This Agreement is entered into by and between Online Image and Subscriber by using Online Image data products, including subsets thereof and any subsequent updates, additions, modifications, patches, and fixes (collectively "Data") from Online Image's websites, or opening a package containing the Data on digital media storage device, Subscriber accepts and agrees to the terms of this Agreement. Subscriber may not download, open, or use the Data without first executing and returning this Agreement or clicking the "I accept" button on Online Image's website, which incorporates this Agreement.
SECTION 1. GRANT OF LICENSE.
1.1 Upon payment of fees for the Data communicated to Subscriber from Online Image, and as limited by the terms and conditions set forth herein or in any subsequent modifications or addenda hereto, Online Image grants to Subscriber a nonexclusive license to access and use the Data. Fees are exclusive of applicable taxes and shipping and handling charges.
1.2 Each license entitles Subscriber to install the Data on one computer at one location, or if the computer is virtualized into many virtual machines, one virtual machine ("instance") at one location. Only one virtual machine may store or host the Data. Storage of the Data on a hypervisor for access by its multiple virtual machines is expressly prohibited except by written authorization from Online Image and payment of additional fees. Subscriber may provide the Data to its customers as part of the information necessary for an Application Programming Interface ("API") provided: (a) the customer does not receive an amount of the Data sufficient to allow duplication for sale or aggregation ("data scraping"); (b) Subscriber requires the customer to enter into an agreement expressly prohibiting such duplication or aggregation; and (c) the API is programmed to prevent such duplication and aggregation. Subscriber may make copies of the Data only for purposes of back up and fail over. Copying the Data for any other purpose is prohibited except by purchase of additional licenses.
SECTION 2. PRIVACY AND CONFIDENTIALITY.
2.1 The parties acknowledge that through the performance of this Agreement, each may gain access to the other's confidential information and trade secrets, including but not limited to, passwords, copyrighted information, controlled access information, personal, business and product information, marketing strategies, and other confidential and valuable information. Each party shall hold the other's confidential information in strict confidence and provide the information to employees within its organization strictly on a need to know basis. As reasonably necessary, Online Image may distribute confidential information to those of its distributors and affiliates who have a need to know such information in order to participate in the delivery of API services and support to Subscriber in furtherance of this Agreement. Subscriber may use information obtained from Online Image solely for the purposes of developing, maintaining, and supporting Subscriber's web enabled applications or internal company applications or other internal company datasets.
2.2 Subscriber's obligation to maintain the confidentiality of Online Image's information continues until Online Image expressly releases Subscriber from such obligation. Online Image's obligation to maintain confidentiality of Subscriber's information extends for five (5) years after the date the information is first received by Online Image unless otherwise expressly stated by Subscriber upon delivering the information to Online Image. Upon termination of this Agreement, or upon the written request, the receiving party must cease all use of and return or destroy all of the other party's confidential information.
SECTION 3. RESTRICTIONS ON SUBSCRIBER'S USE OF DATA.
3.1 Subscriber may not use the Data for spamming, phishing, to transmit chain letters, junk e mail, bulk communications, or unsolicited offers, or to perpetrate spoofs or misrepresent its identity. Subscriber shall not use the Data to transmit through the internet or any postal, telephonic, or electronic means, or upload to Online Image's Web site or its servers any content that Online Image, in its sole discretion, deems objectionable, including but not limited to pornography, content indicating hatred or intolerance of any class of persons, and content that threatens harm or advocates or promotes violence or the overthrow of elected governments.
3.2. Subscriber may not use the Data for any unlawful activity, including but not limited to attempting to compromise the security of any networked account or site, operating an illegal lottery or gambling operation, stalking, or making direct threats of physical harm to any person. Subscriber may not: (a) impersonate any person or entity, including, but not limited to, Online Image and its employees, Online Image's web site or services; (b) falsely state or otherwise misrepresent Subscriber's affiliation with Online Image or its personnel; or (b) stalk or otherwise harass any person.
3.3 For a violation of this Section, Online Image reserves the right, in its sole discretion and without notice to Subscriber, to block, filter, or delete any prohibited communications or content, terminate this Agreement, discontinue Subscriber's access to the Data, and to demand that Subscriber, at its sole expense, return all Data to Online Image and erase the Data from Subscriber's machines.
SECTION 4. RENEWAL, MODIFICATION, TERMINATION, AND NOTICES.
4.1 This Agreement along with any modifications or addenda thereto shall renew and continue for successive one-year terms. Subscriber may terminate this Agreement at the end of any one-year term by notice to Online Image at least 30 days before the end of such term.
4.2 License fees are subject to change upon 45 days notice to Subscriber.
4.3. Online Image reserves the right, at any time, with or without notice, to modify or discontinue, temporarily or permanently, providing the Data. Online Image may make changes to the Data or to prices for the Data, at any time. The most current version of the Data, this Agreement, and any modifications or addenda will be available for viewing by Subscriber on the Online Image website. Continued use of the Data will constitute acceptance by Subscriber of such modifications or addenda.
4.4 Subscriber may cancel its subscription and license upon written notice to Online Image. Online Image may terminate this Agreement and Subscriber's access to the services without notice and in its sole discretion in the event of Subscriber's breach of this Agreement. Online Image may immediately deactivate or delete Subscriber's the Data site account and/or bar any further access to the Data. Online Image will not be liable to Subscriber or any third party for any damages, inconvenience, or other consequences of such termination, modification, or suspension of access to the Data.
4.5 Online Image may send notices to Subscriber via e mail, regular mail, or available on line documentation. Online Image's web site may also provide notices of changes to the terms and conditions of this Agreement or other matters by displaying notices or links to notices.
SECTION 5. INTELLECTUAL PROPERTY RIGHTS.
5.1 Without the express written authorization of Online Image, Subscriber may not: (a) appropriate, convert, reverse engineer, rearrange, repackage, assign, resell, or redistribute the Data; (b) use or display any Online Image name, trademark, service mark, brand, logo, design, trade dress, or other designation; (c) co-brand Subscriber's applications, products, services, or material with those of Online Image; (d) incorporate any Online Image name or mark into Subscriber's trademarks, service marks, company names, internet addresses, domain names, or other designations.
5.2 Subscriber shall not remove any copyright, trademark, intellectual property notices, proprietary legends, or U.S. Government Limited/Restrictive Rights legend contained in the Data or on any online or hard copy of the Data or documentation and shall affix any attribution notices as may be specified therein.
5.3 Neither party shall acquire any right, title, ownership, or interest in the information or property of the other party, whether by implication, estoppel, waiver, or otherwise. Except as expressly provided herein, this Agreement shall not be construed as conferring any license for the possession or use of proprietary information or property of Online Image.
5.4 Much of the Data is derived from or created by reference to the United States Postal Service AIS data sets, the USPS and U.S. Census Bureau TIGER ZIP files, and the U.S. Census TIGER files and other third-party data providers. These data sets are copyrighted by their respective owners. The right to copy or distribute such portions of the Data that are based on such third-party data is restricted by said copyrights. In the event that a violation of this agreement causes an infringement of USPS copyright, Subscriber agrees that money damages resulting to Online Image cannot be readily ascertained and that LIQUIDATED DAMAGES of ONE MILLION DOLLARS ($1,000,000.00) is a fair and reasonable remedy for such violation. Infringement of USPS Copyright may occur if Subscriber copies, reverse engineers, or distributes the Data in violation of the terms specified herein.
5.5 The Data is subject to U.S. Export Administration Laws and Regulations. Shipping, transferring, exporting or diversion contrary to U.S. law is prohibited. Subscriber certifies that Subscriber is not on the U.S. Department of Commerce's Denied Persons List or in the U.S. Department of Treasury's Specially Designated Nationals List. Subscriber will strictly comply with all U.S. export laws and assume sole responsibility for obtaining licenses to export or re-export as may be required. Subscriber will comply with all import laws, restrictions, and regulations applicable to the location where products and services are received by Subscriber.
SECTION 6. DISCLAIMER OF WARRANTIES.
6.1 SUBSCRIBER USES THE DATA AT SUBSCRIBER'S SOLE RISK. SUBSCRIBER ACCEPTS THE DATA “AS IS” AND “AS AVAILABLE.” ONLINE IMAGE DISCLAIMS ALL IMPLIED CONDITIONS, REPRESENTATIONS, AND WARRANTIES OF ANY KIND, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT. ONLINE IMAGE HAS DEVELOPED THE DATA FROM SOURCES BELIEVED TO BE RELIABLE. HOWEVER, ONLINE IMAGE MAKES NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE QUALITY, SUITABILITY, TRUTH, ACCURACY, OR COMPLETENESS OF THE DATA. THE DATA MAY CONTAIN NONCONFORMITIES, DEFECTS, INACCURACIES, ERRORS, OR OMISSIONS. ONLINE IMAGE DOES NOT WARRANT THAT (a) THE QUALITY OR USEFULNESS OF THE DATA WILL MEET SUBSCRIBER'S REQUIREMENTS; (b) THE DATA WILL BE UNINTERRUPTED, TIMELY PROVIDED, SECURE, OR ERROR FREE; (c) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE DATA WILL BE ACCURATE OR RELIABLE; OR (d) ONLINE IMAGE WILL CORRECT ERRORS IN THE DATA.
6.2 THE DATA IS PROVIDED AT SUBSCRIBER'S SPECIAL REQUEST, AT ITS SOLE RISK. SUBSCRIBER IS SOLELY RESPONSIBLE FOR ANY INJURY OR DAMAGE, INCLUDING CONSEQUENTIAL AND INCIDENTAL DAMAGES, INCURRED FROM USE OF THE DATA, INCLUDING BUT NOT LIMITED TO, DAMAGE TO SUBSCRIBER'S COMPUTER SYSTEM AND SOFTWARE AND LOSS OF DATA RESULTING FROM THE DOWNLOAD OR UPLOAD OF THE DATA, AND ANY DAMAGES RESULTING FROM COMPUTER VIRUSES OR OTHER MALICIOUS COMPUTER CODE.
6.3 SUBSCRIBER ACKNOWLEDGES THAT THE INTERNET IS A WEB OF PRIVATE AND PUBLIC NETWORKS NOT SUBJECT TO THE CONTROL OF ANY PERSON AND IS NOT A SECURE INFRASTRUCTURE. ONLINE IMAGE IS NOT LIABLE FOR DAMAGES OF ANY KIND SUSTAINED DUE TO THE DISCONTINUANCE, INTERRUPTION, REGULATION. OR RESTRICTION OF THE INTERNET.
6.4 THE DATA IS NOT FAULT TOLERANT AND IS NOT DESIGNED, MANUFACTURED, OR INTENDED FOR USE OR RESALE, USE IN ANY MISSION CRITICAL APPLICATION, FOR INSURANCE UNDERWRITING OR HIGH RISK ACTIVITIES, INCLUDING BUT NOT LIMITED TO, HEALTH AND SAFETY OPERATIONS, ONLINE CONTROL FUNCTIONS, OR HAZARDOUS ENVIRONMENTS REQUIRING FAIL SAFE PERFORMANCE, SUCH AS NUCLEAR FACILITIES, AIRCRAFT NAVIGATION OR COMMUNICATION, EMERGENCY RESPONSE, TERRORISM PREVENTION OR RESPONSE, LIFE SUPPORT, OR WEAPONS SYSTEMS. ONLINE IMAGE SPECIFICALLY DISCLAIMS ANY WARRANTY OF FITNESS FOR SUCH HIGH RISK ACTIVITIES.
SECTION 7. LIMITATION OF LIABILITY.
7.1 In no event shall Online Image or their third party licensors, employees, or agents be liable for any direct, indirect, incidental, special, consequential, punitive, or exemplary damages, including but not limited to, damages for loss of profits, revenue, goodwill, use, electronically transmitted orders, or economic advantage (even if Online Image has been advised of the possibility of such damages), however caused and regardless of the theory of liability, whether in contract, tort (including negligence), breach of warranty, or otherwise, arising out of or related to the following: (a) the use of, or the inability to use, the Data; (b) the cost of procurement of substitute goods and services resulting from use of the Data use; (c) any other matter relating to the Data including any other content Subscriber may download, use, modify, or distribute from Online Image's web sites.
7.2 Subscriber has sole responsibility for adequate protection and backup of the Data and maintenance of any equipment used in connection with the Data. Subscriber waives any and all claims against Online Image for loss of the Data, rerun time, inaccurate output, work delays, or lost profits resulting from such occurrences.
7.3 The limitations of liability and disclaimers set forth in this Agreement apply regardless of whether Subscriber has accepted the Data or documents delivered by Online Image. Subscriber agrees that Online Image sets its prices and enters into this Agreement in reliance upon the disclaimers and limitations set forth herein, that the same reflect an allocation of risk between the parties (including the risk that a contract remedy may fail of its essential purpose and cause consequential loss), and that the same form an essential basis of bargain between the parties.
SECTION 8. INDEMNITY.
8.1 Subscriber shall defend, indemnify, and hold harmless Online Image, its subsidiaries, affiliates, officers, agents, co-branders, alliance members from and against any claim or demand, including attorney's fees, made by any third party due to, or arising out of, Subscriber's use of the Data, including any use by Subscriber's employees or agents.
SECTION 10. GENERAL TERMS AND CONDITIONS.
10.1 This Agreement is binding on the parties, their successors, employees, and agents. The parties intend this Agreement to be an integration constituting the entire agreement between them. This Agreement supersedes any prior agreement, including any prior versions of this Agreement. Subscriber may be subject to additional terms and conditions by accessing or using products and services of Online Image not covered by this Agreement or those of third parties.
10.2 Subscriber may not assign, delegate, or otherwise transfer any right acquired or duty imposed by this Agreement.
10.3 This Agreement is deemed to be entered into in the State of California, County of Santa Clara, and shall be governed by construed and enforced according to the laws of California. Personal and subject matter jurisdiction are exclusively in California. Exclusive venue is Santa Clara County. The parties specifically disclaim and waive any and all rights under the U.N. Convention on Contracts for the International Sale of Goods.
10.4 Any breach of this Agreement will result in irreparable harm to Online Image or its third party licensors for which money damages would be an inadequate remedy. Therefore, in addition to any rights and remedies available at law, Online Image shall have the right to a temporary restraining order, preliminary and permanent injunctions, specific performance, and other equitable relief in any court of competent jurisdiction to prevent violation of this Agreement and without the requirement of posting a bond or undertaking or proving injury as a condition for such relief.
10.5 Any failure of Online Image to exercise any right or enforce any term of this Agreement does not constitute a waiver of that or any other right or term.
10.6 If a court of competent jurisdiction finds any term of this Agreement to be invalid, that term shall be severed and the remaining terms remain in full force and effect.
10.7 Subscriber waives the provisions of any and all statutes of limitation applicable to any cause of action accruing to Subscriber under this Agreement, including but not limited to California Civil Code section 337. Regardless of any statute or law to the contrary, any suit, action, claim, or cause of action arising out of an alleged breach of this Agreement by Online Image must be filed WITHIN ONE (1) YEAR after such claim or cause of action accrues or be forever barred. Subscriber acknowledges that a breach of this Agreement by Subscriber may not be known to or readily discoverable by Online Image. Therefore, Subscriber waives the terms and protections of any and all statutes of limitation applicable to any cause of action accruing to Online Image under this Agreement, including but not limited to California Civil Code section 337. Regardless of any statute or law to the contrary, Online Image may file any suit, action, claim, or cause of action arising out of an alleged breach of this Agreement by Subscriber within ONE (1) year after Online Image ACTUALLY DISCOVERS all the facts essential to its cause of action, irrespective of when Online Image could have discovered such facts and whether Online Image exercised reasonable diligence to discover such facts.
10.8 Any and all breaches and controversies arising under this Agreement, that cannot be resolved through mediation, shall be adjudicated exclusively by binding arbitration in Santa Clara County, California under the statutes and rules of California. The parties waive any and all right to have any breach or controversy arising under this Agreement adjudicated by a court of law, including but not limited to any right to trial by jury, except as to the filing an arbitrator's award as a judgment and the enforcement of such judgment.
10.9 Subscriber represents that the person executing this Agreement on its behalf is duly authorized to do so.