By accessing the Ethofy Applications (defined below), whether you represent an entity, or are an employee or representative of that entity, you agree to the terms of this Agreement, pursuant to which Ethofy, with its principal place of business at 720 3rd Avenue, Suite 1510, Seattle, WA 98104, provides you access to the Ethofy Applications , including all collateral, content, information, designs, graphics, and other information provided directly and indirectly through the Ethofy Applications.

 

If you do not agree to these terms, do not download or access any part of the Ethofy Applications.

 

1.       Access to Ethofy Applications.

 

a.        Applications. Subject to the terms of this Agreement, Ethofy hereby grants you the right to use the Ethofy products and services made available to you from time to time (individually and collectively, the “Ethofy Applications”). The Ethofy Applications may include, by way of example only, the ability to customize collateral materials, provide syndicated web content and order promotional products related to Manufacturer Products (defined in subsection b below).

b.       Use. You may use the Ethofy Applications solely for your own promotion, use or sale of Manufacturer products and services (individually and collectively, the “Products”), including but not limited to marketing and training activities. “Manufacturer” shall mean the specific manufacturers and/or other suppliers of products and services made available to you, as a channel partner, which may include acting as reseller for the Products, via the Ethofy Applications.

c.        Restrictions. You may not: (1) use the Ethofy Applications for any use other than your own; you may not rent, lease, transfer, distribute or share, directly or indirectly, all or any part of the Ethofy Applications, (2) use the Ethofy Applications in any manner that Ethofy believes is or may be (a) unlawful, (b) contrary to this Agreement or any other terms or conditions provided to you by Ethofy, (c) contrary to the policies or instructions of the applicable Manufacturer, (d) fraudulent, vulgar or obscene, (e) disparaging, harassing, defamatory, threatening, harmful or libelous to Ethofy, any Manufacturer, or any third party, (f) a violation of the rights of any third party, (g) likely to give rise to software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment, (3) reverse engineer, decompile, or disassemble the Ethofy Applications, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation, (4) work around any technical limitations contained in the Ethofy Applications.

d.       Hosted Sites. In connection with access to and use of the Ethofy Applications, you may obtain access to websites hosted by Ethofy on behalf of Manufacturers (each, a “Hosted Site”). You agree that you will not take any action that imposes an unreasonable or disproportionately large load on the infrastructure of a Hosted Site, or interferes with the proper functioning of a Hosted Site. You may not use a Hosted Site for any purpose that is unlawful or prohibited by these terms.

 

2.       Manufacturer Materials; other Content.

a.        Content. Subject to the terms of this Agreement and all Manufacturer rules and policies, you have a limited right to use, during the terms of this Agreement, the Manufacturer content, graphics, logos, trademarks, product descriptions, collateral, software programs and other Manufacturer information and materials made available to you via the Ethofy Applications (individually and collectively, the “Manufacturer Materials”), and any other content, information and materials Ethofy provides to you (the “Ethofy Content”) solely for the purpose of promoting and selling the Products. Your right to access and use all or any portion of the Manufacturer Materials and/or Ethofy Content may be terminated at any time, with or without notice to you, upon the Manufacturer’s request for any reason, or in the event that Ethofy deems your use to be inappropriate, unlawful or in breach of this Agreement. You agree to immediately cease all use of and destroy (and upon Ethofy’s request, provide written certification of such destruction) the Manufacturer Materials and/or Ethofy Content upon the earlier of Ethofy’s request or termination of this Agreement.

b.       Manufacturer Responsibility. Notwithstanding anything set forth herein, you acknowledge and agree that, as between Ethofy and the Manufacturer, the Manufacturer is solely responsible for the Manufacturer Materials, and Ethofy shall not be liable to you in any manner for any issues deriving from the Manufacturer Materials, including but not limited to issues related to the Manufacturer’s Materials’ compliance with law, infringement of third party rights, form, substance, accuracy, content and usefulness.

c.        Changes. You agree that Ethofy and/or the Manufacturer shall have the right to change, alter the form of, and/or withdraw the Manufacturer Materials and/or Ethofy Content, at any time and for any reason, and may automatically effect such action without notice to you, by, for example, propagating such changes directly to websites operated by you.

 

3.       Your Responsibilities. Without limitation of your other responsibilities hereunder, you agree that you are solely responsible for the following, none of which shall be deemed Ethofy’s responsibility, directly or indirectly, in any manner:

a.        Relationship with Manufacturer. You agree that your right to, and the manner by which you, promote and sell the Products is subject to your agreement with and any rules and instructions of the Manufacturer of those Products. Except for providing you access to and use of the Ethofy Applications in accordance with this Agreement, Ethofy will not be responsible in any way for your right or ability to promote and sell the Products, or for any issues arising from the sale of the Products, including but not limited to costs, expenses, liabilities, or demands arising from the Products’ sale or use.

b.       System Access. You are responsible to maintain the software, hardware, Internet connection, and other systems necessary for you to be able to access and use the Ethofy Applications.

c.        Privacy Policy. You are responsible for creating, maintaining and complying with an industry standard privacy policy which will be available for access via a link on your website.

 

4.       Intellectual Property Rights. Except for the limited right to access and use the Ethofy Applications in accordance with Section 1 of this Agreement and the Manufacturer Materials in accordance with Section 2 of this Agreement, nothing herein shall be construed to grant you any rights therein and each of Ethofy and each Manufacturer retain all right, title and interest therein, including all modifications and derivatives of the Ethofy Applications and the Manufacturer Materials, whether made by you or any third party. You agree not to remove or modify any proprietary rights notices in or on the Manufacturer Materials or the output of the Ethofy Applications. Ethofy and its agents and partners shall have the right, with advance written notice to you, to audit your books and records pertaining to your use of the Ethofy Applications, the Manufacturer Materials and/or the Ethofy Content to confirm your compliance with the terms of this Agreement.

 

5.       Passwords. Where required to access the Ethofy Applications, a Hosted Site, and/or the Manufacturer Materials, you must complete any and all registration processes by providing us and/or the Manufacturer with current, complete and accurate information, as prompted by the applicable registration form. You may then be required to choose a login and password. You are entirely and solely responsible for maintaining the confidentiality of your password and account. Furthermore, you are entirely and solely responsible for any and all activities that occur under your account. You agree to notify Ethofy and the applicable Manufacturer immediately of any unauthorized use of your account or any other breach of security. Ethofy will not be liable for any loss that you may incur as a result of someone else using your password or account, either with or without your knowledge. However, you could be held liable for losses incurred by Ethofy, Manufacturers, or any other party, due to someone else using your account or password. You may not use anyone else’s account at any time, without the permission of the account holder. If you have not been authorized by a Manufacturer to use a Hosted Site, such as if you obtained a password from an authorized user in violation of this Agreement, you do not have the right to use the Hosted Site.

 

6.       Confidentiality. You agree to treat information provided by Ethofy in the performance of this Agreement that is identified as confidential or proprietary or reasonably appears based on the information disclosed and the circumstances surrounding disclosure to be confidential or proprietary to Ethofy (“Confidential Information”) with the same care as you use with your own confidential information, but with no less than a commercially reasonable standard of care, and you agree to restrict access to such information to those employees who need specific Confidential Information to carry out your rights and responsibilities under this Agreement. For the avoidance of doubt, Ethofy’s Confidential Information shall include, but not be limited to, Ethofy’s system architecture, assessment methodology and best practices, personally identifiable information related to Manufacturers or other Ethofy customers, all information related to Ethofy’s products, services, pricing, business plans, product plans, the results of the Applications, business methods, tools and standards used in connection with implementation of the Applications, and content requirements. In addition, the terms of this Agreement shall be Confidential Information. You acknowledge that damages will be an inadequate remedy if you violate this section. Accordingly, Ethofy shall have the right, in addition to any other rights it have, to obtain in any court of competent jurisdiction, temporary, preliminary and permanent injunctive relief to restrain any breach, threatened breach, or otherwise to specifically enforce this section.

 

7.       Ethofy Collection of Your Information.

 

a.        Privacy Policy. Registration data, including your name, billing and shipping address, credit card information, email and password, company name and certain other information about you and your company is subject to our Privacy Policy [http://www.ethofy.com/privacy/]. You understand that through your use of the Ethofy Applications you consent to the collection and use of this information as set forth in our Privacy Policy. You acknowledge and agree that Internet transmissions are never completely private or secure.

b.       Data We Collect. You acknowledge and agree that Ethofy has the right, but not the obligation, to monitor all Hosted Sites, including but not limited to your access to and use of the Hosted Sites, and to collect and retain all information it obtains in doing so. With respect to our use of any personally identifiable information we collect, whether via the Hosted Sites or otherwise, we will comply with the terms of our Privacy Policy [http://www.ethofy.com/privacy/]. You hereby grant Ethofy the perpetual, royalty free right, with right of sublicense, to use the information we collect in this manner, including but not limited to information related to your use of Manufacturer Materials and your references to the Products, (i) for the purpose of ensuring your compliance with this Agreement, (ii) in aggregate form, without reference to you, for our general business purposes, and (iii) with reference to you for the purpose of providing feedback to Manufacturers regarding your promotion and sale of Products and use of the Manufacturer’s Materials.

 

8.       Disclaimer of Warranties. To the maximum extent permitted by applicable law, Ethofy and its suppliers and partners (including but not limited to the Manufacturers) provide the Ethofy Applications and the Manufacturer Materials AS IS AND WITH ALL FAULTS, AND ON AN AS-AVAILABLE BASIS, and hereby disclaim all warranties and conditions, either express, implied or statutory, including, but not limited to, any (if any) implied warranties or conditions of merchantability, of fitness for a particular purpose, of lack of viruses, of accuracy or completeness of responses, of results, and of lack of negligence or lack of workmanlike effort. THERE IS NO WARRANTY OR CONDITION OF TITLE, QUIET ENJOYMENT, QUIET POSSESSION, CORRESPONDENCE TO DESCRIPTION OR NON‑INFRINGEMENT, WITH REGARD TO THE ETHOFY APPLICATIONS, THE SERVICES OR THE MANUFACTURER MATERIALS. THE ENTIRE RISK AS TO THE QUALITY OF OR ARISING OUT OF USE OR PERFORMANCE OF THE ETHOFY APPLICATIONS, THE SERVICES, AND THE MANUFACTURER MATERIALS, IF ANY, REMAINS WITH YOU.

 

9.       EXCLUSION OF INCIDENTAL, CONSEQUENTIAL AND CERTAIN OTHER DAMAGES; Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL ETHOFY, ITS SUPPLIERS OR PARTNERS (INCLUDING BUT NOT LIMITED TO THE MANUFACTURERS) BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS OR CONFIDENTIAL OR OTHER INFORMATION, LOSS OF DATA, FOR BUSINESS INTERRUPTION, FOR PERSONAL INJURY, FOR LOSS OF PRIVACY, FOR FAILURE TO MEET ANY DUTY INCLUDING OF GOOD FAITH OR OF REASONABLE CARE, FOR NEGLIGENCE, AND FOR ANY OTHER PECUNIARY OR OTHER LOSS WHATSOEVER) ARISING OUT OF OR IN ANY WAY RELATED TO THE USE OF OR INABILITY TO USE THE ETHOFY APPLICATIONS OR THE MANUFACTURER MATERIALS, THE PROVISION OF OR FAILURE TO PROVIDE THE ETHOFY APPLICATIONS OR THE SERVICES, OR OTHERWISE, EVEN IN THE EVENT OF THE FAULT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, BREACH OF CONTRACT OR BREACH OF WARRANTY, AND EVEN IF ETHOFY OR ANY SUPPLIER OR PARTNER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. To the extent permitted under applicable law, you can recover from Ethofy only direct damages up to the amount you actually paid for access to the Ethofy Applications, if anything.

 

10.    Term; Termination. This Agreement will commence on the date that you first click “I accept” or first access the Ethofy Applications and/or the Services and will continue until terminated by either party. Without limitation of any other rights of termination provided herein, Ethofy shall have the right to terminate this Agreement or your access to and/or use of all or any portion of the Ethofy Applications, the Hosted Sites, and/or Manufacturer Materials, automatically, with or without notice to you, if (1) you breach any provision of this Agreement, or if your employer breaches its agreement with Ethofy, or (2) Ethofy has reason to believe that your access to or use of any or all of the Ethofy Applications, the Manufacturer Materials, the Hosted Sites, or the Products is likely to violate any applicable law, Ethofy or Manufacturer rule, or any third party rights. Ethofy’s failure to insist upon strict adherence to provisions of this Agreement shall in no way constitute a waiver of the relevant or any subsequent breach. Following termination of this Agreement, unless otherwise agreed to in writing between Ethofy and you, you agree to immediately cease use of and destroy (and upon Ethofy or any Manufacturer’s written request, certify in writing such destruction) all Manufacturer Materials. Sections 1c, 2b, 4, 6, 7b, 8-15 shall survive termination of this Agreement for any reason.

 

11.    Warranty and Indemnity. You represent and warrant that you fully understand the English language. You agree, for yourself and your employer (if applicable), to defend, indemnify and hold harmless Ethofy, including its affiliates, licensors, service providers, suppliers, and partners from and against any and all claims, liability, losses, damages and expenses, including attorneys' fees, whether in tort, contract, or otherwise, relating to or arising out of your breach of any term of this Agreement or applicable law.

 

12.    Applicable Law. This Agreement shall be interpreted, construed and governed by the laws of the State of Washington, USA, without reference to its laws relating to conflicts of law and not including the provisions. Venue for all disputes arising under this Agreement shall lie exclusively in the Superior Courts of the State of Washington in King County or the Federal District Courts of the Western District of Washington (as permitted by law). You waive any objection to such venue and jurisdiction.

 

13.    Entire Agreement. This Agreement constitutes the entire agreement as between you and Ethofy regarding the Ethofy Applications and the Services (if any). This Agreement supersedes all prior or contemporaneous agreements, whether oral or written, of the parties with respect to the subject matter of this Agreement. This Agreement may not be modified unless expressly agreed to in writing by both parties.

 

14.    Modifications. Ethofy may modify or assign this Agreement at any time. Your continued use of the Ethofy Applications or the Services after the posting of any amendment to the Agreement shall constitute your agreement to be bound thereby.

 

15.    Severability. If any provision of this Agreement is determined to be invalid, all other provisions shall remain in full force and effect. If any provision of this Agreement is so broad as to be held unenforceable, such provision shall be interpreted to be only so broad as is enforceable.