|THIS WEB PAGE IS A LEGAL DOCUMENT
("AGREEMENT") BETWEEN YOU ("THE USER") AND ACR SYSTEMS, INC. THIS
AGREEMENT STATES THE TERMS AND CONDITIONS UNDER WHICH YOU MAY USE THE ACR WEB SITE. PLEASE
READ THIS AGREEMENT CAREFULLY BEFORE ACCESSING AND USING THE ACR WEB SITE. BY USING AND
ACCESSING THE ACR WEB SITE YOU INDICATE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT
AND AGREE TO BE BOUND BY THIS AGREEMENT. IF YOU DO NOT ACCEPT THIS AGREEMENT, DO NOT
ACCESS AND USE THE ACR WEB SITE. ACR MAY REVISE THIS AGREEMENT AT ANY TIME WITHOUT NOTICE
BY UPDATING THIS AGREEMENT. YOU SHOULD VISIT THIS WEB PAGE PERIODICALLY TO REVIEW THE
WEB SITE TERMS AND CONDITIONS OF USE
This Web Site Terms and Conditions ("Agreement")
is made as of the Effective Date by and between ACR Systems, Inc.,
a Florida corporation with offices located at 8226 Phillips Highway,
Suite 102, Jacksonville, Florida 32256, ("ACR")
and you ("the User").
WHEREAS, ACR has developed and owns that certain ACR Web Site (as
defined hereinafter) for use and access by User through the Internet; and
WHEREAS, User desires to access the ACR Web Site (as defined
hereinafter) and use the ACR Web Site (as defined hereinafter) in accordance with the
terms and provisions of this Agreement.
NOW, THEREFORE, in consideration of the mutual benefits of the
covenants and restrictions herein contained, User and ACR hereby agree as follows:
ARTICLE I: RECITALS AND DEFINITIONS
Section 1.01 -- Recitals: The above recitals and identification
of parties are true and correct.
Section 1.02 -- Definitions: The following definitions shall
Access: The term "access" and variants thereof (including, without
limitation, "accessing" and "accessible") shall mean to store data in,
retrieve data from or otherwise approach or make use of (directly or indirectly) through
electronic means or otherwise.
- ACR Marks: The term "ACR Marks" shall mean
trademarks, trade names, service marks or trade dresses of ACR,
including ACR Systems, ACR-2000, ACR-5000, The People Beyond
the Barcode and SOAP.
ACR System: The term "ACR System" shall mean computer systems and
communication equipment used for hosting the ACR Web Site and providing User access to ACR
Web Site, including ACR Technology used, stored or transmitted through the ACR System.
ACR Technology: The term "ACR Technology" shall mean any and all
Technology developed by or for ACR.
ACR Web Site: The term "ACR Web Site" shall mean that certain ACR Web Site
developed by or for ACR based in whole or in part on the Content and the Licensed Content
and integrated with and implemented on the ACR System and accessible by User through the
Internet, including information, data, communication and text transmitted through the ACR
Web Site and used or stored on the ACR System.
Content: The term "Content" shall mean ACR Technology incorporated into
the ACR Web Site and ACR Technology used, stored on or transmitted through the ACR System.
Effective Date: The term "Effective Date" shall mean the date the User
accesses the ACR Web Site.
Internet: The term "Internet" shall mean that certain global network of
computers commonly referred to as the Internet.
Licensed Content: The term "Licensed Content" shall mean third party
information, data, communications, text, graphics, images, visuals, video, audio, computer
software, coding, script and other materials incorporated in whole or part into the ACR
Link: The term "Link" shall mean that certain text, icon or graphic (as
determined in the discretion of ACR) in the ACR Web Site (visible or invisible) that upon
selection or search, links or associates ACR Web Site to an off-screen or third party Web
Site, document, text, image, sound or video.
Materials: The term "Materials" shall mean the ACR Web Site and the
Policy Statement: The term "Policy Statement" shall mean that certain
written statement of policies (in printed or electronic form) concerning access to the ACR
Web Site as may be adopted by ACR and as modified by ACR from time-to-time.
Technology: The term "Technology" shall mean (i) evaluation, technical,
scientific, engineering, marketing, financial and business reports, plans, studies,
diagrams, or flow charts; (ii) all forms and types of scientific, technical, economic,
business, or engineering information and data; and (iii) computer software, source code,
object code, executable code, software libraries, improvements, documentation, databases,
database designs, data dictionaries, data models, fields, records, scripts, texts,
interpreters, interfaces, interface designs, trade dress, interface specifications, codes,
classes, categories, screen displays, sound recordings, visual works, graphic images,
audio, sound recordings, video, patterns, plans, compilations, program devices, formulas,
designs, prototypes, methodologies, techniques, ideas, solutions, concepts, processes,
procedures, programs, adaptations, derivative works, computers, hardware, networks,
products, machines, compositions of matter and articles of manufacture, whether tangible
or intangible, and whether stored, compiled, or memorialized (without limitation)
physically, electronically, graphically, photographically, or in writing.
Web Site: The term "Web Site" shall mean that certain multimedia
interactive product which is a compilation of data, information, computer software,
graphics, audiovisual, components and coding formatted for use on the Internet and
commonly referred to as a Web site.
ARTICLE II: SCOPE OF USE
Section 2.01 -- Access: ACR hereby grants User a
non-exclusive and non-transferable license to access the ACR Web Site solely for viewing
and browsing the information on the Web page screens in the ACR Web Site for personal and
non-commercial use, subject to the terms and provisions of this Agreement. Except as
permitted under this Agreement, User shall not access the ACR System.
Section 2.02 -- Policy Statement: User shall comply with the
Policy Statement. ACR may modify the Policy Statement from time to time at the
exclusive discretion of ACR.
ARTICLE III: INTELLECTUAL PROPERTY
Section 3.01 -- Ownership and Title: Title to the Materials
(excluding Licensed Content), including ownership rights to patents, copyrights,
trademarks and trade secrets in connection therewith shall be the exclusive property of ACR.
Section 3.02 Unauthorized Use: User shall not copy or
download the Materials without the prior written consent of ACR. User shall not modify,
reverse engineer, reproduce, display, publicly perform or distribute, including (without
limitation) by framing or similar means, the Materials or use the Materials for public or
commercial purposes. User shall not use the Materials on any other Web site.
Section 3.03 -- Trademarks: ACR shall retain all rights, title
and ownership interests in the ACR Marks. Excepting the ACR Marks, all other product and
company names mentioned in the Materials may be the trademarks of their respective owners.
Section 3.04 -- No Contest: User acknowledges that the Materials
are protected under laws, including (without limitation) United States of America and
international copyright laws and treaties. User shall not contest or aid in contesting the
ownership or validity of the copyrights, trademarks, service marks and trade secrets (as
applicable) of ACR in connection with the Materials.
Section 3.05 User Submissions: Any information posted or
submitted by User on the ACR Web Site shall be deemed non-confidential.
ARTICLE IV: WARRANTY AND INDEMNIFICATION
Section 4.01 -- Express Warranties: User hereby acknowledges and
agrees that ACR (including officers, employees, agents, directors and independent
contractors of ACR) has not made or granted to User any express warranties
concerning the ACR Web Site or ACR products. Use and performance of ACR products and
services referenced in the ACR Web Site (including, without limitation, ACR
certifications) are subject to ACR terms and conditions concerning such products, services
and certifications as made available by ACR. User hereby acknowledges that the ACR Web
Site does not constitute grant of an express warranty concerning ACR products and services
and User hereby waives any and all claims of warranty based on ACR Web Site.
Section 4.02 -- Year 2000: User hereby acknowledges that ACR
Year 2000 Warranty is subject to ACRs Year 2000 Policy as made available by ACR
concerning ACR products.
SECTION 4.03 -- WARRANTY LIMITATION: The ACR web site is
provided "as is" without warranty of any kind. ACR, to the fullest extent
permitted by law, HEREBY DISCLAIMS AND user HEREBY WAIVES ALL WARRANTIES, EXPRESS OR
IMPLIED, INCLUDING, BUT NOT LIMITED TO, ALL IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR
PURPOSE, ALL IMPLIED WARRANTIES OF MERCHANTABILITY and warranty of non-infringement of
third party rights. ACR does not warrant and user hereby waives any warranty that use of
or access to the ACR Web Site by User will be uninterrupted or error free. ACR does not
make any warranty and user hereby waives any and all warranties as to the results obtained
from use of the ACR Web Site or as to the accuracy, completeness, timeliness or
reliability of the ACR Web Site. User hereby acknowledges and agrees that use of the
Internet and ACR Web Site shall be at the sole and exclusive risk of User and subject to
the restrictions, terms and conditions, rules, regulations, policies, applicable laws and
codes of conduct governing the Internet and the ACR Web Site.
Section 4.03 -- Inaccuracies: User hereby acknowledges that the
ACR Web Site may contain errors, inaccuracies and omissions. User shall assume any and all
risk of loss, harm or damage associated with User access to and use of the ACR Web Site.
Section 4.04 Content: User hereby acknowledges that
unless otherwise noted, company names, photographs, testimonials, or data used in ACR
product screens and sample outputs are fictitious. Unless otherwise noted all photographs
Section 4.05 -- Limitation of Liability: ACR shall not be liable
for any lost profits or consequential, exemplary, incidental or punitive damages under
this Agreement (including, without limitation, in connection with (i) use, performance or
operation of the ACR Web Site; (ii) use, performance or operation of the Internet or use
of the Internet by User; and (iii) loss of data), regardless of the form of action,
whether in contract or in tort, including negligence, regardless of whether ACR has been
advised of the possibility of such damages in advance or whether such damages are
Section 4.06 -- Limitation of Damages: The liability of ACR for
any reason and for any cause of action whatsoever in connection with this Agreement and
the ACR Web Site, regardless of the form of action, whether in contract or in tort,
including negligence, shall not exceed one hundred U.S. Dollars ($100).
Section 4.07 -- Indemnification: User shall release, defend,
indemnify and hold harmless ACR (including its officers, directors, employees, affiliates,
contractors and agents) against any expense, loss, cost or liability (including, without
limitation, attorney fees) arising from any and all claims, demands, damages or actions
resulting from or related to (i) use of the ACR Web Site or the Internet by User
(including, without limitation, any claims for breach of warranty, loss of data, libel,
slander, invasion of privacy or false advertising); (ii) performance of the ACR Web Site;
(iii) Users negligence or the acts (or any failure to act) of User; and (iv) any
breach by User of the obligations of User under this Agreement.
Section 4.08 -- Export Assurance: User shall not disclose,
export, distribute or transfer the Materials (directly or indirectly) outside the United
States of America. User shall not perform any act in conflict with or in violation of the
export laws and regulations of the United States of America, including (without
limitation) the Export Administration Act, 50 U.S.C. §2401, et seq., the Export
Administration Regulations, 15 C.F.R. Parts 730-774, the Arms Export Control Act, 22
U.S.C. §2751, and the
International Traffic in Arms Regulations, 22 C.F.R. Parts 120-130, as amended.
Section 4.09 -- Links: User hereby acknowledges that the ACR Web
Site contains Links to third party Web Sites which are provided solely as a convenience to
User and do not constitute an endorsement by ACR of such Web Sites and the third party
ARTICLE V: MISCELLANEOUS
Section 5.02 -- Entire Agreement: This Agreement contains the
entire understanding of the parties relating to the Materials and supersedes all previous
verbal and written agreements between ACR and User relating to the Materials.
Section 5.04 -- Amendments and Modifications: Excepting
modifications made to the Policy Statement by ACR and modifications made to this Agreement
by ACR, any alteration, modification or amendment of this Agreement shall be void unless
such alteration, modification or amendment is in writing and signed by an authorized
representative of ACR.
Section 5.05 -- Severability: If a provision of this Agreement
is rendered invalid the remaining provisions shall remain in full force and effect.
Section 5.06 -- Captions: The headings and captions of this
Agreement are inserted for convenience of reference and do not define, limit or describe
the scope or intent of this Agreement or any particular section, paragraph, or provision.
Section 5.08 -- Governing Law: The ACR Web Site is based in
Duval County, City of Jacksonville, Florida. This Agreement is governed by the laws of the
State of Florida, without regard to any rules of conflict or choice of laws which require
the application of laws of another jurisdiction, and venue shall be Duval County,
Section 5.09 -- User Notice: All notices shall be in writing.
Notices to User shall be deemed delivered when delivered to User electronically, by
commercial overnight delivery service, by Certified or Registered Mail - Return Receipt
Requested - or by hand. Notices to User shall be deemed given on the date notice is
delivered electronically or by hand to User or on the date of receipt by User (as
evidenced in the case of Certified or Registered Mail by Return Receipt), whichever occurs
first. Notices delivered to User electronically (including, without limitation, electronic
mail) shall be deemed written notices.
Section 5.10 -- ACR Notice: Notices to ACR shall
be deemed delivered when delivered by commercial overnight delivery service, Certified or
Registered Mail - Return Receipt Requested - or by hand to the address set forth below for
ACR. Notices to ACR shall be deemed given on the date notice is received by ACR
(as evidenced in the case of Certified or Registered Mail by Return Receipt).
ACR Systems, Inc.
8226 Phillips Highway, Suite 102
Jacksonville, Florida 32256
Section 5.11 -- Pronouns/Gender: Pronouns and nouns shall refer
to the masculine, feminine, singular or plural as the context shall require.
Section 5.12 -- Equitable Remedies: The parties hereby
acknowledge and agree that damages at law will be an inadequate remedy to ACR. In addition
to other rights which may be available, ACR shall have the right of specific performance,
injunction or other equitable remedy (including, without limitation, the right to such
equitable remedies prior to or pending arbitration) in the event of a breach or threatened
breach of this Agreement by User.
Section 5.13 -- Waiver: Waiver of a breach of this Agreement
shall not constitute a waiver of any other breach. All remedies under this Agreement are
in addition to equitable remedies and remedies provided by law and are cumulative. Failure
to enforce any provision of this Agreement shall not constitute a waiver or create an
estoppel from enforcing such provision. Any waiver of a provision of this Agreement shall
not be binding unless such waiver is in writing and signed by the waiving party.
Section 5.14 -- Public Announcements: All public announcements
concerning the ACR Web Site or the relationship of User and ACR shall be subject to
the prior written approval of ACR.
Section 5.17 -- Arbitration: Any controversy or claim arising
out of or relating to this Agreement, or breach thereof, shall be settled by arbitration
in accordance with the Commercial Arbitration Rules (excluding Expedited Procedures) of
the American Arbitration Association in the city of Jacksonville, Florida. Judgment upon
the award rendered by the arbitrators may be entered in any Court having jurisdiction
thereof, unless a subsequent request for reconsideration has been filed by either
Distributor or ACR under this Section 11.03. Three qualified arbitrators shall be
appointed in accordance with the Commercial Arbitration Rules (excluding Expedited
Procedures) of the American Arbitration Association and this Agreement. Such qualified
arbitrators shall be members of the Florida Bar and shall have at least five years of
experience in computer law matters. Each party shall have the right of discovery as set
forth in the Federal Rules of Civil Procedure. A stenographer shall be present at the
arbitration proceedings and the stenographic record shall be the official record of the
proceeding. The arbitration award shall be in writing and shall include findings of fact
and conclusions of law. Each party shall have the right to appeal any decision of the
arbitrators by filing a request for reconsideration of such decision with the American
Arbitration Association within ninety days of receiving such decision. Upon receiving such
request for reconsideration, the American Arbitration Association shall reconsider the
matter de novo using a different panel of three appellate arbitrators and the foregoing
procedures. Such panel of appellate arbitrators shall be selected using the same
procedures as used to select the original arbitrators. Each party shall pay an equal share
of the fees and expenses of the arbitrators and administrative fees and expenses of the
arbitration. Florida statute §682 shall apply.
Section 5.18 -- Litigation Expense: In the event of litigation
or arbitration arising out of this Agreement, each party shall pay its own costs and
expenses of litigation or arbitration (excluding fees and expenses of arbitrators and
administrative fees and expenses of arbitration).
IN WITNESS WHEREOF, this Agreement has been entered into as of the