Price Digests API Access and Application Development Terms of Service (“TOS”)
These TOS govern Licensee’s (as defined below) submission of any Registration Request (as defined below), and the license and delivery of Services (as defined below) to, and the access and use of such Services by, each Licensee.
“Affiliate” of a person or entity means any entity that controls, is controlled by, or is under common control with the specified person or entity, where “control” (including the terms “controlled by” and “under common control with”) means the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of a person or entity, whether through the ownership of voting securities, by contract, or otherwise.
“Agreement” means these TOS, together with the documents incorporated herein.
“API” means Licensor’s application programming interface, as made available by Licensor from time to time, together with any related or accompanying documentation, source code, applications, and/or other materials which Licensor may, in its sole discretion, make available in connection with such application programming interface from time to time (but excluding, for clarity, the Data).
“API Key” means the confidential security key and/or other confidential credentials Licensor provides to Licensee for purposes of permitting Licensee and its Authorized Personnel to access and use the API.
“Application” means Licensee’s product(s) and/or service(s) as described in the Confirmation, or modification thereof which may be mutually agreed in writing (email being sufficient) by the Parties.
“Authorized Personnel” means an employee, independent contractor, or agent of Licensee or of a Licensed Affiliate (as defined in Section 3), in each case who has access to Data solely for job duties related to or required to support the Application, solely for the benefit of Licensee.
“Confirmation” means the confirmation email(s) or similar written (email being sufficient) confirmation of authorized access to the API provided by Licensor to Licensee in response to Licensee’s Registration Request.
“Data” means the data and information that is made available by Licensor via the API, excluding, in all cases, the following [fields/endpoints]: gross vehicle weight (“GVW”), and manufacturer’s suggested retail price (“MSRP”).
“End User” means the ultimate customer, client, or end user of the Application.
“Licensee” means the entity identified in the Registration Request, or, if different from such entity, such entity as may later be mutually agreed in writing (email being sufficient) by the Parties.
“Licensed Affiliates” means all Affiliates of Licensee.
“Registration Request” means the completed registration form, available at http://pricedigests.com/powered-by-price-digests/ or any successor URL or method which may be made available by Licensor from time to time, submitted by Licensee to Licensor, requesting access to the API and Data.
“Services” means the API and the Data.
“Transaction” means each transaction which an End User uses an Application to facilitate, which transaction involves one or more pieces of equipment described in the Data.
“Transaction-Specific Data” means, with respect to each Transaction, those isolated elements of the make/model and/or specifications fields of the Data (but not, for clarity, any other data or information, e.g., taxonomy Data, or MSRP or GWV data or information) which relate to the specific piece(s) of equipment which are the subject of such Transaction.
- Registration and Confirmation.
To be considered for access to the Services, Licensee must submit a Registration Request. The person submitting such request represents and warrants that s/he is authorized to act on behalf of, and has authority to legally bind, Licensee, and, together with Licensee, represents and warrants that all information submitted in and/or together with such Registration Request (including any supplements, revisions, or other follow-ups thereto) is, to the best of Licensee’s knowledge after making best efforts to confirm same, complete and accurate in all material respects. If Licensor accepts Licensee’s Registration Request, Licensor will send Licensee a Confirmation, which may include the applicable API documentation and API Key. Notwithstanding any other provision of this Agreement to the contrary, Licensee may not access or use, and Licensor shall have no obligation to provide, any Services unless and until Licensor has provided Confirmation to Licensee.
Subject to all of the terms and conditions of this Agreement, including Licensee’s payment and confidentiality obligations hereunder, Licensor hereby grants to Licensee a non-exclusive, nontransferable, nonassignable, nonsublicenseable (except as expressly permitted herein), worldwide license during the Term to do the following: (a) access and use the API, and use and copy the Data, in each case for the purposes of developing, testing, and manufacturing the Applications; (b) solely for purposes of facilitating each Transaction engaged in by an End User using an Application, copy, display, and distribute applicable Transaction-Specific Data to such End User, provided that such End User has agreed to the EULA in accordance with Section 4.1.2 with respect thereto; (c) copy and incorporate into the documentation for the Application(s) all or any portions of any documentation relating to the Data which is provided by Licensor to Licensee for such purpose (“Documentation”); and (d) use the names, logos and trademarks of Licensor approved in writing in advance by Licensor (“Licensed Marks”) (i) for marketing and promotional purposes in connection with the Applications, and (ii) to comply with (and solely to the extent necessary to comply with) its obligations pursuant to this Agreement, including without limitation the attribution requirement set forth in Section 11. Licensee may authorize its Licensed Affiliates, and all Authorized Personnel of Licensee and/or any of its Licensed Affiliates, to exercise any of the rights granted to Licensee pursuant to this Section 3. Licensee acknowledges that all copyrights, trademarks, patents, trade secrets, Confidential Information (as defined below), rights of attribution, integrity, and other moral rights, and all other intellectual property or proprietary rights of any kind under applicable law (all of the foregoing, “Intellectual Property Rights”) in and to the Services are the exclusive property of Licensor, and Licensee acquires no right (except the limited license explicitly granted in this Section 3), title, or interest therein pursuant to this Agreement.
- Additional Restrictions.
4.1 Restrictions on Use. Licensee shall abide by the following restrictions regarding the use of Data:
- Licensee shall not make available, provide or otherwise allow or permit the provision of the Data or any copy thereof, in whole or in part, to any person or entity, except, subject to the further restrictions set forth herein, to (i) Authorized Personnel, and (ii) End Users.
- Licensee shall require (e.g., by including a link to, and requiring End Users to agree to, the EULA in Licensee’s own terms of service or other legally binding agreement with its End Users) all End Users to agree to and be bound by the Terms of Service available at http://equipmentwatch.com/terms-of-service/ (or such other URL as Licensor may from time to time provide), as may from time to time be updated or otherwise modified by Licensor (“EULA”), prior to receiving the Data, and to be bound by same at all times in connection with End User’s receipt and/or use of any Data. Licensee shall notify Licensor in writing immediately upon learning of any actual or potential breach of a EULA by an End User.
- Licensee shall not remove, obscure, or alter any proprietary legends or notices included in, on, or with the API, any Data, Documentation (as defined below), or other materials provided by Licensor to Licensee hereunder, and shall preserve and reproduce such legends and notices on any copies of same which Licensee is permitted to make hereunder.
- Licensee shall notify Licensor immediately if it becomes aware of any breach of this Section 4 or Section 7.
- Licensee shall not itself, nor shall it permit any Licensed Affiliate, Authorized Personnel, End User, or other person or entity to, modify, amend, alter, decompile, reverse engineer, disassemble, revise, or otherwise change the API, or modify, amend, alter, revise, or otherwise change any Data, without the prior written consent of Licensor.
- Licensee will comply with all applicable laws, treaties, rules, ordinances and regulations (“Laws”), including all export control Laws, in connection with the Applications and with its use of the Services.
- Licensee may not use any MSRP or GVW data or information which may be available via the API for any purpose hereunder, including any distribution or display of same to End Users;
- Licensee shall ensure that no Application readily permits any End User to download, export, or store any Data, and that each Application is designed to permit End Users to use the Transaction-Specific Data only as displayed within the Application; provided, for clarity, that Licensor acknowledges that an End User may have the ability to manually export or download data using the existing functionality of his/her browser, other software, or computer (e.g., by printing, taking a screenshot, etc.), and Licensee shall have no liability for same, provided that the Application is not designed to facilitate such process.
- Licensee shall not, and shall not, whether through any Application or otherwise, permit any Licensed Affiliate, Authorized Personnel, End User, or other person or entity to, use the Services to create Derived Data, or for purposes of text and/or data mining, trend analysis, or other purposes which involve Manipulation (as defined below), indexing, cataloging, or scraping of the Data, or any portion thereof. “Derived Data” means any and all data or information resulting from a person or entity manipulating, analyzing, combining, processing, changing, aggregating, converting, or calculating (the foregoing, collectively, “Manipulating”) the Data, or any portion thereof, with any other Data or with other data or information of Licensee, a Licensed Affiliate, or any third party. Data is intended to be passed through to End Users as it is provided by Licensor, without Manipulation of any sort.
- Responsibility for Affiliates and Authorized Personnel. Licensee will be fully responsible for the activities of each Licensed Affiliate and all Authorized Personnel and will be liable under this Agreement for any acts or omissions of such Licensed Affiliate(s) and/or Authorized Personnel which, if taken or made by Licensee, would breach any provision of this Agreement or otherwise subject Licensee to liability in connection with this Agreement.
- Application and Fees
5.1 Added Functionality. Any Application developed or distributed by the Licensee must contain significant additional functionality over that of the Data and the API in such a manner that such Application shall not be intended or practically usable by any person or entity as a commercially acceptable substitute for, and shall not compete with, the API or any other Licensor product or service as part of which Licensor offers the Data, or any portion thereof, to Licensor’s clients, customers, and/or end users. Without limiting the foregoing, the Application shall not display or be able to display a substantial portion of the full Data set to any End User at any one time.
5.2 Fees. Licensee shall pay Licensor all applicable amounts which are set forth in the Confirmation, upon mutual agreement of the Parties (the “Fees”) according to the payment terms set forth therein.
- Responsibilities of Licensee
6.1 Responsibility for Use. Licensee assumes full responsibility for Licensee’s, Licensed Affiliates’, and Authorized Users’ use of the Services, and any information any of them enters, uses, or stores in connection therewith, following delivery of the Services by Licensor. Licensor shall have no liability for End User, Licensee, Licensed Affiliate, or third-party negligence, willful misconduct, or failure to protect Data from unintended modification, destruction, or disclosure.
6.2 Updated Data. Licensee agrees that it is responsible for the integration, management, operation, and maintenance of the Data with regard to the Applications. Licensee shall ensure that only the Transaction-Specific Data that is then-currently available via the API, and not any prior edition of such Transaction-Specific Data, is available to End Users. Licensee may retain previous versions of the Data during the Term for reasonably necessary archival purposes only, and, following Termination (as defined below), only as permitted by Section 9.4.
6.3 Quality Control. Licensee will use the Licensed Marks in good faith, in a dignified manner, and in accordance with good trademark practice, and will maintain and preserve the quality of such Licensed Marks and the goods and services in connection with which such Licensed Marks are used, consistent with the current high standards and reputation for quality associated therewith. Upon request by Licensor, Licensee will furnish to Licensor from time to time for its inspection samples of advertising, promotional, and/or other materials used or distributed by Licensee in connection with the Applications. If Licensor determines that Licensee’s use of any Licensed Mark is inconsistent with this Section 6.3, Licensor may immediately terminate, in whole or in part, the license of such Licensed Mark to Licensee.
7.1 Confidentiality Obligations. Each party (“Receiving Party”) may, in connection with this Agreement, be provided with or otherwise have access to non-public, confidential, and/or proprietary information of the other party or its affiliates (“Disclosing Party”), including proprietary business, technical and financial and other non-public, confidential or proprietary information (including customer, market, business partner or investor information, computer programs, technical drawings, algorithms, know-how, formulas, tools, methodologies, processes, ideas, inventions (whether patentable or not), schematics, product development plans, forecasts, technical, marketing and business strategies and initiatives, analyses, reports, business models and plans, staffing and marketing information, and services) of either party, its affiliates, directors, officers, employees or agents (“Representatives”) or its business partners, suppliers or independent contractors, in whatever form provided (whether written, electronic or oral) and whether or not labeled or designated as “confidential” or “proprietary” when access is provided or thereafter (“Confidential Information”). The Data shall constitute Confidential Information of Licensor. The Receiving Party shall use the Disclosing Party’s Confidential Information for the sole purpose of, and solely to the extent necessary for, performing Receiving Party’s obligations under this Agreement and will use at least the same degree of care in protecting the confidentiality of such Confidential Information as it uses in protecting its own information of a similar type, but in no event less than a reasonable standard of care. Without the Disclosing Party’s prior written consent, the Receiving Party shall not disclose the Disclosing Party’s Confidential Information to any person or entity other than its Representatives who need to know such Confidential Information to permit the Receiving Party to perform its obligations hereunder, and provided further that (i) such Representatives (A) are informed of the confidential nature of such Confidential Information, and (B) agree to be bound by confidentiality obligations at least as protective as this Section 7, and (ii) the Receiving Party shall be liable hereunder for any actions or omissions of such Representatives which, if taken by the Receiving Party, would constitute a breach by the Receiving Party of this Section 7.
7.2 Exceptions. The restrictions set forth in Section 7.1 shall not apply to the extent that any Confidential Information (i) has been rightfully received by the Receiving Party from a third party or public source without confidentiality limitations; (ii) was known to the Receiving Party prior to its first receipt by the Receiving Party from the Disclosing Party; (iii) is or becomes known publicly through no fault of the Receiving Party; or (iv) is required to be disclosed in the context of any administrative or judicial proceeding, provided that the Receiving Party provides the Disclosing Party prompt prior written notice of such required disclosure and cooperates as reasonably requested by the Disclosing Party to oppose or limit any such required disclosure.
7.3 Remedy. Each Party acknowledges that its breach of this Section 7 will cause irreparable harm and significant commercial damages to the other Party, the extent of which will be impossible to measure in money damages. If either party should institute any action or bring any proceeding for breach of this Section 7, it may seek injunctive relief and the other party hereby waives the claim or defense that the suing party has an adequate remedy at law. After the expiration or earlier termination of this Agreement, upon written request, the Receiving Party shall return or destroy (as certified in writing) within 10 business days all originals and copies of the Confidential Information of the Disclosing Party.
8.1 Indemnification by Licensor. Licensor agrees to indemnify, defend and hold harmless Licensee, its affiliates and each of their respective officers, directors, equity holders, employees, independent contractors, agents, and representatives (collectively, the “Related Parties”), from and against any and all third-party actions, proceedings, damages, penalties, claims, demands, causes of action, liabilities, fees (including reasonable attorneys’ fees), costs or losses of any kind or nature whatsoever (collectively, “Claims”) threatened, asserted or filed against, or otherwise incurred by, any of them, but in each case solely to the extent such Claims arise out of or in connection with (a) any breach by Licensor of any of its representations, warranties, covenants, or other agreements set forth in this Agreement, (b) any violation of any applicable Law by Licensor, or (c) any actual or alleged infringement, misappropriation, or violation of any Intellectual Property Right of any third party (“Infringement”) by the Data as delivered by Licensor to Licensee, without modification, and when used as authorized by and in a manner consistent with this Agreement, provided, in the case of this subsection (c), that if any Data is or in Licensor’s opinion is likely to become the subject of a claim of Infringement, Licensor may at its option and its expense (i) procure for Licensee the right to continue to use the Data; or (ii) replace or modify the Data so that it is substantially similar and it becomes non-Infringing; or (iii) if (i) and (ii) are not in Licensor’s opinion commercially feasible, terminate this Agreement (or the affected portion thereof); and provided further in the case of this subsection (c) that Licensor shall have no liability to Licensee under this Agreement if any Infringement or allegation thereof is based upon Licensee’s use of the Data in combination with any data not furnished by Licensor or if the Data is used in a manner for which it is not designed. The foregoing states Licensor’s entire liability with respect to Infringement of any Intellectual Property Rights by any Data or by their use.
8.2 Indemnification by Licensee. Licensee agrees to indemnify, defend and hold harmless Licensor, its affiliates, and each of their respective Related Parties from and against any and all Claims threatened, asserted or filed against, or otherwise incurred by, any of them, but in each case solely to the extent such Claims arise out of or in connection with (a) any breach by Licensee of any of its representations, warranties, covenants, or other agreements set forth in this Agreement, or act or omission of any Licensed Affiliate or Authorized User which, if taken or made by Licensee, would constitute such a breach, (b) any violation of any applicable Law by Licensee, a Licensed Affiliate, or an Authorized User, or (c) any Application, except, in the case of this subsection (c), to the extent same is subject to indemnification by Licensor pursuant to Section 8.1.
8.3 Indemnification Procedure. A party seeking indemnification pursuant to Section 8.1 or 8.2, as the case may be (“Indemnitee”), shall provide the other party (“Indemnitor”) with (i) prompt and reasonable written notice of any facts or circumstances which may give rise to all relevant Claims, (ii) reasonable cooperation as requested by Indemnitor, at Indemnitor’s expense, in the defense of such Claims, and (iii) the right to control the defense and settlement of any such Claim; provided, however, that (A) Indemnitor shall not, without the prior written approval of Indemnitee, settle or dispose of any Claim in any manner that adversely affects Indemnitee’s rights or interests, and (B) Indemnitee shall have the right to participate in the defense at its own expense.
- Term and Termination
9.1 Term. The term of this Agreement and the licenses for the Data granted to Licensee hereunder shall commence on the Effective Date and, unless earlier terminated as provided herein, shall continue for a period of one year (the “Initial Term”). Following the Initial Term, the agreement shall automatically renew for subsequent one-year renewal terms (each a “Renewal Term,” and all such Renewal Terms together with the Initial Term, the “Term”), unless either Party provides the other Party written notice at least 90 days prior to the expiration of the Initial Term or then-current Renewal Term.
9.2 Termination. Either party may immediately terminate this Agreement if the other party materially breaches any provision of this Agreement and fails to cure same within 30 days of receipt of written notice of such breach. Without limiting the foregoing, Licensor may at any time immediately suspend access to or use of the Services, or any portion thereof, if Licensor, in good faith, believes that Licensee is in breach of, or is imminently about to breach, this Agreement, or that such suspension will aid in Licensor’s protection of the security and/or integrity of the Services or of its Intellectual Property Rights and/or Confidential Information, or in preventing unauthorized use of any portion of the Services. In addition, either party may, at its option, immediately terminate this Agreement if a receiver is appointed for the other party or its property; the other party is declared insolvent or unable to pay its debts or makes an assignment for the benefit of creditors; the other party seeks or becomes involuntarily subject to proceedings under any bankruptcy, insolvency or debtors relief law, and such proceedings have not been vacated or set aside within 60 days from the date of commencement thereof; or if the other party is liquidated or dissolved.
9.3 Survival. The following Sections herein shall survive any expiration or earlier termination of this Agreement (“Termination”): Sections 1, 4, 5.3, 6.1, 6.2, 6.3, 7, 8, 9.3, 9.4, 10, and 13.
9.4 Effect of Termination. Upon the Termination: (a) all licenses granted by Licensor to Licensee hereunder shall terminate, (b) Licensee shall immediately discontinue, and shall cause all Licensed Affiliates and Authorized Users to immediately discontinue, using the Data and the API, (c) Licensee will cease making any Data available via any of the Applications, (d) each Party shall return and make no further use of property, materials and other items (and all copies thereof) belonging to the other Party, and Licensor will return or destroy all Data in its possession or control, except, in each case, to the extent (and solely for so long as) such Party is legally required to retain such information to comply with regulatory record-keeping requirements or other applicable law, or such Party’s applicable ordinary-course record retention policies which are reasonably aimed at complying with same (in which case, for avoidance of doubt, all property, materials, Data, and other items (and copies therof) shall remain subject to all confidentiality restrictions set forth in this Agreement for so long as they are retained, and may only be used to the extent necessary for such compliance purposes), and (e) upon request, Licensee shall provide Licensor with written certification of Licensee’s compliance with this Section 9.4.
- Disclaimer of Warranties; Limitations of Liability
10.1 Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, NEITHER PARTY MAKES ANY EXPRESS OR IMPLIED REPRESENTATIONS, WARRANTIES, OR GUARANTEES WITH RESPECT TO THE DATA, THE API, THE SERVICES, THE APPLICATIONS, OR ANY OTHER MATTER IN CONNECTION HEREWITH, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE (INCLUDING LICENSEE’S COMPLIANCE WITH ANY APPLICABLE LAW OR REGULATION), INFORMATIONAL CONTENT (INCLUDING RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, AVAILABILITY, ACCURACY OR COMPLETENESS), NONINFRINGEMENT, OR PERFORMANCE, OR THAT THE SOFTWARE OR THE SERVER(S) ON WHICH THEY ARE HOSTED ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, WILL MEET LICENSEE’S REQUIREMENTS, OR CAN BE RELIED UPON IN ANY RESPECT, AND EACH PARTY EXPRESSLY DISCLAIMS ALL OF THE FOREGOING TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. THE SERVICES (AND ALL COMPONENTS THEREOF) ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND ALL USE THEREOF AT ALL TIMES IS AND SHALL BE AT LICENSEE’S, LICENSED AFFILIATES’, AND END USERS’ OWN RISK.
- Limitation of Liability. EXCEPT FOR OBLIGATIONS PURSUANT TO SECTION 8, BREACH OF SECTION 7, OR LICENSEE’S INFRINGEMENT OF LICENSOR’S INTELLECTUAL PROPERTY RIGHTS, (a) NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY CLAIM IN CONNECTION WITH THIS AGREEMENT (WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE) FOR MORE THAN AN AMOUNT EQUAL TO THE FEES PAID (INCLUDING ANY AMOUNTS PROPERLY INVOICED BUT NOT YET PAID) UNDER THIS AGREEMENT DURING THE 12-MONTH PERIOD (OR, IF SHORTER, THE DURATION OF THE TERM) PRIOR TO THE MAKING OF SUCH CLAIM; AND (b) IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR LOST REVENUES, LOST PROFITS, LOSS OF BUSINESS, OR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES, LOSS OR EXPENSES OF ANY KIND, WHETHER SUCH LIABILITY IS ASSERTED ON THE BASIS OF CONTRACT, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY), OR OTHERWISE AND WHETHER OR NOT FORESEEABLE, EVEN IF SUCH PARTY HAS BEEN ADVISED OR WAS AWARE OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, IN NO EVENT WHATSOEVER SHALL LICENSOR BE LIABLE TO LICENSEE OR ANY OTHER PERSON OR ENTITY FOR ANY LOSS OR INJURY CAUSED, IN WHOLE OR IN PART, BY NEGLIGENCE OR OMISSION IN PROCURING, COMPILING, CALCULATING, INTERPRETING, EDITING, WRITING, REPORTING, TRANSMITTING, OR DELIVERING ANY INFORMATION, DATA, OR OTHER CONTENT THROUGH THE SERVICES, OR FOR ANY DELAY OR INTERRUPTION IN CONNECTION THEREWITH. IN NO EVENT SHALL LICENSOR BE LIABLE IN ANY RESPECT, REGARDLESS OF THE FORM OF ACTION OR THE BASIS OF THE CLAIM, TO LICENSEE OR ANY OTHER PERSON OR ENTITY FOR ANY DECISION MADE OR ACTION TAKEN BY LICENSEE OR SUCH OTHER PERSON OR ENTITY IN RELIANCE UPON THE SERVICES, IN WHOLE OR IN PART, AND LICENSOR SHALL NOT BE SUBJECT TO ANY DAMAGES OR LIABILITY OF ANY KIND FOR ANY ERRORS, OMISSIONS, INTERRUPTIONS, MALFUNCTIONS, DELAYS OR FAILURES TO PROVIDE UPDATES IN OR WITH RESPECT TO THE SERVICES, THE COMPONENTS THEREOF OR ANY RESULTS OBTAINED THEREFROM.
Without limiting Licensee’s obligations pursuant to Section 4.1.1, all displays of Data, all Applications, and all related documentation shall bear a clear and legible attribution in close proximity to the Data which states the following (or such other attribution as may be provided in the Confirmation): “Powered by PriceDigests®,” where reasonably possible by use of the following logo:
Licensor may use (i) Licensee’s name and/or (ii) Licensee’s logo (but solely in a form approved by Licensee), in each case to identify Licensee as a customer of Licensor for Licensor’s marketing and promotional purposes, including without limitation in any list of clients or customers on Licensor’s website(s), at any exhibition, trade show, or other event held by Licensor, in renewal forms to existing customers or clients, and in presentations and marketing materials to potential or existing customers or business partners, provided that Licensor will at all times use all of same in good faith, in a dignified manner, and in accordance with good trademark practice, and will maintain and preserve the quality of same and the goods and services in connection with which same are used, consistent with the current high standards and reputation for quality associated therewith, and provided further that Licensee may terminate the permission(s) granted in this Section 12 upon written notice if Licensor breaches any of the conditions for such use set forth in this Section 12. In addition, the Parties may, if mutually agreed, issue one or more mutually agreed press releases or joint statements to the public concerning the matters covered by this Agreement. Under no circumstances shall any Data or Confidential Information (or any portion of either of them) be disclosed in any press release or other statement or announcement to the public.
- General Provisions
13.1 Jurisdiction; Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of New York, without regard to the conflicts of law provisions thereof or of any other State. The State and Federal Courts located in New York County, New York shall have exclusive jurisdiction over all suits and proceedings arising out of or in conjunction with this Agreement. Both parties hereby submit to the jurisdiction of said courts for the purpose of any such suits or proceedings.
13.2 Severability. If any provision of the Agreement is declared to be invalid, the parties agree that such invalidity shall not affect the validity of the remaining provisions of this Agreement, and further agree to substitute for the invalid provision a valid provision which approximates the intent and economic effect of the invalid provisions as closely as possible.
13.3 Notices. Any notices to either party under this Agreement will be in writing and delivered by hand or sent by nationally recognized messenger service or by registered or certified mail, return receipt requested, to the address set forth below for such party or to such other address as that party may hereafter designate by notice. Notice will be effective when received.
If to Licensee:
The address and/or contact information provided by Licensee in the Registration Request
If to Licensor:
Informa/Penton Business Media, Inc.
605 Third Avenue, 21st Floor
New York, NY 10158
Attention: General Counsel – Americas
13.4 No Assignment. Neither party may assign or subcontract its rights or obligations under this Agreement without the prior written consent of the other party, except that, without such consent, Licensor may assign this Agreement to any current or future subsidiary, parent or other affiliate, or to any purchaser of all or substantially all of the stock or assets of, or to the surviving entity in any merger or consolidation with, Licensor (or the applicable brand or division thereof).
13.5 Waiver. A waiver of a breach or default under this Agreement shall not be a waiver of any other breach or default. Failure or delay by either party to enforce compliance with any term or condition of this Agreement shall not constitute a waiver of such term or condition.
13.6 Entire Agreement. This Agreement, together with the documents expressly incorporated herein and subject to all of the terms and conditions hereof, represents, constitutes and expresses the entire agreement between the parties with respect to the subject matter contained herein and supersedes any previous or simultaneous oral or written communications, representations, understandings or agreements with respect thereto.
13.7 Headings; Interpretation. Paragraph headings are for convenience only and are not to be considered in construing this Agreement. As used herein, “include”, “includes” and “including” are deemed to be followed by “without limitation” whether or not they are in fact followed by such words.
13.8 Force Majeure. Neither party shall be responsible for any failure or delay up to 30 days in performing its obligations under this Agreement if such failure or delay arises from any cause or causes beyond its reasonable control, including industrial disturbances such as labor disputes or strikes, acts of God such as floods, lightning, or earthquakes, utility or communication or transportation delays or failures, acts of war or terrorism, embargoes, or orders of any government, provided that any failure to perform that is excused pursuant to this provision will be cured as soon as is reasonably practical by the non-performing party and such non-performing party will notify the other party as soon as possible and mitigate any adverse effects to the other party of any non-performance.
13.9 Modification. The terms of this Agreement and/or the Services may be updated, revised, changed, modified, or amended (any of the foregoing, “Changed”) only (a) in writing signed by authorized representatives of both parties, or (b) by Licensor, in its sole discretion, at any time, and Client will be bound to such Changes, in the case of this clause (b) subject only to the following requirements: (i) if a Change materially Changes the import of this Agreement taken as a whole (any such Change, a “Material Change”) and has a materially adverse effect on Licensee’s rights and obligations under this Agreement, then Licensor will provide notice to Licensee of such Material Change, which obligation may be fulfilled by Licensor posting a notice on its website for at least 30 days, stating, in substance, that the Agreement has been updated; (ii) any Change to Fees will be effective only on the next anniversary of the Effective Date, will not exceed 10% in any one year of the Term, and will be deemed a Material Change, and (iii) Licensee may, within 30 days of the date a Material Change became effective (as evidenced by the “Last updated” date at the end of the TOS), terminate the affected portion of this Agreement upon 30 days’ prior written notice to Licensor. No other act, communication, representation, document, usage, custom or practice shall be deemed to modify or amend the Agreement.
13.10 Licensee Mergers, Acquisitions, and Reorganizations. If any third party not covered by this Agreement as of the Commencement Date (an “Acquired Third Party”) becomes, as a result of a merger, acquisition or reorganization with Licensee, a subsidiary, business unit, division or other part of Licensee during the Term and thereby gains eligibility to use the Services under the Agreement, then both Parties agree to promptly and in good faith enter into an amendment to cover such Acquired Third Party, including the payment of incremental Fees. If no reasonable agreement can be reached, the Acquired Third Party shall have no right or obligation to use the Services hereunder.
13.11 Federal Programs. “Federal Program” shall mean any contract, purchase order, delivery order, task order, grant cooperative agreement or other arrangement including any subcontract at any tier thereunder directly or indirectly purchased with funds provided by the Government. “Government” shall mean the federal government of the United States. In the event the Licensee will use the Services in connection with a Federal Program, the following additional terms and conditions in this Section 13.11 shall apply:
13.11.1 The Licensee hereby agrees and affirms that the Services shall be considered Commercially Available off-the-shelf (COTS) items as set forth in 48 C.F.R. 2.101.
13.11.2 Any software provided to or accessed by the Licensee in connection with the Services has been developed at private expense and includes only Restricted Rights Computer Software as set forth in 48 C.F.R. 27.401. For Federal Programs under the United States Department of Defense (“DoD”), all software provided in connection with the Services includes only commercial computer software as set forth in 48 C.F.R. 227.7202-1 and shall remain subject only to the license provided under the Agreement.
13.11.3 All data and information delivered in connection with the Services excluding software shall be considered limited rights data developed at private expense and embodying trade secrets or are otherwise commercial or financial and confidential or privileged as set forth in 48 C.F.R. 252.227-14 (ALT I). By accessing any of such data, the Licensee hereby acknowledges the following Limited Rights Notice:
These data are submitted with limited rights in connection with a Federal Program. These data may be reproduced and used by the Government with the express limitation that they will not, without written permission of Informa, be used for purposes of manufacture nor disclosed outside the Government.
13.11.4 For Federal Programs under the DoD, all technical data provided in connection with the Services including all data delivered with the exception of Software shall be considered Commercial Item technical data subject to the use restrictions set forth in 48 C.F.R. 227-7015(b)(2).
Last Updated: 06/12/2018