September 26, 2005
1. DESCRIPTION OF THE SITE. Science Applications International Corporation (“SAIC”) displays on the various pages constituting this Web site (this “Site”) information, documents, reports, images, links and punch-through capabilities which are designed to enable the employees, agents and representatives of authorized users to 1) purchase goods and/or services from SAIC and/or its suppliers, 2) to obtain information regarding the status of orders made through this site or otherwise through SAIC, and 3) to provide information to SAIC (collectively referred to herein as the “Services”). The Site is privately developed and contains commercial software and other commercial technology first offered to the public, commercial customers of SAIC and later to governmental and certain other customers of SAIC. The Site is made available to the commercial, governmental and other customers of SAIC on the terms and subject to the conditions set forth in this Agreement. At all times, the most current version of this Agreement will be posted on this Site. If at any time you breach this Agreement, as it may be amended, supplemented or replaced from time to time, SAIC shall have the right to revoke your authorization to use this Site, in addition to other remedies it may be entitled to.
2. AUTHORITY TO USE THE SITE. This Site, or certain portions thereof, are accessible only to users (“Users”) who have specific authorization to access the Site and who have the right to utilize the Services by virtue of one or more separate contractual commitments (each, a “Contract”) with SAIC. By accessing the Site and/or utilizing the Services, you, as a User, hereby represent and warrant to, and covenants with, SAIC that you (i) are at least eighteen (18) years of age; (ii) have personally entered into a Contract with SAIC or are acting on behalf of a private entity or governmental agency that has entered into a Contract granting such entity or agency the authority to utilize the Site and the Services (“Entity”); and (iii) have the requisite authority to enter into binding commitments personally and, if applicable, on behalf of your respective Entity.
3. YOUR LIMITED RIGHTS TO USE THE SITE. On the terms and subject to the conditions set forth in this Agreement, SAIC grants to you the non-exclusive, limited, terminable, personal right to access the Site for the sole purpose of conducting the procurement activities as described in your, or your Entity’s, as the case may be, respective Contract with SAIC. You will use the Site in accordance with all applicable laws. SAIC may, without notice, terminate your access to the Site or take other actions as are reasonably necessary to comply with legal requirements.
4. SECURITY; USER NAMES AND PASSWORDS. SAIC shall provide or has provided to you a user name and password for you to access the Site and utilize the Services available therein. It is your sole responsibility to monitor use of your user name and password for all purposes, including, but not limited to, ordering goods and/or services and tracking the status of orders or shipments relating thereto. You are fully responsible for the security of your user name and password, and for the utilization of the Site via your user name and password. This includes unauthorized access by your employees or third parties, except for access by third parties resulting from the sole negligence of SAIC. You have the ability to modify your password at any time. SAIC recommends that you modify your password regularly. You shall notify SAIC immediately if you wish to terminate your user name and password or have your user name and password reissued. You shall not disclose your user name and password to anyone not authorized to act on your behalf. SAIC shall have no liability for misuse of a User’s user name and password.
5. VALIDITY OF ORDERS. You agree not to contest the validity or enforceability of orders placed through the Site under the provisions of any applicable law. All orders placed using your user name and password shall, for all purposes, be deemed to be in writing, signed by you and will be admissible as between you or, if applicable, your respective Entity, and SAIC, to the same extent and under the same conditions as other business records originated, executed and maintained in documentary form.
6. PROPRIETARY RIGHTS; CONFIDENTIALITY. You acknowledge and agree that the information, software, scripts, business processes, business methods, depictions, reports, displays, Services described in and available through this Site, including, without limitation, the Web-based logistics status reporting system provided by SAIC and/or its third-party service providers, together with the operation of the Site and the compilation and presentation of all content in the Site organization and operation of this Site are proprietary to SAIC and/or third parties (collectively, the “Proprietary Rights”). The Proprietary Rights are or may be protected by copyright or other intellectual property laws. Any unauthorized use of the Proprietary Rights or the Site may violate such laws and is strictly prohibited. Unless otherwise noted, you may view, copy, download and print documents from this Site so long as such documents are used solely for locating, viewing, evaluating, or purchasing products and/or services made available through this Site or otherwise from SAIC and tracking the status of your orders. In addition, you may not post, distribute or modify any such documents or remove any copyright, trademark or other proprietary notices from such documents. As provided above, the scope of the rights you are granted herein is a limited right to use the Site solely for your own authorized business or governmental purpose, and no other rights, express or implied, are granted hereby. You also acknowledge and agree that the Site, the operation thereof and the Proprietary Rights contain certain information, which constitute trade secrets and/or confidential information. You agree to keep secret and not disclose such information to any third party.
7. YOUR USE OF THIS SITE. You may use the Site in accordance with the terms and conditions set forth in this Agreement and the terms and conditions of any applicable Contract. You may also view, print and distribute copies of information made available on this Site provided that such copies are distributed only in furtherance of the purposes set forth in the Contract and so long as all notices of copyright, trademark and other Proprietary Rights are included on such copies. All purchases of goods and/or services made using this Site shall be subject to the SAIC Terms and Conditions of Sale, [Click here for Link to Terms and Conditions of Sale]; provided, however, that in the event of a conflict between your applicable Contract and the SAIC Terms and Conditions of Sale, the provisions of your applicable Contract shall control. You are solely responsible for all content, orders or information that you transmit to or through this Site. By using this Site, you acknowledge and agree that (i) SAIC does not pre-screen any transmissions by you and, as such, SAIC does not guarantee the accuracy, integrity or quality of such transmission, and (ii) under no circumstances shall SAIC be liable in any way for any transmissions submitted by you, including, without limitation, any errors or omissions in such transmissions or for any loss or damages of any kind incurred as a result of SAIC placing orders as a result of, or otherwise using, such transmissions. You are prohibited from using this Site to transmit or otherwise make available anything that is unlawful, harmful to minors, threatening, harassing, abusive, violent, obscene, pornographic, defamatory, libelous, invasive of another’s privacy, or racially, ethnically or otherwise offensive or that would otherwise violate any law, regulation, contract, or rights of others, including, without limitation, laws against infringement of another’s intellectual property rights. Violation of these restrictions may result in limitations on or termination of your right to access and/or use this Site.
8. RELIABILITY OF INFORMATION. SAIC shall make commercially reasonable efforts to ensure that the information relating to the Services available on the Site is routinely updated. Further, SAIC shall make commercially reasonable efforts to ensure that third party information made available on or through the Site is reliable. However, you understand and agree that SAIC is not responsible for the accuracy or completeness of any content contained within the Site, and SAIC expressly disclaims all responsibility and liability for any third-party materials or services made available on or through this Site.
9. THIRD-PARTY SITES. You understand and agree that this Site contains both manual and automatic links to third-party Web sites, that SAIC makes no representations or warranties whatsoever about such third-party sites, and that SAIC is not and shall not be not responsible for the accuracy, reliability or quality of any information contained in or available through any such third-party sites. You acknowledge and agree that your access to any such third-party Web site as a result of utilizing any such links or otherwise shall be at your own risk. In no way does SAIC endorse or accept any responsibility for the content or uses of such third-party sites.
10. NO WARRANTIES OR GUARANTEES; DISCLAIMERS. THIS SITE AND ALL SERVICES AVAILABLE THROUGH THIS SITE ARE PROVIDED “AS IS” AND “AS AVAILABLE”. USE OF THE SITE IS AT YOUR SOLE RISK AND SAIC DOES NOT MAKE ANY GUARANTEES OR WARRANTIES WITH REGARD TO THE SITE, ITS CONTENT AND ALL SERVICES THEREIN, INCLUDING, BUT NOT LIMITED TO, AVAILABILITY OF, OR THE SERVICES PROVIDED THROUGH, THIS SITE OR THAT YOUR USE OF THE SITE WILL BE UNINTERRUPTED OR ERROR FREE OR THAT ERRORS WILL BE CORRECTED. SAIC DISCLAIMS ALL GUARANTEES AND WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ALL GUARANTEES AND WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS.
11. LIMITATIONS ON LIABILITY AND EXCLUSIVE REMEDY. SAIC SHALL NOT BE LIABLE FOR ANY LOSSES, DAMAGES OR EXPENSES, WHETHER DIRECT, INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL, EXEMPLARY OR PUNITIVE, CAUSED BY OR RESULTING FROM THE USE OF OR INABILITY TO USE THIS SITE, THE CONTENT THEREIN OR ANY WEB SITE REFERENCED IN OR LINKED TO FROM THIS SITE. YOU ACKNOWLEDGE THAT THE ALLOCATION OF RISK AND THE LIMITATIONS OF LIABLITIES CONTAINED IN THIS AGREEMENT ARE A MATERIAL CONSIDERATION FOR SAIC MAKING THE SITE AVAILABLE AND PROVIDING ACCESS TO THIS SITE TO YOU. THE SITE IS A BUSINESS PRODUCT, THE APPLICATION OF WHICH IS COMMERCIAL, RATHER THAN CONSUMER-ORIENTED, IN NATURE. IN ACCEPTING THIS AGREEMENT, YOU RECOGNIZE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THAT CONSUMER PROTECTION LAWS DO NOT APPLY TO THE TRANSACTIONS CONTEMPLATED HEREBY.
12. EXCLUSIONS AND LIMITATIONS. Some jurisdictions do not allow the exclusion of certain warranties or the limitation or exclusion of liability for incidental or consequential damages. Accordingly, some of the above limitations may not apply to you.
13. TERMINATION. Your rights to use this Site and to utilize the Services shall terminate (a) upon the expiration or earlier termination of any applicable Contract, or (b) if SAIC exercises its right to terminate your right to use this Site or utilize the Services as set forth in Section 1 above. Upon any such termination, you shall cease accessing the Site and using any information obtained through this Site. All limitations on liability and disclaimers of warranties and your indemnity obligations shall survive the termination of this Agreement and your right to use the Site and the Services.
14. INDEMNITY. At the option and request of SAIC, you shall, at your own expense, indemnify, defend and hold SAIC and its subsidiaries, affiliates, officers, employees and agents harmless from and against any losses, costs, damages, liabilities and expenses (including, but not limited to, reasonable attorneys’ fees), arising out of or related to any third-party claim, action or allegation related in any way to your use of the Site, the unauthorized access to and/or use of the Site through your account or based on facts or alleged facts that would constitute a breach of your representations, warranties or covenants under this Agreement.
15. MISCELLANEOUS. This Agreement shall be binding upon and inure to the benefit of the parties and their respective successors and assigns; provided, however, that you may not assign any of your rights or delegate any of your obligations under this Agreement without the prior written consent of SAIC. Any assignment or delegation by you in violation of this section shall, at the option of SAIC, be null and void and of no force and effect. Waiver by you or SAIC of any provision or of the breach of any provision of this Agreement shall not be construed as a waiver of any other provision or of any other breach of any provision of this Agreement. If any provision of this Agreement is determined to be invalid or unenforceable, that provision will be deemed to be severed from this Agreement and will not cause the remainder of this Agreement to be invalid or unenforceable. This Agreement shall be governed by and construed in accordance with the laws of the state of California without regard to conflicts of laws rules. The paragraph headings used herein are for convenience of reference only and do not form a part of this Agreement, and no construction or inference shall be derived therefrom.