WHEREAS, Authorized Users consist only of HYTORC employees, independent sales representatives, agents and/or customers designated specifically by HYTORC.
WHEREAS, HYTORC maintains password protected, restricted access to NutsAndBolts.bloomfire.com and portal.HYTORC.com which provides HYTORC Proprietary Rights to Authorized Users.
WHEREAS, HYTORC desires to control the dissemination of HYTORC Proprietary Rights to and by Authorized Users.
NOW, THEREFORE, for good and valuable consideration, receipt and sufficiency hereby acknowledged, HYTORC and Authorized User mutually agree that:
INTRODUCTION. Welcome toNutsAndBolts.bloomfire.com and/or portal.HYTORC.com(“Authorized User Sites”). This Authorized User Agreement (“Agreement”) imposes terms and conditions on access to Authorized User Sites, and any use made of them, so please read carefully. Agreement does not alter in any way the terms or conditions of any other agreement Authorized User may have with HYTORC or its subsidiaries or affiliates for other products or services. Questions or comments about Authorized User Sites or their contents should be directed to the HYTORC webmaster.
AMENDMENT. HYTORC reserves the right to change or modify any of the terms and conditions contained in this Agreement or any policy or guideline, at any time and in its sole discretion. Any changes or modification will be effective upon posting of the revisions to this Agreement. Authorized User’s continued use of Authorized User Sites following the posting of any changes or modifications will constitute Authorized User’s acceptance of such changes or modifications. Therefore, Authorized User should frequently review this Agreement and applicable policies from time-to-time to understand the terms and conditions that apply to use of Authorized User Sites.
BOUND BY TERMS. BY ACCESSING, BROWSING, AND USING AUTHORIZED USER SITES, AUTHORIZED USER AGREES TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT, ALL POLICIES AND GUIDELINES INCORPORATED BY REFERENCE, AND ANY SUBSEQUENT CHANGES TO THE FOREGOING. IF AUTHORIZED USER DOES NOT AGREE TO THIS AGREEMENT OR ANY SUBSEQUENT MODIFICATION, DO NOT ACCESS, BROWSE OR OTHERWISE USE AUTHORIZED USER SITES.
Terms for HYTORC Sites. See Site Terms.
General Privacy Policy. See General Privacy Policy.
Terms of Sale Agreement. See Terms of Sale Agreement.
HYTORC Proprietary Rights. HYTORC maintains, in whatever medium, the following HYTORC- possessed, developed, accumulated or acquired: (1) any content, text, graphics, design arrangements, presentations, marketing items, advertisements, pamphlets, manuals, user guides, images, color schemes, websites, page headers, custom graphics, button icons, scripts, data, compilations, software, etc. (each, and collectively, "Materials"); (2) any names, logos, slogans, trade dress, indicia, trademarks, service marks, trade names, product markings, etc. (each, and collectively, "Marks"); (3) any trade secrets, market techniques, skills, strategic plans, product designs, methods of operation, business processes, services, ideas, inventions, concepts, works of authorship, copyrights and copyrightable materials and other intellectual property, etc. (each, and collectively, "Intellectual Property"); and (4) any information concerning or related to: (a) HYTORC’s financial condition, results of operations, and amounts of compensation paid to officers and employees; (b) the terms and conditions (including prices) of sales and offers of sales of products and services, and the current status of HYTORC’s relationship with any customer or supplier; (c) the terms, conditions and current status of HYTORC’s other agreements and relationship with any customers; (d) the identities and business preferences of HYTORC’s actual and
prospective customers and suppliers or any employee or agent thereof with whom HYTORC communicates; (e) any communications between HYTORC, its officers, directors, shareholders or employees, and any attorney for the purpose of assisting such attorney retained by HYTORC for any purpose, or any person retained or employed by such attorney for purpose of assisting such attorney in the representation of HYTORC; and/or (f) any other matter or thing, whether or not recorded in any medium (each, and collectively, "Confidential Information"). “HYTORC Proprietary Rights” means HYTORC Materials, Marks, Intellectual Property and/or Confidential Information, including all modification, updates, derivations thereof and changes thereto, in whatever medium. HYTORC retains all right, title and interest to HYTORC Proprietary Rights. HYTORC Proprietary Rights may not be used, copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means, in whole or in part, without the prior written permission of HYTORC. Any request for grant of a license to use HYTORC Proprietary Rights, whether personal or commercial, is subject to prior approval, and should be addressed to the HYTORC legal department.
Agreement Proprietary Rights. Authorized User agrees that any materials, marks, intellectual property and/or confidential information made by Authorized User in the course of or related to this Agreement (each, and collectively, "Agreement Proprietary Rights"), shall be the sole property of HYTORC, as works made for hire where applicable, free from any claim to legal or equitable title by Authorized User. Authorized User shall execute any documents as necessary to achieve such result.
Necessity of Confidentiality. Authorized User acknowledges and agrees that HYTORC is engaged in a highly competitive business and has expended, or will expend, significant sums of money, and has invested, or will invest, a substantial amount of time to develop and use, and maintain the secrecy of, HYTORC Proprietary Rights. HYTORC has thus obtained, or will obtain, a valuable economic asset which has enabled, or will enable, it to develop an extensive reputation and to establish long-term business relationships with its customers. If such HYTORC Proprietary Rights were disclosed to another person or entity or used for the benefit of anyone other than HYTORC, HYTORC would suffer irreparable harm, loss and damage. Accordingly, Authorized User acknowledges and agrees that, unless HYTORC Proprietary Rights become publicly known through legitimate origins not involving an act or omission by Authorized User: (1) HYTORC Proprietary Rights are, and at all times hereafter shall remain, the sole property of HYTORC; (2) Authorized User shall use his best efforts and the utmost diligence to guard and protect HYTORC Proprietary Rights from disclosure to any competitor or customer of HYTORC or any other person, firm, corporation, or other entity; (3) unless HYTORC gives Authorized User prior express written permission now and thereafter, he shall not use for its own or any third party’s benefit, or divulge to any competitor or customer or any other person, firm, corporation or other entity, any HYTORC Proprietary Rights which he may obtain, learn about, develop, or be entrusted with as a result of his relationship with HYTORC; and (4) except in the ordinary course of HYTORC’s business, Authorized User shall not seek or accept any HYTORC Proprietary Rights from any former, present or future employee of HYTORC.
Unauthorized Disclosure of HYTORC Proprietary Rights. If it appears that Authorized User disclosed, or threaten to disclose, HYTORC Proprietary Rights in violation of Agreement, HYTORC shall be entitled to terminate Authorized User and/or to an injunction to restrain Authorized User from disclosing, in whole or in part, such HYTORC Proprietary Rights, or from providing services or assistance to any party to whom such HYTORC Proprietary Rights has been disclosed or may be disclosed. HYTORC shall be entitled to recover its reasonable attorneys’ fees and court costs in enforcing any provision of Agreement. This provision will not prohibit HYTORC from pursuing other remedies, including any claim for losses and damages.
Return of Records. Upon termination of Agreement, Authorized User shall deliver, and shall cause its employees and agents to deliver, all HYTORC Proprietary Rights, including records, notes data, memorandum, models, and equipment of any nature that are in its or their possession or under its or their control and that are HYTORC’s property or relate to HYTORC’s business. Authorized User shall not make or keep, and shall cause its employees and agents not to make or keep, any copies, notes, abstracts, summaries, tapes or other record of any type of HYTORC Proprietary Rights. Authorized User shall also return, and shall cause its employees and agents to return, all HYTORC property in its or their possession or control.
Relationship Between HYTORC and Authorized Users of the Independent Sales Representative (“ISR”) Type. This section applies only to Authorized Users designated as ISRs.
Independent Contractor. ISR is an independent contractor with respect to HYTORC and not an employee of HYTORC for any purpose. HYTORC will not provide, and ISR shall not be entitled to any benefit Company provides to its employees. Such benefits include, but are not limited to, health insurance, disability insurance, vacation, holidays, pension or any other employee benefit, for the benefit of ISR. ISR shall not be construed to constitute a general agent, partner or joint-venturer of HYTORC, it being the intention that ISR remain an independent contractor and shall be responsible for its actions and those of any of ISR’s agents, servants, and/or other employees. HYTORC shall withhold no taxes (federal, state or local or payment of social security (FICA), Medicare or workers compensation) from compensation paid to ISR for services rendered. ISR accepts responsibility for such taxes and payments and shall indemnify HYTORC for any losses or claims arising from ISR’s failure to pay such taxes.
Limitations on ISR. ISR shall not to hold itself out as an employee of HYTORC. ISR shall not to enter any commitments on behalf of, in the name of, or bind HYTORC in any way. ISR shall not to sign the name of HYTORC to any commercial paper, contract or other instrument. ISR shall not to contract any debt or enter any agreement binding HYTORC to the payment of money. ISR shall not to receive or make payments for or on behalf of HYTORC. ISR shall not to sell competing goods within territory without written notice of HYTORC. ISR shall not to transfer or assign Agreement or any interest therein without written consent of HYTORC. ISR shall not export product outside of territory, whether domestically or internationally.
Expectations of ISR. ISR shall maintain separate office space, office facilities and competent personnel. ISR shall bear the entire cost and expense of conducting activities under Agreement. ISR shall respond promptly to all product inquiries and requests by customers or potential customers in territory. ISR shall communicate electronically via HYTORC authenticated means. ISR shall seek written approval by HYTORC in advance for any ISR-created websites, pamphlets, catalogs, booklets, manuals or other advertising, marketing, selling or technical data, information or literature.
INJURIES. ISR SHALL OBTAIN APPROPRIATE INSURANCE COVERAGE FOR BENEFIT OF ISR (AND ISR’S EMPLOYEES). ISR WAIVES ANY RIGHTS TO RECOVERY FROM HYTORC FOR ANY INJURIES THAT ISR (AND/OR ISR’S EMPLOYEES) MAY SUSTAIN WHILE PERFORMING SERVICES UNDER AGREEMENT AND THAT ARE A RESULT OF THE NEGLIGENCE OF ISR OR ISR’S EMPLOYEES. ISR SHALL NAME HYTORC AS AN ADDITIONAL INSURED UNDER ISR’S GENERAL LIABILITY INSURANCE POLICY ($2,000,000.00 USD COMBINED SINGLE LIMIT), UNDER ISR’S WORKERS COMPENSATION (APPLICABLE STATE LIMITS) AND EMPLOYER LIABILITY POLICY ($2,000,000.00 USD). ISR SHALL PROVIDE HYTORC WITH A CERTIFICATE OF INSURANCE EVIDENCING THAT ISR MAINTAINS SUCH COVERAGE.
INDEMNIFICATION. ISR SHALL INDEMNIFY AND HOLD HYTORC HARMLESS FROM AND AGAINST ANY AND ALL CLAIMS, LOSSES, DAMAGES, LIABILITIES, EXPENSES AND FEES, INCLUDING ATTORNEY FEES, COSTS AND JUDGMENTS THAT MAY BE ASSERTED AGAINST HYTORC THAT RESULT FROM THE ACTS OR OMISSIONS OF ISR, ISR’S EMPLOYEES, IF ANY, AND ISR’S AGENTS, INCLUDING ANY CLAIMS MADE UNDER WORKERS COMPENSATION LAWS OR FOR PERSONAL INJURY OR PROPERTY DAMAGE ARISING OUT OF OR RELATING TO THE PERFORMANCE BY ISR OF ITS OBLIGATIONS HEREUNDER. THE PROVISIONS OF THIS PARAGRAPH SHALL NOT BE CONSTRUED TO CONSTITUTE AN INDEMNIFICATION CONTRARY TO ANY GOVERNING LAW THAT SHALL PROHIBIT INDEMNIFICATION AGAINST LOSS, LIABILITY OR COST CAUSED BY THE NEGLIGENCE OF INDEMNITEE. THE INDEMNIFICATION PROVIDED FOR IN THIS SECTION SHALL SURVIVE TERMINATION OF AGREEMENT.
Entire Agreement. Agreement supersedes all prior discussions and writings with respect to the subject matter hereof and constitutes the entire agreement between the Parties.
Amendment. Except as otherwise provided, Agreement may be modified, altered or amended only by written instrument signed by both Parties.
Termination of Agreement. Parties agree that Agreement is at-will. Either Party may terminate Agreement for any reason at any time by written notice to the other Party.
Choice of Law and Forum. AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF NEW JERSEY, WITHOUT REGARD TO CONFLICTS OF LAWS RULES OR PRINCIPLES. THE PARTIES IRREVOCABLY ATTORN TO THE JURISDICTION OF THE COURTS OF NEW JERSEY.
Judicial Relief. HYTORC maintains right to file action in a court of competent jurisdiction for judicial relief against Authorized User.
No Assignment of Agreement. Authorized Users shall not assign Agreement to any other person, firm or corporation without the prior written consent of HYTORC. Subject to the foregoing, Agreement shall be binding upon and shall inure to the benefit of the Parties hereto and respective successors and assigns.
Execution Authority. Each person signing Agreement represents it has full authority to execute Agreement.
Headings. Section headings of Agreement are for convenience only and shall not constitute a part hereof or affect in any way the meaning or interpretation of Agreement.
Severability of Provisions. The provisions of Agreement are severable and if any provision is determined to be void or unenforceable, in whole or in part, the remaining provisions of Agreement shall nevertheless be binding and enforceable.
Survival of Provisions after Termination. The provisions of the first (1st) and second (2nd) sections shall survive termination of Agreement.
Waiver. The failure of a Party to enforce at any time the provisions hereof shall not be construed to be a waiver of or right to enforce such provisions. Parties may waive such enforcement power or right only in writing, signed by both Parties.
