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THIS WEB PAGE IS A LEGAL DOCUMENT (“AGREEMENT”) BETWEEN YOU (“THE SUBSCRIBER”) AND [CLEARLY CONSULTING] (“PROVIDER”). THIS AGREEMENT STATES THE TERMS AND CONDITIONS UNDER WHICH YOU MAY USE THE [ROBERT J. MORGAN BOOKSTORE] WEB SITE. PLEASE READ THIS AGREEMENT CAREFULLY BEFORE ACCESSING AND USING THE [ROBERT J. MORGAN BOOKSTORE] WEB SITE. BY USING AND ACCESSING THE [ROBERT J. MORGAN BOOKSTORE] 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 [ROBERT J. MORGAN BOOKSTORE] WEB SITE. PROVIDER. 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 Clearly Consulting, a Tennessee business with offices located at 3106 Knobdale Rd, Nashville TN, 37214, (“Provider”) and the Subscriber, as defined hereunder.
WHEREAS, Provider has developed and owns that certain Robert J. Morgan Bookstore (as defined hereinafter) for use and access by Subscriber via the Internet; and
WHEREAS, Subscriber desires to access and use the Robert J. Morgan Bookstore in accordance with the terms and provisions of this Agreement;
NOW, THEREFORE, in consideration of the mutual benefits of the covenants and restrictions herein contained, Subscriber and Provider 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:
(1) 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.
(2) Robert J. Morgan Bookstore: The term “Robert J. Morgan Bookstore” shall mean that certain Web Site referred to as the Robert J. Morgan Bookstore, which is located on the Internet at [Web Site Address], including any and all Provider Technology used, incorporated, stored or accessible therein, as implemented on the Provider System and made accessible to Subscriber through the Internet using the Password.
(3) Effective Date: The term “Effective Date” shall mean the date the Subscriber receives the Password from Provider or accesses the Robert J. Morgan Bookstore, whichever occurs first.
(4) Provider Marks: The term “Provider Marks” shall mean trademarks, trade names, service marks and trade dress of Provider and parent companies, subsidiaries and affiliates of Provider, including, without limitation, the [Trademark].
(5) Provider System: The term “Provider System” shall mean computer systems and communication equipment used for hosting the Robert J. Morgan Bookstore and providing Subscriber access to the Robert J. Morgan Bookstore.
(6) Provider Technology: The term “Provider Technology” shall mean any and all Technology developed by or for Provider
(7) 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.
(8) Licensed Content: The term “Licensed Content” shall mean third party Technology incorporated in whole or part into the Robert J. Morgan Bookstore.
(9) 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.
(10) Password: The term “Password” shall mean that certain password and SUBSCRIBER name assigned by Provider to Subscriber (or chosen by the Subscriber via an automated process of the Robert J. Morgan Bookstore website) for accessing the Robert J. Morgan Bookstore as may be modified from time to time as provided hereunder.
(11) Policy Statement: The term “Policy Statement” shall mean those certain written statements of policies (in printed or electronic form) concerning access to the Robert J. Morgan Bookstore as may be adopted by Provider and as modified by Provider from time-to-time.
(12) 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.
(13) Subscriber: The term “Subscriber” shall mean the individual or entity assigned the password used to access the Robert J. Morgan Bookstore.
(14) 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.
(15) Term: The term “Term” shall mean a period of time starting on the Effective Date and ending on the date either party cancels the Password as provided hereunder.
(16) Unauthorized Access: The term “Unauthorized Access” shall mean any access to Robert J. Morgan Bookstore except for access during the Term for the exclusive purpose of viewing, browsing, retrieving, uploading and posting information on and ordering products through the Robert J. Morgan Bookstore using the Password on behalf of Subscriber in accordance with this Agreement.
(17) Unauthorized User: The term “Unauthorized User” shall mean any individual who accesses the Robert J. Morgan Bookstore except for Subscriber and employees and agents of Subscriber authorized by Subscriber to access the Robert J. Morgan Bookstore for purposes of viewing, browsing, retrieving, uploading and posting information on and ordering products through the Robert J. Morgan Bookstore during the Term using the Password on behalf of Subscriber in accordance with this Agreement.
(18) 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.
ARTICLE II: SCOPE OF USE
Section 2.01 -- Access: Provider hereby grants Subscriber a non-exclusive, non-transferable and revocable license to access the Robert J. Morgan Bookstore, during the Term, solely for viewing, browsing, retrieving, uploading and posting information, and ordering products on or through the Robert J. Morgan Bookstore, subject to the terms and provisions of this Agreement.
Section 2.02 -- Policy Statement: During the Term, Subscriber shall comply with the Policy Statement. Provider may modify the Policy Statement from time to time at the exclusive discretion of Provider
Section 2.03 -- Password: Subscriber hereby accepts responsibility for, and shall be liable for, all access to the Robert J. Morgan Bookstore in connection with the Password. Subscriber shall be responsible for the confidentiality of the Password. Modification of the Password shall be subject to the approval of Provider
Section 2.04 -- Unauthorized Access: Subscriber shall prevent Unauthorized Users from accessing the Robert J. Morgan Bookstore. Subscriber shall prevent Unauthorized Access to the Robert J. Morgan Bookstore.
Section 2.05 -- Cancellation: Provider may cancel the Password, for convenience and in the exclusive discretion of Provider, upon providing written notice of such cancellation to Subscriber in accordance with Section 5.06 of this Agreement. Subscriber may cancel the Password, for convenience and in the exclusive discretion of Subscriber, upon providing written notice of such cancellation to Subscriber in accordance with Section 5.07 of this Agreement. Upon cancellation of the Password, Subscriber shall immediately cease and desist any and all access to and attempts to access the Robert J. Morgan Bookstore.
ARTICLE III: INTELLECTUAL PROPERTY
Section 3.01 -- Ownership and Title: Title to the Robert J. Morgan Bookstore (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 Provider
Section 3.02 -- Unauthorized Use: Subscriber shall not copy or download the Robert J. Morgan Bookstore without the prior written consent of Provider Subscriber shall not access, modify, reverse engineer, reproduce, display, perform or distribute, including (without limitation) by framing or similar means, the Robert J. Morgan Bookstore without the prior written consent of Provider Subscriber shall not (directly or indirectly) promote, advertise, market or provide any Web Site similar to or competitive with the Robert J. Morgan Bookstore.
Section 3.03 -- Trademarks: Provider shall retain all rights, title and ownership interests in the Provider Marks and goodwill associated therewith. Subscriber acknowledges that, excepting the Provider Marks, all other product, service and company names mentioned in the Robert J. Morgan Bookstore may be trademarks of their respective owners.
Section 3.04 -- Proprietary Information: Subscriber shall hold Provider Technology in strict confidence and shall not access or disclose Provider Technology except as otherwise permitted under this Agreement. Subscriber hereby acknowledges and agrees that the Provider 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: Subscriber shall not contest or aid in contesting the ownership or validity of the copyrights, trademarks, service marks and trade secrets (as applicable) of Provider in connection with the Robert J. Morgan Bookstore.
Section 3.06 -- Subscriber Submissions: Any Technology (except the Password and ordering information) uploaded, posted or submitted by Subscriber on the Robert J. Morgan Bookstore shall be deemed non-confidential. Subscriber hereby grants Provider an irrevocable, worldwide, perpetual, nonexclusive license to access, use, reproduce, modify, adapt, release, perform, display, distribute, sell and disclose such Technology, in whole or in part, in any manner and for any purpose whatsoever, and to have and authorize others to do so. Subscriber represents and warrants that Subscriber possesses all necessary rights, title and interests to rightfully grant Provider the foregoing license, free and clear of any encumbrances, third party interests and restrictions. Subscriber also represents and warrants that all information provided by Subscriber in connection with the Robert J. Morgan Bookstore and this Agreement is true, complete and accurate.
ARTICLE IV: WARRANTY AND INDEMNIFICATION
Section 4.01 -- Express Warranties: Subscriber hereby acknowledges and agrees that Provider (including officers, employees, agents, directors and independent contractors of Provider has not made or granted to Subscriber any express warranties concerning the Robert J. Morgan Bookstore or any products and services offered through the Robert J. Morgan Bookstore. Subscriber hereby acknowledges that the Robert J. Morgan Bookstore does not constitute grant of an express warranty concerning any products and services offered through the Robert J. Morgan Bookstore and Subscriber hereby waives any and all claims of warranty based on the Robert J. Morgan Bookstore.
SECTION 4.02 -- WARRANTY LIMITATION: THE Robert J. Morgan Bookstore IS PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND. PROVIDER, TO THE FULLEST EXTENT PERMITTED BY LAW, HEREBY DISCLAIMS AND SUBSCRIBER HEREBY WAIVES ALL WARRANTIES BY PROVIDER, 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 Robert J. Morgan Bookstore AND PRODUCTS AND SERVICES OFFERED THROUGH THE Robert J. Morgan Bookstore. PROVIDER DOES NOT WARRANT AND SUBSCRIBER HEREBY WAIVES ANY WARRANTY THAT USE OF OR ACCESS TO THE Robert J. Morgan Bookstore BY SUBSCRIBER WILL BE UNINTERRUPTED OR ERROR FREE. PROVIDER DOES NOT MAKE ANY WARRANTY AND SUBSCRIBER HEREBY WAIVES ANY AND ALL WARRANTIES AS TO THE RESULTS OBTAINED FROM USE OF THE Robert J. Morgan Bookstore OR AS TO THE ACCURACY, COMPLETENESS, TIMELINESS OR RELIABILITY OF THE Robert J. Morgan Bookstore. SUBSCRIBER HEREBY ACKNOWLEDGES AND AGREES THAT USE OF THE INTERNET AND Robert J. Morgan Bookstore SHALL BE AT THE SOLE AND EXCLUSIVE RISK OF SUBSCRIBER AND SUBJECT TO THE RESTRICTIONS, TERMS AND CONDITIONS, RULES, REGULATIONS, POLICIES, APPLICABLE LAWS AND CODES OF CONDUCT GOVERNING THE INTERNET AND THE Robert J. Morgan Bookstore.
Section 4.03 -- Inaccuracies: Subscriber hereby acknowledges that the Robert J. Morgan Bookstore may contain errors, inaccuracies and omissions. Subscriber shall assume any and all risk of loss, harm or damage associated with Subscriber access to and use of the Robert J. Morgan Bookstore. SPECIFICALLY, coupon codes and discounts may cause programming errors, giving a deeper discount than was originally advertised by The Robert J. Morgan Bookstore or Clearly Consulting. Clearly Consulting is not obligated to fulfill orders whose totals have been altered by programming errors, coupon code errors, and any other programmatic or textual inaccuracy.
SECTION 4.04 -- LIMITATION OF LIABILITY: PROVIDER 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 ROBERT J. MORGAN BOOKSTORE; (II) USE, PERFORMANCE OR OPERATION OF THE INTERNET OR USE OF THE INTERNET BY SUBSCRIBER; (III) LOSS OF DATA; AND (IV) PRODUCTS AND SERVICES OFFERED THROUGH THE Robert J. Morgan Bookstore), REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT OR IN TORT, INCLUDING NEGLIGENCE, AND REGARDLESS OF WHETHER PROVIDER 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 SUBSCRIBER FOR ANY REASON AND FOR ANY CAUSE OF ACTION WHATSOEVER IN CONNECTION WITH THIS AGREEMENT, THE ROBERT J. MORGAN BOOKSTORE, AND PRODUCTS AND SERVICES OFFERED THROUGH THE ROBERT J. MORGAN BOOKSTORE, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT OR IN TORT, INCLUDING NEGLIGENCE, SHALL BE MODIFICATION OF THE ROBERT J. MORGAN BOOKSTORE, AS DETERMINED BY PROVIDER.
Section 4.06 -- Indemnification: Subscriber shall release, defend, indemnify and hold harmless Provider (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 Subscriber of the Internet, Robert J. Morgan Bookstore or products or services offered through the Robert J. Morgan Bookstore (including, without limitation, any claims for breach of warranty, loss of data, libel, slander, invasion of privacy or false advertising); (ii) performance of the Robert J. Morgan Bookstore; (iii) Subscriber’s negligence or any tortious acts (or failures to act) of Subscriber; (iv) products or services offered through the Robert J. Morgan Bookstore; and (v) any breach by Subscriber of the obligations of Subscriber under this Agreement.
Section 4.07 -- Export Assurance: Subscriber 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: Subscriber hereby acknowledges that the Robert J. Morgan Bookstore may contain Links to third party Web Sites. Any such Links are provided solely as a convenience to Subscriber and do not constitute an endorsement by Provider 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 supersedes all previous verbal and written agreements between Provider and Subscriber relating to the subject matter hereof.
Section 5.02 -- Amendments and Modifications: Excepting modifications made to the Policy Statement by Provider and modifications made to this Agreement by Provider, 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 Provider
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 [City and State of Governing Law], 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 [Venue].
Section 5.06 -- Subscriber Notice: All notices to Subscriber shall be in writing. Notices to Subscriber shall be deemed delivered when posted conspicuously on the Robert J. Morgan Bookstore or when delivered to Subscriber electronically, by commercial overnight delivery service, by Certified or Registered Mail - Return Receipt Requested - or by hand. Notices to Subscriber shall be deemed given when dispatched. Notices posted conspicuously on the Robert J. Morgan Bookstore or delivered to Subscriber electronically (including, without limitation, electronic mail) shall be deemed written notices.
Section 5.07 -- Provider Notice: All notices to Provider shall be in writing. Notices to Provider 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 Provider. Notices to Provider shall be deemed given on the date notice is received by Provider (as evidenced in the case of Certified or Registered Mail by Return Receipt).
Clearly Consulting 3106 Knobdale Road
Nashville, TN 37214
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 Provider In addition to remedies at law and other rights which may be available, Provider 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 Subscriber.
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 Password.
Section 5.12 -- Public Announcements: All public announcements concerning the Robert J. Morgan Bookstore or the relationship of Subscriber and Provider shall be subject to the prior written approval of Provider
Section 5.13 -- Arbitration: Any controversy or claim arising out of or relating to this Agreement, or breach thereof, shall be settled by arbitration in accordance with the Arbitration Rules of MyTechnologyLawyer.com in Nashville, TN. Judgment upon the award rendered by the arbitrators may be entered in any court having jurisdiction thereof. Qualified Arbitrators shall be selected by the parties in accordance with the Arbitration Rules of the American Arbitration Association. Each party shall have the right of discovery as set forth in the Federal Rules of Civil Procedure. The Arbitration may be administered by MyTechnologyLawyer.com.
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).