THIS WEB PAGE IS A LEGAL DOCUMENT ("AGREEMENT") BETWEEN YOU ("THE VISITOR") AND MASTERY TECHNOLOGIES, INC. ("CORPORATION"). THIS AGREEMENT STATES THE TERMS AND CONDITIONS UNDER WHICH YOU MAY USE THE mastery.com WEB SITE. PLEASE READ THIS AGREEMENT CAREFULLY BEFORE ACCESSING AND USING THE mastery.com WEB SITE. BY USING AND ACCESSING THE mastery.com WEB SITE YOU INDICATE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT AND AGREE TO BE BOUND BY THIS AGREEMENT. IF YOU DO NOT ACCEPT THIS AGREEMENT, DO NOT ACCESS AND USE THE mastery.com WEB SITE. CORPORATION MAY REVISE THIS AGREEMENT AT ANY TIME WITHOUT NOTICE BY UPDATING THIS AGREEMENT. YOU SHOULD VISIT THIS WEB PAGE PERIODICALLY TO REVIEW THE AGREEMENT.
TERMS AND CONDITIONS
These Terms and Conditions ("Agreement") are made as of the Effective Date by and between Mastery Technologies, Inc., a Michigan corporation with offices located at 41214 Bridge Street, Novi, Michigan 48375, ("Corporation") and the Visitor, as defined hereunder.
Because Corporation has developed and owns the mastery.com web site as defined hereinafter for use and access by Visitor via the Internet; and
Because Visitor desires to access and use the mastery.com web site in accordance with the terms and provisions of this Agreement;
Therefore, in consideration of the mutual benefits of the covenants and restrictions herein contained, Visitor and Corporation hereby agree as follows:
ARTICLE I: RECITALS AND DEFINITIONS
SECTION 1.01 -- RECITALS: The above recitals and identification of parties are true and correct.
SECTION 1.02 -- DEFINITIONS: The following definitions shall apply:
- Access: The term "access" and variants thereof (including, without limitation, "accessing" and "accessible") shall mean to store data in, retrieve data from or otherwise approach, display, reproduce, frame, establish a Link to, or make use of (directly or indirectly) through electronic means or otherwise.
- mastery.com web site: The term "mastery.com web site" shall mean that certain Web Site referred to as the mastery.com web site, which is located on the Internet at http://www.mastery.com including any and all Corporation Technology used, incorporated, stored or accessible therein, as implemented on the Corporation System and made accessible to Visitor through the Internet using the Account Credentials.
- Web Site: The term "Web Site" shall mean that certain multimedia interactive product which is a compilation of data, information, computer software, graphics, audiovisual, components and coding formatted for use on the world-wide-web of the Internet and commonly referred to as a web site.
- Effective Date: The term "Effective Date" shall mean the date the Visitor first accesses the mastery.com web site.
- Corporation Marks: The term "Corporation Marks" shall mean trademarks, trade names, service marks and trade dress of Corporation and parent companies, subsidiaries and affiliates of Corporation, including, without limitation, the Mastery Technologies mark.
- Corporation System: The term "Corporation System" shall mean computer systems and communication equipment used for hosting the mastery.com web site and providing Visitor access to the mastery.com web site.
- Corporation Technology: The term "Corporation Technology" shall mean any and all Technology developed by or for Corporation.
- Internet: The term "Internet" shall mean that certain global network of computers commonly referred to as the Internet, including (without limitation) the world wide web.
- Licensed Content: The term "Licensed Content" shall mean third party Technology incorporated in whole or part into the mastery.com web site. The use of Licensed Content is subject to Visitor's agreement to the terms and conditions of the Software as a Service Agreement ("SaaS Agreement").
- Link: The term "Link" shall mean text, icons, graphic symbols that upon selection or activation, link or associate to, execute, access or retrieve an off-screen Web Site or Technology.
- Account Credentials: The term "Account Credentials" shall mean the password and username selected by Visitor for accessing the mastery.com web site as may be modified from time to time as provided hereunder.
- Restatements: The term "Restatements" shall mean Section 757 of the Restatement of Torts, Section 39 of the Restatement (Third) of Unfair Competition, Section 1 of the Uniform Trade Secrets Act and 18 U.S.C. §1839.
- Visitor: The term "Visitor" shall mean the individual or entity accessing the mastery.com web site, whether through a password-protected customer account or through public access.
- Technology: The term "Technology" shall mean information, data, ideas, works of authorship, computer software, source code, object code, executable code, software libraries, documentation, databases, database designs, data dictionaries, data models, fields, records, scripts, texts, interfaces, interface designs, screen displays, Web Sites, web pages, Links, visual works, graphic images, audio, video, compilations, formulas, methodologies, techniques, processes, procedures, adaptations, derivative works, computers, hardware, peripherals, components, networks, product lists, supplier lists and customer lists.
- Term: The term "Term" shall mean a period of time starting on the Effective Date and ending on the date Visitor ceases to make use of the Web Site.
- Unauthorized Access: The term "Unauthorized Access" shall mean any access to mastery.com web site other than for access during the Term for the exclusive purpose of viewing, browsing, retrieving, uploading and posting information on and ordering products through the mastery.com web site using the Account Credentials on behalf of Visitor in accordance with this Agreement.
- Unauthorized User: The term "Unauthorized User" shall mean any individual who accesses the mastery.com web site using another Visitor's Account Credentials.
- Properties: The term "Properties" shall mean any and all of the following: mastery.com web site, Web Site, Corporation Marks, Corporation System, Corporation Technology, Licensed Content, Links, and Technology.
ARTICLE II: SCOPE OF USE
SECTION 2.01 -- ACCESS: Corporation hereby grants Visitor a non-exclusive, non-transferable and revocable license to access the mastery.com web site, during the Term, solely for viewing, browsing, retrieving, uploading and posting information subject to the terms and provisions of this Agreement.
SECTION 2.02 -- POLICY STATEMENT: During the Term, Visitor shall comply with the Policy Statement. Corporation may modify the Policy Statement from time to time at the exclusive discretion of Corporation.
SECTION 2.03 -- ACCOUNT CREDENTIALS: Visitor hereby accepts responsibility for, and shall be liable for, all access to the mastery.com web site in connection with the Account Credentials. Visitor shall be responsible for the confidentiality of the Account Credentials. Modification of the Account Credentials shall be subject to the approval of Corporation.
SECTION 2.04 -- UNAUTHORIZED ACCESS: Visitor shall prevent Unauthorized Users from accessing the mastery.com web site. Visitor shall prevent Unauthorized Access to the mastery.com web site.
SECTION 2.05 -- CANCELLATION: Corporation may cancel the Account Credentials, for convenience and in the exclusive discretion of Corporation, upon providing written notice of such cancellation to Visitor in accordance with Section 5.06 of this Agreement. Visitor may cancel the Account Credentials, for convenience and in the exclusive discretion of Visitor, upon providing written notice of such cancellation to Corporation in accordance with Section 5.07 of this Agreement. Upon cancellation of the Account Credentials, Visitor shall immediately cease and desist any and all access to and attempts to access the mastery.com web site.
ARTICLE III: INTELLECTUAL PROPERTY
SECTION 3.01 -- OWNERSHIP AND TITLE: Title to the mastery.com web site (excluding Licensed Content), including ownership rights to any and all patents, copyrights, trademarks and trade secrets in connection therewith shall be the exclusive property of Corporation.
SECTION 3.02 -- UNAUTHORIZED USE: Visitor shall not copy or download the mastery.com web site without the prior written consent of Corporation. Visitor shall not access, modify, reverse engineer, reproduce, display, perform or distribute, including (without limitation) by framing or similar means, the mastery.com web site without the prior written consent of Corporation. Visitor shall not (directly or indirectly) promote, advertise, market or provide any Web Site similar to or competitive with the mastery.com web site.
SECTION 3.03 -- TRADEMARKS: Corporation shall retain all rights, title and ownership interests in the Corporation Marks and goodwill associated therewith. Visitor acknowledges that, excepting the Corporation Marks, all other product, service and company names mentioned in the mastery.com web site may be trademarks of their respective owners.
SECTION 3.04 -- PROPRIETARY INFORMATION: Visitor shall hold Corporation Technology in strict confidence and shall not access or disclose Corporation Technology except as otherwise permitted under this Agreement. Visitor hereby acknowledges and agrees that the Corporation Technology derives independent economic value (actual or potential) from not being generally known to other persons who can obtain economic value from its disclosure or use and not being readily ascertainable by proper means by other persons who can obtain economic value from its disclosure or use; is the subject of reasonable efforts under the circumstances to maintain its secrecy; and is a trade secret as defined under the Restatements.
SECTION 3.05 -- NO CONTEST: Visitor shall not contest or aid in contesting the ownership or validity of the copyrights, trademarks, service marks and trade secrets (as applicable) of Corporation in connection with the mastery.com web site.
ARTICLE IV: WARRANTY AND INDEMNIFICATION
SECTION 4.01 -- EXPRESS WARRANTIES: Visitor hereby acknowledges and agrees that Corporation, including officers, employees, Content Partners, Channel Partners, agents, directors and independent contractors of Corporation, has not made or granted to Visitor any express warranties concerning the mastery.com web site or any products and services offered or represented through the mastery.com web site. Visitor hereby acknowledges that the mastery.com web site does not constitute grant of an express warranty concerning any products and services offered or represented through the mastery.com web site and Visitor hereby waives any and all claims of warranty based on the mastery.com web site.
SECTION 4.02 -- WARRANTY LIMITATION: THE PROPERTIES IS PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND. CORPORATION, TO THE FULLEST EXTENT PERMITTED BY LAW, HEREBY DISCLAIMS AND VISITOR HEREBY WAIVES ALL WARRANTIES BY CORPORATION, AND ITS CONTENT AND CHANNEL PARTNERS, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ALL IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND WARRANTIES OF NON-INFRINGEMENT OF THIRD PARTY RIGHTS IN CONNECTION WITH THE PROPERTIES AND PRODUCTS AND SERVICES OFFERED THROUGH THE PROPERTIES. CORPORATION DOES NOT WARRANT AND VISITOR HEREBY WAIVES ANY WARRANTY THAT USE OF OR ACCESS TO THE PROPERTIES BY VISITOR WILL BE UNINTERRUPTED OR ERROR FREE. CORPORATION DOES NOT MAKE ANY WARRANTY AND VISITOR HEREBY WAIVES ANY AND ALL WARRANTIES AS TO THE RESULTS OBTAINED FROM USE OF THE PROPERTIES OR AS TO THE ACCURACY, COMPLETENESS, TIMELINESS OR RELIABILITY OF THE PROPERTIES. VISITOR HEREBY ACKNOWLEDGES AND AGREES THAT USE OF THE INTERNET AND PROPERTIES SHALL BE AT THE SOLE AND EXCLUSIVE RISK OF VISITOR AND SUBJECT TO THE RESTRICTIONS, TERMS AND CONDITIONS, RULES, REGULATIONS, POLICIES, APPLICABLE LAWS AND CODES OF CONDUCT GOVERNING THE INTERNET AND THE PROPERTIES.
SECTION 4.03 -- INACCURACIES: Visitor hereby acknowledges that the Properties may contain errors, inaccuracies and omissions. Visitor shall assume any and all risk of loss, harm or damage associated with Visitor access to and use of the Properties.
SECTION 4.04 -- LIMITATION OF LIABILITY: CORPORATION SHALL NOT BE LIABLE FOR ANY LOST PROFITS OR CONSEQUENTIAL, EXEMPLARY, INCIDENTAL OR PUNITIVE DAMAGES (INCLUDING, WITHOUT LIMITATION, IN CONNECTION WITH (I) USE, PERFORMANCE OR OPERATION OF THE mastery.com WEB SITE; (II) USE, PERFORMANCE OR OPERATION OF THE INTERNET OR USE OF THE INTERNET BY VISITOR; (III) LOSS OF DATA; AND (IV) PRODUCTS AND SERVICES OFFERED THROUGH THE PROPERTIES), REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT OR IN TORT, INCLUDING NEGLIGENCE, AND REGARDLESS OF WHETHER CORPORATION HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE OR WHETHER SUCH DAMAGES ARE REASONABLY FORESEEABLE.
SECTION 4.05 -- LIMITATION OF DAMAGES: THE SOLE REMEDY OF VISITOR FOR ANY REASON AND FOR ANY CAUSE OF ACTION WHATSOEVER IN CONNECTION WITH THIS AGREEMENT, THE mastery.com WEB SITE, AND PRODUCTS AND SERVICES OFFERED THROUGH THE mastery.com WEB SITE, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT OR IN TORT, INCLUDING NEGLIGENCE, SHALL BE MODIFICATION OF THE mastery.com WEB SITE, AS DETERMINED BY CORPORATION.
SECTION 4.06 -- INDEMNIFICATION: Visitor shall release, defend, indemnify and hold harmless Corporation (including its officers, directors, employees, affiliates, contractors and agents) from and against any expense, loss, cost or liability (including, without limitation, attorney fees and paralegal fees) arising from any and all claims, demands, damages or actions resulting from or related to (i) use by Visitor of the Internet, mastery.com web site or products or services offered through the mastery.com web site (including, without limitation, any claims for breach of warranty, loss of data, libel, slander, invasion of privacy or false advertising); (ii) performance of the mastery.com web site; (iii) Visitor's negligence or any tortious acts (or failures to act) of Visitor; (iv) Properties, products or services offered through the mastery.com web site; and (v) any breach by Visitor of the obligations of Visitor under this Agreement.
SECTION 4.07 -- EXPORT ASSURANCE: Visitor shall not perform any act in conflict with or in violation of the export laws and regulations of the United States of America, including (without limitation) the Export Administration Act, 50 U.S.C. §2401, et seq., the Export Administration Regulations, 15 C.F.R. Parts 730-774, the Arms Export Control Act, 22 U.S.C. §2751, and the International Traffic in Arms Regulations, 22 C.F.R. Parts 120-130, as amended.
SECTION 4.08 -- LINKS: Visitor hereby acknowledges that the mastery.com web site may contain Links to third party Web Sites. Any such Links are provided solely as a convenience to Visitor and do not constitute an endorsement by Corporation of such Web Sites and the third party content therein.
ARTICLE V: MISCELLANEOUS
SECTION 5.01 -- ENTIRE AGREEMENT: This Agreement contains the entire understanding of the parties relating to the subject matter hereof and with the exception of the SaaS Agreement supersedes all previous verbal and written agreements between Corporation and Visitor relating to the subject matter hereof.
SECTION 5.02 -- AMENDMENTS AND MODIFICATIONS: Excepting modifications made to the Policy Statement by Corporation, the SaaS Agreement, and modifications made to this Agreement by Corporation, any alteration, modification or amendment of this Agreement shall be void unless such alteration, modification or amendment is in writing and signed by an authorized representative of Corporation
SECTION 5.03 -- SEVERABILITY: If a provision of this Agreement is rendered invalid, the remaining provisions shall remain in full force and effect.
SECTION 5.04 -- CAPTIONS: The headings and captions of this Agreement are inserted for convenience of reference and do not define, limit or describe the scope or intent of this Agreement or any particular section, paragraph, or provision.
SECTION 5.05 -- GOVERNING LAW: This Agreement shall be governed by the laws of the state Michigan, without regard to any rules of conflict or choice of laws which may require the application of laws of another state, and venue shall be Oakland County, in the State of Michigan.
SECTION 5.06 -- VISITOR NOTICE: All notices to Visitor shall be in writing. Notices to Visitor shall be deemed delivered when posted conspicuously on the mastery.com web site or when delivered to Visitor electronically, by commercial overnight delivery service, by Certified or Registered Mail - Return Receipt Requested - or by hand. Notices to Visitor shall be deemed given when dispatched. Notices posted conspicuously on the mastery.com web site or delivered to Visitor electronically (including, without limitation, electronic mail) shall be deemed written notices.
SECTION 5.07 -- CORPORATION NOTICE: All notices to Corporation shall be in writing. Notices to Corporation shall be deemed delivered when delivered by commercial overnight delivery service, Certified or Registered Mail - Return Receipt Requested - or by hand to the address set forth below for Corporation. Notices to Corporation shall be deemed given on the date notice is received by Corporation (as evidenced in the case of Certified or Registered Mail by Return Receipt).
|Mastery Technologies, Inc.||41214 Bridge Street|
|Novi, MI 48375|
SECTION 5.08 -- PRONOUNS/GENDER: Pronouns and nouns shall refer to the masculine, feminine, singular or plural as the context shall require.
SECTION 5.09 -- REMEDIES: All remedies under this Agreement are in addition to equitable remedies and remedies provided by law and are cumulative. The parties hereby acknowledge and agree that damages at law will be an inadequate remedy to Corporation In addition to remedies at law and other rights which may be available, Corporation shall have the right of specific performance, injunction or other equitable remedy (including, without limitation, the right to such equitable remedies prior to or pending arbitration) in the event of a breach or threatened breach of this Agreement by Visitor.
SECTION 5.10 -- WAIVER: Waiver of a breach of this Agreement shall not constitute a waiver of any other breach. Failure to enforce any provision of this Agreement shall not constitute a waiver or create an estoppel from enforcing such provision. Any waiver of a provision of this Agreement shall not be binding unless such waiver is in writing and signed by the waiving party.
SECTION 5.11 -- SURVIVAL: The terms and provisions of Sections 2.04 and 2.05 and Articles I, III, IV and V of this Agreement shall survive cancellation of the Account Credentials.
SECTION 5.12 -- PUBLIC ANNOUNCEMENTS: All public announcements concerning the mastery.com web site or the relationship of Visitor and Corporation shall be subject to the prior written approval of Corporation.
SECTION 5.13 -- ARBITRATION: Any controversy or claim, whether based on contract, statute, tort, fraud, misrepresentation or other legal theory, related directly or indirectly to this agreement, any contract or product, whenever licensed, and whether between the Parties or any of the Party's employees, agents, or affiliated businesses, will be resolved by arbitration in accordance with the terms of this section. The Parties reserve the right to obtain an injunction in court to prevent any violation of this agreement. The rules of the American Arbitration Association will govern the arbitration of all claims. The arbitration panel will consist of three people at least one of whom will be expert in information technologies.
SECTION 5.14 -- LITIGATION EXPENSE: In the event of litigation or arbitration arising out of or relating to this Agreement, each party shall pay its own costs and expenses of litigation or arbitration (excluding fees and expenses of arbitrators and administrative fees and expenses of arbitration).