Terms and Conditions
PUBLICATIONS TERMS AND CONDITIONS
1.1. These terms and conditions (the “Terms and Conditions”) set out the agreement between us in relation to the materials you (the “Licensee”) license, or the services you purchase, from FutureMetrics LLC (“FutureMetrics”). They should be read together with any order form (and its schedules) entered into between the Licensee and FutureMetrics from time to time (each, an “Order Form”), and these Terms and Conditions together with all relevant Order Forms shall constitute the “Agreement.”
1.2. The materials licensed by the Licensee may be FutureMetrics reports, newsletters and other publications (including any Data comprised therein), whether in electronic, print or other format (collectively, “Publications”) described in the Order Form or by bilateral communications between FutureMetrics and/or its agent, and the Licensee. The materials identified in the relevant Order Form or by bilateral communications between FutureMetrics and/or its agent, and the Licensee shall be the “Licensed Materials.
- DELIVERY OF THE LICENSED MATERIALS
2.1. FutureMetrics or its agent will deliver the Licensed Materials to the Licensee at the delivery email address in the Order Form or based on bilateral communications between FutureMetrics and/or its agent, and the Licensee (the “Delivery Address”),
2.2. FutureMetrics may, in its sole discretion, cease supply of all or any of the Licensed Materials or change their format, names, content or frequency at any time. No later than the date when FutureMetrics notifies any other third party of such cessation or change it will notify the Licensee.
2.3. The Licensee shall ensure that all usernames and passwords, if applicable, allocated to the Licensee and/or any authorized user named in the Order Form (each, an “Authorized User”) for the purpose of accessing Licensed Materials shall be kept confidential and shall not be disclosed to any other party. The Licensee shall immediately notify FutureMetrics on becoming aware that any username or password has become known to or used by any other person. FutureMetrics may at any time require the Licensee or any Authorized User to change any allocated username or password for any reason.
- USE OF THE LICENSED MATERIALS
3.1. Subject to FutureMetrics’ rights and remedies under this Agreement, FutureMetrics grants to the Licensee a personal, non-exclusive, non-transferable, non-assignable right for the Authorized Users to use the Licensed Materials at the “Location/Company” (as defined in the transaction agreement). The Licensee may only use the Licensed Materials for the purposes expressly permitted by this Agreement.
3.2. Unless expressly permitted by these Terms and Conditions, the Licensee will not:
188.8.131.52. reproduce, copy, circulate, distribute, transmit, make available, enter into any computer or computer network (or procure or permit the same) of any of the Licensed Materials any information which is identifiable as being a part of, or deriving from, the Licensed Materials; or (b) merge Licensed Materials with other data or information, alter, modify or manipulate Licensed Materials or incorporate Licensed Materials into any other publication, document, index, formula or other materials (in any media) or otherwise create any derivative works; or (c) create a searchable archive or other information retrieval system or database using the Licensed Materials; or (d) use Licensed Materials in connection with any financial instrument the price of which is calculated by reference to any Data; or (e) reverse engineer, disassemble, decompile or store any software used in the delivery or making available of the Licensed Materials or (f) use the Licensed Materials for any purpose other than as expressly provided for under this Agreement.
3.3. Notwithstanding any Permitted Uses, the Licensee agrees that the Licensee is not entitled to publish, distribute or otherwise make available for use by any unauthorized party any data supplied without the express written approval of FutureMetrics.
3.4. The Licensee agrees that any obligation or restriction on the Licensee is deemed to include an obligation on the Licensee to procure that the Authorized Users also do or refrain from doing such act or thing. The Licensee shall be liable for the acts and omissions of the Authorized Users as if they were the acts and omissions of the Licensee.
3.5. The Licensee shall permit or procure permission for FutureMetrics, its agents or authorized representatives to inspect and have access to any premises, and to the computer equipment located there, at or on which the Licensed Materials or any part thereof are being stored or used, and any records kept whether pursuant to this Agreement or otherwise, for the purposes of ensuring that the Licensee is complying with the terms of this Agreement, provided that FutureMetrics provides reasonable advance notice to the Licensee of such inspections, which shall take place at reasonable times. Except where the Licensee is (or FutureMetrics has reasonable grounds to suspect the Licensee is) in breach of any obligation under this Agreement, FutureMetrics’ right to inspect pursuant to this clause may only be exercised once during the Subscription Period. (“Subscription Period” means, in relation to some Order Forms, the “Subscription Period” (as defined in the Order Form) and any “Renewal Period” (as defined in clause 6.1)).
3.6. FutureMetrics may, in its sole discretion, use software, digital rights management tools, electronic watermarks, cookies, web beacons, email tracking tools or services or any other similar tools or services that may be available from time to time, including tools provided and operated by third parties (collectively, “DRM Tools”) and any information or data received by FutureMetrics under this Agreement to enable it to monitor and record the use of the Licensed Materials for the sole purpose of protecting and enforcing its rights under this Agreement including its IPR, as defined in clause 5.1 below, in and to the Licensed Materials and the FutureMetrics Marks, as defined below. As required by applicable law, the Licensee will obtain the consent of the Authorized Users to the use of DRM Tools by FutureMetrics. The Licensee will not disable, circumvent or attempt to disable or circumvent any DRM Tool used by FutureMetrics.
- PAYMENT TERMS
4.1. If the Licensed Materials are purchased from FutureMetrics, the Licensee shall pay the license fee set out in the Order Form (the “License Fee”) in full to FutureMetrics at the time of order. The Licensee shall pay such License Fee into any bank account and by any method of payment reasonably requested by FutureMetrics.
4.2. The commencement date is the date upon which the Licensee received the Licensed Materials. On expiry of the Subscription Period or any Renewal Period, if applicable, FutureMetrics shall be entitled to increase the License Fee with effect from the beginning of the next Renewal Period, provided that FutureMetrics notifies the Licensee of any such increase more than thirty (30) days before the commencement of the applicable Renewal Period. Subject to the provision of such notice (where required), FutureMetrics shall be entitled to submit an invoice in respect of the License Fee for each Renewal Period up to sixty (60) days in advance of the relevant Renewal Period.
4.3.Without prejudice to any other remedy that may be available to FutureMetrics, FutureMetrics will be entitled to charge interest of 2% above the Prime Rate as published in the Wall Street Journal in force at the relevant time in respect of any overdue payment.
4.4. The License Fee is not refundable, whether in whole or in part, for any reason except where FutureMetrics discontinues any of the Licensed Materials. In cases of discontinuance, FutureMetrics shall repay to the Licensee any part of the License Fee paid to FutureMetrics in advance in respect of any discontinued Licensed Materials that relates to a period following the date of such discontinuance.
4.5. FutureMetrics may (at its sole discretion) offer discounts to the Licensee from time to time. The Licensee understands that (a) the License Fee may include a discount and any increase to the License Fee will not automatically lead to a discount or further discount (as the case may be); and (b) all discounts applied to the License Fee for the previous year of the Subscription Period are discretionary and are subject to alteration and withdrawal with effect from the beginning of the next Renewal Period.
- INTELLECTUAL PROPERTY RIGHTS
5.1. As between FutureMetrics and the Licensee, notwithstanding any Permitted Use set out in these Terms and Conditions, all IPR, as defined below in and to the Licensed Materials and the FutureMetrics Marks are and shall remain the exclusive property of FutureMetrics. For the avoidance of doubt, the Licensee agrees that this clause 5.1 prevails over any term or provision in an Order Form. “IPR” means all copyrights and related rights (including rights in software), moral rights, trademarks and service marks, trade names and domain names, rights in get-up, rights to goodwill or to sue for passing off or unfair competition, database rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world. “FutureMetrics Marks” means the name FutureMetrics and FutureMetrics’ logos, and any other registered or unregistered trademarks included within any of the Licensed Materials from time to time.
5.2. Save as expressly set out in clause 3.1, nothing in this Agreement will be construed as granting, assigning, creating or transferring to the Licensee or any Authorized Users any right, title or interest in or to the IPR relating to the Licensed Materials and/or the FutureMetrics Marks. The Licensee will promptly notify FutureMetrics of any breach of this Agreement and will provide to FutureMetrics any assistance and information requested by FutureMetrics from time to time in relation to any breach of this Agreement and/or infringement of FutureMetrics’ IPR.
6. TERM, TERMINATION AND SUSPENSION
6.1. This Agreement begins on the Commencement Date and, if applicable, continues for the duration of the Subscription Period. For subscription based products, on expiry of the Subscription Period, this Agreement shall automatically be renewed for successive periods of twelve (12) months (each, a “Renewal Period”) unless terminated by either party giving written notice to the other no less than thirty (30) days before the expiry of the Subscription Period, or Renewal Period unless terminated earlier in accordance with this clause 6.
6.2. FutureMetrics is entitled to suspend the provision of some or all of the Licensed Materials immediately if FutureMetrics has reasonable grounds to believe that there has been a breach of the terms of this Agreement by the Licensee.
6.3. FutureMetrics is entitled to terminate this Agreement (in whole or in part) immediately, by written notice to the Licensee, if: (a) the Licensee is in material or persistent breach of any of its obligations under this Agreement and has not remedied such breach (if capable of remedy) within fourteen (14) days of written notice from FutureMetrics detailing such breach; (b) there is an order or a resolution passed for the liquidation, administration, dissolution or winding up of the Licensee; or (c) there is a change of Control of the Licensee (where “Control” means the power of a person to secure that the Licensee’s affairs are conducted in accordance with the wishes of that person).
- CONSEQUENCES OF TERMINATION
7.1. Following termination of this Agreement for whatever reason: (a) FutureMetrics shall no longer be obliged to supply, and shall no longer supply or otherwise make available any of the Licensed Materials to the Licensee or Authorized Users; (b) the Licensee shall immediately pay to FutureMetrics any sums that have become due for payment; and (c) clauses 1, 3, 4, 5, 7, 8, 9.3, 10, 11 and 12 shall survive such termination. Termination of this Agreement by FutureMetrics shall not affect any liability under this Agreement on the part of the Licensee that may then be subsisting or accrued, or any obligation of a continuing nature, including payment under clause 4.
7.2. In the event that the agreement between FutureMetrics the Licensee terminates for whatever reason prior to the end of the Subscription Period or expires, the Licensee shall no longer have the right to, and shall immediately cease to, receive the Licensed Materials from the Data Provider following the date of such expiry or termination.
- WARRANTIES AND LIABILITIES
8.1. Each party warrants to the other that it has the necessary authority to enter into and perform its obligations under this Agreement.
8.2. The Licensee acknowledges that FutureMetrics compiles the Licensed Materials from numerous sources, some of which are third parties outside its control. FutureMetrics gives no warranty, representation or other guarantee that the contents of the Licensed Materials (or any of the information contained within them) are in sequence, accurate, up-to-date or complete, or that the Licensed Materials and any means of delivering them are without defect or error. The Licensee acknowledges and agrees that the Licensed Materials are provided on an “as is” basis and that FutureMetrics shall not be liable to the Licensee nor to any other person (a) for any inaccuracies, errors, or omissions contained in the Licensed Materials or (b) for any loss or damage (whether direct, indirect, incidental or consequential) suffered by the Licensee or any other person.
8.3. FUTUREMETRICS HEREBY EXCLUDES ALL WARRANTIES, TERMS AND CONDITIONS THAT MIGHT BE IMPLIED OR OTHERWISE INCORPORATED INTO THIS AGREEMENT WHETHER BY STATUTE, COMMON LAW OR OTHERWISE, INCLUDING ANY WARRANTIES AS TO MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OF THE LICENSED MATERIALS OR ANY OTHER SERVICE PROVIDED BY FUTUREMETRICS UNDER OR IN CONNECTION WITH THIS AGREEMENT.
8.4. The Licensee shall, on written demand, indemnify and keep FutureMetrics fully indemnified from and against any loss, damage (including claims for statutory damages), claims, costs and expenses (including legal and other professional costs and expenses), and liabilities suffered or incurred by FutureMetrics arising out of or in connection with any unauthorized use or redistribution of any of the Licensed Materials. In addition to any other rights or remedies that FutureMetrics may have, the Licensee agrees that FutureMetrics shall be entitled to the remedies of injunction, specific performance or other equitable relief for any actual or threatened breach by the Licensee of the terms of this Agreement.
8.5. Subject to clause 8.7, the total aggregate liability of FutureMetrics, its employees, sub- contractors and agents, to the Licensee or any other party arising out of or in connection with this Agreement will in no event exceed the total amount actually paid by the Licensee to FutureMetrics under the relevant Order Form during the Subscription Period or Renewal Period (as applicable) in which the claim arose.
8.6. Nothing in this Agreement shall be construed as limiting the liability of either party for fraud or for death or personal injury caused by that party’s negligence.
- DATA PROTECTION
9.1. The parties recognize that certain information that the Licensee provides to FutureMetrics, or which is collected by FutureMetrics, in connection with this Agreement may be considered “Personal Data”. The Licensee consents to the provision to FutureMetrics, or collection by FutureMetrics, of such information.
9.2. The Licensee acknowledges and agrees that FutureMetrics may use Personal Data from time to time: (a) to the extent necessary to enable FutureMetrics to perform its obligations or protect or enforce its rights under this Agreement; (b) to offer the Licensee, the Authorized Users, or any of their employees additional products and services provided by the FutureMetrics or any third party partner of FutureMetrics (each, an “FutureMetrics Partner”) (including any such companies that are located outside of the United States); (c) for disclosure to the FutureMetrics or any FutureMetrics Partner (including any such companies that are located outside of the United States), for any purpose connected with this Agreement, including the maintenance of a central database of customers.
9.3. The Licensee warrants that it has obtained all necessary consents to the use of Personal Data in accordance with this Agreement.
10.1. Save as permitted under this Agreement, the Licensee will keep confidential and will not disclose, procure or permit the disclosure of any Confidential Information, as defined below, to any party, without the prior written consent of FutureMetrics. “Confidential Information” means the terms of this Agreement, each part of the Licensed Materials and all other information, documentation, data or material (in any form or media, whether oral or written) acquired by the Licensee (whether before or after the Agreement date and whether directly or indirectly) as a result of negotiating, entering into or performing this Agreement, which relates to the affairs or business of the FutureMetrics or its products, operations or know-how.
11.1. Any notice or other communication given or required under this Agreement shall be in writing and sent by email, first class post or express courier to the applicable address in the relevant Order Form (or otherwise as notified to the other party from time to time). When a notice is sent to FutureMetrics by email, such email must be copied to Michele@FutureMetrics.com (or such other address as notified to the Licensee from time to time). Any notice served in accordance with this Agreement shall be deemed to have been received: (a) in the case of an email, immediately on sending; and (b) in the case of first class post, on the date falling two business days after the date on which such notice is sent; and (c) in the case of express courier, on signature of a delivery receipt or at the time the notice is left at the address.
- GENERAL CONDITIONS
12.1. This Agreement constitutes the entire, complete and exclusive agreement, and supersedes any previous agreement, arrangement, representations or understanding (whether oral or written), between the parties relating to its subject matter. Each party acknowledges that, in entering into this Agreement, it has not relied on any representation or warranty not set out in this Agreement.
12.2. If any provision of this Agreement is, to any extent, invalid or unenforceable that will not affect the validity or enforceability of the remainder of the provision, or of any other provision
12.3. The Licensee shall (and shall procure that all other relevant persons shall) do all acts within its power and/or execute all documents in a form satisfactory to FutureMetrics as FutureMetrics may from time to time reasonably request in order to implement this Agreement.
12.4.Neither party may assign this Agreement without the written consent of the other, which consent shall not be unreasonably withheld.
12.5.Neither party shall be liable to the other for any failure or delay in the performance of its obligations under this Agreement caused by any circumstances beyond its reasonable control, whatever their nature.
12.6. A failure to exercise or delay in exercising any right, remedy or power provided under this Agreement or by law does not constitute a waiver of the right, remedy or power or a waiver of any other right, remedy or power. No single or partial exercise of any right, remedy or power prevents any further exercise of it or the exercise of any other right, remedy or power. Any waiver of a breach of any of the terms of this Agreement or of any default under this Agreement shall not be deemed a waiver of any other breach or default and shall not affect the other terms of this Agreement.
12.7. This Agreement may be executed and delivered in any number of counterparts, each of which is an original and which, together, have the same effect as if each party had signed the same document.
12.8. This Agreement, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with, Maine law, without regard to any conflict of laws principles thereof and the parties irrevocably submit to the exclusive jurisdiction of the federal and state courts of Augusta, Maine.