Client Terms of Use Agreement

By registering as a user of the Services (“Client”), you hereby represent that you have the authority to legally bind, and you are duly authorized to enter into this Agreement on behalf of yourself. This website, the Services and any other services provided by Yootrain, LLC. ("Yootrain") are intended for use only by you. Your access to the Services is conditioned upon acceptance of this Agreement. By clicking the "I AGREE" button below, you accept and agree to this Agreement, as it may be amended from time to time, on behalf of yourself, and further agree that this Agreement creates a binding contract between Yootrain and yourself. You and Yootrain may be referred to individually as "Party" and collectively as "Parties".

DEFINITIONS

    1. “Agreement" means this Client Terms of Use Agreement and any amendments thereto.
    2. “Content” means any data, information or materials provided to Yootrain by a Provider or other third party, in any media known now or in the future for distribution through the Services to Clients.
    3. “Provider” means an entity contracted with Yootrain for purposes of providing Content through the Services.
    4.  “Services” means Yootrain’s proprietary application platform, related tools, and other services accessed and used by you (pursuant to this Agreement) and Providers for the purpose of facilitating the purchase and sale of Provider Content and related services.
    5.  “Services Software” means (i) any proprietary Yootrain computer software program, or those of its third party licensors, utilized by Yootrain in the establishment, operation, and/or the provision of Services including any proprietary schema, data processing or storing applications, tools, methodologies, databases and (ii) all source code, documentation, updates, upgrades, and derivative works thereof. 
    6. “Transaction Information” means all data, Content, and information generated or posted through use of the Services.

SERVICES

    1. Right of Access; Scope of Use.  Subject to your compliance with the terms of this Agreement, Yootrain hereby grants you a non-exclusive, non-transferable, limited right to access and utilize the Services and the Services Software, subject to the following restrictions: (i) you may use the Services and the Services Software solely for your own internal personal purposes; and (ii) you shall not (A) make any copies of all or any portion of the Services Software or the Services, (B) sell, sublicense, distribute, rent, lease or assign the Services or the Services Software to any other person or entity, (C) modify, reverse engineer, decompile, disassemble, translate, alter or create derivative works based on the Services or the Services Software, or (D) permit any third party to use the Services or the Services Software.  You understand, acknowledges and agrees that: (i) Yootrain will use commercially reasonable efforts to make the Services available 24 hours per day, 7 days a week, however the availability of the Services and the Services Software depends on many factors, including your connection to the Internet, the availability of the Internet and the Internet backbone, scheduled maintenance, and equipment that, by its nature, is not fault tolerant; (ii) Yootrain undertakes no duties to transfer, deliver, distribute or ship the Provider Content and/or related services to you; (iii) under no circumstances shall Yootrain take title to, or in any manner obtain an interest in, or otherwise be deemed to be within the chain of title of, any Provider Content and/or related services to you; and (iv) Yootrain from time to time may modify the Services or the Services Software in its sole discretion.
    1. Means of Access.  Yootrain shall provide you a unique login credential (“Access Code”) to be used to access the Services.  You are responsible for maintaining the confidentiality of the Access Code and will be solely liable for all activities that occur under your Access Code.  You shall immediately notify Yootrain of any unauthorized use of your Access Code and change any affected Access Code.  You agree to access the Services in a secure manner in compliance with Yootrain’s reasonable standards established from time to time which currently require your use of web browsers utilizing 128 bit SSL encryption. Yootrain, in its sole discretion, may specify connectivity standards to access the Services, when applicable.  Companies not meeting these standards will be given notice and offered at least thirty (30) days to comply with such standards or Yootrain may suspend any person’s ability to submit or receive integrated transactions via the Services. 

PAYMENT.  Yootrain does not charge Clients for access and/or uses of the Services.  Consideration under this Agreement is deemed sufficient by the Parties.  Notwithstanding the foregoing, Providers may charge fees to Clients to access and/or use their content and/or services through the Services.

PROPRIETARY RIGHTS

    1. Title to Technology.  All interest, title and right (including, without limitation, patent rights, copyrights, trade secrets, trade names, service marks, trademarks, moral rights, know-how (collectively “Intellectual Property Rights”)) pertaining to Yootrain, the Services, and the Services Software, in whole or in part, shall be, vest with and remain the exclusive property of Yootrain and its third party licensors. 
    2. Title to Transaction Information.  All Transaction Information is and shall remain the property of its lawful owner.  Yootrain makes no claims, warranties or representations with regard to the ownership of Transaction Information.  Yootrain may share Transaction Information, in the singular or aggregate, by providing reports or otherwise, to parties involved in a transaction and may identify the parties as being involved in the transaction in connection therewith
    3. Title to Content.  All title, right, and interest in and to Content submitted to Yootrain in the course of performing the Services shall remain the property of the applicable Provider or other third party owners.  All title, right and interest in and to Content licensed by Yootrain from third party licensors and utilized in the process of providing the Services, if any, shall remain the exclusive property of Yootrain or its third party licensors.  If all or part of any Content becomes the subject of an actual or threatened lawsuit or if Yootrain believes such Content may violate a third party’s Intellectual Property Rights or applicable law, Yootrain will immediately be entitled to remove such Content without incurring any liability to you or a Provider
    4. Suggestions.  Yootrain shall have a royalty-free, worldwide, perpetual license to use or incorporate into the Service any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by you relating to the Services.

TERM AND TERMINATION

    1. Effective Date.  Unless earlier terminated in accordance herewith, this Agreement shall commence on the Effective Date and shall continue until terminated (“Term”).
    2. Termination for Cause. Either Party may terminate this Agreement by providing the other no less than five (5) days advance written notice in the event that the other Party (A) is in material breach of any term, condition or provision of this Agreement, which breach, if capable of being cured, is not cured within five (5) days after the non-breaching Party gives the other Party written notice of such breach; or (B) terminates or suspends its business activities, becomes insolvent, admits in writing its inability to pay its debts as they mature, makes an assignment for the benefit of creditors, or becomes subject to direct control of a trustee, receiver or similar authority, or becomes subject to any bankruptcy or insolvency proceeding under federal or state statutes which is not rescinded within sixty (60) days of its commencement.
    3. Termination for Convenience.  Either Party may terminate this Agreement for any reason or no reason by providing the other Party no less than thirty (30) days advance written notice thereof. 
    4. Effect of Termination.  Upon termination of this Agreement, you shall immediately discontinue use of the Services and the Services Software.
    5. Survival.  Notwithstanding any termination of this Agreement, Section 4 (“Proprietary Rights”), Section 6 (“Warranties”), Section 7 (“Disclaimer and Limitation of Liability”) and Section 8 (“Additional Terms and Conditions”) shall survive termination of this Agreement.  All other rights and licenses granted hereunder will cease upon termination.

WARRANTIES, RELEASE, AND INDEMNITY.  Each Party warrants that it has the authority to enter into this Agreement.  You warrant that (i) you will adhere to all posted Yootrain policies; and (ii) all Transaction Information or other materials submitted by you to Yootrain hereunder will not (A) infringe on any third party’s rights, including any Intellectual Property Rights, (B) violate any applicable law, statute, ordinance or regulation; or (C) contain viruses, Trojan horses, worms, time bombs, cancel bots or other similar harmful or deleterious programming routines.  If you have a dispute with one or more users, you release us (and our officers, directors, agents, subsidiaries, joint ventures and employees) from claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such disputes. If you are a California resident, you waive California Civil Code §1542, which says: "A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.”  You will indemnify and hold us (and our officers, directors, agents, subsidiaries, joint ventures and employees), harmless from any claim or demand, including reasonable attorneys' fees, made by any third party due to or arising out of your breach of this Agreement, or your violation of any law or the rights of a third party.

DISCLAIMER AND LIMITATION OF LIABILITY.  (A) Yootrain does not CONTROL or review FOR ACCURACY, ERRORS OR DUPLICATION, ANY transaction information, the quality or availability of PROVIDER CONTENT AND/OR RELATED SERVICES, or the terms and conditions on which those PROVIDER CONTENT AND/OR RELATED SERVICES are offered, purchased or delivered.  (B) Yootrain is not a party to, third party beneficiary of, or a guarantor of performance under any agreement between You and ANY PROVIDER or other third party.  (C) You expressly release Yootrain of any liability related to a buyer’s or other third Party’s election to discontinue conducting transactions with You. (D) Yootrain makes no representations or warranties of any type with respect to the Services or the SERVICES Software, or the quality of any Provider offerings of any site, person, or business to which THE SERVICES Software or the Services may be linked, express or implied, including, without limitation, any implied warranty of merchantability, fitness for a particular purpose, or arising by statute or otherwise in law or from a course of dealing or usage of trade. (E) neither Party's liability (together with that of its agents, managers, officers, directors, representatives, members and employees) to the other Party for damages with respect to this Agreement, the SERVICES Software or the Services shall exceed the Fees actually paid by YOU to Yootrain pursuant to this Agreement during the twelve (12) months prior to the occurrence of the breach or damage. (F) Notwithstanding any other provision of this Agreement, and irrespective of any fault or negligence, neither Party shall be liable for any indirect, incidental, consequential, special or punitive damages (including without limitation damages for harm to business, lost revenues, lost sales, lost savings, lost profits (anticipated or actual), loss of use, downtime, injury to persons or damage to property and claims of third parties), howsoever caused, arising out of or related to this Agreement, whether or not such Party has been apprised or notified that any such damages or losses are possible or likely, and whether or not any permitted remedy has failed its essential purpose.  (G) The Parties agree that the limitations in clauses (D), (E) and (F) of this section 7 shall apply regardless of the form of action, whether in contract, warranty, strict liability or tort (including, without limitation, negligence of any kind, whether active or passive) or any other legal or equitable theory, but shall not apply to Fees owed to Yootrain.

ADDITIONAL TERMS AND CONDITIONS.

    1. Notices.  Any notice required or permitted under the terms of this Agreement shall be delivered in person, by FAX, overnight courier service, or mailed by first class, registered, or certified mail, postage prepaid, to Attention: Legal Department, 3497 Inverness Blvd., Carmel, IN 46032, if to Yootrain; and Attention the name of the individual you entered during the registration process, at the address you entered during the registration process, if to you.  All such notices shall be deemed to have been given upon receipt.
    2. U.S. Government Licenses. The Services and the Services Software were developed at private expense and are deemed to be "commercial computer software" and "commercial computer software documentation" as such terms are used in 48 C.F.R. 12.212.
    3. Export Restrictions.  You represent and covenant that it will not use the Services Software or Services in any manner prohibited by the United States Export Administration Act or any other export laws, restrictions or regulations.
    4. Miscellaneous. Yootrain reserves the right, in its sole discretion, to subcontract any or all of the Services herein.  Neither this Agreement nor any rights under this Agreement may be transferred or assigned by you without the prior written consent of Yootrain. This Agreement shall be governed solely in accordance with the laws of the State of Indiana, excluding its conflict of law principles and the UN Convention for the International Sales of Goods.  In any action or proceeding to enforce rights under this Agreement, the prevailing Party will be entitled to recover costs and reasonable attorney’s fees from the other Party.  In the event that any provision of this Agreement is held invalid, the remaining terms and conditions of this Agreement shall remain in full force and effect.  The failure of either Party to enforce any of the provisions of this Agreement shall not be deemed to be a waiver of the right of either Party thereafter to enforce any such provisions.  Yootrain may amend the Agreement in its sole discretion at any time, and such amended terms and conditions are effective upon posting.  Except for the obligation to make payments, nonperformance of either Party shall be excused to the extent that performance is rendered impossible by strike, fire, flood, blackouts, governmental acts or orders or restrictions, failure of suppliers or the Internet, or acts of God or terrorism, or any other reason where failure to perform is beyond the control and not caused by the negligence of the non-performing Party. Neither Party shall disclose the pricing, fees, terms, conditions or other content of this Agreement or any supplement(s) to any third party other than a respective Party's officers, directors, members, managers, affiliates, employees, accountants, attorneys, investment bankers, independent contractors, agents or other representatives or persons that may from time-to-time be employed, retained by, working for, or acting on behalf of such Party.  The relationship of you and Yootrain established by this Agreement is that of independent contractors, and nothing contained in this Agreement will be construed to constitute the Parties as partners, joint venturers, co‑owners or otherwise as participants in a joint or common undertaking.  This is an integrated Agreement and all exhibits, supplements or attachments hereto and incorporated herein constitute the entire, final, complete and exclusive agreement between the Parties regarding the subject matter hereof and supersedes all previous agreements, intentions, or representations, oral or written, relating to the subject matter of this Agreement.  Any representation or warranty not expressly contained in this Agreement will not be enforceable.