Definitions

1.1 “Authorized User” means an employee or independent contractor of Client, which shall not include affiliates of Client, that has (i) been authorized by Client to access the Services on behalf of Client, (ii) been assigned a unique username-password combination to access and use the Services, and (iii) registered through the Site to access and use the Services.

1.2 “Content” means data or information that the Company has culled and made available through the Services Platform for Client’s use pursuant to the Content License (as defined in Section 6.2).

1.3 “Fees” means the fees as described in Section 5.1 and detailed on the Site.

1.4 “Intellectual Property Rights” means patent rights (including, without limitation, patent applications and disclosures), copyrights, trade secrets, moral rights, know-how, and any other intellectual property rights recognized in any country or jurisdiction in the world.

1.5 “Services Platform” means the proprietary platform hosting the Content.

1.6 “Services” means the Content, Services Platform, and related services provided by Company that enable Client to view, analyze, and download Content. The Services features and capabilities available to Client shall be limited to those detailed on the Site. Access shall be restricted to Client’s Authorized Users. The Services also includes the Company’s “Experience-it” program with limited features available through the Site.

1.7 “Term” means the term of this Agreement, which shall run for one year from the date the Client account is created per Section 2.1 and continue to renew on a monthly basis until terminated pursuant to the terms of this Agreement.

1.8 “Usage Data” means data the Company has collected regarding Client’s use of the Services including what Content Client reviews and the frequency of Client’s access.

Registration

2.1 Accounts. The Client shall register to use the Services by providing certain profile and contact information to the Company, which will be used to create a Client account. Client accounts will be accessible to Authorized Users through individual access credentials. Each Authorized User shall have independent access credentials. Client and Authorized Users are responsible for maintaining the accuracy of registration information and the confidentiality of their usernames and passwords and shall not share usernames or passwords with anyone, including other employees of Client that are not Authorized Users.

Client Obligations

4.1 Cooperation and Assistance. As a condition to Company’s obligations hereunder, Client shall at all times: (a) provide Company with good faith cooperation and access to such information as may be reasonably required by Company in order to provide the Services, including, but not limited to, providing registration information and security access; and (b) carry out in a timely manner all other Client responsibilities set forth in this Agreement.

4.2 Publicity and Use Restrictions. The Content is provided solely for Client’s internal business needs. Client shall not sell Content or access to the Services. Client shall not publish, reproduce, modify, or copy Content for external use without Company’s written permission.

4.3 User Content. “User Content” is defined as any content, information, and materials in any media that you provide, submit, upload, publish, or make otherwise available to the Services through the Site. User Content includes, without limitation, queries submitted through the Services and documents uploaded to the Service.

You agree that you are solely responsible for the User Content, User Content sent or transmitted by you or displayed or uploaded by you in using the Services, and for compliance with all laws applicable to the User Content, including, but not limited to, any laws requiring you to obtain the consent of a third party to use the User Content and to provide appropriate notices of third party rights. You represent and warrant that you have the right to upload the User Content to the Services and that such use does not violate or infringe on any rights of any third party. Under no circumstances will the Company be liable in any way for any (a) User Content that is transmitted or viewed while using the Services, (b) errors or omissions in the User Content, or (c) any loss or damage of any kind incurred as a result of the use of, access to, or denial of access to User Content. Although the Company is not responsible for any User Content, the Company reserves the right to delete any User Content, at any time without notice to you, if the Company becomes aware that it violates any provision of this Agreement or any law. You retain copyright and other rights you already hold in User Content.

You acknowledge and agree that the Company:

You hereby represent and warrant to the Company that your User Content (i) will not be false, inaccurate, incomplete or misleading; (ii) will not infringe on any third party’s copyright, patent, trademark, trade secret or other proprietary right or rights of publicity, personality or privacy; (iii) will not violate any law, statute, ordinance, or regulation (including without limitation those governing export control, consumer protection, unfair competition, anti-discrimination, false advertising, anti-spam or privacy); (iv) will not be defamatory, libelous, unlawfully threatening, or unlawfully harassing; (v) will not be obscene or contain pornography (including but not limited to child pornography) or be harmful to minors; (vi) will not contain any viruses, Trojan Horses, worms, time bombs, cancelbots or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information; and (vii) will not create liability for the Company or cause the Company to lose (in whole or in part) the services of its ISPs or other suppliers.

By making available any User Content through the Services, you hereby grant to the Company an irrevocable, transferable, sublicensable (through multiple tiers), fully paid, royalty-free and worldwide right and license to use, copy, access, store, modify and display such User Content: to further the Company’s legitimate interests in providing the Services; to provide, maintain and improve the Services; to perform such other actions as authorized by you in connection with your use of the Services; and such other purposes identified in the Privacy Policy. We do not claim any ownership rights in any such User Content and nothing in this Agreement will be deemed to restrict any rights that you may have to use and exploit any such User Content. The Company will not access, view or process User Content, except (a) as provided for in this Agreement or the Privacy Policy; (b) as authorized or instructed by you; (c) as required to perform its obligations under this Agreement; or (d) as required by applicable law. The Company has no other obligations with respect to User Content.

4.4 Enforcement. Client shall ensure that all Authorized Users comply with the terms and conditions of this Agreement, including, without limitation, with Client’s obligations set forth in Sections 3.2 and 3.3. Client shall promptly notify Company of any suspected or alleged violation of the terms and conditions of this Agreement and shall cooperate with Company with respect to: (a) investigation by Company of any suspected or alleged violation of this Agreement and (b) any action by Company to enforce the terms and conditions of this Agreement. Company may suspend or terminate any Authorized User’s access to the Services upon notice to Client in the event that Company reasonably determines that such Authorized User has violated the terms and conditions of this Agreement. Client shall be liable for any violation of the terms and conditions of this Agreement by any Authorized User.

4.5 Telecommunications and Internet Services. Client acknowledges and agrees that Client’s and its Authorized Users’ use of the Services is dependent upon access to telecommunications and Internet services. Client shall be solely responsible for acquiring and maintaining all telecommunications and Internet services and other hardware and software required to access and use the Services, including, without limitation, any and all costs, fees, expenses, and taxes of any kind related to the foregoing. Company shall not be responsible for any loss or corruption of Content, the Services Platform, lost communications, or any other loss or damage of any kind arising from any such telecommunications and Internet services.

Fees and Taxes

5.1 Fees. In consideration for Company providing the Services, Client shall pay to Company the Fees in accordance with the Service selections made through the Site. Fees are paid in advance on a monthly, quarterly, or yearly basis as indicated on the Site. Fees shall be pro-rated for any partial month of Services should the Term begin on any day other than the first day of the month. Access to Experience-it is available to Authorized Users free of charge for the duration of the trial period upon proper registration and acceptance of these terms and conditions.

5.2 Taxes. All amounts and fees stated or referred to in this Agreement are exclusive of taxes, duties, levies, tariffs, and other governmental charges (including, without limitation, VAT) (collectively, “Taxes”). Client shall be responsible for payment of all Taxes and any related interest and/or penalties resulting from any payments made hereunder, other than any taxes based on Company’s net income.

Intellectual Property.

6.1 Ownership. As between Company and Client, the Usage Data, Services (including all copies of the Services Platform, the Content available therein, and all Intellectual Property Rights therein or relating thereto, are and shall remain the exclusive property of Company or its licensors.

6.2 Grant of License. Subject to Client’s compliance with the terms and conditions of this Agreement, Company grants Client a non-exclusive, non-transferable, non-sublicensable, revocable license for to use the Content available through the Services solely for Client’s internal business purposes (the “Content License”). The Company reserves all rights in the Usage Data and Services not expressly granted to Client in this Agreement.

Confidentiality

7.1 Definition. By virtue of this Agreement, the parties may have access to each other’s Confidential Information. “Confidential Information,” as used in this Agreement, means any written, machine-reproducible and/or visual materials, whether labeled as proprietary, confidential, or with words of similar meaning or not, and all information that is orally or visually disclosed, which a reasonable person would understand to be confidential given the nature of the information and circumstances of disclosure. Company Confidential Information includes, without limitation, the Usage Data, the Services Platform, including the Content therein, and Services, including any software whether in source or executable code, documentation, nonpublic financial information, pricing, business plans, techniques, methods, processes, and the results of any performance tests of the Services. The terms and conditions of this Agreement shall be deemed the Confidential Information of both parties and neither party shall disclose such information except to such party’s advisors, accountants, attorneys, investors (and prospective investors), and prospective acquirers as have a reasonable need to know such information, provided that any such third parties shall, before they may access such information, either (a) execute a binding agreement to keep such information confidential or (b) be subject to a professional obligation to maintain the confidentiality of such information.

7.2 Exclusions. Confidential Information shall not include information that: (a) is or becomes publicly known through no act or omission of the receiving party; (b) was in the receiving party’s lawful possession prior to the disclosure; (c) is rightfully disclosed to the receiving party by a third party without restriction on disclosure; or (d) is independently developed by the receiving party, which independent development can be shown by written evidence.

Warranty

8.1 Warranty for Services. The Services, including without limitation the Content and Services Platform are provided “AS IS”, without warranty of any kind. COMPANY AND ITS THIRD PARTY CONTENT PROVIDERS MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, IN CONNECTION WITH THIS AGREEMENT OR THE SERVICES. WITHOUT LIMITING THE FOREGOING, COMPANY AND ITS THIRD PARTY CONTENT PROVIDERS DISCLAIM ANY WARRANTY THAT THE SERVICES WILL BE ERROR FREE OR UNINTERRUPTED OR THAT ALL ERRORS WILL BE CORRECTED. COMPANY AND ITS THIRD PARTY CONTENT PROVIDERS FURTHER DISCLAIM ANY AND ALL WARRANTIES WITH RESPECT TO THE SERVICES AS TO MERCHANTABILITY, ACCURACY OF ANY INFORMATION PROVIDED, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. COMPANY FURTHER DISCLAIMS ANY AND ALL WARRANTIES ARISING FROM COURSE OF DEALING OR USAGE OF TRADE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM COMPANY OR ELSEWHERE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.

SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES IN CERTAIN CIRCUMSTANCES. ACCORDINGLY, SOME OF THE LIMITATIONS SET FORTH ABOVE MAY NOT APPLY.

8.2 Disclaimer. Client assumes sole responsibility and liability for results and Content obtained from the use of the Services and for conclusions drawn from such use. Company shall have no liability for any claims, losses, or damage caused by errors or omissions in any information provided to Company by Client in connection with the Services or any actions taken by Company at Client’s direction. Company shall have no liability for any claims, losses or damages arising out of or in connection with Client’s or any Authorized User’s use of any third-party products, services, software or web sites that are accessed via links from within the Services.

Term and Termination

9.1 Termination for Cause. Either party may terminate this Agreement upon written notice if the other party materially breaches this Agreement and fails to correct the breach within fifteen (15) days following written notice specifying the breach; provided that the cure period for any default with respect to payment shall be five (5) business days. If Company terminates this Agreement based on Client’s failure to pay Fees required under Section 5.1, then Client shall owe Company all of the fees due for the full Term.

9.2 Termination for Insolvency. Subject to Title 11 of the United States Code, if either party becomes or is declared insolvent or bankrupt, is the subject of any proceedings relating to its liquidation, insolvency, or for the appointment of a receiver or similar officer for it, or makes an assignment for the benefit of any creditor, then the other party may terminate this Agreement upon thirty (30) days’ written notice.

9.3 Rights and Obligations Upon Expiration or Termination. Upon expiration or termination of this Agreement, Client’s and the Authorized Users’ right to access and use the Services shall immediately terminate. Client and its Authorized Users shall immediately cease all use of the Services, and each party shall return and make no further use of the Services, any Confidential Information, materials, or other items (and all copies thereof) belonging to the other party.

9.4 Survival. The rights and obligations of Company and Client contained in Sections 4.2 (Publicity and Use Restrictions), 5 (Fees and Taxes), 6 (Intellectual Property), 7 (Confidentiality), 9.3 (Rights and Obligations Upon Expiration or Termination), 9.4 (Survival), 10 (Indemnification), 11 (Limitation of Liability), 12 (Acknowledgement), and 13 (General) shall survive any expiration or termination of this Agreement.

Indemnification

10.1 Indemnification by Client. Client shall defend (or settle), indemnify and hold harmless Company, its officers, directors and employees, from and against any liabilities, losses, damages and expenses, including court costs and reasonable attorneys’ fees, arising out of or in connection with any third-party claim that: (i) a third party has suffered injury, damage or loss resulting from Client’s or an Authorized User’s use of the Services (other than any claim for which Company is responsible under Section 10.2); or (ii) Client or any Authorized User has breached any term or condition of this Agreement. Client’s obligations under this Section 10.1 are contingent upon: (a) Company providing Client with prompt written notice of such claim; (b) Company providing reasonable cooperation to Client, at Client’s expense, in the defense and settlement of such claim; and (c) Client having sole authority to defend or settle such claim.

10.2 Indemnification by Company. Company shall defend (or settle) any suit or action brought against Client to the extent that it is based upon a claim that the Services infringe or misappropriate the Intellectual Property Rights of any third party, and will pay any costs, damages and reasonable attorneys’ fees attributable to such claim that are awarded against Client. Company’s obligations under this Section 10.2 are contingent upon: (a) Client providing Company with prompt written notice of such claim; (b) Client providing reasonable cooperation to Company, at Company’s expense, in the defense and settlement of such claim; and (c) Company having sole authority to defend or settle such claim. In the event that Company’s right to provide the Services is enjoined or in Company’s reasonable opinion is likely to be enjoined, Company may obtain the right to continue providing the Services, replace or modify the Services so that they become non-infringing, or, if such remedies are not reasonably available, terminate this Agreement without liability to Client. THE FOREGOING STATES THE ENTIRE OBLIGATION OF COMPANY AND ITS LICENSORS WITH RESPECT TO ANY ALLEGED OR ACTUAL INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS BY THE SERVICES. Company shall have no liability under this Section 10.2 to the extent that any third-party claims described herein are based on use of the Services in a manner that violates this Agreement or the instructions given to Client by Company.

Limitation of Liability

EXCEPT FOR LIABILITY ARISING FROM A BREACH OF SECTIONS 3.2, 3.3, 6, 7 OR 10, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING LOSS OF INCOME, DATA, PROFITS, REVENUE OR BUSINESS INTERRUPTION, OR COST OF SUBSTITUTE SERVICES, OR OTHER ECONOMIC LOSS, WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND WHETHER ANY CLAIM FOR RECOVERY IS BASED ON THEORIES OF CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY) OR OTHERWISE.

EXCEPT FOR WITH RESPECT TO LIABILITY ARISING FROM A BREACH OF SECTIONS 3.2, 3.3, 6 OR 7 OR FROM SECTION 10, NOTWITHSTANDING ANY OTHER PROVISIONS OF THIS AGREEMENT, IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY TO THE OTHER OR ANY THIRD PARTY IN CONNECTION WITH THIS AGREEMENT OR CLIENT’S ACCESS TO AND USE OF THE SERVICES EXCEED THE AGGREGATE FEES PAID BY CLIENT IN THE TWELVE MONTH PERIOD PRECEEDING THE CLAIM OR ACTION, REGARDLESS OF THE FORM OR THEORY OF THE CLAIM OR ACTION.

Acknowledgement

The parties acknowledge that the limitations and exclusions contained in Section 11 and elsewhere in this Agreement have been the subject of negotiation between the parties and represent the parties’ agreement based upon the perceived level of risk associated with their respective obligations under this Agreement, and the payments made hereunder. Without limiting the generality of the foregoing, the parties acknowledge and agree that (a) the provisions hereof that limit liability, disclaim warranties or exclude consequential damages or other damages or remedies shall be severable and independent of any other provisions and shall be enforced as such, regardless of any breach hereunder, and (b) all limitations of liability, disclaimers of warranties, and exclusions of consequential damages or other damages or remedies shall remain fully valid, effective and enforceable in accordance with their respective terms, even under circumstances that cause an exclusive remedy to fail of its essential purpose.

General

13.1 Governing Law. This Agreement and all matters arising out of or relating to this Agreement shall be governed by the laws of the State of California, without regard to its conflict of law provisions. Any legal action or proceeding relating to this Agreement shall be brought exclusively in the state or federal courts located in the Northern District of California. Company and Client hereby agree to submit to the jurisdiction of, and agree that venue is proper in, those courts in any such legal action or proceeding.

13.2 Modification and Waiver. Company reserves the right at its sole and absolute discretion, to change, modify, add to, supplement, suspend, discontinue, or delete any of the terms and conditions of this Agreement (including these Terms of Service and Privacy Policy) and review, improve, modify or discontinue, temporarily or permanently, the Services or any content or information through the Services at any time, effective with or without prior notice and without any liability to the Company. The Company will endeavor to notify you of material changes by email or posting a notice on the Services, but will not be liable for any failure to do so. If any future changes to this Agreement are unacceptable to you or cause you to no longer be in compliance with this Agreement, you must terminate, and immediately stop using, the Services. Your continued use of the Services following any revision to this Agreement constitutes your complete and irrevocable acceptance of any and all such changes. The Company may also impose limits on certain features or restrict your access to part or all of the Services without notice or liability.

13.3 Notices. All notices, including notices of address change, required to be sent hereunder shall be in writing and shall be sent to the addresses provided in Client’s registered account and to the Company’s address available at the Site. The notices shall be deemed to have been given upon: (a) the date actually delivered in person; (b) the day after the date sent by overnight courier; or (c) three (3) days following the date such notice was mailed by first class mail. Notices may be confirmed by email or fax.

13.4 Severability. In the event any provision of this Agreement is held to be invalid or unenforceable, the remaining provisions of this Agreement shall remain in full force and effect.

13.5 Force Majeure. Neither party shall be liable hereunder by reason of any failure or delay in the performance of its obligations hereunder (except for the payment of money) on account of events beyond the reasonable control of such party, which may include without limitation denial-of-service attacks, strikes, shortages, riots, insurrection, fires, flood, storm, explosions, acts of God, war, terrorism, governmental action, labor conditions, earthquakes and material shortages (each a “Force Majeure Event”). Upon the occurrence of a Force Majeure Event, the non-performing party will be excused from any further performance of its obligations effected by the Force Majeure Event for so long as the event continues and such party continues to use commercially reasonable efforts to resume performance.

13.6 Compliance with Laws. Each party agrees to comply with all applicable laws and regulations with respect to its activities hereunder, including, but not limited to, any export laws and regulations of the United States.

13.7 Relationship Between the Parties. Nothing in this Agreement shall be construed to create a partnership, joint venture or agency relationship between the parties. Neither party will have the power to bind the other or to incur obligations on the other’s \behalf without such other party’s prior written consent.

13.8 Assignment/Successors. Neither party may assign this Agreement (by operation of law or otherwise) hereunder without the prior written consent of the other party; provided, however, that Company may assign this Agreement to a successor to all or substantially all of its business or assets, whether by sale, merger, or otherwise. Any attempted assignment in violation of this section shall be void. Subject to the foregoing restrictions, this Agreement shall inure to the benefit of the successors and permitted assigns of the parties.

13.9 Entire Agreement. These Terms and Conditions together with Service selections made through the Site constitute the complete and exclusive agreement between the parties concerning its subject matter and supersedes all prior or contemporaneous agreements or understandings, written or oral, concerning the subject matter of this Agreement.

13.10 Non-Exclusive Remedies. Except as set forth in Section 10.2, the exercise by either party of any remedy under this Agreement will be without prejudice to its other remedies under this Agreement or otherwise.

13.11 Equitable Relief. Each party acknowledges that a breach by the other party of any confidentiality or proprietary rights provision of this Agreement may cause the non-breaching party irreparable damage, for which the award of damages would not be adequate compensation. Consequently, the non-breaching party may institute an action to enjoin the breaching party from any and all acts in violation of those provisions, which remedy shall be cumulative and not exclusive, and a party may seek the entry of an injunction enjoining any breach or threatened breach of those provisions, in addition to any other relief to which the non-breaching party may be entitled at law or in equity.

13.12 No Third-Party Beneficiaries. This Agreement is intended for the sole and exclusive benefit of the signatories and is not intended to benefit any third party. Only the parties to this Agreement may enforce it.

13.13 Headings. The headings in this Agreement are for the convenience of reference only and have no legal effect.