WHEREAS, The powerhorseshop.com has developed and owns that certain The powerhorseshop.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 powerhorseshop.com Web Site and use the Services (as defined hereinafter) in accordance with the terms and provisions of this Agreement; and
WHEREAS, The powerhorseshop.com desires to provide Users (as defined hereinafter) access to the powerhorseshop.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 The powerhorseshop.com 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:
(1) 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.
(2) Associates: The term “Associates” shall mean employees of The powerhorseshop.com and independent contractors hired by powerhorseshop.com
(3) Authorized Person: The term “Authorized Person” shall mean a person or organization who is authorized in writing by The powerhorseshop.com to receive Proprietary Information and who agrees to maintain the propriety and confidentiality of such Proprietary Information.
(4) Client: The term “Client” shall mean an individual or organization that has engaged The powerhorseshop.com to perform services as of the Effective Date.
(5) 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.
(6) Documentation: The term “Documentation” shall mean any and all written manuals, user’s guides, and Policy Statements concerning the Data and The powerhorseshop.com Web Site as provided to User in printed or electronic form.
(7) Effective Date: The term “Effective Date” shall mean the first date by which The powerhorseshop.com assigns a Password to User.
(8) Internet: The term “Internet” shall mean that certain global network of computers commonly referred to as the Internet.
(9) Licensed Content: The term “Licensed Content” shall mean third party Technology incorporated in whole or part into the powerhorseshop.com Technology.
(10) The powerhorseshop.com Technology: The term “The powerhorseshop.com Technology” shall mean the Password, Data, The powerhorseshop.com Web Site, System, Documentation, and any and all Technology developed by or for powerhorseshop.com
(11) The powerhorseshop.com Web Site: The term “The powerhorseshop.com Web Site” shall mean that certain web site developed by or for powerhorseshop.com , 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 powerhorseshop.com Web Site and used or stored on the System.
(12) Password: The term “Password” shall mean that certain user name and password assigned by powerhorseshop.com to User for purposes of accessing the powerhorseshop.com Web Site and Services.
(13) Policy Statement: The term “Policy Statement” shall mean that certain written statement of policies (in printed or electronic form) concerning User access to the powerhorseshop.com Technology and use of the Services as may be adopted by powerhorseshop.com and as modified by powerhorseshop.com from time-to-time.
(14) Proprietary Information: The term “Proprietary Information” shall mean the Password, Data, Documentation, Policy Statement, and any and all information in connection with the powerhorseshop.com Technology which is disclosed to User by The powerhorseshop.com or learned or obtained by User and is not: (i) conveyed to User by a third party; (ii) released by The powerhorseshop.com without restriction; (iii) independently developed by User; and (iv) required by Court Order to be released by User.
(15) 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.
(16) Services: The term “Services” shall mean those certain services as provided by The powerhorseshop.com to User through the powerhorseshop.com Web Site.
(17) System: The term “System” shall mean computer systems and communications equipment owned or leased by The powerhorseshop.com and used for hosting the powerhorseshop.com Web Site.
(18) Technology: The term “Technology” shall mean any and all information, data, applications, methodologies, techniques, ideas, solutions, processes, adaptations, products, concepts, procedures, works of authorship, The powerhorseshop.com Web Site, scripts, documentation, flow charts, diagrams, software libraries, databases, data structures, data models, data dictionaries, fields, records, screen displays, and graphic interfaces.
(19) Unauthorized Access: The term “Unauthorized Access” shall mean any access to the powerhorseshop.com Web Site except for the exclusive purposes of using the Services; accessing, retrieving, and viewing Data; and inputting and retrieving User Content.
(20) Unauthorized User: The term “Unauthorized User” shall mean any individual who accesses the powerhorseshop.com Web Site except for: (1) Associates and Clients authorized by The powerhorseshop.com to access the powerhorseshop.com 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 The powerhorseshop.com to access the powerhorseshop.com Web Site and the Services.
(21) User: The term “User” shall mean Associates, employees of Client, and independent contractors hired by Client.
(22) 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: The powerhorseshop.com hereby grants User a non-exclusive and non-transferable license to access the powerhorseshop.com 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 powerhorseshop.com Web Site. User shall not modify any Data or information except User Content.
Section 2.03 – Password: The powerhorseshop.com shall assign User a Password for purposes of accessing the powerhorseshop.com Web Site and using the Services. User hereby accepts responsibility for, and shall be liable for, all access to the powerhorseshop.com Web Site, Data, and Services in connection with the Password. User shall access the powerhorseshop.com 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 The powerhorseshop.com All assignments of the Password by User shall be void.
Section 2.04 – Unauthorized Access: User shall prevent Unauthorized Users from accessing the powerhorseshop.com Web Site and the Services using the Password. User shall prevent Unauthorized Access to the powerhorseshop.com Web Site and the Services using the Password.
Section 2.05 – Lawful Purpose: User represents and warrants that User access to the powerhorseshop.com 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 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. The powerhorseshop.com may modify the Policy Statement from time to time in the exclusive discretion of powerhorseshop.com
Section 2.07 – Back-Up: The powerhorseshop.com 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 The powerhorseshop.com immediately upon termination of employment or contracting services (as the case may be) with Client or The powerhorseshop.com (as the case may be). Upon termination of employment or contracting services (as the case may be) with Client or The powerhorseshop.com (as the case may be), this Agreement shall terminate and User shall cease all access to the powerhorseshop.com Web Site and the Services.
Section 3.02 – Shut-off: The powerhorseshop.com 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 The powerhorseshop.com (as the case may be); (ii) User violation of Section 2.05; or (iii) The powerhorseshop.com receipt of notice from a third party challenging use of the powerhorseshop.com Web Site or Services by User.
Section 3.03 – Deactivation and Removal: Upon termination of this Agreement, The powerhorseshop.com shall have the right to disable and deny the Password and cease all User access to the powerhorseshop.com Technology and Services. Upon termination of this Agreement, The powerhorseshop.com 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 powerhorseshop.com ) any copies of The powerhorseshop.com property in possession of User.
ARTICLE IV: INTELLECTUAL PROPERTY
Section 4.01 – Ownership and Title: Title to the powerhorseshop.com Technology (excluding Licensed Content), including ownership rights to patents, copyrights, trademarks and trade secrets in connection therewith shall be the exclusive property of powerhorseshop.com
Section 4.02 – Reverse Engineering: Customer shall not reverse engineer the powerhorseshop.com Web Site and shall use reasonable efforts to prevent reverse engineering of the powerhorseshop.com Web Site.
Section 4.03 – Modifications: User shall not copy the powerhorseshop.com Web Site and Documentation and shall not allow the powerhorseshop.com Web Site and Documentation to be copied without the prior written consent of The powerhorseshop.com User shall not modify the powerhorseshop.com Web Site and Documentation and shall not allow the powerhorseshop.com Web Site and Documentation to be modified without the prior written consent of The powerhorseshop.com If the powerhorseshop.com Web Site or Documentation is modified, such modifications shall be the sole and exclusive property of The powerhorseshop.com and 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 powerhorseshop.com in connection with the powerhorseshop.com Technology.
Section 4.06 – Employee Pirating: User shall not induce or solicit (directly or indirectly) any Associate of The powerhorseshop.com to leave the employ or hire of The powerhorseshop.com or engage (directly or indirectly) the services of such Associates (as an employee, consultant, independent contractor or otherwise) without the prior written consent of powerhorseshop.com
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 powerhorseshop.com Web Site or Services.
ARTICLE V: WARRANTY
Section 5.01 – Warranty: The powerhorseshop.com 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, The powerhorseshop.com 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 powerhorseshop.com WEB SITE IS PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND. The powerhorseshop.com DOES NOT GUARANTEE OR WARRANT THE ACCURACY, COMPLETENESS OR USEFULNESS OF the powerhorseshop.com WEB SITE. The powerhorseshop.com 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 powerhorseshop.com 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. The powerhorseshop.com 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 powerhorseshop.com Technology.
Section 5.04 – Express Warranties: User hereby acknowledges and agrees that The powerhorseshop.com (including officers, employees, agents, directors, and independent contractors of powerhorseshop.com ) has not made or granted to User any express warranties concerning the powerhorseshop.com Technology, excepting the warranty in Section 5.01.
Section 5.05 – Limitation of Damages: The powerhorseshop.com 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 powerhorseshop.com 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 The powerhorseshop.com 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 powerhorseshop.com Web Site or Services, regardless of the form of action, whether in contract or in tort, including negligence, shall be modification of the powerhorseshop.com Web Site, as determined by powerhorseshop.com
Section 5.07 – Force Majeure: The powerhorseshop.com shall not be liable to User for failing to perform its obligations hereunder because of circumstances reasonably beyond the control of The powerhorseshop.com 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 powerhorseshop.com , breach of this Agreement by User, and any other events reasonably beyond the control of powerhorseshop.com
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 to be true, accurate, complete, and current.
Section 5.09 – Indemnification: User shall release, defend, indemnify and hold harmless powerhorseshop.com from and against any and all claims, liability, losses and damages arising in connection with: (1) User access to the powerhorseshop.com 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 and Ukraine. User shall not perform any act in conflict with or in violation of the export laws and regulations of the United States or Ukraine.
Section 5.11 – Loss of User Content: Programming, design errors, maintenance of the powerhorseshop.com Web Site or Services, or unauthorized access to the powerhorseshop.com Web Site or Services may result in the loss of User Content. The powerhorseshop.com 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 The powerhorseshop.com 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 powerhorseshop.com Technology and supersedes all previous verbal and written agreements between The powerhorseshop.com and User relating to the powerhorseshop.com Technology. The Policy Statement (as modified by The powerhorseshop.com 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 Panama, without regard to any rules of conflict or choice of laws that require the application of laws of another jurisdiction, and venue shall be Panama.
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 powerhorseshop.com ’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 – The powerhorseshop.com Notice: Notices to The powerhorseshop.com 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 The powerhorseshop.com Notices to The powerhorseshop.com shall be deemed given on the date notice is received by The powerhorseshop.com (as evidenced in the case of Certified or Registered Mail by Return Receipt).
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 The powerhorseshop.com In addition to all other remedies that may be available at law or equity, The powerhorseshop.com 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 powerhorseshop.com Technology or the relationship of User and The powerhorseshop.com under this Agreement shall be subject to the prior written approval of powerhorseshop.com
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 Tampa Florida. 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).
6.18 – Emails: User agrees to receive and accept emails from powerhorseshop.com. By accepting the terms and conditions of this website, user agrees to receive promotional materials from powerhorseshop.com, including, but not limited to, newsletters, sales emails, and other promotional emails.