Terms and Conditions  
 

WEB ACCESS SUBSCRIPTION AGREEMENT

This Web Access Subscription Agreement ("Agreement") is entered into between The J. M. Smucker Company, an Ohio corporation with its principal place of business located at Strawberry Lane, Orrville, Ohio 44667 ("Smucker's") and the undersigned subscriber ("Subscriber").

TERMS AND CONDITIONS

SECTION 1
BACKGROUND

Smucker's has developed a password protected Extranet system that permits vendors to access and input into Smucker's database certain information regarding their account with Smucker's ("System"). Smucker's desires to grant to Subscriber access to the System and Subscriber desires to receive a grant from Smucker's to access the System pursuant to the terms and conditions contained herein.

SECTION 2
GRANT OF ACCESS RIGHT

2.1 Grant of Access Right. Smucker's grants to Subscriber, and Subscriber accepts, a limited, non-exclusive, non-transferable right to access the System to run analysis and reports regarding Subscriber's account and to input certain information into the System regarding Subscriber's account ("Documentation") solely for Subscriber's internal business use ("Subscription").

2.2 Access to the System. Subscriber will access the System via the internet through use of a password provided to Subscriber from Smucker's ("Password"). Smucker's reserves the right to change the Password in order to guard against unauthorized use of the System. In order to access the System, Subscriber must be able to access the World Wide Web, must pay any Internet access fees associated with access to the System, and must provide its own computer equipment.

2.3 Ownership Retained by Smucker's. This Agreement does not provide Subscriber with title to or ownership to the System or Documentation, but is only a limited right to access and use the System and Documentation as provided in this Agreement. Subscriber acknowledges and agrees that the copyright, trademark, patent, trade secret and all other intellectual property rights of whatever nature in the System and Documentation are and will remain the property of Smucker's and nothing in this Agreement should be construed as transferring any aspects of such rights to Subscriber or any third party. Subscriber will not remove, alter, obliterate or in any way change the form or placement of any notices of Smucker's proprietary rights, including copyright notices, which are or may hereafter be affixed to the System or Documentation.

SECTION 3
PRIVACY AND DATA INPUT

3.1 Privacy. Smucker's will record the Password issued to Subscriber. Smucker's will record each instance that Subscriber's Password is used to access the System. Smucker's may record the time and duration of each use of the System and information regarding when and the number of instances that Subscriber accesses, inputs, and/or updates information on the System.

3.2 Data Input. Subscriber will be solely responsible for the accuracy and timeliness of data inputted or posted on the System. Subscriber acknowledges that said data and Subscriber information will be viewed and relied upon by Smucker's, so appropriate care and precaution should be taken by Subscriber when inputting or editing Subscriber information on the System. Subscriber will use its best efforts to ensure the Subscriber data and information is maintained and updated on a regular basis.

SECTION 4
USE OF PASSWORD AND SYSTEM

4.1 Use of Password. Subscriber must take care to maintain the confidentiality of the Password issued by Smucker's because anyone who uses Subscriber's Password will be able to gain access to the System, will be able to input information, and will be able to review confidential information. Subscriber is responsible for maintaining the confidentiality of its Password, for all activities that occur under its Password, and for use of its Password by its employees. Subscriber will notify Smucker's immediately of any unauthorized use of Subscriber's Password, or any other breach of security to the System that comes to Subscriber's attention.

4.2 Use of System. Subscriber will not use the System or Documentation for any purpose not authorized by this Agreement, including without limitation, use of the System or Documentation:

(a) for personal or unrelated business use;

(b) to access unauthorized areas of the web site;

(c) to access Smucker's or another subscriber's confidential information;

(d) to impersonate any person or entity;

(e) to upload, post, e-mail or otherwise transmit any information that Subscriber does not have a right to transmit under any law or under contractual or fiduciary relationship;

(f) to upload, post, e-mail, or otherwise transmit any information that infringes any patent, trademark, trade secret, copyright, or other proprietary rights of any third party;

(g) to upload, post, e-mail, or otherwise transmit any material that contains 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

(h) to interfere with or disrupt servers or networks connected to Smucker's.

Smucker's reserves the right to delete inappropriate material and to immediately suspend access to the System for any unauthorized use of the System or Documentation.

4.3 Right to Modify System. Smucker's reserves the right to modify or terminate, temporarily or permanently, the System, with or without notice. Smucker's will not be liable to Subscriber or any third party for any such modification, suspension, or discontinuance of the System.

SECTION 5
TERM AND TERMINATION OF AGREEMENT

5.1 Term. This Agreement is effective upon execution by Subscriber on-line and acceptance by Smucker's and will continue until terminated by a party by providing 30 days' prior written notice of termination to the other party.

5.2 Mutual Right to Termination for Cause. This Agreement may be terminated immediately by either party if the other party commits a breach of this Agreement.

5.3 Smucker's Right to Terminate. In addition, Smucker's may terminate this Agreement immediately under the following circumstances:

(a) Subscriber becomes insolvent;

(b) Subscriber makes an assignment for the benefit of its creditors;

(c) Subscriber has a receiver appointed for it, or files, or has filed against it, a petition in bankruptcy and such petition is not dismissed within 30 days; or

(d) Subscriber ceases to conduct business.

5.4 Procedure Upon Termination. Upon termination for any reason, Subscriber's Password will be deleted from the System and Subscriber will have no further right to access the System. The remedies provided to Smucker's pursuant to this Section 5 are in addition to all other remedies available to Smucker's under this Agreement, at law, in equity, or otherwise.

SECTION 6
DISCLAIMER OF WARRANTY

SUBSCRIBER EXPRESSLY UNDERSTANDS AND AGREES THAT THE SYSTEM IS PROVIDED "AS IS" AND "AS AVAILABLE". SMUCKER'S ASSUMES NO RESPONSIBILITY FOR THE TIMELINESS, ACCURACY, DELETION, MIS-DELIVERY OR FAILURE TO STORE ANY OF SUBSCRIBER'S DATA. SUBSCRIBER'S USE OF THE SYSTEM AND DOCUMENTATION IS AT SUBSCRIBER'S SOLE RISK. SMUCKER'S EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. SMUCKER'S MAKES NO WARRANTY THAT THE SYSTEM WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE; THAT THE DATA AND/OR RESULTS WILL BE ACCURATE OR RELIABLE; OR ANY ERRORS IN THE SYSTEM WILL BE CORRECTED.

SECTION 7
INDEMNIFICATION

Subscriber will indemnify and hold harmless Smucker's, its affiliates, subsidiaries, officers, directors, agents, and employees from any claim or demand, including reasonable attorneys' fees, made by a third party with respect to or arising out of information provided by Subscriber to Smucker's that is incorporated into the System or information input directly into the System by Subscriber, Subscriber's use or misuse of the System, Subscriber's violation of this Agreement, or Subscriber's violation of any third party rights.

SECTION 8
LIMITATION OF LIABILITY

SUBSCRIBER EXPRESSLY UNDERSTANDS AND AGREES THAT NEITHER SMUCKER'S NOR ITS AFFILIATES, SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES, OR AGENTS WILL BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES EVEN IF SMUCKER'S HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES RESULTING FROM SUBSCRIBER'S USE OF OR INABILITY TO USE THE SYSTEM; THE COST OF PROCUREMENT OF SUBSTITUTE GOODS RESULTING FROM ANY DATA, INFORMATION, OR GOODS PURCHASED OR OBTAINED THROUGH THE SYSTEM; UNAUTHORIZED ACCESS TO OR ALTERATION OF SUBSCRIBER'S TRANSMISSIONS OR DATA INPUT; STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SYSTEM; OR ANY OTHER MATTER RELATING TO THE SYSTEM.

SECTION 9
CONFIDENTIAL INFORMATION

9.1 Confidential Information. Subscriber will maintain the confidentiality of the System and all Documentation and will not permit, and will take all reasonable precautions to prevent, the use or duplication of the System or Documentation, other than as expressly authorized herein. Insofar as it is necessary to disclose any aspect of the System or any Documentation to Subscriber's employees, such disclosure will be deemed permitted only to the extent that such employee is required to know the same for the proper performance of said employee's employment obligations and subject to all of the provisions of this Agreement. Subscriber will hold in confidence and preserve and protect from disclosure all confidential information and will exercise its best efforts, and will take every reasonable precaution, to prevent the unauthorized use, dissemination, or publication of such confidential information. If Subscriber is a broker and has access to information regarding more than one entity, such broker will not use or disclose, and will not permit its employees to use or disclose, any information regarding one entity to any another entity or any third party.

9.2 Return of Confidential Information. All confidential information will remain the property of Smucker's. Upon written demand, all tangible property containing confidential information and other items delivered to or obtained by Subscriber and all written notes and other information related to the confidential information will be immediately returned to Smucker's.

SECTION 10
NOTICES

All notices and other communications under this Agreement must be in writing and will be considered to be effective as to a party:

(a) on the date delivered to that party, at the address for that party set forth herein, regardless of the means of delivery;

(b) on the date sent by facsimile transmission (with electronic confirmation) to that party at the facsimile number for that party set forth herein; or

(c) three days after mailing by U. S. certified or registered mail (postage prepaid and return receipt requested) at the address for that party set forth herein.

A delivery under this Agreement will be considered to be effective when made even though a party refuses to receive the communication. A party may change the party's facsimile number or address for communications under this Agreement by giving the other party notice of the change in the manner specified above. If a party changes the party's address or facsimile number and does not notify the other party in the manner specified above, a notice or other communication will be effective three days after it is sent by U. S. regular mail, postage prepaid, to the party's address or such other address as to which the other party has been notified in the manner specified above.


SECTION 11
MISCELLANEOUS

This Agreement constitutes the entire agreement of the parties with respect to the subject matter hereof and supersedes all prior agreements relating thereto. This Agreement is governed by the laws of the state of Ohio other than those relating to conflicts of laws. A party to this Agreement will not be bound by a waiver of any right or remedy that inures to the party's benefit under this Agreement, or an amendment to this Agreement, unless the waiver or amendment is in writing signed by the party. A party does not breach this Agreement because of a delay or failure attributable to a cause beyond the reasonable control of the party and which could not have been reasonably avoided. The unenforceability of a provision of this Agreement will not affect the enforceability of any other provision of this Agreement. Subscriber may not assign Subscriber's rights under this Agreement, without the prior written consent of Smucker's. This Agreement will inure to the benefit of and be binding upon a party's executors, administrators, heirs, permitted assigns, and successors by merger or consolidation, so long as the successor is controlled directly or indirectly by the same person or persons who controlled the party.

This Agreement must be executed by Subscriber on-line by clicking I Accept below. By accepting this agreement, you hereby represent that you have read, understand, and agree to be bound by the terms of this Agreement and that you are authorized to execute this Agreement.