1. This Website
1.1 This website ("Website") allows you and other channel partners, users, customers and other interested parties to engage in a variety of activities such as finding information about NovaSpectra, Inc. and NovaSpectra, Inc.'s channel partner program, obtaining support in respect of NovaSpectra, Inc.'s channel partner program, having access to sales tools, sales and implementation training and educational material, the NovaSpectra, Inc. Leaning Channel, services, case studies, whitepapers, business intelligence and customer testimonials, having access to information relating to your performance as a channel partner and the performance of your users, obtaining marketing assistance, sharing information with NovaSpectra, Inc. and third parties and engaging in conversations and activities relating to NovaSpectra, Inc.'s channel partner program.
1.2 This Website includes information created and published by NovaSpectra, Inc. and third parties, such as text, images, photographs, graphics, audio and video, data, articles, templates, spreadsheets, software, services, logos, databases, icons, hyperlinks, designs, agreements, multimedia works and tools ("Content").
2. Scope and acceptance of these terms
2.2 These Terms form a legally binding agreement between you and NovaSpectra, Inc. By accessing or using this Website and/or the Content, you accept and agree to abide by these Terms. Should you not agree with these Terms, you must immediately leave this Website and not attempt to access or use this Website or the Content as your access and/or use of this Website or the Content will automatically bind you to these Terms.
2.3 NovaSpectra, Inc. reserves the right, in NovaSpectra, Inc.'s sole discretion, to amend and/or replace any of, or the whole of, these Terms. Such amendments shall supersede and replace any previous Terms and shall be made available on this Website. Each time you access this Website and/or use the Content, you will be consenting, by such access and/or use, to these Terms, as amended and/or replaced from time to time. If you are not satisfied with the amended Terms, you should refrain from using this Website.
3. Content of this website
3.1 NovaSpectra, Inc. reserves the right, without notice and at NovaSpectra, Inc.'s sole and absolute discretion, to change any aspect of the Content available on this Website, or to discontinue any aspect or feature of this Website or any of the Content or to change the software and hardware required to access and use this Website.
3.2 You are required to regularly access this Website to keep yourself advised of these changes.
4. Third party content
4.1 NovaSpectra, Inc. does not claim ownership of any information, whether in the form of an article, information, documentation, graphics, images, marketing material, educational material, videos, photographs, messages, feedback or ideas ("Third Party Content"), that you or any other user posts, uploads or submits to this Website.
4.2 By posting, uploading, submitting or transmitting any Third Party Content to or on this Website, you:
4.2.1 automatically grant NovaSpectra, Inc. and NovaSpectra, Inc.'s affiliates a non-exclusive, worldwide, fully paid up and royalty-free, perpetual, irrevocable right and licence to use, reproduce, alter, publish, translate, sub-license, copy and distribute such Third Party Content in whole or in part worldwide, and to incorporate it in other works in any form, media or technology now known or hereinafter developed, for the full term of any copyright that may exist in such Third Party Content;
4.2.2 represent and warrant to NovaSpectra, Inc. that you have the right, title and/or authority to grant such licence to NovaSpectra, Inc.
4.3 NovaSpectra, Inc. is not obliged to evaluate, monitor or examine the Third Party Content that you or any other user posts, uploads or submits to this Website or the accuracy thereof.
4.4 If NovaSpectra, Inc. elects to post or publish your Third Party Content, NovaSpectra, Inc. may, in NovaSpectra, Inc.'s sole and absolute discretion, withdraw the posted or published Third Party Content for any reason and without notice to you.
4.5 You warrant and undertake to and in favour of NovaSpectra, Inc. that:
4.5.1 you have the right to make available your Third Party Content on this Website;
4.5.2 such Third Party Content shall not infringe the Intellectual Property Rights (as defined below) of any other person;
4.5.3 the Third Party Content shall not be unlawful, harmful threatening, abusive, harassing, defamatory, vulgar, obscene, sexually explicit, profane or hateful or racially, ethnically or otherwise objectionable in any manner or violate the rights of others;
4.5.4 the Third Party Content shall not result in any damaging or malicious computer programming routines (such as a software virus, trojan horse, worm, time bomb, cancelbot, corrupted file or any other computer file or software designed to interrupt, destroy, damage or limit the functionality of any computer hardware, software or other property) being introduced to this Website which may damage or interfere with the proper working of this Website or any activities conducted on this Website or which may compromise the security of this Website in any manner whatsoever;
4.5.5 your Third Party Content shall not include any unsolicited or unauthorized advertising, promotional materials, surveys, spamming or any other form of solicitation, commercial or otherwise;
4.5.6 you shall not forge email headers or otherwise manipulate identifiers in order to disguise the origin of any Third Party Content transmitted through this Website.
4.6 You agree that NovaSpectra, Inc. shall not be held liable, directly or indirectly, in any way for Third Party Content, your use thereof or for any loss or damage of any kind incurred as a result of your use of Third Party Content.
5. Permissible use of this website and related restrictions
5.1 The Content comprises of:
5.1.1 spreadsheets, templates and other material that you may download and use in the conduct of your business as a NovaSpectra, Inc. channel partner ("Commercial Content"); and
5.1.2 any other Content that you may download and use for your personal and non-commercial purposes (in other words, a purpose not intended for or directed towards commercial advantage or monetary compensation) ("Non-Commercial Content").
5.2 You agree not to, and you agree that you will not through a third party:
5.2.1 modify, copy, distribute, transmit, display, translate, perform, reproduce, publish, license, adapt, vary, modify, incorporate into other works, create derivative works from, transfer, encumber, sell or in any other way deal with:
18.104.22.168 any part of this Website;
22.214.171.124 any of the Non-Commercial Content;
126.96.36.199 any of the Commercial Content if such material is used for any purpose other than performing your functions as a NovaSpectra, Inc. channel partner;
5.2.2 decompile, disassemble or reverse engineer any part of this Website or modify or enhance this Website. If you effect any modifications or enhancements to this Website in breach of this provision, NovaSpectra, Inc., at its sole and absolute discretion, may choose to (i) retain such modifications and enhancements, in which event such modifications and enhancements shall be NovaSpectra, Inc.'s property; or (ii) remove such modifications and enhancements, in which event you hereby agree to pay NovaSpectra, Inc. all of the costs and expenses that it incurs in this regard on demand;
5.2.3 without NovaSpectra, Inc.'s prior written consent, provide, disclose, divulge or make available to or permit the use of or give access to this Website by persons other than you. In this regard, when you register to use this Website, you will be assigned a password. You are solely responsible for the use and security of your password and any activities that occur in relation to your password. Any activities conducted on this Website under your password will be regarded as activities that you have conducted and you will be bound by same. If your password is compromised, you must immediately notify NovaSpectra, Inc. in writing and change your password;
5.2.4 remove any identification, trademark, copyright or other notices from this Website or any Content downloaded from this Website (including from Commercial Content);
5.2.5 impersonate any person or entity or falsely state or otherwise misrepresent your affiliation with a person or entity;
5.2.6 breach or violate any applicable local, state, national or international law and any regulations;
5.2.7 gather, collect or store personal information or data of other users except if such other users are your customers and you have received their written consent to your gathering, collection and/or storage of their personal information or data;
5.2.8 permanently copy or reproduce any part of a web page on any other website or otherwise redistribute same;
5.2.9 provide links to this Website without first obtaining NovaSpectra, Inc.'s prior written consent and, if NovaSpectra, Inc. gives you such consent, you must discontinue your link if so asked by NovaSpectra, Inc. for any reason.
5.3 The following additional provisions apply to the Commercial Content:
5.3.1 the Commercial Content is simply a tool that is made available to users to assist them in carrying out certain tasks or performing certain functions. NovaSpectra, Inc. does not accept any responsibility or liability for how the users use the Commercial Content or the results that are achieved, or the information that is generated, by a user's use of the Commercial Content;
5.3.2 NovaSpectra, Inc. owns all of the Intellectual Property Rights (as defined below) to the Commercial Content and the use by users of such Commercial Content shall not give such users any rights in or to the Commercial Content other than the limited right to use the Commercial Content for the specific purpose for which the Commercial Content is made available to the user;
5.3.3 by allowing users to download and use the Commercial Content, NovaSpectra, Inc. does not make any warranties or representations to any other person regarding a user's ability to use the Commercial Content or the manner in which the user uses the Commercial Content or in respect of the task or function that the user carries out or performs using the Commercial Content.
6.1 In order to ensure the security and reliable operation of this Website and the Content to all users of this Website, NovaSpectra, Inc. hereby reserves the right to take whatever action NovaSpectra, Inc. may deem necessary to preserve the security, integrity and reliability of NovaSpectra, Inc.'s servers, network and back-office applications.
6.2 You may not utilize this Website in any manner that could damage, disable, overburden, impair or compromise the security of any NovaSpectra, Inc. server or the networks connected to any NovaSpectra, Inc. server or tamper with this Website in any manner whatsoever or interfere with any other person's use and enjoyment of this Website. You may not attempt to gain unauthorized access to this Website, other accounts, computer systems or networks connected to any NovaSpectra, Inc. server through hacking, password mining or any other means. You may not obtain or attempt to obtain any materials or information through any means not intentionally made available through this Website. Any person or entity which does so, or attempts to do so, shall be held criminally liable and shall also be liable, on an indemnity basis, for any direct and indirect damages or loss that NovaSpectra, Inc. suffers or sustains.
6.3 In addition to the above, any user who:
6.3.1 intentionally accesses or intercepts any data without authority or permission to do so;
6.3.2 intentionally and without authority to do so, interferes with data in a way which causes such data to be modified, destroyed or otherwise rendered ineffective;
6.3.3 utilizes any device or computer program in order to unlawfully overcome security measures designed to protect this Website and the Content or access thereto;
6.3.4 commits any act described above with the intent to interfere with access to this Website so as to constitute a denial, including a partial denial of access to and/or use of this Website to legitimate users;
6.3.5 performs or threatens to perform any of the above acts for the purpose of obtaining any unlawful proprietary advantage by undertaking to cease or desist from such action, or by undertaking to restore any damage caused as a result of those actions;
6.3.6 performs any of the acts described above for the purpose of obtaining any unlawful advantage by causing fake data to be produced with the intent that it be considered or acted upon as if it were authentic; or
6.3.7 aids or abets someone to commit any of the foregoing acts,
shall, notwithstanding criminal prosecution, be liable for all direct and indirect resulting liability, loss or damages suffered and/or incurred by NovaSpectra, Inc. and NovaSpectra, Inc.'s affiliates, agents and/or channel partners on an indemnity basis.
7. NovaSpectra, Inc.'s intellectual property rights
7.1 As used in these Terms, "Intellectual Property Rights" means patents of any type, design rights, utility models or other similar invention rights, copyrights, trademarks, service marks, logos, designations, insignias, brand and trade names, business names, domain names, trade secrets or confidentiality rights and any other intangible property rights, including applications for any of the foregoing, in any country, arising under statutory or common law or by contract and whether or not perfected or registered or capable of registration, now existing or hereafter filed, issued or acquired.
7.2 All Intellectual Property Rights to this Website and the Content are the property of, or are licensed to, NovaSpectra, Inc. and as such are protected from infringement by local and international legislation and treaties.
7.3 Nothing in these Terms shall be deemed to give you the right to modify, copy, distribute, transmit, display, perform, reproduce, publish, license, create derivative works from, transfer or sell any part of this Website, any Content or any Third Party Content which is not your Third Party Content for any reason unless otherwise expressly permitted by these Terms or by law.
7.4 Your access to and use of this Website will not give you any rights in or to this Website or the Content. All rights not expressly granted are reserved and no right, title or interest in any of the Content or any part of this Website is granted to you.
7.5 Irrespective of the existence of copyright, you acknowledge that NovaSpectra, Inc. is the proprietor of all of the Content (except where a third party is indicated as the proprietor), whether it constitutes confidential information or not, and that you have no right, title or interest in any such Content.
7.6 Information on requirements for using NovaSpectra, Inc.'s trademarks can be found by clicking on the ‘Trademarks' link at the bottom of each web page on this Website.
8. Confidential information
8.1 As used in these Terms, "Confidential Information" means all trade secrets, Intellectual Property Rights and other information that NovaSpectra, Inc. or third parties protect against unrestricted disclosure to others which is:
8.1.1 either labelled as confidential and accessed through a restricted or non-public area of this Website or pursuant to software downloads; or
8.1.2 reasonably identifiable as confidential based on the type of information and the manner of its disclosure.
8.2 Except for those parts of this Website which are clearly identified as non-public forums, every other part of this Website is intended to be a public forum and you agree not to provide NovaSpectra, Inc. or other users with any confidential or proprietary information that you or the owner of the information do not intend to become public information.
8.3 Except for your Third Party Content which you clearly label as confidential and you upload into a non-public forum, any Third Party Content that you send or upload to this Website will be deemed not to be confidential or proprietary and you expressly agree that you waive any trade secret or other confidentiality rights with respect to such Third Party Content.
8.4 You agree not to reproduce any Confidential Information to which you are provided access through this Website in any form except as authorised at the time of disclosure. Any reproduction of Confidential Information shall remain the property of NovaSpectra, Inc. or any third party that has prepared such information and shall contain any and all confidential or proprietary notices or legends which appear on the original.
8.5 You agree to:
8.5.1 take all reasonable steps to keep all Confidential Information strictly confidential;
8.5.2 use Confidential Information solely as authorised at the time of disclosure; and
8.5.3 not disclose any Confidential Information to any party without the prior written consent of NovaSpectra, Inc. or the third party that has prepared such information.
8.6 You do not acquire any rights in Confidential Information except the limited rights as described in these Terms or elsewhere on this Website.
9. Linked third party websites
9.1 NovaSpectra, Inc. may provide links to third party websites on this Website. These links are provided to you for convenience only and NovaSpectra, Inc. does not endorse, nor does the inclusion of any link imply NovaSpectra, Inc.'s endorsement of, such websites, their owners, licensees or administrators or such websites' content, security practices, privacy policies and operations. NovaSpectra, Inc. cannot accept responsibility or liability for the information provided on other websites. Linked websites or pages are not under, nor subject to, NovaSpectra, Inc.'s control. NovaSpectra, Inc. is not responsible for and gives no warranties and makes no representations in respect of the privacy policies or practices of linked or any third party or advertised websites on this Website.
9.2 You agree that NovaSpectra, Inc. shall not be held liable, directly or indirectly, in any way for the content, the use or inability to use or access any linked website or any link(s) contained in a linked website, nor for any loss or damage of any sort incurred as a result of any dealings with, or as the result of the presence of such third party linked websites on this Website. Any dealings that you may have with any linked websites are solely between you and the third party website.
10. General disclaimers and indemnity
10.1 You acknowledge that you use this Website and the Content entirely at your own risk and on an "as is" and "as available" basis and that you assume full responsibility and risk of loss resulting from the use thereof.
10.2 While NovaSpectra, Inc. has taken reasonable measures to update the Content and to offer the most current, correct and clearly expressed information possible, NovaSpectra, Inc. cannot be held responsible for any inaccuracies, errors, omissions, misinterpretations or incompleteness.
10.3 NovaSpectra, Inc. does not make any warranties or representations, whether express, implied or statutory:
10.3.1 that this Website or the Content will be available at all times, or will be error-free or that they will meet any particular criteria of performance or quality or that you will be able to access websites linked to this Website at all times;
10.3.2 as to non-infringement of third party rights, merchantability, fitness for a particular purpose, compatibility, security or accuracy;
10.3.3 that any files, downloads, software or applications available via this Website are free of viruses or any other data or code that has the ability to corrupt, damage or affect the operation of your system;
10.3.4 regarding the accuracy of the results or output that you derive from making use of any tools or utilities made available through this Website.
10.4 To the extent permissible by applicable law neither NovaSpectra, Inc., its affiliates, shareholders, agents, partners, licensors, consultants, officers or employees ("Indemnified Parties") shall be liable for any loss or damages whatsoever (including, without being limited to, any direct, indirect, special, incidental, consequential, punitive or exemplary damages) howsoever arising (whether in an action arising out of contract, statute, delict/tort or otherwise) related to or resulting from:
10.4.1 the use of, or the inability to access or use, this Website or any of the Content;
10.4.2 the faulty execution of this Website or the malfunctioning of this Website;
10.4.3 the use of or the inability to access or use any linked website;
10.4.4 unauthorized access to or alteration of your Third Party Content, transmissions or data;
10.4.5 statements, messages or conduct of any third party on this Website; or
10.4.6 any other matter relating to this Website or the Content,
even if NovaSpectra, Inc. knows or should reasonably have known of same. Notwithstanding anything to the contrary contained herein, the aforesaid limitations shall not apply in the case of intent or gross negligence by NovaSpectra, Inc. or in the case of NovaSpectra, Inc.'s statutory liability for personal injury.
10.5 To the extent permissible by applicable law you hereby unconditionally and irrevocably indemnify the Indemnified Parties and agree to hold the Indemnified Parties free from any claim or demand, loss, damages and/or costs (including reasonable attorneys' fees) of whatsoever nature that the Indemnified Parties may suffer or incur or that are instituted against the Indemnified Parties as a direct or indirect result of:
10.5.1 your use of this Website and any of the Content;
10.5.2 any unavailability of, or interruption in, this Website or any of the Content;
10.5.4 your Third Party Content;
10.5.5 your unauthorized use of any of NovaSpectra, Inc.'s Intellectual Property Rights;
10.5.6 your alleged breach of any other rights of a third party;
10.5.7 the actions or requirements of any telecommunications authority or a supplier of telecommunications services or software;
10.5.8 your transmission of information via the internet including, without being limited to, email.
11.1 If you:
11.1.1 breach any of these Terms;
11.1.2 in NovaSpectra, Inc.'s sole discretion use this Website in an unauthorized manner; or
11.1.3 breach any statute, regulation, ordinance or law,
NovaSpectra, Inc. is entitled without notice, in addition to any other right or remedy available to NovaSpectra, Inc. at law or under these Terms, including obtaining an interdict/injunction, to limit or deny you use of this Website or to claim specific performance of any of your obligations whether or not the due date for performance has arrived, in either event without prejudice to NovaSpectra, Inc.'s right to claim all loss and damages that NovaSpectra, Inc. incurs or sustains.
11.2 You agree to reimburse NovaSpectra, Inc. all of the reasonable legal costs that NovaSpectra, Inc. incurs, on an indemnity basis, associated with any legal action that NovaSpectra, Inc. pursues against you.
12.1 Except as explicitly stated otherwise, any notices shall be given by:
12.1.2 registered mail/airmail to, in the case of NovaSpectra, Inc., the addressed provided on this Website, and, in your case, the address that you have provided to NovaSpectra, Inc. In such case, notice shall be deemed to have been given 14 (fourteen) days after the date of mailing;
12.1.3 delivery by hand to a responsible person during business hours to, in the case of NovaSpectra, Inc., the physical address provided on this Website, and, in your case, the physical address that you have provided to NovaSpectra, Inc. In such case, notice shall be deemed to have been given on the date of delivery.
12.2 You acknowledge that all agreements, notices and other communications required to be given in terms of these Terms may be given via electronic means and that such communications shall be "in writing".
12.3 Notwithstanding anything to the contrary, a written notice or communication actually received by a party shall be an adequate written notice or communication to it, notwithstanding that it was not sent to or delivered at its chosen address(es) for that purpose.
13. General clauses
13.1 These Terms shall be deemed to be made under the laws of the United States of America and the construction, validity, interpretation and performance of these Terms as well as any dispute related to or arising from these Terms shall be governed in all respects by the laws of the United States of America without regard to the principles of conflict of laws and specifically excluding the provisions of the United Nations Convention on the International Sale of Goods. You and NovaSpectra, Inc. hereby submit to the exclusive jurisdiction of the courts of the United States of America.
13.2 This Website is controlled and administered by NovaSpectra, Inc. from its offices within the United States of America. Access to this Website from territories or countries where the Content of this Website is illegal is prohibited. You are responsible for compliance with all local laws of the country from which you access this Website.
13.3 In the event that any of the provisions of these Terms are or may become illegal, invalid, unlawful or unenforceable in any jurisdiction affected by these Terms, such provision as to such jurisdiction, shall be ineffective to the extent of such prohibition or unenforceability and shall be treated as not written in these Terms and severed from the balance of these Terms, without invalidating the remaining provisions of these Terms or affecting the validity or enforceability of such provision in any other jurisdiction.
13.4 NovaSpectra, Inc.'s failure to act with respect to a breach by you or others does not constitute a waiver of NovaSpectra, Inc.'s right to act with respect to subsequent or similar breaches.
13.5 You shall not be entitled to cede or assign your rights or delegate your obligations in terms of these Terms to any third party without NovaSpectra, Inc.'s prior written consent.
13.6 No party shall be bound by any express or implied term, representation, warranty, promise or the like not recorded herein.
13.7 The head notes to the paragraphs to these Terms are inserted for reference purposes only and shall not affect the interpretation of any of the provisions to which they relate.
13.8 Words importing the singular shall include the plural and vice versa, and words importing the masculine gender shall include the female and neuter genders and words importing persons shall include partnerships and corporate and unincorporated entities.
13.9 In these Terms "you" is a reference to any juristic entity or individual, including individuals who are registered as users of a juristic entity, who access the Website.
13.10 The termination of your relationship with NovaSpectra, Inc., for any reason, or the cessation of your use of the Website or the Content shall not affect such of the provisions of these Terms as expressly provide that they will operate after any such termination or cessation or which of necessity must continue to have effect after such termination or cessation notwithstanding that the provisions themselves do not expressly provide for this. Such provisions include your obligations relating to NovaSpectra, Inc.'s Intellectual Property Rights and Confidential Information.
13.11 These Terms set forth the entire understanding and agreement between NovaSpectra, Inc. and you with respect to this Website and your access to and use of this Website.
13.12 No provision in these Terms shall be construed against or interpreted to the disadvantage of NovaSpectra, Inc. by reason of NovaSpectra, Inc. having or being deemed to have structured, drafted or introduced such provision.