBER.
11. LIMITATION OF Electric66 LIABILITY. IN NO EVENT WILL Electric66 BE LIABLE TO SUBSCRIBER OR ANY OTHER PERSON FOR ANY LOST PROFITS, LOST SAVINGS, LOST DATA, OR OTHER SPECIAL, CONSEQUENTIAL OR INCIDENTAL DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY INFORMATION, PRODUCT OR SERVICE FURNISHED OR TO BE FURNISHED BY Electric66 UNDER THIS AGREEMENT OR THE USE THEREOF, EVEN IF Electric66 HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE, AND THE AGGREGATE LIABILITY OF Electric66 UPON ANY CLAIMS HOWSOEVER ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY INFORMATION, PRODUCTS OR SERVICES FURNISHED OR TO BE FURNISHED BY Electric66 UNDER THIS AGREEMENT WILL IN ANY EVENT BE ABSOLUTELY LIMITED TO THE AMOUNT PAID TO Electric66 BY SUBSCRIBER UNDER THIS AGREEMENT; PROVIDED, HOWEVER, THAT NOTHING IN THIS AGREEMENT SHALL OPERATE TO RELIEVE Electric66 FROM LIABILITY FOR ITS OWN WILLFUL OR WANTON RECKLESSNESS OR INTENTIONAL TORTS.
12. Throughout the Term of this agreement and for a period of one and one half years from the date of its termination, SUBSCRIBER, or any of its USERS, shall not develop a service or software that competes with, or is similar to, Electric66 without the express written approval of Electric66
13. Term and Termination. This Agreement shall be effective immediately and shall continue in effect on a month-to-month basis until terminated as provided herein. Either party may, at its election and in its sole discretion, terminate this Agreement as of the end of any calendar month by written notice to the other party at least thirty (30) days prior to the effective date of termination. SUBSCRIBER may, at its option, terminate this Agreement effective immediately by written notice to Electric66. within thirty (30) days following the date on which access to Electric66 first becomes available to SUBSCRIBER. Electric66. may, at any time, terminate this Agreement and/or terminate SUBSCRIBER'S access to any or all of Electric66 without advance notice if SUBSCRIBER or anyone of its authorized USERS commit any violation of paragraphs 4 or 7 above. Upon termination of this Agreement, SUBSCRIBER will immediately cease and desist from using Electric66.
14. Electric66 Access and Service Fees. SUBSCRIBER will pay to Electric66 implementation charges as posted on www.Electric66.co.uk or as agreed to from time to time. Throughout the term of this Agreement, SUBSCRIBER will pay Electric66 a monthly fee determined in accordance with fee schedules established by Electric66 for Electric66 from time to time as posted at www.Electric66.co.uk. In addition, SUBSCRIBER will pay Electric66 at the rates specified in such fee schedules for file storage in any given month beyond the amount included in the basic subscribed services. SUBSCRIBER will also pay or reimburse Electric66 for all sales, use, excise, and other taxes and governmental charges (other than income taxes) which Electric66 is at any time required to pay or collect in connection with the furnishing of Electric66 under this Agreement.
SUBSCRIBER's credit card will be charged for the monthly fees and other charges to be paid under this Agreement.( Unless Standing Order is in place) PLEASE NOTE credit card statements will indicate that charges are paid to 2NDSITE INC.
If SUBSCRIBER gives written notice of termination of this Agreement within thirty (30) days following the date on which access to Electric66 first becomes available to SUBSCRIBER, Electric66 will credit SUBSCRIBER'S account for basic monthly service fees incurred up to the date on which such notice of termination is received except for customized web site installation charges, which shall not be refunded. Payment terms of all charges by Electric66. to SUBSCRIBER under this Agreement are net thirty (30) days from date of charge. Any amount not paid when due will accrue a finance charge at the rate of two percent (2%) per month (26.82% per year), or the highest rate permitted by law, whichever is less, until fully paid. Electric66 reserve the right to withdraw Electric66's service without notice if SUBSCRIBERS is in arears, or does not pay the agreed amount at the agreed time.
15. Change in Monthly Fees. Electric66. may change the amount of the monthly basic service and other fees to be paid by SUBSCRIBER by giving at least forty-five (45) days prior written notice thereof to paying SUBSCRIBER.
16. Financial Information. All financial information submitted via Electric66 by SUBSCRIBER shall at no time be the responsibility of Electric66 in any fashion whatsoever and may be shared with such financial institution as may be required.
17. Credit Card Information. Electric66 does not store the credit card information of USERS UNLESS the SUBSCRIBER or USERS input credit card data into the auto billing feature within Electric66's recurring profiles module. SUBSCRIBERS, who enable auto billing and choose to store the credit card information of their USERS, are responsible for the security of that credit card information. When storing credit card information using the Electric66 recurring profiles module SUBSCRIBERS acknowledge that they are aware of, and accept as satisfactory, Electric66's credit card protection procedures. To safeguard credit card information, Electric66 encrypts all stored credit card numbers, uses a restrictive firewall to protect stored data and uses 128 bit SSL certificates to encrypt data during transfer between web browsers and the Electric66 databases. When storing credit card information using the Electric66 recurring profiles module, the responsibility for the security of any credit card information stored by Electric66 on behalf of its SUBSCRIBERS is solely the responsibility of the Electric66 SUBSCRIBER. Electric66 is not responsible for the security of any credit data and SUBSCRIBERS indemnify and save harmless Electric66 from any claim or demand resulting from the theft or loss of any credit card information. Credit card data is provided by the SUBSCRIBERS and their USERS of 2NDSITE who are responsible for its protection.
18. Manner of Giving Notice. Any notice required or permitted under this Agreement may be by e-mail properly addressed to the intended recipient. Notice under paragraph 14 may also be given by posting bulletins on www.Electric66.co.uk
19. Non-Waiver. The failure by either party at any time to enforce any of the provisions of this Agreement or any right or remedy available hereunder or at law or in equity, or to exercise any option herein provided, shall not constitute a waiver of such provision, right, remedy or option or in any way affect the validity of this Agreement. The waiver of any default by either party shall not be deemed a continuing waiver, but shall apply solely to the instance to which such waiver is directed.
20. Severability and Choice of Law. Every provision of this Agreement shall be construed, to the extent possible, so as to be valid and enforceable. If any provision of this Agreement so construed is held by a court of competent jurisdiction to be invalid, illegal or otherwise unenforceable, such provision shall be deemed severed from this Agreement, and all other provisions shall remain in full force and effect. This Agreement shall in all respects be governed by and interpreted, construed and enforced in accordance with the laws applicable in England, United Kingdom and the parties hereto irrevocable submit to the exclusive jurisdiction of the courts of England, United Kingdom.
22. Assignment and Binding Effect. Electric66 may assign, delegate and/or otherwise transfer this Agreement or its rights and obligations hereunder to any person or entity. SUBSCRIBER may not assign, delegate or otherwise transfer this Agreement or any of its rights or obligations hereunder without the prior written consent of Electric66.. This Agreement shall be binding upon and inure to the benefit of the parties and their respective successors and permitted assigns.
22. Entire Agreement. This Agreement sets forth the entire agreement and understanding between Electric66. and SUBSCRIBER regarding the subject matter hereof and supersedes any prior representations, advertisements, statements, proposals, negotiations, discussions, understandings, or agreements regarding the same subject matter. This Agreement may not be modified or amended except by a writing signed by the party against whom the same is sought to be enforced.
SUBSCRIBER hereby agrees to and accepts the terms herein set out herein: