this
web SITE TERMS OF USE (“Agreement”) is a legal document
between you (“user”) and Enterprising Products, Inc.
(“Enterprising Products, Inc.”). THis Agreement states
the terms and conditions under which you may ACCESS the Enterprising
Products, Inc. web site, known as HockeyHeadway.com. please read
this agreement carefully before accessing hockeyheadway.com web site.
By CLICKING THE ACCEPT BUTTON AND accessing the hockeyheadway.com web
site you indicate that you have read and understand this
Agreement and agree to be bound by THE TERMS AND CONDITIONS OF this
agreement. if you do not accept this Agreement, USER SHALL CLICK THE
REJECT BUTTON AND SHALL NOT USE OR ACCESS THE hockeyheadway.com web
site.
WEB
SITE TERMS OF USE
This
Web Site Terms of Use ("Agreement") is made as of the
Effective Date, by and between Enterprising Products, Inc., a
Minnesota Corporation with offices located Plymouth, MN and you, the
party identified as User (“User”).
WITNESSETH
WHEREAS,
Enterprising Products, Inc. has developed and owns that certain
HockeyHeadway.com Web Site (as defined hereinafter) for use and
access by users through the Internet; and
WHEREAS, Clients (as defined hereinafter) and
Associates (as defined hereinafter), collectively referred to as
User, desire to access the Hockey Headway Web Site and use the
Services (as defined hereinafter) in accordance with the terms and
provisions of this Agreement; and
WHEREAS, Enterprising Products, Inc. desires to
provide Users (as defined hereinafter) access to the
HockeyHeadway.com Web Site for purposes of obtaining information.
NOW,
THEREFORE, in consideration of the mutual benefits of the covenants
and restrictions herein contained, User and Enterprising Products,
Inc. 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:
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 or make use of (directly or indirectly) through electronic
means or otherwise, including but not limited to video streaming,
textual forms, and other associated content.
Associates:
The term “Associates” shall mean employees of
Enterprising Products, Inc. and independent contractors hired by
Enterprising Products, Inc..
Authorized
Person: The term “Authorized Person” shall mean a
person or organization who is authorized in writing by Enterprising
Products, Inc. to receive Proprietary Information and who agrees to
maintain the propriety and confidentiality of such Proprietary
Information.
Client:
The term “Client” shall mean an individual or
organization that has engaged Enterprising Products, Inc. to perform
services as of the Effective Date.
Data:
The term “Data” shall mean any and all data and
information used, stored on or transmitted through the System,
including (without limitation) the User Content.
Documentation:
The term “Documentation” shall mean any and all written
manuals, user’s guides, and Policy Statements concerning the
Data and Enterprising Products, Inc. Web Site as provided to User in
printed or electronic form.
Effective
Date: The term “Effective Date” shall mean the
first date by which Enterprising Products, Inc. assigns a Password
to User.
Internet:
The term “Internet” shall mean that certain global
network of computers commonly referred to as the Internet.
Licensed
Content: The term “Licensed Content” shall mean
third party Technology incorporated in whole or part into the
Enterprising Products, Inc. Technology.
Enterprising
Products, Inc. Technology: The term “Enterprising
Products, Inc. Technology” shall mean the Password, Data,
Enterprising Products, Inc. Web Site, System, Documentation, and any
and all Technology developed by or for Enterprising Products, Inc..
Enterprising
Products, Inc. Web Site: The term “Enterprising Products,
Inc. Web Site” shall mean that certain web site developed by
or for Enterprising Products, Inc., which is integrated with and
implemented on the System and accessible by User via the Internet,
including information, data, communication and text transmitted
through the Enterprising Products, Inc. Web Site and used or stored
on the System.
Password:
The term “Password” shall mean that certain user name
and password assigned by Enterprising Products, Inc. to User for
purposes of accessing the Enterprising Products, Inc. Web Site and
Services.
Policy
Statement: The term “Policy Statement” shall mean
that certain written statement of policies (in printed or electronic
form) concerning User access to the Enterprising Products, Inc.
Technology and use of the Services as may be adopted by Enterprising
Products, Inc. and as modified by Enterprising Products, Inc. from
time-to-time.
Proprietary
Information: The term “Proprietary Information”
shall mean the Password, Data, Documentation, Policy Statement, and
any and all information in connection with the Enterprising
Products, Inc. Technology which is disclosed to User by Enterprising
Products, Inc. or learned or obtained by User and is not: (i)
conveyed to User by a third party; (ii) released by Enterprising
Products, Inc. without restriction; (iii) independently developed by
User; and (iv) required by Court Order to be released by User.
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.
Services:
The term “Services” shall mean those certain services
as provided by Enterprising Products, Inc. to User through the
Enterprising Products, Inc. Web Site.
System:
The term “System” shall mean computer systems and
communications equipment owned or leased by Enterprising Products,
Inc. and used for hosting the Enterprising Products, Inc. Web Site.
Technology:
The term “Technology” shall mean any and all
information, data, applications, methodologies, techniques, ideas,
solutions, processes, adaptations, products, concepts, procedures,
works of authorship, Enterprising Products, Inc. Web Site, scripts,
documentation, flow charts, diagrams, software libraries, databases,
data structures, data models, data dictionaries, fields, records,
screen displays and graphic interfaces.
Unauthorized
Access: The term “Unauthorized Access” shall mean
any access to the Enterprising Products, Inc. Web Site except for
the exclusive purposes of using the Services; accessing, retrieving,
and viewing Data; and inputting and retrieving User Content.
Unauthorized
User: The term “Unauthorized User” shall mean any
individual who accesses the Enterprising Products, Inc. Web Site
except for: (1) Associates and Clients authorized by Enterprising
Products, Inc. to access the Enterprising Products, Inc. Web Site
for purposes of using the Services; accessing, retrieving, and
viewing Data, and inputting and retrieving User Content; and (2)
Authorized Persons who are authorized in writing by Enterprising
Products, Inc. to access the Enterprising Products, Inc. Web Site
and the Services.
User:
The term “User” shall mean Associates, employees of
Client, and independent contractors hired by Client.
User
Content: The term “User Content” shall mean any and
all User data and information used, stored on or transmitted through
the System in connection with Associate or Client (as the case may
be) information.
ARTICLE
II: SCOPE OF SERVICES
Section
2.01 – Access: Enterprising Products, Inc. hereby grants
User a non-exclusive and non-transferable license to access the
Enterprising Products, Inc. Web Site subject to the terms and
conditions of this Agreement.
Section
2.02 – User Content: User may input, retrieve, and modify
User Content in connection with the Services using the Enterprising
Products, Inc. Web Site. User shall not modify any Data or
information except User Content.
Section
2.03 – Password: Enterprising Products, Inc. shall assign
User a Password for purposes of accessing the Enterprising Products,
Inc. Web Site and using the Services. User hereby accepts
responsibility for, and shall be liable for, all access to the
Enterprising Products, Inc. Web Site, Data and Services in connection
with the Password. User shall access the Enterprising Products, Inc.
Web Site and the Services only using the Password. User shall be
responsible for the confidentiality and maintenance of the Password.
Modification of the Password shall be subject to written approval of
Enterprising Products, Inc.. All assignments of the Password by User
shall be void.
Section
2.04 – Unauthorized Access: User shall prevent Unauthorized
Users from accessing the Enterprising Products, Inc. Web Site and the
Services using the Password. User shall prevent Unauthorized Access
to the Enterprising Products, Inc. Web Site and the Services using
the Password.
Section 2.05 –
Lawful Purpose: User represents
and warrants that User access to the Enterprising Products, Inc.
Technology shall not violate any contract, statute, rule, regulation
or other obligation under which User is bound. User represents and
warrants that User shall not access the Enterprising Products, Inc.
Technology or Services to conduct or solicit the performance of any
business or activity that is tortious or prohibited by law.
Section
2.06 – Policy Statement: User shall comply with the Policy
Statement. Enterprising Products, Inc. may modify the Policy
Statement from time to time in the exclusive discretion of
Enterprising Products, Inc..
Section
2.07 – Back-Up: Enterprising Products, Inc. shall perform
routine backup of files stored on the System using commercially
reasonable measures.
ARTICLE
III: TERM OF AGREEMENT
Section
3.01 – Employment: User shall notify Enterprising
Products, Inc. immediately upon termination of employment or
contracting services (as the case may be) with Client or Enterprising
Products, Inc. (as the case may be). Upon termination of employment
or contracting services (as the case may be) with Client or
Enterprising Products, Inc. (as the case may be), this Agreement
shall terminate and User shall cease all access to the Enterprising
Products, Inc. Web Site and the Services.
Section 3.02 –
Shut-off: Enterprising Products,
Inc. shall have the right to disable and deny the Password and
terminate this Agreement without notice upon (i) User’s
termination of employment or contracting services (as the case may
be) with Client or Enterprising Products, Inc. (as the case may be);
(ii) User violation of Section 2.05; or (iii) Enterprising Products,
Inc. receipt of notice from a third party challenging use of the
Enterprising Products, Inc. Web Site or Services by User.
Section
3.03 – Deactivation and Removal: Upon termination of this
Agreement, Enterprising Products, Inc. shall have the right to
disable and deny the Password and cease all User access to the
Enterprising Products, Inc. Technology and Services. Upon
termination of this Agreement, Enterprising Products, Inc. shall
remove, migrate, destroy, or convert (as the case may be) all User
Content in its possession. User shall destroy or return (as
requested by Enterprising Products, Inc.) any copies of Enterprising
Products, Inc. property in possession of User.
ARTICLE
IV: INTELLECTUAL PROPERTY
Section
4.01 – Ownership and Title: Title to the Enterprising
Products, Inc. Technology (excluding Licensed Content), including
ownership rights to patents, copyrights, trademarks and trade secrets
in connection therewith shall be the exclusive property of
Enterprising Products, Inc..
Section
4.02 – Reverse Engineering: Customer shall not reverse
engineer the Enterprising Products, Inc. Web Site and shall use
reasonable efforts to prevent reverse engineering of the Enterprising
Products, Inc. Web Site.
Section
4.03 – Modifications: User shall not copy the Enterprising
Products, Inc. HockeyHeadway.com Web Site and Documentation and shall
not allow the Enterprising Products, Inc. Web Site and Documentation
to be copied without the prior written consent of Enterprising
Products, Inc.. User shall not modify the Enterprising Products,
Inc. Web Site and Documentation and shall not allow the Enterprising
Products, Inc. Web Site and Documentation to be modified without the
prior written consent of Enterprising Products, Inc.. If the
Enterprising Products, Inc. Web Site or Documentation is modified,
such modifications shall be the sole and exclusive property of
Enterprising Products, Inc. and Enterprising Products, Inc. shall own
any and all of the rights, title, and interests to such
modifications, including (but not limited to) any and all copyrights,
patents, and trade secrets related thereto.
Section
4.04 – Proprietary Information: User shall not disclose
Proprietary Information except to Authorized Persons. User shall
hold Proprietary Information in strict confidence and shall not
duplicate, use or disclose Proprietary Information except as
otherwise permitted under this Agreement. User hereby acknowledges
and agrees that the Proprietary Information 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
4.05 – No Contest: User shall not contest or aid in
contesting the ownership or validity of the copyrights, trademarks,
service marks and trade secrets of Enterprising Products, Inc. in
connection with the Enterprising Products, Inc. Technology.
Section
4.06 – Employee Pirating: User shall not induce or solicit
(directly or indirectly) any Associate of Enterprising Products, Inc.
to leave the employ or hire of Enterprising Products, Inc. or engage
(directly or indirectly) the services of such Associates (as an
employee, consultant, independent contractor or otherwise) without
the prior written consent of Enterprising Products, Inc..
Section
4.07 – Noncompete: User shall not (directly or indirectly)
promote, advertise, market or provide any product or service similar
to or competitive with the Enterprising Products, Inc. Web Site or
Services.
ARTICLE
V: WARRANTY
Section
5.01 – Warranty: Enterprising Products, Inc. hereby
represents and warrants that the Services shall be provided on a
reasonable efforts basis and shall conform to the standards
generally observed in the industry for similar services.
SECTION
5.02 – WARRANTY LIMITATION: THE WARRANTY SET FORTH IN
SECTION 5.01 IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESSED OR
IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY AND ALL IMPLIED
WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE AND WARRANTIES OF
MERCHANTABILITY. EXCEPTING THE WARRANTY SET FORTH IN SECTION 5.01,
ENTERPRISING PRODUCTS, INC. HEREBY DISCLAIMS AND USER HEREBY WAIVES
ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO,
ALL IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE AND ALL
IMPLIED WARRANTIES OF MERCHANTABILITY. THE ENTERPRISING PRODUCTS,
INC. WEB SITE, HOCKEYHEADWAY.COM, IS PROVIDED “AS IS”
WITHOUT WARRANTY OF ANY KIND. Enterprising Products, Inc. does not
guarantee or warrant the accuracy, completeness or usefulness of the
Enterprising Products, Inc. WEB SITE. Enterprising Products, Inc.
does not make any warranty and User hereby waives any and all
warranties as to the results obtained from the services or as to the
accuracy or reliability of the Enterprising Products, Inc. WEB SITE.
User hereby acknowledges and agrees that use of the services shall be
at the sole and exclusive risk of User and subject to the
restrictions, terms and conditions, rules, regulations, policies,
applicable laws and the policy statement governing the services.
Enterprising Products, Inc. shall not be liable under any
circumstances for harm or damages resulting from or arising out of
User inability to use the services.
Section
5.03 – Inaccuracies: User hereby acknowledges that the
Data may contain errors, inaccuracies and omissions. User shall
assume any and all risk of loss, harm or damage associated with User
access to and use of the Enterprising Products, Inc. Technology.
Section
5.04 – Express Warranties: User hereby acknowledges and
agrees that Enterprising Products, Inc. (including officers,
employees, agents, directors and independent contractors of
Enterprising Products, Inc.) has not made or granted to User any
express warranties concerning the Enterprising Products, Inc.
Technology, excepting the warranty in Section 5.01.
Section
5.05 – Limitation of Damages: Enterprising Products, Inc.
shall not be liable to User for any lost profits or consequential,
exemplary, incidental or punitive damages, in connection with (i)
use, performance or operation of the Enterprising Products, Inc. Web
Site or Services; (ii) use, performance or operation of the Internet
or use of the Internet by User; and (iii) loss of Data, regardless of
the form of action, whether in contract or in tort, including
negligence, regardless of whether Enterprising Products, Inc. has
been advised of the possibility of such damages in advance or whether
such damages are reasonably foreseeable.
Section
5.06 – Remedies: The sole remedy for User for any reason
and for any cause of action whatsoever in connection with this
Agreement and the Enterprising Products, Inc. Web Site or Services,
regardless of the form of action, whether in contract or in tort,
including negligence, shall be modification of the Enterprising
Products, Inc. Web Site, as determined by Enterprising Products,
Inc..
Section
5.07 – Force Majeure: Enterprising Products, Inc. shall
not be liable to User for failing to perform its obligations
hereunder because of circumstances reasonably beyond the control of
Enterprising Products, Inc.. Such circumstances shall include
(without limitation) any acts or omissions of any government or
governmental authority, natural disaster, act of a public enemy, acts
of terrorism, riot, sabotage, labor disputes, power failure, delays
in transportation or deliveries of supplies or materials, acts of
God, computer failure, hardware failure, telecommunications failure,
software failure, failure of User to cooperate with the reasonable
requests of Enterprising Products, Inc., breach of this Agreement
by User, and any other events reasonably beyond the control of
Enterprising Products, Inc..
Section
5.08 – Content Warranty: User represents and warrants that
any and all information provided by User in connection with this
Agreement, the Password, Services, and the User Content are be true,
accurate, complete and current.
Section
5.09 – Indemnification: User shall release, defend,
indemnify and hold harmless Enterprising Products, Inc. from and
against any and all claims, liability, losses and damages arising in
connection with: (1) User access to the Enterprising Products, Inc.
Technology; (2) use of the Services by User; (3) the User Content;
and (4) breach of this Agreement by User.
Section
5.10 – Export Assurance: User shall not disclose, export,
distribute or transfer any Data to any third party individual or
entity or any division, affiliate or subsidiary of User located in
any country other than the United States. User shall not perform any
act in conflict with or in violation of the export laws and
regulations of the United States.
Section
5.11 – Loss of User Content: Programming, design errors,
maintenance of the Enterprising Products, Inc. Web Site or Services,
or unauthorized access to the Enterprising Products, Inc. Web Site or
Services may result in the loss of User Content. Enterprising
Products, Inc. shall not be responsible for any loss of User Content.
ARTICLE
VI: MISCELLANEOUS
Section
6.01 – Assurances: User represents and warrants that all
representations, warranties, recitals, statements and information
provided to Enterprising Products, Inc. under this Agreement
are true, correct and accurate as of the Effective Date.
Section
6.02 – Entire Agreement: This Agreement contains the
entire understanding of the parties relating to the Enterprising
Products, Inc. Technology and supersedes all previous verbal and
written agreements between Enterprising Products, Inc. and User
relating to the Enterprising Products, Inc. Technology. The Policy
Statement (as modified by Enterprising Products, Inc. from time to
time) is incorporated herein by this reference and made a part of
this Agreement.
Section
6.03 – Continuation: The terms and provisions of Articles
I, III, IV, V, and VI of this Agreement shall survive termination and
cancellation of this Agreement.
Section
6.04 – Amendments and Modifications: Excepting
modifications to the Policy Statement, any alteration, modification
or amendment of this Agreement shall be void unless such alteration,
modification or amendment is in writing and signed by the parties
hereto.
Section
6.05 – Severability: If a provision of this Agreement is
rendered invalid the remaining provisions shall remain in full force
and effect.
Section
6.06 – 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
6.07 – Counterparts: This Agreement may be executed in
multiple counterparts, each of which shall be deemed an original, but
all of which together shall constitute one and the same instrument.
Section
6.08 – Governing Law: This Agreement is governed by the
laws of the State of Minnesota, without regard to any rules of
conflict or choice of laws that require the application of laws of
another jurisdiction, and venue shall be Minnesota.
Section
6.09 – User Notice: All notices shall be in writing.
Notices to User shall be deemed delivered when delivered
electronically, by commercial overnight delivery service, by
Certified or Registered Mail - Return Receipt Requested - or by hand
to an address set forth for User as maintained in Enterprising
Products, Inc.’s records. Notices to User shall be deemed
given on the date notice is delivered electronically or by hand to
User or on the date of receipt by User (as evidenced in the case of
Certified or Registered Mail by Return Receipt), whichever occurs
first. Notices delivered to User electronically (including, without
limitation, electronic mail) shall be deemed written notices.
Section
6.10 – Enterprising Products, Inc. Notice: Notices to
Enterprising Products, Inc. shall be deemed delivered when delivered
by commercial overnight delivery service, Certified or Registered
Mail - Return Receipt Requested - or by hand to the person and
address set forth below for Enterprising Products, Inc.. Notices to
Enterprising Products, Inc. shall be deemed given on the date notice
is received by Enterprising Products, Inc. (as evidenced in the case
of Certified or Registered Mail by Return Receipt).
Company Address
Enterprising
Products, Inc. 10930 47th Ave. No.,
Plymouth,
MN 55442
Section
6.11 – Pronouns/Gender: Pronouns and nouns shall refer to
the masculine, feminine, singular or plural, as the context shall
require.
Section
6.12 – Equitable Remedies: The parties hereby acknowledge
that damages at law may be an inadequate remedy to Enterprising
Products, Inc.. In addition to all other remedies that may be
available at law or equity, Enterprising Products, Inc. shall have
the rights of specific performance and injunction in the event of a
breach or threatened breach of this Agreement by User.
Section
6.13 – Waiver: Waiver of a breach of this Agreement shall
not constitute a waiver of any other breach. All remedies under this
Agreement are in addition to equitable remedies and remedies provided
by law. 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
6.14 – Assignments: Any and all assignments of rights
hereunder by User shall be void.
Section
6.15 – Public Announcements: All public announcements
concerning the Enterprising Products, Inc. Technology or the
relationship of User and Enterprising Products, Inc. under this
Agreement shall be subject to the prior written approval of
Enterprising Products, Inc..
Section
6.16 – 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 Minneapolis, Minnesota. 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
MyTechnologyLawyer.com. Each party shall have the right of discovery
as set forth in the Federal Rules of Civil Procedure. The Arbitration
shall be administered by MyTechnologyLawyer.com.
Section
6.17 – Litigation Expense: In the event of litigation or
arbitration arising out of 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).