End User License Agreement 12.24.14
BY ACCEPTING THIS USER AGREEMENT THROUGH AN ORDERING DOCUMENT/FORM THAT INCORPORATES THIS USER AGREEMENT (THE “ORDERING DOCUMENT”), YOU AGREE TO FOLLOW AND BE BOUND BY THE TERMS AND CONDITIONS OF THIS USER AGREEMENT. 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 TO THE TERMS AND CONDITIONS OF THIS USER AGREEMENT AND, IN SUCH EVENT, “LICENSEE” AS USED IN THIS USER AGREEMENT SHALL REFER TO SUCH ENTITY. The terms of this User Agreement shall apply to use of the subscription services identified in the Ordering Document. This User Agreement and the Ordering Document shall collectively be referred to herein as the “Agreement.” The terms of the Ordering Document shall control over any conflicting terms in this User Agreement.
Licensee and DiscoverOrg hereby agree as follows:
This Agreement governs Licensee’s to access and use of certain Licensed Materials made available by DiscoverOrg, LLC, a Delaware limited liability company with an office and place of business located at 12518 NE 95th Street, Vancouver, Washington 98682 (“DiscoverOrg”).
2. CONTENT OF LICENSED MATERIALS; GRANT OF LICENSE
2.1 The “Licensed Materials” shall consist of all electronic information published or otherwise made available by DiscoverOrg to Licensee under this Agreement.
2.2 Subject to the terms and conditions herein, DiscoverOrg hereby grants to Licensee a non-exclusive license to access and use the Licensed Materials, and to provide the Licensed Materials to Authorized Users in accordance with this Agreement.
3. DELIVERY/ACCESS OF LICENSED MATERIALS TO LICENSEE
DiscoverOrg will provide the Licensed Materials to the Licensee via online access. The Licensed Materials will be made available in digital form accessible by Licensee with usernames and passwords provided to Licensee by DiscoverOrg.
4.1 Licensee shall payall fees outlined in the Ordering Document (the “Subscription Fee”). Failure to pay the Subscription Fee when due may result in suspension or termination of this License at DiscoverOrg’s discretion without notice to Licensee. Suspension of this License shall have no effect on the term. Suspension or termination of this License shall have no effect on Licensee’s obligation to pay the Subscription Fee. This is not intended to be DiscoverOrg’s exclusive remedy, and DiscoverOrg retains all rights and remedies it may have at law or in equity.
4.2 Licensee may provide the Licensed Material to individuals authorized by Licensee or on behalf of the License referred to as “Authorized Users.”
4.3 Licensee agrees to give permission to DiscoverOrg to use Licensee’s name and logo for marketing efforts.
4.4 Licensee agrees that all terms of this Agreement, including but not limited to pricing and access, shall be confidential and not shared with any parties outside of this Agreement.
5. AUTHORIZED USE OF LICENSED MATERIALS
5.1 Authorized User. An “Authorized User” is a natural person who is a full or part-time employee of Licensee and who has been identified and designated in writing by Licensee and accepted by DiscoverOrg, or with the express permission of DiscoverOrg, a natural person who is not an employee of Licensee. Authorized Users shall not include corporate entities, including parent companies or subsidiaries of Licensee. Each Authorized User will be provided a unique username and password. Such usernames and passwords may not be shared, and may not under any circumstances be used by anyone who is not an Authorized User to gain access to the Licensed Materials.
5.2 Authorized Uses. Licensee shall not access or use the Licensed Materials for any purpose except the following: (a) to view the Licensed Materials; (b) to communicate with a person identified in the Licensed Materials (each such person, a “Licensed Materials Contact”), and (c) to download and print selected information from the Licensed Materials. Licensee shall not permit anyone who is not an Authorized User, to use any username or password or otherwise access or use the Licensed Materials. Licensee shall not redistribute, sublicense, transfer, sell, offer for sale or disclose any of the Licensed Materials to any third party. Licensee shall not incorporate any of the Licensed Materials into Licensee’s own products or services. Upon termination of this Agreement, Licensee shall cease accessing the Licensed Materials or using the Licensed Materials in any way. Licensee shall not remove, obscure or modify any notice of copyright or other notice included in the Licensed Materials. Licensee is solely responsible for any communications between Licensee or any Authorized User and any Licensed Materials Contact. Licensee shall ensure that no Authorized User takes any action inconsistent with Licensee’s obligations under this Agreement. Licensee may not use or transmit any portion of the Licensed Materials electronically or otherwise, unless such use complies with this Section.
5.3 CRM Integration. Licensee shall not integrate Licensed Materials into any CRM system unless such system is available to Authorized Users only. Licensed Materials must be labeled in any CRM system with the leadsource of DiscoverOrg.
6. DISCOVERORG’S PERFORMANCE OBLIGATIONS
6.1 Access to Licensed Materials. DiscoverOrg will provide Licensee with access to DiscoverOrg’s Licensed Materials for the dataset(s) specified in the Ordering Document.
6.2 Quality Guarantee. If more than 5% of the Licensed Materials Contacts are no longer employed by their listed companies, upon notice from the Licensee, DiscoverOrg shall have 30 days to correct the Licensed Material in order to make it at least 95% accurate. If DiscoverOrg is unable to achieve 95% accuracy within 30 days, upon Licensee’s request, Licensee may terminate the agreement and a portion of its subscription fee will be refunded as follows: within the first 3 (three) months of the Term, Licensee will receive a 75% refund; within the first nine months (and beyond three months), Licensee will be entitled to a 50% refund. There will be no refund after nine months.
6.3 Support. DiscoverOrg will offer activation or installation support, including assisting with integration with Licensee’s internal CRM systems. DiscoverOrg will offer reasonable levels of continuing support to assist Licensee and Authorized Users in accessing the Licensed Materials. DiscoverOrg will make its personnel available by email, online chat, phone, or fax for feedback, problem-solving, or general questions.
7. LICENSEE PERFORMANCE OBLIGATIONS
7.1 Licensee represents, warrants, and covenants that it will not, in connection with its use and access of the Licensed Materials: (i) commit or encourage conduct that would constitute a criminal offense, give rise to civil liability or otherwise violate law; (ii) violate, plagiarize or infringe the rights of third parties including, without limitation, copyright, trademark, patent, rights of privacy or publicity or any other proprietary right; (iii) use the Licensed Materials, or any part thereof, to harass or harm any person in any way; or (iv) disparage, defame, libel or make untrue, malicious, or offensive statements about DiscoverOrg.
7.2 Identification of Authorized Users. Licensee shall identify all Authorized Users to DiscoverOrg, including names, work addresses and telephone numbers. If the employment status of any Authorized User is materially changed, for example if an Authorized User resigns or is terminated, Licensee must notify DiscoverOrg within seven days.
7.3 Provision of Notice of License Terms to Authorized Users. Licensee shall provide Authorized Users with notice of the terms and conditions of this Agreement including, in particular, any limitations on access or use of the Licensed Materials as set forth in this Agreement.
7.4 Protection from Unauthorized Use. Licensee shall make reasonable efforts to prevent unauthorized use of or access to the Licensed Materials. In the event of any unauthorized use of or access to the Licensed Materials, DiscoverOrg may suspend or terminate access to the Licensed Materials, provided that DiscoverOrg shall first provide reasonable notice to Licensee and cooperate with the Licensee to avoid recurrence of any unauthorized use or access to the Licensed Materials.
7.5 Ownership of the Licensed Materials and Intellectual Property. Licensee acknowledges and agrees that, the Licensed Materials, and any related documentation (including, without limitation, the content, layout, functions, design, appearance, trademarks, service marks, copyrights, patents, and other intellectual property comprising the Licensed Materials) are the proprietary intellectual property (the “Intellectual Property”) of DiscoverOrg, whether or not such Licensed Materials are copyrighted or patented. Licensee further agrees that the original and any copies of the Licensed Materials are and shall at all times be the sole and exclusive property of DiscoverOrg and Licensee agrees that Licensee will take no action in contravention of this fact. Licensee does not and will not acquire any ownership in the Licensed Materials or any part thereof, including information voluntarily provided by Licensee to DiscoverOrg that is incorporated into the Licensed Materials, and Licensee expressly disclaims and waives any and all claims to any ownership interest in any such information or materials. This includes, without limitation, any Licensed Materials that Licensee downloads, prints, saves, or incorporates into other materials. Licensee further acknowledges and agrees that the Licensed Materials, in whole or in part, are unique, special, and valuable.
7.6 Non-Assignment. Either party may assign this Agreement to a successor-in-interest pursuant to an acquisition of such party (whether by merger, stock sale, or asset sale) without the consent of the other party. No other assignment or delegation of this Agreement will be valid without the prior written consent of the other party. Any assignment or delegation in violation of this section shall be void.
8. TERM AND TERMINATION
8.1 Term. The term of this Agreement is specified in the Ordering Document.
8.2 Automatic Renewal. Upon the completion of the current term, whether the original or a renewed term, this Agreement shall automatically renew for a successive term equal to the length of the initial term, unless either party notifies the other in writing of its intent not to renew at least thirty (30) days prior to the end of the then-current term. Upon renewal, the Subscription Fee shall equal the Subscription Fee of the prior term plus 5% of the Subscription Fee of the prior term.
8.3 Termination. Either party may terminate this Agreement immediately, without further obligation to the other party, in the event of (a) a material breach of this Agreement by the other party that is not remedied within twenty-one (21) days after the breaching party’s receipt of written notice of such breach. Upon expiration or termination of this license, Licensee acknowledges and agrees that Licensee’s access to the Licensed Materials will be automatically terminated, all passwords and individual accounts will be removed, and all information that has been uploaded into DiscoverOrg’s systems by Licensee may be destroyed. Excel download capability will be turned off 30 days prior to the end of the contractual term unless prior to that time, the Parties agree to extend the term. Upon termination, Licensee agrees to destroy any and all information, whether in hard copy or electronic form, it has obtained from the Licensed Materials.
Any notices or other communications required hereunder shall be in writing and shall be deemed given when delivered in person or when mailed, by certified or registered first class mail, postage prepaid, return receipt requested, addressed to the parties at their addresses specified in the Agreement.
10. GOVERNING LAW
This Agreement shall be construed in accordance with and governed for all purposes by the laws of the State of Washington without regard to choice of laws principles. The Parties agree that the courts of the State of Washington shall have exclusive jurisdiction over any and all disputes arising from this Agreement and that neither Party will bring any action under this agreement in any other jurisdiction.
In the event Licensee is in default of any of the terms or obligations of this Agreement, said default shall constitute grounds to suspend Licensee’s access to the Licensed Materials. Licensee agrees to pay all costs incurred by DiscoverOrg in endeavoring to enforce the terms of this Agreement, including reasonable attorney fees.
Licensee agrees to indemnify, defend, and hold DiscoverOrg, its officers, directors, employees, shareholders, agents, partners, successors, and permitted assigns, harmless from and against any and all actual or threatened claims, liabilities, demands, causes of action, damages, losses, and expenses, including, without limitation, reasonable attorneys’ fees and costs of suit (collectively “Claims”), arising out of or in connection with (1) Licensee’s access or use of the Licensed Materials, (2) Licensee’s violation of any provision of this Agreement, (3) Licensee’s sending of any information, messages or materials to any Licensed Materials contact (including, but not limited to, through e-mail, mail or fax), or (4) the use of any Licensed Materials or Services by any third party to whom Licensee has granted access to the Licensed Materials (including access obtained through use of the user names and passwords assigned to Licensee and its personnel).
13. ENTIRE AGREEMENT
This Agreement constitutes the entire Agreement of the parties and supersedes all prior communications, understandings and Agreements relating to the subject matter hereof, whether oral or written.
No modification or claimed waiver of any provision of this Agreement shall be valid except by written amendment signed by authorized representatives of DiscoverOrg and Licensee.