1. Definitions
"Authorized
User" means an individual authorized
by Affinitext to access and use the FAR Online
Library. In the absence of a Multi-User Agreement,
the Authorized User is the individual who applied
for and was registered by Affinitext to use
the FAR Online Library;
"Available"
means that the Authorized Users can access and
utilize the FAR Online Library;
"Commencement
Date" means the date of the first payment
of the annual subscription charge, if any; "Default"
means any breach of the obligations of either
party to this Agreement; "End User" means the
party named as such in a Multi-User Agreement;
"FAR Online
Library" means the digital online library
of the Federal Acquisition Regulation, its supplements
and other associated and related material, hosted
on Affinitext's servers, as such online library
evolves over time;
"Intellectual
Property Rights" means all patents, copyright,
design rights, domain names, registered designs,
trade and service marks (registered and unregistered),
rights in know-how, rights in relation to databases,
trade secrets, rights in confidential information
and all other intellectual property rights throughout
the world including:
all registrations and pending registrations
relating to any such rights and the
benefit of any pending applications
for any such registrations; and
all reversions, extensions and renewals
of any such rights;
"Multi-User
Agreement" means an agreement between
an End User and Affinitext, which covers a number
of Authorized Users;
"Terms of
Use" or
"this Agreement" means these terms and
conditions of use of the FAR Online Library;
and
"Users"
means an End User and/or an Authorized User,
as the case may be.
2. Interpretation
In
this Agreement (unless the context otherwise
requires):
2.1 the words "including",
"include", "for example", "in particular" and
words of similar effect shall not limit the
general effect of the words which precede them;
2.2 words importing the
singular shall include the plural and vice versa;
2.3 the headings are all
for reference only and shall be ignored when
construing this Agreement;
2.4 if there is any ambiguity,
uncertainty or conflict between any of the provisions
in the Multi-User Agreement, if any, and this
Agreement, the order of precedence shall be:
2.4.1 the Multi-User
Agreement; and
2.4.2 this Agreement.
3. Intellectual Property Rights
The Users acknowledge and
agree that, save to the extent expressly set
out in these Terms of Use, they do not have,
and shall not acquire by these Terms of Use
any right, title or interest in any Intellectual
Property Rights which subsist in the FAR Online
Library or any of the contents contained therein.
4. Licence
4.1 In consideration of
the payment of the annual subscription charges,
or by agreeing to participate in a free trial,
Affinitext hereby grants to the Users a non-exclusive,
non-sub-licensable, non-transferable and limited
licence to access and use the FAR Online Library.
4.2 The End User agrees
that only employees of the End User may be Authorized
Users.
4.3 The grant of the aforementioned
licences is subject to the following limitations:
4.3.1 The Users shall
not make any part of the FAR Online Library
or its contents available to any other party;
4.3.2 The Users shall
not take any action that will or could impose
an unreasonable or disproportionately large
load on the infrastructure that supports
the FAR Online Library;
4.3.3 The Users shall
not use the FAR Online Library or its contents
for resale purposes including the extraction
and/or re-utilisation of any part of the
FAR Online Library;
4.3.4 The Users shall
not modify the FAR Online Library its contents,
or any portion of either of them;
4.3.5 The Users shall
not remove or obscure any copyright notice
or other notices contained in the FAR Online
Library;
4.3.6 The Users shall
not use the contents of the FAR Online Library
to create a separate independently searchable
database; and
4.3.7 In relation to
the FAR Online Library, the Users shall
not use any: (a) data mining, robots, or
similar data gathering and extraction tools;
(b) framing techniques to enclose the trade
marks, logos and other proprietary images,
text, layouts and formats used by Affinitext;
or (c) meta tags or any other "hidden text"
which uses Affinitext, or its licensor's,
name or trade marks.
4.4 The Users will not,
and will use all reasonable effort to ensure
others do not, backward or reverse engineer
or otherwise attempt to circumvent a technological
measure that is intended to or effectively controls
access to the FAR Online Library.
4.5 The structure, organization,
and code of the FAR Online and Affinitext software
are valuable trade secrets and confidential
information of Affinitext. The software is protected
by law and this Agreement does not grant the
Users any intellectual property rights in the
software.
4.6 The End User shall ensure
that:
4.6.1 only the authorized
number of Authorized Users use the FAR Online
Library, such number being specified in
the Multi-User Agreement; and
4.6.2 each Authorized
User accepts and abides by the Terms of
Use prior to accessing and using the FAR
Online Library .
5. Availability and Connectivity
5.1 Use of the FAR Online
Library requires internet connectivity and telecommunications
links. The Users acknowledges and agree that
they shall be solely responsible for providing
such connectivity and links and for any costs
or charges incurred to access, view and/or use
the FAR Online Library.
5.2 Whilst Affinitext shall
make every effort to ensure the FAR Online Library
is Available at all reasonable times, given
the nature of the internet and communications
networks, Affinitext cannot guarantee this.
5.3 Affinitext gives no
assurance or warranty:
5.3.1 that the FAR Online
Library or the software application used
to deliver the FAR Online Library is compatible
with the User's software or computer configuration,
or
5.3.2 that access to
the FAR Online Library by the Users will
be uninterrupted, free from faults, errors
or omissions, or that any defect whether
identified or not will be corrected.
5.4 In addition to any other
rights set out in these Terms of Use, Affinitext
may suspend or restrict access to the FAR Online
Library at any time to allow Affinitext or its
suppliers to carry out essential updating, maintenance
and repairs of the FAR Online Library.
5.5 Affinitext reserves
the right to add to or withdraw, or otherwise
change, the content and features of the FAR
Online Library without notice.
5.6 The FAR Online Library
may include links to third party web sites ("Third
Party Site(s)") from time to time. The Users
acknowledge and agree that Affinitext shall
not be responsible for the availability of such
Third Party Sites and will not be responsible
or liable for any content or services available
from such Third Party Sites. Users should check
the applicable privacy statements and terms
and conditions of use for such Third Party Sites.
6. Login and Password
6.1 Affinitext shall provide
each Authorized User with individual login and
password information required to access the
FAR Online Library.
6.2 Each Authorized User
shall keep its login and password information
relating to their access to the FAR Online Library
secret at all times and not disclose such login
and password information to any other person.
6.3 If the Authorized User's
login and/or password information is lost, stolen
or inoperative, the Authorized User shall inform
Affinitext immediately, and Affinitext will
issue new login and/or password information
to the Authorized User within a reasonable period.
6.4 The Authorized User
shall take reasonable steps to ensure that no
party other than the Authorized Users accesses
the FAR Online Library using the Authorized
User's login and password information.
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7. Charges
7.1 There are no subscription
or other charges for a User during or arising
out of a free trial.
7.2 A User shall pay Affinitext
the agreed annual subscription charges on the
Commencement Date of an annual subscription.
7.3 Thereafter, the subscription
will automatically renew (at the then current
annual subscription rate) on each anniversary
of the Commencement Date unless the User advises
Affinitext in writing pursuant to Clause 9.2
that it wishes to terminate its subscription.
8. Term
This Agreement and the licence
granted pursuant to Clause 4 shall come into
force on the date upon which access was granted
to the User and shall continue in force until
it is terminated pursuant to Clause 9 ("Term").
9. Termination
9.1 Affinitext may terminate
a free trial at any time.
9.2 Either party may terminate
this Agreement on giving the other party fourteen
(14) days written notice prior to any anniversary
of the Commencement Date and such notice will
be effective on that anniversary.
9.3 Affinitext may immediately
terminate this Agreement in the event that the
annual subscription charges are not paid on
the anniversary of the Commencement Date.
9.4 Affinitext may immediately
terminate this Agreement in the event of the
Users being in Default.
9.5 Upon termination of
this Agreement:
9.5.1 all rights granted
to the Users in respect of the FAR Online
Library and its contents shall immediately
terminate;
9.5.2 the End User shall,
and shall procure that the Authorized Users
shall, immediately cease use of the FAR
Online Library and its contents; and
9.5.3 the End User shall,
and shall procure that the Authorized Users
shall, immediately and permanently remove
or delete all copies of the contents of
the FAR Online Library in its possession,
custody or control, whether electronic or
otherwise.
10. Warranty & Liability
10.1 The FAR Online Library
is provided "as is" and Affinitext gives no
assurance or warranty that it or any of its
contents are accurate, complete, up-to-date,
correct or error-free. Affinitext makes or gives
no warranties, representations, conditions or
other terms of any kind (whether implied, express
or statutory) in connection with the FAR Online
Library and/or any of its contents.
10.2 Affinitext gives no
assurance or warranty that the FAR Online Library
and/or its contents (or any part thereof) are
free from any viruses, worms, trojan horses
or other malicious, destructive or corrupting
code, agent, programme or macros.
10.3 Affinitext makes no
representations or warranties regarding the
accuracy, functionality or performance of any
third party software or systems used in connection
with the FAR Online Library.
10.4 The Users shall assume
full and sole responsibility for the use of
the FAR Online Library and its contents. To
the maximum extent permitted by law, Affinitext
shall not be liable for any loss, injury, claim,
liability, or damage of any kind resulting in
any way from:
10.4.1 any errors or
omissions or for any technical difficulties
Users may experience with the FAR Online
Library and/or its contents;
10.4.2 the unavailability
or interruption to the provision of the
FAR Online Library, any features thereof
or any of its contents;
10.4.3 any loss, theft
or inoperability of the login and/or password
information;
10.4.4 any negligence
on the part of Affinitext or its employees,
sub-contractors, agents or representatives
in connection with the performance of Affinitext's
obligations under these Terms of Use.
10.5 Any liability owed
by Affinitext to the User for breach of any
condition or warranty implied under any law
which cannot be lawfully modified or excluded
by these Terms of Use shall, to the extent permitted
by law, be limited to payment of the annual
subscription charges for the year in which the
breach occurred. Such liability shall in any
event not exceed the amount of the User's actual
direct damages.
10.6 Affinitext shall not
be liable to any person for any indirect or
consequential loss, damage costs or expenses,
including loss of revenue, profits, contracts,
anticipated savings, wasted expenditure, data
or goodwill.
10.7 Nothing in the Agreement
is intended to operate as an exclusion or limitation
of liability that would not be permissible pursuant
to applicable law.
11. Notices
11.1 Except as otherwise
provided herein, all notices and other communications
from Affinitext to the User under these Terms
of Use shall be by electronic mail or displayed
electronically in the FAR Online Library. Notices
to the End User shall be deemed to have been
properly given on the date and time sent, if
sent via electronic mail; or on the date first
made available, if displayed in the FAR Online
Library.
11.2 All notices and other
communications by the User to Affinitext should
be sent to support@faronline.com .
12. Waiver
Failure or neglect by either
Party to enforce at any time any part of these
Terms of Use shall not be construed nor shall
be deemed to be a waiver of that Party's rights
hereunder nor in any way affect the validity
of the whole or any part of these Terms of Use
nor prejudice that Party's rights to take subsequent
action.
13. Severability
13.1 If any Clause of these
Terms of Use is or becomes illegal, invalid
or unenforceable in any respect:
13.1.1 it shall not
affect or impair the legality, validity
or enforceability of any other Clause of
these Terms of Use; and
13.1.2 the parties will
use reasonable endeavors to negotiate in
good faith with a view to replacing it with
a valid and enforceable clause which achieves
to the greatest extent possible the same
effect as would have been achieved by the
illegal, invalid or unenforceable clause
but differing from the replaced Clause as
little as possible.
13.2 If any illegal,
invalid or unenforceable provision would
be legal, valid or enforceable if some part
of it were deleted, such provision shall
apply with the minimum modification(s) necessary
to make it legal, valid or enforceable.
14. Assignment and Novation
14.1 The Users shall not
assign, novate or deal in any way with all or
any part of the benefit of, or its rights or
benefits under, this Agreement without the prior
written consent of Affinitext.
14.2 Affinitext may, by
notice to the Users, assign the benefit of this
Agreement or transfer the benefit and burden
of this Agreement by way of novation as a whole
to a third party and the Users hereby consents
to any such assignment or novation.
14.3 Any purported assignment
or transfer or other dealing which does not
comply with the terms of this clause 14 shall,
as between the parties to this Agreement, be
null and void.
15. Entire Agreement
15.1 This Agreement constitutes
the entire agreement and understanding between
the parties in respect of its subject matter
and supersedes all former warranties, statements,
representations, understandings, undertakings
and agreements (in each case whether written
or oral) made by or between the parties relating
to such subject matter.
15.2 The parties have not
relied upon, and will have no remedy in respect
of, any warranty, statement, representation,
understanding or undertaking made by any party
(whether or not that party is a party to this
Agreement) unless it is expressly set out in
this Agreement.
16. Governing Law
This Agreement shall be
governed by California law and controlling United
States federal law, without regard to the choice
or conflicts of law provisions of any jurisdiction,
and any disputes, actions, claims or causes
of action arising out of or in connection with
this Agreement shall be subject to the exclusive
jurisdiction of the state and federal courts
located in San Francisco, California.
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