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This License and Access Agreement (“Agreement”) is made by and between you (“Licensee”) and Wetherill Associates, Inc., a Delaware Corporation (“WAI”), and shall be effective as of the date that you click “I ACCEPT”. By clicking “I ACCEPT”, you acknowledge that in return for WAI’s agreement to grant you license and access to use of Kwikfinder.net and the Lester Catalog, you have read and accept the terms and conditions of this Agreement in its entirety, as set forth below:
1.
LICENSE GRANT
1.1 Licensee hereby acknowledges that WAI has developed a database of cross-referenced part numbers and associated search engine and database management programs through the expenditure of significant resources of money, manpower, subcontracted costs and industry data acquisition costs. Licensee hereby acknowledges that this database is known in the industry as the Lester Catalog and is located at Kwikfinder.net, is regularly updated and changed by WAI to reflect current industry information, and is extremely valuable and virtually irreplaceable due to the years of data gathering, maintenance and updating that WAI has invested. WAI hereby grants to Licensee a revocable, limited, non-exclusive, non-transferable, non-assignable license to access Kwikfinder.net and the Lester Catalog, including all associated Software (hereafter collectively referenced as the “Lester Database”) and use the content therein strictly conditioned upon and subject to Licensee’s continued compliance with the terms of this Agreement. The Lester Database shall be deemed to include all content on Kwikfinder.net and in the Lester Catalog, including text, graphics, programs, computer code, html codes, products, descriptive words, part numbers, specifications and interchangeability data, pictures and images, whether patented or copyrighted or not, and whether existing at the effective date of this Agreement or anytime in the future (hereafter “Content”). The Software for the Lester Database shall include any assortment of associated search engines, search and database management programs, search and programming paradigms and algorithms, report writing programs, source or object code, or any other programs used in the development of reports and/or the on-going administration, management, maintenance and updating of the Content.
1.2 Subject to and as restricted by the Limitations below, Licensee is authorized to access the Lester Database, download Content from the database, make hard copy printouts of the Content, and make reference and use of the part numbers, only for internal business purposes and for use with Licensee’s customers in the following medium only: (1) printed (catalog) form; and (2) read-only digital form. 2.
LIMITATIONS
Except as expressly permitted in Section 1 above or as expressly permitted by WAI in writing, Licensee shall not download, duplicate, print, transfer, store, publish, transmit, distribute, copy and paste, broadcast, circulate, or otherwise use the Content in the Lester Database, in any form or for any purpose. Content in the Lester Database shall under no circumstances be used on any ecommerce platforms other than a Licensee company website. Licensee shall not market, advertise, or publish any Content from the Lester Database on ecommerce platforms such as eBay or Amazon or any similar online marketplace. Content in the Lester Database shall under no circumstances be used in any printed material, presentation, software application or product that is marketed or advertised for sale. Content in the Lester Database shall under no circumstances be posted on any electronic medium, put online in a downloadable format, or stored or used in archival databases or searchable databases. Under no circumstances shall Licensee modify, alter, or in any way manipulate any Content downloaded or copied from the Lester Database or re-program, change, alter, add-to, update, delete, or reverse-engineer the Lester Database. Under no circumstances shall Licensee sell, resell, license, sublicense, assign, market, or advertise the Content in the Lester Database to third parties. With the sole exception of the use of the Content by Licensee’s customers in allowed medium and for informational purposes only, Licensee shall not permit or authorize any third parties to access or use the Content in the Lester Databased in any manner whatsoever (including permission to a third party to use Licensee’s USER ID or PASSWORD, or providing a third party with electronic or hard copies of Content). All other uses not specifically permitted in Section 1 above are expressly prohibited.
3.
PROPRIETARY RIGHTS
Licensee acknowledges and accepts that WAI holds and owns all rights, title, and interests (inclusive of associated intellectual property rights) in, and to, the Lester Database, including all Content, website design, corresponding uniform resource locators (URLs), and the structure and arrangement of Content in the Database; and that WAI’s rights, title, and interest is protected by applicable federal and state law, including intellectual property laws, exclusive and independent of this Agreement. Licensee acknowledges and accepts that the grant by WAI of a limited license and access to the Lester Database does not constitute a transfer of any of WAI’s rights, title or interests; and Licensee hereby agrees to fully cooperate in protecting these proprietary rights of WAI and in preventing any unauthorized use of the Lester Database or any Content therein. With the exception of Licensee’s obligation to protect the proprietary rights of WAI, this provision shall survive termination of this Agreement.
4.
DATA FURNISHED BY LICENSEE TO WAI
LICENSEE WILL INDEMNIFY WAI FOR ANY LOSSES, INCLUDING REASONABLE ATTORNEY’S FEES, SUFFERED AS A RESULT OF CLAIMS OF COPYRIGHT, TRADEMARK, PATENT OR OTHER INTELLECTUAL PROPERTY CLAIMS RELATING TO THE PRODUCT AND CROSS-REFERENCE DATA FURNISHED TO WAI BY LICENSEE, AS WELL AS FOR ANY OTHER THIRD PARTY CLAIMS ARISING OUT OF, OR RELATING TO, ANY DATA FURNISHED TO WAI BY LICENSEE.
5.
TERM AND TERMINATION
This Agreement will become effective upon the date that Licensee clicks “I Accept” and shall remain effective until terminated by either party on thirty (30) days written notice to the other party at the electronic or mailing address identified by such party; provided however, that WAI may terminate this Agreement at any time, with or without notice, upon a breach of this Agreement by Licensee, and Licensee may terminate this Agreement immediately upon written notice to WAI upon receipt of an amendment to this Agreement which contains terms that Licensee determines to be unacceptable. Upon termination of this Agreement, WAI shall remain entitled to recover any unpaid balances owed by Licensee for its access and license to use the Lester Database, and Licensee shall continue to comply with all provisions that survive termination of this Agreement. Further, upon termination, Licensee will immediately stop using the Lester Database and shall immediately return to WAI (or destroy if instructed by WAI) all electronic and hard copies of Content from the Lester Database.
6.
DISCLAIMER
LICENSEE ACKNOWLEDGES AND UNDERSTANDS THAT IN GRANTING LIMITED LICENSE AND ACCESS TO THE LESTER DATABASE, WAI MAKES NO WARRANTIES WHATSOEVER CONCERNING THE LESTER DATABASE OR THE CONTENT THEREIN, EXPRESS OR IMPLIED. WAI GRANTS THIS LIMITED LICENSE AND ACCESS TO LICENSEE ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND LICENSEE HEREBY ACKNOWLEDGES THAT THE LESTER DATABASE MAY INCLUDE ERRORS, OMISSIONS, OR OTHER INACCURACIES. WAI EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES CONCERNING THE LESTER DATABASE, ITS CONTENT, OR THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF PERFORMANCE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, OMMISSIONS, COMPLETENESS, CURRENTNESS, NON-INFRINGEMENT, OR ANY OTHER IMPLIED WARRANTY UNDER ANY FEDERAL OR STATE LAW. WAI FURTHER MAKES NO REPRESENTATION OR WARRANTY THAT THE LESTER DATABASE WILL OPERATE ERROR FREE OR IN AN UNINTERRUPTED FASHION OR THAT THE DATABASE OR ITS CONTENT, WHETHER VIEWED ONLINE OR DOWNLOADED, WILL BE FREE FROM VIRUSES, CONTAMINATION, OR OTHER CORRUPTION. THE DISCLAIMERS IN THIS PROVISION ARE OF A CONTINUING NATURE AND SHALL SURVIVE THE TERMINATION OF THIS AGREEMENT.
7.
LIMITATION OF LIABILITY
FOR ANY DAMAGES OR INJURY SUFFERED BY LICENSEE IN CONNECTION WITH THIS AGREEMENT AND/OR LICENSEE’S ACCESS AND USE OF THE LESTER DATABASE, LICENSEE’S EXCLUSIVE REMEDY, AND WAI’S ENTIRE LIABILITY, SHALL BE LIMITED TO THE AGGREGATE AMOUNT OF FEES PAID TO WAI BY LICENSEE FOR THE USE AND ACCESS OF THE LESTER DATABASE UNDER THIS AGREEMENT. REGARDLESS OF THE TYPE OF DAMAGE OR CLAIM RAISED BY LICENSEE, WHETHER IN CONTRACT OR TORT (INCLUDING CLAIMS OF NEGLIGENCE), IN NO EVENT SHALL WAI BE LIABLE TO LICENSEE FOR ANY SPECIAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE, INDIRECT, OR INCIDENTAL DAMAGES, INCLUDING BUT NOT LIMITED TO ANY LOST OR ANTICIPATED REVENUES OR PROFITS OF LICENSEE. THE LIMITATIONS OF LIABILITY IN THIS PROVISION ARE OF A CONTINUING NATURE AND SHALL SURVIVE THE TERMINATION OF THIS AGREEMENT.
8.
INDEMNIFICATION
Licensee agrees to indemnify, protect, defend, and hold harmless WAI and its respective owners, directors, officers, employees, agents, representatives, subsidiaries, parent companies, and contractors against all claims, losses, or damages to all persons or property, governmental charges or fines, or costs (including reasonable attorney’s fees), arising out of or related to (1) the breach of this Agreement by Licensee or any of Licensee’s owners, directors, officers, employees, agents, representatives, subsidiaries, parent companies, members, partners, clients, customers, or contractors (hereafter “Licensee Parties”); (2) violation by Licensee Parties of the laws of any jurisdiction in the United States (including but not limited to the U.S. Anti-Trust laws, the U.S. Foreign Corrupt Practices Act and the U.S. Export Control laws); (3) the Licensee Parties’ use of the Lester Database and its Content; or (4) the Licensee Parties’ operation of Licensee’s business; provided, however, that Licensee shall not be obligated to defend or indemnify WAI for claims that arise out of WAI’s sole negligence or willful misconduct. The indemnity and hold harmless obligations of this provision are of a continuing nature and shall survive the termination of this Agreement.
9.
MISCELLANEOUS
a)
Governing Law and Venue
: It is understood and agreed that the construction and interpretation of this Agreement shall at all times and in all respects be governed by the laws of the State of Pennsylvania. The parties agree that any dispute regarding the terms or enforcement of this Agreement shall be heard by courts located in the State of Pennsylvania, without a jury, and the parties submit themselves to the venue and jurisdiction of these courts to resolve any such matters.
b)
Attorney’s Fees and Costs
: In the event that WAI is required to institute legal proceedings to enforce this Agreement or remedy any violation or breach of this Agreement, Licensee agrees that WAI will be entitled to reimbursement from Licensee for all costs and reasonable attorney fees incurred by WAI in connection with such legal proceedings to enforce this Agreement or remedy any violation or breach of this Agreement.
c)
Binding Effect
: This Agreement shall be binding upon, and shall inure to the benefit of WAI and LIcensee, and their respective heirs, personal and legal representatives, successors and assigns.
d)
Severability
: The provisions of this Agreement shall be deemed severable, and the invalidity or unenforceability of any one or more of the provisions hereof shall not affect the validity and enforceability of the other provisions hereof.
e)
Waiver Of Breach
: The waiver by either WAI or Licensee of a breach of any provision of this Agreement shall not operate or be construed as a waiver of any subsequent breach by either WAI or Licensee.
f)
Amendments
: WAI may amend the terms and conditions of this Agreement at any time, and from time to time, upon 30 days written notice to Licensee. Licensee may only amend a term or condition of this Agreement upon approval in writing signed by WAI.
g)
Entire Agreement
: This Agreement (as may be amended from time to time) constitutes the entire agreement of the parties and supersede all prior written and oral communications between them with respect to the subject matter hereof.
h)
Force Majeure
: WAI shall not be liable for any problems with access or use of the Lester Database due to external causes beyond its control including, but not limited to, terrorist acts, natural catastrophe, fire, flood, or other act of God, customs and/or import or export regulations and/or duties, laws, regulations, acts (or failure to act) of any governmental authority, power failure/outages, virus propagation, shut down of network or related network systems/services caused by third parties.
i)
Headings
: The headings in this Agreement are inserted for convenience of reference only and are not intended to be a part of or to affect the meaning or interpretation of this Agreement.
HAVE READ AND UNDERSTOOD THE FOREGOING AGREEMENT AND AGREE TO BE BOUND BY ALL OF ITS TERMS AND CONDITIONS. Please manifest your acceptance of this Agreement by clicking the appropriate link below.
I Have read and understood and I accept this agreement
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