FOTOKEM nextSPOT® - USE AGREEMENT
The following Use Agreement (the “Agreement”) applies to Foto-Kem Industries, Inc. (“FotoKem”) nextSPOT® Service (the “Service”). It is understood that Service Users (“Customer”) and Customer's “Authorized Third Party” are required to review and agree to the Terms of this Agreement, as posted on the FotoKem website or as provided through a nextSPOT® user interface. By signing on to the nextSPOT® Service, Customer and Customer's Authorized Third Party acknowledges and agrees to all Service Terms and it is understood that the Use Agreement shall be considered part of a Service Contract along with all other bid and acceptance documents relating to the establishment of Service.
(a) "Account" means the administrative mechanism set up by FotoKem to manage Customer use of Service and enable FotoKem to bill Customer for any relevant use of Service.
(b) "Agreement" means all bids, purchase orders, and all other documents between FotoKem and Customer relating to services or materials contracted or provided, and includes this Use Agreement.
(c) "Contract" means the sum of all documents and written Agreements pertaining to the provision of Services or materials by FotoKem to Customer.
(d) "Party or Parties" means FotoKem and/or Customer.
(e) "Service" or "Services" means any and all FotoKem nextSPOT® Services and/or related Services provided by FotoKem in fulfillment of Customer Contract or Order.
(f) "Service Terms or Terms" means the Terms of this Use Agreement and any other terms stipulated in associated Contract documents.
(g) "Customer" means the Party Contracting Services from FotoKem and any employees, representatives, or agents of Customer.
(h) "Order" means any FotoKem accepted request for the provision of Service in the form of Customer Purchase Order and/or other authorized form of request.
(i) "Authorized Third Party" means any person or entity other than Customer or FotoKem, whom has been approved by Customer or FotoKem to access Service.
(J) "Third Party" means any person or entity other than Customer or FotoKem.
2. ACCESS TO SERVICE
Upon the establishment of a Customer Account for Service, FotoKem agrees to provide Customer access to Service. Depending on Customer use requirements, FotoKem may provide proprietary software to enable Service. Service shall be maintained for the term of Contract provided Customer adheres to all Contract Terms related to the provision of Service.
3. SERVICE INTERRUPTIONS.
(a) As FotoKem has contracted with Third Party vendors to provide Service, FotoKem shall not be held responsible for Service interruptions or loss of connectivity due to vendor issues.
(b) FotoKem may (but is not required to) pass-on to Customer any credit, rebate or other consideration FotoKem may receive from a vendor due to Service interruption or loss of connectivity.
4. CUSTOMER EQUIPMENT.
Customer shall be responsible to obtain and have in place all equipment needed to access Service. FotoKem shall have no obligation for securing or maintaining Customer equipment, and no liability for Customer's inability to access Service due to lack of or failure of Customer equipment, or where the use of additional or other Customer equipment would enable such access.
FotoKem reserves the right at any time to make changes or additions to, or to replace any part of, the FotoKem network, Customer equipment specification, access control or other aspect of the Service, whether seeking to improve service or to lower costs or to conform to statutory requirements or requirements of regulatory bodies or Internet governing body or as FotoKem otherwise deems desirable. FotoKem may, but is not required to, make an effort to contact Customer to agree to timing for implementing changes, but does not assure success in doing so.
6. PERMITS, CONSENTS.
Customer shall, at Customer's expense, obtain any required permits, permissions, licenses, consents, or registrations deemed necessary by FotoKem or other authority, for installation and maintenance of the necessary equipment to access Service.
7. PROVISIONS REGARDING CUSTOMER USE OF SERVICE.
(a) Customer shall use the Services according to these Terms, and all other operating guides and instructions FotoKem notifies Customer of.
(b) Customer shall be considered solely responsible for the content of the files stored, distributed, transferred, collaborated on or transmitted through the Service by both Customer and Customer's Authorized Third Party.
(c) Customer shall not use the Service, or permit the Service to be used for any unlawful, fraudulent or unauthorized act, purpose or activity, or distribute, transfer, collaborate on or transmit any material that is unlawful, defamatory, offensive, threatening, abusive, obscene, or menacing, and constitutes or encourages a criminal offence, or could potentially give rise to civil liability; or take any action which is contrary to the acceptable use policies of any connected networks or Internet standards, or in any way that might place FotoKem in violation of any law or regulation.
(d) Customer and Customer's Authorized Third Party shall not violate or infringe any trademark patent, copyright, other intellectual property rights or similar rights, proprietary rights of publicity or privacy of any Third Party under the laws of any jurisdiction.
(e) Customer or Customer's Authorized Third Party shall not knowingly or recklessly transmit or distribute any material containing harmful or deleterious software viruses or any other hostile programming routines or codes designed to interrupt, corrupt, harm, destroy or limit the functionality of computer software, hardware or telecommunications equipment, or networks.
(f) Customer shall not allow or enable any unauthorized Third Party to access the Service, or use the Service in any way that in FotoKem's opinion may bring the Service or FotoKem into disrepute, or for any purpose other than those specified in the Service Contract.
(g) Following notice from FotoKem, an intellectual property owner, government authority or law enforcement agency, Customer and Customer's employees shall cooperate fully with any FotoKem investigation in response to such notice. Should Customer be found in violation of governing laws, Customer agrees to accept responsibility for any and all damages, fines, charges, or expenses associated with such notice and/or investigation.
(h) Customer acknowledges responsibility for any damages, charges, or expenses resulting from the introduction by Customer use of Services of any material containing harmful or deleterious software viruses or any other programming routines or codes designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment or any other hostile computer program.
(i) Customer shall not make any representation or warranty to a Third Party or Authorized Third Party as to quality, availability, or fitness for a particular purpose, of the Service.
(j) In no event will FotoKem be liable for any loss or damage to any data stored on any FotoKem servers used as part of the Service. Customer is responsible for maintaining insurance coverage in respect to any loss or damage to data stored on any of Customer and/or FotoKem servers.
8. PROPERTY RIGHTS.
(a) Customer shall not violate and take all reasonable steps to ensure its employees, agents and Authorized Third Party do not violate intellectual property rights of any Third Party, including, but not limited to, any trademark, patent, copyright or trade secret.
(b) Customer shall sufficiently monitor Service use by Authorized Third Party, employees, and agents, to comply with the foregoing obligation.
(c) Customer or Customer's Authorized Third Party shall not use the Service or FotoKem's servers in violation of Third Party Intellectual Property Rights.
(d) Customer shall not seek to or actually circumvent FotoKem's security procedures and shall abide by all requirements imposed by FotoKem.
(e) All legal and beneficial rights in all FotoKem software provided to Customer for use of the Services shall remain at all times the property of FotoKem.
(f) To the extent of its ability to do so, FotoKem shall grant Customer a non-exclusive non-transferable license to use applicable FotoKem proprietary software during the term of Contract, for the purpose of using the Service, and for no other purpose.
(g) Customer shall not reproduce the software for any purpose, including back-up, without expressed written permission from FotoKem.
(h) Customer shall not modify, adapt, translate, reverse engineer, decompile or disassemble the software or create any derivative work based thereon or merge or include the software with or in any other software.
(i) FotoKem shall have the exclusive right to commence, defend, conduct and settle all proceedings involving infringement or alleged infringement of FotoKem's Intellectual Property Rights or relating to the validity thereof.
(j) Customer shall notify FotoKem immediately in writing of any suspected infringement of FotoKem's Intellectual Property by Customer's employees, agents, Authorized Third Party, or Third Party. Customer shall give all reasonable assistance to FotoKem in the investigation of any such infringement and provide documentation in compliance with FotoKem requests.
(k) Nothing in the Agreement shall act as an assignment by FotoKem to Customer of any copyright, patent, trademark, or other Intellectual Property Right belonging to FotoKem.
(l) Customer shall not use, whether in the course of business or otherwise, in relation to any goods, services, advertising or promotion, any registered or unregistered name, mark, design, logo or similar Intellectual Property Right of FotoKem, its vendors, or others. By way of illustration, no use may be made by Customer of the name FotoKem or any mark, logo or other Intellectual Property Rights without the expressed written permission of FotoKem. All Intellectual Property Rights and/or know-how generated or arising in the performance of or as a result of rendering the Service shall (to the extent not already vested in FotoKem) vest in and be the property solely of FotoKem.
9. SUSPENSION OF SERVICE.
(a) FotoKem may (in addition to all other rights) suspend Service, with or without prior notice, in whole or in part, if (i) required or convenient to comply with an order, instruction or request of, or to cooperate with, a government, court, or other authority; (ii) convenient for FotoKem or its vendor to perform work relating to upgrading, repair or maintenance of the Services or FotoKem Network or any part thereof including servers or any component or part of connectivity; (iii) Customer fails to timely pay any amount due to FotoKem; or (iv) Customer breaches any provision of these terms.
(b)FotoKem may, but is not required, prior to suspension under Section 9(a), or a scheduled service interruption, attempt to notify Customer of the timing and/or reason for suspension or interruption of Services.
10. REMEDY FOR LOSS OF CONNECTIVITY.
(a) As it is the responsibility of vendors (not FotoKem) to maintain connectivity to Service, FotoKem shall not be responsible or liable for interruption, failure or inability of Customer to access Services due to vendor service failure or interruption.
(b)No remedy shall be available to Customer, and Customer waives and releases any claim, for inability to obtain Service during a planned outage, interruption or suspension under Section 9, or termination under Section 11.
(a) FotoKem shall have the right to terminate Service, with or without notice, if (i) Customer fails to pay FotoKem as and when due; (ii) Customer breaches these Terms; (iii) a trustee, liquidator, receiver, or administrator is appointed over Customer or any part of Customer's assets, Customer becomes insolvent or unable or fails to pay its debts as they mature, makes an assignment or arrangement for benefit of creditors, bankruptcy insolvency or other debt relief proceedings are instituted by or against Customer, an application is made to a Court for relief from debt obligations or to restructure, Customer adopts a resolution or takes other action to effect its winding up or termination of its existence, or a Court of competent jurisdiction makes an order or takes any action to that effect; (iv) Customer defaults in the performance of or compliance with any agreement with FotoKem and (in case of a remediable breach) fails to remedy the breach within three (3) days of notice of breach being given in any form by FotoKem; (v) the Services can no longer be provided by FotoKem for any reason whatsoever; or (vi) Customer violates intellectual property rights of others, including but not limited to, infringing or misusing a Third Party's trademark, copyright, patent or trade secret.
(b) Customer may terminate the Service term by providing FotoKem 30 days' written notice if FotoKem fails in a material way to provide the Service. Should there be no enforceable service term, as stipulated by Contract, Customer may terminate Service by providing FotoKem 30 days written notice.
12. CONSEQUENCES OF TERMINATION.
(a) On termination for any reason Customer shall (i) immediately stop using the Service; (ii) stop use of any proprietary software belonging to FotoKem; (iii) return to FotoKem all software, hardware and other equipment which FotoKem may have provided Customer for the purpose of using Service.
13. LIMITATION OF LIABILITY.
FOTOKEM SHALL HAVE NO LIABILITY TO CUSTOMER WHATSOEVER FOR INTERRUPTION OR INABILITY OF CUSTOMER TO ACCESS SERVICE, OR FOR LOSS OF CONNECTIVITY, INCLUDING BUT NOT LIMITED TO LOSS OF DATA OR PRODUCTIVITY, OTHER THAN THE OBLIGATION TO USE REASONABLE EFFORTS IN SEEKING TO REESTABLISH SERVICE. FOTOKEM SHALL HAVE NO LIABILITY OR RESPONSIBILITY FOR EQUIPMENT FAILURE, WHETHER SUPPLIED BY FOTOKEM OR CUSTOMER. FOTOKEM MAKES NO WARRANTY, EXPRESS OR IMPLIED AND DISCLAIMS ALL IMPLIED WARRANTIES AS TO QUALITY, LEVEL, AMOUNT, FREEDOM FROM OR OTHER ASPECT OF: INTERRUPTION, CONNECTIVITY, DELIVERY, CONTINUITY, ERROR, DELAY, QUALITY, FITNESS FOR PURPOSE, SUITABILITY OR PERFORMANCE TO BE PROVIDED, ACCURACY OR CONTENT OF INFORMATION PASSING THROUGH ANY NETWORK, UNLESS EXPRESSLY STATED HEREIN. FOTOKEM SHALL NOT BE LIABLE TO CUSTOMER IN CONTRACT, TORT OR OTHERWISE, INCLUDING LIABILITY FOR NEGLIGENCE, OR FOR LOSS OF REVENUE, BUSINESS, CONTRACTS, ANTICIPATED SAVINGS, OR PROFITS, OR ANY INDIRECT, ECONOMIC OR CONSEQUENTIAL LOSS HOWSOEVER ARISING.
14. DISCLAIMERS & WARRANTIES
(a) THE SERVICES ARE PROVIDED ON AN AS-IS, BASIS. FOTOKEM DOES NOT MAKE, AND EXPRESSLY DISCLAIMS, ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, IN REGARD TO ANY INFORMATION, PRODUCT, OR SERVICE FURNISHED BY IT UNDER THIS AGREEMENT, INCLUDING WITHOUT LIMITATION ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. IN NO EVENT SHALL FOTOKEM BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR PUNITIVE DAMAGES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE MAXIMUM LIABILITY OF FOTOKEM TO ANY USER FOR ANY LOSS, CLAIM, DAMAGE OR LIABILITY OF ANY KIND INCLUDING THAT WHICH MAY BE DUE TO FOTOKEM'S ACTUAL OR ALLEGED NEGLIGENCE, SHALL BE LIMITED TO THE AMOUNT PAID BY USER TO FOTOKEM FOR THE PROVISION OF THE SERVICE AT THE TIME THAT A CAUSE FOR CLAIM AROSE. (b) THE SERVICE INCORPORATES AS STANDARD THE PUBLISHED AES 256-BIT ENCRYPTION AND/OR RSA 2048-BIT ENCRYPTION. FOTOKEM ACCEPTS NO RESPONSIBILITY FOR THE BREAKING OF THESE ENCRYPTION STANDARDS AND ANY LOSSES THEREAFTER INCURRED TO CUSTOMER AS A RESULT OF ANY RELEVANT CODE BREAKING.
15. INDEMNITY AND UNDERTAKING.
Customer shall indemnify, defend and hold harmless FotoKem, its directors, officers, employees and agents from and against any and all liabilities, claims, costs and demands whatsoever (also including attorney's fees, costs, damages, fines, judgments and expenses), arising from claims by any Third Party (regardless of cause of action and whether suffered directly or indirectly by FotoKem or others) in connection with or relating to the use of the Service by Customer or breach of any Terms hereof by Customer.
16. LIQUIDATED DAMAGES.
Customer acknowledges that for each violation of a Third Party's intellectual property rights, FotoKem will have damages consisting of, but not limited to, costs to relay information concerning the claim and take measures to address the claim, and loss of reputation and business. Customer shall, in addition to performing the indemnity obligations above, pay FotoKem (at FotoKem's discretion), as liquidated damages, the sum of $5,000, on account of such damages. Customer acknowledges this liquidated damages provision represents reasonable compensation to FotoKem for the damages due to such breach. Nothing in this section 15 shall limit FotoKem's right to obtain injunctive and/or other provisional relief against Customer for breach of these terms.
17. FORCE MAJEURE.
(a) Customer acknowledges that FotoKem has no responsibility to indemnify Customer against or make correction for any loss or damage due to an act of God, inclement weather, failure or shortage of power, flood, earthquake, lightning or fire, strike, lock-out, trade dispute or labor disturbance, act or omission of government or other competent authority, war, military operation, acts of terrorism, riot, accident, or technical problems which make it impracticable to perform these Terms. (b) If the delay caused by an event referred to in section 16(a) lasts more than 30 days, either Party shall have the right, but not the obligation, to terminate the Service by giving written notice to the other Party.
(a) Notices: Notices hereunder shall be in writing and be given by mail or email to the other Party's address or other address as may be designated in writing from time to time by the other Party. Notice sent by mail shall be deemed to be delivered at the earlier of actual receipt or three days after dispatch. Notice sent by email shall be conspicuously labeled to call special attention to it and deemed to be delivered the business day after successful transmission.
(b) Assignment: Customer shall not assign or delegate or purport to assign or delegate any rights or obligations hereunder, without FotoKem's prior written consent.
(c) Modifications: FotoKem shall have the right by written notice to Customer to modify these Terms at any time to comply with regulations or other requirement imposed on FotoKem by vendors, government regulations, or other authority.
(d) Delay: Delay or failure by a Party to exercise a right or remedy shall be deemed not to waive the exercise of that right or remedy on another occasion, nor shall a single or partial exercise of rights or remedies, preclude other or future exercise of them. Remedies hereunder are cumulative and not exclusive of remedies provided by law. Any waiver shall be limited to the specific breach waived.
(e) Severability: If any provision of these terms shall be found by a court or other authority having jurisdiction to be invalid or unenforceable, that determination shall not affect the other provisions of these terms. All provisions not affected by the invalidity or unenforceability shall remain in full force and effect.
(f) Non-Exclusivity: These terms shall not prejudice any other arrangements or agreements FotoKem may have with any person or entity for Service. Nothing in these Terms shall restrict FotoKem from providing identical or similar Service to any other person or entity, on any Terms.
(g) Headings: Headings are for convenience only and shall not be used in the construction or interpretation of these Terms.
(h) Construction: In these Terms, where the context makes appropriate, the singular includes the plural and vice versa. These Terms are not intended to benefit or confer any right or benefit on any Third Party.
(i) Relationship: The Parties are independent and unrelated persons. Nothing herein shall be construed to create a partnership, joint venture, agency or similar arrangement or relationship. Neither Party shall have power or authority to make any commitment for or bind the other Party to any obligation. Neither Party shall make any representation or warranty, express or implied, on behalf of the other Party.
(j) Confidentiality: Customer acknowledges it may receive Confidential Information belonging to FotoKem which may include, but not be limited to, technical, contractual, business and financial information. Customer shall hold such information in strict confidence and take all reasonable steps to maintain its confidentiality. These restrictions shall not apply to the extent information or material is obtained by Customer from Third Parties without violation of confidentiality or non-disclosure obligation; publicly made available other than through Customer's fault; or disclosed to the public generally with prior written approval of FotoKem. Customer shall return any and all confidential information it may have in its possession to FotoKem within one week of FotoKem's written request.
(k) Survival: Sections 8, 10, 13, 14, 15, 16, 17, 18 and all other provisions which, by nature survive expiration or termination, shall continue in effect regardless of termination or expiration of these Terms, until performed or until by nature, such provisions have expired.
(l) Governing Law: These Terms shall be interpreted according to the internal laws of the State of California, and all applicable federal laws, rules and regulations, without regard for states rules on conflicts of laws. In a dispute between the Parties, exclusive jurisdiction and venue shall be in the United States District Court for the Central District of California or the Superior Court of the State of California for the County of Los Angeles. Customer consents to this jurisdiction and venue.
(n) Schedules: The schedules attached to these terms are incorporated herein and shall be deemed an integral part thereof
19. ENTIRE AGREEMENT
These Terms together with any Contract and any document expressly referred to in them, contain the entire Agreement between the Parties, save in the case of fraudulent misrepresentation or fraudulent concealment, supersede any previous agreements, arrangements, undertakings or proposals, written or oral, between Customer and FotoKem in relation to such matters. FotoKem reserves the right to alter these Terms at any time. FotoKem shall make best efforts to inform Customer that changes have been made to these terms and subject to FotoKem providing access to an up-to-date copy of the current terms via the FotoKem website or other written means. No oral explanation or oral information given by any Party shall alter the interpretation of these Terms.