TERMS AND CONDITIONS TO THE SUBSCRIPTION ORDER
The parties agree to the following terms and conditions (“Terms and Conditions”), which are hereby incorporated herein by this reference and made a part of the Subscription Order. (The Terms and Conditions and the Subscription Order are sometimes referred to as the “Agreement”)
Definitions.
1.1 “Deliverables” means the subscription(s) identified on the Subscription Order.
1.2 “Authorized Users” means current employees of (i) Subscriber and (ii) 100% owned and controlled subsidiaries of Subscriber, who are permitted access to the Deliverables.
2. Term. The term of this Agreement is set down on the subscription order. Thereafter, this Agreement may be renewed for further periods of one (1) year by written agreement of both SRIC and Subscriber.
Confidentiality & Publicity.
3.1 Either party or its employees or agents may, in the course of performing their responsibilities under this Agreement, be exposed to or acquire information, which is proprietary or confidential to the other party or that other party’s clients or to third parties to whom that other party owes a duty of confidentiality. Any and all non-public information of any form obtained by a party or its employees or agents while performing this Agreement shall be deemed to be confidential and proprietary information. The receiving party shall hold such information in strict confidence and not copy, record, reproduce (using any medium), sell, assign, license, market, transfer or otherwise dispose of, give or disclose such information to third parties or use such information for any purposes whatsoever other than in the performance of this Agreement and will advise each of its employees and agents who may be exposed to such proprietary and confidential information of their obligations to keep such information confidential. For the avoidance of doubt, proprietary and confidential information shall not include information which is (i) in or becomes part of the public domain other than by disclosure by the receiving party in violation of this Agreement; (ii) demonstrably known to the receiving party previously, (iii) independently developed by the receiving party outside of this Agreement, (iv) rightfully obtained by the receiving party from third parties; or (v) lawfully subpoenaed by a court of competent jurisdiction. This provision shall survive termination of this Agreement.
3.2 Each party agrees that it will not, without the prior written consent of the other in each instance, (i) use in advertising, publicity, or otherwise the name of the other party, or any trade name, trademark, service mark, or symbol owned by such party or its subsidiaries, or (ii) represent, directly or indirectly, that its products have been approved or endorsed by the other party. This provision shall survive termination of this Agreement.
4. Use of Data and Restrictions.
4.1 All intellectual property rights and copyrights in the Deliverables are owned by, vest in, inure to, and shall remain with SRIC.
4.2 Subject to Sections 1.2 and 2, SRIC hereby grants to Subscriber a limited, non-exclusive and non-transferable license to use the Deliverables and all the data contained therein. This license grant does not include the right of Subscriber to sub-license.
4.3 Subject to Section 4.2, Subscriber shall not copy or reproduce the Deliverables in any manner or for any purpose and shall only use the Deliverables for its own personal use.
4.4 Subscriber understands and agrees that third-parties and non-employees of Subscriber are not to be given access to the Deliverables or any of its components without the express prior written permission of SRIC, such permission to be in the sole and absolute discretion of SRIC.
4.5 Subscriber agrees that it shall not (whether directly or through the use of any software program) create a database in electronic or structured manual form by regularly or systematically downloading and storing all or any part of the Deliverables. No part of the Deliverables may be reproduced or stored in any medium, nor any of its pages or parts thereof be transmitted or disseminated in any electronic or non-electronic format, nor included in any public or private electronic retrieval system without the prior written permission of SRIC , such permission to be in the sole and absolute discretion of SRIC. Upon termination, all copies of the Deliverables will be destroyed, whether in electronic or paper form, or any other form. Violation of this Section 4.5 will be deemed a material breach of the Agreement entitling SRIC to remedies under Section 8.1 of this Agreement. This provision shall survive termination of this Agreement.
5. Warranties and Indemnity.
5.1 SRIC warrants that: (a) Subject to Section 5.3, SRIC will prepare the Deliverables in a competent and professional manner, using appropriately skilled, experienced and qualified personnel, (b) SRIC has all necessary rights, licenses, authorizations and permits required to provide the Deliverables under this Agreement, and (c) subject to Sections 5.3, and 5.6 and to the extent possible, SRIC warrants that Internet access to the Deliverables will be available to Subscriber 24 hours a day. SRIC does not, however, guarantee continuous or uninterrupted Internet access to the Deliverables and Subscriber acknowledges that the reliability and availability of the Internet are matters beyond SRIC's control.
5.2 EXCEPT AS EXPRESSLY STATED IN THIS SECTION 5, AND TO THE MAXIMUM EXTENT PERMITTED BY LAW, ALL OTHER WARRANTIES AND REPRESENTATIONS REGARDING THE DELIVERABLES ARE EXPRESSLY EXCLUDED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. THE DELIVERABLES ARE PROVIDED “AS IS” AND SRIC DOES NOT WARRANT THAT THE DELIVERABLES WILL OPERATE ERROR FREE OR IN AN UNINTERRUPTED FASHION.
5.3 Provider will use reasonable commercial efforts, but does not expressly warrant that the Deliverables contain no hidden or unauthorized code, including any codes or instructions that may be used to access, modify, delete, damage, or disable the computer system of the Subscriber, or of its subsidiaries and employees that are Authorized Users of the Deliverables.
5.4 In the event that Subscriber misuses any information in the Deliverables in a manner inconsistent with the terms of this Agreement, the parties acknowledge and agree that this will constitute a material breach of the Agreement entitling SRIC to remedies under Section 8.1 of this Agreement.
5.5 In order to conduct various routine maintenance procedures, SRIC’s computer networks may be shut down periodically. SRIC will endeavor to minimize the inconvenience to Subscriber caused by said periodic maintenance.
6. Non-Assignment . Subscriber shall not assign this Agreement or in any manner transfer access to the Deliverables without the express prior consent of SRIC, such consent to be in the sole discretion of SRIC. Any attempt at such assignment or transfer shall be invalid and upon notice of such attempt to assign or transfer, SRIC shall, at its sole and absolute discretion, have the right to terminate access to the Deliverables or terminate this Agreement under Section 8.1 herein. SRIC may assign this Agreement to any entity that succeeds to all or substantially all of SRIC's assets and business.
7. Liability. To the extent permitted by law; and except in relation to claims based on (i) any breach of the confidentiality obligations or (ii) any claim or action based on copyright infringement (in which case no limit will apply): (a) IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, INDIRECT, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS, BUSINESS INTERRUPTION, OR LOSS OF BUSINESS INFORMATION) ARISING OUT OF THIS AGREEMENT, and ( b) t he total liability of each party of the Agreement to the other in connection with this Agreement for direct loss and damage shall not exceed the yearly subscription price payable to SRIC as stated on the Subscription Order.
8. Termination.
8.1 Either party may at any time by written notice to the other terminate the Agreement as from the date of service of such notice whenever any of the following events occurs: (a) there is a material breach by the other party of any provision hereof which expressly entitles the non-breaching party to terminate the Agreement or (b) the other party goes into liquidation, makes a voluntary arrangement with its creditors, becomes subject to an administration order, has a receiver appointed over any of is property or assets, or an encumbrancer takes possession.
8.2 Termination shall not prejudice or affect any accrued right of action or remedy.
9. Miscellaneous.
9.1 This Agreement shall be governed and construed in accordance with the laws of the State of California without regard to the conflicts of laws or principles thereof. Any action or suit related to this Agreement shall be brought exclusively in the California Superior Court sitting in San Francisco, California or the U.S. District Court for the Northern District of California sitting in San Francisco, California, and the parties irrevocably agree to said forum.
9.2 This Agreement constitutes the entire agreement and understanding between the parties as to the subject matter hereof and supersedes all prior discussions or agreements between the parties with respect to such subject matter, and neither party shall be bound by any conditions, definitions, warranties, understandings or representations with respect to such subject matter other than as expressly provided herein. This Agreement may not be modified or amended or supplemented except in writing duly executed by the duly authorized representatives of both parties. If any provision of this Agreement is declared to be invalid or unenforceable, such invalid or unenforceable provision shall be deemed struck from this Agreement, but only in the jurisdiction in which such provision was declared invalid or unenforceable, and the enforceability of the remaining provisions of this Agreement shall not in any way be affected or impaired thereby. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns, and shall not confer any rights or remedies upon any person or entity not a party hereto.
9.3 Except for payments of compensation to SRIC, neither party shall be liable for any delays arising from any event beyond that party’s reasonable control, whether or not foreseeable by either party, including but not limited to, war, acts of terrorism and events related to such acts; fire, flood, accident, adverse weather, insurrections, riots, or civil commotions, labor disturbances; acts of God; or acts, omissions, or delays in acting by any governmental authority, governmental act or regulation, and other causes or events beyond that party’s reasonable control, whether or not similar to those which are enumerated above. In such an event, each party will use all reasonable measures to assist the other party and provide all necessary information upon request in an expeditious manner.
9.4 Section headings are for convenience only and will have no legal or interpretive effect. Words in the singular will be deemed to include the plural and vice-versa.
9.5. This Agreement may be executed in several counterparts and all so executed shall constitute one Agreement, binding on all parties. Facsimile signatures shall be binding pending receipt of the original signatures on the executed Agreement.