1. Product Terms
a. License to iEnable. User's access to iEnable is licensed and not sold. Subject to the terms of this Agreement, Intertek agrees to provide User with a non-exclusive, non-transferable account enabling User to access and use iEnable solely for the internal business needs of the Authorizing Party. iEnable shall be used only for purposes of managing the services provided by Intertek including but not limited to (i) the secure online viewing of inspection and testing reports and certificates; (ii) the secure online viewing of the scheduling activities; ii) electronic management and posting of project status information. Intertek reserves all rights, title and interest not expressly granted to User, including, but not limited to, the right to alter, modify, update, enhance, or improve iEnable. Nothing herein shall prevent Intertek or its licensors from promoting, selling, providing, licensing or sublicensing access to iEnable to other parties in its sole discretion.
b. Accessibility of iEnable. Intertek will use commercially reasonable efforts to make the core functions and features of iEnable available for access by User via the Internet ninety-eight (98%) of the time during normal business hours (8:00AM to 8:00PM, U.S. central time, Monday through Friday and excluding United States holidays). User understands and agrees that from time to time iEnable may be inaccessible or inoperable during normal business hours in the event of periodic maintenance procedures or repairs which Intertek may undertake. Intertek will use its reasonable endeavors to notify the User of any periodic maintenance procedures or repairs at least twenty-four (24) hours in advance. Notwithstanding any other provision of this Agreement, Intertek reserves the right without notice to change, suspend, remove, or disable access to iEnable or other materials comprising any part of iEnable at any time without notice. Intertek may also impose limits on the use of or access to certain features or portions of iEnable, in any case, and without notice or liability other than as described in this section.
c. Equipment. User shall be solely responsible for providing, maintaining and ensuring the compatibility of all hardware, software, electrical and other physical requirements necessary for User's use of iEnable, including, without limitation, telecommunications and Internet access connections and links, web browsers or other equipment, and programs and services required to access and use iEnable.
2. Intellectual Property
a. Intertek Intellectual Property. iEnable™ is proprietary to Intertek and is protected by intellectual property laws including copyrights and trademarks.
b. limited License. User may use iEnable as permitted herein and may not otherwise disclose, modify, adapt, translate, or create derivative works based on iEnable or any component thereof without the prior written consent of Intertek. As between the parties, Intertek Group plc owns all rights, title, and interest in and to iEnable, including without limitation, any and all proprietary documents and materials made available through iEnable and all ancillary and interface software, all current and future enhancements, revisions, new releases and updates thereof and any derivative works based thereon and all documentation thereto, all copyrights, trade secrets, patents and goodwill therein, and all images, photographs, illustrations, graphics, audio and video therein. Intertek™, the Intertek™ logo and iEnable™ are trademarks of Intertek Group plc. No trademarks, service marks, logos, intellectual property or other proprietary rights notices of Intertek may be deleted from, altered or obscured on iEnable or material produced by or using iEnable. User may not use iEnable in any manner that threatens the integrity, performance or availability of iEnable.
c. User Data. iEnable allows Users to upload data selected by the applicable User (the "User Data") into the iEnable system. Because User Data is selected and uploaded solely by Users, Intertek does not control such User Data. Intertek neither initiates the uploading of
such User Data nor monitors the specific content or accuracy of the User Data being uploaded. In connection with the User Data, User affirms, represents and warrants that User owns or has the necessary licenses, rights, consents and permissions to use and authorize Intertek to use all User Data and to enable inclusion and use of the User Data in the manner contemplated hereunder. User retains all ownership rights in the User Data. By uploading User Data to iEnable, User hereby grants Intertek a worldwide, non-exclusive, royalty-free, sublicenseable and transferable license to use, reproduce, distribute, modify, edit, adapt, publish, translate, incorporate, prepare derivative and collective works utilizing, display and perform the User Data for purposes of providing iEnable and the services under this Agreement. Additionally, User grants to Intertek a worldwide, non-exclusive, perpetual, irrevocable, royalty-free, sublicenseable and transferable license to use, reproduce, adapt, perform, compile, display, incorporate, modify and create derivative and collective works utilizing User Data in an aggregated and de-identified format for the improvement of iEnable and Intertek's other products and services (as may exist now or in the future) and for such other lawful purposes as Intertek sees fit. For the avoidance of doubt, Intertek will compile and present such User Data in such a manner that data cannot reasonably uniquely identify, either explicitly or implicitly, User, any specific product or information related to User, or any individual.
d. Inaccurate User Data. Without limiting the generality of any other provision of this Agreement, Intertek shall have no responsibility for or liability related to the accuracy, content, currency, completeness or delivery of the User Data provided by any User. User is responsible for the accuracy, content, currency, completeness and delivery of the User Data uploaded by such User.
3. User Representations, Covenants and Warranties
In addition to the other representations, covenants and warranties contained in this agreement, User represents, covenants and warrants to Intertek on behalf of User and any Authorizing Party on behalf of whom User purports to act, the following:
a. User is over the age of eighteen (18), or has met the relevant age of majority in User's jurisdiction, and has the power and authority to enter into and perform User's obligations under this Agreement including, but not limited to, the authority to bind the User and any Authorizing Party on behalf of whom User purports to act;
b. User has provided and will maintain accurate and complete registration information with Intertek, including, without limitation, User's legal name, address, telephone number, employer and the information of any Authorizing Party that User represents;
c. User's access to and/or use of iEnable does not and will not constitute a breach or violation of any other agreement, contract, terms of use, or similar policy or understanding to which User is or may be subject;
d. User will not use iEnable to violate any statute, law, rule or regulation, to violate any agreement between
and User or to otherwise violate the legal rights of Intertek or any third person;
e. User will not access or use iEnable in order to gain competitive intelligence about Intertek, iEnable or any product or service offered by Intertek or to otherwise compete with Intertek;
f. User has in fact authorization to access the iEnable account of which User desires to access;
g. User will not grant, permit, allow, assist or contribute in any way to any modification, reverse engineering, reverse compiling, or disassembly of iEnable or any component; and
h. User will ensure that its and any Authorizing Party on behalf of whom User purports to act use of iEnable will be consistent with the terms of this agreement.
4. Prohibited Uses
a. User is solely responsible for any and all acts and omissions that occur under User's account or password, and User agrees not to engage in unacceptable use of iEnable, which includes, without limitation, use of iEnable to: (a) disseminate or transmit material that, to a reasonable person may be abusive, obscene, pornographic, defamatory, harassing, grossly offensive, vulgar, threatening or malicious; (b) disseminate, store or transmit files, graphics, software or other material that actually or potentially infringes the copyright, trademark, patent, trade secret or other intellectual property rights of any person; (c) interfere, disrupt or attempt to gain unauthorized access to other accounts on iEnable or any other computer network; (d) disseminate, store or transmit viruses, trojan horses or any other malicious code or program; (e) disseminate or otherwise make available any proprietary documents or materials made available through iEnable to third parties unrelated to the internal business needs of any Authorizing Party without the prior written consent of Intertek; and/or (f) violate any statute, law, rule or regulation or otherwise violate the legal rights of a third person.
a. User shall be solely responsible for ensuring that unauthorized users do not make use of iEnable or that iEnable is not used for unauthorized purposes including, without limitation: (a) attempts to gain access to the whole of the iEnable data; (b) unauthorized alteration or modification of individual data; (c) use of any information obtained through iEnable except for the purpose for which the information was provided, and (d) attempts to use iEnable to gain unauthorized access to information.
b. User agrees not to access iEnable, any part thereof or any information contained thereon through any technology or means other than through User's account using User's account information. User agrees not to use or launch any automated system, including, without limitation, "robots," "spiders" or "offline readers," that accesses iEnable in a manner that sends more request messages to Intertek or iEnable in a given period of time than a human can reasonably produce in the same period by using a conventional online web browser. User agrees not to collect or harvest any personally identifiable information, including account information,
from iEnable or Intertek, nor to use iEnable for any commercial solicitation.
c. Modification, Rent or Sale. User agrees that iEnable may not be reproduced in any form or by any means, except as expressly permitted in this Agreement. User agrees not to modify, rent, lease, loan, sell, distribute, or create derivative works based on iEnable in any manner or to assist with such efforts in any manner, and User shall not exploit iEnable in any unauthorized way whatsoever, including, but not limited to, by trespass or burdening network capacity.
d. Reverse Engineering. Without limitation any modification, reverse engineering, reverse compiling, or disassembly of iEnable or any component thereof is expressly prohibited.
e. Data Mining. The Data mining of iEnable or any component thereof is expressly prohibited. User shall not recreate the databases, records, documentation or components of iEnable or grant or allow any other User, person, or entity the right or access to do so.
f. Competition with Intertek. An iEnable account shall not be valid, without prior written consent, for any individual, entity, company or organization that performs consulting or testing services.
5. Security.
User shall be responsible for the security, confidentiality and integrity of all information that User receives or transmits through iEnable. User shall not allow User's login, password, or account information to be used by or shared with any person. User shall be responsible for any authorized or unauthorized access or use of User's account by any person. User has the responsibility to monitor and control access to User's account information. If at any time User learns or suspects that User's account information has been disclosed or otherwise made known to any person other than User, User agrees to immediately notify Intertek. User agrees to bear all responsibility for the confidentiality of User's passwords and all use or charges incurred from use of iEnable through User's account(s).
6. Confidentiality.
a. Confidential Information. By virtue of this Agreement, each party may have access to information that is confidential to the other party ("Confidential Information"). Intertek's Confidential Information shall include, but not be limited to, any documents or materials made available through iEnable, the iEnable software, documentation, formulas, methods, know how, processes, designs, new products, developmental work, marketing requirements, marketing plans, customer names, prospective customer names, terms and pricing, and any information clearly identified in writing or which, by its nature, should reasonably be known by User at the time of disclosure as confidential. User's Confidential Information shall include User Data submitted via iEnable that is non-public, proprietary information. Each party acknowledges that the disclosing party's Confidential Information constitutes valuable,
proprietary information of the disclosing party, and each party agrees that it shall use the disclosing party's Confidential Information solely in accordance with the provisions of this Agreement and shall not use or disclose, or permit to be used or disclosed, the same, directly or indirectly, to any third party without the disclosing party's prior written consent. The following information will not be considered Confidential Information: (a) information which was in the public domain prior to its disclosure; (b) information which becomes part of the public domain by any means other than through violation of this Agreement; or (c) information independently developed by the receiving party without reference to the disclosing party's Confidential Information, already in the receiving party's possession prior to receipt from the disclosing party, or rightfully provided to the receiving party from a third party without restriction. Confidential Information may be disclosed in compliance with any court or administrative order; provided, however, that the receiving party gives the disclosing party reasonable notice that such Confidential Information is being sought by a third party, so as to afford the disclosing party the opportunity to limit or prevent such disclosure.
b. Duty to User Care with Confidential Information. Each party shall safeguard the disclosing party's Confidential Information from unauthorized use and disclosure using measures that are equal to the standard of performance used it to safeguard its own Confidential Information of comparable value, but in no event less than reasonable care. It is acknowledged and agreed that Intertek may retain and use User's Confidential Information subject to the confidentiality obligations of this Agreement to the extent incorporated into iEnable, Intertek's disaster recovery backups or as otherwise permitted or required by law.
7. Term; Termination
a. Term; Renewal. This Agreement is effective upon User's acceptance as set forth herein and shall continue in full force unless otherwise earlier terminated in accordance with this Agreement.
b. General Termination.
Each party reserves the right, in its sole discretion and at any time and for any reason, to terminate the terms of this Agreement and/or access to iEnable upon thirty (30) days notice to the other.
Intertek reserves the right to terminate or suspend the Agreement and/or access to iEnable in the event of breach of this Agreement by a User and its Authorizing Party.
c. Effect of Termination. Upon termination, User shall terminate use of iEnable and Intertek may terminate Users access to iEnable, including, without limitation, User's use of any and all Confidential Information and other proprietary documents and materials made available through iEnable, and return or destroy Intertek's Confidential Information. It is acknowledged and agreed that Intertek may retain User's Confidential Information subject to the confidentiality obligations of
this Agreement to the extent incorporated into iEnable, Intertek's disaster recovery backups or as otherwise permitted or required by law.
d. Return of User Data. If requested in writing within thirty (30) days after the effective date of termination of this Agreement, Intertek will make available to User for download a file of the User Data in comma separated value (.csv) format or in a format otherwise expressly agreed upon. After such thirty (30) day period, Intertek shall have no obligation to maintain or provide any User Data and may thereafter, unless legally prohibited, delete all User Data in its systems or otherwise in its possession or under its control.
8. Disclaimer of Warranties
EXCEPT AS OTHERWISE EXPRESSLY PROVIDED HEREIN, IENABLE IS PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED. USER'S ACCESS TO AND USE OF IENABLE IS AT USER'S SOLE RISK. INTERTEK DOES NOT WARRANT THAT USER'S USE OF IENABLE WILL BE UNINTERRUPTED OR ERROR FREE, NOR DOES INTERTEK MAKE ANY WARRANTY AS TO ANY RESULTS THAT MAY BE OBTAINED BY USE OF IENABLE, NOR DOES INTERTEK PROVIDE ANY WARRANTY RELATED TO THE TIMELINESS, SEQUENCE, ACCURACY, ADEQUACY OR COMPLETENESS OF ANY DOCUMENTS, MATERIALS OR INFORMATION PROVIDED THROUGH IENABLE. INTERTEK MAKES NO WARRANTY THAT ANY CONSUMER PRODUCT, ITS TESTING OR CERTIFICATION IS IN ANY WAY COMPLIANT WITH ANY LAW, CODE, REGULATION OR REQUIREMENT RELATED TO CONSUMER PRODUCTS WHETHER LOCAL, STATE, FEDERAL OR INTERNATIONAL. INTERTEK MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, IN RELATION TO IENABLE. WHILE INTERTEK USES COMMERCIALLY REASONABLE EFFORTS TO UPDATE IENABLE WITH CONTINUALLY CHANGING LAWS, CODES, STANDARDS, REQUIREMENTS AND REGULATIONS (COLLECTIVELY, "LAWS"), INFORMATION AND FORMS, USER MUST ALWAYS EXAMINE THE MOST CURRENT LAWS, INFORMATION AND FORMS TO ENSURE THAT USER IS IN FULL COMPLIANCE WITH ANY AND ALL APPLICABLE LAWS. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING DISCLAIMERS, INTERTEK DOES NOT WARRANT THAT USE OF IENABLE WILL RESULT IN USER'S COMPLIANCE WITH ANY APPLICABLE LAWS, AND USER UNDERSTANDS AND ACKNOWLEDGES THAT IT IS SOLELY RESPONSIBLE FOR ENSURING ITS COMPLIANCE WITH ANY AND ALL APPLICABLE LAWS.
9. Limitation of Liability
UNDER NO CIRCUMSTANCES SHALL INTERTEK BE LIABLE TO USER OR ANY OTHER PERSON FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES FOR ANY MATTER ARISING FROM OR RELATING TO THIS AGREEMENT, IENABLE OR THE INTERNET GENERALLY, INCLUDING, WITHOUT LIMITATION, USER'S USE OR INABILITY TO USE IENABLE, ANY CHANGES TO OR INACCESSIBILITY OF IENABLE, DELAY, FAILURE, UNAUTHORIZED ACCESS TO OR
ALTERATION OF ANY TRANSMISSION OR DATA, ANY MATERIAL OR DATA SENT OR RECEIVED OR NOT SENT OR RECEIVED, ANY TRANSACTION OR AGREEMENT ENTERED INTO THROUGH IENABLE, OR ANY DATA OR MATERIAL FROM A THIRD PERSON ACCESSED ON OR THROUGH IENABLE, WHETHER SUCH LIABILITY IS ASSERTED ON THE BASIS OF CONTRACT, TORT OR OTHERWISE. IF USER IS DISSATISFIED WITH IENABLE, USER'S SOLE AND EXCLUSIVE REMEDY SHALL BE FOR USER TO DISCONTINUE USE OF IENABLE AND TERMINATE THIS AGREEMENT IN ACCORDANCE WITH SECTION 6. THE DISCLAIMER OF WARRANTIES AND THE LIMITATION OF LIABILITY AND REMEDY ARE A REFLECTION OF THE RISKS ASSUMED BY THE PARTIES IN ORDER FOR USER TO OBTAIN THE RIGHT TO USE IENABLE. USER AGREES TO ASSUME THE RISK FORALL LIABILITIES DISCLAIMED BY INTERTEK CONTAINED HEREIN.
10. Indemnification
User agrees to indemnify, hold harmless and defend Intertek, its members, officers, employees and agents from and against any action, cause, claim, damage, debt, demand or liability, including reasonable costs and attorneys' fees, asserted by any person or entity, arising out of or relating to: (a) this Agreement; (b) User's use of iEnable, including any User Data, data or work transmitted or received by User; (c) any unacceptable use of iEnable by User or through User's account, including, without limitation, any User Data or any statement, data or content made, transmitted or republished by User which is prohibited under applicable law or by this Agreement; (d) any intentional or negligent act or omission of User; and/or (e) User's violation of any third party rights, including, without limitation, any intellectual property or privacy right.
11. Miscellaneous
a. Independent Contractors. The parties and their respective personnel, are and shall be independent contractors and neither party by virtue of this Agreement shall have any right, power or authority to act or create any obligation, express or implied, on behalf of the other party.
b. Assignment. User shall not assign or otherwise transfer its license under this Agreement or any of it rights or duties hereunder to another party, by operation of law or otherwise, without the prior written consent of Intertek. Any attempted assignment or transfer in contravention of this Agreement shall be void and of no effect.
c. Waiver. No waiver of any term, provision or condition of this Agreement, whether by conduct or otherwise, in any one or more instances, shall be deemed to be, nor shall constitute, a waiver of any other term, provision or condition hereof, whether or not similar, nor shall such waiver constitute a continuing waiver of any such term, provision or condition hereof. No waiver shall be binding unless executed in writing by the party making the waiver.
d. Severability. If any provision of this Agreement is determined to be illegal or unenforceable, then such provision will be enforced to the maximum extent
possible and the other provisions will remain fully effective and enforceable.
e. Notice. Unless otherwise provided in this Agreement, all notices shall be in writing and shall be deemed to be delivered when sent by first-class mail, postage prepaid, or when sent by facsimile or e-mail to either party's last known post office, facsimile or e-mail address, respectively. User hereby consents to notice by email and posting on Intertek's web site. Unless otherwise provided in this Agreement, all notices shall be directed to the parties at the respective addresses given above or to such other address as either party may, from time to time, provide to the other party.
f. Law. This Agreement shall be interpreted in accordance with and governed by the laws of England and Wales, without regard to conflict of law principles.
g. Forum. All actions, claims or disputes arising under or relating to this Agreement shall be exclusively brought in courts located in England and Wales.
h. Equitable Relief. The parties agree that breach of the provisions of this Agreement, including, but not limited to, the unauthorized use or duplication of iEnable or any of the proprietary documents and materials made available through iEnable or a breach of the confidentiality provisions of this Agreement, would cause irreparable harm and significant injury to Intertek which would be both difficult to ascertain and which would not be compensable by damages alone. As such, the parties agree that Intertek has the right to enforce the provisions of this Agreement in a court of competent jurisdiction by injunction (without necessity of posting bond), specific performance, or other equitable relief without prejudice to any other rights and remedies Intertek may have for User's breach of this Agreement.
i. Survival. The terms and provisions of Sections 1(a), 2(a), 3, 4, 6 and 6-10 shall survive any termination or expiration of this Agreement.
j. Entire Agreement. This Agreement, including any other documents referenced herein and hereby incorporated by this reference, constitutes the complete and exclusive statement of the agreement between the parties with respect to iEnable and supersedes any and all prior or contemporaneous communications, representations, statements and understandings, whether oral or written, between the parties concerning iEnable.