END USER LICENSE AGREEMENT

 

CAREFULLY READ THE TERMS AND CONDITIONS OF THIS AGREEMENT BEFORE USE OF THE WEBSITE.  BY USE OF THE WEBSITE YOU ACCEPT THESE TERMS AND CONDITIONS.  IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, DO NOT USE THIS WEBSITE. 

           

These license terms (“Agreement”) are a legal agreement between the Maritime Fire & Safety Association (“MFSA”) and you (“Licensee”).  Please read them carefully.  This Agreement applies to the access and/or use of any documents, downloadable content, or other service provided by MFSA via its website, https://www.mfsa.com (the “Site”), including without limitation, documents generated from the MFSA Arrival Notice and/or Merchants Exchange Database (collectively, the “Content”).  

 

MFSA and Merchants Exchange have developed, collected and maintained the Content and are willing to allow authorized parties to access the Site and use the Content, subject to terms of this Agreement.  Licensee desires to obtain the right to access the Site and use the Content, subject to and conditioned upon Licensee’s full compliance with this Agreement.

 

Lincense Grant.  During the Term (defined below) and subject to and conditioned upon Licensee's full compliance with this Agreement, MFSA hereby grants to Licensee a personal, non-transferable, non-exclusive, non-sublicensable, limited, revocable license to: (a) access the Site for the sole purpose of using and/or downloading the Content in accordance with Licensee's Level of Access (defined below); and (b) use and/or download the Content solely for Licensee's informational purposes.  No other right, title or interest in the Content is granted to Licensee hereunder.

 

Ownership; Use Restrictions.  The Content is licensed, not sold.  The MFSA and/or its licensors are and shall at all times remain the sole and exclusive owner of all right, title and interest in and to the Content.  Except as expressly authorized herein, Licensee may not and may not permit third parties to: (a) access the Site beyond Licensee’s Level of Access or other than as expressly permitted in this Agreement; (b) sell, rent, lease, license, time share, sublicense or assign any of the Content, or the use of any of the Content, to third parties; (c) transfer the Content or any copy thereof to any third party, unless previously authorized by the MFSA in writing; (d) provide or permit use of the Content except as permitted by this Agreement; (e) copy, modify, compile or distribute the Content (including via e-mail or the Internet), or otherwise make available, copies of or excerpts from the Content to third parties, whether or not for payment or other consideration, without the prior written authorization of the MFSA; or (f) copy, extract, summarize, compile, distribute or otherwise use the Content in any manner which competes with or substitutes for the MFSA’s own distribution of the Content.  Although the license rights granted in Section 1.1 above includes the right to use and/or download the Content, the Site may restrict or limit Licensee’s ability to download certain Content depending on the type and nature of the Content at issue.  Licensee shall only download Content to the extent permitted by the Site.

 

Level of Access.  A user account and password is required to access the Site; however, the issuance of a user account and password does not authorize Licensee to access all Content or portions of the Site.  The MFSA may restrict access to all or portions of the Site and/or the downloading of all or portions of Content from the Site depending on the level of access granted by the MFSA (“Level of Access”).  Licensee’s Level of Access shall be determined by the MFSA in its sole discretion.

 

Authorized Users.  The MFSA will only issue user accounts and passwords to Licensee’s personnel who have been approved by the MFSA to access the Site and/or use the Content, subject to the terms and conditions of this Agreement (“Authorized Users”).  Licensee is responsible for providing the MFSA with a list of its personnel sought to be qualified as Authorized Users.  To the extent approved by the MFSA, such Authorized Users will be assigned personal user account and passwords, in each case tied to an appropriate Level of Access determined by the MFSA.  Only Authorized Users are permitted to access the Site and/or use or download the Content, in each case in accordance with Licensee’s Level of Access.  Licensee therefore represents and warrants to MFSA that each employee or representative of Licensee accessing the Site and/or using the Content: (a) is an Authorized User; and (b) is accessing the Site in accordance with his or her Level of Access via his or her own assigned user account and password.  Licensee must promptly notify MFSA of any changes, additions or deletions to its Authorized User list.

 

Security.  Licensee and its personnel are solely responsible for protecting assigned user accounts and password information against disclosure to third parties and Licensee agrees that it shall use commercially reasonable measures to maintain the privacy and security of user account and password information.  Licensee further agrees to: (a) immediately notify the MFSA of any unauthorized use or disclosure of any of its personnel’s user account and password information, or any other breach of security in connection with the Site or the Content of which Licensee becomes aware; and (b) ensure that its personnel logs out from their respective user accounts after having accessed the Site.

 

Unauthorized Use.  Licensee shall inform the MFSA of any unauthorized use or misuse of the Content of which Licensee becomes aware.  Licensee will reasonably cooperate and assist the MFSA, at the MFSA’s option and expense, in the MFSA’s efforts to protect its rights in the Content.

 

Term.  This Agreement shall commence as of the last date of the parties’ signature below (the “Effective Date”), and shall continue until terminated as set forth herein (the “Term”).

 

Termination.  The MFSA may terminate this Agreement at any time, upon written notice and without opportunity to cure, for conduct that the MFSA believes (in its sole discretion) to be in violation of this Agreement and/or harmful to other users of the Site, the Content or to the MFSA.  Either party may also terminate this agreement for any reason in its sole discretion, by providing the other party thirty (30) days prior written notice.

 

Post-Termination Responsibilities.  Upon the expiration or termination of this Agreement, regardless of the reason, Licensee shall immediately cease all access to the Site and use or downloading of the Content and shall promptly surrender to the MFSA or destroy, at the MFSA’s option, all of Licensee’s personnel’s user account and password information.  Licensee shall further return to the MFSA or destroy, at the MFSA’s option, all Content or copies or excerpts thereof in Licensee’s possession, custody or control.

 

Disclaimer.  LICENSEE EXPRESSLY AGREES THAT ITS ACCESS TO THE SITE AND USE OF THE CONTENT IS AT LICENSEE’S SOLE RISK.  EXCEPT AS OTHERWISE SET FORTH HEREIN, TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE SITE AND THE CONTENT ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS, IMPLIED OR STATUTORY.  THE MFSA EXPRESSLY DISCLAIMS ALL SUCH WARRANTIES AND CONDITIONS, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF TITLE, VALIDITY, NONINFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.  THE MFSA MAKES NO REPRESENTATIONS OR WARRANTIES THAT THE SITE OR THE CONTENT ARE AVAILABLE OR WILL REMAIN UNINTERRUPTED OR ERROR-FREE, THAT THE CONTENT IS ACCURATE OR COMPLETE, THAT THE CONTENT IS UP-TO-DATE OR CURRENT, THAT THE SITE OR THE CONTENT IS FREE FROM TECHNICAL INACCURACIES OR TYPOGRAPHICAL ERRORS, THAT THE SITE OR THE CONTENT IS FREE FROM CHANGES MADE BY A THIRD PARTY, THAT ANY DEFECTS WILL BE CORRECTED OR THAT THE COMPUTERS USED TO PROVIDE THE SITE OR THE CONTENT ARE OR WILL REMAIN FREE FROM ANY VIRUSES, WORMS, TIME BOMBS, DROP DEAD DEVICES, TROJAN HORSES OR OTHER HARMFUL COMPONENTS.  THE MFSA DOES NOT GUARANTEE THAT LICENSEE WILL BE ABLE TO ACCESS THE SITE OR USE OR DOWNLOAD THE CONTENT AT TIMES OR LOCATIONS OF LICENSEE’S CHOOSING.

 

Limitation of Liability.  TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL THE MFSA BE LIABLE OR RESPONSIBLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES ARISING FROM LICENSEE’S ACCESS TO THE SITE OR USE OF ANY OF THE CONTENT OR FOR ANY OTHER CLAIM RELATED IN ANY WAY TO LICENSEE’S ACCESS TO OR USE OF ANY OF THE CONTENT, REGARDLESS OF WHETHER THE MFSA HAD REASON TO KNOW OR WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.  IN ADDITION TO THE LIMITATION OF LIABILITY SET FORTH IN THE PRECEDING SENTENCE, IN NO EVENT SHALL THE MFSA’S MAXIMUM LIABILITY HEREUNDER EXCEED THE TOTAL AMOUNT OF FIFTY DOLLARS ($50 USD).  BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH STATES OR JURISDICTIONS THE MFSA’S LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW.

 

Exception to Disclaimer and Limitation.  The express purpose for allowing Licensee access to the Content under this Agreement is to satisfy the requirements of MFSA as an umbrella contingency plan holder under WAC 173-182-230(60(a) (the “Purpose”).  The terms of Section 5 and Section 6 do not apply with respect to, and strictly to the extent of, that Content provided to satisfy the Purpose, to the extent such disclaimers and limitations on liability are not permitted under applicable law.  Section 5 and Section 6 apply with respect to any Content to which Licensee has access under this Agreement that is not required to be provided under WAC 173-182-230(60(a) and otherwise to the fullest extent permitted by applicable law.

 

Indemnity.  Licensee shall defend, indemnify and hold harmless the MFSA and its directors, officers, employees, representatives and agents, for, from and against any and all claims, demands, suits, proceedings, liabilities, judgments, losses, damages, expenses and costs (including without limitation reasonable attorneys’ fees and legal costs) assessed or incurred by the MFSA, directly or indirectly, with respect to or arising out of: (a) Licensee’s access to the Site and/or use or downloading of the Content other than as authorized in this Agreement; and (b) Licensee’s breach of any term, representation, warranty, covenant or other obligation under this Agreement.

 

Confidentiality.  Licensee and its personnel shall at all times treat the Content as the MFSA’s confidential and proprietary information and shall at all times maintain the confidential and proprietary nature of the Content, taking reasonable commercial measures to prevent its unauthorized use or disclosure.  Licensee and its personnel may not disclose the Content to any third party except as otherwise expressly authorized herein, or otherwise use the Content for any purpose except as expressly set forth herein.  In the event the Content is the subject of any governmental, legislative, or judicial request for disclosure (including, without limitation, a request made pursuant to any public records or other public disclosure law), Licensee shall immediately inform the MFSA of such request so as to allow the MFSA to take appropriate action to protect its interests.

 

Professional Responsibility.  Licensee acknowledges and agrees that it is accessing the Site and using the Content to assist in its internal business operations. It is Licensee’s responsibility to review the information or other Content that it obtains from or through the Site to determine that such information or other Content is sufficiently accurate and appropriate for Licensee’s purposes. The Content is not intended to be a substitute for the exercise of Licensee’s own judgment.

 

Changes in the Availability of the Content.  The MFSA may modify, suspend, discontinue or restrict the availability of the Site or the Content, or any portion thereof, at any time in its sole discretion without prior notice or liability to Licensee.

 

Compliance with Laws.  Licensee represents and warrants to the MFSA that its access to the Site or use of the Content is and shall at all times remain in compliance with all applicable laws, statutes, or governmental rules or regulations.  The MFSA shall have no responsibility in ensuring that Licensee’s access to the Site or use of the Content is in compliance with applicable law.

 

Export.  Licensee may not use or export any of the Content in violation of U.S. export laws and regulations.  Licensee shall agree to comply with all applicable laws regarding the transmission of technical data exported from the United States and the country in which Licensee resides (if different from the United States).

 

Jurisdiction; Venue.  This Agreement shall be governed by the laws of the State of Oregon, without respect to its conflict of laws principles.  Any dispute or proceeding arising from or related to this Agreement shall be litigated in a state or federal court located in Multnomah County, Oregon.  Licensee agrees to the personal jurisdiction of such courts and hereby waives any defense to such jurisdiction.

 

Severability.  If a provision of this Agreement is declared invalid under law, the affected provision will be considered omitted or modified to conform to applicable law.  All other provisions will remain in full force and effect.

 

Survival.  All provisions of this Agreement that would reasonably be expected to survive the termination of this Agreement will do so.

 

Third-Party Beneficiaries.  The parties do not intend to confer any right or remedy on any third party.

 

Binding Effect.  This Agreement will be binding on the parties and their respective successors and permitted assigns, and will inure to their benefit.

 

No Agency.  This Agreement does not create or establish an agency relationship, joint venture or partnership between the parties.  Neither party has the authority to bind the other party or represent to any person that the party is an agent of the other.  Neither party shall be responsible for the acts or defaults of the other party or any of the other party’s employees or agents.

 

Attorneys’ Fees and Costs.  If any litigation is instituted to interpret, enforce, or rescind this Agreement, including but not limited to any proceeding brought under the United States Bankruptcy Code, the prevailing party on a claim will be entitled to recover with respect to the claim, in addition to any other relief awarded, the prevailing party’s reasonable attorneys’ fees and other fees, costs, and expenses of every kind, including but not limited to the costs and disbursements incurred in connection with the litigation, any appeal or petition for review, the collection of any award, or the enforcement of any order, as determined by the court.

 

Agreement Authorization.  Both parties have full power and authority to enter into and perform this Agreement, and the representatives signing this Agreement on behalf of the parties have been previously authorized and empowered to enter into this Agreement.

 

Counterparts.  This Agreement may be signed in counterparts.  A fax or electronic version of a signature page will be considered an original signature page.  At the request of a party, the other party will confirm a fax or electronically submitted signature page by delivering an original signature page to the requesting party.