TERMS AND CONDITIONS OF USE OF LYTICA’S BENCHMARKING SERVICE
PLEASE READ BEFORE
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BY CLICKING THE "CUSTOMER ACCEPTS" BUTTON BELOW, YOU INDICATE THAT COMPANY THAT
REGISTERED (“CUSTOMER”) HAS READ AND AGREED TO THE TERMS AND CONDITIONS OF THIS
AGREEMENT ("AGREEMENT") GOVERNING USE OF THE LYTICA BENCHMARKING SERVICE
("SERVICE"). IF CUSTOMER DOES NOT AGREE WITH THESE TERMS AND CONDITIONS, SELECT
THE "CUSTOMER DOES NOT ACCEPT" BUTTON AND NO AGREEMENT WILL BE CONCLUDED.
License Grant and Restrictions
LYTICA INC. (“Lytica”) hereby grants Customer a
right to use the Service, solely for Customer’s own purposes, subject to the
terms and conditions of this Agreement.
2. e-Contract Terms Consenting to
Customer and Lytica consent to the exchange of information
and documents between them electronically over the Internet or by e-mail and
agree that this Agreement in electronic form shall be the equivalent of an
original written paper agreement between them.
3. Lawful Use
Customer and Lytica
shall abide by all applicable federal, state or provincial, and local laws and
regulations in connection with Customer’s use of the Service and Lytica’s
provision of the Service.
4. Account Information and Customer Data
such as Customer-specific part numbers, Customer’s name, address, telephone
number, email address, and other personal information such as credit card
numbers constitute Customer-identifiable information (“Customer Account
Information”) and Lytica shall not disclose Customer Account Information to
third parties. Lytica shall aggregate other data of Customer (“Customer Data”)
for the purpose of providing the Service with data from other customers of
Lytica, but shall not disclose Customer Data to third parties in unaggregated
5. License to Use Customer’s Data
Provided Lytica does not identify
Customer, does not disclose any data as that of any identified party and does
not identify product pricing as that of any specific vendor, Customer grants to
Lytica an irrevocable, royalty-free, worldwide, non-exclusive, transferable
license to create derivative works of, use, distribute, and market Customer Data
solely in an aggregated format with data from its other customers.
Intellectual Property Rights
Lytica owns the Service. The Customer’s use of the
Service is a license, not a sale. Customer owns the report produced for it by
the Service and may reproduce the report for internal distribution and
distribution to affiliates of Customer, but not to other third parties. The
LYTICA name, and product names and logos are trademarks of Lytica, and no right
or license is granted to Customer to use them.
Lytica bills in advance for use of the Service. Lytica will bill Customer’s
credit card or electronically bill Customer or Customer may pre-pay by wire
transfer. At its discretion Lytica may extend payment terms to customers
approved by it as credit-worthy. Lytica fees are exclusive of all taxes or
duties imposed by taxing authorities and Lytica shall invoice Customer for all
such taxes or duties other than taxes imposed on Lytica’s net income.
Representations and Warranties
Each party represents and warrants that it has
the legal power and authority to enter into this Agreement. Customer warrants
that it shall exercise reasonable commercial due diligence to ensure the
accuracy and integrity of data it provides to Lytica. Lytica warrants that it
shall provide the Service according to industry standards and shall exercise
reasonable commercial due diligence in the collection of data, operation of the
Service and the production of reports pursuant thereto. Customer acknowledges
that Lytica collects data from a number of sources and that Lytica has no means
to and cannot warrant the validity or genuineness of all the data so collected.
9. Disclaimer of Warranties
Except as expressly provided in this Agreement,
Lytica makes no representations. Lytica makes no representation or warranty as
to the reliability, timeliness, quality, suitability, or accuracy of the
Service. Lytica does not represent or warrant that (a) the Service will meet
Customer’s requirements, (b) any stored data will be accurate or reliable, or
(c) the quality of any products or services purchased or obtained by Customer
through the Service will meet Customer’s requirements or expectations. Lytica
disclaims all implied warranties, including, without limitation, any implied
warranty of merchantability and fitness for a particular purpose to the maximum
extent permitted by applicable law.
10. LIMITATION OF LIABILITY
IN NO EVENT WILL
LYTICA BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE,
EXEMPLARY, OR AGGRAVATED DAMAGES, ARISING OUT OF THE PRODUCTS OR SERVICES
PROVIDED BY LYTICA OR OTHERWISE RELATED TO THIS AGREEMENT, EVEN IF LYTICA HAS
BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR SUCH DAMAGES WERE REASONABLY
FORESEEABLE. IN NO CASE WILL LYTICA’S TOTAL LIABILITY ARISING UNDER ANY CAUSE
WHATSOEVER (INCLUDING WITHOUT LIMITATION BREACH OF CONTRACT, NEGLIGENCE, GROSS
NEGLIGENCE, OR OTHER LEGAL THEORY) BE FOR MORE THAN THE AMOUNT PAID BY CUSTOMER
FOR THE SPECIFIC PRODUCT OR SERVICE TO WHICH THE CLAIM RELATES.
SOME JURISDICTIONS DO NOT PERMIT THE EXCLUSION OF IMPLIED
WARRANTIES OR LIMITATION OF LIABILITY FOR INCIDENTAL, CONSEQUENTIAL OR CERTAIN
OTHER TYPES OF DAMAGES. THEREFORE, SOME OF THE EXCLUSIONS SET FORTH ABOVE MAY
NOT APPLY TO CUSTOMER AND CUSTOMER MAY HAVE SPECIFIC LEGAL RIGHTS THAT VARY
(a) Survival. Provisions of this
Agreement that by their nature must survive shall continue in force after
expiration or termination of this Agreement.
(b) Governing Law and Dispute
Resolution. Lytica is physically located within the Province of Ontario, Canada.
This Agreement will be governed by the laws of the Province of Ontario and the
federal laws of Canadaand shall be treated in all respects as an Ontario
contract, without reference to the principles of conflicts of law. Any
disagreement or dispute relating to this Agreement shall be settled by final and
binding arbitration to be conducted by a single arbitrator in Ottawa, Ontario,
Canada in accordance with the Arbitration Act, 1991 of Ontario.
Agreement. This Agreement constitutes the entire agreement between the parties
with respect to the subject matter hereof and supersedes any prior
understandings and agreements between the parties with respect thereto.
Notice. Either party may give notice to the other party by electronic mail or by
written communication sent by pre-paid first-class mail in the case of Customer
to, Customer’s address on record in Lytica’s account information and in the case
of Lytica, to 308 Legget Drive, Suite 200, Kanata Ontario, K2K 1Y6 to the
attention of the Vice President, Sales or email:
Language of Agreement. The parties to this Agreement acknowledge having required
that this Agreement as well as all notices, documents or agreements related to
this Agreement be drafted in English. Les parties aux présentes reconnaissent
avoir exigé que la présente convention ainsi que tous avis, documents ou
ententes s’y rapportant soient rédigés en anglais.
(f) Assignment. Either party
may assign this Agreement as part of a sale of all or substantially all of its