Terms and Conditions
2. Authorized Users. Each User must be an employee or contractor of Subscriber or its affiliates and Subscriber shall be responsible for ensuring compliance with this Agreement by each User and for the use or misuse of any credentials provided to Subscriber. Except as otherwise explicitly provided in this Agreement, Subscriber will not, and will not permit or authorize any third party to: (i) copy, prepare derivative works of, decompile or reverse engineer any software, algorithms or other technology associated with the Predata Platform; (ii) sublicense, rent, loan, lease, or otherwise permit a third party to access or use the Predata Platform; or (iii) use the Predata Platform for any unlawful or fraudulent purposes.
3. Fee Increases. Predata may, in its sole discretion, increase any subscription fee once per each subscription year; provided, however, that any increase in annual subscription fee in excess of 5% of the most recent U.S. Consumer Price Increase Index shall be communicated to Subscriber in writing at least 90 days in advance. The foregoing notwithstanding, if at any time a data provider to Predata raises its prices to Predata more than 5% and such data is required for the provision of the services contemplated by any Subscription Schedule, Predata shall be permitted to inform Subscriber that it desired to raise Subscriber’s subscription rate, and Subscriber shall have 15 days to inform Predata if it wishes to accept such price increase or terminate the respective Subscription Schedule and receive a pro rata refund for any fees paid in advance, and in the latter which case Predata shall have the right to terminate the Subscription Schedule or waive the fee increase.
4. Termination. In addition to any termination provision set forth in any Subscription Schedule, in the event of a material breach of this Agreement by a Party, the other Party may either (i) terminate this Agreement (including all Subscription Schedules) in its entirety or (ii) terminate the Subscription Schedule to which such breach relates (while keeping all other Subscription Schedules in effect, to the extent such other Subscription Schedules are not dependent on the terminated Subscription Schedules); in each case by giving thirty (30) days prior, written notice to the breaching party; provided, however, that neither this Agreement nor any Subscription Schedules will terminate if the breaching party has cured the breach before the end of such thirty (30) day period. Predata may terminate this Agreement and any or all Subscription Schedules for non-payment of any amount due after 30 days.
5. Authority. Each Party represents, warrants and covenants that it has the full right, power and authority to enter into this Agreement and to discharge its obligations hereunder. Predata represents, warrants and covenants that the Predata Platform does not and shall not violate or infringe upon: (i) any copyright, trademark, trade secret, right of publicity or other intellectual property or proprietary rights (other than patent rights) of any third party; or (ii) to Predata’s knowledge, any patent rights of any third party. Subscriber represents, warrants and covenants that it has obtained all rights, licenses and permissions necessary for Predata to exercise the rights granted hereunder with respect to the Subscriber Data.
6. Data Backup/Data Privacy. Subscriber, if applicable, acknowledges that following delivery to Subscriber, Predata is not responsible for maintaining any copy or back-up of the Predata Analytics and Subscriber is solely responsible for such function. Subscriber is solely responsible for compliance with any data security or data privacy laws with respect to Subscriber Data.
7. Confidential Information. To the extent a party receives or acquires Confidential Information from the other Party, it shall maintain in confidence all Confidential Information received, whether orally or in writing, from the other and shall not disclose or otherwise make available such Confidential Information to any third party without the prior written consent of the disclosing Party; provided, however, that each party may disclose the other party’s Confidential Information to the receiving Party’s officers, employees, consultants and legal advisors (collectively, “Representatives”) who need access to such Confidential Information in connection with the receiving Party’s performance of its obligations under this Agreement, and the receiving Party may disclose the financial terms of this Agreement to its legal and business advisors and to potential investors if such third parties agree to maintain the confidentiality of such Confidential Information. “Confidential Information” shall mean all tangible or intangible information and materials, in any form or medium now known or hereafter devised (and without regard to whether the information or materials are owned by the disclosing Party or by a third party), including client names, search inquiries, pricing under this Agreement, business plans, algorithms and other software code and any other information that a Party would be reasonably likely to consider as proprietary or confidential. Confidential Information does not include (i) information which was already in the possession of the recipient prior to the date hereof, provided that such information was not acquired or obtained, directly or indirectly, from either the disclosing Party or a third party that was known by Recipient to be bound by a contractual, legal or fiduciary obligation not to disclose such information, and (ii) information which is or becomes generally available to the public other than as a result of a disclosure by the recipient or its employees, affiliates or agents in violation of this Agreement. Each party shall use the same degree of care to protect the disclosing Party’s Confidential Information as it uses to protect its own Confidential Information of like nature, but in no circumstances less than reasonable care. Each party shall ensure that any individual or entity receiving Confidential Information for or on behalf of such party shall be bound by terms at least as protective as those contained in this Agreement. Notwithstanding any other provision in this Agreement, Subscriber acknowledges and agrees that the Confidential Information, Predata Analytics and any other items or services provided by Predata to Subscriber may not be disclosed or distributed to any person or entity targeted by any of the economic sanctions of the United States administered by the United States Treasury Department’s Office of Foreign Assets Control (“OFAC”), any person in any country targeted by such OFAC sanctions or used, in whole or in part, in any way that reasonably could be expected to cause a violation by Predata or any Affiliate of such OFAC sanctions or restrictions on the export, re-export, sale or transfer of goods and technology administered by the United States Department of State or United States Department of Commerce.
8. No Investment Advice. Subscriber acknowledges and agrees that Predata’s provision of Predata Analytics to Subscriber under this Agreement does not constitute the provision of investment, financial, tax or legal advice. Predata does not offer and Predata shall not be deemed to have provided any advice regarding the nature, potential value or suitability of any particular security, transaction, investment or investment tactic or strategy. Subscriber further understands and acknowledges that its use of the Predata Analytics and any decisions made in reliance on such Predata Analytics are made at Subscriber’s own risk.
9. Disclaimer. EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES SET FORTH ABOVE, THE PREDATA PLATFORM, THE PREDATA ANALYTICS AND ALL OTHER CONTENT, MATERIALS AND SERVICES PROVIDED BY EITHER PARTY IN CONNECTION WITH THIS AGREEMENT ARE PROVIDED “AS IS” WITHOUT ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND, AND EACH PARTY HEREBY DISCLAIMS ALL OTHER REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ANY REPRESENTATIONS OR WARRANTIES ARISING FROM A COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE. PREDATA MAKES NO REPRESENTATION OR WARRANTY WITH RESPECT TO THE AVAILABILITY OF THE PREDATA PLATFORM OR THAT THE PREDATA PLATFORM, THE PREDATA ANALYTICS OR ANY OTHER CONTENT OR MATERIALS WILL BE ERROR FREE.
10. Liability Exclusion. NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY (NOR TO ANY PERSON CLAIMING RIGHTS DERIVED FROM SUCH OTHER PARTY’S RIGHTS) FOR CONSEQUENTIAL, INCIDENTAL, INDIRECT, PUNITIVE, SPECIAL OR EXEMPLARY DAMAGES OF ANY KIND, OR FOR ANY LOST REVENUES OR PROFITS, LOSS OF USE, LOSS OF COST OR OTHER SAVINGS, LOSS OF DATA, OR LOSS OF GOODWILL OR REPUTATION, WITH RESPECT TO ANY CLAIMS BASED ON CONTRACT, TORT, BREACH OF WARRANTY OR OTHERWISE ARISING OUT OF OR RELATING TO THE PREDATA PLATFORM, THE SUBSCRIBER DATA, THE PREDATA ANALYTICS, OR ANY OTHER CONTENT, MATERIALS OR SERVICES PROVIDED BY EITHER PARTY IN CONNECTION WITH THIS AGREEMENT, OR OTHERWISE ARISING OUT OF OR RELATING TO THIS AGREEMENT (INCLUDING ANY SUBSCRIPTION SCHEDULE), REGARDLESS OF WHETHER THE PARTY LIABLE OR ALLEGEDLY LIABLE WAS ADVISED, HAD OTHER REASON TO KNOW, OR IN FACT KNEW OF THE POSSIBILITY THEREOF.
11. Limitation of Damages. SUBJECT TO THE EXCEPTIONS SET FORTH BELOW, EACH PARTY’S MAXIMUM, CUMULUATIVE LIABILITY ARISING OUT OF OR RELATING TO THE PREDATA PLATFORM, THE SUBSCRIBER DATA, THE PREDATA ANALYTICS, OR ANY OTHER CONTENT, MATERIALS OR SERVICES PROVIDED BY EITHER PARTY IN CONNECTION WITH THIS AGREEMENT, OR OTHERWISE ARISING OUT OF OR RELATING TO THIS AGREEMENT (INCLUDING ANY SUBSCRIPTION SCHEDULE), REGARDLESS OF THE CAUSE OF ACTION (WHETHER IN CONTRACT, TORT, BREACH OF WARRANTY OR OTHERWISE), WILL NOT EXCEED, IN THE AGGREGATE FOR ALL CLAIMS, THE TOTAL FEES PAID BY SUBSCRIBER TO PREDATA UNDER THE APPLICABLE SUBSCRIPTION SCHEDULE THAT GAVE RISE TO THE CLAIM DURING THE TWELVE (12) MONTHS PRIOR TO THE DATE ON WHICH THE FIRST CLAIM AROSE; PROVIDED, HOWEVER, THAT THIS LIMITATION SHALL NOT APPLY TO SUBSCRIPTION FEES OR AMOUNTS OWED FOR PROFESSIONAL SERVICES TO PREDATA UNDER THIS AGREEMENT.
12. Indemnity. Notwithstanding anything to the contrary, the exclusions and limitations set forth above will not apply, and each Party will defend, indemnify and hold harmless the other Party and its affiliates, officers, directors, employees, contractors and agents (collectively, the “Indemnified Parties”), as follows: (i) against any damages arising from a Party’s fraud or willful misconduct, (ii) from misappropriation of the other Party’s intellectual property rights; (iii) data security breaches unless the indemnifying party took commercially reasonable steps to prevent or limit such breach; and (iv) from and against any and all claims, actions, lawsuits and investigations brought by a third party (“Third Party Claims”) as follows (1) Predata shall indemnify Subscriber where it is alleged that Predata’s provision of the Predata Platform (excluding, for the avoidance of doubt, any Subscriber Data (or, to the extent based on Subscriber Data, Predata Analytics)) is alleged to, and (2) Subscriber shall indemnify Predata any of the Subscriber Data is alleged to, infringe, misappropriate or violate any third party copyrights, trademarks, rights of publicity or other intellectual property or proprietary rights. In any such case, the indemnifying party shall pay any settlements, awards, fines and reasonable attorney’s fees and expenses and court costs (collectively, “Losses”), in each case to the extent arising from or relating to any allegation. Neither Party will settle, or consent to any entry of judgment in, any Third Party Claim for which it provides indemnity hereunder without obtaining either an unconditional release of the Indemnified Parties from all liability with respect to all claims underlying such Third Party Claim or the prior, written consent of the Party seeking indemnity.
13. Use of Trademarks, Etc. Neither party shall use the other party’s proprietary indicia, trademarks, service marks, trade names, logos, symbols or brand names, or otherwise refer to or identify the other party in advertising or publicity releases to third parties, without, in each case, the prior written consent of the other party. Notwithstanding the foregoing, Subscriber acknowledges and agrees that Predata or a Predata Affiliate may disclose the identity of Subscriber as a Subscriber in its marketing materials and on its website.
14. General Provisions. The relationship of the Parties under this Agreement is one of independent contractors, and neither Party has the authority to bind the other Party in any way. Any notice, demand or other communication required or permitted under this Agreement may be provided electronically or may be sent by regular mail or overnight delivery, addressed to the Parties at their respective addresses. Except with respect to failure to pay any amount due under this Agreement, nonperformance of either Party will be excused to the extent that performance is rendered impossible by strike, fire, flood, governmental acts, orders or restrictions, failure of suppliers, or any other reason where failure to perform is beyond the control and not caused by the negligence of the non-performing Party. This Agreement is binding upon and will inure to the benefit of each Party and their respective successors or assigns. A waiver of rights under this Agreement will not be effective unless it is in writing and signed by an authorized representative of the Party that is waiving the rights. This Agreement may not be amended unless the amendment is in writing and signed by authorized representatives of the Parties. This Agreement, and any and all disputes directly or indirectly arising out of or relating to this Agreement, shall be governed by and construed in accordance with the laws of the State of New York, without reference to the choice of law rules thereof. Each of the Parties hereby irrevocably consents and submits to the exclusive jurisdiction of the state and federal courts located in New York County, New York for any such disputes, and hereby irrevocably waives any objections to the laying of venue in such courts. This Agreement (together with any Subscription Schedules) sets forth the entire agreement of the Parties as to its and their respective subject matter and supersedes all prior agreements, negotiations, representations, and promises between them with respect to such subject matter. Each provision of this Agreement shall survive any expiration or termination of this Agreement.