1. GRANT OF LICENSE. In accordance with this Agreement, Industry Intelligence grants Customer the limited, exclusive, revocable, non-transferable right to use the following services:
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The news, information, data and analysis contained in and served by the above specified iiSolution Services shall be defined as the Industry Intelligence Content.
2.TITLE. Customer acknowledges and agrees that, notwithstanding the rights to use the iiSolution Services and Industry Intelligence Content granted herein, all right, title and interest to the iiSolution Services and Industry Intelligence Content, including all patent, invention, discovery, know-how, moral, technology, software, copyright, trade secret, trademark, confidentiality, proprietary, privacy, intellectual property or similar rights (including rights in applications, registrations, filings and renewals) which are now or hereafter protected or legally enforceable under state or federal common laws or statutory laws of the United States or under laws of foreign jurisdictions, shall, as between Customer and Industry Intelligence, be the sole and exclusive property of Industry Intelligence.
3.FEES. Except as otherwise expressly set forth in this Agreement, all fees shall be paid by Customer upon activation of the Services; all fees are in US dollars. Fees may be increased by Industry Intelligence for any renewal term upon at least 45 days written notice prior to the commencement of a renewal term.
4.TERM. Unless earlier terminated pursuant to Section 6, this Agreement shall commence upon delivery of a welcome email by Industry Intelligence to Customer containing login instructions.
5. RESTRICTIONS AND EQUITABLE RELIEF. Except as otherwise expressly set forth in this Agreement, Customer will not (i) copy, modify, or translate the iiSolution Services or Industry Intelligence/Forestweb Content, (ii) create derivative works based on iiSolution Services or Industry Intelligence/Forestweb Content (iii) sell, assign, distribute, lease, market, rent, sublicense, transfer, or otherwise grant rights to the iiSolution services or Industry Intelligence/Forestweb Content in whole or in part to any third party, (iv) obfuscate, remove or alter any of the internet links or copyright or other proprietary legends that are in the iiSolution services or Industry Intelligence/Forestweb Content or (v) reverse engineer, decompile or disassemble the iiSolution services or any part thereof or otherwise obtain or attempt to obtain the source code or object code underlying the iiSolution services. The rights granted to Customer under this Agreement are personal to Customer and Customer may not use the iiSolution Services or Industry Intelligence/Forestweb Content in connection with the operation of a service bureau, application service provider or other operation in which Customer processes or distributes information for the benefit of an unaffiliated third party or operates or hosts a private-branded or other site for the benefit of a third party. Any breach of this Section shall result in immediate termination of the rights granted in Section 1. As part of the iiSolutions Services, iiPublisher allows Customer to create publications using Industry Intelligence/Forestweb contentiiSolutions Services, iiPublisher allows Customer to create publications using Industry Intelligence/Forestweb content and technology. Customer may select content for distribution as well as adding Customer's own content using the iiPublisher platform.
6. DEFAULTS. If Customer fails to abide by or breaches the terms of this Agreement, including but not limited to the obligation to pay fees when due, Industry Intelligence shall have the right to terminate this Agreement upon thirty (30) days prior written notice to Customer. If Customer cures a default prior to the end of the time period stated in the previous sentence, and if there are no other defaults during such time period, this Agreement shall continue in effect.
7. DISCLAIMERS. Customer accepts the iiSolution Services and Industry Intelligence Content AS IS. Industry Intelligence disclaims any and all warranties, either express or implied, with respect to the iiSolution services and Industry Intelligence Content, including but not limited to any implied warranty of merchantability, any implied warranty of fitness for a particular purpose, any warranty regarding performance or accuracy or warranties of title or non-infringement of third party rights. Industry Intelligence will provide a prorated rebate when iiSolution services are not available or when weekly information is delayed by more than 72 hours. In no event will Industry Intelligence be liable for any direct, indirect, incidental, special, exemplary or consequential damages, including, without limitation, procurement of substitute goods or services, loss of use, data or profits, business interruption, failure of performance, error, omission, interruption, deletion, defect, delay in operation or transmission, computer virus or bug, communication line failure, arising in any way out of the use of (or inability to use) iiSolution services or Industry Intelligence Content or the inaccuracy of any Industry Intelligence Content, however caused, under any theory of liability, whether based on breach of contract, tort or otherwise, whether or not Industry Intelligence has been advised of the possibility of such losses or damages. Customer further agrees that Industry Intelligence is not responsible and will not be held liable for any third party content transmitted through the iiSolution services or any third-party content, products or services available on other Web sites accessed through links from the iiSolution services or Industry Intelligences Web site. Links to third-party Web sites are for convenience only, and their inclusion on the iiSolution services or Industry Intelligences Web site does not imply any endorsement, guarantee, warranty or representation by Industry Intelligence, all of which are expressly disclaimed.
8. COPYRIGHT AND WARRANTIES. Other than as referenced and specified in Section 1, Customer, on behalf of itself and its users, agrees to hold private the iiSolution Services URL, and not to share, distribute or cause it to be distributed in any way. Customer understands that under the Copyright Act, title 17 of the United States Code, unauthorized replication or redistribution of any portion of Industry Intelligence Content, or of any of the content on the iiSolution Services, constitutes an infringement of Industry Intelligences copyright and subjects the infringer to legal action. Some forms of unauthorized replication or redistribution include (i) forwarding or emailing, (ii) printing multiple copies, (iii) copying from one application to another, (iv) faxing, (vi) copying portions of publications of Industry Intelligence, and (viii) copying or reproducing content, in whole or in part. If Customer utilizes any iiSolution Service to copy, distribute or disseminate any non-Industry Intelligence/Forestweb content, whether with or without Industry Intelligence/Forestweb content, Customer shall defend, indemnify and hold Industry Intelligence/Forestweb harmless from any claim of any character made by any person or entity and arising directly or indirectly from such copying, distribution or dissemination of non-Forestweb content.
9. EQUITABLE RELIEF. Customer acknowledges and agrees that it would be difficult to measure the damage to Industry Intelligence from any breach of Customers obligations under Sections 1, 3 or 6 of this Agreement, that damages to Industry Intelligence arising from any such breach would be impossible to calculate and that money damages would therefore be an inadequate remedy for any such breach. Accordingly, Customer acknowledges and agrees that Industry Intelligence, in addition to any of its other rights or remedies, shall be entitled to seek injunctive and other equitable relief in the event of an actual or threatened breach of such provisions and that the obligations of Customer and the rights and remedies of Industry Intelligence under such provisions are cumulative and in addition to, and not in lieu of, any obligations, rights or remedies created by laws protecting or enforcing intellectual property rights or other rights, including the statutory and common laws governing unfair competition or misappropriation or theft of trade secrets, proprietary rights or confidential information.
10. NOTICES. Any and all notices, requests, consents, demands or other communications required or permitted to be given under this Agreement shall be in writing and shall be deemed to have been duly given (i) when delivered, if sent by United States registered or certified mail (return receipt requested), (ii) when delivered, if delivered personally by commercial courier, (iii) on the second following business day, if sent by United States Express Mail or commercial overnight courier or (iv) upon the date reflected on a fax confirmation from the transmitting fax machine, if sent by facsimile transmission and delivery of the facsimile transmission is subsequently confirmed telephonically within one (1) business day, in each case to the parties at the addresses or facsimile numbers (or at such other addresses or facsimile numbers as shall be specified by like notice) with applicable postage or delivery charges prepaid to the addresses or facsimile numbers set forth above.
11. GOVERNING LAW. This agreement shall be governed by the laws of the State of California without regard to choice of law principles.
12. COMMUNICATIONS. Industry Intelligence reserves the right to communicate with Customer about Industry Intelligence services and Customer's account status.
13. MISCELLANEOUS PROVISIONS. This Agreement contains the entire agreement of the parties and there are no other promises or conditions in any other agreement whether oral or written. This Agreement supersedes any prior written or oral agreements between the parties. This Agreement may be modified or amended only in writing signed by both parties. This Agreement shall be binding on any successors and permitted assigns of the parties.
Neither party shall have the right to assign its interests in this Agreement to any other party without the prior written consent of the other party. If any provision of this Agreement shall be held to be invalid or unenforceable for any reason, the remaining provisions shall continue to be valid and enforceable.
If a court finds that any provision of this Agreement is invalid or unenforceable, but that by limiting such provision it would become valid or enforceable, then such provision shall be deemed to be written, construed, and enforced as so limited. The failure of either party to enforce any provision of this Agreement shall not be construed as a waiver or limitation of that party's right to subsequently enforce and compel strict compliance with every provision of this Agreement.
If legal action is brought to enforce the terms of this Agreement, the prevailing party shall be entitled to an award of the costs of the action, including an award of court costs, actual attorneys fees and the fees and expenses of expert witnesses and consultants if so awarded by the Court. The prevailing party shall receive these fees and costs in addition to any other remedies. The relationship of
Industry Intelligence and Customer established by this Agreement is that of independent contractors, and nothing contained herein shall be construed to (i) give either party any right or authority to create or assume any obligation of any kind on behalf of the other party or (ii) constitute the parties as partners, joint ventures, co-owners, agents or otherwise as participants in a joint or common undertaking. Neither party shall be liable for any failure or delay in performance under this Agreement or have the right to terminate this Agreement for any delay or default in performing hereunder by the other party, to the extent said failures or delays are caused by causes beyond the affected party's reasonable control and occurring without its fault or negligence, including, without limitation, acts of god, government restrictions (including the denial or cancellation of any export or other necessary license), wars, insurrections, acts of terrorism or failure of suppliers, subcontractors, carriers or parties to meet their performance obligations; provided that, as a condition to the claim of non-liability, the party experiencing the difficulty shall give the other prompt written notice, with full details following the occurrence of the cause relied upon. Dates by which performance obligations are scheduled to be met will be extended for a period of time equal to the time lost due to any delay so caused. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
14. SPECIAL TERMS.
This Section applies if the Services specified in Section 1 are offered on a trial basis.
TRIAL USE. In addition to the other terms of this Agreement, as a trial user of the Services, Customer's right to access and use the Services is limited as provided in the e-mail communication from Industry Intelligence acknowledging Customer's right to use the Services. This trial might be offered by Industry Intelligence at a later time with different features, for a fee, or not at all, as determined by Industry Intelligence in its sole discretion.
TERMINATION OF TRIAL. Customer may terminate this trial in writing within 30 calendar days of activation without further obligations. Customer must submit termination request via email to firstname.lastname@example.org within the specified period. In addition, Industry Intelligence reserves the right, for any reason in its sole discretion without prior notice, to discontinue or suspend Customer's trial use, and to terminate Customer's trial account. Customer's rights and the rights of participants to access content submitted to Customer's account shall terminate immediately upon termination of Customer's right to use the Services.
EXPIRATION OF TRIAL AND CREDIT CARD CHARGES. Customer's right to use the Services on a trial basis shall cease upon expiration of the trial.
SERVICE UPGRADE. After or during trial expiration, customer may become a subscriber to any of Industry Intelligence's solutions by contacting email@example.com or purchasing through self-service.
CANCELLATION. Customer must request cancellation of the Services by emailing firstname.lastname@example.org. Upon confirmation of the cancellation request in writing, Industry Intelligence will terminate the monthly charge beginning the next billing period. If Customer's payment is in the form of a discounted annual term instead of the standard monthly payment term and cancellation is requested prior to the end of the annual term, Customer will incur a $200 cancellation fee and be issued a prorated refund minus the aforementioned cancellation fee. Service termination begins 15 days after Industry Intelligence confirms the written cancellation request and refund proration is calculated based on the day of service termination. Customer will be issued a refund only if the balance of the annual payment term is higher than the amount of cancellation fee. If the balance of the annual payment term is lower than the amount of cancellation fee, Services will continue through the end of the annual term without renewal and Customer will not incur a cancellation fee.