Terms and Conditions for Usage of the iResearch System
THE TERMS AND CONDITIONS SET FORTH ON THIS FORM AND ON ANY WRITTEN AGREEMENT (TOGETHER THE "AGREEMENT"), EXECUTED BY AND BETWEEN MEMBER AND CHEMNAVIGATOR.COM, INC. ("CHEMNAVIGATOR") AND/OR CHEMNAVIGATOR'S WHOLLY-OWNED SUBSIDIARY, CNC HOLDINGS, INC. ("CNC"), AND/OR CHEMNAVIGATOR'S AUTHORIZED RESELLER, CONSTITUTE THE ENTIRE AGREEMENT FOR MEMBER'S USE OF THE iRESEARCH SYSTEM. ACCEPTANCE BY MEMBER OF THESE TERMS AND CONDITIONS MAY BE MADE BY (1) WRITTEN ACCEPTANCE AS PART OF THE WRITTEN AGREEMENT EXECUTED BY MEMBER AS NOTED ABOVE, OR (2) USE OF THE iRESEARCH SYSTEM BY MEMBER.
1. USE OF THE iRESEARCH SYSTEM
Unless otherwise specified herein, access to the iResearch System ("System") is provided to Member specifically for the purpose of searching, identifying and selecting for purchase products available through the System ("Products") provided by referenced supplier(s) (a "Supplier"), and/or purchase of services or information offered by ChemNavigator. In connection with the foregoing, ChemNavigator grants Member a nonexclusive, nontransferable right and license ("License") to download and store, in machine-readable form, electronic information associated with Products purchased through the System, and to create on-line reproductions or off-line printouts of such information retrieved by Member, and to reproduce, reformat, analyze, print and display such information retrieved by Member. Member may not, however, engage in activity listed herein if it is for commercial sale, redistribution, broadcast or transfer. Any other use of the System, including, but not limited to, renting, leasing, sublicensing, distributing, transferring, exporting, or time-sharing, the System or the information retrievable through the System, is specifically prohibited in the absence of prior written consent of ChemNavigator. Member agrees to take all reasonable steps to protect the System from unauthorized access, copying or use. ChemNavigator reserves all rights not expressly granted to the Member. The License granted herein will automatically terminate if Member does not comply with the terms of the Agreement.
2. ACCESS TO THE iRESEARCH SYSTEM
3. CONFIDENTIAL INFORMATION
"Confidential Information" shall mean all information disclosed by one party to the other (for example, from ChemNavigator to Member or from Member to ChemNavigator), under the Agreement as it applies to use of the System and purchase of Products, whether or not marked or identified as "confidential" or "proprietary". Each party shall treat as confidential all Confidential Information of the other party, shall not use such Confidential Information except as set forth herein, and shall use reasonable efforts not to disclose such Confidential Information to any third party, unless agreed to by the parties in writing. Without limiting the foregoing, each of the parties shall use at least the same degree of care which it uses to prevent the disclosure of its own confidential information of like importance to prevent the disclosure of Confidential Information disclosed to it by the other party under the Agreement. Each party shall promptly notify the other party of any actual or suspected misuse or unauthorized disclosure of the other party's Confidential Information. Notwithstanding the above, neither party shall have liability to the other with regard to any Confidential Information of the other which the receiving party can prove: (a) was in the public domain at the time it was disclosed or has entered the public domain through no fault of the receiving party; (b) was known to the receiving party, without restriction, at the time of disclosure; (c) is disclosed with the prior written approval of the disclosing party; (d) was independently developed by the receiving party without any use of the Confidential Information; (e) became known to the receiving party, without restriction, from a source other than the disclosing party, without breach of the Agreement by the receiving party and otherwise not in violation of the disclosing party's rights; or (f) is disclosed pursuant to the order or requirement of a court, administrative agency, or other governmental body; provided, however, that the receiving party shall provide prompt notice thereof to the disclosing party to enable the disclosing party to seek a protective order or otherwise prevent or restrict such disclosure. Breach of the confidentiality obligations set forth in this Section 3 may cause irreparable damage and therefore, the injured party shall have the right to equitable and injunctive relief, and to recover the amount of actual damages (including reasonable attorneys fees and expenses) incurred in connection with such unauthorized use. The confidentiality obligations set forth herein shall survive upon expiration or termination of the Agreement, and each party shall return all tangible Confidential Information received from the other party.
ChemNavigator and CNC shall indemnify, defend, and hold harmless Member and its employees, agents, successors, officers, consultants, and assigns, from any legal actions, losses, claims, demands, liabilities, costs and expenses (including attorney and accounting fees) that Member may sustain or incur arising from a breach by ChemNavigator or CNC of its obligations under Section 3 of this Agreement. Member shall indemnify, defend, and hold harmless ChemNavigator, CNC and Suppliers, and their respective employees, agents, successors, officers, consultants, and assigns, from any legal actions, losses, claims, demands, liabilities, costs and expenses (including attorney and accounting fees) that ChemNavigator, CNC or a Supplier may sustain or incur arising from (a) Member's use of the System or Products obtained and purchased through the System, (b) Member's breach of any of its obligations set forth in the Agreement; provided, that ChemNavigator, CNC or Supplier, as the case may be, provides Member with: (i) prompt written notice of such claim; (ii) control over the defense and settlement of such claim; and (iii) proper and full information and assistance at Member's expense to settle and/or defend any such claim. Notwithstanding the foregoing, Member shall not settle any such claim, suit or proceeding without the written consent of ChemNavigator, CNC or Supplier, as the case may be, which shall not be unreasonably withheld.
UNLESS OTHERWISE SPECIFICALLY SET FORTH HEREIN, NEITHER CHEMNAVIGATOR NOR CNC NOR SUPPLIER PROVIDE ANY WARRANTY WITH RESPECT TO THE SYSTEM OR ANY PRODUCT LISTED ON THE SYSTEM OR PURCHASED BY MEMBER. THE SYSTEM AND THE INFORMATION RETRIEVABLE THROUGH THE SYSTEM ARE PROVIDED ON AN 'AS IS' AND 'AS AVAILABLE' BASIS WITH ALL FAULTS. CHEMNAVIGATOR MAKES NO WARRANTY THAT THE SYSTEM WILL MEET MEMBER'S REQUIREMENTS OR THAT USE OF THE SYSTEM WILL BE ERROR FREE, UNINTERRUPTED, OR SECURE, OR TO THE ACCURACY, COMPLETENESS, OR CURRENTNESS OF THE INFORMATION RETRIEVABLE THROUGH THE SYSTEM. CHEMNAVIGATOR DOES NOT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SYSTEM. CHEMNAVIGATOR IS NOT RESPONSIBLE FOR ANY ERRORS OR OMISSIONS OR FOR THE RESULTS OBTAINED FROM SUCH INFORMATION. CHEMNAVIGATOR AND CNC EXPRESSLY DISCLAIM THE IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE AND ACCURACY WITH RESPECT TO THE SYSTEM OR ANY PRODUCT LISTED ON THE SYSTEM OR PURCHASED BY MEMBER. ALTHOUGH CHEMNAVIGATOR USES REASONABLE CARE TO ELIMINATE VIRUSES FROM ITS SYSTEM, MEMBER SHALL BE SOLELY RESPONSIBLE FOR ANY RESULTING DAMAGE TO MEMBER'S COMPUTER SYSTEMS OR LOSS OF DATA, INCLUDING AS A RESULT OF ANY COMPUTER VIRUS OR SOFTWARE-RELATED PROBLEMS.
6. LIMITATION OF LIABILITY
NOTWITHSTANDING ANY PROVISION OF THIS AGREEMENT, NEITHER CHEMNAVIGATOR NOR CNC NOR SUPPLIER(S) SHALL BE LIABLE FOR ANY LOSS OF BUSINESS, LOSS OF USE OR OF DATA, INTERRUPTION OF BUSINESS, LOST PROFITS OR GOODWILL, OR OTHER INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES OF ANY KIND ARISING OUT OF THIS AGREEMENT, EVEN IF CHEMNAVIGATOR AND/OR CNC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS, AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. THIS EXCLUSION INCLUDES ANY LIABILITY THAT MAY ARISE OUT OF THIRD-PARTY CLAIMS AGAINST MEMBER. THE TOTAL LIABILITY UNDER THE AGREEMENT WITH RESPECT TO ANY USE OF THE SYSTEM IN ACCORDANCE WITH THE AGREEMENT SHALL IN NO EVENT EXCEED THE PRICE PAID BY MEMBER FOR USAGE OF THE SYSTEM.
Any dispute arising out of the Agreement between ChemNavigator, CNC and Member, whether in contract or tort, statutory or common law, legal or equitable, shall be construed in accordance with the laws of the State of California, U.S.A., without regard to its provisions regarding conflicts of laws, and shall be subject to the exclusive jurisdiction of the state or federal courts of San Diego County, California, U.S.A. Member shall not assign its order or any interest herein or any rights hereunder without the prior written consent of ChemNavigator. The Agreement constitutes the entire agreement between ChemNavigator, CNC, or an authorized reseller (as applicable) and Member, and supersede all previous communications, representations and agreements, whether oral or written, between the Member, ChemNavigator, CNC or an authorized reseller (as applicable) with respect to the subject matter hereof. The Agreement may not be modified, supplemented, qualified, or interpreted except in writing signed by Member, ChemNavigator, CNC or an authorized reseller (as applicable). The failure by ChemNavigator and/or CNC to enforce at any time any of the provisions in the Agreement will in no way be construed as a waiver of such provisions. Supplier(s) are third party beneficiaries of the Agreement.