This Trabon website is a web based system designed for the use by you and your Company (“Client”) and its authorized franchisees and vendors. As Client or a vendor or franchisee of Client, you have the right to access and use the Trabon Program and Website upon acceptance of the terms and conditions set forth in this User Agreement.
Use of this website is subject to the terms and conditions set forth below. By clicking AGREE, you agree to all of the terms and conditions set forth below and that you will use the website in a manner consistent with applicable laws and regulations and in accordance with the terms and conditions set forth below. If you do not accept the following terms and conditions, you will be denied access to the site. Nevertheless, by continuing to access or use this website, you agree to be bound by the terms and conditions set forth below. Trabon reserves the right to change the terms of use from time to time at its sole discretion. Your use of this website will be subject to the most current version of the terms of use posted on the site at the time of such use.
Please carefully review the following terms and conditions.
1.01. Upon the terms and conditions set forth herein, Trabon hereby grants to you, and you hereby accept from Trabon, the nonexclusive right and license to use the Trabon Program (the “Program”) and Website (the “Website”). Use of the Program and Website is subject to the fees and charges set forth in the Master Services Agreement with Client and the accompanying Statement of Work.
2.01. Your use of the Program and access to the Website is subject to this Agreement. The Website and information contained on the Website may only be used, viewed, downloaded and printed by you for the purposes specified above. You agree to comply with all proprietary and restrictive notices that may appear on the Website.
2.02. During the term of this Agreement, Trabon, at the request of Client or otherwise, may at any time and from time to time, initiate a request for additions, deletions, or revisions to the Program and the Website.
3.01. Except as otherwise expressly provided for herein, you may not: (i) modify or create any derivative works from the Website, the Program or any information contained on the Website; (ii) decompile, disassemble, reverse engineer or otherwise attempt to derive the source code for the Website or the Program; (iii) encumber, sell, rent, lease, sublicense or otherwise transfer rights to the Program or the Website; (iv) remove or alter any trademark, logo, copyright or other proprietary notices, legends, symbols or labels from the Program or the Website or any information contained therein; (v) modify or alter any of the information contained on the Website.
4.01. Access to the Website and Program is controlled by a User I.D. and password issued to you by Trabon. Your User I.D. and password are licensed to you only for your use and are not to be used by any other person. You are solely responsible for supervising and policing use of your User I.D. and password and maintaining the confidentiality of your User I.D. and/or password. You are prohibited from giving your User I.D. or password to any party or permitting any other party to access the website using your User I.D. or password. You are responsible for all uses of your User I.D. and password, whether or not actually or expressly authorized by you.
5.01. The Website, the Program and all information on the website are provided on an “as is” basis without any warranties of any kind, either express or implied, including, but not limited to, any warranties, express or implied, as to merchantability or fitness for a particular purpose. Without in any way limiting the foregoing, Trabon makes no warranties or representations that (i) the Program and/or the Website (or the information thereon) is suitable for any particular purpose; (ii) the Program and/or the Website (or the information thereon) will meet your particular requirements; (iii) use of the Website will be uninterrupted, timely, secure, or error free; (iv) the results that may be obtained from use of the Website (or the information contained thereon) will be effective, accurate or reliable; and (v) all errors have been or can be eliminated from the Program and/or the Website (or the information contained thereon). You further understand and acknowledge that Trabon has no control over the Internet or the creation, editing, distribution or transmission of communications, information or content by other users or subscribers of the Internet, and Trabon has no control over the creation, editing, distribution or transmission of communications, information or content supplied by you.
5.02. EXCEPT AS SPECIFICALLY SET FORTH IN THIS ARTICLE V, TRABON DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, ARISING OUT OF OR RELATING TO THE WEBSITE, THE PROGRAM (OR ITS ACCOMPANYING DOCUMENTATION), ANY HOSTING SERVICES PROVIDED BY TRABON HEREUNDER OR ANY USE THEREOF, INCLUDING, BUT NOT LIMITED TO, ANY AND ALL WARRANTIES WHATSOEVER, EXPRESS AND IMPLIED, AS TO MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
6.01. The Program and the Website are protected by copyright and other intellectual property laws and international treaties. You hereby acknowledge and agree that the Program, the Website, all documentation and other information and materials pertaining to the Program and all computer programs, software, data, equipment, and other materials provided by Trabon (its employees or any independent contractors engaged by Trabon) with respect to the Website or Program, and any know how, methodologies, equipment or processes used by Trabon in the Program or Website or to provide any hosting services (including, without limitation all copyrights, trademarks, patents, trade secrets and any other proprietary rights therein) are and shall remain the property of Trabon. You further acknowledge and agree that all federal and international patent, trademark, copyright and proprietary rights in and to the Website, the Program and all documentation, information and materials pertaining to the Program or the Website and all right, title and interest in and to any copyrightable works of authorship created by Trabon with respect to the Website, the Program and all documentation, information and materials pertaining to the Program or the Website are vested exclusively in Trabon. Notwithstanding anything contained herein to the contrary, subject to the license expressly granted to you herein, you further acknowledge and agree that you do not have and will not acquire any patent, trademark, copyright or proprietary rights in and to the Website, the Program or any documentation, information or materials pertaining to the same. With the exception of the license expressly granted to you hereunder, no provision of this Agreement shall be construed as an assignment or transfer to you of any rights in the Website, the Program or any documentation, information or materials pertaining to the Program or the Website. You agree to cooperate with Trabon in preserving whatever rights Trabon may have in the Website, the Program and all documentation, information and materials pertaining to the Program or the Website (including, without limitation all copyrights, trademarks, patents, trade secrets and any other proprietary rights therein).
6.02. You acknowledge and agree that Trabon shall have the right to provide services that are the same or similar to the ones provided to you under this Agreement to other parties and to use or otherwise exploit the Program and/or Website to create similar programs and/or websites for other parties or in connection with the provision of services to other parties.
7.01. With the exception of any claim for infringement of any patent, trademark, copyright or other proprietary right by the Website or the Program, prepared by Trabon, you shall, at your own expense, defend any and all actions, suits, demands or claims brought against Trabon by a third party because any Client Content, material, information, or data that is provided by you or posted on or transmitted over the Website by you or another party that you have authorized to use the Website (including any claim that the Client Content or any other material, information or data that is provided by you or posted or transmitted over the Website by you or another party that you have authorized to use the Website is false, misleading, libelous, slanderous or infringes any patent, trademark, copyright, trade secret or other proprietary rights of a third party). You shall also indemnify and hold Trabon harmless from any and all claims, losses, liabilities, costs, damages, judgments and expenses (including, without limitation, reasonable attorneys' fees and expenses, penalties, assessments, fines and all other costs whatsoever, whether asserted or not, absolute or contingent, known or unknown, accrued or unaccrued) resulting from or arising out of (i) the breach of any of the terms, conditions or obligations imposed upon you by this Agreement; (ii) any Client Content, material, information, or data that is provided by you or posted on or transmitted over the Website by you or another party that you have authorized to use the Website (including any claim that the Client Content or any other material, information or data that is provided by you or posted or transmitted over the Website by you or another party that you have authorized to use the Website is false or misleading or infringes any patent, trademark, copyright, trade secret or other proprietary rights of a third party); (iii) any use of the Website or the Program by you or another party that you have authorized to use the Website; (iv) any act, action, omission, obligation, or undertaking by you or another party that you have authorized to use the Website with respect to the use of the Program or the Website; or (v) the violation of any rights of another person or entity by you (including any claims for libel, slander, invasion of privacy, or infringement of copyright arising from any material provided to the Website by you). Specifically, you agree to indemnify Trabon against any claim that any of the material or content provided to the Website by you infringes or violates any rights of a third party, including, without limitation, rights of privacy, any patents, copyrights, trade secrets or other proprietary rights of the third party.
7.02. Trabon does not assume any duty or responsibility and shall not be liable for any Client Content, material, information or data that is posted or transmitted over or otherwise provided to the Website by another third party.
7.03. During the term of this Agreement, with the exception of a claim that you are obligated to assume and indemnify under Section 7.01, Trabon shall, at its own expense, defend any and all actions, suits, demands or claims brought against you by a third party because the Website or the Program infringes any patent, trademark, copyright or other proprietary right of the third party and Trabon shall indemnify and hold you harmless against any and all claims, losses, damages, costs, judgments and expenses (including reasonable attorney's fees) incurred by you as a result of or relating to any claim, demand or action asserted against you by a third party because the Website or the Program infringes any patent, trademark, copyright or other proprietary right of the third party.
7.04. If a claim for infringement of any patent, trademark, copyright or other proprietary right is asserted against the Website or the Program, Trabon reserves the right, at its option, to either (i) procure the right to permit the continued exercise of the rights and licenses granted under this Agreement, (ii) replace or modify any of the infringing items so that it becomes not infringing while affording equivalent performance, or (iii) at its sole obligation, terminate this Agreement for the infringing item.
7.05. The indemnification obligations of either party hereunder are expressly contingent upon prompt notice by the party seeking indemnification, in writing, of any claim, demand action or occurrence that may give rise to indemnification hereunder. Each party’s indemnification obligation hereunder is further contingent upon the other party’s cooperation in investigating and prosecuting any such action, suit or claim including furnishing to the indemnifying party, upon request and at the expense of the indemnifying party, all evidence and information in the other party’s possession relating to the claim or defense thereof.
7.06. Trabon shall have no indemnification obligation hereunder for claims of infringement resulting from any combination, operation or use of the Website or the Program, or any components thereof, with any software programs or data not supplied by Trabon if such infringement would have been avoided by use of the Website or the Program alone.
8.01. You hereby assume responsibility for the accuracy of the Client Content (as defined herein) and any material, information, or data that is provided by you or posted on or transmitted over the Website by you or another party that you have authorized to use the Website. You further acknowledge that you or Client is the owner of all right, title and interest in and to the Client Content or has obtained all consents and authorizations necessary to use the Client Content (or any component of it) and that the Client Content and any material, information, or data that is provided by you or posted on or transmitted over the Website by you or another party that you have authorized to use the Website does not infringe or violate the rights of any third party including, without limitation, rights of privacy or any patent, trademark, copyright, trade secret or other proprietary rights of any third party. You further warrant that the Client Content and any material, information, or data that is provided by you or posted on or transmitted over the Website by you or another party that you have authorized to use the Website does not and is not inaccurate or misleading. “Client Content” shall mean all material. Information or data that is provided by, or on behalf of, you or Client or posted on or transmitted over the Website by you or another party that you have authorized to use the Website (including, but not limited to, data, text, graphics, or other materials generated in any form or media and all trademarks, trade names, service marks, or logos).
8.02. You or Client shall be responsible for obtaining any consents or authorizations necessary to use the Client Content, to place the Client Content on the Website and to display and distribute the Client Content on the World Wide Web.
8.03. You hereby grant to Trabon a non-exclusive, worldwide, non-transferable right and license to use the Client Content and any material, information, or data that is provided by you or posted on or transmitted over the Website by you or another party that is authorized to use the Website by you so long as this User Agreement remains in effect.
9.01. NOTWITHSTANDING ANYTHING CONTAINED HEREIN TO THE CONTRARY, EXCEPT FOR ANY LIABILITY ARISING FROM A PARTY’S INDEMNIFICATION, CONFIDENTIALITY OR SAFEGUARD OBLGATIONS HEREUNDER, NEITHER TRABON, NOR ANY OF ITS SUPPLIERS OR SUBCONTRACTORS SHALL BE LIABLE TO YOU OR ANY OTHER PARTY, WHETHER IN CONTRACT OR TORT (INCLUDING NEGLIGENCE, BUT NOT INCLUDING GROSS NEGLIGENCE OR WILFULL MISCONDUCT) OR UNDER ANY OTHER LEGAL THEORY FOR (i) ANY DAMAGES WHATSOEVER RELATING TO ANY MATERIAL OR INFORMATION DELIVERED TO THE WEBSITE BY YOU, (ii) UNAUTHORIZED ACCESS TO OR ALTERATIONS, THEFT OR DESTRUCTION OF THE WEBSITE, THE PROGRAM OR ANY INFORMATION OR MATERIAL DELIVERED TO THE WEBSITE BY YOU THROUGH ACCIDENT OR FRAUDULENT MEANS OR DEVISES; (iii) ANY LOSS OF USE, REVENUE OR PROFITS; (iv) COST OF CAPITAL; (v) COST OF SUBSTITUTE USE OR PERFORMANCE; (vi) GOODWILL; (vii) ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES (INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS OR REVENUE) EVEN IF TRABON HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; (viii) CLAIMS BY CLIENT FOR DAMAGES OF AUTHORIZED USERS; OR (IX) CLAIMS BY YOU OR CLIENT FOR DAMAGES TO YOU OR YOUR CUSTOMERS.
9.02. YOUR REMEDIES UNDER THIS AGREEMENT ARE EXCLUSIVE AND THE SUM TOTAL LIABILITY OF TRABON TO YOU WITH RESPECT TO ANYTHING IN CONNECTION WITH THIS AGREEMENT, SUCH AS PERFORMANCE OR BREACH THEREOF, WHETHER IN CONTRACT, IN TORT (INCLUDING NEGLIGENCE, BUT NOT INCLUDING GROSS NEGLIGENCE OR WILFULL MISCONDUCT) UNDER ANY OTHER LEGAL THEORY OR UNDER ANY WARRANTY OR OTHERWISE SHALL NOT EXCEED IN ANY EVENT THE ANNUAL SUBSCRIPTION FEE AND MONTHLY LICENSE/USAGE FEES ACTUALLY PAID BY YOU OR CLIENT TO TRABON DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEEDING THE DATE ON WHICH SUCH CLAIM ACCRUED, INCLUDING ANY APPLICATION SETUP FEES.
10.01. You shall not post any material or content on the Website that is obscene, threatening, malicious, or infringes on or violates any applicable law or regulation or any proprietary, contract, moral or privacy right of any third party or which otherwise exposes or potentially exposes Trabon to any civil or criminal liability. Use of the Website or the Program to display or transmit threatening, obscene or pornographic materials is strictly prohibited and may be grounds for termination of this Agreement and your access to the Website. You are hereby advised that acceptable use policies and etiquette of services and other networks may apply and may, in fact, limit use.
10.02. You acknowledge and agree that Trabon, in its sole and absolute discretion, may exclude or remove from the Website any hypertext links to third party websites, any material or content on the Website which, in the sole and reasonable discretion of Trabon, is obscene, threatening, malicious or immoral or may violate or infringe any law or third party rights or may expose Trabon to civil or criminal liability. Any breach of this Article X shall be deemed to be a material breach of this Agreement by you. Notwithstanding anything contained herein to the contrary, the rights provided to Trabon under this Article X, shall not impose an obligation on Trabon to monitor the content of the Website or to exert any editorial control over the Website. If Trabon is informed by governmental authorities of inappropriate or illegal use of any facilities, services or other networks provided by Trabon, any such governmental determination will be binding on you and Trabon may terminate the services provided to you under this Agreement pursuant to this Article X.
11.01. This Agreement shall commence upon acceptance of the terms of this Agreement by you and shall continue in full force and effect until it is terminated by either party serving thirty (30) days written notice of termination upon the other. This Agreement shall also terminate coincident with the termination of the Trabon Master Services Agreement by and between Trabon and Client.
11.02. Upon the occurrence of any of the following:
(i) A breach or violation by you of the Acceptable Use Policy provisions of Article X;
(ii) The failure of you or Client to pay any fees charged to you or Client by Trabon within thirty (30) days of the invoice due date; or
(iii) The breach or violation by you or Client of any provision of this Agreement other than the Acceptable Use Policy provisions of Article X or the payment provisions of Article III if you or Client party fail to cure such breach within fifteen (15) days after written notice of such breach;
then, and in addition to all other rights and remedies which it may have at law or in equity, Trabon may, at its option, terminate this Agreement by notice thereof specifying the reason for such termination and a termination date. Such termination shall become effective on the date of termination set forth in the notice of termination.
11.03. Upon termination of this Agreement for any reason, the rights and license granted to you under this Agreement shall immediately terminate, you shall discontinue all use of the Program and your access to the Website shall be discontinued. Termination of this Agreement and disabling of service shall not in any manner interfere with, effect, or relieve you of your obligations under this Agreement.
12.01. Neither party shall be liable for any delays in performance or delivery caused by the failure of the other party to promptly supply any information and approvals required of it hereunder or for causes beyond the control of such party, such as acts of God, war, acts of government, government priorities or allocations, fire, flood, strikes, sabotage, labor disputes, shortage of materials, single source suppliers, civil disorders, embargoes, riots, suppliers mandated by the other party, or delay in transportation.
13.01. This Agreement shall be deemed to be a contract made under the laws of the State of Missouri, and for all purposes it shall be interpreted in its entirety according to the laws of said state.
13.02. If any part or provision of this Agreement is invalid or unenforceable for any reason, this invalidity or unenforceability shall not affect the validity or enforceability of the remaining provisions which shall remain in full force and effect as if this Agreement had been executed with the invalid provisions thereof deleted.
13.03. The failure of either party to partially or fully exercise any right or the waiver of any breach shall not prevent a subsequent exercise of such right or be deemed a waiver of any subsequent breach of the same or any other term of this Agreement.
13.04. The Article headings contained in this Agreement are for reference purposes only and shall not in any way affect the meaning or interpretation of this Agreement.
13.05. This Agreement may not be altered or amended except by an instrument in writing duly executed by both parties.