1. GENERAL DESCRIPTION OF NATURE AND PURPOSE OF PORTAL AND SOFTWARE.
The Portal has been uniquely created and hosted by IMS for use by authorized employees and representatives of a limited number of retails stores and warehouses owned and/or operated by Costco Wholesale Corporation and its authorized affiliates and subsidiaries (“Costco”) for which IMS provides certain services relating to repair and maintenance projects, including flooring installation projects. The Portal is designed to enable certain authorized parties to access and use IMS’ proprietary, web-based computer software system known as the “Repair Management Portal.” The Repair Management Portal contains many functional features and tools that are designed to assist certain Costco employees and representatives to manage repair and maintenance projects, including flooring installation, at certain Costco retail stores and warehouses across the United States. The primary functional purposes of the Repair Management Portal are to facilitate and enable authorized employees, representatives and agents of Costco to (a) submit secure on-line requests for repairs and flooring installation; (b) monitor and track the progress and completion of repair and flooring installation requests; (c) access data and information relating to past and existing repairs and flooring installation projects performed at Costco’s retail stores and warehouses; and (d) to generate various reports concerning past and existing repairs and flooring installation projects performed at Costco’s retail stores and warehouses. The specific tasks that an individual user may perform, and the specific data that an individual user may access, utilizing the Portal are limited and may be based on the privileges and permissions granted to such user by IMS.
2. DISCLAIMER AND RELEASE.
IMS is currently performing additional development and customization work relating to the Software and the Portal. Further, all existing data relating to historical repair and flooring installation projects at all Costco retail stores and warehouses for which IMS provides certain services relating to such projects has not yet been collated so as to be accessible utilizing the Portal. The Portal and the Software are being made available to certain select Users at this time for the sole purpose of enabling such Users to preliminarily assess, review and test the Portal and the Software. The parties anticipate that following such preliminary assessment, review and testing, IMS may modify the Portal and the Software to address specific issues relating to the functionality and performance features of the Portal and the Software that are identified by Users. As a material condition to IMS permitting each User with access to and use of the Portal and the Software at this time, Costco and all Users of the Software and the Portal expressly acknowledge and agree that the Portal and the Software are initial beta versions that are undergoing additional testing and development and that neither the Portal nor the Software are expected to (a) fully exhibit all functionality or performance features described in these Terms of Use, or with any materials, documentation, statements or representations relating to the Portal or the Software that have been, or are hereafter, made or made available by IMS; (b) perform any specific functions; or (c) meet any of Costco of a User’s business requirements.
Costco and each user, on behalf of itself and its respective assigns, employees, representatives, agents and its authorized users of the Portal and the Software, hereby forever releases, acquits and discharges, and agrees not to sue or institute any legal action against, IMS, or any of IMS’ officers, directors, employees, contractors, subcontractors, agents, affiliates, and business partners (each, A “Released party”) from, against, and with respect to, all claims, actions, liability, obligations, damages and causes of action, of every kind, nature, and description whatsoever, whether based in tort, contract, or on any legal or equitable ground or theory of recovery that may give rise to liability, which arises out of, or relates to, any use by Costco or ANY USER of the Portal or the Software, including without limitation, any failure of the Portal or the Software.
THE PORTAL, THE SOFTWARE AND THE SERVICES DO NOT COVER REPAIR AND MAINTENANCE PROJECTS AT ALL COSTCO RETAIL STORES AND WAREHOUSES.
3. DEFINITIONS.
In addition to terms that are defined within individual sections of these Terms of Use, the following terms shall have the meanings ascribed thereto:
a. Content. The term “Content” means all information, data, text, images, sounds, photographs, graphics and other materials (regardless of the format thereof) which (i) can be accessed, viewed, downloaded, or printed by User at the Portal or by using the Software or the Services; and (ii) which have been created by, or on behalf of, IMS, and have been posted, displayed, or otherwise made available at the Portal by IMS to be viewed or accessed by User at the Portal or by using the Software or the Services.
b. Contractor. The term “Contractor” means a person or entity who is engaged by Costco to perform a designated repair or maintenance project or flooring installation projects at one or more Costco’s retail stores or warehouses.
c. Data. The term “Data” means any data, information, plans, photographs, graphics, and other materials relating to a Request, or to repair, maintenance and flooring installation projects undertaken at a Costco retail store or warehouse, which is uploaded, posted, transmitted, distributed, submitted, or otherwise made available by IMS or a User through the Portal utilizing the Software.
d. Distributor. The term “Distributor” means an entity which is an authorized distributor to Costco of goods and materials for repair and maintenance projects, and flooring installation projects. Distributors may be (i) “Local Distributors,” which distribute goods and materials for repair and maintenance projects, and flooring installation projects to Costco’s retail stores and warehouses within a limited geographical area; or (ii) “Regional Distributors,” which distribute goods and materials for repair and maintenance projects, and flooring installation projects to Costco’s retail stores and warehouses within a larger regional geographic area.
e. Documentation. The term “Documentation” means all documentation and information posted or available on the Portal relating to the use, features and functionality of the Software and the Services (including all user guides and tutorials), as may be amended or updated from time to time, together with all other information relating to the Software and the Services provided, or made available, by IMS to User from time to time.
f. Engineer. The term “Engineer” means a person or entity which is engaged by Costco to provide engineering services in connection with the performance of a repair or maintenance project or flooring installation project at one or more of Costco’s retail stores or warehouses.
g. Executive. The term “Executive” means an executive officer, manager, or other key employee of Costco who is responsible for the oversight and performance of repair and maintenance projects and flooring installation projects at Costco’s retail stores and warehouses throughout the United States or within a specified geographical region.
h. General Manager. The term “General Manager” means the employee or agent of Costco who is responsible for the oversight and performance of a specific repair and maintenance project and/or a flooring installation project at one or more of Costco’s retail stores or warehouses. A General Manager may include an “Assistant Warehouse Manager,” who is an employee or agent of Costco responsible for the oversight and performance of a repair and maintenance project and/or a flooring installation project at a specific Costco retail store or warehouse.
i. IMS Parties. The term “IMS Parties” means, collectively, the officers, directors, employees, consultants, contractors, agents, affiliates, joint venture partners, and business partners of IMS.
j. Manufacturer. The term “Manufacturer” means an entity which manufactures products or materials that are utilized by Contractors in connection with the performance of a repair or maintenance project or a flooring installation project at one or more Costco’s retail stores or warehouses.
k. Laws. The term “Laws” means all federal, state, county, municipal, local or other statutes, laws, regulations, rules, ordinances, orders and customs of any country, state or territory having jurisdiction over User’s access and use of the Portal, the Software and the Services, including the United States.
l. Portal. The term “Portal” means the website at which the Portal and Software are accessible via the Internet at URL www.costcorepairs.com.
m. Request. The term “Request” means any request or order by an Executive or General Manager, or other authorized representative of Costco, for repairs or flooring installation to be performed at any of Costco’s retail stores or warehouses that is uploaded, posted, transmitted, distributed, or submitted through the Portal utilizing the Software.
o. Services. The term “Services” means any and all services, features, tools, applications and programs that are available on the Portal, or that can be accessed or utilized by the User using the Portal or the Software.
p. Software. The term “Software” means the proprietary software system known as “Repair Management Portal” owned by IMS that is intended to have functionality that enables Users to (i) submit secure on-line requests for repairs and flooring installation; (ii) monitor and track the progress and completion of repair and flooring installation requests; (iii) access data and information relating to past and existing repairs and flooring installation projects performed at Costco’s retail stores and warehouses; and (iv) to generate various reports concerning past and existing repairs and flooring installation projects performed at Costco’s retail stores and warehouses, which system may be further described in the Documentation. The Software, as may be amended or updated from time to time by IMS, may include certain integrated applications, tool, software and technologies that are owned or licensed by IMS or IMS Parties. The term “Software” includes all modifications, enhancements, upgrades and new versions of the Software that may be hereafter released by IMS and may available to Users.
q. User. The term “User” means any individual or entity who or which (i) is an employee or authorized representative of Costco; (ii) has been authorized by IMS to access and use the Portal, the Software and the Services; and (iii) has created a User Account. Users include Distributors, Executives, General Managers (including Assistant Warehouse Managers), Contractors, Manufacturers and Engineers.
r. User Submissions. The term “User Submissions” means any documents, Data, information, materials, photographs, graphics and content uploaded, posted, e-mailed, transmitted, distributed, submitted or otherwise made available by User via the Portal or utilizing the Software and/or the Services. User Submissions includes all Requests submitted by User.
4. USER REGISTRATION.
User must create a user account (a “User Account”) before accessing or using the Portal, the Software, or any of the Services. User shall provide all information that is required by IMS to complete the registration process. The information required for registration (“Registration Information”) may vary depending on the requirements of representatives of a Costco store and the status of the User, but will generally include User’s name, e-mail address and the name of the institution or organization with which User is employed or affiliated. User represents and warrants to IMS that all Registration Information provided by User is completely true and accurate. User agrees to keep current, and promptly update, any Registration Information. In some instances, a User Account may have already been established for User by a Costco representative or by IMS (a “Pre-Registered Account”). User shall be responsible for promptly reviewing, and confirming the accuracy of, all Registration Information provided in connection with a Pre-Registered Account of User, and shall correct any inaccuracies or errors therein. In addition, User shall promptly update all Registration Information relating to a Pre-Existing Account with current and updated information, whenever applicable. By completing the registration process or accessing and using the Portal, the Software, or any of the Services, the User further represents and warrants to IMS that (a) User is over the age of eighteen (18) years; (b) User is an authorized employee, representative, agent or contractor of Costco (or a Costco retail store or warehouse) and is accessing and using the Portal, the Software and the Services for authorized business purposes relating to a repair and maintenance or flooring installation project at a Costco retail store or warehouse; and (c) is not prohibited or barred under any applicable Laws from accessing or using the Portal, the Software or any of the Services.
If User registers as an entity (including a corporation, limited liability company, partnership, non-profit corporation, or trade organization), User Accounts must be established by authorized and designated individual, full-time employees of such entity, who are over the age of eighteen (18) years (“Designees”). These Terms of Use shall apply to such entity as the User and to each of its Designees. User shall be solely responsible for all acts and omissions of its Designees in connection with any access and use by its Designees of the Portal, the Software and any Services. By establishing a User Account or by accessing and using the Portal, the Software or any of the Services, User and each Designee further represents and warrants to IMS that such Designee is authorized to agree to these Terms of Use on behalf of User and to access and use the Portal, the Software and the Services on behalf of User.
IMS may take all action as it deems appropriate or necessary to verify and confirm the accuracy of any Registration Information that User provides to IMS during the registration process, or at any time thereafter. If User provides any Registration Information that is untrue or inaccurate in any respect, or if IMS has reasonable grounds to believe that any Registration Information is untrue or inaccurate in any respect, IMS may immediately terminate, without notice, User’s right to access and use the Portal, the Software, and the Services, and may prohibit or restrict any future use of the Portal, the Software and the Services by User.
Upon completion of the registration process, User shall be issued a unique User ID and Password (“Log-In Information”). To the extent that User may be able to select certain aspects of User’s Log-In Information, such as a password, IMS shall endeavor to assign to User such Log-In Information that is requested by User, but does not represent or warrant that such Log-In Information will be able for use by User. In addition, IMS may, in its sole discretion, change any of User’s Log-In Information at any time, including in the event of an actual or threatened security breach relating to the Portal, the Software, or any of the Services. User shall secure and maintain the confidentiality of User’s Log-In Information and User shall be solely responsible for all acts and omissions taken by any party using User’s Log-In Information. User shall immediately notify IMS in the event of any known or suspected unauthorized use or disclosure of any Log-In Information, or any other act or omission that threatens to impair the security or integrity of the Portal, the Data, the Software or any of the Services.
In the event that User has created a user account for the Portal prior to August 1, 2008 (an “Existing Account”), User shall not be required to establish a new User Account. Such Existing Account shall constitute a “User Account” for the purposes of these Terms of Use, and all information provided in connection with such Existing Account (“Existing Information”) shall constitute “Registration Information” for the purposes of these Terms of Use, and the provisions of this Section 4 shall apply to such Existing Account and Registration Information. Further, all User IDs and passwords issued in connection with an Existing Account shall constitute “Log-In Information” for the purposes of these Terms of Use and shall be subject to the provisions of this Section 4 as “Log-In Information.”
5. STATUS OF USER.
By establishing or maintaining a User Account, or by otherwise accessing and using the Portal, the Software, or any of the Services, User represents and warrant to IMS that (a) such User intends to use, and shall only use, the Portal, the Software and the Services in connection with the submission or tracking of Requests or Data; and (b) such User has been authorized by Costco (or a retail store or warehouse of Costco) as a Distributor, Executive, General Manager (or Assistant Warehouse Manager), Contractor, Manufacturer or Engineer. IMS may take all action as it deems appropriate or necessary to verify and confirm the rights and privileges granted to User by Costco (or a retail store or warehouse of Costco) and may suspend or terminate User’s access of the Portal, the Software, and the Services pending IMS’ confirmation of the rights and privileges granted to User.
User agrees to only access, and attempt to access those sections of the Portal, Software tools, features and programs, and Services that are designated for access based on the status of User, as follows:
Contractors: Contractors may only access and use the Software tools, features, components and programs, and the Services available at the “Contractor” links or sections of the Portal, which generally enable Contractors to access Requests and access and submit Data in connection with the repair and maintenance and flooring installation projects on which such Contractors are engaged.
Distributors: Distributors may only access and use the Software tools, features, components and programs, and the Services available at the “Distributors” links or sections of the Portal, which generally enable Distributors to monitor and access Requests in connection with their provision of products relating thereto.
Engineers: Engineers may only access and use the Software tools, features, components and programs, and the Services available at the “Engineers” links or sections of the Portal, which generally enable Engineers to access Requests and access and submit Data in connection with the repair and maintenance and flooring installation projects on which such Engineers are engaged.
Executives: Executives may access all Software tools, features, components and programs, and shall be able to submit and edit Requests and Data relating to all Costco retail stores or warehouses nationally or within a specified geographical region.
General Managers: General Managers (including Assistant Warehouse Managers) may only access and use the Software tools, features, components and programs, and the Services available at the “General Manager” or “Assistant Warehouse Manager” links or sections of the Portal, which generally enable General Managers to submit, access and edit Requests and access and Data in connection with the repair and maintenance and flooring installation projects for which such General Managers are responsible.
Manufacturers: Manufacturers may only access and use the Software tools, features, components and programs, and the Services available at the “Manufacturers” links or sections of the Portal, which generally enable Manufacturers to monitor and access Requests in connection with their manufacture of products relating thereto.
It shall be the sole responsibility of User to obtain and determine the rights and privileges granted to User with respect to each Request and all Data. IMS may, in it sole discretion, implement such procedures (including use of additional passwords or security measures) to restrict User’s ability to access and use certain sections of the Portal, certain tools, features, components and programs of the Software, and certain Services, based on the rights and privileges of User. If User access, uses, or attempts to access or use, any section of the Portal, any component of the Software, or any Services that User is not authorized to access or use, IMS shall have the right, but no obligation, to terminate User’s access and use of the Portal, the Software and the Services.
6. LICENSE GRANT.
Subject to User’s compliance with these Terms of Use, IMS grants User a personal, non-exclusive, non-transferable, non-sublicensable, license to access the Portal and to use the object code of the Software on a single computer solely in connection with the submission, review and tracking of Requests and Data. User’s rights to use the Portal, the Software and the Services are strictly limited based on the User’s privileges and rights with respect to Requests and Data granted by Costco (or a retail store or warehouse of Costco), as described in Section 5 above.
7. USER SUBMISSIONS.
User shall be solely responsible for all User Submissions (including Data and Requests) uploaded, posted, e-mailed, transmitted, reproduced, distributed, submitted or otherwise made available by User via the Portal or utilizing the Software or the Services, including all Requests.
User agrees, and represents and warrants to IMS as follows:
a. All User Submissions shall be made in accordance with the requirements, terms and guidelines specified in the current version of the Documentation or as posted at the website hosting the Portal.
b. User owns, or has obtained all necessary right, licenses and permission (i) to submit, upload, post, reproduce, distribute, and submit all User Submissions, including Requests, via the Portal utilizing the Software or the Services; and (ii) to grant IMS the rights described below in this Section 7.
c. No User Submission, including any Request, shall violate, misappropriate, or infringe the rights of any person or entity, including without limitation, any person or entity’s trademark, patent, copyright, trade secret, intellectual property, statutory, proprietary, privacy, publicity, or contractual rights, or any other rights arising under the Laws of any applicable jurisdiction (collectively, “Third Party Rights”).
d. No User Submission, including any Request, shall be unlawful, harmful, or threatening, or libelous or defamatory of any person or entity.
e. All User Submissions shall be true and accurate to the best of User’s knowledge.
f. User shall comply with all Laws in connection with the up-loading, posting, e-mailing, transmission, reproduction, distribution and submission of all User Submissions (including all Requests) via the Portal or utilizing the Software or the Services.
g. User shall only access and use the Portal, the Software and the Services as reasonably required in connection with the performance of User’s legitimate and authorized duties relating to a repair and maintenance or flooring installation project at a Costco retail store or warehouse.
User hereby assigns to IMS all right, title and interest in and to all User Submissions, including all Requests and Data, created, posted or uploaded by User in connection with User’s use of the Portal, the Software and/or the Services.
User acknowledges and agrees that IMS may, but shall have no obligation to, screen or monitor any User Submissions. User further acknowledge and agrees that IMS, in its sole discretion, may, but shall have no obligation to, review, edit, modify and/or delete any User Submission in connection with the performance or provision of any Support Services. In addition, IMS may, in its sole discretion, remove, delete, edit, or modify any User Submission that IMS reasonably believes has been up-loaded, posted, e-mailed, transmitted, reproduced, distributed, or submitted by User in violation of these Terms of Use.
IMS encourages User not to upload, post, e-mail, transmit, distribute, submit, or otherwise make available via the Portal or utilizing the Software or the Services any confidential business information, personal information or valuable or sensitive Data of any nature. IMS cannot control how other Users may use User Submissions.
IMS shall have no liability to User for any use, misuse, loss, deletion, alteration, modification, reproduction, distribution or exploitation by any person or entity (including any other User) of any User Submissions or Data uploaded, posted, e-mailed, transmitted, distributed, submitted or otherwise made available by User via the Portal or utilizing the Software or the Services.
8. CONTENT AND USER SUBMISSIONS.
All Content is owned by IMS and the IMS Parties, or IMS and the IMS Parties have the rights to access, display and use the Content in connection with the operation, use and licensing of the Portal, the Software and the Services. IMS grants User a personal, non-exclusive, non-transferable, non-sublicensable, license to access and use the Content solely in connection with User’s use of the Portal, the Software and the Services, as permitted by these Terms of Use. If reasonably necessary to assist User with the performance of certain tasks, User may download and print one (1) copy of any Documentation posted or provided at the website hosting the Portal.
IMS expressly disclaims all representations or warranties with respect to the accuracy, integrity or quality of all Content. User should not rely upon the accuracy of any Content. User bears all risks associated with the access, down-loading, printing or use of all Content, including any reliance on the accuracy, completeness or usefulness thereof. IMS and the IMS Parties shall not have any liability to User for any access, use, down-loading or printing of, or reliance upon, any Content by User.
IMS shall also own all User Submissions, including all Requests and Data. IMS shall only use such User Submissions (a) in connection with the further development, enhancement, operation and/or provision of the Portal, the Software and the Services; (b) to provide support services to any User in connection with its access and use of the Portal, the Software and the Services (the “Support Services”); and (c) as described in Section 16 below.
9. MODIFICATIONS.
IMS reserves the right at any time, without notice to User, (a) to modify, upgrade, or enhance the Software; (b) to modify or alter any Content or Services; (c) to remove and delete any Content or User Submissions; and (d) to suspend or discontinue (permanently or temporarily) any portion, tool, feature, or component of the Portal, the Software and/or the Services. IMS shall not be liable to User for taking any of the foregoing actions described in this Section 9.
10. USER INFORMATION.
In connection with User’s use of the Portal, the Software and the Services, User may be requested to disclose personal information about User, including User’s name, address, e-mail address, age, and other identifiable or non-identifiable information that may be required or requested by IMS or representatives of Costco (“User Information”). IMS does not claim ownership of Registration Information or User Information, but Registration Information and User Information shall be stored on the servers and computer networks of IMS. IMS shall only use User Information and Registration Information as described in Section 16 below, and User is advised to carefully review such terms before disclosing any Registration Information or User Information via the Portal or using the Software or the Services. IMS has no responsibility for any Registration Information or User Information collected or maintained by IMS. All Registration Information and User Information submitted by a User is owned by such User and will only be used by IMS for the limited purposes described in Section 16 below. User acknowledges and agrees that any Registration Information and User Information disclosed by User may be accessed by certain other Users of the Portal and the Software. In particular, Executives generally have access to all Registration Information and User Information of all Users. IMS cannot control the use of Registration Information or User Information accessed by other Users and the disclosure of any User Information is at the sole risk of User. Accordingly, User is encouraged to exercise great care and discretion before electing to disclose any User Information via the Portal or utilizing the Software or the Services. User forever waives and releases IMS and all IMS Parties from any and all liability arising out of, or relating to, the disclosure or use by any third party (including any other User) of any User Information disclosed by User via the Portal or utilizing the Software or the Services.
In connection with its use of the Software and the Services, User may learn, or have access to, personal information concerning another User (“Third-Party User Information”). User agrees that it shall only use Third-Party User Information as is reasonably required in connection with the performance of User’s tasks and obligations relating to the creation, review, editing and tracking of Requests and Data, and shall only disclose Third-Party User Information as expressly authorized in Section 15 below. IMS shall not have any obligation to police or monitor User’s use or any Third-Party User Information. However, IMS may terminate User’s access to the Portal, the Software and/or the Services if User sells or rents any Third-Party User Information, or discloses or uses Third-Party Information in any commercial manner or for any commercial purpose in violation of the provisions of this Section 10 or Section 15 below.
11. PROHIBITED ACTS.
User shall not:
a. commit any act in violation of these Terms of Use.
b. use the Software or the Services in any manner that is in violation of, or inconsistent with, these Terms of Use or the Documentation.
c. upload, post, e-mail, transmit, distribute, submit, or otherwise make available any User Submissions in violation of any Third Party Rights.
d. upload, post, e-mail, transmit, distribute, submit, or otherwise make available any User Submissions in violation of any applicable Laws.
e. upload, post, e-mail, transmit, distribute, submit, or otherwise make available any User Submissions that are unlawful, harmful, threatening, or libelous or defamatory of any person or entity.
f. upload, post, e-mail, transmit, distribute, submit or otherwise make available any User Submissions or User Information that are knowingly false or inaccurate.
g. upload, post, e-mail, transmit, distribute, submit, or otherwise make available any User Submissions that contain any viruses, worms, trojan horses, or other codes, files, or programs that may erase or alter Data, or damage or harm the computer software or hardware, telecommunications equipment, or business interests of IMS or any other person or entity.
h. commit any act that restricts, prohibits, or inhibits any other person or entity, including any other User, from accessing and using the Portal, the Software, any Content, any User Submissions, and/or any Services, or that interferes with the ability of any other person or entity to access or use any of the foregoing.
i. upload, post, e-mail, transmit, distribute, submit, or otherwise make available via the Portal or utilizing the Software or the Services, any advertisements, solicitations, chain letters, pyramid schemes, investment opportunities or schemes or other unsolicited commercial communication, or engage in spamming or flooding, including any act in violation of the Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003 (CAN-SPAM).
j. upload, post, publish, transmit, reproduce, distribute or in any way use or exploit any Content for professional or commercial purposes.
k. use any Data other than in connection with User’s authorized use of the Portal and the Software.
l. disclose any Data to a third party unless expressly authorized by Costco;
m. attempt to access or use sections of the Portal, tools, features, programs and components of the Software, or Services that are not intended for access or use by User.
n. attempt to gain access to the account of any other User, or any other account other than User’s User Account.
o. copy, modify, create derivative works of the Software, or use modified versions of the Software not provided by IMS.
p. decompile, disassemble, reverse engineer, or otherwise attempt to obtain the source code of the Software, or its structure, internal design, organization, algorithms, or encryption devices.
q. sell, rent, publicly display, distribute, make available for public use, reproduce, duplicate, copy, trade, resell, or exploit for any commercial or professional purposes the Software, the Services, and any Content, or any part or portion of any of the foregoing.
r. attempt to access and use the Software or any of the Services by any means other than through the interface that is provided by IMS for use in accessing and using the Software and the Services.
12. OWNERSHIP AND RIGHTS RESERVED.
As between the parties, IMS exclusively owns, and shall exclusively own, the Portal, the Software, all User Submissions (including all Requests and Data), all Content and all Services, together with (a) all intellectual property associated with, or incorporated within, any of the foregoing; (b) all intellectual property rights associated therewith (including the worldwide copyrights therein and all patent, trademark and trade secret rights and protections arising under applicable Laws); and (c) all proprietary rights therein. These Terms of Use do not grant to User, and User shall not acquire, any right, title, or interest in and to the Portal, the Software, any User Submission or Content and/or any Services, except for the limited licenses thereto expressly granted in these Terms of Use.
All Requests and Data shall be the sole and exclusive property of IMS. User shall not acquire any right, title or interest in or to any Requests or Data as a result of User’s creation, access or use of Requests or Data in connection with User’s use of the Portal or the Software, and User assigns all such right, title and interest to IMS.
All licenses, rights, and interest, including all right, title and interest in and to the Software and the Services and all intellectual property and proprietary rights associated therewith, or incorporated or embodied therein, not specifically granted to User hereunder will be, and are, specifically and entirely reserved to IMS and may be fully exploited by IMS. IMS may provide develop, create, and/or provide web portals, software and services for third parties that are similar to the Portal, the Software and the Services.
13. NATURE OF COMMUNICATIONS; COMPLIANCE WITH LAWS.
User acknowledges and agrees that in using the Software or the Services to upload, post, e-mail, transmit, submit, or otherwise make available User Submissions, User will be causing communications to be submitted through the computer networks of IMS and certain IMS Parties, portions of which are located in various locations throughout the United States. Accordingly, User’s agreement to these Terms of Service indicates specific agreement and acknowledgement that use of the Software and the Services may result in the interstate transmission of data and materials, thereby potentially implicating certain Laws of the United States. User agrees to comply with all applicable Laws in connection with User’s access and use of the Portal, the Software and all Services, including when uploading, posting, e-mailing, transmitting, distributing, submitting, or otherwise making available any User Submissions. User specifically agrees to comply with all Laws governing the exportation of transmissions of sensitive data from the United States or from the country in which User resides or is accessing and using the Software and the Services.
14. LINKS TO THIRD-PARTY SITES.
Portions of the Portal, or the website at which the Portal is hosted, may provide hyperlinks, framing or other click-thru access to websites owned and operated by parties other than IMS (“Third-Party Sites”). IMS provides such links to Third-Party Sites solely as a convenience to User. The availability of click-thru access to Third Party Sites is not intended to create or imply any affiliation between IMS and the owners or operators of any Third Party Site, or any sponsorship by IMS of any Third Party Site, its owners or operators, or any products or services available at any Third Party Site. IMS accepts no responsibility for, and expressly disclaims any warranties or liability relating to, the accuracy, relevancy, copyright compliance, legality, or decency of materials displayed on, or contained in, any Third Party Site. User’s access and use of any Third Party Site is at User’s sole risk.
User acknowledges and agrees that these Terms of Use contain no representation, warranty, or endorsement by IMS or any IMS Party of any Third Party Site, or any of the products, services, information, or other content available on any Third Party Site. User’s use of any Third Party Site will be governed solely by the terms and conditions, notices, policies and guidelines posted on such Third-Party Site. User’s rights and obligations with respect to any of the products, services, information, or other content of any Third-Party Site will be determined by such terms and conditions, notices, policies and guidelines. IMS encourages User to review the terms and conditions and any privacy statements posted on a Third Party Site, or to contact the operator of a Third Party Site, prior to using, or providing any personal or financial information on such Third-Party Site.
15. CONFIDENTIALITY AND RESTRICTIONS ON USE.
In addition to all of its other obligations set forth in these Terms of Use, User expressly acknowledges and agrees that:
(a) User shall not disclose any User Submissions, Content, Requests, Data, User Information, Registration Information or Third Party User Information to any person or entity, except as is reasonably required in connection with the performance of User’s authorized and legitimate duties relating to a repair and maintenance or flooring installation project at a Costco retail store or warehouse, and provided that User has confirmed with authorized representatives of Costco that such person or entity is authorized to know and receive such information. IMS shall have no obligation to monitor User’s use of User Submissions, Requests, Data, User Information, Registration Information and Third Party User Information, but may (but shall have no obligation) to terminate User’s access and use of the Portal, the Software and the Services if IMS learns of any violation by User of the foregoing provisions of this Section 15(a).
(b) User shall not permit any person or entity who is not an Authorized User to access or use the Portal, the Software or any of the Services.
(c) User shall not disclose any information relating to the Portal, the Software or the Services, including any Documentation, to any person or entity, except authorized executives of Costco, without the prior written consent of IMS.
(d) At no time during the Restricted Period shall User develop, create or design, or assist any other person or entity to develop, create or design, any website portal, software, program, application, and/or system that (i) has or exhibits functionality that is similar to the functionality exhibited by the Portal and the Software at any time during the Restricted Period; and/or (ii) which enables a user thereof to (1) submit on-line or electronic requests for repairs and maintenance at a designated location; (2) monitor and track the progress and completion of such repair and maintenance requests; (3) access data and information relating to past and existing repair and maintenance projects undertaken at a designated location; or (4) generate various reports concerning past and existing repair and maintenance projects undertaken at a designated location. The “Restricted Period” is the period commencing on the date of User’s first access and use of the Portal or the Software and continuing for a period of three (3) years following the termination of User’s access and use of the Portal and the Software.
16. IMS’ USE OF INFORMATION AND DATA.
IMS intends to only use Content, Data, Requests, User Submissions, User Information, Log-In Information, and Registration Information as is reasonably required in connection with the development, operation, and use of the Portal and the Software and the provision of Support Services. IMS will not sell, distribute, publish, or disclose any Content, Data, Request, User Submissions, User Information or Registration Information to any third party, except for disclosures to authorized representatives of Costco and as described below in this Section 16.
IMS may disclose Content, Data, Request, User Submissions, User Information and Registration Information as follows:
(a) to IMS’ business partners and agents, such as financial institutions, suppliers, delivery services, parties providing hosting services, and web and technical support providers, as is necessary or required in connection with the operation, maintenance and support of the Portal, the Software, and/or the Services, in which case IMS will request that such third parties maintain the confidentiality of such information in accordance with the terms of these Terms of Service;
(b) to comply with any Laws, legal requirements or process (including subpoena and civil discovery request) and court orders, to cooperate with any government or police investigations, and to defend any legal or administrative proceedings, or as IMS believes in good faith is necessary to comply with any Laws, legal requirements, or court orders.
(c) to protect any individual’s personal safety in an emergency situation;
(d) to protect or defend IMS’ rights or property (including enforcement of IMS’ rights under the Terms of Use);
(e) in connection with the sale of the equity or any of the assets of IMS, in which case IMS will require the buyer to maintain the confidentiality of such information in accordance with the terms of these Terms of Service; and
(f) with the consent of authorized representatives of Costco.
IMS will implement and utilize reasonable physical measures and administrative procedures to safeguard against the unauthorized access of, and help prevent the loss, misuse or unauthorized alteration of, Content, Data, Request, User Submissions, User Information, Log-In Information and Registration Information. However, IMS does not guarantee that the security measures implemented by IMS in connection with the operation of the Portal and the Software will absolutely prevent others from accessing or acquiring any Content, Data, Request, User Submissions, User Information, Log-In Information and Registration Information.
IMS may collect, store and use certain, anonymous information known as “Clickstream Data” as Users access and navigate the Portal to gain a better understanding of how Users use the Portal, to analyze data for trends and statistics, to help diagnose problems with IMS’ servers and computer networks, and to enhance the performance of the Portal, the Software and the Services. The Clickstream Data that IMS may collect, store and use includes the IP address of a User’s computer (which is automatically assigned by a User’s Internet Service Provider whenever a User logs onto the Internet), the Internet address of the site from which a User linked to the Portal (known as the referring URL), the date and time that Users access and use the Portal and the Software, what sections of the Portal and portion of the Services are accessed and used by Users, and the type of browser used by Users. Clickstream Data is not personally identifiable and IMS does not link this information to personally identifiable data of a User.
IMS may also use session cookies, which are small text files placed on a User’s browser that maintain information from page to page as Users navigate the Portal and the Software. Session cookies are automatically deleted when a User closes his/her browser.
IMS IS NOT RESPONSIBLE, and cannot control, the use of Content, Data, Requests, User Submissions, User Information and Registration Information by third parties who can access such information in CONNECTION with their use of the portal, the software and/or the services, or to whom ims may disclose such information as described in these terms of use. ims has no means of tracking any use or disclosure of Content, Data, Requests, User Submissions, User Information, LOG-IN INFORMATION OR REGISTRATION INFORMATION by any such third party. If user believes that a third party has unlawfully or improperly used or disclosed any Content, Data, Requests, User Submissions, User Information, LOG-IN INFORMATION OR Registration Information, user should contact ims. As described in these terms of use, a number of third parties may be able to access Personal Information relating to user. accordingly, user should exercise great care and prudence before submitting or making available any Personal Information in connection with user’s use of the portal, the software or the services.
By submitting, uploading, posting or providing any User Submissions, Requests, Data, User Information, or Registration Information, User consents to IMS’ use thereof in accordance with the provisions of this Section 16.
17. DISCLAIMER OF WARRANTIES.
USER’S ACCESS AND USE OF THE PORTAL, THE SOFTWARE, ALL CONTENT AND ALL SERVICES IS AT USER’S SOLE RISK.
IMS MAKES NO REPRESENTATIONS OR WARRANTIES TO USER WITH RESPECT TO THE PORTAL, THE SOFTWARE, ANY CONTENT AND ANY SERVICES. THE PORTAL, THE SOFTWARE, ALL CONTENT AND ALL SERVICES ARE PROVIDED “AS IS” AND “WITH ALL FAULTS.” IMS AND ALL IMS PARTIES EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES RELATING TO THE SOFTWARE, THE PORTAL, ALL CONTENT AND ALL SERVICES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY OF FITNESS FOR A PARTICULAR PURPOSE. THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND EFFORT IS WITH USER.
WITHOUT LIMITING THE FOREGOING EXCLUSIONS, IMS DOES NOT REPRESENT OR WARRANT THAT: (A) THE SOFTWARE (AND/OR ANY SOFTWARE, SERVER, COMPUTER, HARDWARE, OR NETWORK RELATING TO THE OPERATION, OR HOSTING OF, THE PORTAL AND THE SOFTWARE) (i) CAN BE ACCESSED BY USER WITHOUT INTERRUPTION; (ii) WILL BE FREE OF VIRUSES, ERRORS, OR HARMFUL COMPONENTS; (iii) WILL BE DELIVERED TIMELY OR SECURELY; OR (iv) IS RELIABLE; (B) ANY CONTENT IS ACCURATE OR RELIABLE OR CAN BE SAFELY DOWNLOADED TO USER’S COMPUTER HARDWARE, SYSTEMS, OR NETWORKS; (C) THE SOFTWARE IS DESIGNED TO MEET ALL OR ANY OF USER’S BUSINESS, EDUCATIONAL OR OTHER REQUIREMENTS; OR (D) THAT THE PORTAL OR THE SOFTWARE WILL EXHIBIT ANY FUNCTIONALITY OR PERFORM ANY SPECIFIED TASKS OR FUNCTIONS.
THE PORTAL AND THE SOFTWARE ARE TEST VERSIONS THAT ARE UNDERGOING FURTHER DEVELOPMENT, TESTING AND ENHANCEMENT.
18. LIMITATION OF LIABILITY.
IN NO EVENT SHALL IMS OR ANY IMS PARTY BE LIABLE TO USER OR COSTCO FOR ANY INJURY, LOSS, OR DAMAGE OF ANY KIND WHATSOEVER ARISING OUT OF, OR RELATING TO, DIRECTLY OR INDIRECTLY, (A) USER’S ACCESS OR USE OF THE PORTAL, THE SOFTWARE, ANY CONTENT, ANY SERVICES AND/OR ANY USER SUBMISSIONS; (B) THESE TERMS OF USE; (C) THE DENIAL OR INTERRUPTION OF ACCESS TO THE PORTAL OR THE SOFTWARE, OR USER’S INABILITY TO ACCESS OR USE THE SOFTWARE AND THE SERVICES; (D) ANY ACT OR OMISSION OF ANY OTHER USER OR THIRD PARTY USING THE PORTAL, THE SOFTWARE OR THE SERVICES; (E) THE TERMINATION OF USER’S RIGHT TO ACCESS THE PORTAL, THE SOFTWARE AND/OR THE SERVICES; AND (F) ANY OTHER MATTER, CIRCUMSTANCE, ACT, OR OMISSION, RELATING TO THE SOFTWARE OR THE SERVICES. THE FORGOING EXCLUSION APPLIES WITHOUT LIMITATION TO ALL LIABILITY FOR LOST PROFITS AND ANY SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL, PUNITIVE OR RELIANCE DAMAGES, REGARDLESS OF WHETHER SUCH LIABILITY IS BASED ON BREACH OF CONTRACT, TORT, STRICT LIABILITY, BREACH OF WARRANTIES, FAILURE OF ESSENTIAL PURPOSE OR OTHERWISE AND EVEN IF IMS WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
IF USER DOES NOT AGREE WITH THESE TERMS OF USE OF IF USER SEEKS TO ASSERT ANY CLAIM AGAINST IMS OR ANY IMS PARTY ARISING OUT OF, OR RELATING TO, THESE TERMS OF USE, OR USER’S ACCESS AND/OR USE OF THE PORTAL, THE SOFTWARE, ANY CONTENT, OR ANY SERVICES, USER’S SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USING THE PORTAL, THE SOFTWARE AND THE SERVICES.
19. INDEMNIFICATION.
User agrees to, and shall, indemnify, defend, and hold IMS and all IMS Parties from and against any and all liability, claims, damages, fines, losses, expenses (including reasonable attorney’s fees and court costs, and the costs of enforcing this indemnity) suffered or incurred by IMS or any IMS Party which arise out of, relate to, or are directly or indirectly caused by (a) any breach by User of these Terms of Use, including without limitation, committing any act in violation of any of the provisions of Section 11 above; (b) a breach of any of User’s representations and warranties set forth in these Terms of Use; (c) any User Submission, including Requests and Data, uploaded, posted, e-mailed, transmitted, distributed, submitted, or otherwise made available by User via the Portal or utilizing the Software or the Services; (d) any allegation, demand, or claim that any User Submission defames, slanders, or is libelous of, any person or entity; (e) any allegation, demand, or claim that any User Submission violates, misappropriates or otherwise infringes any Third Party Rights; (f) any intentional or unintentional violation by User of any applicable Law; (g) any violation by User of any Third Party Rights; and (f) the negligence, gross negligence or willful misconduct of User.
20. TERMINATION.
USER’S ACCESS TO THE PORTAL AND SOFTWARE IS LIMITED AT THIS TIME PENDING FURTHER DEVELOPMENT OF THE PORTAL AND THE SOFTWARE AND THE POTENTIAL NEGOTIATION AND EXECUTION OF AGREEMENTS RELATING TO THE PORTAL, THE SOFTWARE AND/OR THE SERVICES BETWEEN IMS AND COSTCO. IMS MAY TERMINATE USER’S ACCESS TO AND USE OF THE PORTAL, THE SOFTWARE, THE SERVICES AND THE CONTENT AT ANY TIME WITHOUT OR WITHOUT NOTICE TO USER FOR ANY REASON.
In addition, IMS shall have the right, in its sole discretion, to terminate User’s access to the Portal, the Software and the Services without prior notice to User (a) in the event of a violation or breach by User of any of the provisions of these Terms of Use; (b) at the request of Costco; (c) as required by applicable Law, or at the request of law enforcement or government agencies; (d) in the event of unexpected technical or security issues or problems; (e) in the event of any allegation, claim or demand that User has committed any act in violation of any Third Party Rights; (f) in the event of any act by User in contravention of any applicable Law; (g) following User’s death (if User is an individual); and (h) (i) upon the adjudication of User as bankrupt under applicable Law; (ii) the filing of any petition by or against User under the federal bankruptcy laws or the Laws of any state, country, territory or jurisdiction relating to relief of debtors, for reorganization, arrangement, or other similar relief provided therein; or (iii) the making by User of a general assignment for the benefit of creditors or the appointment of any receiver, trustee, sequestration, or similar officer to take charge of User’s business.
Termination of User’s right to access and use the Portal and the Software for any reason may result in (i) the removal and deletion of User’s User Account, Registration Information, Log-In Information and User Information; (ii) the removal and deletion of all User Submissions from the Portal, the Software and the Services; and (iii) the restriction of User’s ability to access any User Submissions, Requests and Data.
IMS shall have no liability to User for any termination of User’s rights to access or use the Portal (or portions thereof), the Software and/or the Services.
21. TRADEMARKS AND PROPRIETARY NOTICES.
All product names, trademarks, service marks, brands, design marks, slogans, logos, designs, trade dress and trade names posted or appearing on the Portal and whether or not appearing in large print or with the trademark symbol, are trademarks of IMS, or are used by IMS with the permission of the owner thereof (the “Trademarks”). User agrees not to display, use, remove, alter, modify or tarnish any Trademarks. Nothing in these Terms of Use shall grant User any right or license in or to any Trademarks and all use of Trademarks in connection with the display, operation and use of the Portal, the Software and the Services shall inure solely to the benefit of IMS or the owner thereof, together with all associated goodwill.
IMS may affix or display proprietary notices on the Portal or in connection with the Software, or certain Content or Services, including copyright notices designated by IMS. User shall not remove, alter, obfuscate, or modify any such proprietary notices (including any copyright notices) from the Portal or from any Content or Documentation downloaded or printed by User.
22. NOTICES AND PROCEDURES FOR MAKING CLAIMS OF COPYRIGHT INFRINGEMENT.
IMS respects the intellectual property rights of others and, upon written notice thereof, will take action, as deemed appropriate in its sole discretion, to prevent Users from using the Portal, the Software and/or the Services in violation of the intellectual property rights of others.
Pursuant to the provisions of Section 512(c)(2) of the United Sates Copyright Act, 17 U.S.C. § 101, et seq., notifications of claimed copyright infringement should be sent to IMS’ Copyright Agent as follows:
By mail: Copyright Agent
Industrial Maintenance Solutions, Inc.
1171 Polk Road
Edinburg, VA 22824
By e-mail: Copyrightagent@imsolutionsva.com
By Telephone: 540-984-8162
Such notification must comply with the provisions of Section 512(c)(2)(3) of the United States Copyright Act and contain the following information:
1. A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
2. Identification of the material claimed to have been infringed, or if multiple copyrighted works within the Portal are covered by a single notification, a representative list of such works within the Portal.
3. Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit IMS to locate the material.
4. Information reasonably sufficient to permit IMS to contact the party alleging infringement, such as an address, telephone number, and if available, an electronic mail address at which the party alleging infringement may be contacted.
5. A statement that the party alleging infringement has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.
6. A statement that the information in the notification is accurate, and under penalty of perjury, that the party alleging infringement is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
23. GENERAL PROVISIONS.
Consent to Receive Electronic Communications. User consents to receive Communications electronically from IMS via the e-mail address designated by User in User’s Account Information or by the posting by IMS of Communications on a section of the Portal accessible by User. “Communications” are any notices, records, agreements or other guidelines, policies, or information relating to the Portal, the Software, the Content, and the Services, including any of the foregoing that IMS may be required to provide to User under any applicable Law.
Hardware and Software Requirements. User acknowledges and agrees that, in order to access and use the Portal, the Software, the Content and the Services, User must have the computer hardware and software described in the Documentation or at the website hosting the Portal, including the Internet browser described therein. In addition, User acknowledges and agrees that User cannot fully utilize and enjoy, as intended, all of the features of the Portal, the Software and/or the Services without an appropriate high-speed Internet connection. User is solely responsible, at its sole cost and expense, for procuring all hardware, software, equipment and services necessary to access the Internet and to access and use the Portal, the Software and the Services, including without limitation, the services of an Internet Service Provider.
Assignment. User’s User Account is not assignable or transferable, and User shall not assign or transfer any of its rights arising under these Terms of Use to any other person or entity. IMS may assign any or all of its rights under these Terms of Use to any party in its sole and absolute discretion, and User will continue to be bound by these Terms of Use following any assignment thereof by IMS.
Entire Agreement.
These Terms of Use constitute the entire agreement between User and IMS governing User’s access and use of the Portal, the Software, the Content and the Services and supersede any and all prior written or oral agreements, understandings or courses of dealing between IMS and User.
Governing Law and Venue.
These Terms of Use will be governed by and construed in accordance with the laws of the Commonwealth of Virginia, without regard to the conflicts of laws principles of any jurisdiction. Without limiting the foregoing provision, the parties agree that the Virginia Uniform Computer Information Transactions Act (UTICA) is expressly excluded from this Agreement and that any and all terms contained in UTICA shall have no force or effect on any portion of these Terms of Use.
Any and all disputes, claims, actions, suits and causes of actions arising out of, or relating to, these Terms of Use, or User’s access or use of the Portal, the Software or any of the Services shall be commenced and maintained solely in a federal or state court of competent jurisdiction situated in Rockingham County or the City of Harrisonburg, Virginia. User hereby irrevocably consents to the exclusive jurisdiction and venue of such courts.
Waiver. No waiver by IMS of any of the provisions of these Terms of Use, or the failure by IMS to enforce any provision of these Terms of Use, shall be deemed a waiver of any preceding or succeeding breach of the same or any other provision hereof by User.
Severability. If any provision of these Terms of Use is found by a court of competent jurisdiction to be invalid or unenforceable under any statute or rule of law, the provision is to that extent to be deemed omitted, and the remaining provisions shall not be affected in any way and shall remain in full force and effect.
24. modifications to these terms of use.
IMS RESERVES THE RIGHT TO MODIFY AND CHANGE THESE TERMS OF USE FROM TIME TO TIME WITHOUT NOTICE TO USER. USER IS RESPONSIBLE FOR REGULARLY REVIEWING THESE TERMS OF USE AND IMS RECOMMENDS THAT USER REVIEW THESE TERMS OF USE PRIOR TO ANY ACCESS OR USE OF THE PORTAL, THE SOFTWARE OR ANY SERVICES. USER’S CONTINUED USE OF THE PORTAL, THE SOFTWARE OR ANY SERVICES AFTER THE EFFECTIVE DATE OF ANY CHANGES OR MODIFICATIONS THERETO CONSTITUTES USER’S ACCEPTANCE OF, AND AGREEMENT, TO SUCH MODIFICATIONS AND CHANGES.
25. CONTACTING IMS.
Any communication, notices or information from User concerning these Terms of Use, the Portal, the Software, the Services, or any Content should be in writing and sent to IMS as follows:
By mail: Website Compliance Officer
Industrial Maintenance Solutions, Inc.
1171 Polk Road
Edinburg, VA 22824
By e-mail: websitecompliance@imsolutionsva.com
LO.181166.DOC