USER LICENSE AND AGREEMENT
THIS USER LICENSE AND AGREEMENT ("Agreement"), effective upon acceptance, is entered into by Mazzei Injector Company ("MAZZEI") a California LLC having its principal place of business in Bakersfield, California, United States of America and Applicant, ("USER"), doing business at Applicant's address as registered.
1. INTRODUCTION
1.1. Mazzei's Business. MAZZEI is in the business of manufacturing and selling of high-performance Venturi-type injectors which transfer or mix liquid or gas additives into solution. These injectors are utilized in agriculture, waste water treatment, municipal water systems, pools, spas, aquariums, and related applications.
1.2. The Online Calculator. MAZZEI has developed an online calculator which may be utilized for ascertaining the particular MAZZEI product, including the size of the product, which is called for according to information inputted by a user. This online calculator is hereinafter referred to as the "Calculator." When available, the Calculator is accessible at the current URL of injectorselector.Mazzei.net (the "Website"). The Calculator and other information, images, etc. which are viewable and/or accessible at the Website are collectively referred to as the "Content."
1.3. Eligibility for Access. Persons who meet the eligibility requirements will be authorized to utilize the Calculator and access the Content. The execution of this Agreement by the USER is a mandatory requirement for eligibility. In executing this Agreement, USER acknowledges MAZZEI'S complete discretion in making the eligibility requirements and MAZZEI'S right to revise the eligibility requirements without notice or to request additional information. USER further acknowledges MAZZEI'S right to modify or delete any portion of the Content without prior notice to User.
1.4. Content of the Web Site. The vast majority of the Content on the Web Site is subject to copyright protection for which reproduction is allowed only upon prior receipt of written authorization.
2. MAZZEI OBLIGATIONS AND RIGHTS
2.1. Mazzei Obligations
2.1.1. Once USER is accepted by MAZZEI as qualified, including USER'S agreement to be bound by this AGREEMENT, MAZZEI will approve USER's ID and Password to access and utilize the Calculator, solely for USER'S own use during the term of this Agreement.
2.1.2. Subject to the conditions set forth herein, MAZZEI grants USER a terminable, nonexclusive, royalty free license to access the Calculator and the Web Site from USER'S computer and to download, display, and use results determined from the Calculator. While User may download, display and use the results from the Calculator solely for USER'S own use, any other use including reproduction, modification, distribution, retransmission, republication, public display, performance, re-hosting, tampering with, framing, or deep linking of the Web Site, its Content, or the Calculator is strictly prohibited.
2.1.3. Should MAZZEI provide USER with access software tools needed to assist in reading, displaying and printing downloaded Content, or to assist in processing of the Content, it is USER'S responsibility to fully comply with the licensing terms that accompany such software tools.
2.1.4. MAZZEI will provide USER with that level of technical support it deems necessary and reasonable during the term of this Agreement. Free technical support is limited to electronic mail support only. MAZZEI makes no representation and provides no assurance that the level of support provided will be adequate nor the extent that it will be available. All technical support will have limited hours of availability, established by MAZZEI in its sole discretion.
2.1.5. Should the terms of use under this Agreement be changed, in its sole discretion, MAZZEI may post the changes on the Web Site and MAZZEI may notify USER if material changes have been made to the terms of use by sending an e-mail to the e-mail address associated with USER'S account. USER will have a choice of whether or not to continue its use under the modified Agreement. If USER does not wish to agree to the new terms, USER may terminate the Agreement as outlined below. Unless USER advises MAZZEI that USER has terminated because USER disagrees with the new terms, USER will be deemed to have agreed to all the changes in applicable terms of use.
2.2 Mazzei's Rights
2.2.1 Use of the Web Site and the Calculator is subject not only to qualification, but also limited to use only for the utilization of MAZZEI products. MAZZEI'S provision of access to USER to the Calculator and the Content without fees is conditioned upon USER'S agreement that the Calculator will only be utilized to ascertain the particular MAZZEI products which may be utilized for an application.
2.2.2 MAZZEI reserves the right, in its sole discretion, to refuse access or to reject any download request deemed unacceptable for breach of any provision of this Agreement, patterns of usage that suggest abuse, or for other legal or business reasons.
2.2.3 MAZZEI reserves the right, in its sole discretion, to alter the features, specifications, capabilities, functions, and to add and/or remove the Calculator, Content, and to change any other details relating to the operation of the Web Site at any time without notice to USER.
2.2.4 MAZZEI reserves the right to make such use of any personal information provided to it by USER subject to United States privacy laws.
2.2.5 Neither this Agreement, or the License granted herein, shall be deemed to grant USER any rights beyond those expressly granted herein and nothing herein grants USER any interest of any kind in MAZZEI, the Web Site, the Calculator, or the Content. USER shall have no rights with respect to the Web Site, the Calculator, or the Content beyond those set forth in this Agreement.
3. USER OBLIGATIONS AND RIGHTS
3.1 User Obligations
3.1.1 Upon agreement to the terms of this Agreement and upon acceptance by MAZZEI, USER will be provided with access to the Calculator.
3.1.2 The Password selected by USER must be maintained in strict confidence and not disclosed to any third party. USER further agrees not to assist any third party in gaining access to the Calculator or the Web Site.
3.1.3 USER is limited to access the Calculator with a single computer at a time, and must log off when USER leaves the computer to prevent unauthorized access to the Calculator or the Web Site.
3.1.4 Each time USER logs in and gains access to the Calculator or the Content on the Web Site, USER is certifying that USER intends to use the Calculator and Content solely for USER'S own use. USER agrees not to make any commercial use of the Calculator, the Web Site, its Content, or its tools, including charging others for access to the same beyond utilizing the same for determining the applicable MAZZEI products for design criteria entered by the USER.
3.1.5 USER is responsible for the security of USER'S computer and software environment and USER'S Password. If USER'S Password is lost or misplaced by USER, USER must advise MAZZEI immediately of this fact so that a new Password can be assigned to USER. Failure to promptly advise MAZZEI of loss or theft of USER'S Password will be grounds for immediate termination of USER'S account.
3.1.6 USER acknowledges that the Calculator, the Web Site, and the Content may contain trade secrets, copyrighted works, and other proprietary materials belonging to MAZZEI. USER agrees not to make any unauthorized use of the Calculator, the Web Site and/or the Content, or to decompile, reverse engineer, or in any other manner disassemble or modify the Calculator, the Web Site, the Content or any of the supporting technology of the Web Site. USER acknowledges that such unauthorized use would result in irreparable harm to MAZZEI and that MAZZEI would be entitled, among other things, to the granting of a temporary restraining order and/or a preliminary injunction to enjoin such unauthorized use by USERS subject to the jurisdiction of United States courts. For USERS not subject to the jurisdiction of United States courts, USER agrees that the matter shall be submitted to arbitration proceedings under the Rules of Arbitration of the International Chamber of Commerce by one or more arbitrators appointed in accordance with the said Rules of Arbitration. Judgment upon the award rendered by the arbitrator may be entered by any court having jurisdiction thereof. The place of arbitration will be Los Angeles or, at the sole discretion of MAZZEI, Geneva, Switzerland. The official language for such arbitration shall be English. This Agreement shall be construed under the laws of the United States of America, and, where applicable, the laws of the State of California without regard to any conflict of laws provision.
3.2 User Rights. USER has the right to cancel its access to the Calculator and the Web Site at any time.
4. TERMINATION PROVISIONS. Term and Termination
4.1 USER may terminate this Agreement, at any time, by notifying MAZZEI of its termination request.
4.2 MAZZEI has the right to terminate this Agreement and USER'S right to access the Calculator, Web Site and the Content at any time—with or without cause and with or without prior notice.
4.3 At the termination of this Agreement, USER must immediately destroy all copies of any Content USER may have downloaded or that has been download for USER from the Calculator or the Web Site.
4.4 In the event of the expiration or termination of this Agreement, all of the obligations agreed to by USER when signing or assenting to this Agreement pertaining to the confidentiality and/or reproduction of the Calculator, the Web Site, or Content shall survive and shall remain in full force and effect. USER may not, after termination, continue to access or use the Calculator or the Web Site for any reason. Furthermore, USER expressly agrees that nothing contained in this Agreement will in any way relieve USER of USER'S obligations under the Copyright laws of the United States of America, or other countries within the world with respect to MAZZEI'S copyrights.
5. PROPRIETARY RIGHTS AND QUALITY CONTROL
5.1 Proprietary Rights. The entire right, title, and interest in the intellectual property rights in the Calculator and the Content made available through the Web Site, including all copyright, patent, trademark, trade secret or other legal rights shall remain the exclusive property of MAZZEI. No license or other rights of any kind are granted or conveyed by the act of MAZZEI'S making available proprietary or copyrighted information through the Web Site to USER under this Agreement or by allowing USER access to the Calculator, the Web Site and the Content, except for the limited license to use the Calculator, the Web Site and Content for determining the applicable MAZZEI products according to design criteria entered by the USER. Any use by USER of the Calculator, the Web Site, or the Content in contravention of this Agreement is a violation of U.S. Copyright law and International Copyright Law and may be punished under the civil and criminal provisions of the Copyright Act, or comparable non-U.S. law.
5.2 Quality Control. MAZZEI is committed to insuring that the Calculator, the Web Site, and the Content are free from error and function as intended. However, MAZZEI makes no guarantee that there are no errors in the operation of the Calculator, the Content, or the Web Site, or that access to the Web Site will be available. MAZZEI will make its best effort to correct errors that MAZZEI deems necessary if the errors are called to MAZZEI's attention.
6. DISCLAIMER OF WARRANTIES
6.1 No Warranty of Calculator, Contents or Access to Web Site. The Calculator, the Web Site, and the Content are provided at no charge to the users and potential users of MAZZEI products. Any results generated by the Calculator are dependent upon the specific design criteria entered by the USER, which may or may not be suitable for the application intended by the USER. MAZZEI hereby restricts the use of the Calculator only for the determination of the applicable MAZZEI products. Accordingly, MAZZEI makes no warranties of any kind, express or implied, regarding any results obtained from the Calculator, and do not warrant that the Content will be error-free or that access to the Calculator and Web Site will be uninterrupted, continuous, or available. MAZZEI MAKES NO EXPRESS OR IMPLIED WARRANTIES OF PERFORMANCE OR SERVICE OF ANY KIND. THE CONTENT AND RESULTS OF THE CALCULATOR AND SERVICE ON THE WEB SITE IS PROVIDED TO YOU "AS IS" AND WITH ALL FAULTS. WE SPECIFICALLY DISCLAIM ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. IT IS THE RESPONSIBILITY OF THE USER TO EXAMINE THE RESULTS OF THE CALCULATOR AND THE CONTENTS OF THE WEB SITE AND TO MAKE USER'S OWN DETERMINATION OF THE QUALITY OF THE RESULTS OF THE CALCULATOR, THE WEB SITE AND ITS SERVICES.
6.2 Linked Sites. MAZZEI is not responsible for the content or availability of any Web site controlled by others to which there may be links or references on the Web Site. Such links or references are provided solely as a convenience to the USER.
7 LIMITATION OF LIABILITY
7.1 No Financial Responsibility. USER agrees that MAZZEI shall have no financial responsibility for any loss or damage to USER or any third parties, caused by the lack of accuracy or completeness of the Calculator, or Content on the Web Site, or of any failure, inadequacy or malfunction of the Web Site or by MAZZEI'S failure to provide USER access to the Calculator or any of the Content of the Web Site.
7.2 Disclaimer of Liability and Assumption of the Risk. MAZZEI SHALL NOT IN ANY CASE BE LIABLE FOR DIRECT, INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, WHETHER BASED ON CONTRACT, TORT OR ANY OTHER LEGAL THEORY, IN CONNECTION WITH OR ARISING OUT OF THE FURNISHING OF, THE PERFORMANCE OF, OR USER'S USE OF THE CALCULATOR AND THE WEB SITE SERVICES AND THE CONTENT PROVIDED HEREUNDER. USER ASSUMES THE RISK OF ANY DAMAGES WHICH MAY ARISE AS A RESULT OF USER'S USE OF THE CALCULATOR, THE WEB SITE, AND ANY CONTENT.
8. RESTRICTION ON ASSIGNMENT
USER may not assign or grant any rights under this Agreement to anyone. Any attempted assignment or grant shall be null and void, and shall automatically terminate this Agreement without further notice to USER.
9. WAIVER
MAZZEI'S failure to exercise any rights hereunder shall not constitute a waiver or forfeiture of such rights.
10. NO INTENDED THIRD-PARTY BENEFICIARIES
The Parties agree that there are no intended third-party beneficiaries to this Agreement.
11. Governing Law AND JURISDICTION
11.1 Choice of Law. This Agreement shall in all respects be interpreted, construed in accordance with, and governed by the laws of the State of California, United States of America without regard to the rules on conflict of laws, and the Copyright law aspects shall be governed by U.S. Copyright laws.
11.2 Exclusive Jurisdiction of California Courts. The parties hereto agree, as a material term to this Agreement, that any claim of any kind arising from this Agreement is subject to the exclusive jurisdiction of the state or federal courts of the State of California in the United States of America, and the initiation and resolution of any such claim through trial, arbitration, and/or mediation, including any rights of appeal, shall be completed in the State of California and no where else.
12. NOTICES
Any notice required or permitted by this Agreement shall be in writing and shall be sent by e-mail, facsimile or regular mail. Such notice shall be deemed to have been given the earlier of the date of actual receipt or three (3) business days after being sent, except where a termination for cause occurs in which case notice shall be deemed complete in one business day, if sent by e-mail or facsimile.
13. Entire Agreement
This Agreement contains the entire understanding of the parties relating to the subject matter hereof and any representation, promise, or condition not contained herein shall not be binding on either party.
14. EXECUTION
USER will have indicated USER'S agreement to the terms of this Agreement, by USER'S indication of electronic acceptance to these terms as provided herein.