This document sets forth the terms and conditions to access and use the DSM project management website service (DSM pmw).
By clicking the "Login" button below, you agree to be irrevocably bound by the terms and conditions set forth in this Non-Exclusive Confidential Client Agreement ("Agreement"). This Agreement governs your access and use of the proprietary DSM Project Management Website ("DSM PMW"), licensed to DSM, INC (DSM).
PLEASE READ CAREFULLY before proceeding.
I intend to utilize DSM PMW services activated by the password assigned exclusively to me by DSM. Before being able to access the intranet website, I MUST AGREE to the following terms and conditions.
Appraisal Data Use and Limitations.
Client as Sublicensee's use of DSM PMW and the information therein is subject to the following additional terms, conditions, and limitations:
1.1 Client also known as Sublicensee shall have the sole and exclusive responsibility for any and all information, data, and contents (collectively "contents") contained in each client's Project Management Website at all times. Only parties with authorized passwords may enter or modify the contents of their respective Project Management Website under the control and direction of client.
1.2 Client shall have the sole and exclusive responsibility to maintain the confidentiality of client information and all contents contained in client file or files which contents shall remain the property of individual clients.
1.3 DSM shall not allow any other person or entity to have access to or use of client's password at any time or for any reason whatsoever. Upon issuance of the password to client, DSM assumes no responsibility or obligation in any manner whatsoever to exercise any duty to maintain the confidentiality of the contents of client's file or files.
1.4 DSM shall not be responsible in any manner whatsoever for the validity or accuracy of any of the contents in client's file or files.
1.5 Client shall not make or attempt to make any changes, modifications or alterations of any kind whatsoever to the DSM PMW without the prior express written consent of both Licensor and DSM.
1.6 DSM shall not be held responsible or liable for any disruption or interference with client's access to or utilization of the DSM PMW caused by any utility company, governmental body, third party or force majeure.
1.7 CAVEAT: IT IS CLIENT'S RESPONSIBILITY for the contents of the DSM PMW and to
control the use and distribution of the file contents to its client. Except for the gross negligence of DSM which permits the unauthorized use of the contents of client's file by any employee, agent or consultant of DSM, DSM shall not be otherwise held responsible or liable for the unauthorized access or use of the contents of such Project Management Website.
1.8 The DSM PMW and its storage system and process in its entirety is copyrighted and subject to patent pending Licensor. Any disclosure, publication or reproduction of the DSM PMW is strictly prohibited unless authorized in writing executed by both Licensor and DSM. Client's use of the DSM PMW and its contents is at all times governed by and subject to copyright patent laws and use of intellectual information. Client agrees to abide by copyright laws and use of intellectual property, and shall be solely responsible for any violations of such laws and for any third party infringement caused by any content provided or transmitted by client or anyone working with client using the copyrighted file or information contained therein.
Licensor's Ownership of Intangibles.
All processes, inventions, patents, copyrights, trademarks, and other tangible rights that may be conceived or developed by either DSM or Licensee in connection with the use of the DSM PMW or any licensed software or licensed documents utilized in connection therewith, either alone or with others, during the term of this Agreement, or relate at the time of conception or development to the DSM PMW or related license software or licensed documentation, or to client's actual or demonstrably anticipated utilization and development, or that result from any work performed by DSM or client in connection with the use of the DSM PMW or related licensed software of licensed documentation, shall be the sole and exclusive property of Licensor. Client shall disclose to DSM all inventions or improvements to the DSM PMW or related licensed software or licensed documentation conceived during the term of this Agreement whether conceived or created by DSM or any of its clients. Clients shall execute in a timely manner all documents, including patent applications and assignments, required by Licensor to establish Licensor's right to such concepts or developments under this provision of the Agreement.
Access to Confidential Information.
Separate and distinct from any appraisal or other professional services provided by DSM to me and/or my employer, Licensee will have access to certain information concerning DSM's appraisals methodologies, analysis, opinions, as well as DSM programs, products, operations, systems and processes, in addition to Licensee's appraisal data and other related information all of which DSM deems confidential and proprietary information ("Confidential Information"), which is to remain at all times, the exclusive property of DSM unless otherwise agree in writing executed by DSM or the Licensee of the software program.
Clients as the Sublicensee shall hold in strict confidence all Confidential Information relating to the DSM PMW. Client shall not use, publish, or otherwise disclose to any third party or entity, the Confidential Information, or use or permit other to use it for their benefit or to the detriment of Licensor or DSM. Client shall not disclose any confidential Information unless compelled to do so by judicial or administrative process or by other requirements of law. Client's confidentiality obligation is without limitation except to the extent that such information can be shown to have been: (a) previously known on a non-confidential basis by Client; (b) developed independently by Client; (c) in the public domain through no fault of Client; or (d) later lawfully acquired by Client from sources other than DSM or Licensor. Client shall immediately notify DSM within forty-eight (48) hours of the event that Client acquires Confidential Information from other sources.
3.1 To the extent that Client is compelled, or sought to be compelled to disclose DSM's Confidential Information pursuant to an order of court of competent jurisdiction, administrative process or by requirements of law, Client shall immediately give DSM notice within forty-eight (48) hours of the receipt of any such order or demand. Client shall cooperate with DSM should DSM seek a protective order or an order quashing the production of Confidential Information or such other relief as may be appropriate under the circumstances.
3.2 Client's nondisclosure obligations pursuant to this Agreement shall survive the expiration, cancellation or termination of this Agreement. Unauthorized use of Client's password is grounds for automatic termination of this Agreement.
3.3 Each person authorized to access the DSM PMW must have their own separate, individual password. Client is not permitted to allow any other person or entity to use Client's assigned password to access DSM's Project Management Website system.
Limitations on Disclosure.
Client, however, may disclose such information contained in DSM PMW to clients, owners, directors, officers, employees, and authorized agents provided that Client inform such persons of the confidentiality obligations required by DSM's PMW and are also bound by the provisions of this Agreement. Client shall not permit the distribution of Confidential Information but may allow access to the DSM PMW solely to those who, in Client's sole discretion have been authorized to obtain a password to such DSM's PMW.
Sublicensee acknowledges that the Confidential Information protected by this Agreement is of such a special character and nature that monetary damages would not be sufficient to avoid or compensate Licensor or DSM for any unauthorized use or disclosure of the Confidential Information. Sublicensee agrees that injunctive and other equitable relief would be appropriate to prevent any actual or threatened unauthorized use or disclosure by Sublicensee or any of its owners, officers, employees, agents or independent consultants.
Independent Contractor Status.
Sublicensee is an independent contractor acting independently and separate from DSM. Nothing contained in this Agreement is intended to nor shall anything herein by construed to create an employment relationship or any ownership, partnership or joint venture relationship whatsoever in or with DSM or Licensor. Sublicensee's access to and use of the DSM's PMW and/or Confidential Information does not grant Sublicensee any rights, title or interest in or to the DSM PMW or Confidential Information or any information contained relating thereto unless otherwise agreed to in writing executed by both DSM and Licensor.
Either Party may give the other party fifteen (15) days written notice of termination of this Agreement, which can be transmitted by U.S. Certified Mail or by any commercially available electronic communication media which provides written confirmation of the transmission. In the event of any termination, cancellation or upon expiration of this Agreement, Sublicensee will return all of Licensor's and DSM's Confidential Information in its possession to DSM within seventy-two hours after transmission of the notice of termination, cancellation, or expiration. The obligations of confidentiality and nondisclosure contained in this Agreement shall survive expiration and shall remain in full force and effect for two years after the date of expiration or termination, or such other time as DSM shall agree in writing.
Sublicensee understands and agrees that this Agreement is subject to and subordinate to DSM's license agreement. In the event that DSM's underlying license is terminated during the term of this Agreement for any reason whatsoever, this Agreement shall also be terminated concurrently therewith. DSM shall not be liable to Sublicensee for any reason whatsoever in the event of the termination of this Agreement due to the termination of DSM's underlying sublicense. The sole obligation of DSM in the event of any early termination of this Agreement is to provide Sublicensee notice of termination of its sublicense and thus this Agreement within forty-eight (48) hours of such termination and provide a printed copy of the contents of Sublicensee's Project Management Website within seventy-two (72) hours of the termination of DSM's sublicense.
In the event of any dispute, claim or controversy regarding any of the terms, conditions, performances obligations of the parties relating to any matter contained in this Agreement, such dispute shall, at the written request of either party, be submitted initially to mediation. Should mediation fail to produce a resolution to any dispute, claim, or controversy, then such matter shall by submitted to binding arbitration in Los Angeles, California pursuant to the Commercial Rules of Arbitration administered by an alternative dispute resolution service. The arbitrator shall not have the power to commit errors of law or legal reasoning nor invalidate or modify any of the terms of this Agreement. The decision of the arbitrator shall be binding upon the parties to this Agreement and may be entered as a judgment in any court of competent jurisdiction. In the event the parties cannot agree on the selection of the mediator or arbitrator, the alternative dispute resolution service shall make the selection.
8.1 Sublicensee further agrees, that each party shall have the right to seek through a court of competent jurisdiction an application for temporary or preliminary injunctive relief, writ of possession, temporary protective order, or appointment of a receiver, if the arbitration remedy sought may be rendered ineffective in the absence of such relief or if there is no other adequate remedy. Any such remedial relief shall not waive the requirement to resolve any and all disputes by mediation and/or binding arbitration nor a party's right to arbitration.
8.2 The parties shall have the right to discovery in accordance with the California Code of Civil Procedure so long as permission from the arbitrator shall not be required. All discovery disputes shall be resolved by the arbitrator. The provisions of the California Evidence Code shall apply to the arbitration processing.
8.3 Licensor, at its sole discretion, may exercise its right to participate in any such mediation or arbitration. Declining to participate in any mediation or arbitration does not in any way whatsoever constitute a waiver or relinquishment of any of Licensor's rights or interests in DSM PMW or any related License Software or Licensed Documents.
General Provisions. " TextDecorations="Underline
: This document contains the entire agreement between the parties regarding all matters set forth in this Agreement and all prior communications, negotiations, representations, understandings or stipulations by the parties regarding any such matters are conclusively superseded by this Agreement. Any other agreement promise made by any party hereto or via their respective agent(s) regarding any matter set forth in this Agreement which is not contained herein, is non-binding and unenforceable.
: If any term, covenant, condition, or provision in this Agreement is held to be invalid, void, or unenforceable, the remainder of the provisions in this Agreement shall remain in full force and effect and shall in no way be affected, impaired or invalidated.
: This Agreement shall not be modified, amended, altered or changed except by written agreement signed by the party to whom the obligation or breach is charged.
: No delay or omission in the exercise of any right or remedy by any party on any default by any other party shall impair such right or remedy or be construed as a waiver of such a default nor shall a single waiver or series of waivers be construed as a continuing waiver or waivers.
: This Agreement may be executed in several counterparts and all executed counterparts shall constitute one and the same agreement which shall be binding upon parties.
: Each party represents and warrants to the other party,that each respectively, has the capacity and authority to enter into this Agreement and that by entering into this Agreement the party is not and will not be in default or breach of any other agreement that would adversely affect the rights of other parties to this Agreement.
Successors in Interest
: The terms, covenants and conditions set forth in this Agreement shall inure to the benefit of and binding on the heirs, executors, administrators, trustees, permitted successors and assigns of the parties to this Agreement.
: Any notice, demand or communication in connection with this Agreement may be served upon the other party by personal service or by mailing the same by registered or certified mail, postage prepaid and addressed to the party at the address provided. Any such notice, demand or communication shall be deemed served at the time of personal service or within 48 hours after posting the notice in the United States mail or by electronic transmission. Any party may change their address for notification by forwarding the new address to the other parties by registered or by certified mail.
: This Agreement is governed by and construed in accordance with the laws of the State of California and any proceeding, judicial, equitable or other form of dispute resolution shall be conducted within the County of Los Angeles, California.
Attorneys' Fees; Costs
: If any action or proceeding is brought to interpret or enforce any provision in this Agreement, the successful or prevailing party shall be entitled to recover reasonable attorneys' fees and costs incurred in such action or proceeding in addition to any other relief to which said party may be entitled.
: DSM's and Licensor's liability to Sublicensee is limited to the provisions set forth in this Agreement. In no event shall DSM or Licensor be liable for any damages, losses or claims of any kind whatsoever arising out of or in connection with Sublicensee's use of the DSM's PMW and its contents, including but not limited to special, incidental, or consequential damages, lost profits, or lost data, regardless of the foreseeability or such damages.
11. Representation and Warranty : The Sublicensee hereby represents and warrants that the Sublicensee is authorized by the requisite parties to execute this Agreement on behalf of himself and his or her employer, its principals, directors, officers, agents and independent contractors to whom the information may be provided by the undersigned or the undersigned's employer.