These Terms of Access describe the terms and conditions applicable to User’s access to, and use of, the DataManager web based software application located at datamanager.sgs.com (the “DataManager”). DataManager is a web based software application hosted and powered by Oracle from which SGS received all rights to make it accessible to User. These Terms of Access shall be read in conjunction with SGS General Conditions of Services available at www.sgs.com/en/Terms-and-Conditions.aspx and Oracle’s software support services, available at http://www.oracle.com/us/legal/terms/index.html. By logging into the DataManager, User is indicating that it has read and understood these Terms of Access and that it agrees to comply with and be legally bound by all of its terms and conditions. “User” means either (i) any single person who registers to use DataManager as an individual with whom SGS has entered into any agreement with for the provision of Services, as defined in SGS General Conditions of Services, or (ii) any person who registers to use DataManager as an employee or a representative of a company with which SGS has entered into a master agreement for the provision of Services.
1. SCOPE OF LICENSE
Access. Subject to a license fee and a number of users as agreed by the parties, SGS grants User, for the duration of the services term defined in the agreement between User and SGS for the provision of the Services, a non exclusive, non transferable and personal license to access the DataManager in order to read and view (i) audit, inspection and testing reports and/or related certificates and (ii) any other related compilation of data or statistical data in the form of text or images that SGS has uploaded into DataManager for the User (User Content). User Content will be made available for a minimum duration of one (1) year as from the date of the report or the certificate, following which the final reports and certificates may be archived and made available to User upon User’s request providing that the current license has not expired. The license granted hereby is personal to User.
2. USER ACCOUNT REGISTRATION
Registration Obligations: when registering to DataManager User agrees to: (a) provide true, accurate, current and complete information about himself or company as prompted by the account form and (b) maintain and promptly update his information to keep it true, accurate, current and complete. If User provides any information that is untrue, inaccurate, not current or incomplete, or if SGS has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, SGS has the right not to set the account, or suspend the account or terminate User’s registration and refuse any and all current or future use of DataManager. If User has registered with SGS on behalf of a company or other entity then User represents and warrants that it has the authority to bind such company or other entity to these Terms.
3. USER CONDUCT
User ID, Password and Security: During the registration process, SGS will provide User with a temporary User ID and password. User shall reset the latter himself as soon as received to ensure complete confidentiality. User is solely responsible for maintaining the confidentiality of its User ID and password and for all activities that occur under User ID and password. User agrees to (a) keep the password to himself and not share or sell it with anyone else, (b) not register for more than one account; (c) immediately notify SGS of any unauthorized use of User ID or password or any other breach of security and (b) ensure that User properly exits DataManager at the end of each session.
Restrictions of use. By registering or using DataManager, User agrees that the license to access DataManager is for User’s internal business purposes only and that it does not include any resale or commercial use of DataManager or its contents including User Content; any collection and use of any product listings, descriptions or prices; any derivative use of DataManager or its contents; any downloading or copying of account information for the benefit of another merchant or passing account information to any third party as well as any information on DataManager. DataManager or any portion thereof shall not be reproduced, duplicated, copied, sold, decompiled, reverse engineered or otherwise exploited for any commercial purpose. User further agrees that the use of User Content is subject to all limitations set forth in SGS General Conditions of service or any supplemental conditions set forth in the relevant Master Agreement.
4. WARRANTIES, LIABILITIES AND INDEMNITIES
SGS limited warranty. SGS warrants User that DataManager will perform substantially in accordance with (i) the scope and specifications contained in section 1 of these Terms of Access, (ii) any supplemental conditions or specifications mentioned in any specific agreement for Services between User and SGS and (iii) the support conditions set forth in Oracle’s service agreement. Although SGS will make commercially reasonable efforts to maintain access, SGS does not warrant and hereby disclaims that DataManager will be uninterrupted or error-free. SGS does not control the transfer or data over communications facilities, including the Internet and SGS shall not be liable for any damages, delays, loss of data or delivery failures or other damages related to the discontinuance, interruption or failure of access to DataManager. To the maximum extent permitted by law, SGS provides access to DataManager and support services “as is” and hereby disclaims all other warranties, conditions or assurances or obligations whatsoever with regard to User’s Access to DataManager (or failure to access) or as may otherwise arise out of the use, or reliance on the use of DataManager.
SGS Limitation of liability. To the maximum permitted by law, SGS excludes all liability and responsibility to User in contract, tort, or otherwise, for any loss (including loss of information or data) or damage resulting directly or indirectly from any use, or failure to use, DataManager. Unless otherwise agreed in any agreement for Services, if User suffers any loss from SGS’ proven negligence or failure to comply with any of the limited warranties set forth herein, User exclusive remedy shall be to terminate these Terms of Access in accordance with clause 5 below. In no event shall SGS be liable for any indirect, special or consequential damages of any kind.
User’s liability and indemnity. User shall be responsible for its own use of DataManager and for any business or commercial decision it takes based upon User Content. User shall comply with all terms and conditions set forth herein and hereby agrees to indemnify and hold SGS, its subsidiaries, affiliates, officers and employees, harmless from any claim or demand, including reasonable attorneys' fees, made by any third party due to or arising out of User’s failure to comply with these Terms of Access.
5. INTELLECTUAL PROPERTY RIGHTS
User agrees that DataManager is a proprietary web based software and that all right, title and interest in and to DataManager including all associated intellectual property rights, are and shall at all times remain with Oracle and its licensees. Any authorized customization made by SGS and any expression or result of SGS’ findings, analyses, conclusions, recommendations, ideas or know how created by SGS in the course of processing User Content shall remain the property of SGS, provided, however, that client retains all right and title to User Content and User’s confidential and personal information.
Causes of termination. Unless terminated in accordance with the terms mentioned below, these terms of Access are effective until terminated by User directly or terminated pursuant to the terms of the agreement or master agreement for Services between User and SGS. Subject to prior written notice, either Party may change, suspend, or discontinue, deactivate Access at any time to DataManager or any portion thereof for any reason. SGS may cancel or suspend or automatically terminate User’s access if User violates (a) the terms of these Terms of access or (b) the terms of any service agreement with SGS to which this Access is related and that such violations are not remedied within seven (7) days of notification of the violation by SGS. SGS may further cancel or suspend User’s access if SGS believes that User’s use of DataManager represents a direct or indirect threat to its network function or Oracle’s network function or integrity.
Consequences of termination. In the event of termination of these Terms of Access, User shall not have any claim or demand or suit against SGS. Upon termination for any reason, SGS shall have no obligation to continue to hold on its servers, export or return User Content and User is solely responsible for taking the necessary steps to back up its Content and ensure that it maintains its primary means of business.
7. GOVERNING LAW AND JURISDICTION
These Terms of Access (and any dispute, controversy, proceeding or claim of whatsoever nature arising out of or in any way relating to it) shall be governed by, and interpreted in accordance with, the substantive laws of Switzerland exclusive of any rules with respect to conflicts of laws and all disputes shall be finally settled under the Rules of Arbitration of the International Chamber of Commerce by one or more arbitrators appointed in accordance with the said rules. Unless otherwise agreed, the arbitration shall take place in Geneva, Switzerland in English.