THIS DOCUMENT IS A LEGAL DOCUMENT BETWEEN YOU ("USER") AND DIGITAL TRADEMARKS, A SERVICE OF ATTORNEY MARCUS STEPHEN HARRIS dba Marcus Stephen Harris("DTM"). THIS DOCUMENT STATES THE TERMS AND CONDITIONS UNDER WHICH YOU MAY ACCESS THE DTM WEB SITE. PLEASE READ THIS DOCUMENT CAREFULLY BEFORE ACCESSING THE DTM WEB SITE. BY ACCESSING THE DTM WEB SITE YOU INDICATE THAT YOU HAVE READ AND UNDERSTAND THIS DOCUMENT AND AGREE TO BE BOUND BY THIS DOCUMENT. IF YOU DO NOT ACCEPT THIS DOCUMENT, DO NOT ACCESS THE DTM WEB SITE. DTM MAY REVISE THIS DOCUMENT AT ANY TIME WITHOUT NOTICE. YOU SHOULD VISIT THIS WEB PAGE PERIODICALLY TO REVIEW THE DOCUMENT.
WEB SITE TERMS AND CONDITIONS OF USE
This Web Site Terms and Conditions of Use Agreement ("Agreement") is made as of the Effective Date by and between DTM and you ("the User").
WHEREAS, DTM has developed and owns that certain DTM Web Site (as defined hereinafter) for Access by User through the Internet; and
WHEREAS, User desires to Access the DTM Web Site in accordance with the terms and provisions of this Agreement.
NOW, THEREFORE, in consideration of the mutual benefits of the covenants and restrictions herein contained, User and DTM hereby agree as follows:
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) DTM Marks: The term "DTM Marks" shall mean trademarks, trade names, service marks and trade dresses of DTM, including Digital Trademarks (sm).
(3) DTM System: The term "DTM System" shall mean computer systems and communication equipment used for hosting the DTM Web Site and providing User access to the DTM Web Site, including DTM Technology used, stored or transmitted through the DTM System.
(4) DTM Technology: The term "DTM Technology" shall mean any and all Technology developed by or for DTM.
(5) DTM Web Site: The term "DTM Web Site" shall mean that certain Web Site developed by or for DTM based in whole or in part on the Content and the Licensed Content which is integrated with and implemented on the DTM System and accessible by User via the Internet, including information, data, communication and text transmitted through the DTM Web Site and used or stored on the DTM System.
(6) Content: The term "Content" shall mean DTM Technology incorporated into the DTM Web Site and DTM Technology used, stored on or transmitted through the DTM System.
(7) Effective Date: The term "Effective Date" shall mean the date the User Accesses the DTM Web Site.
(8) Licensed Content: The term "Licensed Content" shall mean third party information, data, communications, text, graphics, images, visuals, video, audio, computer software, coding, script and other materials incorporated in whole or part into the DTM Web Site.
(9) Link: The term "Link" shall mean that certain text, icon or graphic in the DTM Web Site (visible or transparent) that upon selection or search, links or associates DTM Web Site to an off-screen or third party Web Site, document, text, image, sound or video.
(10) Materials: The term "Materials" shall mean the DTM Web Site and the Content.
(11) Technology: The term "Technology" shall mean (i) evaluation, technical, scientific, engineering, marketing, financial and business reports, plans, studies, diagrams, or flow charts; (ii) all forms and types of scientific, technical, economic, business, or engineering information and data; and (iii) computer software, source code, object code, executable code, software libraries, improvements, documentation, databases, database designs, data dictionaries, data models, fields, records, scripts, texts, interpreters, interfaces, interface designs, trade dress, interface specifications, codes, classes, categories, screen displays, sound recordings, visual works, graphic images, audio, sound recordings, video, patterns, plans, compilations, program devices, formulas, designs, prototypes, methodologies, techniques, ideas, solutions, concepts, processes, procedures, programs, adaptations, derivative works, computers, hardware, networks, products, machines, compositions of matter and articles of manufacture, whether tangible or intangible, and whether stored, compiled, or memorialized (without limitation) physically, electronically, graphically, photographically, or in writing.
(12) Web Site: The
term "Web Site" shall mean that certain multimedia interactive
product that is a compilation of data, information, computer software,
graphics, audio, audiovisuals, videos, components, and coding formatted
for use on the Internet and commonly referred to as a web site.
Section 2.01 -- Access: DTM hereby grants User a non-exclusive and non-transferable license to access the DTM Web Site solely for viewing and browsing the information on the Web page screens in the DTM Web Site, subject to the terms and provisions of this Agreement. Except as permitted under this Agreement, User shall not access the DTM System.
Section 2.02 -- Services: The DTM Web Site does not constitute an offer. All services are subject to availability. All service descriptions and representations are subject to DTM final specifications for such services and must be confirmed by User prior to any order, quote, or other reliance upon the DTM Web Site.
Section 3.01 -- Ownership and Title: Title to the Materials (excluding Licensed Content), including ownership rights to patents, copyrights, trademarks and trade secrets in connection therewith shall be the exclusive property of DTM.
Section 3.02 -- Unauthorized Use: User shall not copy or download the Materials without the prior written consent of DTM. User shall not modify, reverse engineer, reproduce, display, publicly perform, distribute, or create derivative works based on the Material, including (without limitation) by framing, mirroring, or similar means, or use the Materials for public or commercial purposes. User shall not use the Materials on any other Web Site.
Section 3.03 -- Trademarks: DTM shall retain all rights, title and ownership interests in the DTM Marks. Excepting the DTM Marks, all other product and company references are trademarks, trade names, service marks, or trade dresses of their respective owners (as applicable).
Section 3.04 -- No Contest: User acknowledges that the Materials are protected under laws, including (without limitation) United States of America and international copyright laws and treaties. User shall not contest or aid in contesting the ownership or validity of the copyrights, trademarks, service marks and trade secrets (as applicable) of DTM in connection with the Materials.
Section 3.05 -- User Submissions: Any information posted or submitted by User on the DTM Web Site shall be deemed non-confidential unless otherwise deemed confidential by an agreement in writing and signed by authorized representatives of DTM and User. DTM may use any User materials, information, ideas, concepts, or techniques submitted by User on the DTM Web Site or learned by DTM for any purpose (including, without limitation, the right to display, reproduce, modify, transmit, disclose, and distribute any such information).
Section 4.01 -- Express Warranties: User hereby acknowledges and agrees that DTM (including officers, employees, agents, directors and independent contractors of DTM) has not made or granted to User any express warranties concerning the DTM Web Site or DTM services. Use and performance of DTM services referenced in the DTM Web Site (including, without limitation, DTM certifications) are subject to DTM terms and conditions concerning such, services and certifications as made available by DTM. User hereby acknowledges that the DTM Web Site does not constitute a grant of an express warranty concerning DTM services, and User waives any and all claims of warranty based on the DTM Web Site.
SECTION 4.02 -- WARRANTY LIMITATION: THE DTM WEB SITE IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS WITHOUT WARRANTY OF ANY KIND. DTM, TO THE FULLEST EXTENT PERMITTED BY LAW, 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, ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND WARRANTY OF NON-INFRINGEMENT OF THIRD PARTY RIGHTS. DTM DOES NOT WARRANT AND USER HEREBY WAIVES ANY WARRANTY THAT USE OF OR ACCESS TO THE DTM WEB SITE BY USER WILL BE UNINTERRUPTED OR ERROR FREE. DTM DOES NOT MAKE ANY WARRANTY AND USER HEREBY WAIVES ANY AND ALL WARRANTIES AS TO THE RESULTS OBTAINED FROM USE OF THE DTM WEB SITE OR AS TO THE ACCURACY, COMPLETENESS, TIMELINESS OR RELIABILITY OF THE DTM WEB SITE. USER HEREBY ACKNOWLEDGES AND AGREES THAT USE OF THE INTERNET AND DTM WEB SITE SHALL BE AT THE SOLE AND EXCLUSIVE RISK OF USER AND SUBJECT TO THE RESTRICTIONS, TERMS AND CONDITIONS, RULES, REGULATIONS, POLICIES, APPLICABLE LAWS AND CODES OF CONDUCT GOVERNING THE INTERNET AND THE DTM WEB SITE.
Section 4.03 -- Inaccuracies: User hereby acknowledges that the DTM Web Site 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 DTM Web Site.
SECTION 4.04 -- LIMITATION OF LIABILITY: DTM SHALL NOT BE LIABLE FOR ANY LOST PROFITS OR CONSEQUENTIAL, EXEMPLARY, INCIDENTAL OR PUNITIVE DAMAGES UNDER THIS AGREEMENT (INCLUDING, WITHOUT LIMITATION, IN CONNECTION WITH (I) USE, PERFORMANCE OR OPERATION OF THE DTM WEB SITE; (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 DTM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE OR WHETHER SUCH DAMAGES ARE REASONABLY FORESEEABLE.
SECTION 4.05 -- REMEDIES: THE SOLE REMEDY OF USER FOR ANY REASON AND FOR ANY CAUSE OF ACTION WHATSOEVER IN CONNECTION WITH THIS AGREEMENT AND THE DTM WEB SITE, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT OR IN TORT, INCLUDING NEGLIGENCE, SHALL BE MODIFICATION OF THE DTM WEB SITE, AS DETERMINED BY DTM IN ITS SOLE DISCRETION.
Section 4.06 -- Indemnification: User shall release, defend, indemnify and hold harmless DTM (including its officers, directors, employees, affiliates, contractors and agents) against any expense, loss, cost, or liability (including, without limitation, attorney fees and paralegal fees) arising from any and all claims, demands, damages or actions resulting from or related to (i) use of the DTM Web Site or the Internet by User (including, without limitation, any claims for breach of warranty, loss of data, libel, slander, invasion of privacy or false advertising); (ii) performance of the DTM Web Site; (iii) User submissions to the DTM Web Site; (iv) User's negligence or the acts (or any failure to act) of User; and (v) any breach by User of the obligations of User under this Agreement.
Section 4.07 (B) -- Export Assurance: User shall not disclose, export, distribute or transfer the Materials (directly or indirectly) outside the United States of America. User shall not perform any act in conflict with or in violation of the export laws and regulations of the United States of America.
Section 4.08 -- Links:
User hereby acknowledges that the DTM Web Site contains Links to third
party Web Sites which are provided solely as a convenience to User and
do not constitute an endorsement by DTM of such Web
Section 5.01 -- Entire Agreement: This Agreement contains the entire understanding of the parties relating to the Materials and supersedes all previous verbal and written agreements between DTM and User relating to the Materials.
Section 5.02 -- Amendments and Modifications: Excepting modifications made to this Agreement by DTM, any alteration, modification or amendment of this Agreement shall be void unless such alteration, modification or amendment is in writing and signed by an authorized representative of DTM.
Section 5.03 -- Severability: If a provision of this Agreement is rendered invalid the remaining provisions shall remain in full force and effect.
Section 5.04 -- 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 5.05 -- Governing Law: The DTM Website is based in Chicago, Illinois This Agreement is governed by the laws of the State of Illinois, without regard to any rules of conflict or choice of laws that require the application of laws of another jurisdiction. Venue shall be Chicago, Illinois.
Section 5.06 -- User Notice: All notices shall be in writing. Notices to User shall be deemed delivered when delivered to User electronically, by commercial overnight delivery service, by Certified or Registered Mail - Return Receipt Requested, or by hand. 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 5.07 -- DTM Notice: All notices shall be in writing. Notices to DTM shall be deemed delivered when delivered to DTM electronically, by commercial overnight delivery service, Certified or Registered Mail - Return Receipt Requested, or by hand to the address set forth below for DTM. Notices to DTM shall be deemed given on the date notice is received by DTM (as evidenced in the case of Certified or Registered Mail by Return Receipt). Notices delivered to DTM electronically (including, without limitation, electronic mail) shall be deemed in compliance with this Section 5.07 only if promptly confirmed in writing by User.
Marcus Stephen Harris
Section 5.08 -- Pronouns/Gender: Pronouns and nouns shall refer to the masculine, feminine, singular or plural as the context shall require.
Section 5.09 -- Equitable Remedies: The parties hereby acknowledge and agree that damages at law will be an inadequate remedy to DTM. In addition to other rights that may be available, DTM shall have the right of specific performance, injunction or other equitable remedy (including, without limitation, the right to such equitable remedies prior to or pending arbitration) in the event of a breach or threatened breach of this Agreement by User.
Section 5.10 -- 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 and are cumulative. 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 5.11 -- Public Announcements: All public announcements concerning the DTM Web Site or the relationship of User and DTM shall be subject to the prior written approval of DTM.
Section 5.12 -- 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 Commercial Arbitration Rules (excluding Expedited Procedures) of the American Arbitration Association in the city of Chicago, Illinois. The American English language shall be the applicable and controlling language of the arbitration. Judgment upon the award rendered by the arbitrators may be entered in any court having jurisdiction thereof, unless either User or DTM under this Section 5.12 has filed a subsequent request for reconsideration. Three qualified arbitrators shall be appointed in accordance with the Commercial Arbitration Rules (excluding Expedited Procedures) of the American Arbitration Association and this Agreement. Such qualified arbitrators shall be members of the bar of any State in the United States of America and shall have at least five years of experience in computer law matters. Each party shall have the right of discovery as set forth in the Federal Rules of Civil Procedure. A stenographer shall be present at the arbitration proceedings and the stenographic record shall be the official record of the proceeding. The arbitration award shall be in writing and shall include findings of fact and conclusions of law. Each party shall have the right to appeal any decision of the arbitrators by filing a request for reconsideration of such decision with the American Arbitration Association within ninety days of receiving such decision. Upon receiving such request for reconsideration, the American Arbitration Association shall reconsider the matter de novo using a different panel of three appellate arbitrators and the foregoing procedures. Such panel of appellate arbitrators shall be selected using the same procedures as used to select the original arbitrators. Each party shall pay an equal share of the fees and expenses of the arbitrators and administrative fees and expenses of the arbitration.
Section 5.13 -- 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).
"Thank you. You treated our small company like one of the biggest in the world and gave our trademark the attention it deserved." - Jhon Garcia, President, Mi Sandwich Cubano, Inc.
2002-2005 Marcus Stephen Harris all rights reserved.
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