eBacMap® System Terms and Conditions of Use Agreement
The eBacMap® System is an online tool provided by Food Microbiological Laboratories, Inc., (“FML”) that tracks individual microbial-pathogen results. Your use of the eBacMap® System signifies your agreement to these Terms and Conditions:
- The eBacMap® System. The eBacMap® System is an online data independent software program and system that tracks individual microbial pathogen results and helps an effective team identify overall trends through spatial mapping and history of results, with generation of performance reports. eBacMap® System includes the software and hardware used to implement the online tool as well as any supporting or technical documentation.
- Term and scope of license. These Terms and Conditions constitute a license agreement between FML, you, and your employer on whose actual or apparent authority you are acting. This license agreement also includes any other employee authorized by your employer to use its licensed subscription of the eBacMap® System. By accepting these Terms and Conditions, you represent that you have the authority to bind your employer to this agreement. “You” and its derivatives are used throughout this agreement to mean you, your employer, and any employee authorized by your employer to use the eBacMap® System. FML grants to you and you accept, on these Terms and Conditions, a nontransferable, nonexclusive right to use the eBacMap® System. Your initial subscription under these Terms and Conditions is a company subscription. The eBacMap® System’s tracking and trending reports are generated relative to each subscriber facility. Each facility must have its own facility subscription in addition to a company subscription. Any subscription cannot be re-sold. The effective start date of this agreement is the day you subscribe to the eBacMap® System by accepting these Terms and Conditions and paying the subscription fee. The license term is one year from the subscription date. No access to the system is allowed if your subscription under these Terms and Conditions is lapsed or terminated. FML reserves the right to refuse a subscription to anyone.
- Additional facilities. Additional subscriptions for each facility can be purchased. If an additional facility subscription is purchased during the term of an existing company subscription, the additional subscription or license fee will be calculated based on an annual pro-rated fee that must be pre-paid. The original subscription anniversary will become the anniversary for all new facilities added to the subscription. Any facility subscription will be subject to and governed by these Terms and Conditions.
- Understanding of agreement. You acknowledge and agree that on behalf of yourself and your employer you have read this agreement carefully. If you do not agree to the Terms and Conditions, you and your employer may not access or otherwise use the eBacMap® System. You should use your browser’s “Back” button to exit.
- Payment. All subscriptions under these Terms and Conditions are pre-paid annually and not refundable. Payments must be made by credit card.
- Termination. FML may terminate this agreement thirty days after written notice to you in the event that you breach any provision of this agreement and have not cured that breach within the thirty-day period. You may terminate this agreement thirty days after written notice to FML in the event that FML breaches any provision of this agreement and has not cured that breach within the thirty-day period. You are not entitled to a refund of any portion of the subscription fee upon termination.
- Actions to be taken upon termination. Upon termination, you will immediately discontinue use of the eBacMap® System.
- Effect of termination. Termination of this agreement does not bar FML from seeking any other remedy it may have against you for breach of the agreement. You agree to hold FML harmless for any loss or other consequences of a termination of this agreement.
- Additional services. FML does not offer any data-management, data-entry, or other data-related service as part of these Terms and Conditions. Even if you have contracted with FML for data entry in the past, FML will not enter or manage that data under this agreement. If you want FML to enter prior data or other data in the eBacMap® System you must contact FML and enter into a separate contract for those services.
- Your responsibilities. You are responsible for all results entry, map entry, and observation of reports. FML is not responsible for presenting results or representing you before any regulatory agencies or any other parties. You are responsible for all sample site selection, map inputs, determination of frequency of sampling and testing, test methodology, and corrective and preventive action for environmental pathogen monitoring and control. You are responsible for identifying who has authorization to various levels of information and functionality in the system and maintaining settings in the system set-up. Data is retained on the eBacMap® System throughout the subscription period. You are responsible for removal of data beyond your records-retention period. The eBacMap® System will warn you before any data deletion, but FML is not responsible for any damages or other harm you incur because of erroneous or mistaken data deletion. The accuracy and truthfulness of the data you enter and maintain in the eBacMap® System is your responsibility. FML bears no responsibility for any falsification or misrepresentation of data entered in or maintained on the eBacMap® System. FML is not liable for any damages or harm caused by false or misrepresented data entered in or maintained on the eBacMap® System, and you indemnify and hold harmless FML for any such harm or damages.
- Other authorized users. You will only allow employees to access this system after notifying them of these Terms and Conditions and informing them that they are bound by these Terms and Conditions. You must keep records of this notice and communication with each employee authorized to use the eBacMap® System.
- Technical limits on data entry. For maps entered into the eBacMap® System, no image file size over 10 megabytes is accepted by the eBacMap® System. You and any other user authorized by this agreement will need to open the file and compress the image.
- Examples should not be relied upon. Pathogen environmental monitoring programs or other example systems posted on the website are for example purposes only. Each manufacturing operation is different. You are responsible for ensuring your systems are appropriate, complete, and applicable. FML assumes no responsibility for inadequate design of your pathogen control or monitoring program.
- Restrictions on use. No copies may be made of the eBacMap® System or any part thereof, except as specifically permitted therein. No printouts or other copies of map images—in any medium—created by the eBacMap® System may be shared with a third party that provides or offers data mapping, tracking, or trending systems, either directly or through subsidiaries or affiliates, or published or distributed to the public, unless required by law. Any such image in your possession must be destroyed or deleted upon termination of this agreement.
- FML can monitor usage. FML may monitor your use of the eBacMa® System, and may freely use and disclose any information and materials received from you or collected through your use of the eBacMa® System if required by law. FML may remove from the eBacMa® System any material that FML deems inappropriate or unsuitable, without notice or liability. Except has required by law, FML will not disclose your information and materials, and will keep your information confidential.
- FML’s right to modify. FML reserves the right, at its sole discretion, to change, modify, add, or remove any portion of this agreement, in whole or in part, at any time. Notification of changes in the agreement will either be provided on the eBacMap® System login page or via email.
- Copyright protection. The eBacMap® System is protected by copyright laws, including U.S. Copyright laws, international conventions, and other copyright laws. All materials contained on the eBacMap® System (“Content”) are protected by copyright, and are either owned controlled, or licensed by FML. You will abide by any and all additional copyright notices, information, or restrictions contained in any Content.
- FML’s right to alter eBacMap®. FML may change, suspend, or discontinue any aspect of the eBacMap® System at any time, including the availability of any eBacMap® System feature, database, or Content. FML may also impose limits on certain features and services or restrict your access to parts or all of the eBacMap® System without notice or liability.
- Capacity and restrictions on use. You represent, warrant, and covenant that: (a) You are of the age of majority in your state; and (b) You will not upload, post, or transmit to or distribute or otherwise publish through the eBacMap® System, any material that (i) restricts or inhibits any other user from enjoying or using the eBacMap® System, (ii) in FML’s discretion is unlawful, threatening, abusive, libelous, defamatory, obscene, vulgar, offensive, pornographic, profane, sexually explicit, or indecent, (iii) constitutes or encourages conduct that would constitute a criminal offense, give rise to civil liability or otherwise violate law, (iv) violates, plagiarizes, or infringes the rights of third parties, including, without limitations, copyright, trademark, patent, rights of privacy or publicity or any other proprietary right, (v) contains a computer virus or other harmful component, or (vi) constitutes or contains false or misleading indications of origin or statements of fact.
- Export control responsibility. You acknowledge that technical data—like specifications, images, plans, and information on use, access, deployment, or functionality of your facilities—inputted or otherwise placed in the eBacMap® System may be subject to export-control laws and regulations of the United States and to the import-control laws and regulations of foreign countries or jurisdictions. You represent and warrant that, if necessary, you will obtain written authorizations from the Bureau of Export Administration of the United States Department of Commerce or other relevant agency of the United States Government, regarding any export or re-export, directly, or indirectly (including by disclosing to a foreign national), of the technical data to (i) any country destination to which export is restricted by the Export Administration Regulations of the United States Department of Commerce; (ii) any country subject to sanctions administered by the Office of Foreign Assets Control, United States Department of Treasury (including but not limited to its list of Specially Designated Nations); or (iii) such other countries to which export is restricted by any other United States government agency. You further agree that you are solely responsible for compliance with U.S. export laws as well as the import laws and regulations of the country of destination of the export, and any other import requirement related to a permitted export; and you represent and warrant that you are solely responsible for any claims, litigation, or other actions arising from your non-compliance with any of the foregoing export or import laws, whether foreign or domestic.
- Indemnity. You agree to indemnify, defend, and hold FML, and any of its officers, directors, owners, agents, employees, information providers, affiliates, licensors and licensees (collectively, the “Indemnified Parties”) harmless from and against any and all liability and costs, including, without limitations, regulatory penalties, attorney’s fees, and costs incurred by the Indemnified Parties in connection with any claim arising out of your use of the eBacMap® System or any breach by you of the Terms and Conditions, including, but not limited to, all liability and costs to FML for your infringement of any of your warranties, representations or acknowledgements herein. You will cooperate as fully as reasonably required in the defense of any claim. FML reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you. And you will not settle any matter related to this provision without the written consent of FML.
- No endorsement of third-party links. The eBacMap® System may contain links and pointers to other World Wide Web Internet sites, resources, and sponsors. Links to and from the eBacMap® System to other third-party sites do not constitute an endorsement by FML or any of its subsidiaries or affiliates of any third-party resources, or their contents.
- No endorsements of opinions. FML does not represent or endorse the accuracy or reliability of any advice, opinion, statement, or other information displayed or distributed through the eBacMap® System. You acknowledge that any reliance upon any such opinion, advice, statement, memorandum, or information is at your own risk. FML reserves the right, in its sole discretion, to correct any errors or omissions in any portion of the eBacMap® System.
- Review of posted material and information. FML does not and cannot review all materials posted to the eBacMap® System, and FML is not responsible for any such materials posted by users. But FML reserves the right at all times to disclose any information as necessary to satisfy any law, regulation, or government request, or to edit, refuse to post or to remove any information or materials, in whole or in part, that in FML’s sole discretion are objectionable or in violation of the Terms and Conditions.
- System provided “as is.” The eBacMap® System, including all Content, software, functions, materials, hardware, and information made available on or accessed through the eBacMap® System, is provided “as is.” To the fullest extent permissible by law, FML and its subsidiaries and affiliates make no representation or warranties of any kind whatsoever for the Content or the materials, information, software, hardware, and functions made accessible through the eBacMap® System, for any products or services or hypertext links to third parties, or for any breach of security associated with the transmission of sensitive information through the eBacMap® System or any hyperlinked site. FML and its subsidiaries and affiliates disclaims any express or implied warranties, including without limitation, non-infringement, merchantability, or fitness for a particular purpose. FML does not warrant that the functions contained in the eBacMap® System or any materials or content contained therein will be uninterrupted or error free, that defects will be corrected, or that the eBacMap® System is free of viruses or other harmful components. FML and its subsidiaries and affiliates are not liable for direct or any indirect damages related to your use of the eBacMap® System, including without limitation, its Content, software, hardware, information, materials, and functions and any errors contained therein.
- License to FML. By posting messages, uploading files, inputting data or engaging in any other form of communication (individually or collectively “Communications”) on or to the eBacMap® System, you hereby grant to FML, a perpetual, worldwide, irrevocable, unrestricted, non-exclusive, royalty-free license to use, copy, license, sublicense, adapt, distribute, display, publicly perform, reproduce, transmit, modify, edit, and otherwise exploit such Communications, in all media now known or hereafter developed. You hereby waive all rights to any claim against FML for any alleged or actual infringements of any proprietary rights, rights of privacy and publicity, moral rights, and rights of attribution in connection with such Communications. Notwithstanding this provision, FML will not share or otherwise disclose any Communications outside FML without your written consent except to the extent required by law or necessary to provide you access or use of the eBacMap® System.
- Relationship between the parties. You acknowledge that by submitting Communications to the eBacMap® System, no confidential, fiduciary, contractually implied or other relationship is created between you and FML other than the one that exists under these Terms and Conditions.
- Governing law. This agreement is governed by and construed in accordance with the laws of the state of California, without regard to conflicts of law provisions.
- Equitable remedies. You acknowledge that (i) any use or threatened use of the eBacMap® System in a manner inconsistent with this agreement, or (ii) any other misuse of the eBacMap® System will cause immediate irreparable harm to FML for which there is no adequate remedy at law. Accordingly, you agree that FML is entitled to immediate and permanent injunctive relief from an arbitrator in the event of any breach or threatened breach by you. The parties agree and stipulate that FML is entitled to such injunctive relief without posting a bond or other security; but if posting a bond is a prerequisite to obtaining injunctive relief, then a $1000 bond is sufficient. Nothing in this paragraph limits FML’s right to any remedies at law, including the recovery of damages from you for breach of this agreement.
- Arbitration. Any disagreement, claim, dispute, or litigation related to, involving, or arising out of this agreement, including its validity and interpretation, must be submitted to arbitration with the International Institute for Conflict Prevention and Resolution (“CPR”) Rules for Administered Arbitration (the “Administered Rules” or “Rules”) by a sole arbitrator using streamlined procedures. The arbitration will be governed by the Federal Arbitration Act, 9 U.S.C. §§ 1 et seq., and judgment upon the award rendered by the arbitrator may be entered by any court having jurisdiction thereof. The place of the arbitration will be Orange County, California.
- Protection of software. You acknowledge that FML represents that the eBacMap® System and all copies of it, regardless of the form or media in which the original or copies may exist, are the sole and exclusive property of FML. You further acknowledge that FML represents that the eBacMap® System software, including the source and object codes, logic and structure, constitute valuable trade secrets of FML. You agree to secure and protect the eBacMap® System consistent with the maintenance of FML’s rights in it, as set forth in this agreement. Except as expressly permitted in this agreement, you agree not to disclose or otherwise make available any part of the eBacMap® System to any third party on any basis. By accepting this license, you do not become the owner of the eBacMap® System; FML retains all right, title, and interest in and to the eBacMap® System. This section survives any termination of this agreement.
- Limitation of liability. In no event will FML be liable for any loss of or damage to revenues, profits, or goodwill, or other special, incidental, indirect, or consequential damages of any kind, resulting from its performance or failure to perform pursuant to the terms of this agreement, or resulting from the furnishing, performance, or use or loss of any software or other materials delivered to you under these Terms and Conditions, including without limitation any interruption of business, whether resulting from breach of contract or breach of warranty or otherwise, even if FML has been advised of the possibility of such damages. Notwithstanding anything herein to the contrary, the maximum aggregate amount of money damages for which FML may be liable to you under this agreement, resulting from any cause whatsoever, will be limited to the amount actually paid by you to FML under these Terms and Conditions for a one-year subscription.
- Entire agreement. The Terms and Conditions constitutes the entire agreement between FML and you with respect to your use of the eBacMap® System. If for any reason any provision of the Terms and Conditions is found to be unenforceable, that provision will be enforced to the maximum extent permissible, and the reminder of the Terms and Conditions will continue in full force and effect.