For valuable consideration (including the convenience to User of being allowed to access Documents electronically, along with the resulting efficiencies and cost savings to be derived and enjoyed by User), receipt of which is hereby acknowledged, Technomark and User (as defined herein) agree as follows:
USE OF SITE AND/OR DOCUMENTS CONSTITUTES AGREEMENT. By clicking “I agree” (or “I Accept”), or by viewing, using, or downloading any information from this website, from any E-mail, or from any other electronic storage medium (including without limitation CDs, DVDs, or “floppy disks”), the User is agreeing to the following:
INFORMATION REGARDING SITE; USE AGREEMENT. This website and/or E-mail and/or other electronic storage medium, and all information contained therein, are the property of Technomark. When the User (as defined herein) chooses to view, download, save, forward, or copy any of the Documents (as defined herein), the User is agreeing to each and every one of the terms and conditions of this Agreement between the User and Technomark.
DEFINITIONS. The following definitions apply to this Agreement:
“Documents” means any and all drawings, specifications, instruments of service, and other documents, data, or information of any kind, including all electronic files and data, that are: made available to view or download from this website; included as an attachment to or “link” from an E-mail; or made available via any other electronic storage medium (including without limitation CDs, DVDs, flash drives/cards or “floppy disks”). The Documents are not a “product” or a “good” as defined in the Uniform Commercial Code.
“E-mail” means any electronic mail message from Technomark to User, or from User to any other person, (a) by means of which Documents are attached to or embedded within the E-mail for downloading, or (b) containing links to any website, internet domain, or intranet site through which Documents can be viewed or downloaded.
“Project” refers to any project identified in a Document.
“User” means any person (including without limitation Technomark’s client; Technomark’s vendors; any person performing work or services for, or supplying goods to, Technomark’s client under a separate contract with Technomark’s client; any contractor; and any subcontractor or supplier or other individual or entity performing or furnishing all or any part of the work under a direct or indirect contract with a contractor) accessing, viewing, downloading, or using:
this website and/or an E-mail and/or any other electronic storage medium; or
the Documents available from, “linked” to or from, or attached to or contained within this website, an E-mail, or other electronic storage medium. “User” also includes any person receiving or obtaining Documents, by any means, from or through the User.
2. RESTRICTION ON USE OF DOCUMENTS. Documents are instruments of service for use solely with respect to the Project identified in such Documents. Technomark and Technomark’s consultants are the authors and owners of their respective Documents and retain all common law, statutory and other reserved rights, including copyright. All Documents are protected by copyright pursuant to U.S. and international copyright laws, and are owned or controlled by Technomark, Technomark’s vendors, and/or Technomark’s client subject to the terms of agreements between or among those parties.
The foregoing restrictions apply whether or not a copyright notice is affixed to any particularDocument.
INFORMATION REGARDING ELECTRONIC DATA
NO RIGHT TO RELY. Nothing in the transfer of information from this website, from an E-mail, or from any other electronic storage medium confers any right upon the User to rely on the electronic information contained in the Documents, nor shall the use of the Documents by the User imply the review or approval by Technomark of any drawings or other materials based on the Documents. There is no representation made regarding the suitability of the electronic information contained in the Documents for other purposes, of the durability of the information, or the medium in or on which the information is furnished.
USE AT USER’S OWN RISK; “HARD-COPY” DOCUMENTS CONTROL. Documents in electronic media format, including text, data, graphics, or other data types, are furnished only for the convenience of the receiving party. Any conclusion or information obtained or derived from such electronic files, and any use of the Documents or of any information obtained or derived from the Documents, will be at the User’s sole risk and liability. The information contained in the hard-copy, signed and sealed Documents (kept in the Technomark’s office) shall at all times be deemed to be correct and superior to electronic information. If there is a discrepancy between the electronic files and the hard copies, the hard copies govern.
DISCLAIMER OF WARRANTIES, LIMITATION OF DAMAGES AND LIABILITY.
NO EXPRESS OR IMPLIED WARRANTIES. TECHNOMARK MAKES NO REPRESENTATIONS OR WARRANTIES REGARDING THE DOCUMENTS, OR THE SUITABILITY OF THE DOCUMENTS OR INFORMATION CONTAINED IN THE DOCUMENTS, OR THE COMPATIBILITY OF ELECTRONIC INFORMATION WITH ANY OTHER SYSTEM, FOR ANY PURPOSE WHATSOEVER. THE DOCUMENTS ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND. TECHNOMARK HEREBY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, WITH REGARD TO THE DOCUMENTS, INCLUDING WITHOUT LIMITATION: ALL WARRANTIES OF MERCHANTABILITY; ALL WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE; ALL WARRANTIES OF TITLE; AND ALL WARRANTIES OF NON-INFRINGEMENT.
USER’S OBLIGATION TO VERIFY INFORMATION. The information provided in the Documents is not necessarily a representation of actual conditions. The User is required, prior to commencing any affected work, to verify actual field conditions, including measurements, dimensions, soil and structural conditions, and other existing conditions as necessary to determine existing conditions to the user’s satisfaction. Any interpretations or extrapolations made by the User based on the information provided in the Documents are made at the User’s sole risk and liability.
LIMITATION ON DAMAGES AND LIABILITY. IN NO EVENT SHALL TECHNOMARK BE LIABLE FOR ANY SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES OR ANY DAMAGES WHATSOEVER RESULTING FROM LOSS OF USE, DATA OR PROFITS, WHETHER IN AN ACTION BASED ON CONTRACT, NEGLIGENCE, BREACH OF WARRANTY, OR OTHER LEGAL THEORY, ARISING OUT OF, RELATING TO, OR IN ANY WAY CONNECTED WITH THE USE OF THE DOCUMENTS OR ANY INFORMATION OBTAINED FROM THE DOCUMENTS.
RIGHT TO OBTAIN EQUITABLE RELIEF. The User agrees that Technomark’s remedies at law in the event the User violates this Agreement are not or may not be adequate, and the User agrees that Technomark may seek and obtain injunctive or other equitable relief under applicable State or Federal law in the event of the User’s violation of this Agreement, whether or not any particular Document has been registered with the United States Copyright Office.
ATTORNEYS’ FEES AND OTHER ENFORCEMENT COSTS. The User agrees that in the event of a violation by User of this Agreement, resulting in an action by Technomark to enforce this Agreement at law or in equity, Technomark may recover Technomark’s reasonable costs, expenses, and attorneys’ fees incurred in enforcing this Agreement.
RIGHTS AND REMEDIES NOT EXCLUSIVE. The rights, defenses, and remedies available to Technomark under this Agreement are not exclusive and Technomark reserves any and all other rights, remedies, and defenses available to it pursuant to any agreement between Technomark and the User, or at law or in equity.
HEADINGS FOR CONVENIENCE. Paragraph and section headings in this Agreement are for convenience only and do not alter or amend the substantive provisions of this Agreement.
SEVERABILITY. In the event any term or condition of this Agreement is determined by a court of competent jurisdiction to be void, invalid, or unenforceable, such invalidity shall not affect the remaining terms and conditions of this Agreement, and this Agreement shall continue in full force and effect as if such invalid term or condition had not been part of this Agreement.
NO CONTINIUING WAIVER. No waiver by Technomark of any breach or default by User hereunder shall be deemed to be a waiver of any preceding or subsequent breach or default.
GOVERNING LAW AND JURISDICTION. This Agreement has been made in and shall be construed and enforced in accordance with Minnesota law. Any action to enforce this agreement shall only be brought in the federal or state courts located in Minneapolis. By accessing and/or using the Documents, the User agrees to submit to the personal jurisdiction of said courts; provided, however, that this Agreement shall be subject to any arbitration clause contained in any contract between Technomark and User relating to a Project described in the Documents.