1. License Grant.
During the Term hereof as defined in The RainKing Agreement, Licensee is granted a restricted license to access and use the Database on the following terms: (a) access will be limited to the number of Permitted Users listed on The RainKing Agreement , which may be amended from time to time but not more frequently than once a month, (b) Licensee’s rights are personal, non-transferable, non-sublicensable, non-exclusive; and (c) access and use of the Database may be terminated and this license revoked by Licensor upon any material breach by Licensee of this User Access & License Agreement (this “Agreement”.) Licensor shall provide one or more passwords or other information necessary to permit access. The term “Database” shall mean the information collected and compiled by Licensor and the individual Functionality Modules licensed in The RainKing Agreement, and the interface as accessed via the Internet on the Licensor’s web site at www.rainkingonline.com (the “Site”). The Database and all other services provided by RainKing are the “Services.” Licensee acknowledges that Licensor has no control over the information or materials that Licensee sends. Licensee shall take appropriate precautions by instruction or agreement of Licensee’s employees permitted access to the Database to ensure that they take no action inconsistent with Licensee’s obligations under this Agreement. Licensee may not use or transmit any portion of the Database and/or downloaded information electronically or otherwise, unless such use or transmission specifically relates to the Licensee’s business and which specifically complies with this Section 1. Licensee agrees to follow all country specific regulations with regards to data privacy when using the European data. Finally, in addition to any other legal rights, whether in equity or at law, the Licensor may have against Licensee for its use of the Database in breach of this Section 1, the Licensor has the right to immediately terminate this Agreement pursuant to Section 4 and Licensee forfeits all its rights to any refund of fees paid to Licensor.
Licensor, and its providers, are the sole owners of the content, layout, functions, features, code, appearance, patents, copyrights, derivative works thereof, trademarks, trade secrets and other proprietary rights that form a part of, or are otherwise related to, the Database and the interface (collectively, the “RainKing Intellectual Property”). The Database, and the information contained therein, is a proprietary asset of the Licensor and includes trade secrets of Licensor. Licensee does not and will not have any ownership rights in the Database or any part thereof. Information from the Database that Licensee prints, saves or incorporates into other materials is solely licensed (not transferred) to Licensee. The Licensee shall not use the RainKing Intellectual Property, “RainKing” trademark or trade name in any manner without Licensor’s prior written consent.
3. Disclaimer and Warranties.
Licensor provides a 95% contact accuracy guarantee. If licensee finds at any time during the term that specific data is not accurate to a 95% level, licensor will have 30 days to correct the identified data. If data is not corrected within 30 days, licensee will receive a pro-rata refund of all fees paid. Except as expressly stated in this agreement, there are no warranties, conditions, guaranties or representations regarding the content, whether express or implied, in law or in fact, oral or in writing. Not in limitation of the foregoing disclaimers, licensor hereby disclaims and states that , (a) licensor makes no warranty that the site or services, and access thereto, will be uninterrupted, secure or error free; (b) licensee’s use of the site is at licensee’s own risk, and licensee’s reliance on any information posted on the site is at licensee’s own risk; (c) licensor makes no warranty, express or implied, as to the adequacy, truth, completeness, accuracy or timeliness of the content; (d) licensor expressly disclaims all express, implied and statutory warranties, including without limitation, the implied warranties of merchantability, fitness for a particular purpose, title and non-infringement; (e) licensor further expressly disclaims all warranties arising from usage of trade and course of dealing; and (f) licensor does not warrant that the services will meet licensee’s requirements or that the services will operate in combination with other software or services. Licensor will use commercially reasonable efforts to ensure that the information in the database will be updated for accuracy by licensor at least semi-annually and that the database will be accessible to and usable by licensee at least 95% of the time each month.
4. Term and Termination.
The term of this Agreement is specified in Exhibit A (“Term”). Either party may terminate this Agreement immediately, without further obligation to the other party, in the event of (a) a material breach of this Agreement by the other party that is not remedied within twenty-one (21) days after the breaching party’s receipt of written notice of such breach; or (b) the other party’s making of an assignment for the benefit of its creditors, the filing by the other party or its creditors of a voluntary or involuntary petition under any bankruptcy or insolvency law, under the reorganization or arrangement provisions of the United States Bankruptcy Code or under the provisions of any law of like import, or the appointment of a trustee or receiver for the other party or its property; provided, however, that Licensee’s failure to make payment when due or Licensee’s breach of its restrictions on the use of information obtained from the Database shall be grounds, at Licensor’s discretion, for immediate termination by Licensor without further liability or suspension of Licensee’s access to the Database until Licensee has cured its breach. Upon expiration or termination of this license, Licensee agrees that Licensee’s access to the Database will be automatically terminated, all passwords and individual accounts will be removed, and all information that has been uploaded into Licensor’s systems by Licensee may be destroyed.
5. Limitation of Liability.
If Licensee believes that Licensor has breached any provision of this Agreement and if Licensor cannot resolve Licensee’s concerns within twenty-one (21) days of Licensor’s receipt of written notice from Licensee of Licensor’s breach, LICENSEE’S SOLE AND EXCLUSIVE REMEDY IS TERMINATION OF THIS AGREEMENT BY WRITTEN NOTICE TO LICENSOR, AND REFUND OF A PRORATED PORTION OF THE FEES LICENSEE HAS PAID. EXCEPT IN THE EVENT OF BREACH OF THE LICENSE GRANT PROVIDED BY LICENSOR AND EXCEPT FOR EACH PARTY’S INDEMNIFICATION OBLIGATIONS, NEITHER PARTY, NOR THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, AGENTS, PARTNERS, SUCCESSORS AND PERMITTED ASSIGNS, SHALL BE LIABLE FOR ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT, EXEMPLARY, PUNITIVE OR SPECIAL DAMAGES THAT ARE DIRECTLY OR INDIRECTLY RELATED TO THE SITE OR SERVICES, OR THE INTERRUPTION OF THE SITE OR SERVICES, INCLUDING WITHOUT LIMITATION, LOSS OF REVENUE OR ANTICIPATED PROFITS OR BUSINESS OR SALES INTERRUPTION, EVEN IF A PARTY, OR A REPRESENTATIVE THEREOF, HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR ITS INDEMNIFICATION OBLIGATIONS, LICENSOR’S MAXIMUM LIABILITY TO LICENSEE SHALL BE THE AMOUNTS PAID TO LICENSOR FROM LICENSEE UNDER THIS AGREEMENT IN THE TWELVE (12) MONTHS PRECEDING THE EVENT GIVING RISE TO LICENSEE’S CAUSE OF ACTION.
Each party agrees to indemnify, defend and hold the other party, its officers, directors, employees, shareholders, agents, partners, successors and permitted assigns, harmless from and against any and all actual or threatened claims, liabilities, demands, causes of action, damages, losses and expenses, including, without limitation, reasonable attorneys’ fees and costs of suit (collectively “Claims”), arising out of or in connection with (a) such party’s (including its employees, agents and contractors) gross negligence or willful misconduct resulting in personal injury or property damage, or (b) such party’s actual or alleged violation of any foreign or U.S. (federal, state or local) law, rule or regulation; provided, however, that such indemnification, defense and hold harmless provisions shall not apply to the extent of the gross negligence or intentional acts or omissions, violations of law, or material breaches of this Agreement by the party (or any of its officers, directors, employees or contractors) claiming indemnification. In addition, Licensee agrees to indemnify, defend and hold Licensor, its officers, directors, employees and contractors harmless from and against any and all actual or threatened Claims, arising out of or in connection with (x) Licensee’s sending of any information, messages or materials to any Database Contact (including, but not limited to, through e-mail, mail or fax), or (y) the use of any Database information or Services by any third party to whom Licensee has granted access to the Database (including access obtained through use of the user names and passwords assigned to Licensee and its personnel).
7. Governing Law and Legal Remedies.
This Agreement is governed by the laws of the State of Maryland. The parties shall not bring any action or proceeding based on this Agreement more than one (1) year after the cause of action occurs. In the case that any legal action is brought under any provision of this Agreement, the prevailing party shall be entitled to recover all expenses incurred in connection with such legal action, including, without limitation, its reasonable attorneys’ fees. Violation of this Agreement will cause irreparable injury to Licensor and for breach or anticipated breach of the license grant or the restrictions on the use of the Database, Licensor may seek specific performance and/or injunctive relief in any appropriate court. Any controversy or claim arising out of or relating to this Agreement, or breach thereof, shall be brought in the Circuit Court of Montgomery County, Maryland or the Federal District Court of Maryland and each party consents to the personal jurisdiction of such courts for controversies and claims arising out of or relating to this Agreement.
This Agreement and the exhibits hereto constitute the entire agreement between Licensee and Licensor and supersedes any term or representation in all other documents. Licensor and Licensee both represent and warrant that each of them has all requisite power and authority to enter into and carry out the terms of this Agreement, that this Agreement has been duly authorized by all necessary actions. This Agreement may only be amended in a writing designated as such and signed by both parties. Any requirement in this Agreement for written notice shall occur by a party sending such notice to the other party by either overnight recognized carrier (such as FedEx, DHL, etc) or by certified first-class mail, return-receipt requested. If any provision of this Agreement is held unenforceable or invalid, the remaining provisions shall nevertheless be binding upon the respective parties hereto with the same effect as though the invalid or unenforceable provision was deleted. No delay by a party in the enforcement of, or failure to enforce, any provision or right hereunder shall operate as a waiver of such right. Nothing herein contained shall be construed to imply a joint venture, partnership or principal-agent relationship between Licensor and Licensee, and neither party shall have the right, power or authority to obligate or bind the other in any manner whatsoever, except as otherwise agreed to in writing. Licensee shall not assign, in whole or in part, this Agreement without the written consent of the Licensor. The Licensor may assign this Agreement at anytime without the Licensee’s consent. The following provisions shall survive termination of this Agreement: Sections 2, 6, 7, (for causes of action arising before termination), as well as all disclaimers, provisions regarding delinquency of payment, any provisions of the Additional Agreements intended to survive termination, and remedies for breaches of this Agreement arising prior to termination.