Customer has stored certain inventory in an DTI Warehouse and has signed a Warehouse Storage Receipt, the terms and conditions of which address such storage services. By execution of this Agreement, Customer may monitor its inventory online, using the DTI private inventory-control website (the ďDTI Inventory SiteĒ) accessed by the ďCustomer AccessĒ link located on the DTI homepage at www.disributiontechnology.com.
NOW THEREFORE, in consideration of the foregoing and of the mutual promises contained in this Agreement, the parties hereto agree as follows:
1. LICENSE TO USE THE DTI INVENTORY SITE. Upon execution of this Agreement, DTI shall issue to Customer a login ID and password for use in accessing the Customerís inventory information at the DTI Inventory Site. DTI hereby grants to Customer a nonexclusive, non-transferable license to access and use the DTI Inventory Site solely for the purpose of viewing and/or downloading Customerís own inventory information for Customerís internal business purposes only. Customer shall be responsible for maintaining the confidentiality of Customer's ID and password and shall be liable for any unauthorized use of Customer's ID or password. Customer agrees not to
(i) access or attempt to access the inventory of any other customer,
(ii) reverse engineer, decompile, or otherwise discover source code associated with the DTI Inventory Site and its contents, nor
(iii) permit any other person or entity to use Customerís ID or password. If Customer has reason to know or suspect that the confidential nature of its password has been or may have been compromised, Customer shall notify DTI immediately.
2. TERM OF AGREEMENT The initial term of this Agreement shall begin on the date first set forth above and, unless sooner terminated as provided herein, shall expire upon removal of all or substantially all of Customer's inventory from DTI warehouses or upon termination of the Customerís Warehouse Storage Receipt, whichever occurs later.
3. OWNERSHIP OF WEB SITE The contents of the DTI Inventory Site, such as text, graphics, images and other content (the "Site Material") are protected by copyright under both United States and foreign laws. The names, marks and logos included in the Site Material are, unless otherwise noted, registered and/or common law trademarks owned by or licensed to DTI. The use of these marks or the Site Material, except as provided in this Agreement, is prohibited. Unauthorized use of the Site Material violates copyright, trademark, and other laws.
4. DISCLAIMER OF WARRANTIES Although DTI strives for accuracy in all elements of the DTI Inventory Site, it may contain inaccuracies or typographical errors. DTI makes no representations about the accuracy, reliability, completeness, or timeliness of the material on the DTI Inventory Site or about the results to be obtained from using the DTI Inventory Site. DTI DOES NOT WARRANT THAT THE DTI INVENTORY SITE WILL OPERATE ERROR-FREE OR THAT THE DTI INVENTORY SITE AND ITS SERVER ARE FREE OF COMPUTER VIRUSES OR OTHER HARMFUL MATERIAL. IF CUSTOMER'S USE OF THE DTI INVENTORY SITE OR THE SITE'S MATERIAL RESULTS IN THE NEED FOR SERVICING OR REPLACING EQUIPMENT OR DATA, DTI SHALL NOT BE RESPONSIBLE FOR THOSE COSTS. THE DTI INVENTORY SITE AND ITS MATERIAL ARE PROVIDED FOR CONVENIENCE ONLY, AND ON AN "AS IS" BASIS, WITHOUT ANY WARRANTIES. DTI TO THE FULLEST EXTENT PERMITTED BY LAW, DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE WARRANTY OF MERCHANTABILITY, NON-INFRINGEMENT OF THIRD PARTIES' RIGHTS, AND THE WARRANTY OF FITNESS FOR PARTICULAR PURPOSE.
5. TERMINATION. DTI shall have the right to terminate this Agreement upon thirty (30) daysí written notice to Customer or, in the event of a breach by Customer of any of Customerís obligations hereunder, immediately. Upon termination of this Agreement for any reason, all licenses granted hereunder shall terminate and Customers password(s) and access to the DTI Inventory Site shall be immediately terminated.
6. INDEMNIFICATION; LIMITATION OF LIABILITY
a) Limitation of Liability. IN NO EVENT SHALL DTI, ITS OFFICERS, DIRECTORS, AFFILIATES, AGENTS, EMPLOYEES OR ASSIGNS BE LIABLE FOR ANY DAMAGES RESULTING FROM LOST DATA OR BUSINESS INTERRUPTION DUE TO THE USE OR INABILITY TO USE MATERIAL ON THE DTI INVENTORY SITE AS A RESULT OF POWER OUTAGES, ACTS OF GOD, SERVER DOWNTIME, OR OTHER TECHNICAL DIFFICULTY, WHETHER BASED ON WARRANTY, CONTRACT, TORT, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT DTI IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. DTI shall not be liable to Customer, or its officers, directors, affiliates, agents, employees, contractors, or assigns for any CONSEQUENTIAL, SPECIAL, INCIDENTAL, INDIRECT, OR PUNITIVE DAMAGES as a result of the breach or claimed breach of this Agreement, or any warranty, representation, covenant or obligation contained herein. Customerís sole and exclusive remedy in the event of a malfunction of the DTI Inventory Site shall be that, upon receipt of notice from the Customer of such malfunction, DTI will use reasonable commercial efforts to correct, provide a workaround for, or replace such malfunctions, provided that the malfunction relates to the server or other component of the DTI Inventory Site, and is not a malfunction at the userís end.
b) Indemnity. By using the DTI Inventory Site, Customer agrees to defend, indemnify, and hold harmless DTI, its officers, directors, employees and agents, from and against any and all losses, claims, damages, costs and expenses (including reasonable legal and accounting fees) that DTI may become obligated to pay arising or resulting from Customer's breach of this Agreement.
7. GENERAL PROVISIONS
a) Warehouse Storage Receipt. The provisions of this Agreement govern the Customerís use and access to the DTI Inventory Site only. Nothing herein shall be interpreted to defeat any terms and conditions contained in the Warehouse Storage Receipt.
b) Choice of Law. These Terms and Conditions are governed by the substantive laws of the Commonwealth of North Carolina, without respect to its conflict of laws principles.
c) Choice of Forum. Customer agrees to submit to the jurisdiction of the courts situated in Charlotte, North Carolina with respect to any dispute, disagreement, or cause of action related to or involving the DTI Inventory Site.
d) Severability. If any provision is found to be invalid by any court having competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of this Agreement, which shall remain in full force and effect.
e) Entire Agreement. This Agreement constitutes the entire agreement between Customer and DTI with respect to Customer's use of the DTI Inventory Site.
f) No Assignment. Neither party may assign this Agreement without the written consent of the other, which consent shall not be unreasonably withheld.
g) No Waiver. The failure of either party to insist upon strict performance of any of the terms or provisions of this Agreement, or the exercise of any option, right or remedy contained herein, shall not be construed as a waiver of any future application of such term, provision, option, right or remedy, and such term, provision, option, right or remedy shall continue and remain in full force and effect.