(Effective March 11, 2016)
1. INTRODUCTION AND ACCEPTANCE
Welcome to the ENTEK Screw Designer ("Software Tool," which includes, without limitation, any third-party software, in whole or in part), an interactive online software tool operated by ENTEK International LLC (“ENTEK,” "us," "we," or "our").
2. INTELLECTUAL PROPERTY
3. SOFTWARE TOOL ACCESS AND USE
i. remove, alter, cover, or distort any copyright, trademark, or other proprietary rights notice on the Software Tool or Software Tool Content;
ii. circumvent, disable or otherwise interfere with security-related features of the Software Tool including, without limitation, any features that prevent or restrict use or copying of any content or enforce limitations on the use of the Software Tool or Software Tool Content;
iii. use an automatic device (such as a robot or spider) or manual process to copy or “scrape” the Software Tool or Software Tool Content for any purpose without our express written permission. Notwithstanding the foregoing, we grant public search engine operators permission to use automatic devices (such as robots or spiders) to copy Software Tool Content from the Software Tool for the sole purpose of creating (and only to the extent necessary to create) a searchable index of Software Tool Content that is available to the public. We reserve the right to revoke this permission (generally or specifically) at any time;
iv. collect or harvest any personally identifiable information from the Software Tool including, without limitation, user names, passwords, email addresses;
v. solicit other users to join or become members of any commercial online service or other organization without our prior written approval;
vi. attempt to or interfere with the proper working of the Software Tool or impair, overburden, or disable the same;
vii. decompile, reverse engineer, or disassemble any portion of any the Software Tool;
viii. use network-monitoring software to determine architecture of or extract usage data from the Software Tool;
ix. encourage conduct that violates any local, state or federal law, either civil or criminal, or impersonate another user, person, or entity (e.g., using another person’s Account (as defined in Section 4(B)) without permission, etc.);
x. violate U.S. export laws, including, without limitation, violations of the Export Administration Act and the Export Administration Regulations administered by the Department of Commerce; or
xi. engage in any conduct that restricts or inhibits any other user from using or enjoying the Software Tool.
(D) The Software Tool may include certain third-party licensors’ software that is subject to additional information, terms, and/or licenses for such portions of the Software Tool, as follows:
ii. LGPL Materials. Portions of the Software Tool may make some use of the PHPExcel software (Copyright PHPExcel), (the “LGPL Materials”). To the extent the LGPL Materials are included in the Software Tool (and does not constitute ENTEK’s own proprietary software), such LGPL Materials are, without limiting any other waiver of warranty provision herein, offered without any warranty, without even the implied warranty of MERCHANTABILITY or FITNESS FOR A PARTICULAR PURPOSE. The LGPL Materials may be available at https://phpexcel.codeplex.com/, and your use of the LGPL Materials is subject to additional and separate terms and conditions.
iii. Apache Materials. Portions of the Software Tool may make some use of the Babylon.js software (Copyright BabylonJS), (the “Apache Materials”). To the extent the Apache Materials are included in the Software Tool (and does not constitute ENTEK’s own proprietary software), you are hereby provided a link to a copy of the Apache 2.0 license.
4. USER REGISTRATION
(A) In order to access or use some features of the Software Tool, you may have to become a registered user. If you are under the age of thirteen, then you are not permitted to register as a user or otherwise submit personal information unless we receive appropriate consent from your parent or guardian. You agree that ENTEK has the right to require user registration at any time, even where the Software Tool was previously available without registration.
(B) If you become a registered user, you will provide true, accurate and complete registration information and, if such information changes, you will promptly update the relevant registration information. During registration, you will create a user name and password (an “Account”), which may permit you access to certain areas of the Software Tool not available to non-registered users. You are responsible for safeguarding and maintaining the confidentiality of your Account. You are solely responsible for the activity that occurs under your Account, whether or not you have authorized the activity. You agree to notify us immediately at firstname.lastname@example.org of any breach of security related to the Software Tool or unauthorized use of your Account.
5. USER CONTENT
(A) We may now or in the future permit users to create, post, save, upload, transmit through, or otherwise make available on the Software Tool (collectively, “submit”) messages, text, illustrations, files, images, graphics, comments, data, information, content, plans, inventions, and/or other materials (“User Content”). Subject to the rights and license you grant herein, you retain all right, title and interest in your User Content. We do not guarantee any confidentiality with respect to User Content even if it is not published on the Software Tool. It is solely your responsibility to monitor and protect any intellectual property rights that you may have in your User Content, and we do not accept any responsibility for the same.
(B) You shall not submit any User Content protected by copyright, trademark, patent, trade secret, moral right, or other intellectual property or proprietary right without the express permission of the owner of the respective right. You are solely liable for any damage resulting from your failure to obtain such permission or from any other harm resulting from User Content that you submit.
(C) You represent, warrant, and covenant that you will not submit any User Content that:
i. violates or infringes in any way upon the rights of others, including, but not limited to, any copyright, trademark, patent, trade secret, moral right, or other intellectual property or proprietary right of any person or entity;
ii. impersonates another or is unlawful, threatening, abusive, libelous, defamatory, invasive of privacy or publicity rights, vulgar, obscene, profane, pornographic, or otherwise objectionable;
iii. encourages conduct that would constitute a criminal offense, give rise to civil liability or otherwise violate any law;
iv. includes personal information such as messages which identify phone numbers, social security numbers, account numbers, addresses, or employer references;
v. is a solicitation of funds or an advertisement for goods or services;
vi. contains a code, formula, instruction, or advice that could cause harm or injury; or
vii. is a chain letter of any kind.
Moreover, any conduct by a user that in our sole discretion restricts or inhibits any other user from using or enjoying the Software Tool will not be permitted.
(E) By submitting User Content, you also grant us the right, but not the obligation to use your biographical information including, without limitation, your name in connection with broadcast, print, online, or other use or publication of your User Content. Notwithstanding the foregoing, you waive any and all claims you may now or later have in any jurisdiction to so-called “moral rights” or rights of “droit moral” with respect to the User Content.
(F) We reserve the right to display advertisements and other materials (including, without limitation, third-party materials) in connection with your User Content and to use your User Content for research and development, software maintenance, performance analysis, and advertising and promotional purposes.
(G) We have the right, but not the obligation, to monitor User Content. We have the right in our sole discretion and for any reason whatsoever to edit, refuse to post, remove, or disable access to any User Content, including, without limitation, content saved on the system.
6. SOFTWARE TOOL CONTENT & THIRD PARTY HYPERLINKS
(A) We provide the Software Tool as a tool to help you in the screw design process, but you must not rely on any information and opinions provided on or through the Software Tool for any purpose. In all instances, it is your responsibility to evaluate the accuracy, timeliness, completeness, or usefulness of the Software Tool and the Software Tool Content. Under no circumstances will we be liable for any loss or damage caused by your reliance on any Software Tool Content.
(B) In some instances, Software Tool Content may include content created or posted by a third-party or will represent the opinions and judgments of a third-party. We do not endorse, warrant and are not responsible for the accuracy, timeliness, completeness, or reliability of any opinion, advice, or statement made on the Software Tool by any such third parties.
(C) Any regulatory compliance information that may be posted is not intended to be a substitute for professional advice. We do not endorse or warrant the validity of any such compliance-related statements found on this Software Tool or in any in third party sites referenced in the Software Tool. This information should be treated as general in nature and is subject to your evaluation and determination of the accuracy, timeliness, completeness, or usefulness for your purposes. Never disregard professional advice or delay in seeking it because of something you have seen on or through the Software Tool.
(D) If there is a dispute between persons accessing the Software Tool or between persons accessing the Software Tool and any third party, you understand and agree that we are under no obligation to become involved. If there is such a dispute, you hereby release ENTEK its officers, directors, employees, parents, partners, successors, agents, affiliates, licensors, subsidiaries, and their related companies from claims, demands, and damages of every kind or nature arising out of, relating to, or in any way connected with such dispute.
(E) The Software Tool may contain links to other websites maintained by third parties. We do not operate or control, in any respect, or necessarily endorse the content found on these third-party websites. You assume sole responsibility for your use of third-party links. We are not responsible for any content posted on third-party websites or liable to you for any loss or damage of any sort incurred as a result of your dealings with any third-party or their website.
YOU EXPRESSLY AGREE THAT USE OF THE SOFTWARE TOOL AND SOFTWARE TOOL CONTENT IS AT YOUR SOLE RISK. THE SOFTWARE TOOL AND SOFTWARE TOOL CONTENT ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED. WITHOUT LIMITING THE FOREGOING AND TO THE FULLEST EXTENT PERMITTED BY LAW, ENTEK AND ITS OFFICERS, DIRECTORS, EMPLOYEES, PARENTS, PARTNERS, SUCCESSORS, AGENTS, DISTRIBUTION PARTNERS, AFFILIATES, LICENSORS, SUBSIDIARIES, AND THEIR RELATED COMPANIES DISCLAIM ANY AND ALL WARRANTIES INCLUDING ANY: (1) WARRANTIES THAT THE SOFTWARE TOOL AND/OR SOFTWARE TOOL CONTENT WILL MEET YOUR REQUIREMENTS; (2) WARRANTIES CONCERNING THE AVAILABILITY, ACCURACY, SECURITY, USEFULNESS, TIMELINESS, OR INFORMATIONAL CONTENT OF THE SOFTWARE TOOL OR SOFTWARE TOOL CONTENT; (3) WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE; (4) WARRANTIES FOR SERVICES OR GOODS RECEIVED THROUGH OR ADVERTISED ON OUR SOFTWARE TOOL OR ACCESSED THROUGH THE SOFTWARE TOOL; (5) WARRANTIES CONCERNING THE ACCURACY OR RELIABILITY OF THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SOFTWARE TOOL AND/OR SOFTWARE TOOL CONTENT; (6) WARRANTIES THAT YOUR USE OF THE SOFTWARE TOOL AND/OR SOFTWARE TOOL CONTENT WILL BE SECURE OR UNINTERRUPTED; AND (7) WARRANTIES THAT ERRORS IN THE SOFTWARE TOOL AND/OR SOFTWARE TOOL CONTENT WILL BE CORRECTED.
9. LIMITATION ON LIABILITY
(C) In some jurisdictions limitations of liability are not permitted. In such jurisdictions, some of the foregoing limitations may not apply to you. These limitations shall apply to the fullest extent permitted by law.
11. COPYRIGHT POLICY
We respect the intellectual property rights of others and expect users to do the same. In appropriate circumstances and at our sole discretion, we may terminate and/or disable the Account of users suspected to be infringing the copyrights (or other intellectual property rights) of others. Additionally, in appropriate circumstances and in our sole discretion, we may remove or disable access to material on any of our websites or hosted on our systems that may be infringing or the subject of infringing activity.
12. CHOICE OF LAW; JURISDICTION AND VENUE
13. DISPUTE RESOLUTION & MANDATORY ARBITRATION
(A) We each agree to first contact each other with any disputes and provide a written description of the problem, all relevant documents/information and the proposed resolution. You agree to contact us with disputes by contacting us at: 200 Hansard Ave., Lebanon, OR 97355 Attn: General Counsel . We will contact you based on the contact information you have provided us or that we obtain by other means.
(B) If after 30 days the parties are unable to resolve any dispute raised under the previous provision, the dispute may be submitted to arbitration consistent with this Section. The parties understand that they would have had a right or opportunity to litigate disputes through a court and to have a judge or jury decide their case, but they choose to have any disputes resolved through arbitration.
(C) We each agree that any claim or dispute between us, and any claim by either of us against any agent, employee, successor, or assign of the other, including, to the full extent permitted by applicable law, third parties who are not signatories to this agreement, whether related to this agreement or otherwise, including past, present, and future claims and disputes, and including any dispute as to the validity or applicability of this arbitration clause, shall be resolved by binding arbitration administered by the JAMS under its rules and procedures in effect when the claim is filed. The rules and procedures and other information, including information on fees, may be obtained from JAMS’ website (www.jamsadr.com) or by calling JAMS at 949-224-1810.
(D) We are entering into this arbitration agreement in connection with a transaction involving interstate commerce. Accordingly, this arbitration agreement and any proceedings thereunder shall be governed by the Federal Arbitration Act (“FAA”), 9 U.S.C. §§ 1-16. Any award by the arbitrator(s) may be entered as a judgment in any court having jurisdiction.
(E) Exception to Arbitrate. Either of us may bring qualifying claims in small claims court. Further, pursuant to Section 14 below, we each agree that any arbitration will be solely between you and ENTEK, not as part of a classwide claim (i.e., not brought on behalf of or together with another individual's claim). If for any reason any court or arbitrator holds that this restriction in Section 13 is unconscionable or unenforceable, then our agreement to arbitrate does not apply and the classwide dispute must be brought in court.
14. NO CLASS ACTIONS
TO THE EXTENT ALLOWED BY LAW, WE EACH WAIVE ANY RIGHT TO PURSUE DISPUTES ON A CLASSWIDE BASIS; THAT IS, TO EITHER JOIN A CLAIM WITH THE CLAIM OF ANY OTHER PERSON OR ENTITY, OR ASSERT A CLAIM IN A REPRESENTATIVE CAPACITY ON BEHALF OF ANYONE ELSE IN ANY LAWSUIT, ARBITRATION OR OTHER PROCEEDING.
15. NO TRIAL BY JURY
TO THE EXTENT ALLOWED BY LAW, WE EACH WAIVE ANY RIGHT TO TRIAL BY JURY IN ANY LAWSUIT, ARBITRATION OR OTHER PROCEEDING.
16. AMENDMENT; ADDITIONAL TERMS
(A) No waiver by either party of any breach or default hereunder shall be deemed to be a waiver of any preceding or subsequent breach or default. The section headings used herein are for convenience only and shall not be given any legal import.
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