Ashcroft Inc.’s web site is the interactive on-line service operated by Ashcroft Inc., consisting of information services and content provided by Ashcroft Inc., affiliates of Ashcroft Inc., subsidiaries or Ashcroft Inc. and other third parties. “User” means each person who establishes or accesses a connection (“Account”) for access to and use of Ashcroft Inc.’s web site.
(A) This Agreement, which incorporates by reference other provisions applicable to use of Ashcroft Inc.’s web site sets forth the terms and conditions that apply to use of Ashcroft Inc.’s web site by User. By using Ashcroft Inc.’s web site (other than to read this Agreement for the first time), User agrees to comply with all of the terms and conditions hereof. The right to use Ashcroft Inc.’s web site is personal to User and is nottransferable to any other person or entity. User is responsible for all use of User’s Account (under any screen name or password) and for ensuring that all use of User’s Account complies fully with the provisions of this Agreement. User shall be responsible for protecting the confidentiality of User’s Account and password(s), if any.
(B) Ashcroft Inc. shall have the right at any time to change or discontinue any aspect orfeature of Ashcroft Inc.’s web site, including, but not limited to, content, hours ofavailability, and equipment needed for access or use.
3. Changed Terms.
Ashcroft Inc. shall have the right at any time to change or modify the terms and conditions applicable to User’s use of Ashcroft Inc.’s web site, or any part thereof, or to impose new conditions, including, but not limited to, adding fees and charges for use. Such changes, modifications, additions or deletions shall be effective immediately upon notice thereof, which may be given by means including, but not limited to, posting on Ashcroft Inc.’s web site, or by electronic or conventional mail, or by any other means by which User obtains notice thereof. Any use of Ashcroft Inc.’s web site by User after such notice shall be deemed to constitute acceptance by User of such changes, modifications or additions.
User shall be responsible for obtaining and maintaining all telephone, computer hardware and other equipment needed for access to and use of Ashcroft Inc.’s web site and all charges related there to.
5. User Conduct.
(A) User shall use Ashcroft Inc.’s web site for lawful purposes only. User shall not post or transmit through Ashcroft Inc.’s web site any material which violates or infringes in anyway upon the rights of others, which is unlawful, threatening, abusive, defamatory, invasive of privacy or publicity rights, vulgar, obscene, profane or otherwise objectionable, which encourages conduct that would constitute a criminal offense, give rise to civil liability or otherwise violate any law, or which, without Ashcroft Inc.’s express prior approval, contains advertising or any solicitation with respect to products or services. Any conduct by a User that in Ashcroft Inc.’s discretion restricts or inhibits any other User from using or enjoying Ashcroft Inc.’s web site will not be permitted. User shall not use Ashcroft Inc.’s web site to advertise or perform any commercial solicitation, including, but not limited to, the solicitation of users to become subscribers of other online information services competitive with Ashcroft Inc.’s web site.
(B) Ashcroft Inc.’s web site contains copyrighted material, trademarks and other proprietary information, including, but not limited to, text, software, photos, video,graphics, music and sound, and the entire contents of Ashcroft Inc.’s web site are copyrighted as a collective work under the United States copyright laws. Ashcroft Inc.owns a copyright in the selection, coordination, arrangement and enhancement of such content, as well as in the content original to it. User may not modify, publish, transmit,participate in the transfer or sale, create derivative works, or in any way exploit, any ofthe content, in whole or in part. User may download copyrighted material for User’spersonal use only. Except as otherwise expressly permitted under copyright law, no copying, redistribution, retransmission, publication or commercial exploitation of downloaded material will be permitted without the express permission of Ashcroft, Inc.and the copyright owner. In the event of any permitted copying, redistribution or publication of copyrighted material, no changes in or deletion of author attribution, trademark legend or copyright notice shall be made. User acknowledges that it does notacquire any ownership rights by downloading copyrighted material.
(C) User shall not upload, post or otherwise make available on Ashcroft Inc.’s web site any material protected by copyright, trademark or other proprietary right without the express permission of the owner of the copyright, trademark or other proprietary right and the burden of determining that any material is not protected by copyright rests with User. User shall be solely liable for any damage resulting from any infringement of copyrights, proprietary rights, or any other harm resulting from such a submission. By submitting material to any public area of Ashcroft Inc.’s web site, User automatically grants, or warrants that the owner of such material has expressly granted Ashcroft Inc.the royalty-free, perpetual, irrevocable, non-exclusive right and license to use,reproduce, modify, adapt, publish, translate and distribute such material (in whole or in part) worldwide and/or to incorporate it in other works in any form, media or technology now known or hereafter developed for the full term of any copyright that may exist in such material. User also permits any other User to access, view, store or reproduce the material for that User’s personal use. User hereby grants Ashcroft Inc. the right to edit, copy, publish and distribute any material made available on Ashcroft Inc.’s web site by User.
(D) The foregoing provisions of Section 5 are for the benefit of Ashcroft Inc., its subsidiaries, affiliates and its third party content providers and licensors and each shall have the right to assert and enforce such provisions directly or on its own behalf.
6. Disclaimer of Warranty; Limitation of Liability.
(A) USER EXPRESSLY AGREES THAT USE OF ASHCROFT INC.’S WEB SITE IS AT USER’S SOLE RISK. NEITHER ASHCROFT INC., ITS AFFILIATES NOR ANY OF THEIR RESPECTIVE EMPLOYEES, AGENTS, THIRD PARTY CONTENT PROVIDERS OR LICENSORS WARRANT THAT ASHCROFT INC.’S WEB SITE WILL BE UNINTERRUPTED OR ERROR FREE; NOR DO THEY MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF ASHCROFT INC.’S WEB SITE, OR AS TO THE ACCURACY, RELIABILITY OR CONTENT OF ANY INFORMATION, SERVICE, OR MERCHANDISE PROVIDED THROUGH ASHCROFTINC.’S WEB SITE.
(B) ASHCROFT INC.’S WEB SITE IS PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OTHER THAN THOSE WARRANTIES WHICH ARE IMPLIED BY AND INCAPABLE OF EXCLUSION,RESTRICTION OR MODIFICATION UNDER THE LAWS APPLICABLE TO THIS AGREEMENT.
(C) THIS DISCLAIMER OF LIABILITY APPLIES TO ANY DAMAGES OR INJURY CAUSED BY ANY FAILURE OF PERFORMANCE, ERROR, OMISSION, INTERRUPTION, DELETION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMPUTER VIRUS, COMMUNICATION LINE FAILURE, THEFT OR DESTRUCTION OR UNAUTHORIZED ACCESS TO, ALTERATION OF, OR USE OF RECORD, WHETHER FOR BREACH OF CONTRACT, TORTIOUS BEHAVIOR, NEGLIGENCE, OR UNDER ANY OTHER CAUSE OF ACTION. USER SPECIFICALLY ACKNOWLEDGES THAT ASHCROFT INC. IS NOT LIABLE FOR THE DEFAMATORY, OFFENSIVE OR ILLEGAL CONDUCT OF OTHER USERS OR THIRD-PARTIES AND THAT THE RISK OF INJURY FROM THE FOREGOING RESTS ENTIRELY WITH USER.
(D) IN NO EVENT WILL ASHCROFT INC., OR ANY PERSON OR ENTITY INVOLVED IN CREATING, PRODUCING OR DISTRIBUTING ASHCROFT INC.’S WEB SITE OR THE ASHCROFT INC.’S WEB SITE SOFTWARE, BE LIABLE FOR ANY DAMAGES, INCLUDING, WITHOUT LIMITATION, DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES ARISING OUT OF THE USE OF OR INABILITY TO USE ASHCROFT INC.’S WEB SITE. USER HEREBY ACKNOWLEDGES THAT THE PROVISIONS OF THIS SECTION SHALL APPLY TO ALL CONTENT ON ASHCROFT INC.’S WEB SITE.
(E) IN ADDITION TO THE TERMS SET FORTH ABOVE NEITHER ASHCROFT INC.NOR ITS AFFILIATES, INFORMATION PROVIDERS OR CONTENT PARTNERS SHALL BE LIABLE REGARDLESS OF THE CAUSE OR DURATION, FOR ANY ERRORS, INACCURACIES, OMISSIONS, OR OTHER DEFECTS IN, OR UNTIMELINESS OR UNAUTHENTICITY OF, THE INFORMATION CONTAINED WITHIN ASHCROFT INC.’S WEB SITE, OR FOR ANY DELAY OR INTERRUPTION INTHE TRANSMISSION THEREOF TO THE USER, OR FOR ANY CLAIMS OR LOSSES ARISING THEREFROM OR OCCASIONED THEREBY. NONE OF THE FOREGOING PARTIES SHALL BE LIABLE FOR ANY THIRD-PARTY CLAIMS OR LOSSES OF ANY NATURE, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS, PUNITIVE OR CONSEQUENTIAL DAMAGES. NEITHER, ASHCROFT INC., NOR ITS AFFILIATES, INFORMATION PROVIDERS OR CONTENT PARTNERS WARRANT OR GUARANTEE THE TIMELINESS, SEQUENCE, ACCURACY OR COMPLETENESS OF THIS INFORMATION. ADDITIONALLY, THERE ARE NO WARRANTIES AS TO THE RESULTS OBTAINED FROM THE USE OF THE INFORMATION.
(F) THERE IS NO WARRANTY AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF THE INFORMATION OR AGAINST INFRINGEMENT. ASHCROFT INC. DISCLAIMS ANY WARRANTY OF MERCHANTABILITY OR QUALITY OF ANY COMPUTER PROGRAM OR INFORMATION. ASHCROFT INC. DISCLAIMS ANY WARRANTY OF INFORMATIONAL ACCURACY OR INFORMATIONAL CONTENT. THERE IS NO WARRANTY THAT THIS INFORMAITON OR EFFORTS WILL FULFILL ANY OF YOUR PARTICULAR PURPOSES OR NEEDS. THIS INFORMATION AND ANY PROGRAM IS PROVIDED WITH ALL FAULTS, AND THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY, AND EFFORT IS WITH THE USER.
(G) If any PRODUCTS or services are purchased or obtained from Ashcroft Inc. or its distributors, Ashcroft Inc.’s Standard Terms of Sale, Warranty, and Limitation of Liability shall apply to all such sales or provisions of service. Products and services are guaranteed to be free from defects in workmanship and materials for a period of one year from the date of delivery thereof. THERE ARE NO OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE WARRANTY OF MERCHANTABILITY AND THE WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE. SELLER’S LIABILITY SHALL BE LIMITED TO THE REPAIR OR REPLACEMENT OF ANY DEFECTIVE PRODUCTS OR SERVICES, OR REFUND OF AN EQUITABLE PORTION OF THE PURCHASE PRICE, AND THE PARTIES AGREE THAT THIS SHALL BE THE CUSTOMER’S SOLE AND EXCLUSIVE REMEDY. SELLER SHALL NOT BE LIABLE,IN ANY EVENT, FOR LOSS OF PROFITS, BUSINESS LOSSES, INCIDENTAL OR CONSEQUENTIAL DAMAGES.
Ashcroft Inc. shall have the right, but not the obligation, to monitor the content of Ashcroft Inc.’s web site, including chat rooms and forums, to determine compliance with this Agreement and any operating rules established by Ashcroft Inc. and to satisfy any law, regulation or authorized government request. Ashcroft Inc. shall have the right in its sole discretion to edit, refuse to post or remove any material submitted to or posted on Ashcroft Inc.’s web site. Without limiting the foregoing, Ashcroft Inc. shall have the right to remove any material that Ashcroft Inc., in its sole discretion, finds to be in violation of the provisions hereof or otherwise objectionable.
User agrees to defend, indemnify and hold harmless Ashcroft Inc., its affiliates and their respective directors, officers, employees and agents from and against all claims and expenses, including attorneys’ fees, arising out of the use of Ashcroft Inc.’s web site by User or User’s Account.
Either Ashcroft Inc. or User may terminate this Agreement at any time. Without limiting the foregoing, Ashcroft Inc. shall have the right to immediately terminate User’s Account in the event of any conduct by User which Ashcroft Inc., in its sole discretion, considers to be unacceptable, or in the event of any breach by User of this Agreement. The provisions of Sections 5(B), 5(C), 5(D), 6, 8, 10 and this Section 9 shall survive termination of this Agreement.
10. Trademarks and Copyrights.
ActionLine®, Ashcroft®, Digigauge®, Digitest®, Duradrive, Duragauge®, Duralife®, Duratemp®, Duratran®, Duratube™, Easy Zero™, Ebro®, Everyangle™, FlutterGuard™,Gauge Saver®, Gold Servicesm, Heise®, Maxitest®, Maxivision®, MicroSpan™,MiniGauge®, Monobridge™, PLUS! ™, PowerFlex™, Quick-Select™, Si-Glas™,SpoolCal™, True Zero™, Weksler®, Willy®, Xacta® and Xmitr™ (and each of their logos)are trademarks of Ashcroft Inc. All rights reserved. All other trademarks appearing on Ashcroft Inc.’s website are the property of their respective owners.
11. Third Party Content.
Ashcroft Inc. is a distributor (and not a publisher) of content supplied by third parties and Users. Accordingly, Ashcroft Inc. has no more editorial control over such content than does a public library, bookstore, or newsstand. Any opinions, advice, statements, services, offers, or other information or content expressed or made available by third parties, including information providers, Users or any other user of Ashcroft Inc.’s website, are those of the respective author(s) or distributor(s) and not of Ashcroft Inc. Neither Ashcroft Inc. nor any third-party provider of information guarantees the accuracy, completeness, or usefulness of any content, nor its merchantability or fitness for any particular purpose. (Refer to Section 6 above for the complete provisions governinglimitation of liabilities and disclaimers of warranty.) In many instances, the content available through Ashcroft Inc.’s web site represents the opinions and judgments of the respective information provider, User, or other user not under contract with Ashcroft Inc. Ashcroft Inc. neither endorses nor is responsible for the accuracy or reliability of any opinion, advice or statement made on Ashcroft Inc.’s website by anyone other than authorized Ashcroft Inc. employee spokespersons while acting in their official capacities. Under no circumstances will Ashcroft Inc. be liable for any loss or damage caused by a User’s reliance on information obtained through Ashcroft Inc.’s web site. It is the responsibility of User to evaluate the accuracy, completeness or usefulness of any information, opinion, advice or other content available through Ashcroft Inc. interactive. Please seek the advice of professionals, as appropriate, regarding the evaluation of any specific information, opinion, advice or other content.
This Agreement and any operating rules for Ashcroft Inc.’s web site established by Ashcroft Inc. constitute the entire agreement of the parties with respect to the subject matter hereof, and supersede all previous written or oral agreements between the parties with respect to such subject matter. This Agreement shall be construed in accordance with the laws of the State of Wisconsin, without regard to its conflict of laws rules. No waiver by either party of any breach or default hereunder shall be deemed to be a waiver of any preceding or subsequent breach or default. The section headings used herein are for convenience only and shall not be given any legal import.
13. Confidential Information.
(A) The term Confidential Information as used herein means information, knowledge of data of an intellectual, technical, scientific, commercial, or industrial nature relating to technology, inventions, concepts, processes, designs, improvements, trade secrets, and other information of a similar nature in which Ashcroft Inc. has a confidential interest or has a legal duty to protect. Without limiting the generality of the foregoing, Confidential Information shall include any idea, finding, research, data specification, technique, algorithm, architecture, know-how, design, plan, drawing, sketch, product schematic, document, manual, report, study, photograph, sample, program, source code, prototype, customer list, price list, product description, business plan, marketing plan, financial information, or work in process. Confidential information shall also include the oral disclosure of Confidential Information, or other documentation or information, given to User by Ashcroft Inc.
(B) For a period of five (5) years from the date of receipt of Confidential Information, the receiving party shall not disclose it to any other person, firm or corporation except as provided herein, shall not use it commercially, and shall use the same degree of care to avoid publication or dissemination of such information as the receiving party employs with the respect to its own information which it deems proprietary or confidential. Such information shall not be deemed Confidential Information and the receiving party shall have no obligation with respect to any such information which:
(i) is already known to the User without an obligation to keep it confidential; or
(ii) is or becomes publicly known through no wrongful act of User; or
(iii) is rightfully received from a third party without restrictions and without breach of this Agreement; or
(iv) is approved for release by written authorization of Ashcroft Inc..