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Services Agreement

Intertek Testing Services My TestCentralTM (Online Reports and Project Status)


TERMS OF USE

Welcome to My TestCentral. Intertek provides a service that allows online viewing and electronic management of reports (certification, listing, performance, letter, and the like) and in-progress project status information (herein collectively “Information and Reports). Intertek provides secure access of Information and Reports to clients and outside vendors of client’s choice through Intertek’s My TestCentral service subject to the following terms and conditions, which from time to time may be changed by Intertek without notice. You, as the client, are responsible for ensuring Your users' knowledge of, and compliance with, these terms and conditions. This Services Agreement (the “Agreement”) is and shall be construed as a contract between You and Intertek. Delivery of this Agreement to You is presumed to occur at the time You submit any application for access for any services herein described, and again whenever You affirmatively submit any acknowledgement approving and agreeing to the terms and conditions of this Agreement (including a “click” on any “I Agree” button, or its equivalent). You acknowledge receipt of the Agreement upon and at each such time, and acknowledge that use of any service associated with this Agreement confirms the creation and existence of a contract between You and Intertek, the terms of which are exclusively set forth herein.


1. PARTIES
"Intertek" refers to Intertek Testing Services NA, Inc. (and all parent, subsidiary and affiliates of Intertek) "You" and "Your" refers to the entity that has been authorized to use the My TestCentral Service (defined in Section 2 below) either by Intertek or a third party client of You.


2. DESCRIPTION OF THE SERVICE

My TestCentral, together with Direct Connect, is an online hosted service (the "Service") that provides users with access to a variety of automation tools and resources, including, but not limited to, secure online viewing of Information and Reports; secure online viewing of in-progress project status information; electronic management and posting of Information and Reports and project status information sets among internal-client users and/or external users; user and group creation and management (including disabling rights to users and groups); and a search engine for Information and Reports and project status information sets. Intertek will provide for data center hosting facilities to support Your remote access to the Service. Data center hosting facilities may be located worldwide, and outside of Your local country. Intertek will define the hosting services network and systems architecture, and the specification of hardware and software requirements. You are solely responsible for the acquisition, configuration, monitoring, maintenance and management of all hardware and software at Your location, including, but not limited to LAN, computers, software, telecommunications, devices, and Your network connection to the Service. You must pay any fees associated with access to the network. The Service has been designed to be available 24 hours a day, 7 days a week, 365 days a year, except for periods of system maintenance, repairs and upgrades. Intertek does not guarantee the accuracy, quality or usefulness of the Service.


3. CONFIDENTIALITY

By virtue of this Services Agreement, You and Intertek may have information that is confidential to You, Intertek or another party (“Confidential Information”). You and Intertek agree that ownership and use of Your Confidential Information is governed by the current agreements and/or contracts between You and Intertek or another party. In the absence of any such contract, Intertek will not disclose Your Confidential Information, except Intertek reserves the right at all times to disclose any information as Intertek deems necessary to satisfy any applicable law, regulation, legal process or governmental request. Notwithstanding the foregoing, You agree that Intertek may compile statistical or performance information related to the operation of the Service, which information Intertek may use for any purpose.

Should Confidential Information of Intertek or another party become available to You while using the Service, and you are not authorized to receive such Confidential Information, You agree to not use such Confidential Information in any manner and You agree to immediately notify Intertek of the disclosure.

4. ENHANCED SERVICES

You may request special additional features, functionality, formatting, or other custom services or routines (collectively “Enhancements”). Intertek may develop and implement Enhancements upon and for a negotiated fee. Alternately, You may develop Enhancements, but You may not install or implement the same until and unless such Enhancements, and all supporting codes, have been examined, approved, and installed by Intertek. In either or any event, all such Enhancements are, and shall be and remain, at all times and for all purposes, the sole and exclusive property of Intertek. You agree to execute any and all documents requested by Intertek in order to perfect Intertek's rights in Enhancements. You further agree to advise Intertek of any technical improvements or inventions conceived, designed, or developed relating to the Service. All such improvements and inventions shall become the property of Intertek, and You agree to execute any and all documents requested by Intertek in order to perfect Intertek's rights in the same. You further represent and warrant that all Enhancements developed by You do not infringe any party’s rights or intellectual property rights.


5. USE RESTRICTIONS


5.1 Content

You and Intertek agree that ownership and use of the Information and Reports is governed by the current written agreement(s) and contract(s) between You and Intertek, or a third party client of You. The Service contains information, data, text, software, and other materials (collectively, "Content") that may be protected by copyrights, trademarks, trade secrets and other proprietary rights. Intertek shall make no claim to ownership of the product data or information as a result of its publication within a test report on the Service. User may print, copy or download test reports from the Service for User’s own purposes, provided that any copyright and proprietary notices originally included with or contained in the License materials are included in all copies and the use is in compliance with the written agreement(s) between You and Intertek, or a third party client of You. Except as expressly authorized by Intertek, You agree not to copy, modify, delete, publish, transmit, participate in the transfer or sale of, create derivative works from, or in any way exploit any of the routines, software, codes, systems, programming used in the Service. All routines, codes, systems, software, programming, and all related information, text, programming, designs, and graphics relating to or supporting the Service, and together with the “look and feel” of the Service, are the exclusive and sole property of Intertek. You covenant and agree that any rights of use which You obtain are in the nature of a limited use non-exclusive, non-assignable, and cancelable at-will license only, and that all uses of the Service inure to the sole benefit of Intertek.


5.2 Online Conduct

You are licensed and agree to use the Service for lawful purposes only. You agree not to create any content or otherwise transmit any information or material that: (a) is false or misleading; (b) is harassing or invades another's privacy, harms minors in any way, or promotes bigotry, racism, hatred or harm against any group; (c) is obscene; (d) infringes another's rights, including but not limited to intellectual property rights; or (e) constitutes spam. You, and not Intertek, are responsible for all Content and other materials that You transmit or use via the Service ("Subscriber Content"). The Service may provide You with the ability to upload Subscriber Content to dedicated, non-Public areas of the Service that are accessible to other subscriber groups, including Intertek users. These dedicated non-Public areas of the Service will be accessible only to select Intertek users and those persons with whom You decide to register Your content password and account information, such as Your employees or clients. At such time as You may upload Subscriber Content to any area of the Service, You warrant that all so-called moral rights in Subscriber Content have been waived. Intertek retains the right, but not the obligation, to remove or delete any Content that is available on the Service, including Subscriber Content. You agree that Intertek in its sole discretion, may at any time: (a) remove any Content or Subscriber Content, information or material from the Service, (b) make changes to or discontinue any and all aspects of the Service, and (c) restrict online storage, including the uploading of Subscriber Content, in excess of user storage allocation capacities which may be specified by Intertek. Rather than restrict online storage limits, Intertek may negotiate a charge with any subscriber having a need for additional storage. Intertek expressly reserves the right to suspend or terminate Your account if Your use of the Service is likely to interfere with the Service or cause loss or damage to Intertek or any third party. You shall be liable for any such use that results in any loss or damage and shall indemnify Intertek pursuant to the terms of this Agreement. You also agree that You will not decompile, reverse engineer, disassemble, or copy in whole or in any part any of the programs or codes of the Service, nor will You copy or use any designs, trademarks or other marks, logos, or designs of the Service unless expressly permitted pursuant to this Agreement.

Intertek has no obligation to monitor communications within the Service. However, Intertek reserves the right to review materials posted or transmitted to or through the Service, and to remove any materials in its sole discretion. Intertek reserves the right to terminate Your access to the Service at any time, without notice, for any or no reason whatsoever. Intertek reserves the right to refuse to post any information or materials. Intertek may, but is not required to, immediately terminate any account or user that it believes, in its sole discretion, is violating these terms of use, without recourse.


5.3 Export Restrictions

You may not access, download, use or export the Service, or any Information or Reports not belonging to You, or the content, software, products or services provided on the Service in violation of U.S. export laws or regulations, or in violation of any other applicable laws or regulations. You agree to comply with all export laws and restrictions and the regulations of the United States, any State, and/or foreign agency or authority. You will not, directly or indirectly, provide or otherwise make available the services and products of Intertek in violation of any such restrictions, laws or regulations, or without all necessary approvals, including, without limitation, all approvals for the development, design, manufacture or production of nuclear, chemical or biological weapons of mass destruction, or development of missile technology. As applicable, You shall obtain and bear all expenses relating to any necessary licenses and/or exemptions with respect to Your own use of the Service outside the U.S. Neither the Service nor the underlying information or technology may be downloaded or otherwise provided or made available, either directly or indirectly, (i) in or into Cuba, Iran, Iraq, Libya, North Korea, Sudan, Syria or any other country subject to U.S. trade sanctions, to individuals or entities controlled by such countries, wherever located, or to nationals or residents of such countries other than nationals who are lawfully admitted permanent residents of countries not subject to such sanctions; or (ii) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals and Blocked Persons or the U.S. Commerce Department's Table of Denial Orders.


5.4 Passwords and Security
You are responsible for maintaining the confidentiality of any password or other security information You are provided to access the Service. You are responsible for all activities that occur under Your password(s) and account. You must notify Intertek immediately of any unauthorized use of Your password(s). You are responsible for providing internal-client and external user access (via username and password creation) to Your Information and Reports and/or in-progress project status information contained in the Service. You are responsible for appointing Your Service administrator and for advising Intertek of such appointment and subsequent changes. You are also responsible for disabling internal-client and external user access to the Service and Your reports and/or in-progress project status information contained in the Service – in the event of employee or vendor termination, for example. Intertek cannot and will not be responsible for any loss or damage arising from Your failure to comply with these requirements. Internal-client and external users are responsible for complying with the terms of this Agreement, including terminating such use in accordance with the terms of any separate agreement with the client.


6. PERSONAL DATA

You are responsible for maintaining the confidentiality of any personal data stored on My TestCentral or downloaded to the Service through My TestCentral. You are responsible for complying with all applicable laws governing collection, storage, processing and transfer of such information. You authorize Intertek to process data as required to facilitate the provision of the Service. Intertek will process personal data in accordance with the instructions received from You and will not process such data in a manner different from that necessary to carry out Intertek’s obligations under this Agreement. As the owner of the data, You are warranting that You have provided Your users with all appropriate notices and have obtained all appropriate consents to transfer the data to us and allow its processing according to the terms of this Agreement.


7. TERMINATION OF ACCOUNT AND/OR My TestCentral’s SERVICES

Intertek may terminate or discontinue the Service provided or access to My TestCentral immediately, without prior notice, for any or no reason. Intertek may, but is not obligated to, delete archived data. You may terminate Your use of the Service at any time. Upon 30 days advance notice to Intertek, Intertek will terminate Your authorizations relative to the Service, and remove any of Your personal Information and Reports from the Service.


8. DISCLAIMER

THE SERVICE, AND ALL CONTENT PROVIDED BY INTERTEK ON My TestCentral, ARE PROVIDED BY INTERTEK ON AN "AS IS" BASIS. INTERTEK EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. INTERTEK MAKES NO WARRANTY THAT (i) THE SERVICE WILL MEET YOUR REQUIREMENTS, (ii) THE SERVICE WILL BE AVAILABLE UNINTERRUPTED, ON A TIMELY BASIS, SECURE, OR ERROR- FREE, (iii) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE WILL BE ACCURATE OR RELIABLE, AND (iv) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR EXPECTATIONS. ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS OBTAINED AT YOUR OWN DISCRETION AND RISK AND INTERTEK SHALL HAVE NO RESPONSIBILITY FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL. INTERTEK IS NOT AND SHALL NOT BE LIABLE OR RESPONSIBLE FOR THE IMPROPER, ILLEGAL OR “BAD ACTS” OF ANY THIRD PARTY OR ANY OTHER USER OF THE SERVICE, NOR FOR ANY UNAUTHORIZED USE OF THE SERVICE OR ANY INFORMATION AND REPORTS OR DATA THEREIN. THE TERMS OF THIS PARAGRPAH 8 SHALL BE ENFORCED TO THE MAXIMUM EXTENT PERMITTED BY LAW.


9. LIMITATION OF LIABILITY

IN NO EVENT SHALL INTERTEK BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, OR DAMAGES FOR LOSS OF PROFITS, REVENUE, DATA OR DATA USE, INCURRED BY YOU OR ANY THIRD PARTY, WHETHER IN AN ACTION IN CONTRACT, TORT OR OTHERWISE, EVEN IF INTERTEK HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF SUCH DAMAGES WERE FORESEEABLE, WHETHER ARISING FROM YOUR ACCESS TO OR USE OF THE SERVICE OR My TestCentral, OR OTHERWISE. INTERTEK’S ENTIRE LIABILITY FOR DAMAGES HEREUNDER SHALL IN NO EVENT EXCEED ONE THOUSAND DOLLARS (U.S. $1,000). THE TERMS OF THIS PARAGRAPH 9 SHALL BE ENFORCED TO THE MAXIMUM EXTENT PERMITTED BY LAW.


10. INDEMNITY
You shall defend, indemnify and hold harmless Intertek, its officers, directors, employees and agents from and against any and all claims, liabilities, damages, losses or expenses, including reasonable attorneys', experts’ and consultants’ fees and costs, arising out of or in any way connected with Your access to or use of the Service. This requirement shall be interpreted and enforced to the maximum extent permitted by law.

 

11. LINKS TO WEB SITES
Through the Service, You may be exposed to hyperlinks to Web sites controlled by parties other than Intertek. Intertek is not responsible for and does not endorse or accept any responsibility for the content or use of these Web sites. You should refer to the policies posted by other Web sites regarding privacy and other topics before You use them.

12. SEGMENTATION
You acknowledge that the Service acquired hereunder is offered by Intertek separately from any other service offered by Intertek. You understand that You have the right to acquire other Intertek products and services without acquiring the Service, and that You have the right to acquire the Service and other Intertek products and services separately.

13. APPLICABLE LAWS/MISCELLANEOUS
You agree to comply with all local rules, regulations and laws regarding online conduct and acceptable Content. Intertek reserves the right to employ non- US consultants in providing the services or developing, enhancing, or maintaining the Service. All matters relating to Your access to or use of the Service shall be governed by U.S. federal law and the laws of the State of New York, without regard to or the application of  New York’s conflicts of law provisions. Any legal action or proceeding relating to Your access to, or use of, the Service shall be instituted in a state or federal court in New York, including all actions seeking to interpret or enforce this Agreement. You and Intertek agree to submit to the jurisdiction of, and agree that venue is proper in, these courts in any such legal action or proceeding. You agree to comply with all applicable laws, statutes, ordinances, and regulations regarding Your use of the Service. Intertek’s failure to act with respect to a breach by You or others does not waive Intertek’s right to act with respect to subsequent or similar breaches or any of its rights under this Agreement. You and Intertek are independent contractors, and no agency, partnership, joint venture, employee-employer, or franchisor-franchisee relationship is intended or created by this Agreement.  

14. FORCE MAJEURE
Intertek shall not be liable or deemed to be in default for any delay or failure in performance or interruption of the Service resulting directly or indirectly from acts of God, civil or military authority, acts of a public enemy, war, riots, civil disturbances, insurrections, accidents, fires, explosions, floods, the elements, strikes, labor disputes, shortages of suitable parts, materials, labor or transportation, magnetic interference, interruptions of electric power or other utility service, unavailability of any telecommunications service or connection to any telecommunications service, computer, software, backbone or network error, or any other cause beyond Intertek’s reasonable control.

15. SEVERABILITY AND REFORMATION
If any provision hereof is held invalid or unenforceable by a court or tribunal of competent jurisdiction, such invalidity shall not affect the validity or operation of any other provision hereof, and such invalidity or unenforceability shall be confined in its operation to the time, event, parties, facts and circumstances in which invalidity or unenforceability was found, and not extended to other times, events, parties, facts or circumstances. Further, as to such found invalidity or unenforceability, such invalid or unenforceable provision shall be reformed to the minimum extent required to bring it into compliance with applicable law, or to otherwise make such provision enforceable. Such reformation shall be performed by first taking into account the purposes sought by Intertek in any such clause, second, by the intent of the parties as set forth in such provision, and third, by the intent of the parties as gleaned from other provisions in this Agreement. If such reformation is not possible, then such provision shall be severed from this Agreement, and the remainder hereof shall remain in force and effect.

16. ASSIGNABILITY
This Agreement and the rights and obligations hereunder are personal to You and may not be assigned by any act or by operation of law.

17. CONSTRUCTION
The parties to this Agreement shall not be bound by any agent's or employee's representation, promise, or inducement not set forth in this Agreement. No course of prior dealings between the parties and no usage of trade shall be relevant or admissible to supplement, explain, or vary any of the terms of this Agreement. Acceptance of or acquiescence in a course of performance rendered under this or any prior Agreement shall not be relevant or admissible to determine the meaning of this Agreement, even though the accepting or acquiescing party has knowledge of the nature of the performance and an opportunity to make objection. No representations, understandings, or agreements have been made or relied upon in the making of this Agreement other than those specifically set forth herein.

18. COPYRIGHT/ TRADEMARK AND PRESS RELEASE INFORMATION
Copyright © 2012, INTERTEK TESTING SERVICES NA, INC. All rights reserved.

”My TestCentral” and any module herein are trademarks of Intertek. Other names appearing in the Service may be trademarks of their respective owners. You agree that any and all press releases and other public announcements related to this Agreement and subsequent transactions between Intertek and You, including the method and timing of such announcements, and any use of any Intertek trademark, must be pre-approved by Intertek in writing.

19. CONTACT INFORMATION
If You have any questions regarding this Agreement or the Service, please contact Intertek via email at mtchelp@intertek.com.