STRAIGHT AND NARROW LLC
MAINCOURSE.COM ACCESS AGREEMENT
Please read this document carefully! It contains very important information about the rights and obligations of you and your company, as well as applicable limitations and exclusions. You are advised to keep a hard copy of this document for your own records.
BY CLICKING ON THE "I HAVE READ AND AGREE" BOX, YOU CERTIFY THAT YOU ARE A DULY AUTHORIZED AGENT FOR YOUR EMPLOYER (THE "SUBSCRIBER"), YOU HAVE READ AND UNDERSTAND THIS AGREEMENT AND THAT YOU ARE MAKING YOUR EMPLOYER A PARTY TO THIS AGREEMENT AND LEGALLY BINDING YOUR EMPLOYER TO THE TERMS AND CONDITIONS SET FORTH HEREIN. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, DO NOT SELECT THE "I HAVE READ AND AGREE" BOX AND DO NOT PROCEED TO USE THIS SOFTWARE.
PREAMBLE
Straight and Narrow LLC (“MainCourse”) has developed and offers a computerized system which provides its customers and, in turn, their customer's employees ("Authorized Users", as further defined below) with access to certain information/data input by Authorized Users and other relevant Subscriber archived information ("Subscriber Data") through an Internet-based database software application, tools and services (the "Application") accessible from a home page at URL http://www.Main-Course.net/ (together with the Application available via sub-webpages, and other sub-webpages, all accessible via the home page, referred to herein as the "Web Site").
Subscriber desires to provide access to the Application for its Authorized Users for the purposes of creating, inputting, updating, accessing and reviewing Subscriber Data and MainCourse is willing to make access to the Application available to Subscriber's Authorized Users according to the terms of this Agreement. Therefore, the parties agree as follows with the intent to be legally bound:
AGREEMENT
1. Access to Web Site and Use of Data. MainCourse hereby grants to Subscriber and its Authorized Users access to the Application through the Web Site and User Identities (defined below) issued by MainCourse to Subscriber's Authorized Users and Subscriber accepts such access, subject to the terms and conditions set forth in this Agreement.
2. Obligations of Subscriber.
(a) Subscriber has appointed an individual (or individuals) ("MainCourse Administrator") to serve as liaison between Subscriber, Authorized Users and MainCourse. MainCourse Administrators are Subscriber's duly authorized agents to act on behalf of Subscriber on all matters related to the Web Site and Application. Subscriber, through one or more of its MainCourse Administrators or otherwise, will be solely responsible for ensuring that all of its Administrative Users have a thorough understanding of this Agreement.
(b) Subscriber shall have sole responsibility for deciding (1) which of its employees ("Authorized Users") will be granted access rights to the Application to act on behalf of the Subscriber to enter and/or review data in the Application. The Administrative User shall identify Subscriber employees to be provided access to the Application as Authorized Users by submitting requests ("New User Registration Requests") to MainCourse via the Application. MainCourse shall be entitled to rely on New User Registration Requests, and the information submitted in connection therewith, submitted under the Administrative User's User Identity as the sole basis for determining Subscriber's authorization to granting access to Authorized Users identified on such New User Registration Requests.
(d) The identity of Authorized Users will be verified by the use of user names together with a password, as generated and issued by MainCourse to an Authorized User in response to a New User Registration Request ("User Identities"). If a particular Authorized User is to have restricted access privileges, Administrative User shall be solely responsible for creating and maintaining such restrictions by creating appropriate, segregated access level groups utilizing functionality dedicated to that purpose available through the Application. MainCourse shall have no control over, or responsibility for, the proper creation of such access level groups nor the proper organization of Authorized Users into the appropriate access level group. Unless access rights are otherwise restricted as described above, access to the Web Site, Application and Account Data will be granted to Authorized Users on a uniform basis. Subscriber agrees that it is solely responsible for ensuring (i) that each Authorized User is organized into an access level group with appropriate access rights; (ii) that its Authorized Users do not share their unique User Identities with other individuals; (iii) that its Authorized Users understand the need and take appropriate measures to keep their respective User Identities secret and confidential; and (iv) that each Authorized User is informed about the need to keep their computer network and individual workstations physically and electronically secure and not to configure such computers to allow User Identities to be "remembered" and automatically entered when accessing the Web Site. MainCourse will assume that any person using the Web Site under a given User Identity is the individual associated with such User Identity in our records and will grant access to information and any other capabilities accordingly. Using, or permitting the use of, the Web Site under User Identities not actually assigned to a particular individual is prohibited.
(e) Subscriber will be solely responsible for maintaining and updating its roster of Authorized Users, including without limitation, updating its roster of Authorized Users in response to changes in employment relationship with specific Authorized Users ("Access Control Administration").
(f) Subscriber will be responsible for ensuring that each Authorized User understands and agrees to the standards of conduct and use for the Application set forth herein before Administrative User's submission of a New User Registration Request on behalf of such individual.
(g) Subscriber agrees that the Web Site (including without limitation the Application) will be used solely for the purposes and functions contemplated by this Agreement and shall refrain from using the Web Site for any other purpose ("Prohibited Conduct"). "Prohibited Conduct" shall include, but is not limited to, generation of message activity with the Web Site of such speed or volume that may lead to malfunctions or degradation of Web Site performance; accessing, tampering with or using areas of the Web Site or MainCourse's computer systems that exceed the scope of your authorization; tampering with or attempting to access other user accounts or information of other users; attempting to gather and use information available from the Web Site to transmit any unsolicited advertising; and the knowing transmission of any viruses, trojan horses, trap doors, back doors, worms, time bombs, cancelbots or other malicious code or computer programming routines that may be introduced to the Web Site or other computer network systems of MainCourse as a result of access thereto by Subscriber and its Authorized Users. Subscriber shall be strictly liable to MainCourse for, and shall indemnify, defend and hold MainCourse harmless from and against, any losses, claims or other damages it may incur as a result of prohibited conduct by Subscriber or its Authorized Users.
(h) Subscriber represents, warrants and covenants to MainCourse that all Subscriber Data and other data input by or on behalf of Subscriber or its Authorized Users to the Web Site:
(i) shall not infringe on the Intellectual Property Rights of any third party or any rights of publicity or privacy; and
(ii) shall not violate any law, statute, ordinance, or regulation (including without limitation the laws and regulations governing export control, unfair competition, antidiscrimination, or false advertising).
"Intellectual Property Rights" means any and all present or future tangible and intangible (i) rights associated with works of authorship, including but not limited to copyrights, moral rights, and mask-works, (ii) trademark and trade name rights and similar rights, (iii) trade secret rights, (iv) patents, designs, algorithms, and other industrial property rights, (v) all other intellectual and industrial property rights (of every kind and nature throughout the universe and however designated) (including logos, "rental" rights and rights to remuneration), whether arising by operation of law, contract, license, or otherwise, and (vi) all registrations, initial applications, renewals, extensions, continuations, divisions, or reissues hereof now or hereafter in force (including any rights in any of the foregoing).
3. Disclaimer of Warranties
(a) ALL INFORMATION AND SERVICES PROVIDED THROUGH THE WEB SITE ARE PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND. MAINCOURSE DISCLAIMS AND SUBSCRIBER HEREBY WAIVES ALL WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO, TITLE, NONINFRINGEMENT, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR INTENDED USE, ANY WARRANTY OF COMPATIBILITY BETWEEN THE WEB SITE AND SUBSCRIBER OWNED EQUIPMENT OR SOFTWARE, OR ANY LIABILITY IN NEGLIGENCE, TORT, STRICT LIABILITY OR OTHERWISE, WITH RESPECT TO THE WEB SITE, EQUIPMENT, SOFTWARE, OR DATA. SUBSCRIBER AGREES THAT MAINCOURSE SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES UNDER ANY CIRCUMSTANCES, INCLUDING, BUT NOT LIMITED TO, LOSS OF REVENUES, EVEN IF MAINCOURSE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
(b) SUBSCRIBER IS SOLELY RESPONSIBLE FOR THE ACCURACY, RELIABILITY, CURRENTNESS AND CONTENT OF ALL DATA INPUT TO THE APPLICATION. MAINCOURSE DOES NOT WARRANT THE AVAILABILITY, ACCURACY, RELIABILITY, CURRENTNESS AND CONTENT OF ANY DATA OR INFORMATION DOWNLOADED, OR OTHERWISE VIEWED, OBTAINED OR ACQUIRED THROUGH THE USE OF THE APPLICATION. SUBSCRIBER ACKNOWLEDGES THAT ANY DATA OR INFORMATION DOWNLOADED OR OTHERWISE VIEWED, OBTAINED OR ACQUIRED THROUGH THE USE OF THE APPLICATION ARE AT SUBSCRIBER'S SOLE RISK AND DISCRETION AND MAINCOURSE WILL NOT BE LIABLE OR RESPONSIBLE FOR ANY DAMAGE TO SUBSCRIBER OR ITS PROPERTY. MAINCOURSE SHALL NOT BE LIABLE TO SUBSCRIBER, SUBSCRIBER'S CUSTOMERS OR ANY OTHER THIRD PARTIES NOR DEEMED TO BE IN DEFAULT OF THIS AGREEMENT, ON ACCOUNT OF ANY DELAYS, ERRORS, MALFUNCTIONS, COMPATIBILITY PROBLEMS OR BREAKDOWNS WITH RESPECT TO THE WEB SITE, MAINCOURSE EQUIPMENT, DATA OR SERVICES PROVIDED HEREUNDER, UNLESS SUCH DELAY, ERROR, MALFUNCTION OR BREAKDOWN RESULTS SOLELY FROM THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF MAINCOURSE.
4. Indemnification. Subject to any disclaimers or limitations of liability set forth or incorporated by reference herein, Subscriber shall indemnify, defend and hold harmless MainCourse, its past and present directors, affiliates, partners, officers, employees and agents from and against all liabilities, damages and expenses, claims for damages, suits, proceedings, recoveries, judgments or executions (including but not limited to litigation costs, expenses, and reasonable attorneys' fees) which may be suffered by, accrued against, charged to or recoverable from MainCourse, its past and present directors, affiliates, partners, officers, employees or agents by reason of or in connection with Subscriber's use of the Application, Subscriber's performance or failure to perform, or improper performance of any of Subscriber's obligations under this Agreement.
5. Technical Support. Technical support regarding the use of the Web Site will be available between the hours of 8:00 a.m. and 5:00 p.m., Eastern Time, excluding United States federal holidays. Support will be available by e-mail to
This e-mail address is being protected from spambots. You need JavaScript enabled to view it
. Subscriber acknowledges that technical support to be provided by MainCourse is limited to the use of the Web Site and Application and does not include "help desk" assistance or similar user or technical support to Subscriber or its Authorized Users with regard to interactions between the Web Site and Subscriber hardware and/or software. Subscriber shall be solely responsible for all such support for the benefit of its Authorized Users. Although MainCourse personnel may attempt to offer assistance with such interactions between the Web Site and Subscriber hardware and/or software, such issues are beyond the scope of MainCourse's obligations hereunder and any advice as to such interactions shall be offered at Subscriber’s sole risk and Subscriber and its Authorized Users agree to indemnify, defend and hold MainCourse harmless from and against, any losses, claims or other damages it may incur as a result of any advice given by MainCourse personnel regarding interactions between the Web Site and Subscriber hardware and/or software.
6. Term and Termination; Subscription Fees.
(a) This Agreement shall become effective upon the date first accepted by click-through, will continue until the same day in the next calendar month, and thereafter will continue on a month-to-month basis for so long as Subscriber is current on its payment of Subscription Fees (as defined below) hereunder, until terminated by either party at any time thereafter immediately upon written notice to the other. Upon the mutual agreement of the parties, and upon payment of an annual Subscription Fee, this Agreement may extend for terms of one year rather than month-to-month.
(b) In consideration for access to the Web Site, Application, and related software services provided hereunder, Subscriber shall pay to MainCourse monthly Subscription Fees, payable monthly (or yearly if an annual subscription) in advance on the anniversary date of the initial subscription at MainCourse's then-current Subscription fee, also payable in advance, to extend the term of this agreement. Upon the mutual agreement of the parties, Subscriber may elect to pay MainCourse's then-current annual Subscription Fee, also payable in advance, to extend the term of this Agreement on an annual basis. All Subscription Fees paid hereunder shall be paid without holdback or set-off and shall be nonrefundable.
(c) With respect to any Authorized User, MainCourse reserves the right, without notice, (i) to revoke any User Identity; (ii) to require Authorized User(s) to change User Identities; or (iii) to deny, limit or terminate access to the Web Site or any portion thereof, whether for Web Site security purposes, for violation of the terms and conditions of use referenced herein, or for any other reason.
7. Modifications. MainCourse retains the right, in its sole discretion, to enhance, modify or alter the operation of the Web Site at any time and further retains the right to make such enhancements, modifications or alterations generally available to other users of the Web Site.
8. Title.
(a) Ownership of Subscriber Data. Ownership of all Subscriber Data shall remain with Subscriber, provided that Subscriber grants to MainCourse a limited, worldwide, fully paid license to use and/or manipulate such Subscriber Data only to the extent necessary for MainCourse to perform its obligations pursuant to this Agreement. For up to thirty (30) days following the expiration or termination of this Agreement, Subscriber may request, for a reasonable additional fee, that Subscriber Data residing on MainCourse's servers be backed-up into a flat file and provided to Subscriber in ASCII delimited text format on recordable CD, DVD or such other media as may, in MainCourse's sole discretion, be reasonably requested by Subscriber. MainCourse will use commercially reasonable efforts to accommodate all such requests.
(b) MainCourse Ownership. Unless expressly provided hereunder, MainCourse does not grant any other express or implied right(s) to Subscriber and/or any of its Authorized Users under any patent(s), copyright(s), trademark(s), or trade secret information through the Web Site. Accordingly, unauthorized use of any material contained on this Web Site may violate copyright laws, trademark laws, trade secret laws, the laws of privacy and publicity, and other regulations and statutes. The contents of and all materials distributed in conjunction with the Web Site are Copyright © 2008 Straight and Narrow LLC and/or its affiliates. All rights reserved. MainCourse also owns copyrights in the Web Site, each as a whole as well as in each component as collective works and/or compilations, and in the selection, coordination, arrangement, and enhancement of the Web Site's content. MainCourse and all other names, logos, and icons identifying MainCourse's products and services are proprietary marks of MainCourse and its affiliates, and any use of such marks without the express written permission of MainCourse is strictly prohibited. Other product and company names mentioned on this Web Site may be the marks of their respective owners.
9. Excusable Delay. MainCourse will use reasonable efforts to keep the Web Site available for Subscriber's use and the use of its Authorized Users; however, MainCourse cannot and will not be responsible for any loss or unavailability of the Web Site that results from a cause over which it does not have direct control, including, but not limited to, failure of electronic or mechanical equipment or communication lines, telephone or other interconnect problems, computer viruses, unauthorized access, theft, operator errors, severe weather, earthquakes, or natural disasters, strikes or other labor problems, wars, or governmental restrictions. Neither party will be deemed in default of this Agreement as a result of a delay in performance or failure to perform its obligations caused by acts of God or governmental authority, strikes or labor disputes, fire, acts of war, failure of third party suppliers, or for any other cause beyond the control of that party.
10. Confidentiality.
(a) Confidential Information. As used in this Agreement, "Confidential Information" shall mean all information concerning or related to the Subscriber Data (in the case of Subscriber), (and in the case of MainCourse) the Application, the MainCourse tools, methodology and any other component or aspect of the Web Site, and the related technology, operations, or prospects of each party, regardless of the form in which such information appears and whether or not such information has been reduced to a tangible form, and shall specifically include (a) all information regarding customers, suppliers, distributors, sales representatives, business partners, and licensees of each party, whether present or prospective, except for such information regarding such entities which may be disclosed by the owner of such information to the general public in the ordinary course of business, (b) all inventions, discoveries, trade secrets, processes, techniques, methods, formulae, ideas, and know-how relating to the Application or Administrative Client, and (c) all financial or business information regarding each party and its Affiliates; provided, that the Confidential Information shall not include (x) information which is or becomes generally known to the public through no act or omission by a party or its Affiliates and (y) information which has been or hereafter is lawfully obtained by a party from a source other than the other party or its Affiliates or their respective officers, directors, employees, equity holders, or agents, so long as, in the case of information obtained from a third party, such third party was or is not, directly or indirectly, subject to an obligation of confidentiality owed to the other party or any of its Affiliates or their respective officers, directors, employees, equity holders, or agents at the time such Confidential Information was or is disclosed to the other party. As used herein, an "Affiliate" of a party shall mean an entity which controls, is controlled by or is under common control with such party, and the term "control" shall mean, with respect to any entity, the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of such entity, whether through ownership of voting securities, by contract or otherwise.
(b) Nondisclosure of Confidential Information. Except as otherwise permitted by subsection (c), each party agrees that it will not, without the prior written consent of the other party, disclose or use for its own benefit any Confidential Information of the other party.
(c) Permitted Disclosures. Each of the parties shall be permitted to: (i) disclose Confidential Information of the other party to its officers, directors, employees, and agents, but only to the extent reasonably necessary in order for each party to perform its obligations hereunder, and each party shall take all such action as shall be necessary or desirable in order to ensure that each of such persons maintains the confidentiality of any Confidential Information that is so disclosed; and (b) disclose Confidential Information of the other party to the extent, but only to the extent, required by law; provided, that prior to making any disclosure pursuant to this subsection, the party required to make such disclosure (the "Disclosing Party") shall notify the other party (the "Affected Party") of the same, and the Affected Party shall have the right to participate with the Disclosing Party in determining the amount and type of Confidential Information of the Affected Party, if any, which must be disclosed in order to comply with applicable law. Subscriber shall pay all costs and expenses, including reasonable attorneys’ fees, incurred by MainCourse or its Affiliates in connection with any subpoena directed to MainCourse or its Affiliates with respect to the Confidential Information of Subscriber.
(d) Equitable Relief. Each party acknowledges and agrees that the other party would be irreparably damaged in the event that the provisions of this Agreement relating to Confidential Information are not performed by each party in accordance with their specific terms or are otherwise breached. Accordingly, each party agrees that the other party shall be entitled to an injunction or injunctions to prevent breaches of this Agreement and shall have the right to specifically enforce this Agreement and the terms and provisions hereof in addition to any other remedy available at law or in equity.
11. Application and Subscriber Data Security. The Application and the Subscriber Data are housed on servers protected by a firewall. Subscriber will make commercially best efforts to ensure that the firewall and the servers are properly configured to ensure data security. The foregoing notwithstanding, Subscriber acknowledges that the Internet and TCP/IP is not an inherently secure means of data communication and while Subscriber has taken the steps described in this Agreement to secure storage of Subscriber Data and access to the Web Site and Subscriber Data, Subscriber shall have no liability for acts beyond its reasonable control including without limitation Subscriber or Authorized User negligence with respect to responsible practices for appointment of Authorized Users, maintaining confidentiality of User Identities, or errors in Access Control Administration.
12. General Provisions.
(a) Nothing in this Agreement is intended or shall be construed to create or establish an agency, partnership, or joint venture relationship between the parties.
(b) No waiver by either party of any provision or any breach of this Agreement constitutes a waiver of any other provision or breach of this Agreement and no waiver shall be effective unless made in writing. The right of either party to require strict performance and observance of any obligations hereunder shall not be affected in any way by any previous waiver, forbearance or course of dealing.
(c) Subscriber shall not sell, assign, license, sub-license, or otherwise convey in whole or in part to any third party this Agreement or the services provided hereunder without the prior written consent of MainCourse, except that Subscriber may freely assign all rights, title, interest and obligations under this Agreement to any taker of all, or substantially all of Subscriber's assets.
(d) This is a non-exclusive agreement. Similar agreements may be entered into by either party with any other person.
(e) This Agreement shall be considered a contract governed by Pennsylvania law and any disputes regarding this Agreement shall be heard by the state courts in Pittsburgh, Pennsylvania, USA and federal courts located in Pittsburgh, Pennsylvania, USA, and each party consents to the exclusive jurisdiction of such courts. The Web Site is controlled and operated by MainCourse from its offices within the United States. MainCourse makes no representation that materials in the Web Site are appropriate or available for use in other locations, and access to them from territories where any of the contents of this Web Site are illegal is prohibited. Those who choose to access this Web Site from other locations do so on their own volition and MainCourse is not responsible for their compliance with applicable local laws.
(f) If any part of this Agreement is determined to be invalid or unenforceable pursuant to applicable law including, but not limited to, the warranty disclaimers and liability limitations set forth above, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of this Agreement shall continue in effect.
(g) This Agreement, together with the agreements and documents referenced herein, as such may be amended from time to time, constitute the final and complete understanding and agreement between the parties concerning the subject matter hereof. Any prior agreements, understandings, negotiations or communications written or otherwise are deemed superseded by this Agreement. This Agreement may be modified only by a further written agreement executed by an authorized representative of the parties hereto.
rev. 11/24/08
