ENVIRONICS TERMS AND CONDITIONS
Environics Analytics, Inc. ("Environics") is pleased to license the Licensed Materials, specified below, to you subject to the terms and conditions contained herein. This is a legal agreement (the “Agreement”) between you, as the end user ("Licensee"), and Environics.
This Agreement is entered into on the date of acceptance. BY CLICKING ON THE BUTTONS LABELED "AGREED" AFTER THE AGREEMENT, LICENSEE AGREES TO BE BOUND BY THIS AGREEMENT AND THE TERM AND CONDITION CONTAINED HEREIN. IF YOU DO NOT AGREE TO THIS AGREEMENT AND THE TERMS AND CONDITIONS CONTAINED HEREIN, PLEASE CLICK ON THE BUTTON LABELED “DO NOT AGREE”. IF YOU INDICATE THAT YOU DO NOT AGREE, YOU WILL NOT BE ALLOWED TO ACCESS THE PRODUCTS. In addition, by accessing the Licensed Materials (also the "Product" or "Products"), you indicate your acknowledgement and acceptance of the terms and conditions as provided pursuant to this Agreement. This Agreement will be the controlling terms for the Product(s), and will replace any previous agreement for the Products. If you do not agree with these terms, you should not accept these terms or access the Environics’ site or Products.
Payment. If applicable, Environics will issue an invoice for the Licensed Materials upon Licensee’s acceptance of this Agreement. Invoices, including those for any applicable tax, are due within thirty (30) days of the invoice date. If an invoice not subject to bona fide dispute is not paid within thirty (30) days, Environics may suspend your access to the Product until all undisputed invoices are paid.
Term of License. The term of license will commence upon Environics' activation of the Product login following Licensee’s acceptance of this Agreement, and will continue until the first anniversary thereof, unless terminated earlier as provided herein or as the parties may otherwise agree. The Product has a defined operational period, which is equivalent to the applicable term of this Agreement. The Product will cease to function after the specified expiration date, and this Agreement and the license to the Licensee will be deemed terminated. Notwithstanding any provision to the contrary, for the purposes of this Agreement only, Licensee may disclose reports and maps generated from the Product as Output, as specified below, and Licensee will license such Output perpetually from Environics subject to the use restrictions and other applicable terms and conditions of this Agreement.
Ownership, License. All reports, data, analyses ("Information"); data dictionaries, reference tools, data methodologies, data characteristics and attributes ("References"); software, including online applications and web-based platforms ("Software"); Product or Products, or other intellectual property ("Property") provided by Environics (collectively, the "Licensed Materials") consist of trade secrets and other confidential and proprietary information and technology and are the sole and exclusive property of Environics and/or third party suppliers that have licensed Environics to use and sublicense portions of the Licensed Materials (collectively, "Third Party Licensors"). Environics grants Licensee a limited, non-exclusive license to use the Licensed Materials internally. Reports and maps may be reproduced in hard or electronic copy for internal use only. Environics will provide updates and enhancements to the Licensed Materials as are generally made available to other licensees in the same situation as Licensee. Environics reserves the right, from time to time, to modify, add or change the Licensed Materials, provided that such modifications, additions or changes do not materially degrade the functionality of the Licensed Materials.
Permissible Uses. Subject to any restrictions set forth herein, Licensee may include limited excerpts of Information from the Licensed Materials (“Output”) in its reports and analyses, which Licensee may disclose to third parties in support or furtherance of Licensee's efforts to market its own products or services. Licensee also may include Output in trade and consumer advertising copy, annual reports, reports to the financial community, and releases to the media for the purpose of corporate image-building or product promotion. Output may not be of such quantity or quality as to be separately marketable by Environics. Licensee may not incorporate Output into its own products or services without an additional license grant from Environics. In all cases, Output disclosed to third parties must be accurately labeled; not be presented in a misleading manner; and cite Environics and any applicable Third Party Licensors, as well as the dates of any databases referenced. Licensee may enlist the services of a third party processor to perform services utilizing the Licensed Materials on Licensee’s sole behalf, provided that such third party has executed a Third Party Processor Agreement with Environics. No portion of the Licensed Materials (including Output) may be used or disclosed in any manner that is detrimental to or competitive with the business of Environics. Any use or disclosure of any portion of the Licensed Materials other than as permitted by this license is prohibited without Environics' prior written consent. Any unauthorized disclosure or distribution of the Licensed Materials will cause irreparable harm and entitle Environics and/or such Third Party Licensors to immediate injunctive relief.
Restricted Uses. Except as expressly set forth above, in no event will Licensee: (a) copy, reproduce or replicate the Licensed Materials, with the exceptions of: (i) one copy into computer memory for execution; (ii) up to three copies for backup purposes; and (iii) Output, as specified above, which may be reproduced as needed; (b) distribute the Licensed Materials by any means or allow any third party to access the Licensed Materials (except as expressly set forth above), or place any portion of the Licensed Materials, including Output, on any website or retrieval system that may be accessed outside of Licensee’s immediate organization, without Environics' prior written consent; (c) market, license or sell any derivative work based upon any portion of the Licensed Materials; (d) use or store the Licensed Materials in a relational database containing various data designed for on-going querying and reporting; (e) reverse engineer, decompile, decode or attempt to re-identify an individual from any portion of the Licensed Materials; (f) use the Licensed Materials to prepare, verify or modify any directory or mailing/marketing list which is sold, rented or otherwise provided to third parties not acting on Licensee’s behalf; (g) use any portion of the Licensed Materials for purposes of determining adverse terms and conditions of or eligibility of an individual for employment, credit, healthcare treatment, insurance (including, but not limited to health insurance), or for any purpose for which a consumer report may be used under the Fair Credit Reporting Act; (h) use any portion of the Licensed Materials in any way that could result in disparate impact or treatment under the Equal Credit Opportunity Act or the Fair Housing Act; (i) use the Licensed Materials in a way that negatively characterizes any ZIP, ZIP+4, ZIP+6 or household or exclude any ZIP, ZIP+4, ZIP+6 or household in a way that could result in disparate impact or treatment on a prohibited basis under the Equal Credit Opportunity Act (15 U.S.C. § 1691 et seq.) and Regulation B under that Act or the Fair Housing Act (42 U.S.C §§ 3601 et seq.); (j) use the names, trademarks or logos of Environics or any Third Party Licensor in any advertising or promotional material, without prior written consent, except as expressly set forth above; (k) use the Licensed Materials in any legal or administrative proceeding; provided, however, that if such use is compelled by legal process, Licensee will promptly give Environics advance written notice and, before such use, obtain confidentiality agreements, protective orders and evidentiary stipulations acceptable to Environics, and Licensee will limit the use to the minimum necessary to comply with such legal requirement. If Licensee is in the healthcare, health insurance or life insurance industry, the following terms also apply: Licensee is expressly prohibited from using any portion of the Licensed Materials: (a) in online direct marketing to individual consumers; (b) as a factor in determining eligibility for health/life insurance coverage; (c) for the purpose of taking “adverse action” against a consumer in the provision of healthcare/life insurance coverage or services; or (d) as a factor in charging high health/life insurance rates to consumers. Environics may terminate this Agreement on ten (10) days written notice in the event of (a) any breach by Licensee of any provision(s) hereunder; (b) negative publicity or circumstance that threatens to have a negative impact on Environics' business, if such circumstance is not resolved to Environics' satisfaction; or (c) any violation by Licensee of any applicable law, regulation, guideline, industry best practices, or privacy best practices. In the event of such termination by Environics, Licensee will immediately cease all use of the Licensed Materials and, within ten days of termination, Licensee must cease use of, and destroy or purge all copies of Licensed Materials, and all copies, modifications and updates of Licensed Materials and all supporting documentation, and provide written certification of destruction.
Any marketing or solicitation related to Licensee's use of the Licensed Materials must comply with the Direct Marketing Association guidelines and all applicable federal, state and local laws. Any use other than as specified in this Agreement is prohibited without Environics' prior written consent.
Use of Software. Licensee must hold a license for each individual using Software. Software may be used by Licensee only for Licensee's internal processing of licensed Information and/or Reference. A license represents the right to install, use, access, display, run or otherwise interact with the online application or web-based platform Software pursuant to an individual user login for each of Licensee’s users. During the term of this Agreement, Licensee may change assignment of a Software user/login within its organization by giving Environics written notice, provided that the number of user licenses remains the same.
Use and Transferability of the Product. The Product is licensed as a web application and requires Internet connectivity via an Internet browser. The Product is licensed specifically to Licensee and may not be transferred to or accessed by any third party without the prior written consent of Environics. Licensee may not post or publish any portion of the Product, the Software, the Information, including Output, on the Internet or World Wide Web without Environics' prior written consent, which may be withheld in Environics sole discretion. Licensee may post Output from the Product on its secure, password-protected intranet, for Licensee’s internal use only.
Indemnification By Environics. Environics will indemnify and defend or settle at its own expense against any damages awarded by a court or amounts paid in settlement arising directly from lawsuits, threats of lawsuits, and other written allegations made or brought by a third party against Licensee based on a claim that the Licensed Materials infringe any copyright, trademark or trade secret of a third party. If a claim is made that the Licensed Materials are, in the opinion of Environics, likely to or do become the subject of a claim that is covered by the indemnity provisions of this section such that the permitted use of the Licensed Materials infringe any copyright, trademark or trade secret of a third party, Environics, at its election, will either procure for Licensee the right to continue using the Licensed Materials, modify them to make them non-infringing but continue substantially to meet specifications, replace them with non-infringing Licensed Materials of substantially like functionality or terminate the license subject to refund of charges paid for periods when those Licensed Materials are not provided. Notwithstanding the foregoing, Environics shall have no liability for any claim arising from (a) any Licensee, third party or public content, data, software, equipment, components, or services or any other content, data, software, equipment or component not generated by Environics; (b) any combination of the Licensed Materials with content, data, software, equipment, components, services, tools or intellectual property not provided by Environics, if the cause of action would not exist but for such combination; (c) any modification or use of the Licensed Materials by Licensee or party other than Environics, where such cause of action would not exist but for such modification or use; (d) unauthorized use of the Licensed Materials; or (e) Licensee’s continued use of the Licensed Materials in any form previously provided to the Licensee after Environics has provided Licensee with a replacement or modified form of the Licensed Materials.
Environics will indemnify and defend or settle at its own expense any cause of action brought against Licensee which is based on a claim for personal injury or damage to tangible property resulting from any negligent act or omission of Environics or any of its employees or agents.
The foregoing indemnification obligations are subject to Licensee: (1) promptly notifying Environics of the claim, (2) providing Environics with reasonable information, assistance and cooperation in defending the claim, and (3) giving Environics full control and authority over the defense (including selection of counsel) and settlement of the claim. Subject to the foregoing, Licensee shall have the right to engage its own counsel at its own expense. Environics is not responsible for any settlement or compromise reached by Licensee without Environics’s prior written consent. This section sets out Environics' entire liability for any claims relating to the Licensed Materials.
Indemnification By Licensee. Licensee will indemnify and hold Environics and its affiliates harmless from any and all loss, damage, liability and costs, including attorney’s fees, resulting from any claim or demand by third parties, arising from any misuse, disclosure or misrepresentation by Licensee with respect to the Licensed Materials or Output.
Warranty. Environics warrants to Licensee that the Licensed Materials will be provided substantially in accordance with Environics then-current published specifications. Environics does not, however, warrant that all errors will be corrected or that operation of the Licensed Materials will be uninterrupted or error-free. Environics will not be deemed in violation of its warranty as long as the Licensed Materials are functional and substantially conform to Environics' published specifications. Environics will not be liable for the accuracy of any Licensed Materials; for any errors, malfunctions or omissions of the Licensed Materials, or for any loss or damage resulting from Licensee’s improper use, storage or operation. Information consists primarily of estimates and is subject to inherent coverage, error rate and other statistical factors. Licensee acknowledges that the sources of Information are not always under Environics' control. THE FOREGOING WARRANTY IS EXCLUSIVE AND IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR USE FOR A PARTICULAR PURPOSE.
Confidentiality. Each party may disclose Confidential Information to the other party during the term of this Agreement. “Confidential Information” means any confidential or trade secret information disclosed by one party to the other party, verbally or in writing, including but not limited to the terms of this Agreement, customer lists, product plans, technology, systems, business processes and any other financial, sales, marketing or business information that is not (a) disclosed in public materials or otherwise in the public domain through no action or disclosure by the receiving party; (b) lawfully obtained from a third party without any obligation of confidentiality; (c) lawfully known to the receiving party prior to disclosure by the other party; or (d) independently developed by the receiving party without reference to the disclosing party’s Confidential Information. Except as otherwise expressly provided in this Agreement, each party will treat all Confidential Information of the other party with the same degree of care as it accords to its own Confidential Information, but in no event less than a reasonable degree of care. If requested, the receiving party will destroy or return all Confidential Information upon termination of this Agreement or the applicable license, with the exception that any backup media created by the receiving party and stored as part of its business continuity or disaster recovery plan, which may include portions of Confidential Information, will be destroyed in accordance with the receiving party’s internal destruction policy; provided that the all such retained Confidential Information shall continue to be treated as confidential.
Licensee Information and Security Measures. Licensee agrees and acknowledges that for purposes of providing support services to Licensee, Environics may be given access, by Licensee, to Licensee’s proprietary and Confidential Information uploaded into Licensed Materials. Licensee represents and warrants that (i) Licensee has the necessary rights to upload such information to Licensed Materials and provide access to Environics for the provision of such support services, and (ii) Licensee collects and maintains such information in accordance with all applicable laws, rules, regulations, guidelines, industry best practices and privacy best practices. Environics shall implement and maintain administrative, physical and technical safeguards that are designed to prevent any collection, use or disclosure of, or access to, Licensee’s data and/or Confidential Information uploaded within the Licensed Materials that this Agreement does not expressly authorize. Environics shall exercise at least the same degree of care to safeguard Licensee’s data and/or Confidential Information as Environics would exercise to protect Environics' own property of a similar nature. If Third Party Licensor data is licensed, Environics may disclose Licensee’s name to the applicable Third Party Licensor solely to the extent that such disclosure is required for royalty reporting purposes. Environics will obligate such Third Party Licensor to use Licensee’s name only in connection with the royalty report, and to safeguard the confidentiality of such Confidential Information. Licensee acknowledges and agrees that Environics may email or use other electronic means to send reports, Output, data and Information to Licensee.
Limitation of Liability. UNDER NO CIRCUMSTANCES WILL ENVIRONICS OR ANY THIRD PARTY LICENSOR BE LIABLE FOR CLAIMS IN EXCESS OF AMOUNTS PAID DURING THE PRECEDING TWELVE MONTHS IN CONNECTION WITH THE LICENSED MATERIALS GIVING RISE TO THE CLAIM. EXCEPT FOR THE LIABILITIES SPECIFICALLY ASSUMED IN THE INDEMNIFICATION PROVISIONS AND FOR BREACHES OF CONFIDENTIALITY, NEITHER ENVIRONICS, LICENSEE OR ANY THIRD PARTY LICENSOR WILL OTHERWISE BE LIABLE, IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, FOR ANY LOSS, EXPENSE OR DAMAGE OF ANY KIND INCLUDING, WITHOUT LIMITATION, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES DUE TO ANY FAILURE TO FURNISH ANY SERVICE OR FOR ANY ERRORS IN ANY LICENSED MATERIALS. NEITHER ENVIRONICS NOR ANY THIRD PARTY LICENSOR WILL BE LIABLE FOR ANY CLAIM BROUGHT MORE THAN ONE YEAR AFTER THE CAUSE OF ACTION HAS ACCRUED. These remedies are exclusive.
Termination. Either party may terminate this Agreement in the event of a material breach by the other party which remains uncured after 30 days following notice. Environics reserves the right to terminate the license for Licensed Materials on 30 days written notice if it is terminating the license of said Licensed Materials to all licensees of those Licensed Materials. Within 15 business days following termination, Licensee must purge and destroy all copies and excerpts of the Licensed Materials and all supporting documentation and upon request provide written certification of such destruction and purging.
Assignment. This Agreement may not be assigned by Licensee (by operation of law or otherwise) without the prior written consent of Environics and will inure to the benefit of any successor or permitted assignee of either party.
Right to Audit. During the term of this Agreement and a period of two years following termination, in the event Environics reasonably suspects a breach by Licensee and upon written notice to Licensee, Environics will have the right to audit all usage of the Licensed Materials by Licensee; provided that Licensee will not be required to submit to such audit more than twice in any calendar year. In the event that the audit reveals that the Licensee has breached this Agreement, the cost of the audit will be the responsibility of Licensee.
Purchase Orders. The terms and conditions of this Agreement supersede the terms of any purchase orders or other documents issued by Licensee with respect to the Licensed Materials.
Governing Law. This Agreement and the parties' rights and duties will be interpreted under the laws of the State of Delaware. The state and federal courts located in the State of Delaware shall have exclusive jurisdiction over all claims relating to or arising out of this Agreement.
Survival. All obligations that are intended to survive the expiration or termination of this Agreement, including without limitation confidentiality, limitation of liability, indemnification and uses of Licensed Materials shall survive the expiration or termination of this Agreement. Licensee’s obligations with respect to Third Party Licensor Licensed Materials will inure to the benefit of and may be enforced by the Third Party Licensor.
CONSUMER BUYING POWER AND RETAIL MARKET POWER: Consumer Buying Power and Retail Market Power data are proprietary to Environics
ADDITIONAL TERMS AND THIRD PARTY LICENSORS: To the extent that any of the following Licensed Materials are licensed or accessed within the Product, the corresponding additional terms will apply:
TOMTOM DATA LICENSED MATERIALS: TomTom data, including Boundary, Street and/or Centroid Data, is proprietary to TomTom North America, Inc., a Third Party Licensor. TomTom data is for Licensee’s internal use only. Licensee shall not: (i) create a digital map database; (ii) use TomTom data for in flight navigation; or (iii) remove any copyright or trademark notices output by the Licensed Materials. Output generated by Licensee will not consist solely of vector data files nor latitude/longitude coordinates. Licensee may not permit access to any TomTom Licensed Materials by any independent contractor, consultant or third party processor that is engaged in the business of developing, marketing or supporting products similar to the TomTom Licensed Materials.
U.S. Government Rights: If Licensee is an agency, department, or other entity of the United States Government, or funded in whole or in part by the United States Government, then the use, duplication, reproduction, release, modification, disclosure or transfer of TomTom Licensed Materials and accompanying documentation, is restricted in accordance with the LIMITED or RESTRICTED rights as described in any applicable DFARS or FAR. In case of conflict between any of the FAR and/or DFARS that may apply to the TomTom Licensed Materials, the construction that provides greater limitations on the Government’s rights shall control. Contractor/manufacturer is TomTom North America, Inc., 11 Lafayette Street, Lebanon, NH 03766-1445. Phone: 603.643. 0330. The Licensed Materials are © 2006-[current year] by TomTom. ALL RIGHTS RESERVED. For purpose of any public disclosure provision under any federal, state or local law, it is agreed that the Licensed Materials are a trade secret and a proprietary commercial product and not subject to disclosure.
If Licensee is an agency, department, or other entity of any State government, the United States Government or any other public entity or funded in whole or in part by the United States Government, then Licensee hereby agrees to protect the TomTom Licensed Materials from public disclosure and to consider the TomTom Licensed Materials exempt from any statute, law, regulation, or code, including any Sunshine Act, Public Records Act, Freedom of Information Act, or equivalent, which permits public access and/or reproduction or use of the TomTom Licensed Materials. In the event that such exemption is challenged under any such laws, this agreement shall be considered breached and any and all right to retain any copies or to use of the TomTom Licensed Materials shall be terminated and considered immediately null and void.
DMA BOUNDARIES DATA: The DMA data are proprietary to Nielsen and consist of the boundaries of Nielsen’s DMA regions within the United States of America. Any use of or reference to DMA data in Output must include attribution and Nielsen’s registered trademark (e.g., “Boundary data source: Nielsen DMA® data, [current year]”). Licensee acknowledges and agrees that (a) Nielsen is the sole and exclusive owner of (i) the DMA Boundaries Data and all intellectual property rights therein and (ii) the federally-registered mark “DMA” for use in connection with television viewer market research and analysis services, which is now incontestable within the United States pursuant to 15 U.S.C. § 1065. (See Federal Registration No. 1,157,555) (the “Licensed Mark”); and (b) Licensee (i) is prohibited from using the Licensed Mark except as required herein and (ii) may not assign, sublicense, or otherwise subcontract its license or rights hereunder.
CLARITAS BUSINESS-FACTS®: Claritas Business-Facts is proprietary to Claritas; components of the database are derived from infoGROUP Inc., a Third Party Licensor, Copyright [current year]. Licensee’s use of any Business-Facts Summary and/or Location, and/or Analytics Use Business Lists, and/or Full Analytical Point Outpoint, and/or Spatial Point Output Licensed Materials, if licensed, is for analytical purposes only; any marketing or solicitation by Licensee utilizing any portion of the Business-Facts Summary and/or Location, and/or Analytics Use Business List, and/or Full Analytical Point Outpoint, and/or Spatial Point Output Licensed Materials is strictly prohibited without a separate license grant from Environics.
Licensee may use Metered Prospect List – Mailing List and Metered Prospect List – Teleprospect List, if licensed, for prospecting purposes.
CLARITAS FINANCIAL DATA: Financial data are proprietary to Claritas; components of the database are derived from infoGROUP Inc., a Third Party Licensor, Copyright [current year].
CLARITAS POP-FACTS: Claritas Pop-Facts is proprietary to Claritas.
BANK BRANCH DATA: Bank Branch is sourced from Bank Insight, a proprietary product of SNL Financial LC, a Third Party Licensor. Licensee’s Bank Branch data license herein is contingent upon Licensee’s separate subscription in place with SNL Financial LC. In the event Licensee terminates its separate subscription with SNL Financial LC, Environics, upon SNL Financial LC’s notification to Environics, Environics reserves the right to provide a replacement to or terminate (at Environics’ sole discretion) the Bank Insights portion of the Bank Branch database at the end of Licensee’s current license term herein, or within 12 months from termination of the SNL Financial LC subscription license, whichever is sooner.
SEGMENTATION SPECIAL CONDITIONS: The following are proprietary to Claritas. Licensee may not disclose to any third party the unique one-for-one PRIZM®, PRIZM PREMIER®, P$YCLE® or ConneXions® segment assignment for any specific level of geography: ZIP+4, Block Group, ZIP, etc. (e.g., identifying a Block Group as belonging to a specific segment). The foregoing does not limit Licensee's right to produce and disclose, as Output, aggregations of such segment assignments (i.e., created by using not less than 3 segments). Licensee is expressly prohibited from using segment assignments (a) in conjunction with Internet cookies; (b) to compile a directory or cross reference file(s) that disclose the unique one-for-one segment assignment for a geographic unit; (c) in an advertising application via mobile devices, the Internet or cable set-top boxes without an additional specific license grant from Environics; or (d) for the purpose of selecting geographies for online advertising without an additional specific license grant from Environics.
TRAFFIC DATA: Traffic Volumes and Traffic Counts are proprietary to Environics and are derived from TrafficMetrix® which contains proprietary and confidential property of Kalibrate Technologies Inc., a Third Party Licensor, Copyright [current year].
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