Welcome to Above the Treeline’s ("Treeline") EDELWEISS User Agreement (the "Agreement"). Treeline owns the EDELWEISS Services Suite ("EDELWEISS"). Treeline asks that you ("you" or "User") read the following Agreement, which governs your use of EDELWEISS through the Treeline web site (the "Web Site") and any transactions that you engage in through EDELWEISS. By clicking <I AGREE> below, and by subsequently accessing or using EDELWEISS you acknowledge that you have read, understand, and agree to be bound by these terms. This Agreement contains warranty disclaimers and other provisions that limit our liability to you. Please read this Agreement in its entirety. If you do not wish to be bound by these terms, please do not use EDELWEISS. For good consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows:
If you have any questions please feel free to contact us at EDELWEISS@ABOVETHETREELINE.COM.
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1. Grant of License and Access
1.1. Subject to the terms of this Agreement, Treeline grants to User a non-exclusive, right (without the right to sublicense) to use EDELWEISS via the Web Site.
2. Ownership & Use
2.1. User agrees that EDELWEISS is the sole and exclusive property of Treeline, and includes Treeline’s valuable trade secrets. User agrees and acknowledges that this Agreement grants User no right, title or interest to EDELWEISS or the Web Site or any content contained therein.
2.2. "Confidential Information" shall mean either party’s nonpublic business information, including without limitation User’s data transmitted via EDELWEISS, provided that the term "Confidential Information" does not include information that (i) is or comes into the public domain without violation of a confidentiality obligation, (ii) is known prior to disclosure, (iii) is disclosed by a third party not in breach of a confidentiality obligation or who has not acquired the information in an unlawful manner, (iv) is disclosed to a third party without a duty of confidentiality on the part of the third party or (v) is disclosed with prior written approval.
2.3. Neither party shall use the Confidential Information of the other party for any purpose other than the provision and receipt of services via EDELWEISS. For the avoidance of doubt, User agrees and acknowledges that Treeline may disclose EDELWEISS-communicated nonpublic business information to publisher-users of EDELWEISS in the course of providing the EDELWEISS services to User.
2.4. User shall not modify, reuse, disassemble, decompile, reverse engineer or otherwise translate EDELWEISS, the Web Site or any portion thereof. User shall not use access to EDELWEISS, nor any information derived therefrom, to develop, direct, support, encourage, launch or operate any business venture or services suite that competes with Treeline’s exploitation of EDELWEISS.
3.1. The term of this Agreement shall be from the Effective Date until the one year anniversary thereof, provided that the term shall automatically renew for successive one (1) year terms. Either party may terminate this Agreement upon written notice to the other party. Sections 2.4 and Articles 3-5 shall survive termination of this Agreement.
4. No Warranty and Limitation of Liability
4.1. EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES MADE IN SECTION 4.4, EDELWEISS AND THE WEB SITE ARE PROVIDED "AS IS" WITHOUT WARRANTY, EXPRESS OR IMPLIED OF ANY KIND, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE. THE ENTIRE RISK ARISING OUT OF THE USE OR PERFORMANCE OF EDELWEISS REMAINS WITH USER. IN NO EVENT WILL TREELINE BE LIABLE FOR ANY DAMAGE WHATSOEVER ARISING OUT OF THE USE OF OR INABILITY TO ACCESS EDELWEISS, EVEN IF TREELINE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TREELINE DOES NOT WARRANT THAT THE EDELWEISS WILL BE UNINTERRUPTED OR ERROR FREE.
4.2. EXCEPT WITH REGARD TO TREELINE’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 4.4, TREELINE’S TOTAL LIABILITY TO USER FOR ANY LOSS, DAMAGES, COSTS OR EXPENSES WHETHER IN STRICT LIABILITY, TORT, NEGLIGENCE, CONTRACT OR OTHERWISE, ARISING OUT OF OR RELATING TO EDELWEISS OR THIS AGREEMENT, SHALL BE LIMITED TO FIVE HUNDRED DOLLARS ($500), BUT IN NO EVENT WILL TREELINE BE LIABLE FOR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, OR INDIRECT DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT OR EDELWEISS OR ANY CONFIDENTIAL INFORMATION, HOWEVER CAUSED AND WHETHER OR NOT TREELINE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THESE LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
4.3. User understands and acknowledges that from time to time, the Web Site may be inaccessible or inoperable for various reasons, including equipment malfunctions, upgrades or modifications, or causes beyond Treeline’s control that are not reasonably foreseeable by Treeline, including interruption or failure of telecommunication or digital transmission links, necessary maintenance, hostile network attacks or network congestion or other failures (collectively "Downtime").
4.4. Treeline represents and warrants that the Web Site and EDELWEISS will not infringe upon the intellectual property rights of any third party, provided that with respect to patent rights, the foregoing non-infringement representation and warranty is limited to Treeline’s knowledge. Treeline hereby agrees to indemnify, defend and hold User harmless for any claim, loss, damage, expense (including reasonable costs and attorney’s fees) ("Claim") arising from any breach of the foregoing, provided that User notify Treeline immediately after it has actual knowledge of any actual or threatened Claim. In connection with any such Claim, Treeline may select counsel to defend Treeline and User and User agrees to cooperate in such defense. User may, at its own cost, select separate counsel to defend it against any such Claim.
5.1. This Agreement constitutes the complete understanding of the parties, provided, however, that this Agreement does not supersede any existing confidentiality or non-disclosure agreements between the parties. No amendment or waiver of this agreement shall be valid or binding unless made in writing and signed by both parties.
5.2. This Agreement will be governed, construed and enforced in accordance with the laws of the State of Michigan, without regard to its principles of the conflict of laws. Any and all litigation arising from or relating to this Agreement will be filed and prosecuted before any court of competent subject matter jurisdiction in the State of Michigan. The parties hereto consent to the exclusive jurisdiction of such courts over them, stipulate to the convenience, efficiency and fairness of proceeding in such courts, and covenant not to allege or assert the inconvenience, inefficiency or unfairness of proceeding in such courts.
5.3. Neither party may assign its rights, delegate its duties or subcontract its rights without the other party’s prior written consent. Any action in violation of the foregoing shall be null, void and without effect. Notwithstanding anything in this Section 5.3 to the contrary, Treeline may assign this Agreement in connection with a merger, reorganization, or sale of substantially all its business (or in the case of User, substantially all of its record distribution assets). The parties' rights and obligations will bind and inure to the benefit of their respective successors and permitted assigns.
5.4. In performing their duties hereunder, each of the parties will be an independent contractor. Nothing contained herein will constitute any association, partnership or joint venture between the parties hereto, or be construed to evidence the intention of the parties to establish any such relationship. At no time will either party make any commitments or incur any charges or expenses for or in the name of the other party.
5.5. Failure of Treeline or User to enforce a right under this Agreement will not act as a waiver of that right or the ability to later assert that right relative to the particular situation involved.
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