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Any visitor, subscriber to, or user (either of which is referred to herein
as the "Licensee" or the "User") of this website ("Business Directory")
agrees to be bound by the following terms and conditions, contained in this
agreement ("Contract"). These Terms And Conditions are also terms and
conditions of all Subscription Agreements (as defined herein).
(i) "User" or "Licensee" shall mean a user of the Business Directory.
(ii) MERGER RESEARCH, LLC ("MERGER RESEARCH") is the "Company".
When used herein the term MERGER RESEARCH shall also refer to World
Prospects, Inc.
(ii)"Third Party" shall mean a Person other than MERGER
RESEARCH, User or an
Affiliate of MERGER RESEARCH.
(iii) "Log In" shall mean using a user name and password to access the
Business Directory
(iv) "Contact Record" shall mean a data record pertaining to a single
contact, such as address and/or executive name/ and/or any other contact,
descriptive or demographic data, irrespective of the presentation format of
the data or software that delivers or contains the data. A contact record
typically contains the name of a single person and data referencing that
person.
(v) "Company Record" shall mean a data record pertaining to a single company
such as address, website information, employees and any other descriptive or
demographic data, irrespective of the presentation format of the data or
software that delivers or contains the data. A contact record typically
contains the name of a single company and data referencing that company.
(vi) "Email Record" shall mean a data record containing email data.
(vii) When not used as part of the terms "Company Record", "Contact Record"
or "Email Record", the term "Record" shall refer to a Contact Record.
(vii) "Licensed Data" shall mean any data whatsoever contained in the
Business Directory.
(vii) "Subscription" or "Subscription Agreement" shall mean any form filled out by a Licensee
providing billing information to the Company (and any agreement pursuant to
such form) or any document executed by the Licensee subscribing to the
Business Directory.
1. LICENSE GRANT
1.1 Grant of License. Subject to the terms and conditions of this Contract,
MERGER RESEARCH hereby grants Licensee a non-exclusive, license to use the
Licensed Data in the Business Directory in accordance herewith.
1.2 Limitations. (a) If Licensee has been provided with a user name and
password by the Company, Licensee shall have no right to provide such user
name and password to any other parties and will request separate logins for
each party accessing the Licensed Data and Business Directory. Multiple
employees of Licensee may request user names and passwords which will each
be billed to the Licensee at the same rate as prescribed in any agreement
with the Licensee.
(b) Licensee acknowledges that the information in the Business Directory is
provided for internal use only and may not be copied, sold, stored or
redistributed. This information is provided "as is" without warranty of any
kind. In no event will MERGER RESEARCH, World Prospects, Inc. ("World
Prospects"), its information
providers or any of World Prospects officers or employees whatsoever be
liable in any way with regard to such information. Licensee shall only use
the data in a manner compliant with all laws applicable to Licensee and will
indemnify and hold harmless Company from any actions (legal or otherwise)
resulting from the failure of Licensee to comply with any laws whatsoever in
connection with the use of any data contained in the Business Directory.
2.0a Subscription: Unless otherwise stated in a written document executed by
a MERGER RESEARCH officer, all Subscriptions are billed at $399 per
month after 90 days of being established (the "Initial Term"), allowing unlimited online
viewing of up to 10 million contacts and downloading of 500,000 Contact Records
annually. Licensee shall pay all fees immediately except otherwise
specified herein and agrees to pay all fees associated with the account with
any credit card or other billing information provided by the Licensee to
MERGER RESEARCH. To prevent interruptions, unless terminated within 45 days
prior to the expiration of the Iecond Term, all Subscriptions renew
automatically annually in advance.
2.0b DOWNLOADS. Unless otherwise specified in a separately executed
document, the Licensee shall pay Licenser the following fees for Downloading
data. (1) 99 cents (ninety-nine U.S. cents) per Company Record.
These fees also apply to data download overages. "Downloading" means transferring data from the Business Directory to any
machine, computer or other device controlled by the Licensee or a User of
the Licensee. Unless otherwise specified in writing, any Subscription
Agreement between the Licensee and the Company will renew at the end of the
subscription term ("Subscription Term") specified in such Subscription
Agreement for a minimum period of 12 months, unless cancelled in writing by
the Licensee 90 days prior to the end of the Subscription Term. All
terminations must be sent in writing by certified mail to 4410 Massachusetts
Avenue, Suite 187, Washington DC 20016. If the Licensee terminates a
Subscription Agreement but then Logs In after
the Subscription Term then the Subscription Agreement will automatically
renew for a period of 12 months. All renewals will be billed annually in
advance at the then applicable license fee. Thereafter, the Subscription
Agreement shall automatically renew for successive one (1) year periods,
except that either party may terminate the Subscription Agreement at the end
of the first 12 months or any renewal period by written notice to the other
party given no later than ninety (90) days prior to the end of the then
current term. The term "month" shall refer to 30
day time periods for the purposes of this Contract. The Licensee agrees to
be responsible for all fees incurred through the use of any user name or
other login information assigned to the Licensee by the Company. If a
Licensee that has entered into a Subscription Agreement with the Company,
downloads excess data, this data may at the Company's election, be billed an
overage fee pursuant to World Prospects Pricing schedule which can be
obtained by Licensee sending an email to their World Prospects account
representative. Renewals are billed at the expiration of the notice period.
During any renewal period, fees may be modified by MERGER RESEARCH and
will be sent in writing or other electronic communication to Licensee. The
Licensee may reject such fee increases in writing; any such rejections may,
at MERGER RESEARCHS’S election, be treated as a termination in writing of the
Subscription Agreement.
2.1 BILLING: Fees will be invoiced and/ or processed by MERGER
RESEARCH or an
affiliate of MERGER RESEARCH (World Prospects). Licensee
agrees not to seek any refunds of any amount successfully billed by
MERGER RESEARCH ( or any affiliate of MERGER RESEARCH) from any party other than
MERGER RESEARCH. Licensee may not request from any company, third party, credit
card provider, credit card processor, check processing service provider,
bank, debit, or other payments processor, without the express written
permission of MERGER RESEARCH, a refund of any amounts paid to
MERGER RESEARCH.
All credit requests must be made directly to MERGER RESEARCH. All Licensees
that make payments (in connection with the use of World Prospects) by check,
hereby authorize MERGER RESEARCH or an affiliate of MERGER
RESEARCH to initiate
debit entries of all Fees to the Licensee's checking account at the
depository financial institution named and indicated on any check provided
to MERGER RESEARCH (or an affiliate of MERGER RESEARCH) as payment, and to debit
the same to such account. This authorization is to remain in full force and
effect until MERGER RESEARCH has received written notification from the
Licensee, by certified mail, at 4410 Massachusetts Avenue, Suite 187,
Washington DC, 20016 of its termination in sufficient time and manner as to
allow MERGER RESEARCH to make such changes. The Licensee must provide
MERGER RESEARCH with accurate and complete billing information. Any changes to this
information must be reported to MERGER RESEARCH within three (3) days of the
change. If a charge is disapproved by the financial institution, Deal Stategy will notify the Licensee via email, and the Licensee must cure the
disapproval. If disapproval is not cured within seven (7) days of the date
of the notice, MERGER RESEARCH reserves the right to charge an administrative
fee in the amount of fifty dollars ($50) and to pursue any other available
remedies.
2.1B REFUNDS: All refunds of amounts paid by Licensee and approved by
MERGER RESEARCH will be credited to the Licensee within 60 days to 90 days of such
approval.
2.1C Data Exchanges: MERGER RESEARCH makes an unusual effort to ensure the
accuracy of the data contained in the Business Directory. Still, from time
to time errors may arise. MERGER RESEARCH may consider exchanges of contact
data that contain errors . For World Prospects to consider any such requests
for Contact Record exchanges, the Contact Record's telephone and mailing
address must be incorrect.
2.2 Optional Maintenance: A 10% surcharge ("Maintenance Fee") shall be added
to all Fees to cover customer service and administrative expenses. Licensee
may elect to opt out of using the Company's customer service resources by
sending an email or other written communication directly to the company
prior to the Licensee's first use of the Business Directory. If the Licensee
opts out, the Licensee will not be charged this Maintenance Fee.
3. WARRANTY, INDEMNITY AND LIMITATION OF LIABILITY
3.1 Licensee Acknowledgment. Though MERGER RESEARCH uses extensive procedures
to keep its database current and to maintain accurate data, Licensee
acknowledges that the Licensed Data will contain a degree of error and that
Licensee is responsible for determining that the Licensed Data is
sufficiently accurate for Licensee’s purposes.
3.2 DISCLAIMER OF WARRANTY. THE LICENSED DATA PROVIDED HEREUNDER IS PROVIDED
ON AN AS-IS, AS-AVAILABLE BASIS AND MERGER RESEARCH DOES NOT MAKE AND HEREBY
DISCLAIMS ANY WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO THE LICENSED
DATA, INCLUDING, BUT NOT LIMITED TO, THE ACCURACY, COMPLETENESS, TIMELINESS,
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OF THE LICENSED DATA OR
OF THE MEDIA ON WHICH THE LICENSED DATA IS PROVIDED AND SHALL NOT BE LIABLE
TO THE LICENSEE OR TO ANY PERSON CLAIMING THROUGH LICENSEE OR TO WHOM
LICENSEE MAY HAVE PROVIDED THE LICENSED DATA FOR ANY LOSS OR INJURY ARISING
OUT OF OR CAUSED, IN WHOLE OR IN PART, BY MERGER RESEARCH'S ACTS OR OMISSIONS
(INCLUDING NEGLIGENCE) IN PROCURING, COMPILING, COLLECTING, INTERPRETING,
REPORTING, COMMUNICATING OR DELIVERING THE LICENSED DATA OR IN OTHERWISE
PERFORMING ITS OBLIGATIONS UNDER THIS AGREEMENT. THE LICENSEE ALSO AGREES
THAT MERGER RESEARCH WILL NOT BE LIABLE FOR CONSEQUENTIAL, INCIDENTAL,
SPECIAL, PUNITIVE OR OTHER INDIRECT DAMAGES, EVEN IF ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES.
3.2b Any guarantee provided (whether pursuant to a contract signed by
MERGER RESEARCH or World Prospects, a license issued by MERGER
RESEARCH or World
Prospects or a license issued otherwise) must be claimed within 60 days of
the activation of any account issued to a User. All guarantees provided by
World Prospects are cancelled after 60 days of the issuance of such
guarantees. Guarantees provided with respect to subscriptions are only valid
if the Licensee contacts, by telephone, a minimum of 500 contacts using the
Licensed Data and does not complete a sale with any such contacts. This
provision 3.2b supersedes all other provisions provided in any other
documentation, contracts or oral agreements with respect to guarantees.
3.3 Indemnification. Licensee agrees to indemnify fully, hold harmless and
defend MERGER RESEARCH and its Affiliates, partners, officers, directors,
employees, agents, representatives, successors and permitted assigns other
than Licensee and its Affiliates (collectively, the "Indemnified Parties")
from and against any and all liabilities, damages, penalties, judgments,
assessments, losses, costs and expenses (including attorneys' fees)
(collectively, "Damages") arising out of or relating to:
3.3.1 Any breach of this Contract by the Licensee;
3.3.2 The goods, software or services of Licensee (including infringement of
any Third Party intellectual property right by such goods, software or
services);
3.3.3 Any violation of any law or regulation by Licensee; or 3.3.4 The
negligence or willful misconduct of Licensee.
3.4 LIMITATION OF LIABILITY. IF, FOR ANY REASON PARAGRAPH 3.2 ABOVE IS HELD
TO BE INOPERATIVE, UNENFORCEABLE OR INVALID THEN LICENSEE AGREES THAT
MERGER RESEARCH'S AGGREGATE LIABILITY, IF ANY, FOR ANY AND ALL LOSSES OR INJURIES
ARISING OUT OF ANY ACTS OR OMISSIONS OF MERGER RESEARCH IN CONNECTION WITH
ANYTHING TO BE DONE OR ANY LICENSED DATA TO BE FURNISHED HEREUNDER,
REGARDLESS OF THE NATURE OF THE LEGAL OR EQUITABLE RIGHT CLAIMED TO HAVE
BEEN VIOLATED, SHALL NEVER EXCEED FIVE HUNDRED DOLLARS ($500) AND LICENSEE
COVENANTS AND PROMISES THAT IT WILL NOT SUE MERGER RESEARCH FOR AN AMOUNT
GREATER THAN SUCH SUM AND THAT IT WILL NOT SEEK PUNITIVE DAMAGES IN ANY SUIT
AGAINST MERGER RESEARCH. ANY PUNITIVE DAMAGES AWARDED IN ANY JURISDICTION
AGAINST MERGER RESEARCH TO LICENSEE WILL BE IMMEDIATELY FORGIVEN BY LICENSEE.
WHEN USED ANYWHERE IN THIS AGREEMENT, THE TERM MERGER RESEARCH INCLUDES
MERGER RESEARCH AFFILIATES, EXECUTIVES, OFFICERS, SHAREHOLDERS, EMPLOYEES, MERGER
RESEARCH AND WORLD PROSPECTS.
3.5 Third Party Information Providers. The Licensed Data provided under this
Contract is compiled by MERGER RESEARCH from a variety of public and private
sources and is licensed by MERGER RESEARCH to Licensee on an as-available
basis. MERGER RESEARCH gives no assurance that it will be able to maintain the
availability of all third party data sourcing relationships during the
entire term of this Contract. Third parties that provide information to
MERGER RESEARCH for use in providing the Licensed Data are intended third party
beneficiaries of Sections 3.2 and 3.4
3.6 Governing Law. This Contract shall be governed by, and construed in
accordance with, the laws of the State of Delaware, without giving effect to
any choice of law or conflict of law rules or provisions. Any disputes
arising out of this contract will be settled by arbitration or through the
courts in Minneapolis, Minnesota USA. The manner of resolution (arbitration
or court resolution) will be determined exclusively by MERGER RESEARCH.
3.7 Assignment. This Contract binds and inures to the benefit of the parties
and their respective successors and permitted assigns. Licensee may not
assign this Contract without the prior written consent of MERGER
RESEARCH;
however, MERGER RESEARCH may assign the Contract (i) to an affiliate
controlled by, controlling or under common control with MERGER
RESEARCH, or
(ii) in connection with a merger or consolidation (so long as the assignment
is to the newly merged or consolidated entity) or the sale of substantially
all of its assets (so long as the assignment is to the acquirer of such
assets).
3.8 Counterparts. By accessing this website, the Licensee agrees that this
Contract will have the same validity as though it were a written and signed
contract.
3.9 Amendment; Waiver. This Contract may be amended, modified, superseded or
canceled, and any of the terms may be waived, only by a written instrument
executed by the Licensee and an officer of the Company or, in the case of
waiver, by the party or parties waiving compliance and only in writing. The
delay or failure of any party at any time or times to require performance of
any provisions shall in no manner affect the rights at a later time to
enforce the same. No waiver by any party of any condition or of the breach
of any term contained in this Contract, whether by conduct, or otherwise, in
any one or more instances, shall be deemed to be, or considered as, a
further or continuing waiver of any such condition or of the breach of such
term or any other term of this Contract.
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