FIBERLOCATOR® TERMS OF USE
1. FIBERLOCATOR® SERVICE. General. The following terms of use, together with such terms as are set forth in any other part of the FiberLocator® Order Form (“Order Form”), along with any other documents as are incorporated by reference, shall constitute the terms of use (“Terms of Use”) between New England Fiber, Inc. (“NEF”) and Customer (“Customer”, “you”, or “your”). The term Customer shall include any Authorized User of Customer (“Authorized User”). These Terms of Use shall be deemed to have been accepted by Customer’s execution of the Order Form, and by any of the following: (i) Customer’s commencement of use of the FiberLocator® Service; (ii) NEF granting access to the Customer for use of the FiberLocator® Service; or (iii) NEF’s performance of any services hereunder.
Description. The “FiberLocator® Service”, sometimes referred to as just “FiberLocator®,” or the “Service,” means the FiberLocator® application, data, maps and services provided by NEF. The FiberLocator® Service is proprietary to NEF and is protected by intellectual property laws and international property treaties. NEF shall retain all right, title and interest in the FiberLocator® Service and any and all of NEF’s trade names, trademarks, logos and service marks respecting the Service, now or in the future owned or licensed by NEF or its affiliates
2. TERMS OF USE OF THE SERVICE. Grant of License. Upon execution of this Order Form and acceptance by NEF, NEF grants the Customer and any Authorized User a limited, non-exclusive right to use the FiberLocator® Service.
Restrictions On Use. The FiberLocator® Service shall be used only for your own business, which includes providing, using or showing FiberLocator® information, data and maps to customers or potential customers during the sales process. No license is granted to any right not specifically listed or referenced in these Terms of Use. You shall not: (i) permit any unauthorized parties to use FiberLocator®; or (ii) process or permit to be processed the data and/or inquiries of any other party; or (iii) use FiberLocator® for competitive intelligence, competitive research analysis, or for the collection and analysis of strategic research concerning your competitor. You may not remove any proprietary notice of NEF from any copy of the FiberLocator® data or maps. Only NEF shall have the right to alter, maintain, enhance, or otherwise modify the FiberLocator® Service. Further, unless otherwise expressly provided for in these Terms of Use, you shall not, whether directly or indirectly: (a) reproduce, modify, adapt, or translate the FiberLocator® data, maps, or any portion thereof; (b) sell, lease, sublicense, or distribute the FiberLocator® data, maps, or any portion thereof; (c) disassemble, decompile, or reverse engineer the FiberLocator® application, data, maps, or any portion thereof; or (d) engage in any other activity that violates these Terms of Use.
3. CUSTOMER REPRESENTATIONS AND WARRANTIES. By using the FiberLocator® Service, you represent and warrant that: (a) you have the power and authority to enter into and perform your obligations pursuant to the Terms of Use; (b) you shall comply with all Terms of Use, including, without limitation, the Terms of Use set forth in Section 2; and (c) that you are liable and responsible for any Authorized User of the Service. Further, Customer warrants and represents that it will advise Authorize User of these Terms of Use and the rights and restrictions stated herein.
4. INDEMNIFICATION. Customer shall indemnify and hold harmless NEF and its trustees, directors, officers, employees, affiliates, agents, successors, and third-party suppliers from and against any and all losses, liabilities, judgments, obligations, expenses, damages, awards and costs (including reasonable legal fees and expenses) arising from any claim, demand, action or proceeding based upon any act or omission of Customer or any Authorized User in connection with the use of the Service or the performance of services thereunder, except to the extent that such liabilities, obligations, costs, expenses, damages and claims are caused by the negligence of NEF, its trustees, directors, officers, employees, affiliates, agents, vendors, successors or third-party suppliers. NEF shall indemnify and hold harmless Customer and its trustees, directors, officers, employees, affiliates, agents, vendors, successors, and third-party suppliers from and against any and all losses, liabilities, judgments, obligations, expenses, damages, awards and costs (including reasonable legal fees and expenses) arising from any claim, demand, action or proceeding, including infringement to intellectual property rights of third parties, based upon any act or omission of NEF in connection with this Agreement, NEF’s obligations hereunder and at law, except to the extent that such liabilities, obligations, costs, expenses, damages and claims are caused by the negligence of Customer or Authorized User, its trustees, directors, officers, employees, affiliates, agents, vendors, successors or third-party suppliers.
5. DISCLAIMER OF WARRANTIES. The information and data provided through the FiberLocator® Service has been prepared, supplied and compiled, in part, by third-parties. NEF and its third-party suppliers do not independently verify the accuracy and completeness of such information and data nor do they warrant that the Service will be error-free or satisfy all the requirements of the Customer. EXCEPT AS EXPRESSLY STATED HEREIN, NEF AND ITS THIRD-PARTY SUPPLIERS MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATEVER, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE RESPECTING THE SERVICE, OR ANY COMPONENT THEREOF INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABLE QUALITY, DURABILITY OR FITNESS FOR A PARTICULAR PURPOSE. The Customer accepts the information and data on an “as is” basis and NEF neither assumes nor accepts any liability, including liability in negligence or negligent misstatement, to the Customer for any inaccuracy or incompleteness in such information or data. NEF shall have no obligation to update or correct data incorporated into the FiberLocator® Service except as expressly provided herein.
6. LIMITATION OF LIABILITY. Under no circumstances shall NEF or its parent, subsidiary or affiliate companies or anyone working for or on behalf of NEF or its parent, subsidiary or affiliate companies, or shall NEF’s third-party suppliers be liable to Customer for any indirect, incidental, consequential, special, exemplary, or punitive damages, in any case arising out of or relating to Customer’s use of any part of the FiberLocator® Service, no matter what the claim is based on and even if NEF has been advised of the possibility of such damages. Such limitation shall apply notwithstanding any failure of essential purpose of any limited remedy and to the fullest extent permitted by law. NEF’s aggregate liability, whether in tort, contract or otherwise and, notwithstanding any fault, negligence or strict liability of NEF regarding the Service, shall not exceed the amount paid by the Customer to NEF for the Service. THIS SECTION SHALL NOT LIMIT THE REMEDIES OR RECOURSE AVAILABLE TO NEF AND ITS THIRD-PARTY SUPPLIERS FOR ANY DAMAGES RESULTING FROM THE BREACH OF THESE TERMS OF USE, INCLUDING BUT NOT LIMITED TO THE UNAUTHORIZED OR UNACCEPTABLE USE OF THE SERVICE, OR ANY PART THEREOF.
7. GOVERNING LAW AND CHOICE OF FORUM. Any dispute arising hereunder shall be brought in the Commonwealth of Massachusetts, and governed by, interpreted and construed in accordance with the laws of the Commonwealth of Massachusetts without regard to choice of law principles.
