Variety Card Design

VARIETY CARD DESIGN ONLINE STUDIO TERMS OF SERVICE AGREEMENT

VARIETY CARD DESIGN ONLINE STUDIO
TERMS OF SERVICE AGREEMENT

PLEASE READ THE TERMS AND CONDITIONS OF THESE OBERTHUR TECHNOLOGIES OF AMERICA COMPANY (“OTA”) VARIETY CARD DESIGN ONLINE STUDIO TERMS OF SERVICE AGREEMENT CAREFULLY. BY CLICKING ON THE “ACCEPT” BUTTON, BELOW, YOU ACCEPT THE TERMS AND CONDITONS OF THIS AGREEMENT AS OF THE DATE YOU CLICK THE “ACCEPT” BUTTON ON BEHALF OF YOURSELF AND YOUR EMPLOYER (COLLECTIVELY REFERRED TO AS “YOU” OR “YOUR” OR “COMPANY”). IF YOU DO NOT AGREE TO ALL THESE TERMS, SELECT THE “DECLINE” BUTTON AT THE END OF THIS AGREEEMENT.

1. Definitions.
1.1. “Affiliate” means, with respect to either Party, any individual or entity that, by virtue of a majority ownership interest, directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with that Party.
1.2. “OTA Web Site” means, collectively, (i) the World Wide Web site identified by the URL < www.oberthurcs.com>, (ii) any prototypes or demonstration versions of the OTA Web Site, or any part thereof, (iii) any successors, replacements, or other Web Sites that from time to time are maintained by or for OTA or any of its Affiliates.
1.3. “Card” means any SIM and/or multi-application smart card derived, designed, or visualized through Company's or Client's use of or access to the Variety Card Design Online Studio, solely to be manufactured by OTA.
1.4. “Company and/or Client Designs” means any Card designs provided by the Company or its Client to OTA for uploading to the Variety Card Design Online Studio.
1.5. “Company Web Site” means, collectively, (i) the World Wide Web site identified by the URL < www.company.com >, (ii) any prototypes or demonstration versions of the Company Web Site, or any part thereof, (iii) any successors, replacements, or other Web Sites that from time to time are maintained by or for Company or any of its Affiliates.
1.6. “Client” means, any entity with which Company has, or develops in the future, a relationship for the design, manufacture or production of a Card utilizing the Variety Card Design Online Studio.
1.7. “Deep Link” means an underlined textual or graphical link to an internal or subsidiary page of the OTA Web Site that is located one or several layers down from the OTA home page.
1.8. “Framing” means presenting content from the OTA Web Site within a frame bounded by the Company Web Site page such that navigation away from the Company Web Site to the OTA Web Site is not apparent to Clients accessing the Company Web Site.
1.9. “Intellectual Property” means, any patent, copyright, trademark, trade secret, trade dress, mask work, moral right, right of attribution or integrity or other intellectual or industrial property rights or propriety rights arising under the laws of any jurisdiction.
1.10. “Mark” means a Party's trade name and any trademarks, service marks, logos, designs or other indicia of origin used by a Party and/or its Affiliates.
1.11. “Variety Card Design Library” means the collection of OTA proprietary card designs.
1.12. “Variety Card Design Online Studio” means the OTA online web-based proprietary software program resident on the OTA server which
provides user with access to the tools and the OTA Variety Card Design Library in order to design, visualize and develop Cards to be manufactured solely by OTA.
2. License Grant.
2.1. OTA grants to Company a limited, nonexclusive license to create on the Company Web Site a Deep Link directed to an internal page on the OTA Web Site that allows the Company and its Clients to access the Variety Card Design Online Studio.
2.2. OTA grants to Company a limited, nonexclusive license to use OTA's proprietary Marks for the purpose of Deep Linking to the OTA Web Site.
2.3. OTA grants to Company a limited, nonexclusive right to Frame the OTA Web Site. OTA shall have the right, but not the obligation, to approve each Frame utilized by the Company.
2.4. OTA grants to Company a limited, nonexclusive license, and the right to sublicense Clients to use the Variety Card Design Library on the OTA Web Site for the sole purpose of designing, visualizing and developing a Card to be manufactured solely by OTA.
2.5. Company grants to OTA a limited, nonexclusive license to internally use Company's proprietary Marks for the purpose of branding or cobranding the homepage of the Variety Card Design Online Studio.
2.6. Company grants to OTA a limited, nonexclusive license to internally use the Company Designs and Client Designs supplied by Company to OTA for the sole purpose of uploading such Designs to the Variety Card Design Online Studio.
3. Restrictions.
3.1 Company shall not display any advertising, ad banners, sponsor links or other promotional displays on the Company Web Site that links to the OTA Web Site for any service or product that competes with the products or services of OTA.
3.2 Company agrees not to reproduce, duplicate, copy, sell, resell, or exploit any portion of the OTA Web Site or the Variety Card Design Online Studio, use of the OTA Web Site or the Variety Card Design Online Studio, or access to the OTA Web Site or the Variety Card Design Online Studio and to enforce such terms with its Clients.
3.3 Company and its Client's use of the Variety Card Design Online Studio is subject to OTA's Privacy and Security Policy and OTA Terms of Use. For information on OTA's privacy and security practices, please see the entire Privacy and Security Policy at . For information on OTA's Terms of Use, please see the entire Terms of Use at .
3.4 Company agrees that all Cards, whether for itself or a Client, designed, visualized or in any way developed utilizing the Variety Card Design Online Studio shall be manufactured by OTA under a separate agreement.
3.5 Company may not alter, reverse engineer, decompile, disassemble (or otherwise attempt to discover the source code), down-load (change hardware formats) of the Variety Card Design Online Studio or any of its subcomponents or subpages.
3.6 Company may not rent, electronically distribute, share by interactive cable, remote processing services, micro-mainframe linkups or multiuser/ local area network the Variety Card Design Online Studio unless otherwise agreed in writing with OTA.
4. Customization; Support and Maintenance
4.1 At Company's request, OTA will brand or co-brand the Variety Card Design Studio homepage with Company's corporate logo. Company will supply OTA with Company's corporate logo, together with any usage guidelines for the sole purpose of branding or co-branding the Variety Card Design Studio homepage.
4.2 Company's request, and pursuant to the terms herein, OTA will upload Company and/or Client Designs to the Variety Card Design Studio during regularly scheduled updates to the Variety Card Design Studio.
4.3 OTA will provide online support solely to the Company and is not responsible for supporting Clients. OTA will also provide updates, upgrades and maintenance to the Variety Card Design Studio at regularly scheduled intervals.
4.4 OTA will provide Company with the following distribution channels for promoting and accessing the Variety Card Design Studio: (i) URL hyperlink and (ii) upon request from Company, OTA will provide Company at no charge with a maximum of ten (10) CDs for demonstration of the Variety Card Design Studio to prospective clients. Any further CDs requested will be billable at the then OTA current rate.
5. Term, Termination and Effect of Termination.
5.1 Term. The term of this TOS shall begin upon the Effective Date and shall continue for a period of two (2) years, and upon notice from Company to OTA, at OTA sole discretion, shall renew for subsequent one (1) year periods thereafter unless sooner terminated in accordance with the terms hereinafter set forth. Either Party may terminate this TOS, with or without cause, for convenience by giving the other Party thirty (30) days written notice.
5.2 Breach. Without prejudice to any other right or remedy which may be available to it, either party shall be entitled to immediately terminate this TOS by giving written notice to the other, if the other party:(i) has committed a material breach of any of its obligations hereunder which is not capable of remedy; (ii) has committed a material breach of any of its obligations hereunder which is capable of remedy but which has not been remedied within a period of sixty (60) days following receipt of written notice to do so; (iii) makes any voluntary arrangement with its creditors for the general settlement of its debts or becomes subject to an administration order; or (iv) has an order made against it, or passes a resolution, for its winding-up (except for the purposes of amalgamation or reconstruction) or has an encumbrancer take possession or has a receiver or similar officer appointed over all or substantially all of its property or assets.
5.3 Effect of Termination. Upon termination of this TOS, Company will immediately discontinue any use of the OTA Online Design Studio and delete the hyperlink and frame from the Company Web Site. Within one month after termination of this TOS, Company will furnish to OTA a certificate signed by a duly authorized representative of Company that to the best of his or her knowledge, information and belief, after due inquiry, Company has complied with provisions of this section.
6. Warranty; Disclaimer; Limitation of Liability
6.1 OTA warrants that: (i) OTA is the owner of the Variety Card Design Library and the OTA Website (ii) the Variety Card Design Library does not infringe any third party Intellectual Property rights; and (iii) OTA has the right to enter into this TOS.
6.2 Company warrants that: (i) Company and/or Client Designs submitted to OTA for uploading on the OTA Website do not infringe any third party Intellectual Property rights; (ii) Company or Client, is the owner of any Company/Client Designs submitted to OTA for uploading on the OTA Website; and (iii) Company has the right to enter into this TOS.
6.3 COMPANY EXPRESSLY UNDERSTANDS AND AGREES THAT:
(a) COMPANY'S USE OF THE VARIETY CARD DESIGN ONLINE STUDIO IS AT ITS SOLE RISK. THE VARIETY CARD DESIGN ONLINE STUDIO IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. OTA EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
(b) OTA MAKES NO WARRANTY THAT (i) THE VARIETY CARD DESIGN ONLINE STUDIO WILL MEET YOUR REQUIREMENTS, (ii) THE VARIETY CARD DESIGN ONLINE STUDIO WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERRORFREE, (iii) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE VARIETY CARD DESIGN ONLINE STUDIO WILL BE ACCURATE OR RELIABLE, (iv) THE QUALITY OF ANY DESIGNS, SERVICES, INFORMATION, OR OTHER MATERIAL OBTAINED BY YOU THROUGH THE VARIETY CARD DESIGN ONLINE STUDIO WILL MEET YOUR EXPECTATIONS, AND (v) ANY ERRORS IN THE VARIETY CARD DESIGN ONLINE STUDIO WILL BE CORRECTED.
6.4 NEITHER PARTY SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM THE USE OR THE INABILITY TO USE THE OTA WEBSITE OR THE VARIETY CARD DESIGN ONLINE STUDIO AND ANY OTHER MATTER RELATING TO THE SERVICE.
7. Confidentiality
7.1 In performing its obligations pursuant to this TOS, each Party hereto (the “Disclosing Party”) may disclose to the other Party (“Receiving Party”) information in connection with the performance of this TOS, including without limitation, the Disclosing Party's business, designs, products, services, formats, computer programs, policies, procedures, methods, technical developments, trade secrets, financial results, formulas, marketing research and development methods, marketing statistics, product development plans, strategies, research data, Client data and the Variety Card Design Library. All such information about the Disclosing Party shall be deemed “Confidential Information.” The Parties shall use the Confidential Information of the other Party solely to perform this TOS, and all Confidential Information shall remain the sole property of the Disclosing Party. Information shall not be deemed Confidential Information if it: (i) is now or hereafter becomes, through no act or omission on the part of the receiving Party, generally known or available within the industry, or is now or later enters the public domain through no act or omission on the part of the receiving Party; (ii) was acquired by the receiving Party before receiving such information from the disclosing Party and without restriction as to use or disclosure; (iii) is hereafter rightfully furnished to the receiving Party by a third party, without restriction as to use or disclosure; (iv) is information which the receiving Party can document was independently developed by the receiving Party; (v) is required to be disclosed pursuant to law, provided the receiving Party uses reasonable efforts to give the disclosing Party reasonable notice of such required disclosure, and cooperates in any attempts by the disclosing Party to obtain a protective order or other similar protection against disclosure of the Confidential Information; or (vi) is disclosed with the prior written consent of the disclosing Party. Each of the parties shall use the same care as it uses to maintain the confidentiality of its most confidential information, which in no event shall be less than reasonable care. The Parties acknowledge that the remedy at law for any breach or threatened breach of the provisions of this Section shall be inadequate, and that the non-breaching Party, in addition to any other remedy available to it, shall be entitled to obtain injunctive relief without proof of irreparable injury without posting bond.
8. Intellectual Property Ownership
8.1 Except as licensed to Company under this TOS, all rights, title and interest in and to the Intellectual Property contained in the OTA Website and the Variety Card Design Library shall remain vested in OTA.
8.2 Except as licensed to OTA under this TOS, all rights, title and interest in and to the Intellectual Property contained in the Company/Client Designs shall remain vested in Company and/or Client.
9. General Provisions.
9.1 Severability. If any provision of this TOS is held to be ineffective, unenforceable or illegal for any reason, such decision shall not affect the validity or enforceability of any or all of the remaining portions thereof.
9.2 Nonassignment. Neither party shall assign or otherwise transfer this TOS or any of its rights and obligations hereunder whether in whole or in part without the prior written consent of the other, such consent not to be unreasonably withheld or delayed.
9.3 Governing Law. This TOS shall be governed in all respects by the laws of the United States of America and the State of Delaware without regard to conflicts of law principles. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to this TOS.
9.4 Waiver. No failure or delay on the part of either Party in the exercise of any power, right or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such power, right or privilege preclude any other or further exercise thereof, or of any other right, power or privilege.
9.5 Notice. Unless either Party notifies the other of a different address, any notice or other communication required or permitted hereunder shall be deemed sufficiently given, if sent by private express courier, or certified or registered mail, postage prepaid, return receipt requested, to the addresses set forth in the preamble of this TOS to the attention of the General Counsel, or to such other address as may be designated by a Party by giving written notice to the other Party:
9.6 Force Majeure. Neither party shall be liable for any failure or delay in its performance under this TOS due to causes, including, but not limited to, acts of God, acts of civil or military authority, fires, epidemics, floods, earthquakes, riots, wars, sabotage, third party industrial disputes and governments actions, which are beyond its reasonable control; provided that the delayed party: (i) gives the other party written notice of such cause promptly, and in any event within fourteen (14) days of discovery thereof; and (ii) uses its reasonable efforts to correct such failure or delay in its performance. The delayed party's time for performance or cure under this Section shall be extended for a period equal to the duration of the cause.
9.7 Construction of TOS & Headings. This TOS has been negotiated by the respective Parties hereto and reviewed by their respective attorneys and the language hereof, and any vagueness or indefiniteness of any term, shall not be construed for or against any Party. The headings of the Sections hereof are inserted for reference only and shall have no effect on the interpretation of this TOS.
9.8 No Agency. Nothing herein contained shall be construed to constitute the Parties hereto as partners or joint venturers or the agent of another Party in any sense of those terms whatsoever. Neither Party assumes any liability of the other Party nor shall have any authority to enter into any binding obligation on behalf of the other Party.
9.9 Entire TOS. This TOS contains the entire agreement and understanding between the Parties with respect to the subject matter hereof and merges and supersedes all prior oral and written agreements, understandings and representations. No addition or modification to this TOS is valid unless made in writing and signed by both Parties hereto. The printed terms and conditions of any purchase order form issued by Company shall not modify or be a part of this TOS.
9.10 International Users: Recognizing the global nature of the Internet, You agree to comply with all local rules regarding online conduct. Specifically, You agree to comply with all applicable laws regarding the transmission of technical data exported from the United States or the country in which you reside. The Services are administered by OTA from its offices in the United States. Materials published at the OTA Website may refer to products, programs, or services that are not available in Your country. Furthermore, OTA makes no representation that the Variety Card Design Online Studio is appropriate or available for use at other locations outside of the United States and access to them from territories where their content is illegal is prohibited. You may not use the Variety Card Design Online Studio, export or import designs, information and materials in violation of the export laws of the United States or any other country.