USER AGREEMENT
PLEASE READ THESE TERMS CAREFULLY BEFORE USING THE SITE!
This User Agreement (the “Agreement”) sets forth the terms and conditions which apply to your use of the ORAP Analytics Portal site web site (the "Site") which is offered to you by Strategic Power Systems, Inc. ("SPS").
BY USING THE SITE, YOU AGREE TO THE TERMS OF THIS USER AGREEMENT AS WELL AS ALL OTHER POLICIES DESCRIBED IN THE SITE JUST AS IF YOU HAD SIGNED THE USER AGREEMENT. IF YOU DO NOT AGREE TO BE BOUND BY THIS AGREEMENT, PLEASE DISCONTINUE YOUR USE OF THE SITE.
These terms may be changed from time to time without further notice. Your continued use of the Site after any such changes constitutes your acceptance of the new terms. SPS may terminate, change, suspend or discontinue any aspect of the Site, including the availability of any features, at any time. SPS may impose limits on certain features and services or restrict your access to parts or all of the Site without notice or liability. These terms apply exclusively to your access to and use of the Site and do not alter the terms and conditions of any other agreement you may have with SPS.
1. Restrictions on Use. The Site is owned and operated by SPS and contains material which is derived in whole or in part from material supplied and owned by SPS and other sources, and is protected by copyright, trademark, and other applicable laws. SPS may terminate your use of the Site at any time in its sole discretion.
2. Content Disclaimer. The Site solely provides information to its users. The information posted to the Site is not intended to provide advice. SPS does not guarantee the accuracy, completeness or timeliness of the information posted to the Site. All content available through The Site, including data, quotes, status reports, technical drawings and configurations, is believed to be accurate. However, you should independently evaluate the accuracy of the information and the usefulness for your particular needs of any product or service available through The Site. Specifications for products and services are subject to change without notice, and SPS reserves the right to make changes without notice to processing, materials, or configuration. All information on The Site is subject to the disclaimers herein.
3. Links and Third-Party Content. (a) SPS may from time to time provide links and pointers to internet sites maintained by third parties ("third party sites") and provide third party materials on The Site. These links are provided as a convenience and do not constitute an endorsement, sponsorship or recommendation by SPS of -- or responsibility for -- the third parties or the linked third-party sites or any content, services or products available on or through such third parties. Neither SPS, its subsidiary companies nor their affiliates or suppliers operate or control in any respect any information, products or services on these third-party sites. All links to The Site from a third-party site must first be approved in writing by SPS.
4. Disclaimer of Warranties. THE MATERIALS IN THE SITE ARE
PROVIDED "AS IS" AND WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, SPS AND SERVICE DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. SPS DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED
IN THE MATERIALS AND PRODUCTS WILL BE UNINTERRUPTED OR ERRORFREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE SITE OR THE SERVER THAT MAKES THEM AVAILABLE, ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. SPS DOES NOT WARRANT OR MAKE
ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE MATERIALS IN THE SITE IN TERMS OF THEIR CORRECTNESS, ACCURACY, TIMELINESS, RELIABILITY OR OTHERWISE. YOU ASSUME ALL RISK OF ERRORS AND/OR OMISSIONS IN THE SITE, INCLUDING THE TRANSMISSION OR TRANSLATION OF INFORMATION. YOU ASSUME FULL RESPONSIBILITY FOR IMPLEMENTING SUFFICIENT PROCEDURES AND CHECKS TO SATISFY YOUR REQUIREMENTS FOR THE ACCURACY AND SUITABILITY OF THE SITE, INCLUDING THE INFORMATION, AND FOR MAINTAINING ANY MEANS WHICH YOU MAY REQUIRE FOR THE RECONSTRUCTION OF LOST DATA OR SUBSEQUENT MANIPULATIONS OR ANALYSES OF THE INFORMATION PROVIDED HEREUNDER. YOU (AND NOT SPS) ASSUME THE ENTIRE COST OF ALL NECESSARY MAINTENANCE, REPAIR OR CORRECTION.
5. Limitation of Liability. IN NO EVENT SHALL SPS, ITS DIRECTORS,
OFFICERS, EMPLOYEES, AGENTS, SHAREHOLDERS, SUBSIDIARY COMPANIES OR THEIR AFFILIATES OR SUPPLIERS BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR OTHER DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF THE SITE OR WITH THE DELAY OR INABILITY TO USE THE SITE, OR FOR ANY INFORMATION, SOFTWARE, PRODUCTS AND SERVICES OBTAINED THROUGH, OR OTHERWISE ARISING OUT OF THE USE OF THE SITE, WHETHER BASED ON CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, EVEN IF SPS OR ANY OF THEIR AFFILIATES OR SUPPLIERS HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES.
6. Indemnification. You agree to defend, indemnify and hold harmless SPS, its service provider, their affiliates and their respective directors, officers, employees and agents from and against any and all claims, actions, suits or proceedings, as well as any and all losses, liabilities, damages, costs and expenses (including reasonable attorneys fees) arising out of or accruing from (a) any material posted or otherwise provided by you that infringes any copyright, trademark, trade secret, patent or other intellectual property right of any person or (b) any misrepresentation made by you in connection with your use of the Site; (c) any non-compliance by you with the terms and conditions of this agreement; and (d) claims brought by persons or entities other than the parties to this Agreement arising from or related to your access and use of the Site, including the information obtained through the Site.
7. Termination. This Agreement shall remain in full force and effect unless terminated, suspended, or canceled for any of the following reasons: (a) immediately by SPS for any reason, including, without limitation (i) concurrent access of the Site with identical user identification numbers, (ii) permitting another person or entity to use your user identification number to access the Site, or (iii) any other access or use of the Site except as expressly provided in this Agreement; or (b) immediately, if you violate the terms and conditions of this Agreement or the rules and regulations relating to the use of, or tamper with or alter any of the software and/or data files contained in, or accessed through, the Site. Termination, suspension, or cancellation of this Agreement or your access rights shall not affect any right or relief to which SPS or may be entitled, at law or in equity, and the indemnification obligations of the User set herein shall survive termination. Upon termination of this Agreement, all rights granted to you will terminate and revert to SPS and its licensors.
8. Proprietary Rights. (a) Trademarks. Strategic Power Systems® and ORAP® are registered trademarks of SPS. All trademarks, service marks, custom graphics, and trade names used on the Site are the property of SPS or its respective owners, and may not be copied, imitated, downloaded or otherwise used, reproduced or exploited in any way, in whole or in part, without the prior written permission of SPS or the owner of such trademark, service mark or trade name.
(b) Copyrights. SPS reserves copyrights in all contents of The Site including, but not limited to, design, text, software, technical drawings, configurations, graphics, other files, and their selection and arrangement. The contents of The Site may not be modified, copied, distributed, framed, reproduced, republished, downloaded, displayed, posted, transmitted or sold in any form or by any means, in whole or in part, without SPS’ prior written permission. You further agree that you will not systematically extract, collect or harvest, through electronic means or otherwise, any data or data fields from The Site, including but not limited to customer identities.
(c) Patents. SPS’ products and processes are covered by one or more patents and are subject to other trade secret and proprietary rights. SPS reserves all such rights. You agree not to infringe upon such rights or decompile, reverse engineer, or disassemble any of SPS’ products or processes.
(d) Software. Any software, including any files, images generated by the software, code, and data accompanying the software (collectively, “Software”), used or accessible through The Site may be used by you solely for accessing and using The Site for purposes expressly stated on The Site, provided that such uses are not competitive with or derogatory to SPS. SPS retains full and complete title to and all intellectual property rights in the Software. You agree not to copy, distribute, sell, modify, decompile, reverse engineer, disassemble or create derivative works from any Software.
9. Infringement policy. SPS, on behalf of itself and its service provider, pursuant to 17 U.S.C. Section 512 as amended by Title II of the Digital Millennium Copyright Act (the "Act"), reserves the right, but not the obligation, to terminate your license to use the Site if it determines in its sole and absolute discretion that you are involved in infringing activity, including alleged acts of first-time or repeat infringement, regardless of whether the material or activity is ultimately determined to be infringing. SPS and its service provider accommodate and do not interfere with standard technical measures used by copyright owners to protect their materials. In addition, pursuant to 17 U.S.C. Section 512(c), SPS, on behalf of itself and its service provider, has implemented procedures for receiving written notification of claimed infringements and for processing such claims in accordance with the Act. Our designated agent to receive notification of claimed infringement is:
Thomas Christiansen
Toringdon 3, Suite 205
3440 Toringdon Way
Charlotte, NC 28277 (704) 5445501 christiansen@spsinc.com
In addition, any written notice regarding any defamatory or infringing activity, whether of a copyright, patent, trademark or other proprietary right, should be sent to our designated agent, listed above, and must include the following information: (a) a physical or electronic signature of a person authorized to act on behalf of (i) the owner of an exclusive right that is allegedly infringed, or (ii) the person defamed; (b) identification of the copyrighted work claimed to have been infringed or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site. Similarly for other types of infringing materials, a list of such materials; (c) identification of the material that is claimed to be infringing, to be the subject of infringing activity, or that is claimed to be defamatory and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the material; (d) information reasonably sufficient to permit us to contact you, such as your address, telephone number, and/or electronic mail address; (e) a statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright or other proprietary right owner, its agent, or the law; and (f) a statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed or on behalf of the person defamed.
10. Modification. SPS reserves the right to amend this Agreement, and to modify, add or discontinue any aspect, content, or feature of the Site. Such amendments, modifications, additions or deletions shall become effective upon notice thereof, which may be provided to you by posting on the Site, via e-mail or any other reasonable means. Continued use of the Site by you shall be deemed to indicate your acceptance of any such amendments, modifications, additions or deletions.
11. Jurisdiction. Unless otherwise specified, the materials on The Site are presented solely to provide information regarding and to promote SPS’ products and services available in the United States, its territories, possessions and protectorates. The Site is controlled and operated by SPS from its offices within the state of North Carolina, United States of America. SPS makes no representation that materials on The Site are appropriate or available for use outside the United States. Those who choose to access The Site from outside the United States do so on their own initiative and are responsible for compliance with local laws, if and to the extent that local laws are applicable. Software from The Site is further subject to United States export controls. No software from The Site may be downloaded or otherwise exported or reexported (A) into (or to a national or resident of) any country to which the U.S. has embargoed goods, or (B) to anyone on the U.S. Treasury Department list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Deny Orders. By using the Site, you represent and warrant that you are not located in, under the control of, or a national or resident of any such country or on any such list.
12. Miscellaneous. (a) This Agreement shall be governed by and construed in accordance with the laws of the State of North Carolina without giving effect to any principles of conflicts of law. (b) You may not assign any of your rights, obligations or privileges hereunder without the prior written consent of SPS. Any assignment other than as provided for in this Section shall be null and void and of no force and effect, ab initio. (c) If any provision of this Agreement shall be unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from this Agreement and shall not affect the validity and enforceability of any remaining provisions. (d) No waiver by either party of any breach or default hereunder shall be deemed a waiver of any subsequent breach or default. (e) The titles and subtitles used in this Agreement are used for convenience only and are not to be considered in construing or interpreting this Agreement.
