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Version date: June 8,2005
Version 1.2.1
Welcome to DataWeb. These Membership Terms and Conditions ("Terms
and Conditions") govern your use, in any manner, of the
development platform for building websites and web applications
for such websites, including the runtime engine, design tools,
and object model (the "Software"), and related hosting
services (the "Services") made available to you at
http://www.DataWeb.com (the "Site") by DataWeb.com,
Inc. ("DataWeb") and describe the terms and conditions
that apply to your use of the Software and Services. You must
register as a DataWeb Member ("Member") and accept
these Terms and Conditions in order to use the Software or Services.
We reserve the right to refuse service to any potential user
at our discretion. BY CLICKING ON THE "I ACCEPT" BUTTON
BELOW, REGISTERING AS A MEMBER, AND/OR USING THE SOFTWARE OR
SERVICES, YOU ACKNOWLEDGE THAT YOU HAVE READ AND AGREE TO BE
BOUND BY THE TERMS AND CONDITIONS CONTAINED HEREIN AS WELL AS
ALL POLICIES AND GUIDELINES INCORPORATED BY REFERENCE. IF YOU
DO NOT AGREE TO THESE TERMS AND CONDITIONS, DO NOT CLICK THE "I
ACCEPT" BUTTON, DO NOT REGISTER AND DO NOT USE THE SOFTWARE
OR SERVICES.
DataWeb reserves the right to change or modify any of the terms
and conditions contained in these Terms and Conditions and any
policy or guideline incorporated by reference at any time and
from time to time in its sole discretion, and to determine whether
and when any such changes apply to both existing or future customers.
Any change or modification will be effective upon posting of
the revisions on the Site. DataWeb will post a notice of such
change or modification to these Terms and Conditions on the Site
for thirty (30) days. DataWeb may post changes or modifications
to referenced policies without notice to you. IF YOU DO NOT AGREE
TO THE TERMS OF ANY MODIFICATION, DO NOT CONTINUE TO USE THE
SERVICES AND IMMEDIATELY NOTIFY DATAWEB OF YOUR TERMINATION OF
THE AGREEMENT THESE TERMS AND CONDITIONS CONSTITUTE IN THE MANNER
DESCRIBED IN SECTION 5.1 BELOW. Your continued use of the Software
or Services following DataWeb's posting of any change or modification
will constitute your acceptance of such change or modification.
1. Intellectual
Property; Licenses.
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1.1
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Software and Services. All materials,
including but not limited to any computer software
(in object and source code form), data or information
developed or provided by DataWeb or its suppliers
or agents pursuant to these Terms and Conditions,
and any know-how, methodologies, equipment or
processes used by DataWeb to provide the Software
and/or Services to you, including without limitation
all copyrights, trademarks, patents, trade secrets
and any other proprietary rights therein, shall
remain the sole and exclusive property of DataWeb,
or its suppliers or agents, as applicable. DataWeb
shall also maintain and control ownership of
all Internet protocol ("IP") numbers
and addresses that may be assigned to you by
DataWeb, and DataWeb reserves the right, in its
sole discretion, to change or remove any and
all such IP numbers and addresses at any time.
Subject to the Terms and Conditions, DataWeb
grants you a limited, nonexclusive, nontransferable,
revocable license to access and use the Software
(in object code form only) and Services in strict
accordance with the "Use Guidelines" set
forth in Section 2 below. This license will automatically
terminate at the time the Services are terminated
and you will have no further right to use the
Software or Services.
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1.2
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Member Content. Information, data, text, code, files,
music, sound, photographs, graphics, video, messages,
service or trademarks or other materials, but
not the selection and arrangement thereof ("Content"),
that you provide for inclusion in the website(s),
is your property.
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1.3
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Domain Name(s). If you provide DataWeb with a domain
name(s) it must be registered by you. You understand
that you and not DataWeb are responsible for
all fees, liabilities and obligations relating
to your domain name(s) and that your obligation
to indemnify DataWeb under the "Indemnity" section
of these Terms and Conditions.
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1.4
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Reservation of Rights. All rights,
title and ownership in the Software, Sample Applications,
Services and any other DataWeb intellectual property
not expressly granted herein are reserved by
DataWeb and Company shall not take any action
to jeopardize, limit or interfere with DataWeb's
ownership of and rights with respect to any of
the above.
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2. Use
Guidelines.
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2.1
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How the Services Work. DataWeb provides
you with the hosted development platform for
building customized Member Sites. The platform
provides a browser-based design environment and
an integrated web and database server programmable
through a single object model so that you can
build a website that incorporates custom database
functionality, scripting, membership services
and security. You acknowledge that you are responsible
for providing the hardware and accessories, as
well as the necessary capacity and connectivity
to properly use the Software and Services.
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2.2
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Applicable Policies. In addition to these Terms
and Conditions, the DataWeb Website Services Agreement
("Services Agreement") govern the general
policies for use of the Site and the DataWeb Privacy Policy ("Privacy
Policy") governs how DataWeb collects, stores,
processes and uses information associated with
your use of the Site, Software and Services.
The Services Agreement is available upon request
from DataWeb Corporate Offices in Seattle, Washington
and the Privacy Policy are posted at http://www.DataWeb.com
(or such other location as DataWeb may from time
to time designate) and may be updated or modified
from time to time.
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2.3
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Operation of Member Site. You acknowledge
and agree that (a) you are solely responsible
for your actions and the contents (including
all of your Content) of any Member Site created
or owned by you using the Software and/or Services;
(b) you are responsible for the security of your
password and login ID, for reporting any compromise
affecting the security of your password and/or
login ID, and for all activity by any user under
your password and/or account; (c) you are responsible
for all goods and services offered in connection
with your Member Site, all materials used or
displayed in connection with your Member Site
and all acts or omissions that occur at your
Member Site or in connection with your account
and/or password; (d) you are responsible for
complying with all trade regulations and laws,
both foreign and domestic; (e) you will display
on your Member Site full and accurate contact
information, including at a minimum your company
name, address, telephone and fax number and email
address and to update such information as necessary
to maintain its accuracy; and (f) you will not
resell, assign, lease or transfer your rights
or obligations under these Terms and Conditions
without DataWeb's prior express written permission.
You further agree that, in the event you collect
and/or store personal information from users
of your Member Site, you will (x) fully and clearly
disclose to all such users your information-collection,
storage, and use policies; (y) collect, store
and use such information only in a manner consistent
with your disclosures, applicable laws and government
regulations; and (z) provide such users with
an easily accessible mechanism for opting-out
of receiving mailings from you and for removing
all information relating to such users from your
databases and other records.
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2.4
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Acceptable Use. You agree not to, directly or indirectly
through agents, representatives or affiliated
persons or entities, (a) upload or distribute
in any way Internet viruses, worms, Trojan horses,
corrupted files, or any other software or programs
that may damage the operation of another entity's
computer or system, or otherwise disrupt or interfere
with the ability of others to use the Services
or Software; (b) use the Services or Software
for illegal purposes; (c) access without authorization
or attempt to penetrate security measures of
computers, accounts, or networks belonging to
others; (d) post, promote or transmit through
the Services or Software any unlawful, harassing,
libelous, threatening, obscene, pornographic,
hateful, or otherwise objectionable material
of any kind or nature, or material that may encourage
conduct that could constitute a criminal offense
or give rise to civil liability; (e) send unsolicited
bulk or commercial messages (a.k.a. "spam")
over the Internet or forge or misrepresent message
headers, whether in whole or part, to mask the
originator of a message; (f) advertise, transmit
or otherwise make available any software, program,
product or service that is designed to violate
the Use Guidelines or the Terms and Conditions;
(g) modify, adapt, alter, translate or make derivative
works based on the Software except as expressly
authorized in advance in writing by DataWeb;
(h) disassemble, reverse engineer or decompile
the Software or otherwise attempt to discover
any portion of the source code, object code or
trade secrets relating to the Software; and/or
(i) remove, obscure or alter any notice of patent,
copyright, trade secret, trademark, or other
proprietary right related to the Software or
Services; or (j) frame or display the DataWeb
design tools or homepage inside another website.
Further, you agree to: (x) comply with all laws
regarding the transmission of technical data
exported from the U.S. through the Services;
and (y) comply with all regulations, policies
and procedures of networks connected to the Services
and Software.
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3. Enforcement.
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3.1
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Investigation of Violations. DataWeb may
investigate any complaints or violation of these
Terms and Conditions or its policies and take
any action it deems appropriate under the circumstances
to protect its systems, facilities, customers
and/or third parties.
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3.2
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Actions. DataWeb may, in its sole discretion,
restrict or remove from its servers any Content
or Member Site that violates these Terms and
Conditions or related policies, or is otherwise
objectionable or in potential violation of any
law, including any intellectual property law.
In the event DataWeb becomes aware of any such
possible violation by you, DataWeb may immediately
take corrective action, including but not limited
to (a) issuing warnings; (b) suspending or terminating
the Services or user access to the Service or
content on a Member Site. It is DataWeb's policy
to terminate repeat infringers. The above-stated
rights of action, however, do not obligate DataWeb
to monitor or exert editorial control over the
information made available for distribution via
the Services. In the event DataWeb takes corrective
action due to such possible violation in relation
to your account, you shall not be entitled to
any refund of fees due and/or paid hereunder.
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3.3
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Disclosure Rights. In order to comply with applicable
laws and governmental requests, and/or to protect
DataWeb's systems, facilities, customers and/or
third parties, DataWeb may access and disclose
any information it considers necessary or appropriate,
including without limitation user profile information,
IP addressing and traffic information, usage
history, and content residing on DataWeb's servers
and systems. Further, DataWeb reserves the right
to report any activity that it suspects violates
any law or regulation to appropriate law enforcement
officials or other appropriate third parties.
In the event of any inconsistency between DataWeb's
right to disclose under this section and the
terms of DataWeb's Privacy Policy, DataWeb's
right to disclose under this section will control.
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4. Fees;
Payment Terms.
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4.1
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Fees. You agree to pay all fees incurred
under your account at the then current DataWeb
prices, which are listed in the
DataWeb Pricing List and may
be changed from time to time. Such prices are
exclusive of all applicable taxes, which you
agree to pay (except for taxes based on DataWeb's
net income).
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4.2
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Payment Terms. For users on Service plans requiring
monthly fees, you shall have the option to either
(a) pay DataWeb’s then-current monthly fee in
order to continue receiving the Service, (b)
terminate the Agreement as specified below, or
(c) reduce your usage to Starter Plan limitations.
In response to DataWeb’s correspondence or upon
registration, you shall inform DataWeb of the
option you choose. Subscribers whose usage exceeds
the limitations of the Starter Plan will be required
to pay the then-current monthly fee correspondent
to the selected paying plan. Such monthly fee
shall be due and payable to DataWeb by credit
card in advance on the billing date as displayed
in the Service.
DataWeb reserves the right to suspend the accounts of
Users who fail to make payments on their selected
paying plan. All fees are non-refundable, in
whole or in part, even if the Service is suspended,
cancelled or transferred prior to the end of
your then current Service month. You must notify
DataWeb of any changes to your credit card account,
your billing address or any information that
may prohibit DataWeb from processing payment
through your credit card. If, for any reason,
we are unable to process charges to your credit
card, late charges of one and one-half percent
(1.5%) per month or the maximum allowable under
applicable law shall also become payable by you
to DataWeb within thirty (30) days from the date
payment was due. In addition, if such inability
to process payment persists for longer than 30
days after the applicable due date, such will
be deemed a material breach of the Terms and
Conditions, and DataWeb may, at its sole discretion,
either suspend or terminate provision of the
Software and/or access to the Services, which
will not relieve you of your obligation to pay
past due fees, late charges, interest, and any
collection costs.
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5. Termination.
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5.1
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Your Right to Terminate Your Membership. You may terminate
your membership at any time by emailing accounting@DataWeb.com. Transferring
a domain name away from DataWeb does not automatically
terminate your account.
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5.2
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DataWeb's Right to Terminate Your Membership. DataWeb may
terminate your use of the Services, the Software
and/or your membership immediately upon written
notice thereof if, in its sole discretion, DataWeb
determines that (a) you or your employees or
agents have violated or acted inconsistently
with the terms of these Terms and Conditions
or any applicable law, policy, or regulation;
(b) you have violated the rights of DataWeb,
a DataWeb Member or Members, or any third party;
(c) you have failed to access your account at
least once during any three-month period after
activating such account; (d) continued provision
of the Services would violate any present or
future law, regulation or policy of any applicable
government; or (e) DataWeb discontinues this
Services offering. In addition, DataWeb may terminate
your membership for its convenience upon sixty
(60) days' notice.
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5.3
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Liability and Obligations on Termination. You acknowledge
and agree that should the Terms and Conditions
be terminated for any reason (a) DataWeb will
not be liable to you because of such termination
for compensation, reimbursement or damages on
account of any loss of profits, anticipated sales,
goodwill or on account of expenditures, investments,
leases or commitments in connection with your
business, or for any other reason whatsoever
flowing from such termination or relating to
your Member Site; (b) DataWeb's provision of
the Services, including hosting services, to
you will immediately cease; (c) DataWeb may delete
all of your Content and other information from
its system and servers, and will return a copy
of your Content to you only upon your written
or email request received by DataWeb within thirty
(30) days of the effective date of termination
and not otherwise; and (d) any termination of
these Terms and Conditions shall not relieve
you of any obligations to pay fees and costs
accrued prior to the termination date and any
other amounts owed by you to DataWeb as provided
in these Terms and Conditions. Any costs incurred
by DataWeb in forwarding Content material to
a customer will be paid for by the customer.
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6. Representations
and Warranties. You warrant, represent, and covenant to DataWeb that
(a) if you are an individual, you are at least eighteen (18)
years of age; (b) you possess the legal right and ability to
enter into these Terms and Conditions; (c) you will use the Services
only for lawful purposes and in accordance with these Terms and
Conditions (without limitation, including the Use Guidelines)
and all applicable policies; (d) you will be responsible, financially,
legally and otherwise, for all use under your account and/or
password; (e) you have acquired or will acquire all authorization(s)
necessary for hypertext links to third-party websites or other
content; (f) you have verified or will verify the accuracy of
materials distributed or made available for distribution via
the Services, including, without limitation, your Content, descriptive
claims, warranties, guarantees, nature of business, and address
where business is conducted; and (g) your Content does not and
will not infringe or violate any right of any third party (including
any intellectual property rights) or violate any applicable law,
regulation or ordinance.
7. Disclaimed
Warranties. You acknowledge and expressly agree that DataWeb exercises
no control over, and accepts no responsibility for, the information
passing through DataWeb's host computers, network hubs and points
of presence, or the Internet. ALL SERVICES PROVIDED HEREUNDER
ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS
AND WITHOUT WARRANTY AGAINST FAILURE OF PERFORMANCE INCLUDING,
WITHOUT LIMITATION, ANY FAILURE DUE TO COMPUTER HARDWARE OR COMMUNICATION
SYSTEMS. EXCEPT AS EXPRESSLY PROVIDED IN THESE TERMS AND CONDITIONS,
DATAWEB DOES NOT MAKE AND HEREBY DISCLAIMS, AND YOU HEREBY WAIVE
ALL RELIANCE ON, ANY REPRESENTATIONS OR WARRANTIES, ARISING BY
LAW OR OTHERWISE, REGARDING THE SERVICES, INCLUDING, WITHOUT
LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR
A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR ARISING FROM COURSE
OF DEALING, COURSE OF PERFORMANCE OR USAGE IN TRADE. WITHOUT
LIMITING THE FOREGOING, DATAWEB SPECIFICALLY DISCLAIMS ANY REPRESENTATION
OR WARRANTY THAT THE SERVICES OR SOFTWARE WILL MEET YOUR REQUIREMENTS,
THAT THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE,
OR THAT DEFECTS IN THE SOFTWARE OR SERVICES WILL BE CORRECTED.
YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT THE USE OF THE SERVICE
IS DONE AT YOUR OWN RISK AND THAT YOU ARE SOLELY RESPONSIBLE
FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM, OR LOSS OF DATA THAT
IN ANY WAY RELATES TO YOUR USE OF THE SERVICES OR SOFTWARE.
8. Limitation;
Exclusion of Liability.
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8.1
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Limitations. IN NO EVENT SHALL DATAWEB HAVE ANY
LIABILITY FOR UNAUTHORIZED ACCESS TO, OR ALTERATION,
THEFT OR DESTRUCTION OF INFORMATION DISTRIBUTED
OR MADE AVAILABLE FOR DISTRIBUTION VIA THE SERVICES
THROUGH ACCIDENT, FRAUDULENT MEANS OR DEVICES.
DATAWEB SHALL HAVE NO LIABILITY WITH RESPECT
TO DATAWEB'S OBLIGATIONS UNDER THESE TERMS AND
CONDITIONS OR OTHERWISE FOR CONSEQUENTIAL, EXEMPLARY,
SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES EVEN
IF DATAWEB HAS BEEN ADVISED OF THE POSSIBILITY
OF SUCH DAMAGES. SOME STATES DO NOT ALLOW THE
LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL
OR CONSEQUENTIAL DAMAGES SO THE FOREGOING LIMITATION
OR EXCLUSIONS MAY NOT APPLY TO YOU. IN ANY EVENT,
THE LIABILITY OF DATAWEB TO YOU FOR ANY REASON
AND UPON ANY CAUSE OF ACTION SHALL BE LIMITED
TO THE AMOUNT ACTUALLY PAID TO DATAWEB BY YOU
UNDER THESE TERMS AND CONDITIONS DURING THE THREE
(3) MONTHS IMMEDIATELY PRECEDING THE DATE ON
WHICH SUCH CLAIM ACCRUED. THIS LIMITATION APPLIES
TO ALL CAUSES OF ACTION IN THE AGGREGATE, INCLUDING,
WITHOUT LIMITATION, BREACH OF CONTRACT, BREACH
OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATION,
AND OTHER TORTS. THE FEES FOR THE SERVICES SET
BY DATAWEB HEREUNDER ARE BASED UPON THIS ALLOCATION
OF RISK. ACCORDINGLY, YOU HEREBY RELEASE DATAWEB
FROM ANY AND ALL OBLIGATIONS, LIABILITIES, AND
CLAIM IN EXCESS OF THE LIMITATION STATED IN THIS
SECTION 8.1.
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8.2
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Interruption of Service. You hereby
expressly acknowledge and agree that DataWeb
will not be liable for any temporary delay, outages
or interruptions of the Services or your use
of the Software. Further, you acknowledge and
agree that DataWeb shall not be liable for any
delay or failure to perform its obligations under
these Terms and Conditions, where such delay
or failure results from any act of God or other
cause beyond its reasonable control (including,
without limitation, any mechanical, electronic,
communications or third-party supplier failure).
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9. Indemnification. You hereby release,
hold harmless, and agree to indemnify DataWeb and its affiliates
(and their respective employees, directors and representatives)
against any and all allegations, claims, actions, proceedings,
suits, liabilities, damages, settlements, penalties, fines, costs
or expenses (including, without limitation, reasonable attorneys'
fees and other dispute resolution expenses) incurred by DataWeb,
arising out of or relating to (a) your violation or breach of
any term, condition, representation or warranty of these Terms
and Conditions or any applicable policy including the Use Guidelines
set forth in Section 2 hereof; (b) your improper or illegal use
the Services or Software; (c) your violation, alleged violation,
or misappropriation of any intellectual property right (including,
without limitation, trademark, copyright, patent or trade secrets)
or non-proprietary right of a third party (including, without
limitation, defamation, libel, violation of privacy or publicity);
and/or (d) property damage or personal injury arising from your
use of the Services or Software.
10. General
Provisions.
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10.1
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Entire Agreement. These Terms and Conditions,
in conjunction with all policies incorporated
herein by reference and any Exhibits attached
hereto which reference these Terms and Conditions
and are executed by the parties' duly authorized
representatives, constitute the entire agreement
between you and DataWeb with respect to the subject
matter hereof and there are no representations,
understandings or agreements which are not fully
expressed in these Terms and Conditions and the
related policies.
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10.2
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No Fiduciary Relationship; No Third-Party Beneficiaries. Neither party is the agent, fiduciary, trustee
or other representative of the other party. Nothing
expressed or mentioned in or implied from these
Terms and Conditions is intended or shall be
construed to give to any person other than the
parties hereto any legal or equitable right,
remedy or claim under or in respect to these
Terms and Conditions. These Terms and Conditions
and all of the representations, warranties, covenants,
conditions and provisions hereof are intended
to be and are for the sole and exclusive benefit
of the parties hereto.
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10.3
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Public Agreement. Unless specifically prohibited,
this agreement is considered public and non-confidential,
and may be referenced to a third party. If either
party requires confidentiality, that party shall
inform the other by written notice. Upon receipt
of written notification the agreement shall be
considered private and confidential.
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10.4
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Amendments. Except as expressly provided in these
Terms and Conditions, no amendment, change, waiver,
or discharge hereof shall be valid unless in
writing and signed by the parties.
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10.5
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Choice of Law and Forum. THESE TERMS
AND CONDITIONS WILL BE GOVERNED BY THE LAWS OF
THE UNITED STATES AND THE STATE OF WASHINGTON,
WITHOUT REFERENCE TO RULES GOVERNING CHOICE OF
LAWS. ANY ACTION RELATING TO THESE TERMS AND
CONDITIONS MUST BE BROUGHT IN THE FEDERAL OR
STATE COURTS LOCATED IN SEATTLE, WASHINGTON,
AND YOU IRREVOCABLY CONSENT TO THE JURISDICTION
OF SUCH COURTS.
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10.6
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Non-Assignment. You may not assign these Terms and
Conditions or any right or obligation hereunder,
by operation of law or otherwise, without DataWeb's
prior express written consent. DataWeb may assign
its rights and obligations under these Terms
and Conditions, and may utilize affiliates and/or
agents in performing its duties and exercising
its rights hereunder, without your consent. Subject
to the restriction set forth in this Section
10.6, these Terms and Conditions will be binding
on, inure to the benefit of, and be enforceable
against the parties and their respective successors
and assigns.
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10.7
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No Waiver. DataWeb's failure to enforce the
strict performance of any provision of these
Terms and Conditions will not constitute a waiver
of DataWeb's right to subsequently enforce such
provision or any other provisions of these Terms
and Conditions.
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10.8
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Severability. Should any term or provision hereof
be deemed invalid, void or unenforceable either
in its entirety or in a particular application,
the remainder of these Terms and Conditions shall
nonetheless remain in full force and effect and,
if the subject term or provision is deemed to
be invalid, void or unenforceable only with respect
to a particular application, such term or provision
shall remain in full force and effect with respect
to all other applications.
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10.9
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Healthcare Information: You acknowledge
and agree that DataWeb, related Services, and
Content are not "HIPAA-ready" or "HIPAA-compliant" and
will not assist with or ensure compliance with
HIPAA, and that you are solely responsible for
using the DataWeb Platform, related Services
and Content in a manner consistent with all applicable
federal and state privacy laws relating to medical
or health information.
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10.11
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Survival. The following provisions of these
Terms and Conditions will survive the termination
or expiration of these Terms and Conditions:
Section 1 ("Intellectual Property; Licenses");
Section 2 ("Use Guidelines"), Section
3 ("Enforcement"); Section 4 ("Fees;
Payment Terms"); Section 5 ("Termination");
Section 6 ("Representations and Warranties");
Section 7 ("Disclaimed Warranties");
Section 8 ("Limitation; Exclusion of Liability");
Section 9 ("Indemnification"); and
Section 10 ("General Provisions").
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10.11
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Headings. The
section headings used herein are for reference
and convenience only and shall not enter into
the interpretation hereof.
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