SEROTEK CORPORATION, ("SEROTEK") PROVIDES ITS SOFTWARE TITLED SYSTEM ACCESS MOBILE NETWORK (THE “SOFTWARE”) AND ACCESS TO E-MAIL, NEWS, DESCRIBED VIDEO SERVICE FOR MOVIES, BLOGS, PODCASTS, AND STREAMING RADIO (THE “SERVICES”) SUBJECT TO THE TERMS AND CONDITIONS SET FORTH IN THIS SOFTWARE LICENSE AND SERVICE LEVEL AGREEMENT (THE “AGREEMENT”). PLEASE READ THE TERMS OF THIS AGREEMENT CAREFULLY. AS USED IN THIS AGREEMENT, “YOU” AND “YOUR” REFER TO THE PERSON OR ENTITY USING THE SOFTWARE OR SERVICES. SEROTEK AND YOU ARE COLLECTIVELY REFERRED TO AS THE “PARTIES” AND INDIVIDUALLY AS A “PARTY.”
BY CLICKING THE “AGREE" BUTTON, YOU ARE AGREEING TO BE BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, CLICK "DISAGREE.” NOTWITHSTANDING THE FOREGOING, USING THE SOFTWARE INDICATES YOUR ACCEPTANCE OF THESE LICENSE TERMS.
Except as provided in this Agreement, You shall not: (i) copy, reproduce, display, distribute, transfer, time-share, rent, lend, or loan any portion of the Software; (ii) translate, adapt, modify, alter, combine with other software, or prepare derivative works based in whole or in part on the Software; (iii) use the Software in a computer-based services business; (iv) transmit the Software over a network, by telephone, or electronically using any means; or (v) reverse engineer, decompile, disassemble, or otherwise reduce the Software to a human-perceivable form without the express written permission of Serotek.
You acknowledge and agree that the Software contains proprietary and copyright protected material and, in its human-perceivable form, contains trade secrets and other intellectual property rights exclusively owned by Serotek. You agree not to directly or indirectly for any reason whatsoever disclose, provide, or otherwise make available, in whole or in part, the Software to any third-party. You agree that Serotek is and shall remain the sole and excusive owner of all rights, title, and interest in and to the Software including any corrections, bug fixes, enhancements, updates, modifications including any patents, copyrights, trade secrets, and any other intellectual and industrial property rights related thereto. You shall not take any action inconsistent with such ownership. This Agreement does not grant You any rights to any patents, copyrights, trade secrets, tradenames, trademarks (whether registered or unregistered), or any other rights or licenses with respect to the Software. If You create any derivative works in violation of this Agreement, based in whole or in part on the Software, Serotek shall be the lawful owner of all such derivative works, which You hereby assign to Serotek free and clear of any encumbrances, and any proceeds or profits derived therefrom. You agree to maintain the secrecy of the contents of the Software and implement adequate safeguards to prevent and protect the contents of the Software from unauthorized use or disclosure.
You agree to pay Serotek for the Licenses and access to the Services at the prices and according to the payment terms set forth on the Serotek website located at www.serotek.com (the “Site”), which are expressly incorporated into this Agreement. Serotek has the right to change the prices and payment terms set forth on the Site at any time and for any reason without providing You with notice of the change.
The Services may now or in the future allow You to submit text, graphics, images, video, audio and other material at the direction of other authorized users of the Services (collectively “User Content”) and permit the hosting, sharing, or publishing of such User Content. You shall be solely responsible for User Content You submit and the consequences of Serotek’s posting or publishing of such User Content. In connection with any User Content You submit, You affirm, represent, and warrant that: (i) You own or have the necessary licenses, rights, consents, and permissions to use and authorize Serotek to use all patent, trademark, trade secret, copyright or other proprietary rights in and to any and all User Content to enable inclusion and use of the User Content in the manner contemplated by the Services and this Agreement; and (ii) You have the written consent, release, or permission to use the name, image, or likeness of each individual identified in the User Content. By submitting the User Content to Serotek, You hereby grant Serotek a worldwide, non-exclusive, royalty-free, irrevocable, sublicenseable, and transferable license to use, reproduce, distribute, prepare derivative works of, modify, display, and perform all or any portion of the User Content in connection with the Services and Serotek’s business. You acknowledge and agree that other authorized users of the Services are third-party beneficiaries of the license between You and Serotek regarding the User Content; therefore, You also hereby grant each authorized user of the Services a non-exclusive license to access Your User Content through the Services, and to use, reproduce, distribute, prepare derivative works of, display and perform such User Content as permitted through the functionality of the Services and under this Agreement. Serotek or its agents may maintain copies of any User Content for purposes of backup, security, or maintenance, or as required by law.
IN CONNECTION WITH USER CONTENT, YOU FURTHER AGREE THAT YOU WILL NOT SUBMIT MATERIAL THAT IS COPYRIGHTED, PROTECTED BY TRADE SECRET, OR OTHERWISE SUBJECT TO THIRD-PARTY PROPRIETARY RIGHTS, INCLUDING PRIVACY AND PUBLICITY RIGHTS, UNLESS YOU ARE THE OWNER OF SUCH RIGHTS OR HAVE PERMISSION FROM THEIR RIGHTFUL OWNER TO POST THE MATERIAL AND TO GRANT SEROTEK ALL OF THE LICENSE RIGHTS GRANTED IN THIS PARAGRAPH.
The Services may, from time to time, include discussion forums and interactive areas. Any forums and interactive areas of the Services shall be used only for non-commercial purposes. By using the forums or interactive areas, You agree not to do any of the following: (i) upload, post, or transmit any content for purposes of political campaigning or commercial solicitation or that is unlawful, threatens another person or entity, defamatory, vulgar, obscene, libelous, invades the privacy of another, or otherwise objectionable; (ii) impersonate another authorized user of the Services including an employee of Serotek; (iii) intentionally or unintentionally violate any local, state, or federal law; (iv) upload, post or transmit any software of files that contain software viruses or other harmful computer code; (v) interfere with the operation of Serotek’s Web servers or other computers or Internet or network connections; (vi) upload, post, or transmit any information, pictures, graphics or other content that violates the copyright, patent, trademark, or trade secret rights of another party; (vii) upload, post or transmit any unsolicited or unauthorized advertising, including spam; (viii) alter, damage or delete any content or other communications that is not Your own or otherwise interfere with the ability of authorized users of the Services to access the Services.
Do not use the Services as a means of submitting information You consider to be confidential or proprietary. Except as otherwise expressly provided herein or in a written agreement with Serotek applicable to Your particular use of the Services, any submission of material by You will be considered a contribution to Serotek for further use in its sole discretion, regardless of any proprietary claims or reservation of rights noted in the submission. Accordingly, You agree that any material, including, but not limited to, questions, comments, suggestions, ideas, plans, notes, drawings, original or creative materials or other information, provided by You in the form of e-mail or submissions to Serotek, or postings made in connection with the use of the Services, are not confidential. Serotek shall be entitled to the unrestricted use of this material for any purpose, commercial or otherwise, without acknowledgment or compensation to You. The submission of any material to Serotek, irrevocably waives any and all "moral rights" in such materials, including the rights of paternity and integrity.
Serotek does not endorse any User Content or any opinion, recommendation, or advice expressed therein, and expressly disclaims any and all liability in connection with any User Content. Serotek does not permit copyright infringing activities and infringement of intellectual property rights through the use of the Services, and will remove all User Content if properly notified that such User Content infringes on another's intellectual property rights. Serotek may remove any User Content without prior notice, and may also terminate Your authorization to use all or part of the Services if You are determined to be a repeat infringer. A repeat infringer is anyone who has been notified of infringing activity more than once or has had any User Content removed more than twice. Serotek also reserves the right to decide whether User Content is appropriate and complies with this Agreement for violations other than copyright infringement and violations of intellectual property law, such as, but not limited to, pornography, obscene or defamatory material, or excessive length. Serotek may remove such User Content or terminate Your access for uploading such material in violation of this Agreement at any time, without prior notice and at its sole discretion.
You shall be solely responsible for providing, maintaining and ensuring all hardware, software, electrical and other physical requirements for Your use of the Services, including, without limitation, telecommunications, Internet access connections, Web browsers or other equipment, programs and services required to access and use the Services.
You acknowledge and agree that at times some or all of the Services may be unavailable for any reason whatsoever, including, without limitation: (i) equipment malfunctions; (ii) periodic maintenance procedures or repairs that Serotek may undertake from time to time; or (iii) causes that are beyond the control of Serotek or that are not reasonably foreseeable.
SEROTEK AND ITS AGENTS, OFFICERS, DIRECTORS, EMPLOYEES, SUCCESSORS, ASSIGNS, AND AFFILIATES PROVIDE THE SOFTWARE AND SERVICES “AS IS WITH ALL FAULTS” WITHOUT WARRANTY OF ANY KIND, AND SEROTEK HEREBY DISCLAIMS ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE SOFTWARE AND SERVICES WHETHER EXPRESS OR IMPLIED AND EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, AND NON-INFRINGEMENT. SEROTEK DOES NOT WARRANT AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF THE SOFTWARE OR SERVICES, THAT THE FUNCTIONS CONTAINED IN THE SOFTWARE WILL MEET YOUR REQUIREMENTS, THAT THE SOFTWARE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, THAT THE OPERATION OF THE SOFTWARE OR SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS IN THE SOFTWARE WILL BE CORRECTED, OR THAT THE FUNCTIONS CONTAINED IN THE SOFTWARE AND SERVICES WILL FUNCTION WITH OTHER SOFTWARE OR HARDWARE, OR WITHIN A SYSTEM. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY SEROTEK OR A SEROTEK AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO THE ABOVE EXCLUSION MAY NOT APPLY.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND REGARDLESS OF WHETHER ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE, IN NO EVENT SHALL SEROTEK OR ITS AGENTS, OFFICERS, DIRECTORS, EMPLOYEES, SUCCESSORS, ASSIGNS, OR AFFILIATES BE LIABLE FOR PERSONAL INJURY, OR ANY INCIDENTAL, SPECIAL, INDIRECT, CONSEQUENTIAL, OR PUNITIVE DAMAGES, WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOST TIME, LOST SAVINGS, LOSS OF DATA, DAMAGED DATA, INACCURATE DATA, FAILURE OF TELECOMMUNICATION SERVICES, LOST CONFIDENTIAL OR OTHER INFORMATION, OR FOR BUSINESS INTERRUPTION OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES ARISING OUT OF OR RELATED TO YOUR USE OR INABILITY TO USE THE SOFTWARE OR SERVICES, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (TORT, CONTRACT OR OTHERWISE) AND EVEN IF SEROTEK HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION MAY NOT APPLY. IN NO EVENT SHALL SEROTEK'S TOTAL LIABILITY FOR ALL DAMAGES (OTHER THAN AS MAY BE REQUIRED BY APPLICABLE LAW IN CASES INVOLVING PERSONAL INJURY) EXCEED THE AMOUNT OF MONIES PAID FOR THE LICENSES AND ACCESS TO THE SERVICES. THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
You agree to indemnify, hold harmless and defend Serotek, its agents, officers, directors, employees, successors, assigns, and affiliates, from and against any action, cause, claim, damage, debt, demand or liability, including reasonable costs and attorneys’ fees, asserted by any person, arising out of or relating to the breach of this Agreement and or the unauthorized use of the Software or Services.
This Agreement is effective as of the date of Your acceptance of the terms and conditions of this Agreement and will remain in effect until terminated (the “Term”). You may terminate this Agreement upon 30-days prior written notice to Serotek of Your intent to terminate the Agreement. Serotek may terminate this Agreement by giving You notice of the termination of the Agreement upon a breach of Paragraphs 1-3, 5-7, 9, or 17.
Upon termination of this Agreement for any reason, the Licenses granted to You in Paragraph 1 will cease and You agree to immediately remove the Software from all computers and thumb drives in Your possession.
You may not use or otherwise export or re-export the Software except as authorized by United States law and the laws of the jurisdiction where the Software was obtained. In particular, but without limitation, the Software may not be exported or re-exported (1) into (or to a national or resident of) any U.S. embargoed countries (currently Afghanistan, Belarus, Burma, Cote d’Ivoire (Ivory Coast), Cuba, Democratic Republic of the Congo, Eritrea, Haiti, Iran, Iraq, Libya, North Korea, Rwanda, Somalia, Sudan, Syria, Vietnam, Yemen, and Zimbabwe) or (2) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person's List or Entity List. By using the Software, You represent and warrant that You are not located in, under control of, or a national or resident of any such country or on any such list or in any such position contemplated by this section not able to receive the Software.
If You are acquiring the Software on behalf of any unit or agency of the United States Government, it is provided to the Government only with restricted and limited rights. Use, duplication, or disclosure by the Government is subject to restrictions set forth in FAR §§ 52-227-14 and 52-227-19 or DFARS § 52.227-7013(C)(1)(ii), as applicable. The Software is a "Commercial Item," as that term is defined at 48 C.F.R. § 2.101, consisting of "Commercial Computer Software" as such term is used in 48 C.F.R. §§ 12.212 or 227.7202, as applicable.
You acknowledge and agree that breach of any of the obligations under this Agreement shall cause irreparable injury and shall entitle Serotek to equitable relief or remedy. The pursuit or securing of any such equitable relief shall not prohibit or limit Serotek to seek or obtain any other remedy provided under this Agreement or by law. If any or all of the above covenants or agreements are held to be unenforceable because of the scope or duration of such covenant or agreement or the area covered thereby, You agree that the court making such determination shall have the power to reduce the scope, duration and area of such covenant or agreement to the extent that allows the maximum scope, duration and area permitted by applicable law. The covenants, agreements and remedies provided herein are in addition to, and are not to be construed as a replacement for or limited by, the rights and remedies otherwise available to Serotek including, but not limited to, those rights and remedies contained in the Uniform Trade Secrets Act, or its state counterparts.
This Agreement shall be construed and enforced in accordance with the laws of the State of Minnesota. All actions, claims or disputes arising under or relating to this Agreement shall be brought in the federal or state courts in the State of Minnesota. The Parties irrevocably submit and consent to the exercise of subject matter jurisdiction and personal jurisdiction over each Party by the federal and/or state courts in the State of Minnesota. The Parties hereby irrevocably waive any and all objections which any Party may now or hereafter have to the exercise of personal and subject matter jurisdiction by the federal or state courts in the State of Minnesota and to the venue of any such suit, action, or proceeding brought in any such federal or state court in the State of Minnesota. Should You breach any of the terms of this Agreement, You hereby agree to pay the reasonable attorneys’ fees incurred by Serotek in enforcing the terms of this Agreement. The attorneys’ fees shall be paid by You irrespective of any damages recovered or any relief afforded to Serotek.
This Agreement states the Parties' entire agreement and understanding of the subject hereof. This Agreement supersedes all prior understanding and agreements. Any prior agreement or understandings between the Parties is null and void.
Serotek shall have the right, at any time and without notice, to add to or modify the terms of this Agreement.
No waiver of any term, provision, or condition of this Agreement, whether by conduct or otherwise, in any one or more instances, shall be deemed to be, or shall constitute, a waiver of any other term, provision or condition hereof, whether or not similar, nor shall such waiver constitute a continuing waiver of any such term, provision or condition hereof. No waiver shall be binding unless executed in writing by the party making the waiver
If any provision or clause of this Agreement as applied to either Party or to any circumstances, shall be adjudged by a court of competent jurisdiction to be invalid or unenforceable, said adjudication shall in no way affect any other provision of this Agreement, the application of such provision in any other circumstances, or the validity or enforceability of this Agreement.
You may not assign Your rights or delegate Your duties under this Agreement without Serotek’s written consent. Any attempted assignment or delegation by You without the required consent is void. Notwithstanding the foregoing, Serotek may assign this Agreement to, without limitation, an affiliate, subsidiary, third party, or successor without Your prior consent.
Notwithstanding the termination of this Agreement, the Parties shall be required to carry out any provision hereof that contemplates performance subsequent to such termination, and such termination shall not affect any liability or other obligation that have accrued prior to such termination, including, but not limited to, any liability for loss or damage on account of a prior breach. Without limiting the generality of the foregoing, the Parties specifically agree that the rights and duties contemplated in Paragraphs 4-7, and 9-12 shall survive termination of this Agreement for any reason.