TEMA License Agreement
IMPORTANT- READ THESE TERMS CAREFULLY BEFORE PURCHASING THIS TEMA STANDARD.
By purchasing a subscription and clicking through this agreement, you are entering into a contract, and acknowledge that you have read this License Agreement, that you understand it and agree to be bound by its terms. If you do not agree to the terms of this License Agreement, promptly exit this page without accessing the TEMA Standard.
This Standard is copyrighted, as an individual publication, by the Tubular Exchanger Manufacturers Association, Inc. ("TEMA"), 25 North Broadway, Tarrytown, NY, USA, except as may be explicitly noted in the text of the individual pages. All rights reserved. You (Licensee) have no ownership or other rights in the TEMA Standard. This is not a sale; all right, title and interest in the TEMA Standard (in both electronic file and hard copy) belong to TEMA. You may not remove or obscure the copyright notice or other notices contained in the TEMA Standard.
2. License: This is a single user license grant: Licensor grants to Licensee a limited, revocable, nonexclusive, non-transferable license to display this standard in portable document (.pdf) format from one personal computer. Licensee may browse, search, retrieve, display, and view the Standard. Access to the Internet will be required at infrequent intervals. The standard may not be sold, resold, rented, leased, lent, or subleased. The Standard may not be printed, placed on a network, or otherwise reproduced. Any use of the Standard not provided for in this License is a violation of this Agreement and can result in immediate termination of this License.
Except as otherwise provided in this Agreement, no one may, without the prior express written permission of TEMA: (a) distribute or forward a copy (electronic or otherwise) of any material obtained from any TEMA Standard; (b) reproduce or photocopy any material from the TEMA Standard; (c) alter, modify, adapt, or translate any Standard or material obtained from any TEMA Standard; (d) include any Standard or material obtained from any TEMA Standard in other works or otherwise create any derivative work based on any materials obtained from any TEMA Standard. Licensee may not utilize the Standard, or access to the Standard, for commercial purposes, including but not limited to the sale of documents, materials, fee-for-service use of the Standard or bulk reproduction or distribution of documents in any form; nor may Licensee impose special charges on Authorized Users for use of the Standard beyond reasonable administrative costs. Licensor expressly reserves all other rights it may have in the material and subject matter of this standard, and you acknowledge and agree that Licensor owns all right, title, and interest in and to this standard. You agree to not assert any intellectual property rights that would be necessarily infringed by implementation or other use of this standard against Licensor or any other entity with respect to such implementation or other use of this standard. If you submit any comments or suggestions to Licensor, and Licensor modifies this standard based on your input, Licensor shall own the modified version of this standard.
3. Detection of Prohibited Uses.
A. Licensee is responsible for taking reasonable measures to prevent prohibited uses, and will promptly notify TEMA of any infringements of copyright or prohibited use of which Licensee becomes aware. Licensee will cooperate with TEMA in investigating any such prohibited uses and will take reasonable steps to ensure the cessation of such activity and to prevent any reoccurrence.
B. Licensee shall use all reasonable efforts to protect the Standard from any use that is not permitted under this Agreement, and shall notify TEMA of any use of which it learns or is notified.
4. Continued Access to Standard.
TEMA reserves the right to terminate this License, upon written notice, if Licensee materially breaches the terms of this Agreement. If Licensee fails to pay TEMA any license or subscription fees when due, TEMA will provide the Licensee with a 30-day period within which to cure such breach. No cure period will be provided for material breaches relating to violations of Section 3 or any other breach likely to cause TEMA irreparable harm. If Licensee's subscription to a TEMA Standard terminates, further access to the online database will be denied. If Licensee or Authorized Users materially breach this License or make prohibited uses of material in any TEMA Standard, TEMA reserves the right to deny Licensee any access to the TEMA Standard, in TEMA's sole discretion.
5. Delivery Formats and Service.
A. The Licensee and the Authorized Users are responsible for obtaining at their expense suitable Internet connections, Web browsers, and licenses for any software necessary to view the TEMA Standard.
B. The TEMA Standards are provided in Adobe Acrobat secured Portable Document Format (PDF) format to Licensee and its Authorized Users, who are solely responsible for installing and configuring the appropriate Adobe Acrobat Reader and FileOpen client software.
C. TEMA shall use reasonable efforts to make online access available on a continuous basis. Availability will be subject to periodic interruption and downtime for server maintenance, software installation or testing, loading new files, and reasons beyond the control of TEMA. TEMA does not guarantee access, and will not be liable for damages or refunds if access to the Standard becomes unavailable temporarily, or if access becomes slow or incomplete due to system back-up procedures, Internet traffic volume, upgrades, overload of requests to servers, general network failures or delays, or any other cause that may from time to time make the Standard unavailable for the Licensee or Licensee's Authorized Users.
6. Terms and Fees.
A. This Agreement commences upon acceptance by the Licensee and remains in place for as long as the Licensee continues to use the TEMA Standard unless otherwise amended or terminated by TEMA ("Subscription Period"). Access to the Standard is for the Subscription Period only. This Agreement will remain in effect thereafter for successive Subscription Periods so long as annual subscription fees, as such may change from time to time, are paid. Licensee and/or TEMA have the right to terminate this Agreement at the end of a Subscription Period by written notice given at least 30 days in advance.
TEMA has the right to verify compliance with this Agreement, at its expense, and at any time during the course of normal business hours. To do so, TEMA may engage an independent consultant, subject to a confidentiality agreement, to review Licensee's use of TEMA Standard and/or Documents. Licensee agrees to permit access to its information and computer systems for this purpose. Verification will take place upon no less than 15 days notice, during normal business hours and in a manner that does not interfere unreasonably with Licensee’s operations. If verification reveals unlicensed or prohibited use of the TEMA Standard, Licensee agrees to reimburse TEMA for the costs incurred in verification and reimburse TEMA for any unlicensed/prohibited uses. By invoking this procedure, TEMA does not waive any of its rights to enforce this Agreement or to protect its intellectual property by any other means permitted by law.
Licensee must immediately notify TEMA of any known or suspected unauthorized use(s) of its password(s), or any known or suspected breach of security, including the loss, theft or unauthorized disclosure of such password or any unauthorized access to or use of the TEMA Standard. Licensee is solely responsible for maintaining the confidentiality of its password(s) and for ensuring the authorized access and use of the TEMA Standard. Personal accounts/passwords may not be shared.
9. No Warranty. YOU ACKNOWLEDGE AND AGREE THAT ANY USE OF THIS STANDARD BY YOU IS AT YOUR OWN RISK. THE STANDARD IS PROVIDED FOR USE "AS IS" WITHOUT WARRANTY OF ANY KIND. LICENSOR AND ITS SUPPLIERS DISCLAIM ALL WARRANTIES OF ANY KIND, INCLUDING BUT NOT LIMITED TO ANY EXPRESS WARRANTIES, STATUTORY WARRANTIES, AND ANY IMPLIED WARRANTIES OF: MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. YOUR SOLE AND EXCLUSIVE REMEDY RELATING TO YOUR USE OF THIS STANDARD SHALL BE TO DISCONTINUE USING THE STANDARD.
10. Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY LAW, UNDER NO CIRCUMSTANCES SHALL LICENSOR BE LIABLE FOR ANY DAMAGES WHATSOEVER RELATING TO THIS LICENSE OR YOUR USE OF THE STANDARD (INCLUDING BUT NOT LIMITED TO INCIDENTAL, SPECIAL, PUNITIVE, DIRECT, INDIRECT, OR CONSEQUENTIAL DAMAGES), REGARDLESS OF WHETHER A CLAIM IS BASED ON TORT, CONTRACT, OR OTHER THEORY OF LIABILITY, AND EVEN IF LICENSOR IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. To the extent your jurisdiction does not allow any of the above exclusions of damages, in such case you agree that Licensor's total liability to you for all damages under this License shall not exceed the amount of ten dollars ($10.00).
This Agreement is effective until terminated. Licensee may terminate this Agreement at any time by discontinuing access to the TEMA Standard.
Licensee agrees to indemnify and hold harmless Licensor and its directors, officers, employees and agents from and against any and all claims and expenses, including attorneys’ fees, arising out of your use of the Standard, including but not limited to your violation of this Agreement.
Governing Law, Venue, Jurisdiction:
This Agreement shall be interpreted and construed in accordance with the laws of the State of New York. Licensee agrees to submit to jurisdiction and venue in the state and federal courts of New York for any dispute which may arise under this Agreement. Licensee also agrees to waive any claim of immunity it may possess. Any legal action or proceeding relating to this License shall be instituted in a state or federal court in Westchester County, New York, and each party hereby consents to personal jurisdiction in such county. If for any reason a court of competent jurisdiction finds any provision, or portion thereof, to be unenforceable, the remainder of this License shall continue in full force and effect.
C. Attorneys’ Fees:
Licensee agrees to reimburse Licensor for any and all attorneys’ fees and costs expended by Licensor in connection with any proceeding arising out of Licensee’s failure to adhere to the terms of this Agreement.
This Agreement is the entire agreement between Licensee and TEMA relating to its subject matter. It supersedes all prior or contemporaneous oral or written communications, proposals, representations, and warranties and prevails over any conflicting or additional terms of any quote, order, acknowledgment, or other communication between the parties relating to its subject matter during the term of this Agreement. No modification of this Agreement will be binding, unless in writing and signed by an authorized representative of each party.
Licensee may not assign or transfer its rights under this Agreement without the prior written permission of TEMA.
Licensee must pay any applicable taxes, other than taxes on TEMA's net income, arising out of Licensee's use of the TEMA Standard and/or rights granted under this Agreement.