1. LICENSED PRODUCTS / SERVICES
The Agreement between RainKing and Licensee governs Licensee’s use of one or more electronic Databases developed and maintained by RainKing, each consisting of (a) a proprietary database of information (“Database”) and the proprietary organization and structures for categorizing, sorting and displaying such information, and (b) any related software (Software”). Those portions of the Software and Database licensed hereunder, as specified in the Subscription Form, including any updates and modifications thereto, or other information or services provided by RainKing in connection herewith, shall be defined as the“Licensed Product.”
2. USAGE RIGHTS AND PROHIBITIONS
2.1. Permitted User: A “Permitted User” is an individual who is an employee of Licensee and who has been designated by Licensee. If a Permitted User ceases to meet the foregoing qualifications, Licensee shall immediately notify RainKing, and such Permitted User’s access shall be terminated or reassigned. RainKing shall provide one or more passwords or other information necessary for Permitted Users to access the Licensed Product (“Passcodes”).The names of Permitted Users may change over time in order to accommodate departure of employees and/or changes of job functions, provided that Licensee shall not exceed the number of Permitted Users specified in the Subscription Form without an amendment to the Agreement.
2.2. Permitted Use: Subject to the terms of the Agreement, during the Term of this Agreement, Permitted Users may access and use the Licensed Product: (a) to view the licensed information in the Database; (b) to call or send information to persons or institutions found in the Database (“Database Contacts”), provided that such information relates to Licensee’s business; and (c) to download and print selected information from the Database for internal research purposes in the ordinary course of its business.
2.3. Prohibited Use: Except for the Permitted Use rights in Section 2.2 above, Licensee has no authorization to access or use the Licensed Product and shall not access or use the Licensed Product. In no event shall Licensee:(1) access or use the Licensed Product if it is a direct or indirect competitor of RainKing; (2) provide any portion of the Licensed Product to a direct or indirect competitor of RainKing; (3) use any portion of the Licensed Product in connection with developing or maintaining any product or service; (4) provide any Passcodes to individuals who are not Permitted Users; (5) allow anyone other than a Permitted User to access or use any portion of the Licensed Product; (6) distribute, sublicense, transfer, sell, offer for sale or disclose any portion of the Licensed Product to any third party; (7) upload or enter any portion of the Licensed Product into any publicly accessible site, network or system; or (8) use any portion of the Licensed Product in a manner that would violate any U.S., international, state or local law or regulation that may be applicable.
3. LICENSEE’S OBLIGATIONS
3.2. Licensee shall pay RainKing the License Fees as set forth on the Subscription Form. Licensee also shall provide RainKing, in writing, with the names, work email addresses and telephone numbers of its Permitted Users before such Permitted Users access the Licensed Product.
3.3. Licensee is responsible for obtaining all hardware, software and other equipment or connections necessary for its Permitted Users to access and use the Licensed Product, including as it may be modified or changed by RainKing. Licensee is solely responsible for its use of the Licensed Product, its Passcodes, and any use of the Licensed Product through its Passcodes. Licensee shall take commercially reasonable efforts to prevent unauthorized access to and use of the Licensed Product, including, without limitation, by notifying RainKing when a Permitted User ceases working for Licensee. To the extent Licensee becomes aware of any unauthorized access to or use of the Licensed Product, Licensee shall promptly notify RainKing and cooperate with RainKing’s efforts to mitigate any possible damage or further occurrence.
4. RAINKING’S OBLIGATIONS
4.1. Provided Licensee is not in breach of the Agreement, RainKing shall provide Licensee with access to the Licensed Product as specified in the Subscription Form. RainKing will ensure that the Licensed Product will be accessible to and usable by Licensee at least 95% of the time each month.
4.2. RainKing continuously makes updates to information in the Database. If Licensee finds at any time during the Term that specific contact information in the Database is not accurate to a 95% level, RainKing will have 30 days following Licensee’s written notice of such inaccuracy to correct the identified information.
5. REPRESENTATION AND WARRANTIES
RainKing and Licensee each represent and warrant that it has all requisite power and authority to enter into and carry out the terms of this Agreement, and that this Agreement has been duly authorized by all necessary actions.
6.1. Licensee may terminate this Agreement immediately, in the event of a material breach of this Agreement by RainKing that is not remedied within thirty (30) days after RainKing’s receipt of Licensee’s written notice of such breach. RainKing shall have the right, in its sole discretion, to terminate the Agreement, in whole or in part, for any the following: (1) a material breach of this Agreement by Licensee that is not remedied within thirty(30) days after Licensee’s receipt of RainKing’s written notice of such breach; (2) Licensee makes of an assignment for the benefit of its creditors, the filing by Licensee or its creditors of a voluntary or involuntary petition under any bankruptcy or insolvency law, under the reorganization or arrangement provisions of the United States Bankruptcy Code or under the provisions of any law of like import, or the appointment of a trustee or receiver for Licensee or its property which is not discharged within 30 days of such filing; (3) immediately upon Licensee’s breach of Sections 2.3 or 3.1 or 3.3; or (4) after providing Licensee with 90 days notice, RainKing ceases delivery of a particular product or market, in which case RainKing will refund a portion of the pre-paid Licensee Fee prorated based upon the discontinued product/market and the remaining period of the Term.
6.2. In the event RainKing reasonably suspects a violation of any provision of Sections 2.3 or 3.1 or 3.3, or a failure to pay License Fees, RainKing may interrupt delivery of the Licensed Product, and suspend Licensee’s rights hereunder, until such time as RainKing is reasonably assured that such violation(s) has ceased and been remedied.Licensee shall continue to be responsible for License Fees for any such interrupted / suspended period, unless there was not an actual violation.
6.3. Upon non-renewal or termination of the Agreement, Licensee may no longer access or use any portion of the Licensed Product or RainKing Intellectual Property (defined below) in any manner, and RainKing shall have no further obligation to Licensee. Within thirty (30) days after the non-renewal or termination of the Agreement, Licensee will permanently delete or destroy all portions of the Licensed Product or RainKing Intellectual Property in its possession, custody or control and, upon request, provide RainKing with written confirmation of the same.
The Agreement is a license agreement and not an agreement for sale. Licensee acknowledges that RainKing and its licensors have and shall retain exclusive ownership of all proprietary rights to the Licensed Product, including but not limited to the content, layout, functions, features, code, appearance, patents,copyrights, derivative works thereof, trademarks, trade secrets and other proprietary rights that form a part of, or are otherwise related to, the Database and the interface (collectively, the “RainKing Intellectual Property”),throughout the world regardless of whether any such rights arise under the laws of the United States of America or any other state, country or jurisdiction, and all derivative works. Licensee does not and will not have any ownership rights in the Licensed Product, the RainKing Intellectual Property or any part thereof, nor will it challenge RainKing’s rights in and to the same.
8. LIMITATION OF LIABILITY
LICENSEE’S SOLE AND EXCLUSIVE REMEDY FOR ANY UNCURED BREACH BY RAINKING OF ITS OBLIGATIONS UNDER THIS AGREEMENT IS TERMINATION BY WRITTEN NOTICE TO RAINKING,AND REFUND OF A PRORATED PORTION OF THE LICENSE FEES THAT LICENSEE HAS PAID. NEITHER RAINKING, NOR ITS RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, AGENTS, PARTNERS, SUCCESSORS AND PERMITTED ASSIGNS, SHALL BE LIABLE TO LICENSEE FOR ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT, EXEMPLARY, PUNITIVE OR SPECIAL DAMAGES THAT ARE DIRECTLY OR INDIRECTLY RELATED TO THE LICENSED PRODUCT OR THE INTERRUPTION OF THE LICENSED PRODUCT, INCLUDING WITHOUT LIMITATION, LOSS OF REVENUE OR ANTICIPATED PROFITS OR BUSINESS OR SALES INTERRUPTION, EVEN IF RAINKING, OR A REPRESENTATIVE THEREOF, HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. RAINKING’S MAXIMUM LIABILITY TO LICENSEE SHALL BE THE AMOUNTS PAID TO RAINKING FROM LICENSEE UNDER THIS AGREEMENT IN THE TWELVE (12) MONTHS PRECEDING THE EVENT GIVING RISE TO LICENSEE’S CAUSE OF ACTION.
9. NO WARRANTIES
EXCEPT AS TO ANY EXPRESS REPRESENTATIONS AND WARRANTIES MADE IN THIS AGREEMENT, THE LICENSED PRODUCT IS BEING PROVIDED “AS IS,” RAINKING MAKES NO OTHER REPRESENTATIONS OR WARRANTIES, AND RAINKING EXPLICITLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, TITLE, NONINFRINGEMENT, INTERFERENCE WITH QUIET ENJOYMENT, UNINTERRUPTED SERVICE, SECURITY, COMPLETENESS AND ACCURACY. MOREOVER, LICENSEE’S USE OF THE LICENSED PRODUCT IS AT LICENSEE’S OWN RISK, AND LICENSEE’S RELIANCE ON ANY INFORMATION IN THE LICENSED PRODUCT IS ATLICENSEE’S OWN RISK. FURTHERMORE, THERE IS NO WARRANTY THAT THE LICENSED PRODUCT OR SITE WILL OPERATE IN COMBINATION WITH OTHER SOFTWARE OR SERVICES.
This Agreement shall be binding upon and shall inure to the benefit of the Parties hereto and their successors in interest and permitted assigns, except that neither this Agreement nor obligations hereunder shall be assigned or transferred by Licensee without the prior consent of RainKing. RainKing may assign this Agreement at anytime without Licensee’s consent.
11. CORPORATE MARKETING
Licensee consents to RainKing using Licensee’s name and logo to identify Licensee as a client in connection with RainKing’s marketing efforts.
All notices, requests, approvals, consents and other communications required or permitted under this Agreement shall be in writing and shall be sent by either an overnight recognized carrier (such as FedEx,DHL, etc.) or by certified first-class mail, return-receipt requested to the addresses set forth in the Subscription Form with a copy sent via email to [email protected] Notice is deemed given when it is received.
13. FORCE MAJEURE:
If and to the extent that RainKing’s performance of any of its obligations pursuant to this Agreement is prevented or delayed by fire, acts of God, acts of war, terrorism, riots, or any other similar or dissimilar cause beyond the reasonable control of RainKing (each, a “Force Majeure Event”), then RainKing shall be excused for such non-performance, as applicable, of those obligations affected by the Force Majeure Event for as long as such Force Majeure Event continues. If such Force Majeure Event continues for a period of two months or more, either Party shall have the right to terminate this Agreement effective at any time during the continuation of such Force Majeure Event by giving the other Party at least 30 days written notice to such effect.
Licensee agrees to indemnify, defend and hold RainKing, 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 Licensee’s (including its employees, agents and contractors) breach or alleged breach of any representation, warranty or obligation of this Agreement.
15. GOVERNING LAW / REMEDIES
This Agreement and all disputes, claims, actions, suits or other proceedings arising hereunder shall be governed by, and construed in accordance with, the substantive law of the State of Maryland applicable to contracts wholly made and to be performed within the State of Maryland without giving effect to the conflict of law principles thereof. However, Licensee shall not bring any action or proceeding based on this Agreement more than one (1) year after the cause of action occurs. Additionally, any claim or controversy arising out of or relating to this Agreement, or breach or anticipated breach of this Agreement by Licensee will cause irreparable injury to RainKing, and RainKing may seek specific performance and/or injunctive relief or any and all other available legal relief for damages in any appropriate court. Any controversy or claim arising out of or relating to this Agreement, or breach thereof, shall be brought by Licensee in the Circuit Court of Montgomery County, Maryland or the Federal District Court of Maryland and Licensee irrevocably consents to the exercise of personal jurisdiction over Licensee by such courts and waives any right to plead, claim or allege that Maryland is an inconvenient forum.
This Agreement constitutes the entire agreement between the Parties and supersedes any prior negotiations, representations and promises, written or oral with respect to the subject matter hereof. This Agreement may only be amended in a writing designated as such and signed by both parties. If any provision of this Agreement is held unenforceable or invalid, the remaining provisions shall nevertheless be binding upon the respective parties hereto with the same effect as though the invalid or unenforceable provision was deleted. No delay by a party in the enforcement of, or failure to enforce, any provision or right hereunder shall operate as a waiver of such right. Licensee agrees to keep the terms of this Agreement confidential. The following provisions and any representation or warranty made herein shall survive expiration or the earlier termination of this Agreement: Sections 2.3, 3, 7-9, and 13-15. This Agreement may be executed in several counterparts and via electronic signature, each of which will be deemed to be an original. This Agreement may be transmitted by facsimile or digitally, and it is the intent of the Parties for that a copy of the facsimile/electronic signature be an original signature and any complete photocopy of this Agreement to be deemed an original counterpart.