Master Subscription Agreement
THIS MASTER SUBSCRIPTION AGREEMENT (THIS “AGREEMENT”) IS A LEGAL AGREEMENT BETWEEN YOU AND BY-PRODUCTS INTERACTIVE, INC. DBA THE JACOBSEN PUBLISHING, CO. (“JACOBSEN”) AND GOVERNS YOUR ACCESS TO AND USE OF THE SERVICES WHICH JACOBSEN AGREES TO PROVIDE TO YOU (INCLUDING THROUGH THE JACOBSEN WEBSITE (THE “SITE”)). IF YOU REGISTER FOR A FREE TRIAL FOR OUR SERVICES, THIS AGREEMENT WILL ALSO GOVERN THAT FREE TRIAL. BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE, SIGNING THIS AGREEMENT, OR BY EXECUTING A SUBSCRIPTION FORM THAT REFERENCES THIS AGREEMENT, YOU AGREE TO THE TERMS OF THIS AGREEMENT. THESE TERMS APPLY TO YOUR USE OF THE CONTENT AND SERVICES REGARDLESS OF THE DELIVERY PLATFORM OR DEVICE USED BY YOU TO ACCESS IT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS YOU OR YOUR SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.
You may not access the Services if You are a competitor, except with Jacobsen’s prior written consent that specifically references this restriction. In addition, You may not access the Services for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes.
1. DEFINITIONS
Affiliate means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. Control, for purposes of this definition, means direct or indirect ownership or control of more than fifty percent (50%) of the voting interests of the subject entity.
Bulletin means the various reports Jacobsen provides, via email and accessible on the Site, to You providing pricing and market updates and commentary.
Content means the text, Data, reports, opinions, images, photos, graphics, graphs, charts, animations and video provided to You as part of the Services.
Data means the pricing data and related data provided to You as part of the Services.
Documentation means Jacobsen’s online user guides, documentation, and help and training materials, as
updated from time to time, accessible via the Site, or that Jacobsen otherwise provides to You.
Jacobsen Information means the Data, as well as all other Content provided to You by Jacobsen that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure.
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Malicious Code means code, files, scripts, agents, or programs intended to do harm, including but not limited to viruses, worms, time bombs and Trojan horses.
Subscription Form means the document and/or sign-up page (which may be hard-copy or electronic) specifying: the Services to be provided, associated fees, the Subscription Plan, payment method, and any other applicable information needed for Jacobsen to provide You the Services, that is entered into between You and Jacobsen, including any addenda and supplements thereto, and incorporated into this Agreement. By completing a Subscription Form, Your Affiliate agrees to be bound by the terms of this Agreement as if it were an original party hereto.
Services means the products and services, including any free trial, provided to You by Jacobsen via the Site, and/or email.
Technology means all of Jacobsen's proprietary technology (including software, hardware, products, processes, algorithms, user interfaces, know-how, techniques, designs and other tangible or intangible technical material or information) made available to You by Jacobsen in providing the Services.
User means a named individual who is authorized by Jacobsen, and whom You have paid the applicable fees for, to use the Services, and who has a unique username and password to access the Services. Users may include Your employees.
2. JACOBSEN’S RESPONSIBILITIES
2.1. Provision of Services. Subject to Your payment of all applicable fees, Jacobsen will: (a) make the Services and Content available to You pursuant to this Agreement and the applicable Subscription Form, (b) provide Jacobsen’s standard support for the Services to You at no additional charge, and/or upgraded support if purchased, and (c) use commercially reasonable efforts to make the online Services available twenty-four (24) hours a day, seven (7) days a week; however, there may be occasions when the Services will be interrupted for maintenance, upgrades, and emergency repairs.
2.2 No conflicts; Information Provided. Jacobsen hereby agrees that: (a) to Jacobsen’s knowledge, the provision of Services hereunder to You does not and will not conflict with or violate any obligation Jacobsen has to any third party; (b) Jacobsen will not knowingly provide any material non-public information or personally identifiable information to You; and (c) all Content that is provided by Jacobsen shall, to the best of Jacobsen’s knowledge, (i) be based on information available from sources reasonably believed to be reliable, (ii) not have been obtained through any act of misappropriation or unlawful means by any person, and (iii) not violate any obligation of confidentiality or other duty owed to the source thereof.
3. USE OF SERVICES AND CONTENT
3.1. Subscriptions. Unless otherwise provided in an applicable Subscription Form, access to Services and Content are purchased through subscriptions (“Subscriptions”) and are subject to the limitations set forth herein. The quantity of Subscriptions refers to the number of Users You have purchased access for to use the Services. The initial number of Subscriptions shall be specified in the Subscription Form and use of the Services is limited to the number of Subscriptions purchased by You. The restriction on Your use of the Content provided through the Services refers to the Subscription plan You purchase (“Subscription Plan”). The time period that You and Users will have access to the Services and Content based the Subscription
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You purchase refers to the subscription term (“Subscription Term”). If You decide to increase the number of Subscriptions or decided to upgrade to a higher Subscription Plan You are obligated to pay the applicable fees. Subscriptions may be added during the Subscription Term (defined below) upon execution of a new Subscription Form by the parties.
3.2. Usage Limits. Services and Content are subject to usage limits, as set forth below, in the applicable Subscription Form, or as described on the Site for the Subscription Plan You have purchased. Unless otherwise specified, (a) the Services or Content may not be accessed by more than the number of Users for which You have paid, (b) a User's username and password may not be shared with any other individual, (c) upon notice to Jacobsen, a User identification may be reassigned to a new individual replacing one who no longer requires ongoing use of the Services or Content, (d) Content and Data accessed by User shall only be used for individual, internal purposes, and such information cannot be shared between Users. If, notwithstanding Jacobsen’s notification and efforts, You are unable or unwilling to abide by the usage limits, You will execute a new Subscription Form for additional number of Subscriptions promptly upon Jacobsen’s request, and/or pay any fees for excess usage in accordance with Section 4.2 (Payment).
3.3. Usage Restrictions. You will not: (a) make any Services or Content available to, or use any Services or Content for the benefit of, anyone other than You or Users except as otherwise permitted in this Agreement, (b) sell, resell, license, sublicense, distribute, rent or lease any Services or Content, or include any Services or Content in a service bureau or outsourcing offering except as otherwise permitted in this Agreement, (c) use the Services to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (d) use the Services to store or transmit Malicious Code, (e) interfere with or disrupt the integrity or performance of any Services or third-party data contained therein, (f) attempt to gain unauthorized access to any Services or Content or its related systems or networks, (g) permit direct or indirect access to or use of any Services or Content in a way that circumvents a contractual usage limit, (h) copy the Services or any part, feature, function or user interface thereof, (i) copy Content except as permitted herein, in a Subscription Form, or the Documentation, (j) frame or mirror any part of any Services or Content, other than framing on Your own intranets or otherwise for Your own internal business purposes or as permitted in the Documentation, (k) access any Services or Content in order to build a competitive product or service, (l) use or disclose any Jacobsen Information except as expressly permitted for the applicable Subscription Plan for the Services that You have purchased, or (m) reverse engineer any part of the Services, decompile or otherwise attempt to decipher any code in connection with the Services or any other aspect of the Site, and/or any Jacobsen Technology.
3.4. Your Responsibilities. You shall (a) be responsible for Users' compliance with this Agreement, (b) be responsible for protecting and securing the confidentiality of User’s usernames and passwords, (c) use commercially reasonable efforts to prevent unauthorized access to or use of Services and Content, and notify Jacobsen promptly of any such unauthorized access or use, and (d) use Services and Content only in accordance with the Documentation and applicable laws and government regulations. You are responsible for obtaining access to any Services and that access may involve third-party fees (such as internet service provider or airtime charges). You are responsible for those fees, including those fees associated with the display or delivery of advertisements. In addition, You must provide and are responsible for all equipment necessary to access the Services.
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3.5. Subscription-Plan Specific Restrictions. Depending on the Subscription Plan You purchase, the restrictions placed on Your use of the Content may vary. None of the rights in the Subscription Plans described below undermine or negate any of the limitations or restrictions (e.g., limitations on the number of users) set forth in this Agreement. In addition to the features listed below for each Subscription Plan, Jacobsen offers additional features (each, an “Add-On”) for additional fees. You may purchase Add-Ons for your Subscription Plan, as described in your invoice. Unless otherwise set forth in the Subscription Form, the following are Jacobsen’s current Subscription Plans and the restrictions and permissions that apply to each Subscription Plan:
Basic Plan: If You purchase a Basic Plan Subscription to the Services, You will receive one (1) Subscription; daily (or for certain Bulletins, weekly) Content updates; and access to two (2) Bulletins. The updates may be made available via the Site (using Your unique username and password), and/or email. You may only use the Content provided to You for Your own individual, internal purposes such as pricing contracts, benchmarking, financial derivatives, and internal presentations. Under no circumstances are You permitted to resell, disclose, or otherwise distribute any Jacobsen Information, or any derivative thereof, to third parties. Jacobsen also offers the Basic Plan on a month-to-month basis, which is called the “Starter Plan”. Optional Add- Ons for the Basic Plan Subscription include access to additional Bulletins, as well as any other feature listed in your invoice.
Premium Plan: If You purchase a Premium Plan Subscription to the Services, in addition to the rights granted for (and notwithstanding the restrictions on) Basic Plan Subscriptions as described above, You will receive three (3) Subscriptions; have unlimited access to Bulletins; have access to historical pricing Data; and You may disclose the Data specifically pertinent to the negotiation, to the potential counter-party in the context of negotiating a contract with such party, provided that You may not provide or make available to any such potential counter-party (or third party) the Content, or any part thereof, in its original form or any derivative form that substantially incorporates the value of or the information in the Jacobsen Information. Optional Add-Ons for the Premium Plan Subscription include: (i) access to the Content through third-party platform providers, provided that You have obtained the proper rights from the applicable third-party platform provider(s) to allow such access and have received prior written approval from Jacobsen (“Third-Party Integration”); (ii) receive a daily download of all pricing Content onto Your own internal systems through the API made available by Jacobsen (the “API”), subject to the API License and API Restrictions (each defined below); and (iii) Content Distribution (defined below) subject to the Content Distribution Restrictions (defined below), as well as any other feature listed in your invoice.
Pro Plan: If You purchase a Pro Plan Subscription to the Services, in addition to the rights granted for (and notwithstanding the restrictions on) Basic Plan and Premium Plan Subscriptions as described above, You are provided access to additional Content such as survey results and Jacobsen’s forecasting tools for select markets (depending on forecasting tools purchased) which include a weekly forecast webinar (for certain markets) that permits You to ask Jacobsen real- time questions. Optional Add-Ons for the Pro Plan Subscription include: Third-Party Integration; API access, subject to the API License and API Restrictions; and Content Distribution subject to the Content Distribution Restrictions, as well as any other feature listed in your invoice.
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Legacy Plan: THE LEGACY PLAN ONLY APPLIES IF YOU PURCHASED JACOBSEN’S FORMER TIER 3 PLAN AND THE TERM OF YOUR ORIGINAL SUBSCRIPTION FORM HAS NOT EXPIRED. The Legacy Plan includes , in addition to the rights granted for (and notwithstanding the restrictions on) Basic Plan and Premium Plan Subscriptions as described above, the right to include an analysis of the Content in Your own commercial offerings, provided that: (i) You may not provide or make available to any third party the Content, or any part thereof, in its original form or any derivative form that substantially incorporates the value of or the information in the Jacobsen Information, (ii) Your analysis and Your commercial offerings including Your analysis do not constitute a substitute for any Jacobsen Information, and (iii) all analysis, presentations, reports, or other third-party facing offering based on any Jacobsen Information and distributed by You must include appropriate attribution to Jacobsen as the source thereof (e.g., “Powered by The Jacobsen”). In addition, with a Legacy Plan Subscription You will have the right to Third-Party Integration.
Enterprise Plan: If You purchase an Enterprise Plan Subscription to the Services, in addition to the rights granted for Basic Plan, Premium Plan, and Pro Plan Subscriptions as described above, You will receive twenty-five (25) Subscriptions and have the right to: (a) include an analysis of the Content in Your own commercial offerings (“Content Distribution”), provided that: (i) You may not provide or make available to any third party the Content, or any part thereof, in its original form or any derivative form that substantially incorporates the value of or the information in the Jacobsen Information, (ii) Your analysis and Your commercial offerings including Your analysis do not constitute a substitute for any Jacobsen Information, and (iii) all analysis, presentations, reports, or other third-party facing offering based on any Jacobsen Information and distributed by You must include appropriate attribution to Jacobsen as the source thereof (e.g., “Powered by The Jacobsen”) (collectively, the “Content Distribution Restrictions”); (b)Third-Party Integration; (c) receive one-on-one time with a Jacobsen analyst; and (d) API access. Subject to the terms and conditions of this Agreement and Your payment of all fees associated with Your Enterprise Plan Subscription, Jacobsen hereby grants You a revocable, limited, non-exclusive, non-sublicensable, non-transferable, fully paid-up, royalty free license to access and use the API solely for the purpose of accessing and downloading the daily pricing Content made available thereby (“API License”). The additional “API Restrictions” will apply to your use of the API: Jacobsen will assign You a unique key to access and use the API (the “API Key”) on a non-exclusive basis; all calls to the API made by You must include the API Key; You must keep the API Key confidential; and You are solely responsible for all uses of the API under the API Key.
3.6. Subscription Plan Changes. Jacobsen may change its Subscription Plans, including each Subscription Plan’s restrictions, permissions, Add-Ons, and fees, at its sole discretion. Jacobsen will provide You notice prior to any material change to Your Subscription Plan. Such notice will be provided at least thirty (30) days prior to the expiration of Your then-current Subscription Term. Any change to Your current Subscription Plan will go into effect upon the start of Your renewal Subscription Term.
3.7. Removal of Content. If Jacobsen is required by a third party to remove Content, or if Jacobsen receives information that Content provided to You may violate applicable law or third-party rights, Jacobsen may so notify You, and in such event You will promptly remove such Content from Your systems. If You do not take required action in accordance with the above, Jacobsen may disable or suspend Your access to the Content and/or the Services until the potential violation is resolved.
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4. FEES AND PAYMENT FOR SERVICES
4.1. Fees. You will pay all fees specified in the applicable Subscription Form. Except as otherwise specified herein or in a Subscription Form, (i) fees are based on Services and Content purchased and not actual usage, (ii) payment obligations are non-cancelable and fees paid are non-refundable, and (iii) the number of Subscriptions purchased cannot be decreased during the relevant Subscription Term.
4.2. Payment. Unless another form of payment is agreed upon by Jacobsen in the Subscription Form, You will provide Jacobsen with valid credit card information. If You provide credit card information to Jacobsen, You authorize Jacobsen to charge such credit card for all Services that You purchase for the initial Subscription Term, any renewal Subscription Term(s), and/or any applicable fees if You violate any of Usage Limits or Usage Restrictions set forth in subsections 3.2. and 3.3. Charges for Subscriptions and renewal Subscriptions shall be made in advance, either annually or monthly dependent on subscription form. Payment is due at the time Your credit charge is charged. You are responsible for providing complete and accurate billing and contact information to Jacobsen and notifying Jacobsen of any changes to such information.
a). Monthly Subscriptions. If You choose to purchase a monthly Subscription You agree to monthly autopayments to be charged to the credit card Jacobsen has on file for the Subscription. Monthly Subscriptions are charged on the first day of each month and payment is due at the time You credit card is charged.
b). Annual Subscriptions. If You agree to an annual Subscription You will be invoiced on the first business day of each month. You may make payments via credit card, check, wire, or ACH. If you choose to pay by credit card You will need to provide Jacobsen valid credit card information. Payments are due within thirty (30) days from the date You are invoiced. If You have an annual Subscription You also have the option to have Your credit card auto-billed for automatic renewal of Your annual Subscription. If You choose this option, Your credit card will be charge on the first day of month of the first month after the initial Subscription Term expires. Payment for renewal is due on the date Your credit card is charged.
4.3. Subscription Renewal. Subscriptions will automatically renew if; a) You are a monthly subscriber and payment is made on the first day of each month, b) You are annual subscriber and You have opted for the credit card renewal option in which Your annual Subscription will renew upon Your payment of Your credit card charge on the first day of first month after Your initial Subscription Term expires. Your Subscription will renew for additional periods equal to the expiring Subscription Term or one (1) year (whichever is shorter). The pricing during any automatic renewal term will be the same as that during the immediately prior Subscription Term unless Jacobsen has given You written notice (which may include email and disclosure on the Jacobsen website) of a pricing increase at least thirty (30) days before the end of that prior Subscription Term, in which case the pricing increase will be effective upon renewal and thereafter. Your Subscription will not automatically renew if You have a monthly Subscription or have an annual Subscription (and You agreed to have Your credit card charged for renewal purposes), and Jacobsen is unable to charge the credit card it has on file for You. You do not need to provide Jacobsen any notice if You choose not to renew Your Subscription.
4.4. Suspension of Services and Acceleration. If you have a monthly Subscription, Your access to the Services may be suspended and your account may be deactivated if the charge to Your credit card on file is declined on the payment due date and payment is not received within three (3) days of such date. If
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You have an annual Subscription, Your access to the Services may be suspended and Your account may be deactivated (i) if payment is not received within sixty (60) days of the date of the applicable invoice; or (ii) on the third day of the applicable month if You have opted to pay by credit card for auto-renewal, pursuant to Section 4.3, and the charge to Your credit card on file has been declined on by the payment due date. Jacobsen may charge You a fee to restart Your Services, at Jacobsen’s option. If Jacobsen does not receive payment for a renewal prior to the date of renewal, in addition to any other remedies Jacobsen may have under this Agreement, Jacobsen may, at its discretion, do one or more of the following: (i) demand full payment, (ii) charge any form of payment You have obtained to replace Your provided form of payment (e.g., if You have obtained a replacement credit card number) and You hereby authorize Jacobsen to do so, and (iii) terminate or suspend Your Subscription in accordance with Section 5.3 below.
4.5. Overdue Charges. If any amount due is not received by Jacobsen by the due date, then without limiting Jacobsen’s rights or remedies, (a) those charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, and/or (b) Jacobsen may condition future Subscription renewals and Subscription Forms on payment terms shorter than those specified in Section 4.3.
4.6. Payment Disputes. Jacobsen will not exercise its rights under Section 4.4 or 4.5 above if You are disputing the applicable charges reasonably and in good faith and are cooperating diligently to resolve the dispute.
4.7. Taxes. Jacobsen’s fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, without limitation, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). You are responsible for paying all Taxes associated with Your purchases hereunder. If Jacobsen has the legal obligation to pay or collect Taxes for which You are responsible under this Section 4.6, Jacobsen will charge You and You will pay that amount unless You provide Jacobsen with a valid tax exemption certificate authorized by the appropriate taxing authority. Notwithstanding the above, Jacobsen is solely responsible for taxes assessable against Jacobsen based on Jacobsen’s income, property and employees.
5. TERM AND TERMINATION
5.1. Term of Agreement. This Agreement commences on the date You first accept it and continues until all Subscriptions purchased hereunder have expired or have been terminated.
5.2. Term of Purchased Subscriptions. The term of each Subscription shall be as specified in the Subscription Form. Subscription Terms are either monthly or annual, and Your access to Services and Content will continue until Your Subscription Term expires due lack of payment or is terminated in accordance with Section 5.3.
5.3. Termination.
(a) Jacobsen may terminate Your access to the Services for any reason or no reason in the sole and absolute discretion of Jacobsen at any time upon written notice to You.
(b) Either party may terminate this Agreement: (i) upon written notice to the other party of a breach of a material provision of this Agreement if such breach remains uncured for thirty (30) days after notice
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thereof, or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
5.4. Effect of Termination. In no event will termination relieve You of Your obligation to pay any fees payable to Jacobsen for the period prior to the effective date of termination. You will not be eligible for a prorated refund of any portion of the Subscription fee paid for the then-current Subscription Term.
6. PROPRIETARY RIGHTS AND LICENSES
6.1. Reservation of Rights. Subject to the limited rights expressly granted in this Agreement, the Services and Content, (including, but not limited to, any images, photographs, animations, video, audio, music, text, content, computer code or applets incorporated into the Services), any accompanying printed materials, and any copies thereof are owned by Jacobsen. No rights are granted to You hereunder other than as expressly set forth herein.
6.2. License by Jacobsen to Access Services. Subject to the terms of this agreement and the payment by You of all applicable fees, Jacobsen grants You a non-exclusive, limited-term, non-transferable, revocable license, under Jacobsen’s applicable intellectual property rights and licenses, to use and access the Services.
6.4. License by You to Use Feedback. You grant to Jacobsen and its Affiliates a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into the Services any suggestion, enhancement, request, recommendation, change, correction, or other feedback provided by You or Users relating to the operation of the Services (“Feedback”).
7. CONFIDENTIALITY
7.1. Definition of Confidential Information. “Confidential Information” means any and all nonpublic information relating to the business of and disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, in connection with the Services provided under this Agreement. Your Confidential Information includes Your Data; Jacobsen’s Confidential Information includes, but is not limited to, the Services, the Jacobsen Information, and Content; and Confidential Information of both parties includes, but is not limited to, the terms and conditions of this Agreement and all Subscription Forms (including pricing), as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party in connection with the Services provided under the Subscription Forms. Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, (iv) was independently developed by the Receiving Party without use of or reference to the Confidential Information of the Disclosing Party, or (v) has otherwise entered the public domain though lawful means and not in violation of any obligation of confidentiality.
7.2. Use and Protection of Confidential Information. The Receiving Party will (a) use the same degree of care to protect the Disclosing Party’s Confidential Information that it uses to protect the confidentiality of its own information of like kind (but not less than reasonable care), (b) not to use any Confidential
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Information of the Disclosing Party for any purpose not expressly permitted by this Agreement, and (c) except as otherwise authorized by this Agreement or by the Disclosing Party in writing, limit disclosure of and access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees and contractors who need that access for purposes of fulfilling obligations under this Agreement and who are bound by confidentiality obligations with the Receiving Party no less stringent than those herein. Neither party will disclose the terms of this Agreement or any Subscription Form to any third party other than its Affiliates, legal counsel and accountants without the other party’s prior written consent, provided that a party that makes any such disclosure to its Affiliate, legal counsel or accountants will remain responsible for such Affiliate’s legal counsel’s or accountant’s compliance with this Section 7.2. Upon termination or expiration of this Agreement for any reason, the Receiving Party shall return to the Disclosing Party (or at Disclosing Party’s written request, destroy) all things and documents containing Confidential Information (including physical or electronic copies of the foregoing) in Receiving Party’s possession, whether made by Receiving Party or any third party.
7.3 Required Disclosures. The Receiving Party may disclose Confidential Information of the Disclosing Party as required to comply with binding orders of governmental entities that have jurisdiction over it or as otherwise required by applicable law, provided that the Receiving Party (i) gives the Disclosing Party reasonable written notice to allow it to seek a protective order or other appropriate remedy (except to the extent compliance with the foregoing would cause the Receiving Party to violate a court order or other legal requirement), (ii) discloses only such information as is required by the governmental entity or otherwise required by applicable law, and (iii) and uses its best efforts to obtain confidential treatment for any Confidential Information so disclosed.
7.4 Remedies. The Receiving Party understands and agrees that the Disclosing Party shall suffer irreparable harm in the event the Receiving Party breaches any of its obligations pursuant to this Section 7 and that monetary damages will be inadequate to compensate the Disclosing Party for such breach. The
Receiving Party therefore agrees that, in the event of a breach or threatened breach of this Section 7, the Disclosing Party, in addition to any other rights, remedies, or damages available to the Disclosing Party at law, shall be entitled to obtain equitable relief, including, without limitation, a temporary restraining order, preliminary injunction or permanent injunction, in order to prevent or to restrain any such breach or future breach by Receiving Party or any other person who receives Confidential Information from the Receiving Party, and Receiving Party agrees to cover all costs (including reasonable attorneys’ fees) of Disclosing Party in obtaining such equitable relief.
8. REPRESENTATIONS, EXCLUSIVE REMEDIES AND DISCLAIMERS
8.1. Representations. Each party represents that it has validly entered into this Agreement and has the legal power to do so.
8.2. Disclaimers. YOU HEREBY ACKNOWLEDGE AND AGREE THAT THE SERVICES AND CONTENT PROVIDED BY JACOBSEN ARE PROVIDED “AS-IS”, WITHOUT ANY WARRANTIES. JACOBSEN MAKES NO GUARANTEES OR WARRANTIES AS TO THE ACCURACY, COMPLETENESS, TIMELINESS OR CURRENTNESS OF OR RESULTS TO BE OBTAINED FROM ACCESSING AND USING THE CONTENT, THE SERVICES, OR ANY OTHER MATERIAL THAT CAN BE ACCESSED DIRECTLY OR INDIRECTLY THROUGH THE SERVICES. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ANY AND ALL REPRESENTATIONS, WARRANTIES, AND CONDITIONS, INCLUDING THOSE OF MERCHANTABILITY,
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FITNESS FOR A PARTICULAR PURPOSE, TITLE, ACCURACY, SYSTEM INTEGRATION, OR NON- INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. EACH PARTY DISCLAIMS ALL LIABILITY AND INDEMNIFICATION OBLIGATIONS FOR ANY HARM OR DAMAGES CAUSED BY ANY THIRD-PARTY HOSTING PROVIDERS.
8.3 Exclusion for Free Trials. Notwithstanding anything to the contrary in this Agreement, any and all free trials of the Services and Content come without warranty of any kind and are used by You solely at Your own risk and responsibility. You acknowledge that the risks and assumptions undertaken by Jacobsen hereunder are only in consideration for the payment of fees.
9. INDEMNIFICATION
9.1. Indemnification by Jacobsen. Jacobsen will defend, indemnify, and hold You harmless against any claim, demand, suit or proceeding (“Claim Against You”), and any damages, costs, expenses, and liabilities awarded therein or agreed to in settlement thereof, based on an allegation that the Services (as provided in accordance with this Agreement) infringe or misappropriate such third-party's intellectual property rights, provided You (a) promptly give Jacobsen written notice of the Claim Against You, (b) give Jacobsen sole control of the defense and settlement of the Claim Against You (except that Jacobsen may not settle any Claim Against You without Your prior written consent unless it releases You of all liability), and (c) give Jacobsen all reasonable assistance, at Jacobsen’s expense. If Jacobsen receives information about an infringement or misappropriation claim related to the Services, Jacobsen may in its sole discretion and at no cost to You (i) modify the Services so that it no longer infringes or misappropriates, (ii) obtain a license for Your continued use of the affected Services in accordance with this Agreement, or (iii) terminate Your Subscriptions for the affected Services upon thirty (30) days written notice. Notwithstanding the foregoing, the above defense and indemnification obligations do not apply to the extent a Claim Against You arises from Content, any third-party content or other non-Jacobsen application accessible through the Site or the Services, or Your breach of this Agreement.
9.2. Indemnification by You. You agree to Indemnity, defend, and hold harmless Jacobsen and its Affiliates, from any and all claims, actions, and liabilities and all related cost, fees, and expenses (including attorneys’ fees) or settlement thereof in connection with or arising from any third-party claim based upon or related to Your breach of this Agreement or use of the Services.
9.3. Exclusive Remedy. This Section 9 states the indemnifying party's sole liability to, and the indemnified party's exclusive remedy against, the other party for any type of claim described in this Section 9.
10. LIMITATION OF LIABILITY
10.1. Limitation of Liability. SUBJECT TO SECTION 10.3, NEITHER PARTY'S LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL EXCEED THE AMOUNT PAID BY YOU TO JACOBSEN WITH RESPECT TO THE SERVICES IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE INCIDENT GIVING RISE TO THE LIABILITY. THE ABOVE LIMITATIONS WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY.
10.2. Exclusion of Consequential and Related Damages. IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS, REVENUES OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT AND
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REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.
10.3. Exceptions. THE ABOVE LIMITATIONS WILL NOT LIMIT YOUR LIABILITY WITH RESPECT TO CONFIDENTIALITY OBLIGATIONS, LICENSE TO THE CONTENT, OR PAYMENT OBLIGATIONS.
10.4. Surviving Provisions. Sections 4 (Fees and Payment for Services), 6 (Proprietary Rights and Licenses), 7 (Confidentiality), 8.2 (Disclaimers), 9 (Indemnification), 10 (Limitation of Liability), 10.4 (Surviving Provisions), 11 (General Provisions) will survive any termination or expiration of this Agreement.
11. GENERAL PROVISIONS
11.1. Notice. Any notices required or permitted under this Agreement shall be in writing and delivered by personal delivery, overnight courier, facsimile, e-mail, or certified or registered mail. Notice shall be deemed given upon receipt or refusal of (i) personal delivery, one (1) day after the date of mailing if sent by overnight courier, five (5) days after the date of mailing if sent by certified or registered mail, or (ii) upon confirmation of receipt of facsimile or email. Notices will be sent to the party at its address set forth in the Subscription Form.
11.2. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Colorado without giving effect to any principles that may provide for the application of the law of another jurisdiction. You hereby expressly consent to the exclusive personal jurisdiction and venue of the state and federal courts of the State of Colorado for any cause of action arising under this Agreement or the performance of the obligations hereunder or thereunder.
11.3. Cumulative Remedies. Except as otherwise expressly provided in this Agreement, the parties' rights and remedies under this Agreement are cumulative and not exclusive of any other rights or remedies to which the parties may be lawfully entitled under this Agreement or at law or equity, and the parties will be entitled to pursue any and all of their respective rights and remedies concurrently, consecutively and alternatively.
11.4. Dispute Resolution. The parties agree to the following dispute resolution procedure:
a) Mediation. If any dispute related to this Agreement (a “Dispute”) cannot be resolved by negotiation, the parties agree, upon any party giving written notice, the parties will submit the Dispute to non-binding mediation in Denver, Colorado by a mediator mutually agreed upon by the parties. If the parties are unable to agree upon a mediator, JAMS shall appoint the mediator. In any event, the mediation shall take place within thirty (30) days of the date that a party gives the other party written notice of its desire to mediate the Dispute. The cost of the mediation shall be borne equally by all parties.
(b) Arbitration. If the Dispute (excluding claims for injunctive or other equitable relief as set forth below) is not resolved by mediation pursuant to this Section 11.4, it shall be resolved by binding arbitration on an individual basis under the terms of this arbitration agreement (“Arbitration Agreement”). Unless otherwise agreed, all arbitration proceedings shall be held in English. This arbitration agreement applies to You and Jacobsen.
(i) Arbitration Procedure. Before either party may seek arbitration, the party must first send to the other party a written notice of Dispute describing again the nature and basis of the Dispute, and the requested relief. Such notice should be sent Jacobsen at 885 Arapahoe Ave., Boulder, CO 80302. After the
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notice is received, You and Jacobsen may again attempt to resolve the Dispute informally. If You and Jacobsen do not resolve the Dispute within thirty (30) days after the notice is received, either party may begin an arbitration proceeding. The amount of any settlement offer made by any party may not be disclosed to the arbitrator until after the arbitrator has determined the amount of the award, if any, to which either party is entitled.
(ii) Arbitration Rules. Arbitration shall be initiated through JAMS, an established alternative dispute resolution provider that offers arbitration as set forth in this section, or if JAMS is not available to arbitrate, the parties shall agree to select an alternative provider (“ADR Provider”). This Agreement and the rules of the ADR Provider shall govern all aspects of the arbitration, including but not limited to the method of initiating and/or demanding arbitration, except to the extent such rules are in conflict with the Agreement (“Arbitration Rules”). The arbitration shall be conducted by a single, neutral arbitrator. Any claims or disputes where the total amount of the award sought is less than Ten Thousand U.S. Dollars (US $10,000.00) may be resolved through binding non-appearance-based arbitration, at the option of the party seeking relief. For claims or disputes where the total amount of the award sought is Ten Thousand U.S. Dollars (US $10,000.00) or more, the right to a hearing will be determined by the Arbitration Rules. Any hearing will be held in a location within 100 miles of Your residence, unless You reside outside of the United States, and unless the parties agree otherwise. If You reside outside of the U.S., the arbitrator shall give the parties reasonable notice of the date, time and place of any oral hearing. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. If the arbitrator grants You an award that is greater than the last settlement offer that Jacobsen made to You prior to the initiation of arbitration, Jacobsen will pay You the greater of the award or 130% of the settlement offer. Each party shall bear its own costs (including attorney’s fees) and disbursements arising out of the arbitration and shall pay an equal share of the fees and costs of the ADR Provider.
(iii) Additional Rules for Non-Appearance Based Arbitration. If non-appearance based arbitration
is elected pursuant to Section “(ii)” above, the arbitration shall be conducted by telephone, online and/or based solely on written submissions; the specific manner shall be chosen by the party initiating the arbitration. The arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise agreed by the parties.
(iv) Time Limits. If You or Jacobsen pursues arbitration, the arbitration action must be initiated and/or demanded within the statute of limitations (i.e., the legal deadline for filing a claim) and within any deadline imposed under the Arbitration Rules for the pertinent claim.
(v) Authority of Arbitrator. If arbitration is initiated, the arbitrator will decide the rights and liabilities, if any, of You and Jacobsen, and the dispute will not be consolidated with any other matters or
joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages, and to grant any non-monetary remedy or relief available to an individual under applicable law, the ADR Provider’s rules, and the Agreement. The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon You and Jacobsen.
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(vi) Waiver of Jury Trial. THE PARTIES HEREBY WAIVE THEIR CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY, instead electing that all claims and disputes shall be resolved by arbitration under this Arbitration Agreement. Arbitration procedures are typically more limited, more efficient and less costly than rules applicable in a court and are subject to very limited review by a court. In the event any litigation should arise between You and Jacobsen in any state or federal court in a suit to vacate or enforce an arbitration award or otherwise, YOU AND JACOBSEN WAIVE ALL RIGHTS TO A JURY TRIAL, instead electing that the dispute be resolved by a judge.
(vii) Waiver of Class or Consolidated Actions. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF
THIS ARBITRATION AGREEMENT MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS, AND CLAIMS OF MORE THAN ONE USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER USER.
(viii) Confidentiality. All aspects of the arbitration proceeding, including but not limited to the award of the arbitrator and compliance therewith, shall be strictly confidential. The parties agree to maintain confidentiality unless otherwise required by law. This paragraph shall not prevent a party from submitting to a court of law any information necessary to enforce this Agreement, to enforce an arbitration award, or to seek injunctive or equitable relief.
(ix) Severability. If any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable by a court of competent jurisdiction, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Agreement shall continue in full force and effect.
(x) Right to Waive. Any or all of the rights and limitations set forth in this Arbitration Agreement
may be waived by the party against whom the claim is asserted. Such waiver shall not waive or affect any other portion of this Arbitration Agreement.
(xi) Survival of Agreement. This Arbitration Agreement will survive the termination of Your relationship with Jacobsen.
(xii) Small Claims Court. Notwithstanding the foregoing, either You or Jacobsen may bring an individual action in small claims court.
(xiii) Emergency Equitable Relief. Notwithstanding the foregoing, either party may seek emergency equitable relief before a state or federal court in order to maintain the status quo pending arbitration. A request for interim measures shall not be deemed a waiver of any other rights or obligations
under this Arbitration Agreement.
(xiv) Claims Not Subject to Arbitration. Notwithstanding the foregoing, claims of defamation, violation of the Computer Fraud and Abuse Act, and infringement or misappropriation of the other party’s
patent, copyright, trademark or trade secrets shall not be subject to this Arbitration Agreement.
(xv) Courts. In any circumstances where the foregoing Arbitration Agreement permits the parties to litigate in court, the parties hereby agree to submit to the personal jurisdiction of the state and federal courts located in Denver County, Colorado, for such purpose.
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11.5. Force Majeure. Except for any payment obligation hereunder, Jacobsen shall not be liable to You for any delay or non-performance of an obligation under this Agreement arising from any cause or causes beyond Jacobsen’s reasonable control, including, without limitation, as a result of a governmental act, war, failure of telecommunication links and equipment, fire, flood, explosion or civil unrest (each a “ Force Majeure Event”). If Jacobsen experiences a Force Majeure Event, it will take commercially reasonable efforts to mitigate the impact thereof.
11.6 Relationship of the Parties. Jacobsen and You are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties, and neither party will represent that it has any authority to assume or create any obligation, express or implied, on behalf of the other party, nor to represent the other party as agent, employee, franchisee, or party in any other capacity or manner.
11.7. Amendments. This Agreement may be modified by Jacobsen from time to time. If Jacobsen makes material changes to the Agreement, Jacobsen will notify You no less than thirty (30) days prior to such material changes taking effect. You agree that unless You notify us of Your objection to any such material changes, such amended Agreement will be effective thirty (30) days after the date of Jacobsen’s notification to You, and Your continued use of the Services after that time shall constitute Your acceptance of the amended Agreement.
11.8. Waiver. No failure or delay by either party in exercising any right under this Agreement will constitute a waiver of that right. No consent or waiver by a party to or of any breach or default by the other party in its performance of its obligations under this Agreement will be effective unless in writing and signed by both parties or deemed or construed to be a consent to or waiver of a continuing breach or default of any other breach or default of those or any other obligations of such other party.
11.9. Assignment. Neither party may assign or transfer, by operation of law or otherwise, this Agreement or any of its rights under this Agreement to any third party without the other party's prior written consent; except that either party may assign this Agreement by operation of law or otherwise to any successor to its business or assets to which this Agreement relates, whether by merger, sale of assets, sale of stock, reorganization or otherwise. Any attempted assignment or transfer in violation of the foregoing will be null and void. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns and shall not confer any rights or remedies upon any person or entity not a party hereto.
11.10. Entire Agreement. This Agreement sets forth the general terms and conditions applicable to all Services provided by Jacobsen to You and the entire understanding and agreement of the parties. This Agreement supersedes all prior and contemporaneous agreements and communications, whether oral or written, between the parties, as to the subject matter of this Agreement. To the extent of any conflict between the provisions of this Agreement and the provisions of any Subscription Form the provisions of this Agreement shall govern.
Last Updated: [ January 2021 ]
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