Stillwater West Coast Watch Membership Agreement
END USER LICENSE AGREEMENT – IMPORTANT – READ CAREFULLY:
The Agreement is a legal and binding instrument entered into as of the date of electronic acceptance by End User or the date of first use by End User of the Service (the “Effective Date”), by and between Stillwater Associates LLC, (“Stillwater”) and End User, the individual or entity entering into this Agreement. Stillwater publications are products of Stillwater. Stillwater reserves the right to amend this Agreement from time to time without notice to End User, and End User agrees to comply with this Agreement as so amended.
1. End User Rights and Restrictions.
a. Access to Service. The Service is a paid membership service, and as such End User agrees that his, her, or its access shall only be restricted to the term and level of membership for which Stillwater has received payment or provided for trial access. During the Term of this Agreement, and upon End User’s payment of all applicable Membership Fees or during the term of End User’s free trial, Stillwater will enable End User to access and utilize the Service as contemplated herein, and End User may access and use the Service pursuant to and in accordance with the provisions of this Agreement.
b. Transfer of Content. End User shall be solely responsible for all content transferred by End User or any other party in connection with End User’s access and/or use of the Service.
c. Prohibition on Reverse Engineering. End User may not reverse engineer, decompile or otherwise attempt to decipher any code in connection with the Service or any other aspect of Stillwater’s technology or publications. No End User may utilize any automated computer program or activity to search, index, test, download, or grab information from the Service (including but not limited to web robots, spiders, and crawlers). Stillwater reserves the right to block or otherwise prevent the unauthorized use of such programs or activities.
d. No Distribution. End User may not resell, distribute, or otherwise use the Service on a timeshare or service bureau basis. Neither the Service nor any content related to the Service may be copied, reproduced, framed, hyperlinked, republished, downloaded, uploaded, posted, transmitted or distributed in any way. End User may not redistribute, reproduce, retransmit, disseminate, sell, publish, broadcast or circulate the information contained in the Service to any third party without the express written consent of Stillwater Associates. No other distribution of the Service or any content related thereto by any End User including, but not limited to, distribution via site licensing, on-line distribution, off-line downloading, tapes, discs, CD-ROM, optical media, hard copy formats, or print publication shall be permitted without the express written permission of an authorized officer of Stillwater. End User specifically agrees and understands that no rights of dissemination by any third party and no rights to sub-license to any third party are being granted to End User under this Agreement. Except for the limited license specifically provided herein, this Agreement shall not transfer to End User any right to, or interest in, the Service, or in any content included in the Service, or in any copyright or trademark pertaining thereto. End User acknowledges that End User has no claim to ownership of the Service or any content related thereto simply by reason of End User’s use of or access to the Service.
e. No Other Rights. No other rights are granted hereunder except as expressly set forth in this Agreement.
2. Copyrights and Trademarks.
Except for the limited license rights granted in this Agreement, all right, title, and interest in and to the Service (including, but not limited to, any images, photographs, animations, video, audio, music, text, content, computer code or applets incorporated into the Service), any accompanying printed materials, and any copies of the Service are owned by Stillwater. All rights in and to the content that may be accessed through use of the Service is the property of the respective content owners and may be protected by applicable copyright or other intellectual property laws and treaties. This Agreement grants no rights to use such content. All rights not expressly granted are reserved by Stillwater and/or the owner(s) of the Service or other materials.
3. Term and Termination.
a. Term. This Agreement shall commence on the Effective Date and continue for the agreed to membership or trial period unless sooner terminated by Stillwater pursuant to its rights to cancel or terminate as provided in this Agreement.
b. Termination for Cause. Stillwater reserves the right to terminate this Agreement immediately if End User commits a material breach of any of its obligations under this Agreement.
c. Effect of Termination. Upon termination of this Agreement, End User will immediately discontinue all access to and use of the Service. Stillwater shall not be liable for any damages resulting from a termination of this Agreement as provided for herein. The obligations and liabilities of the parties incurred prior to the termination date shall survive the termination of this Agreement for all purposes.
4. DISCLAIMER OF WARRANTIES.
END-USER HEREBY ACKNOWLEDGES AND AGREES THAT THE SERVICE IS PROVIDED BY STILLWATER ON AN “AS IS” BASIS, AND END USER’S ACCESS TO AND/OR USE OF THE SERVICE IS AT ITS SOLE RISK. STILLWATER EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THOSE OF MERCHANTABILITY, SATISFACTORY QUALITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. STILLWATER MAKES NO WARRANTY THAT THE SERVICE WILL MEET THE REQUIREMENTS OF END USER OR THAT THE SERVICE WILL BE UNINTERRUPTED, TIMELY OR ERROR-FREE, NOR DOES STILLWATER MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE OR THE ACCURACY OF ANY OTHER INFORMATION OBTAINED THROUGH THE SERVICE OR THAT ANY DEFECTS WILL BE CORRECTED. END USER UNDERSTANDS AND AGREES THAT ANY MATERIAL AND/OR DATA DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS DONE AT THE SOLE RISK OF END USER AND THAT END USER WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO ITS COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF SUCH MATERIAL AND/OR DATA. NO INFORMATION OR ADVICE, WHETHER ORAL OR WRITTEN, OBTAINED BY END USER FROM STILLWATER OR THROUGH THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
5. LIMITATION ON LIABILITY.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL STILLWATER AND/OR ITS AFFILIATES BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES OR ANY DAMAGES WHATSOEVER INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF USE, DATA, OR PROFITS, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OR PERFORMANCE OF THE STILLWATER WEBSITE OR THE SERVICE, WITH THE DELAY OR INABILITY TO USE THE STILLWATER WEBSITE OR RELATED SERVICES, THE PROVISION OF OR FAILURE TO PROVIDE THE SERVICE, OR FOR ANY INFORMATION, SOFTWARE, PRODUCTS, SERVICES AND RELATED GRAPHICS OBTAINED THROUGH THE STILLWATER WEBSITE, OR OTHERWISE ARISING OUT OF THE USE OF THE STILLWATER WEBSITE OR RELATED SERVICE, HOWEVER CAUSED AND BASED ON ANY THEORY OF LIABILITY, AND WHETHER OR NOT FOR BREACH OF CONTRACT, NEGLIGENCE, OR OTHERWISE, AND WHETHER OR NOT STILLWATER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. STILLWATER’S LIABILITY HEREUNDER IS LIMITED TO ANY FEES PAID BY END USER TO STILLWATER DURING THE IMMEDIATELY PRECEDING 12-MONTH PERIOD.
End User hereby agrees, at its sole expense, to indemnify, defend by counsel reasonably satisfactory to Stillwater, and hold Stillwater harmless from and against any and all losses, costs, claims, damages, liabilities or expenses arising out of or relating to (i) a third-party claim, suit, proceeding, action or allegation of infringement based on information, data, files or other content submitted by End User or otherwise related to End User’s access to and/or use of the Service; or (ii) any fraud or manipulation, or other breach of this Agreement by End User.
7. Law and Jurisdiction.
This Agreement and the rights of the parties hereunder will be governed by and construed in accordance with the laws of the State of California, exclusive of conflict or choice of law rules. Any dispute, claim or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate, will be determined by arbitration in Orange County, California before one arbitrator. The arbitration will be administered by JAMS Streamlined Arbitration Rules and Procedures. Judgment on the Award may be entered in any court having jurisdiction and sitting in Orange County, California. This clause will not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction and sitting in Orange County, California. In any arbitration arising out of or related to this Agreement, the arbitrator will award to the prevailing party, if any, the costs and attorneys’ fees reasonably incurred by the prevailing party in connection with the arbitration. The provisions of this paragraph supersede any contrary provisions contained in the Stillwater West Coast Watch website Terms and Conditions.
a. The parties may not assign this Agreement or any provisions thereof to another party, provided however, that Stillwater may assign this Agreement to another party which purchases all or substantially all of the assets of Stillwater.
b. If any provision of this Agreement is held unenforceable, the remainder of this Agreement will continue to be valid and enforceable.
c. The failure of either party to enforce any provision of this Agreement will not be construed as a waiver or limitation of that party’s right to subsequently enforce and compel strict compliance with that and every other provision of this Agreement.