This Terms of Use (the “Terms”) governs the use of the Sample Track® software (the “Software”) and constitutes an agreement between SGS North America Inc. (“SGS”) and all users of this Software, including you. Each time you use the Software you signify your acceptance and agreement, and the acceptance and agreement of your employer (the “named licensed party”) without limit or qualification, to be bound by these Terms as it then reads, and you represent and warrant that you have the legal authority to agree to and accept these Terms on behalf of yourself and your employer. If you do not agree with each provision in these Terms, or you are not authorized to agree to accept these Terms, you may not use this Software.
Certain functionalities of the Software may be used only by users who have been issued a login name and password,(together, the Credentials) by SGS and thereby granted authorized user permission. You agree that you will not allow any user other than those authorized by SGS with Credentials to use the Software. Specifically, SGS grants authorization for use of the Software to those individuals our support staff communicates with and whom have been trained in the proper use of the Software. Any use of the Software by unauthorized users will violate these Terms and may result in termination of the rights and privileges granted herein.
SGS is under no obligation to verify the identity of the user accessing data through the Software. It is assumed by SGS that the Software is run in a secure, controlled environment that disallows access to unauthorized users. SGS has the right, at its discretion, to monitor data traffic and to act upon any suspicious communication. SGS may at any time request the identity of those users allowed to use the Software and deny any number of individuals access to the Software or any parts of the Software SGS deems necessary.
If you have been issued Credentials: (a) you are fully responsible and liable for the security of the Credentials and any and all use and misuse of the Credentials; (b) you will keep the Credentials secure and confidential at all times and not disclose the Credentials to any other person or permit any other person to use the Credentials; (c) you will ensure that all uses of the Credentials comply with these Terms; (d) once you have started the Software you will not leave the device or computer terminal used to run the Software unless and until you have terminated the application and ensured it is closed; and (e) you will immediately notify SGS by telephone at 605-692-7611 or email to mwss.sampleinfo@sgs.com if you know or suspect that any Credentials have been lost or stolen or become known to or used by any other person.
Any attempt to use the Credentials or access the information of any other SGS customer, intentionally or unintentionally, may be viewed as a violation of these Terms and SGS holds the power terminate this agreement and revoke all rights and abilities afforded herein. Any communication or transfer of data to SGS using the Software may be monitored and logged. The abuse of any communication channel used by the Software may be viewed as a violation of these Terms. This includes, but is not limited to, port listening, denial of service attacks or any variant attack, man-in-the-middle attacks, or social engineering. Any attempt to inject additional data of any kind into communications with SGS through the Software may result in the termination of the permissions or licenses granted by SGS.
The Software is owned by SGS. SGS grants you with a limited license to access and use the Software in its original, unmodified state. You may not copy or modify it or any portion of it, except with the express written consent of SGS. This license does not include rights to any resale or commercial use of the Software or any of its components. Some of the components of the Software are copyrighted components licensed to SGS for its specific use. Any use or modification of those components will be a violation of these Terms and will result in termination of all the rights and privileges granted herein. Furthermore, the violating party will be subject to whatever consequences the original copyright holder may bring into effect. The use of third-party software to interact with the Software is not allowed and may result in a violation of these Terms. None of the Software or any portion thereof may be reproduced, duplicated, copied, sold, resold, viewed or otherwise exploited for any commercial purpose without the express written consent of SGS. For the purposes of clarity, these Terms shall continue to apply even in the event that you choose not to use the Software after it has been accessed.
These Terms and the Software are protected by copyright pursuant to U.S. copyright laws, international conventions, and other copyright laws. You will abide by any and all additional copyright notices, information, or restric¬tions contained in these Terms or in the Software. Nothing contained in these Terms may be reproduced, distributed or edited in any manner without the prior written authorization of SGS.
These Terms and the Software contain trademarks which are owned and registered by SGS or its affiliated companies, to distinguish its services. No license to use any of these trademarks is hereby granted or implied. No reproduction is permitted without specific written authorization.
SGS reserves the right, at its sole discretion, to change, modify, add or remove any portion of these Terms, in whole or in part, at any time. Notification of changes in the Agreement will be posted on the Website and be made known upon the installation of a new version of the Software.
SGS does not warrant that operation of the Software will be uninterrupted or “bug” free. You may notify SGS of any performance issues relating to the Software by submitting an email to mwss.sampleinfo@sgs.com.
a. SGS does not warrant that operation of the Software will be uninterrupted or “bug” free. You may notify SGS of any performance issues relating to the Software by submitting an email to mwss.sampleinfo@sgs.com.
b. Injunctive Relief. If an injunction is sought or obtained against your use of the Software as a result of a third party infringement claim, SGS may, at its sole option and expense, (i) procure for you the right to continue using the Software, (ii) replace or modify the Software with a functional equivalent so that it does not infringe, or, if either (i) or (ii) is not commercially feasible, (iii) terminate the licenses and refund the license fees received for the Software on a pro-rata basis using a thirty six (36) month amortization schedule.
c. Disclaimer of Liability. SGS shall have no liability for any third party claim of infringement based upon (i) use of other than the then current, unaltered version of the Software, unless the infringing portion is also in the then current, unaltered release; (ii) use, operation or combination of the Software with non-SGS programs, data, equipment or documentation if such infringement would have been avoided but for such use, operation or combination; or (iii) any third party software. The foregoing constitutes the entire liability of SGS, and your sole and exclusive remedy with respect to any third party claims of infringement.
You hereby agree to indemnify, defend and hold SGS, and all its officers, directors, owners, agents, employees, informa¬tion providers, affiliates, licensors and licensees (collectively, the "Indemnified Parties") harmless from and against any and all liabil¬ity and costs incurred by the Indemnified Parties in connection with any claim arising out of any breach by you of the Terms, including, without limitation, attorneys fees and costs. You shall cooperate as fully as reasonably required in the defense of any claim. SGS reserves the right, at its own expense, to assume the exclusive de¬fense and control of any matter otherwise subject to indemnification by you and you shall not in any event settle any matter without the written consent of SGS.
The Software may contain links and pointers to the other related Internet sites, and resources. Links to and from the Website to other third party sites, maintained by third parties, do not constitute an endorsement by SGS or any of its subsidiaries or affiliates of any third party resources, or their contents. SGS MAKES NO WARRANTIES OR REPRESENTATIONS, EXPRESS OR IMPLIED, BY OPERATION OF LAW OR OTHERWISE, WITH RESPECT TO ANY SERVICES SUPPLIED UNDER THESE TERMS. SGS EXPRESSLY DISCLAIMS ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT.
SGS’S MAXIMUM LIABILITY FOR ANY DAMAGES ARISING OUT OF OR RELATED TO THESE TERMS, WHETHER IN CONTRACT OR TORT, OR OTHERWISE, SHALL BE LIMITED TO THE AMOUNT OF FEES PAID SGS UNDER THESE TERMS FOR ACCESSING THE SOFTWARE. IN NO EVENT SHALL SGS BE LIABLE FOR ANY INDIRECT OR CONSEQUENTIAL LOSS OR DAMAGE (WHETHER FOR LOSS OF PROFIT OR OTHERWISE ARISING OUT OF OR IN CONNECTION WITH THE USE OF THE SOFTWARE.
SGS may, at any time with seven (7) days prior written notice, request and gain access to your premises subject to your security procedures, for the limited purpose of conducting an audit to determine and verify that you are in compliance with this Agreement. You will promptly grant such access and cooperate with SGS in the audit. The Audit will be conducted in a manner not intended to unreasonably disrupt your business and will be restricted in scope, manner and duration to that reasonably necessary to achieve its purpose. You will be liable for promptly remedying discrepancies revealed during the audit, including reimbursement to SGS for the costs of the Audit should any discrepancies be found.
Except for actions for breach of SGS’ proprietary rights, no action, regardless of form, arising out of or relating to this Agreement may be brought by either party more than two (2) years after the cause of action has accrued.
Neither party shall be liable for any delay or failure in performance due to causes beyond its reasonable control.
This Agreement shall be governed in accordance with the substantive laws of the State of New Jersey, without reference to conflict of laws principles. Any and all disputes arising hereunder shall be adjudicated exclusively in the federal or state courts located in the State of New Jersey.
A failure by either party to insist upon strict compliance with any of the terms set forth herein in any instance shall not be construed as a waiver of such terms in the future.
If any provision of these Terms shall be held invalid or unenforceable, such provisions shall be deemed deleted from these Terms and replaced by a valid and enforceable provision which so far as possible achieves the parties' intent in agreeing to the original provision. The remaining provisions of these Terms shall continue in full force and effect.
Each party shall comply will all applicable federal, state, and local laws and regulations, including the applicable export laws and regulations of the United States.
These Terms constitutes the entire agreement between SGS and you with respect to your use of the Software. For the purposes of clarity, in the event that the parties have entered into a separate services agreement relating to the provision of services by SGS through the use of Sample Track®, such separate services agreement shall take precedence over any inconsistent or conflicting terms contained in these Terms and shall prevail over any preprinted, conflicting, or other terms on any purchase order or other document.