Terms and Conditions
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AGREEMENT CAREFULLY BEFORE USING OR OTHERWISE ACCESSING OR MANIPULATING THIS
SERVICE AND THE ASSOCIATED SERVICE CONTENT (INCLUDING LOCAL MARKET MONITOR
REPORTS). BY CLICKING ON THE "I ACCEPT" BUTTON BELOW, OR OTHERWISE ACCESSING
OR MANIPULATING THE SERVICE CONTENT, YOU AGREE TO BE BOUND BY THE TERMS AND
CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS
OF THIS AGREEMENT, CLICK THE "EXIT" BUTTON AND DISCONTINUE USE OF THE
SERVICE IMMEDIATELY.
Your use is subject to the following terms and conditions
1. Limited License to Local Market Monitor Reports. Subject to the terms and conditions of this Agreement, Local Market Monitor (LMM) hereby grants to Licensee a limited, non-exclusive, non-transferable license (with no right to sublicense) to use the LMM Reports provided to Licensee by LMM hereunder; provided, however, that all use of the LMM Reports shall be only for legitimate purposes related to Licensee's business and shall be limited solely to those Licensee Authorized Employees identified below.
2. Limitations. The license rights granted under this Agreement are subject in all respects to the restrictions and limitations set forth below:
Licensee shall use LMM Reports only as expressly permitted hereunder. Licensee shall: (a) not use LMM Reports for marketing purposes or resell, transfer or broker the LMM Reports; (b) not publish any LMM Reports within the meaning of the United States Copyright Act; (c) not commingle, merge, or append any LMM Reports or information contained therein with any separate file, data bank, or listing without the prior written consent of LMM; (d) not reverse engineer, copy, create derivative works, alter, maintain, enhance, remove, or replace data or otherwise modify any LMM Reports without the prior written consent of LMM; and (e) not use the LMM Reports for any discriminatory purpose or otherwise in violation of any laws, rules or regulations. LMM Reports shall at all times identify LMM as the source of LMM Reports. Licensee may not use the LMM Reports or any data contained therein to create, develop or enhance a competing product or service.
3. Fees. In consideration of Licensee's receipt of the LMM Reports, Licensee shall pay to LMM $199 for a single LMM Report, or $594 for a full year subscription to a single LMM Report, $195 monthly for access to the Investors Metro Monitor report set and $450 per month for access to the Market Report set.
4. Payment and Delivery of the LMM Reports. Licensee shall issue appropriate instructions to all Authorized Employees concerning the restrictions described in this Agreement. LMM will deliver the LMM Reports to the working electronic mail address provided by Licensee to LMM following LMM's receipt of payment in full for the LMM Reports. Licensee shall be responsible for providing Authorized Employees with adequate technology (e.g., hardware and software) to access the LMM Reports.
5. Security. In addition to the other obligations contained herein, Licensee shall (a) ensure that LMM Reports are not (i) accessed or used for personal reasons, or (ii) accessed or used by any third party except upon the prior written consent of LMM or as otherwise required by law; (b) immediately notify LMM to deactivate the user identification number of any employee who no longer has a need to know or terminated employees on or prior to the date of termination of the respective Subscription Term; (c) keep all user identification numbers confidential and prohibit the sharing of such numbers; (d) take all commercially reasonable measures to prevent unauthorized access to, or use of, the LMM Reports or data received there from by any person or entity.
6. All Other Rights Reserved. As between LMM and Licensee, LMM shall own all right, title and interest in and to the LMM Reports, all products or services developed by LMM in relation thereto, and all generalized knowledge, skill, know-how and expertise relating to the LMM Reports. In furtherance of the foregoing, Licensee shall not remove, obscure or deface any proprietary legend relating to LMM's rights in the LMM Reports and all other proprietary notices contained in the same.
7. Limitation of Liability and Disclaimer of Warranties. EXCEPT IN CONNECTION WITH A PARTY'S INDEMNIFICATION OBLIGATIONS OR BREACH OF A PARTY'S CONFIDENTIALITY OBLIGATIONS UNDER THIS AGREEMENT, NEITHER PARTY NOR ITS REPRESENTATIVES SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, RELIANCE, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION ANY LOST OR IMPUTED PROFITS OR REVENUES, EVEN IF SUCH PARTY HAS KNOWLEDGE OF THE POSSIBILITY OF SUCH DAMAGES. THE TOTAL AGGREGATE LIABILITY OF LMM ARISING FROM OR RELATED TO THIS AGREEMENT SHALL BE LIMITED TO THE FEES PAID BY LICENSEE HEREUNDER.
EXCEPT AS SPECIFICALLY SET FORTH IN THIS AGREEMENT, LMM MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, REGARDING USE OF OR RELIANCE ON LMM REPORTS, THE RESULTS OBTAINED THEREFROM OR THE UNAVAILABILITY THEREOF. LMM REPORTS ARE BEING PROVIDED "AS IS", AND LMM EXPRESSLY EXCLUDES AND DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, CONDITIONS, OR REPRESENTATIONS AS TO THE ACCURACY OR COMPLETENESS OF LMM REPORTS, THE USE OF LMM REPORTS FOR ANALYSIS, FORECASTING OR ANY OTHER PURPOSE BY LICENSEE OR THE RESULTS ACHIEVED THEREFROM, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. LMM REPORTS ARE FOR INFORMATION PURPOSES ONLY AND ARE NOT INTENDED TO SUPPLY LEGAL, FINANCIAL, MANAGEMENT, ACCOUNTING, INVESTMENT OR OTHER FORMS OF ADVICE. LMM IS NOT ACTING AS AN INVESTMENT ADVISOR HEREUNDER, AND THE LMM REPORTS DO NOT CONSTITUTE AN OFFER OR SALE OF SECURITIES. LICENSEE ASSUMES SOLE RESPONSIBILITY FOR THE USE OF THE LMM REPORTS AND THE RESULTS AND CONCLUSIONS OBTAINED FROM THE USE THEREOF AND FOR USE OF ANY RESULTING INFORMATION BY ANY THIRD PARTY.
8. Termination. Either party may terminate this Agreement if: (a) the other party breaches any material term or condition of this Agreement and fails to cure such breach within thirty (30) days after written notice (the "Cure Period"); (b) the other party becomes the subject of a voluntary petition in bankruptcy or any voluntary proceeding relating to insolvency, receivership, liquidation, or composition for the benefit of creditors; or (c) the other party becomes the subject of an involuntary petition in bankruptcy or any involuntary proceeding relating to insolvency, receivership, liquidation, or composition for the benefit of creditors, if such petition or proceeding is not dismissed within sixty (60) days of filing; provided, however, that the non-breaching party's delay or non-performance of its obligations under this Agreement during the Cure Period shall in no event constitute a breach of this Agreement. Licensee agrees that if LMM determines or reasonably suspects that Licensee is engaging in activities that violate its rights hereunder related to the LMM Reports, LMM may take immediate action, including terminating the delivery of, and all rights to use, the LMM Reports.
Upon expiration or termination of this Agreement, no party shall have any further obligation to the other party except that: (i) Licensee shall pay all fees, if any, due to LMM through the effective date of termination; and (ii) any termination of this Agreement by one party as a result of a breach or default by the other party shall be without prejudice to any other rights or remedies which a party may have against the breaching or defaulting party, whether at law or in equity. Sections 1-3, 5-7, 9, 10, 12-19 shall survive termination of this Agreement.
9. Confidential Information.
(a) In performing its obligations under this Agreement, each party may receive Confidential Information of the other party. As used herein, "Confidential Information" means all information expressly marked as "proprietary," confidential" and all information that, by the nature of the circumstances surrounding its disclosure, should reasonably be regarded as confidential or proprietary. Without limiting the generality of the foregoing, the parties acknowledge and agree that all LMM Reports, technology, processes and business plans constitute the Confidential Information of LMM. The receiving party agrees that the Confidential Information of the disclosing party is confidential and proprietary to the disclosing party and shall remain the property of the disclosing party. The receiving party shall protect the Confidential Information of the disclosing party, shall hold the Confidential Information of the disclosing party in confidence, and shall not use the Confidential Information of the disclosing party other than as expressly permitted hereunder. The receiving party shall not disclose the Confidential Information of the disclosing party except to its officers, directors, employees or third parties that have a legitimate business need to know who are under a written obligation to maintain the confidentiality of the Confidential Information; provided, that the receiving party may disclose Confidential Information of the disclosing party if and to the extent: (i) required by any written request or order of any governmental authority; (ii) otherwise required by law; or (iii) necessary to establish its rights under this Agreement; provided, further, that, in each case, the receiving party will first notify the disclosing party of such requirement, permit the disclosing party to contest such requirement if reasonably appropriate, cooperate with the disclosing party in limiting the scope of the proposed disclosure and permit the disclosing party to obtain any additional means of protecting the confidentiality of the Confidential Information.
(b) Confidential Information shall not include any information that: (i) is or becomes generally known or publicly available through no fault of the receiving party; (ii) is known by the receiving party at the time of disclosure, not subject to restriction; (iii) is independently developed by the receiving party without use of the disclosing party's Confidential Information; or (iv) is lawfully obtained from a third party who has the right to make such disclosure, not subject to restriction.
(c) Each party acknowledges that the unauthorized use or disclosure of any Confidential Information of the disclosing party in violation of this Agreement may cause severe and irreparable damage to the disclosing party. In the event of any violation of this Agreement by the receiving party, the receiving party agrees that the disclosing party shall be authorized and entitled to seek from any court of competent jurisdiction preliminary and/or permanent injunctive relief, as well as any other relief permitted by applicable law.
10. Notices. All notices, demands or other communications to be given under this Agreement shall be in writing and shall be deemed to have been properly served if (a) delivered personally, (b) delivered by a recognized overnight courier service, (c) sent by certified or registered mail, return receipt requested, or (d) sent by facsimile transmission followed by a confirmation copy delivered by a recognized overnight courier service the next day. Such notices, demands and other communications shall be sent to the address set forth on the first page of this Agreement, or to such other address as specified in writing by the parties; provided that notices of change of address are effective only upon receipt thereof.
11. Assignment. Licensee may not assign or otherwise transfer any of its rights, interests, or obligations under this Agreement without LMM's prior written consent. Any attempted assignment or transfer without LMM's prior written consent shall be void.
12. Binding Effect. The parties' obligations under this Agreement shall inure to the benefit of and shall be binding upon their respective legal representatives, successors and permitted assigns.
13. Waiver. The waiver by either party of any breach of any provision of this Agreement by the other party shall not operate or be construed as a waiver of any subsequent breach by the other party. No waiver shall be valid unless in writing and signed by the non-breaching party.
14. Entire Agreement. This Agreement, together with the schedules attached hereto, contains the entire understanding of the parties with respect to the subject matter of this Agreement, and supersedes all prior agreements, arrangements or understandings, whether written or oral, relating to the subject matter of this Agreement. Neither party has made any representations to induce the other to enter into this Agreement, except those set forth in this Agreement. This Agreement may not be modified or amended except in writing signed by all parties to this Agreement.
15. Applicable Law. This Agreement and any of the transactions it contemplates, including, without limitation, its interpretation, construction, performance and enforcement, shall be governed by, interpreted and construed in accordance with the laws of the State of North Carolina, without giving effect to its conflict of laws and rules. Any legal action arising under this Agreement will be brought solely in the federal or state courts of or located within the Middle District of North Carolina, and both parties hereby irrevocably consent to the exclusive jurisdiction and venue thereof.
16. Severability. If any provision of this Agreement is held to be prohibited by or invalid or unenforceable under applicable law, the remaining provisions of this Agreement shall continue in full force and effect.
17. Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original and all of which taken together shall constitute one and the same Agreement.
18. Independent Contractors. Neither party to this Agreement is an agent, employee or servant of the other party for any purpose. Each party shall conduct its business in its own name and shall be solely responsible for its acts, conduct and expenses and the acts, conduct and expenses of its employees and agents.
19. No Benefit to Others. The representations, warranties, covenants and agreements contained in this Agreement are for the sole benefit of the parties and their successors and permitted assigns, and they shall not be construed as conferring any rights to any third party.