SEARER BUSINESS TECHNOLOGY, INC.
Terms and Conditions
Effective Date: November 7, 2013
These Terms and Conditions, together with one or more SBT Order/Quote Forms (each, an “Order Form”), as modified by the current versions of the SBT Terms of Service and other Legal Notices at http://www.sbtexecutiveseries.com/legal., form a binding agreement (“Agreement”) as of the Effective Date of the first Order Form signed by the company referenced on the Order Form (“Company”) and by Searer Business Technology, Inc. (“SBT”).
1. Services.
a. Provision of Services. Subject to the payment of all applicable fees stated on the current Order Forms (“Fees”), and the terms and conditions of this Agreement, SBT hereby grants to Company a limited, non-sublicensable, non-exclusive, non-transferable right to access and use the services referenced on the Order Forms (each, a “Service”), as well as access to the accompanying materials that document the Services (“Documentation”) through SBT’s website (the “Site”) solely for Company’s use, and not for the benefit of any other person or entity. Note that Company may request to evaluation access to certain Services (“Evaluation Services”), which may provide less functionality than other Services.
b. Users. Company is responsible for the actions and omissions of its Users and for all activities on each Account, whether or not permitted or endorsed by Company, and whether or not a third party stole the Account credentials from Company or a User. SBT will not charge Company for any actions on a Company Account if SBT determines to its own satisfaction that a Third Party compromised SBT’s security through no fault of Company or any User.
c. Documentation. Documentation may include, but not be limited to, any printed materials, “online” or electronic data provided by or obtained from SBT with regard to the Services (“Documentation”). The Documentation is licensed solely for use with the Services during the Term of this Agreement, and is the Confidential Information of SBT.
c. Data and Databases. Company is responsible for all data, graphics, text and other items uploaded or submitted by any of its Users or through any of its Accounts (“Company Content”).
d. Fees. SBT will charge Company the Fees stated on the Order Form in advance of the period for which they are due. Any failure by SBT to receive any Fees from Company prior to the term or period for which they are due shall be treated by the parties as Company terminating that Service solely for Company’s convenience. All Fees are nonrefundable. Where applicable, SBT will charge and Company will pay any sales, use or other taxes assessed for any provision or use of the Site or the Services, unless SBT receives appropriate documentation that Company is exempt from such taxes. For clarity, Company is not responsible for any taxes on the income of SBT.
2. Term and Termination. This Agreement begins on the Effective Date of the first Order Form and will continue thereafter until terminated. This Agreement will terminate automatically if Company fails to comply with any of the terms and conditions described herein, in the Documentation, or in the Online Legal Notices, and such termination shall be in addition to and not in lieu of any criminal, civil or other remedies available to SBT. In addition, SBT may choose to terminate any Service or this Agreement upon no less than ninety (90) day prior written notice to Company. Company may terminate this Agreement at any time by providing written notice to SBT, or by not paying any Fees for any Services by the due date specified by SBT. When this Agreement terminates, Company must immediately cease using the Services and the Documentation, although SBT will afford Company up to thirty (30) calendar days after the termination date to download copies of Company’s Database(s), after which SBT may delete all of Company’s Databases and other information and content (collectively, “Content”).
3. Updates and Maintenance. SBT may, at its sole discretion, make bug fixes or updates to the Services, modify Services, or make new Services available. SBT will generally perform maintenance and update services outside of business hours, which are defined as Monday through Friday, 9 am to 5 pm U.S. Eastern time. If any Service fails to operate in accordance with its current Documentation (“Error”) then SBT’s sole liability and Company’s sole remedy is that upon receipt of written notice of an Error SBT will promptly endeavor to repair, replace or update the Service or Documentation to bring it into compliance.
4. Ownership Rights.
a. Ownership. The Site, the Services and the Documentation, and all software, graphics, text and data provided by SBT (collective, the “SBT Content”) are protected by United States and international patent, copyright, trademark, trade secret and other intellectual property laws and treaty provisions. SBT and its third party licensors retain all title, right and ownership in and to (a) the Site, the Services, the Documentation and the SBT Content, including but not limited to all copies, versions, customizations, compilations and derivative works thereof (by whomever produced); (b) the SBT trademarks, service marks, trade names, icons and logos; (c) any and all copyright rights, patent rights, trademark rights, trade secret rights and other intellectual property and proprietary rights throughout the world in the foregoing; and (d) all Confidential Information (as defined in Section 12 below). Company acknowledge that Company’s use of the Site, the Services, the Documentation or the SBT Content does not transfer to Company any ownership, title, or registrable interest of any kind, and Company rights are limited to those rights expressly granted in this Agreement. In addition, SBT owns all intellectual property rights in the selection, arrangement presentation and performance of the Site Content on the Site and through the Services (the “Compilation”), as well as all data regarding how the Site and the Services are used (the “Metadata”). Any rights not expressly granted in this Agreement are expressly reserved
b. Submissions. Should Company decide to submit any materials to SBT via electronic mail, through or to the SBT Site, or otherwise, whether as feedback, data, questions, comments, ideas, concepts, techniques, suggestions or the like, Company agree that such submissions are unrestricted and shall be deemed non-confidential upon submission. Company grants to SBT and its assigns a non-exclusive, royalty-free, worldwide, perpetual, irrevocable license, with the right to sublicense, to use, copy, transmit, distribute, create derivative works of, commercialize, display and perform such submissions.
c. Data and Databases. Company retains any and all rights it may have to the Data, Databases and Company Content uploaded to the Service via the Site. Company grants SBT a limited license to store and process Company’s Data, Databases and Company Content.
5. Restrictions. Company may not rent, lease, sublicense, loan, sell, distribute, market or commercialize any portion of the Site, the Services, the Documentation or the SBT Content. Company may not permit any third parties to benefit from the use or functionality of the Site, the Services, the Documentation or the SBT Content, either directly or via a facility management, timesharing, service bureau or any other arrangement. Company may not transfer any or all of the rights granted to Company under this Agreement. Company may not duplicate or copy any portion of the Site, Services, Documentation or SBT Content, nor may Company remove any proprietary notices or labels. SBT reserves the right to periodically audit the Databases to verify compliance with the terms of this Agreement.
6. Disclaimers and Indemnification.
a. Warranty Disclaimer. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT AS EXPRESS STATED IN THIS AGREEMENT, THE SITE, THE SERVICES, THE DOCUMENTATION AND THE SBT CONTENT ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTY OF ANY KIND, ORAL OR WRITTEN, EXPRESS OR IMPLIED. WITHOUT LIMITING THE FOREGOING PROVISIONS, YOU ASSUME SOLE RESPONSIBILITY FOR SELECTING THE SERVICES TO ACHIEVE YOUR INTENDED RESULTS, AND YOU ASSUME SOLE RESPONSIBILITY FOR THE USE OF AND RESULTS OBTAINED FROM THE SERVICES. WITHOUT LIMITING THE FOREGOING PROVISIONS, SBT MAKES NO WARRANTY THAT THE SITE OR THE SERVICES WILL BE ERROR-FREE, VIRUS FREE, OR FREE FROM INTERRUPTIONS OR OTHER FAILURES OR THAT THE SITE OR THE SERVICES WILL SATISFY YOUR SPECIFIC REQUIREMENTS. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT SBT DISCLAIMS ALL WARRANTIES AND CONDITIONS, EITHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, FREEDOM FROM VIRUSES OR OTHER ATTACKS FROM THIRD PARTIES, ACCURACY, COMPLETENESS OF RESPONSES OR RESULTS, QUIET ENJOYMENT, QUIET POSSESSION, CORRESPONDENCE TO DESCRIPTION, OR NON-INFRINGEMENT. THE ENTIRE RISK ARISING OUT OF COMPANY’S USE OF THE SITE AND THE SERVICES REMAINS SOLELY WITH COMPANY. SOME STATES AND JURISDICTIONS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU. THE FOREGOING PROVISIONS SHALL BE ENFORCEABLE TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
b. Indemnification. Company agree at all times to defend at Company’s own cost, and to indemnify and hold SBT, its affiliates, and their respective directors, officers, employees, agents, shareholders, designees, and representatives thereof (collectively “Indemnitees”) harmless from and against all losses and expenses (as defined below) incurred in connection with any action, suit, proceeding, claim, demand, investigation, or formal or informal inquiry (regardless of whether same is reduced to judgment) (“claim”) or any settlement thereof which arises out of or is asserted against SBT arising out of or on account of: (i) alleged infringement or violation of any patent, trademark, copyright, trade secret or other proprietary rights with respect to the Company Content, Company Data or Company Databases; or (ii) any negligent act, omission, or willful misconduct by or on behalf of Company or any User in the performance of this Agreement or use of the Site or Services. The term “losses and expenses” shall be deemed to include but is not limited to all losses (whether direct, consequential, or other), compensatory, exemplary or punitive damages, fines, charges, costs, expenses, lost profits, reasonable attorneys’ fees and expenses, court costs, settlement amounts, judgments, compensation for damages to SBT’s reputation and goodwill, costs of or resulting from delays, financing, costs of advertising material and media time/space, and costs of changing, substituting or replacing same, and any and all expenses of recall, refunds, compensation, and/or public notices.
c. Data. YOU ACKNOWLEDGE THAT ANY DATA ENTRY, CONVERSION OR STORAGE IS SUBJECT TO THE LIKELIHOOD OF HUMAN AND MACHINE ERRORS, MALICIOUS MANIPULATION, OMISSIONS, DELAYS, AND LOSSES, INCLUDING, BUT NOT LIMITED TO, INADVERTENT LOSS OF DATA OR DAMAGE TO MEDIA THAT MAY RESULT IN LOSS OR DAMAGE TO COMPANY, ITS USERS OR CUSTOMERS, AND MAY LEAD TO DAMAGE TO COMPANY’S PROPERTY, AND/OR DETRIMENTAL RELIANCE ON MALICIOUSLY MANIPULATED DATA. SBT SHALL NOT BE LIABLE FOR ANY SUCH ERRORS, OMISSIONS, DELAYS, OR LOSSES. YOU ARE RESPONSIBLE FOR ADOPTING REASONABLE MEASURES TO LIMIT THE IMPACT OF SUCH PROBLEMS, INCLUDING ADOPTING PROCEDURES TO ENSURE THE ACCURACY OF INPUT DATA, EXAMINING AND CONFIRMING RESULTS PRIOR TO USE, ADOPTING PROCEDURES TO IDENTIFY AND CORRECT ERRORS AND OMISSIONS, REPLACING LOST OR DAMAGED MEDIA, AND RECONSTRUCTING DATA. YOU ARE ALSO RESPONSIBLE FOR COMPLYING WITH ALL LOCAL, STATE, AND FEDERAL LAWS PERTAINING TO THE USE AND DISCLOSURE OF ANY DATA. IF YOU ARE USING AN EVALUATION, YOU ACKNOWLEDGE AND UNDERSTAND (I) THAT THE EVALUATION SERVICES MAY BE USED FOR EVALUATION PURPOSES ONLY, (II) THAT THE EVALUATION SERVICES SHALL BE OPERABLE ONLY FOR A LIMITED TIME, AND (III) THAT, UPON EXPIRATION OF THE EVALUATION PERIOD, ANY DATA OR OTHER INFORMATION USED WITH, PROCESSED BY AND/OR STORED IN CONJUNCTION WITH THE EVALUATION SERVICES MAY BE IRRETRIEVABLE, UNRECOVERABLE AND/OR OTHERWISE UNUSABLE. UPON TERMINATION OR EXPIRATION OF THIS AGREEMENT, SBT SHALL USE REASONABLE EFFORTS TO RETAIN COMPANY’S DATA AND DATABASES FOR A PERIOD OF SEVEN DAYS, AFTER WHICH SBT MAY DELETE ALL SUCH DATA AND DATABASES, AND SBT MAY RETAIN NO ARCHIVAL OR BACKUP COPIES OF ANY SUCH DATA OR DATABASES.
d. Authorized SBT Solution Providers and Certified Consultants. ANY AUTHORIZED SBT SOLUTION PROVIDER, CERTIFIED CONSULTANT, RESELLER, INSTALLER OR CONSULTANT IS NOT AFFILIATED WITH SBT IN ANY CAPACITY OTHER THAN AS A RESELLER, INSTALLER OR CONSULTANT OF SBT’S PRODUCTS AND HAS NO AUTHORITY TO BIND SBT OR MODIFY ANY LICENSE OR WARRANTY. SBT MAKES NO REPRESENTATIONS, WARRANTY, ENDORSEMENT OR GUARANTEE WITH RESPECT TO THE SKILLS OR QUALIFICATIONS OF ANY AUTHORIZED SBT SOLUTION PROVIDER, CERTIFIED CONSULTANT, RESELLER, INSTALLER, CONSULTANT, OR OTHER AUTHORIZED THIRD PARTY PROVIDER AND YOU ARE ENCOURAGED TO INDEPENDENTLY INVESTIGATE THE SKILLS AND QUALIFICATIONS OF ANY AUTHORIZED SBT SOLUTION PROVIDER, CERTIFIED CONSULTANT, RESELLER, INSTALLER OR CONSULTANT WITH WHOM YOU ASSOCIATE.
e. Compliance. SBT MAKES NO REPRESENTATION OR WARRANTY REGARDING, AND SBT ASSUMES NO LIABILITY OR RESPONSIBILITY FOR, COMPLIANCE WITH LOCAL, STATE AND FEDERAL LAWS AND REGULATIONS BY COMPANY OR ANY USER OR OTHER PERSON, OR ANY OTHER THIRD PARTIES. COMPANY MAKES NO REPRESENTATION OR WARRANTY THAT ANY INFORMATION AVAILABLE THROUGH THE SITE OR THE SERVICES IS APPROPRIATE OR AVAILABLE FOR USE IN LOCATIONS OUTSIDE THE UNITED STATES, AND ACCESS TO OR USE OF THE SITE FROM LOCATIONS WHERE THE PROVISION OF SUCH INFORMATION MAY BE ILLEGAL IS PROHIBITED. PERSONS WHO DETERMINE TO ACCESS OR USE THE SITE FROM SUCH LOCATIONS DO SO ON THEIR OWN INITIATIVE AND ARE RESPONSIBLE FOR COMPLIANCE WITH ALL APPLICABLE LAWS AND REGULATIONS.
7. Limitation of Liability. UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, SHALL SBT BE LIABLE TO COMPANY OR TO ANY OTHER PERSON OR ENTITY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY CHARACTER WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF GOODWILL, LOSS OF CONFIDENTIAL OR OTHER INFORMATION, FOR BUSINESS INTERRUPTION, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, FOR PERSONAL INJURY, LOSS OF PRIVACY, FOR FAILURE TO MEET ANY DUTY INCLUDING A DUTY OF GOOD FAITH OR OF REASONABLE CARE, FOR NEGLIGENCE (WHETHER ACTIVE OR PASSIVE), AND FOR ANY OTHER PECUNIARY OR OTHER LOSS WHATSOEVER) ARISING OUT OF OR IN ANY WAY RELATED TO THE USE OR INABILITY TO USE THE SOFTWARE (INCLUDING PERMITTED CUSTOMIZATIONS), OR OTHERWISE UNDER OR IN CONNECTION WITH ANY PROVISION OF THIS AGREEMENT, EVEN IN THE EVENT OF FAULT, TORT (INCLUDING NEGLIGENCE, AND GROSS NEGLIGENCE), STRICT LIABILITY, BREACH OF CONTRACT, OR BREACH OF WARRANTY BY SBT, AND EVEN IF SBT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL SBT BE LIABLE FOR ANY DAMAGES IN EXCESS OF THE FEES RECEIVED BY SBT FROM COMPANY. THIS LIMITATION OF LIABILITY SHALL NOT APPLY TO LIABILITY FOR DEATH OR PERSONAL INJURY TO THE EXTENT THAT APPLICABLE LAW PROHIBITS SUCH LIMITATION. FURTHERMORE, SOME STATES AND JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION AND EXCLUSION MAY NOT APPLY TO YOU. THE FOREGOING PROVISIONS SHALL BE ENFORCEABLE TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. IF COMPANY IS A CALIFORNIA RESIDENT, COMPANY WAIVES CALIFORNIA CIVIL CODE §1542, WHICH STATES AS FOLLOWS: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.” THE LIMITATIONS IN THIS AGREEMENT, INCLUDING THE DISCLAIMERS, LIMITATIONS OF LIABILITY AND INDEMNIFICATION WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE. THE ALLOCATION OF RISK BETWEEN THE PARTIES IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES.
8. Entire Agreement. This Agreement expressly supersedes and completely replaces any and all prior agreements between the parties regarding the use of the Site and the provision of the Services. SBT shall not be bound by or liable to Company for any pre-existing or contemporaneous written or oral representations or warranties, made by anyone, with respect to the Site or Services, including any authorized Solution Provider, Certified Consultant, distributor, reseller, other authorized third party provider, or their respective agents, employees, or representatives, nor shall Company be deemed a third party beneficiary of any obligations of SBT to any such Solution Provider, Certified Consultant, distributor or reseller. This Agreement may be modified only by a written document executed by both parties.
9. Severability. If any provision of this Agreement shall be invalid or unenforceable, either in its entirety or partially or because of its application to particular circumstances, such provision shall, by mutual intention herein expressed by the parties hereto, be deemed modified to the minimum extent necessary to render such provision valid or applicable or to be eliminated from this Agreement, as required, and this Agreement shall be construed and enforced as if such provision had been originally so modified or eliminated. In the event that total or partial invalidity or unenforceability of any provision of this Agreement exists only with respect to the laws of a particular jurisdiction, this Section shall apply only to the extent that the laws of such jurisdiction are controlling.
10. No Class Action and Limitations. Company acknowledges and agrees that Company shall not initiate or participate in the litigation of any dispute, controversy, or claim of any kind arising out of or relating to the Site, the Services, this Agreement, or any breach hereof, as a member or representative of, or on behalf of, any class of persons or entities, or any person or entity other than Company. Each party agrees that it will commence any action arising from or relating to this Agreement, the Site, the Services, or the performance of this Agreement, within one year from the date the claim arises.
11. Confidentiality. Company agree that the Site, the Services, the Documentation and the SBT Content, including, but not limited to, all source and object code components, screen shots and displays, graphical user interfaces, algorithms, formulae, data structures, scripts, application programming interfaces and protocols (collectively the “Confidential Information”) are trade secrets of SBT and are owned by SBT or, where applicable, its third-party licensors. Company agree to retain all Confidential Information in strict confidence at least with the same amount of diligence that Company exercise in preserving the secrecy of Company’s most-valuable information, but in no event less than reasonable diligence. Company agree to: (i) only disclose Confidential Information to Company’s employees and agents to the extent required to use the Site and the Services under the terms of this Agreement and not to disclose or disseminate the Confidential Information to any third party without the prior written consent of SBT, (ii) use the Confidential Information solely for Company’s benefit as provided for herein and not to allow any third party to benefit from the Confidential Information, and (iii) bind Company’s employees and agents, by terms no less restrictive than those set forth herein, to maintain the confidentiality of such Confidential Information, and not use or disclose such information except as permitted under this Agreement. Notwithstanding the disclosure of any Confidential Information for any reason, such Confidential Information shall continue to be owned by SBT or its licensors. Nothing contained herein shall be deemed to prevent Company from disclosing or disseminating Company’s Data, in any format or any report, to whomever Company so choose.
12. Dispute Resolution. Except as otherwise provided herein, all disputes and claims relating to this Agreement or any other agreement entered into between the parties, the rights and obligations of the parties, the breach thereof, or any other claims or causes of action relating to the making, interpretation, or performance of either party under the Agreement shall be settled by one arbitrator in binding arbitration administered by the American Arbitration Association (“AAA”) in Philadelphia, Pennsylvania, U.S.A. in accordance with the Federal Arbitration Act and the Commercial Arbitration Rules of the AAA. The parties acknowledge and agree that no party and no witness shall be required to travel more than twenty-five miles to the site of the hearings, and thus each party and witness may participate in the arbitration remotely, including by testifying by telephone or other real-time communications. Each party will bear its own costs of attorney’s fees and costs. The fees of the arbitrator and the administrative fees of the AAA (“AAA Fees”) shall be shared equally by the parties, unless the arbitrator determines that one party is entirely without fault or liability, while the other party is solely liable or at fault, in which case the arbitrator may in the arbitrator’s discretion require that all of the AAA Fees be paid by the party that is solely liable or at fault. The arbitrator shall have no authority to grant class action status or determine class action claims and shall have no authority to amend or modify the terms of the Agreement except as expressly stated in this Agreement. To the extent permitted by applicable law, no issue of fact or law shall be given preclusive or collateral estoppel effect in any arbitration, except to the extent such issue may have been determined in another proceeding between the parties. Judgment upon the award of the arbitrator may be entered and enforced in any court of competent jurisdiction. This agreement to arbitrate shall survive any termination or expiration of the Agreement. With respect to any proceeding not subject to arbitration, the parties agree that any action at law or in equity instituted against either party to the Agreement shall be commenced only in the state or federal courts situate in Philadelphia County, Pennsylvania, U.S.A.
14. General Provisions. This Agreement is exclusively governed by the laws of the Commonwealth of Pennsylvania and the federal laws of the United States, without reference to conflicts of law principles. Company and SBT expressly agree to exclude the application of the United Nations Convention on Contracts for the International Sale of Goods. This Agreement is the entire agreement between the parties. This Agreement supersedes any other communications with respect to the Site, the Services, the Documentation and the SBT Content. No provision hereof shall be deemed waived unless such waiver shall be in writing and signed by a duly authorized representative of the party waiving such provision. The controlling language of this Agreement is English. If Company has received a translation into another language, it has been provided for Company’s convenience only.
15. SBT Customer Contact. If Company has any questions concerning these terms and conditions, or if Company would like to contact SBT for any other reason, please call (302) 475-6944, email us at [email protected], or write to us at:
Searer Business Technology, Inc.
325 Chestnut Street, Suite 800
Philadelphia, PA 19106, USA.
Company may also find SBT on the Web at http://www.sbtexecutiveseries.com.