License Agreement
Updated: December 30, 2010 (Section 8.5)
ASP SUBSCRIPTION AGREEMENT
This Subscription Agreement for Application Services (this "Agreement") governs Your access to and use of certain computer software and data installed, operated and maintained by List Partners, Inc. (DBA The List)(the "ASP"), as set forth below.
1 Definitions
1.1 Software: ASP's proprietary computer software offered under the brand name THE LIST ONLINE which resides on ASP's host computer.
1.2 Host Computer System: Computer system containing and running the Software that is accessible via the internet, maintained by or on behalf of ASP.
1.3 Client Computer: Internet connected computer allowing You to access the Software and Information on the Host Computer System.
1.4 Information: Data and information made available to a Subscriber through the Software.
1.5 Initial Term: The Initial Term of this Agreement will be for the term set out in the Purchase Order.
1.6 Subscriptions: The number of subscriptions to the Software as set forth in the Purchase Order.
1.7 Subscriber: A single individual who has completed the subscription process and provided all requested account information and who has permission to access the Software using a unique username and password.
1.8 Contact: A record in ASP's database accessible thorough the Software corresponding to a single person, which record may include the person's name, mailing address, title, phone number and/or email address.
2 Access to the Software.
2.1 ASP hereby grants you a nonexclusive, nontransferable, limited license to access and use the Software and Information on the Host Computer System, subject to the terms and conditions of this Agreement.
2.2 ASP will provide all equipment, software and services necessary for operation and maintenance of its Host Computer System. ASP reserves the right to change the configuration of its systems and change or delete equipment or software at any time.
2.3 ASP agrees to install, operate and maintain the Software on the Host Computer System, pursuant to the terms and conditions of this Agreement.
2.4 You are solely responsible for providing the Client Computer.
3 Scope of Use.
3.1 The Software and Information may be used only by You, Your officers or employees, for your internal business requirements, performing administrative functions pertaining thereto and for no other purpose. You agree that You will not allow any third parties, except as provided above, who are not Your officers or employees to use, view, or otherwise access the Software or Information.
3.2 Access to The Software is available only to the maximum number of designated and named Subscriptions purchased. Should additional Subscriptions be required, You must notify ASP, complete registrations for such additional Subscriber, and arrange for the additional payment of fees for the additional Subscription(s).
3.3 Only registered Subscribers are permitted to access the Software. You specifically acknowledge that this Agreement is not a concurrent-use license.
3.4 You agree and acknowledge that You and Your Subscribers may not share any passwords or other information required to access The Software with any other person. In the event a Subscriber's duties are changed, You may transfer a Subscription to a new Subscriber for no additional cost after registering the new Subscriber with ASP.
3.5 You will provide complete and true information about each Subscriber upon registration. If there are any changes to the information, You are solely responsible to notify ASP of such changes. If You provide false or incomplete information about a Subscriber ASP may immediately suspend or terminate this License.
3.6 If ASP determines that You have exceeded the maximum number of Subscriptions, You will have two (2) days to either upgrade your license to the level of service required or limit access to the number of Subscriptions purchased. If violations continue, ASP reserves the right to suspend or terminate your license without further notice or refund.
3.7 You are responsible for any and all activity by Your Subscribers regarding their access and use of the Software, as well as for maintaining the confidentiality of and the use of user names and passwords.
3.8 You are limited to 500 page views in a 24-hour period and 5000 page views during each License year. If you desire additional page views for legitimate purposes You may contact ASP for assistance and/or special authorization.
3.9 You are provided a download allocation with this annual license. The allocation is shown on the Your Information page of the Software, which is accessible via the Dashboard. Contacts may be downloaded by Company or Location, or as part of a "batch download". Once the allocated downloads are used, You may purchase additional downloads. If You renew this license, unused downloads from the original allotment will expire, and the amount allocated for the next year will be re-set according to the amount paid for the renewal license. If You have unused download credits paid for separately during the prior subscription year, these credits will roll over and be available in the subsequent year. If you do not renew this license, paid for but unused download credits may be refunded upon written notice to ASP, less a $50 processing fee.
3.10 Except as expressly permitted herein, You agree not to sublicense, license, rent, sell, loan, give or otherwise distribute all or any part of the Software to any third party.
3.11 If You are merged, consolidated or sold, or if You sell or transfer all or substantially all of Your assets relating to the use of the Software, You shall have the right to transfer Your rights and obligations under this Agreement to the surviving or buying entity only on prior written consent of ASP, and the successor must assume the terms and conditions of this Agreement in a manner acceptable to ASP, and the scope of use of the Software may not be substantially altered.
4 Restrictions
4.1 The Information available through The Software is the property of ASP and is protected by United States copyright and other intellectual property laws. You specifically acknowledge that the Information and collection of Information is ASP's valuable trade secrets, and that ASP derives value from the Information not being generally known.
4.2 Information You access or download from The Software may be displayed and printed for Your in-house use only. You may not reproduce, retransmit, photocopy, distribute, disseminate, publish, broadcast or circulate the Information to anyone, directly or indirectly, other than Your officers, employees or agents. You will notify in writing all of Your Subscribers of these restrictions.
4.3 You and Your Subscribers may not share any usernames or passwords with any persons not authorized to access the Software and Information.
4.4 You may not to reverse engineer, disassemble, decompile, modify, or alter the Software, or any copy thereof, in whole or in part.
4.5 The Information comprises: (i) works of original authorship, including compiled information containing ASP's selection, arrangement and coordination and expression of such Information or pre-existing material it has created, gathered or assembled; (ii) trade secret and other confidential information, including information that derives value or potential value from not being readily known or available; and (iii) information that has been created, developed and maintained by ASP at great expense, such that misappropriation or unauthorized use by others for commercial gain would unfairly and/or irreparably harm ASP or reduce ASP's incentive to create, develop and maintain the Information. You will not commit or permit any act or omission that would contest or impair ASP's proprietary and intellectual property rights in information available through the Software, that would cause the Information to become generally known, or that would cause the Information or ASP to infringe the proprietary or intellectual property rights of a third party.
4.6 You may distribute Information within Your company solely for your own exclusive, confidential and internal use during the term of the License Agreement. You will use such information in compliance with any and all applicable Federal and state laws, including without limitation those laws concerning fax broadcasts, email transmissions (in particular the CAN-SPAM Act, including the creation and proper use of house email suppression lists), and direct marketing. You are specifically prohibited from: (a) using or permitting the use of Information to prepare an original database or a comparison of the Software to other databases that are sold, rented, published, or furnished in any manner by or to a third party; (b) using or permitting the use of Information for the purpose of compiling, enhancing, verifying, supplementing, adding to, or deleting from any mailing list, business directory, or other compilation of information that is sold, rented, published or furnished in any manner to a third party; or (c) using or permitting the use of Information in connection with any individual credit, employment or insurance applications.
4.7 If you make any Information available within Your company or organization under the above policies, You must include the following notice on all printed or distributed memoranda, reports, e-mail messages, or presentations containing the Information:
Copyright � 2002-2011, List Partners, Inc.
In the case of third party materials, you may not alter or remove any trademark, copyright or other notice from copies of the content.
4.8 You may not extract Information from the Software using any automated processes, including without limitation through the use of "spiders," "bots" or "scrapers."
4.9 Subscribers may not post any Information to newsgroups, mail lists, electronic bulletin boards, or business or social networking services.
4.10 ASP retains the right to monitor all of Your Subscribers to ensure compliance with this Agreement's terms and conditions. You acknowledge and agree that, if a violation of any provision contained in this Section 4 occurs or is threatened, such violation or threatened violation will cause irreparable injury to ASP and that the remedy at law for any such violation or threatened violation may be inadequate. Therefore, in the event of such violation or breach, You acknowledge that ASP is entitled to an immediate injunction against further improper use or distribution of the Information, in addition to all other rights and remedies available to it, including, without limitation, recovery of damages.
5 Initial Term and Renewal.
5.1 The initial term of this Agreement shall be for twelve (12) months, unless stated otherwise in the Purchase Order.
5.2 Renewals for all Licenses will be on the anniversary date of the activation of the License. ASP will contact You at least thirty (30) days prior to this date to review the terms for renewal of the License.
6 Fees.
6.1 You will pay the annual subscription fee agreed upon by You with ASP. ASP may change its prices following the initial one-year period, provided ASP notifies You at least thirty days in advance of the change.
6.2 All Licenses are annual contracts. Payment in full is required prior to activation or renewal of Your license.
6.3 Your annual subscription fee is non-refundable.
7 Representations and Warranties.
7.1 ASP represents and warrants that: (i) it has the right and authority to grant this license to access and use the Software and Information and to enter into this Agreement, (ii) the Software shall not contain any time bomb, trojan horse, virus or other harmful or disabling code, (iii) when used as permitted by this License Agreement, The Software and Information shall not violate any third party's intellectual property or proprietary rights, (iv) The Software shall be available at substantially all times and (v) The Software shall comply with all applicable laws, rules and regulations, plus the terms and conditions of third parties to which it is subject.
7.2 Due to the number of sources from which Information is obtained and the inherent hazards of electronic distribution, there may be delays, omissions or inaccuracies in the Information.
7.3 Links or pointers to other Web sites and references to products and services offered by third parties are provided to You for convenience only and do not constitute an endorsement or approval by ASP of (i) the organizations that operate such Web sites; (ii) the content, privacy policies or other terms of use on such Web sites; or (iii) such third party products and services. Because ASP has no control or responsibility over Web sites or content maintained by other organizations, or for products and services offered by third parties, ASP does not assume any liability for Your use of any of the foregoing, which You acknowledge and agree shall be at its own risk.
7.4 Neither YellowBrix, a distributor of news and financial information [not available to List Online Basic subscribers], nor any third-party licensor shall have any liability for the accuracy or completeness of the service or any component thereof or for delays, unauthenticity, omissions or other defects therein nor for any claims or losses arising therefrom or occasioned thereby, including without limitation, any lost profits, indirect, special or consequential damages. Either YellowBrix or third-party licensors have exclusive proprietary rights in the information received via the service. You shall not use or permit anyone to use the information provided through the service for any unlawful or unauthorized purpose. You are not authorized or permitted to furnish such information to any person or firm for reuse or retransmission without prior written approval of YellowBrix. Provision of the information on the service is subject to termination in the event that any agreement between a third-party licensor and a provider of information distributed through the service is terminated in accordance with its terms. YellowBrix, third-party licensors and their subsidiaries, affiliates, information providers and content partners shall have no liability for investment or other decisions based on the information provided hereby.
7.5 ASP does not warrant that operation of the Software shall be uninterrupted or error free or that it shall meet Your needs. You are solely responsible for the accuracy and integrity of Your own instrumentation, data, reports, documentation and security.
7.6 You acknowledge that the proper functioning of the Software may rely on the availability of third-party computers, web sites, or information. In the event any such third-party computer, web site, or information is unavailable for any reason whatsoever, (a) you acknowledge that ASP is not responsible and that such unavailability does not constitute a breach of this agreement by ASP; and (b) ASP agrees to take reasonable steps to restore access to the Software in a timely manner.
7.7 Your exclusive remedy, and ASP's sole obligation, in the event of any warranty claim or any other contract deficiency shall be for ASP to repair the defect in the Software in a timely manner. If ASP fails to repair the defect in the Software in a timely manner, Your sole remedy is a pro rata refund of any unused portion of Your annual subscription fee.
7.8 EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION, NO WARRANTY OR ASSURANCE, EXPRESS, IMPLIED, OR STATUTORY, IS GIVEN BY ASP WITH RESPECT TO SOFTWARE, INFORMATION, OR ANY OTHER MATTER, INCLUDING, WITHOUT LIMITATION (AND ASP SPECIFICALLY DISCLAIMS) ALL WARRANTIES OF TITLE, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
7.9 THE LIST, AND ITS AFFILIATES, AGENTS AND LICENSORS CANNOT AND DO NOT WARRANT THE ACCURACY, COMPLETENESS, CURRENTNESS, NONINFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE OF THE INFORMATION AVAILABLE THROUGH THE SOFTWARE, OR THE SOFTWARE ITSELF. ACCESS TO THE SOFTWARE IS PROVIDED TO YOU ON AN "AS IS" BASIS WITHOUT GUARANTEE OR WARRANTIES.
8 Limitation of Liability and Indemnification.
8.1 IN NO EVENT SHALL ASP BE LIABLE TO YOU, WHETHER IN CONTRACT OR IN TORT OR UNDER ANY OTHER LEGAL THEORY (INCLUDING, WITHOUT LIMITATION, STRICT LIABILITY AND NEGLIGENCE) FOR LOST PROFITS OR REVENUES, LOSS OR INTERRUPTION OF USE, LOST OR DAMAGED DATA, REPORTS, DOCUMENTATION OR SECURITY, OR SIMILAR ECONOMIC LOSS, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR SIMILAR DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THE PERFORMANCE OR NON-PERFORMANCE OF THIS AGREEMENT, OR FOR ANY CLAIM MADE AGAINST YOU BY ANY OTHER PARTY, EVEN IF ASP HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH CLAIM.
8.2 NEITHER ASP, NOR ANY OF ITS AFFILIATES, AGENTS OR LICENSORS SHALL BE LIABLE TO YOU OR ANY OTHER THIRD PARTY FOR ANY LOSS OR INJURY CAUSED IN WHOLE OR IN PART BY ITS NEGLIGENCE OR CONTINGENCIES BEYOND ITS CONTROL IN PROCURING, COMPILING, INTERPRETING, REPORTING OR DELIVERING THE INFORMATION THROUGH THE LIST ONLINE.
8.3 IN NO EVENT WILL ASP, ITS AFFILIATES, AGENTS OR LICENSORS BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY DECISION MADE OR ACTION TAKEN BY YOU AND/OR ANY THIRD PARTY IN RELIANCE ON ANY INFORMATION, OR FOR ANY LOST PROFITS, CONSEQUENTIAL, SPECIAL OR SIMILAR DAMAGES, EVEN IF ADVISED OF THE POSSIBLITY OF SUCH DAMAGES.
8.4 YOU AGREE THAT THE LIABILITY OF ASP, ITS AFFILIATES, AGENTS AND LICENSORS, IF ANY, ARISING OUT OF ANY LEGAL CLAIM (WHETHER IN CONTRACT, TORT OR OTHERWISE) IN ANY WAY CONNECTED WITH THE SOFTWARE OR THE INFORMATION PROVIDED BY ASP SHALL NOT EXCEED THE AMOUNT YOU PAID TO THE LIST FOR USE OF THE SOFTWARE IN THE TWELVE (12) MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY. YOU MUST BRING ANY SUCH CLAIMS WITHIN 12 MONTHS OF THE FIRST TO OCCUR OF (A) THE TERMINATION OR EXPIRATION OF THIS AGREEMENT, OR (B) THE FIRST OCCURRENCE GIVING RISE TO SUCH CLAIMS.
8.5 ASP AGREES TO DEFEND, INDEMNIFY AND HOLD YOU AND YOUR PARENT, SUBSIDIARIES, OFFICERS, AND EMPLOYEES HARMLESS FROM AND AGAINST ANY AND ALL DAMAGES, LOSSES, CLAIMS, ACTIONS, COSTS, LIABILITIES AND EXPENSES (INCLUDING REASONABLE ATTORNEYS' FEES) RESULTING FROM ANY THIRD PARTY CLAIM THAT THE SOFTWARE OR INFORMATION PROVIDED BY ASP IS THEIR TRADE SECRET(S), INFRINGES THEIR INTELLECTUAL PROPERTY RIGHTS, OR WAS COLLECTED OR DISTRIBUTED BY ASP IN VIOLATION OF ANY APPLICABLE LAW OR CONTRACT, AND THE LIMITATIONS OF LIABILITY SET FORTH ABOVE SHALL NOT APPLY TO DAMAGES ARISING FROM ANY SUCH CLAIM.
9 Termination.
9.1 Either Party may terminate this Agreement without cause on thirty days written notice to the other Party. If ASP terminates this Agreement without cause, ASP will refund to You the remaining portion of Your annual subscription fee.
9.2 ASP may terminate this Agreement and Your access to the Software and Information immediately, without further notice, for a violation of any provision of Sections 4 of this Agreement.
9.3 Either Party may terminate this Agreement on written notice of a material breach of any of the breaching Party's obligations, restrictions, representations or warranties, provided, however, that the breaching Party shall have thirty days from receipt of the notice to cure the breach. If ASP fails to cure a breach as required in this paragraph, ASP will refund to You the remaining portion of Your annual subscription fee.
9.4 Upon termination of this License Agreement for any reason, You will immediately cease all access and use of the Software and Information and destroy any documents containing the Information or data derived through the use of the Software, and will provide ASP with documentation of such destruction upon request
9.5 Upon termination of this Agreement for any reason, Your obligation to pay any future subscription fees is terminated. However, You will not be entitled to a refund of any subscription fees already paid to ASP except as provided in paragraphs 9.1 and 9.3.
10 Miscellaneous.
10.1 ASP may change the terms of this Agreement at any time by notifying you of the change in writing or electronically. The changes also will appear in this document, which you can access at any time via the Software. You agree to be bound to such changes by using the Software after changes are made to this Agreement.
10.2 Force Majeure. Neither party shall be responsible for failures or interruptions of communications facilities or equipment of third parties, electricity shortages, blackouts, or power failures, labor strikes or slowdowns, shortages of resources or materials, natural disasters, world events, acts of terrorism, delay or disruption of shipment or delivery, trespass or interference of third parties, or similar events or circumstances outside its reasonable control.
10.3 This License Agreement is specific to You and your Subscribers, and You may not assign Your rights or obligations to another entity without the prior written consent of ASP. In the event of the purchase of substantially all of Your equity interests or assets, the purchaser may assume Your rights under this License Agreement.
10.4 If any provision of this License Agreement is invalid under applicable law, the remaining provisions will continue in full force and effect.
10.5 This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of Georgia excluding its principles of conflicts of law. You consent to the jurisdiction of the applicable state and federal courts in Georgia for any legal action arising out of an alleged breach of this Agreement.
10.6 If one Party obtains a judgment against the other Party in a legal action for breach of this Agreement, the breaching Party will pay all costs and expenses, including reasonable attorneys' fees that the prevailing Party incurs.
10.7 This Agreement constitutes the entire agreement between the parties, and may not be amended except in writing and signed by both parties hereto.
You hereby accept the foregoing terms and conditions of this Agreement by clicking Accept and using the Software and Information.
