1.1 “Account” means a user account set-up for Evaluation Access to the Platform and/or a billing account set up for Paid Access to the Platform.
1.2 “Authorized User” means those uniquely identified individuals for whom you have registered and/or purchased a license to access the Platform, regardless of whether those individuals are actively using the Platform at any given time.
1.3 “Evaluation Access” means free or trial access to the Platform that we make available for a limited period of time and/or with limited features solely to evaluate the Platform for purposes of determining whether to purchase Paid Access.
1.4 “Evaluation Period” means the limited time period specified on the applicable Ordering Pages for which Evaluation Access is granted.
1.5 “Ordering Pages” means the pages of our website on which you order Evaluation Access or Paid Access to the Platform or, in certain instances, a document executed between you and us.
1.6 “Paid Access” means the level of access to the Platform you may order for a fee for a specific Subscription Period.
1.7 “Platform” means our “DSCVR” product, a cloud-based big data analysis solution provided on a self-service or partially managed basis under the Agreement to enable you to process Your Data.
1.8 “Registration Information” means all information you submit when registering for either Evaluation Access or Paid Access to the Platform, including without limitation name, email address, mailing address, password, User ID, payment information, and any other optional or required information.
1.9 “Services” means our “data jump start” services or any other service we may perform for you in connection with the Platform.
1.10 “Subscription Fees” means all fees specified on the Ordering Pages for Paid Access.
1.11 “Subscription Period” means the time period set forth on the Ordering Pages that starts and ends on the dates specified on the Ordering Pages when your Paid Access to the Platform is valid.
1.12 “Third-Party Applications” means online, web-based, and/or offline computer applications and software products that are provided by you or a third party which you elect to interoperate with the Platform.
1.13 “Third-Party Data” means electronic data or information compiled, owned or controlled by a third party that we make available to you for use within the Platform.
1.14 “User Guide” means the online user guide for the Platform made available to you and your Authorized Users, as may be updated from time to time in our sole discretion.
1.15 “Your Data” means your Registration Information and all electronic data or information submitted to the Platform on or through your Account.
2.5 Authorized Users. If you register for Paid Access, you may grant access to Authorized Users, provided that we reserve the right to limit the number of Authorized Users, in which case: (a) the Platform may be accessed concurrently or individually by no more than the number of Authorized Users specified on the Ordering Pages, (b) we may permit the addition of more Authorized Users during the Subscription Period for an additional Subscription Fee, and (c) permitted access by the pre-existing Authorized Users and additional Authorized Users will both terminate at the end of the Subscription Period. Access to the Platform is for designated Authorized Users and cannot be shared or used by more than one Authorized User but may be reassigned to new Authorized Users replacing former Authorized Users who no longer require ongoing use of the Platform. You will (i) not make the Platform available to anyone other than Authorized Users; and (ii) be responsible for Authorized Users’ use of the Platform and compliance with the Agreement. Any violation of the Agreement by your Authorized Users shall be deemed to be a violation by you.
2.6 Restrictions. You will not, nor shall you assist or permit any Authorized User or third-party to: (i) sell, resell, rent, lease, distribute the Platform, or use it for timesharing, service bureau, outsourcing, or similar commercial purposes, (ii) upload to or use the Platform to store, analyze, process, copy, reproduce or transmit any data, information, content, or other material that you are not authorized to, or that is infringing, libelous, defamatory, offensive, abusive, indecent, obscene unlawful, tortious, or violates any third-party rights, (iii) upload to or use the Platform to store or transmit any viruses, cancelbots, worms, time bombs, Trojan horses, or other harmful or malicious computer code, files, scripts, agents, or programs, (iv) interfere with or disrupt the speed, integrity, or performance of the Platform or third-party data contained therein, (v) attempt to gain unauthorized access to the Platform or its related systems or networks, (vi) modify, change, alter, or otherwise create derivative works based on the Platform, (vii) copy, reproduce, frame, or mirror any part or content of the Platform, (viii) reverse engineer, disassemble, or decompile the Platform, attempt to circumvent any security protocol, or try to discern the source code or structure, sequence or organization of all or any part of the Platform, (ix) access the Platform in order to build a competitive product or service, (x) copy any features, functions, designs, graphics, or the look-and-feel of the Platform, (xi) alter, remove, or conceal any proprietary rights marking, notice or label in or on the Platform or User Guide; (xii) use the Platform in a manner (or to process any data) that is fraudulent or violates any applicable law or government regulation; (xiii) use the Platform for chain letters, junk mail, spamming, or otherwise to contact individuals with which you do not have a preexisting business relationship or permission to communicate with; or (xiv) exceed any restriction(s) set forth in the Ordering Pages on the level of access to the Platform, number of Authorized Users, and/or storage limitations. You understand that we may monitor your use of the Platform in order to verify that you have not violated any of the restrictions in this Section 2.6. If we detect any such violation, we will, in addition to, and not exclusive of, any other remedies at law or in equity: (a) have the right to audit your equipment and systems used to access the Platform and require you to take immediate corrective actions, and (b) if any such audit confirms any excess usage of the Platform, then you will pay for the excess usage at our then-current rates and reimburse us for the reasonable costs of such audit.
2.7 Platform Modifications. You acknowledge that the Platform was not designed or produced to your individual requirements, that you were responsible for its selection, and that we make the Platform available to a variety of customers. We reserve the right to implement upgrades, updates, patches, fixes, changes and modifications to the Platform at any time (“Platform Modifications”), provided that if a Platform Modification materially diminishes the functionality of the Platform: (a) we will use commercially reasonable efforts to communicate such Platform Modification to you in advance; and (b) if you disapprove of such Platform Modification, you have the right exercisable no later than thirty (30) days after such Platform Modification has been implemented, as your sole remedy, to terminate your access to the Platform upon written notice to us.
3.1 Third-Party Products. You may only install or use with the Platform third-party products and services, including but not limited to Third-Party Applications, Third-Party Data and implementation, customization and other consulting services (collectively, “Third-Party Products”), that we authorize and/or you purchase from us, except as we may otherwise agree explicitly in writing. Any acquisition or use by you of such Third-Party Products, and any exchange of data between you and any third-party provider, is solely: (a) between you and the applicable third-party provider; and (b) at your own risk and sole liability. We do not warrant or support Third-Party Products, nor that any Third-Party Products will interoperate or work with the Platform.
3.2 Third-Party Applications and Your Data. If you install or enable Third-Party Applications for use with the Platform, you acknowledge that we may allow providers of those Third-Party Applications to access Your Data as required for the interoperation of such Third-Party Applications with the Platform. We are not responsible for any disclosure, modification or deletion of Your Data resulting from any such access by Third-Party Application providers.
4.1 Subscription Fees. You agree to pay all Subscription Fees billed to your Account. Except as otherwise set forth in the Agreement or explicitly agreed by us, (i) Subscription Fees are quoted and payable in United States dollars (ii) Subscription Fees are based on the level of access to the Platform, or the amount of storage and/or number of Authorized Users you purchase, and (iii) payment obligations are non-cancelable and all Subscription Fees paid are non-refundable.
4.2 Invoicing and Payment. All Subscription Fees will be charged automatically to your designated payment method in advance, in accordance with the billing frequency selected on the Ordering Pages. You are responsible for maintaining complete and accurate billing and contact information. If billing and contact information is not complete and/or accurate, we reserve the right to terminate or suspend access to the Platform.
4.3 Overdue Charges. If any charges are not received from you by the due date, then at our discretion, (a) such charges may accrue interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid, and/or (b) we may terminate or suspend access to the Platform.
4.4 Suspension of Platform Access and Acceleration. If any amount owing by you under this or any other agreement between the parties is overdue, we may, without limiting our other rights and remedies, cancel any extended payment plans or discounts awarded and accelerate all unpaid Subscription Fee obligations under such agreements for the entire Subscription Period at the undiscounted rates so that all such obligations become immediately due and payable, and suspend access to the Platform to you until such amounts are paid in full.
4.5 Taxes. Unless otherwise stated, Subscription Fees do not include any taxes, levies, duties, or similar governmental assessments of any nature, including but not limited to value-added, sales, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, “Taxes”). You are responsible for paying all Taxes associated with your purchases hereunder. If we have the legal obligation to pay or collect Taxes for which you are responsible under this paragraph, we will invoice you the appropriate amount and you agree to pay such amount, unless you provide us with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, we are solely responsible for taxes assessable against us based on our income, property, and employees.
5.1 Reservation of Rights. Subject to the limited rights expressly granted hereunder, we reserve all rights, title and interest, including any and all intellectual property rights, in and to the Platform, Third-Party Data, the User Guide, and all materials and methodology used in performing the Services, including without limitation all software (both source code and object code), designs, plans, programs, tools, utilities, technology, processes, frameworks, functionality, algorithms, methodologies, specifications, documentation, techniques and other materials incorporated therein. No rights are granted to you hereunder other than as expressly set forth herein.
5.2 Feedback. We will have a royalty-free, worldwide, transferable, sub-licensable, irrevocable, perpetual license to use, copy, modify, or distribute, including by incorporating into the Platform or any other product or service owned and/or under development by us, any suggestions, enhancement requests, recommendations or other feedback provided by You and any Authorized Users, relating to the Platform, the Services, or any other product or service owned or provided by us.
6.1 General. You are solely responsible for the accuracy, quality, integrity, and legality of Your Data and of the means by which you acquired Your Data. You represent and warrant that (i) you have sufficient rights in Your Data to authorize us to perform the Services, and process, upload, import, store, distribute and display Your Data as contemplated by the Agreement and User Guide, (ii) Your Data and its use hereunder will not violate or infringe the rights of any third party, and (iii) your use of the Platform and all of Your Data is at all times compliant with your privacy policies and all applicable local, state, federal and international laws, regulations and conventions, including without limitation those related to data privacy, international communications and the exportation of technical or personal data.
6.2 Health Information. To the extent any patient, medical or other protected health information regulated by the Health Insurance Portability Act as amended and supplemented (“HIPAA”) or any similar federal or state laws, rules or regulations, is imported or uploaded to the Platform by or on behalf of you, you acknowledge that we are not a Business Associate as defined under HIPAA and that we make no representation or warranty that the Platform is compliant with HIPAA.
6.3 Payment Card Data. To the extent any payment card information is imported or uploaded to the Platform by or on behalf of you, you acknowledge that we make no representation or warranty that the Platform is compliant with the Payment Card Industry Data Security Standards.
6.5 Storage of Your Data. We do not commit to providing an archiving service. You are responsible for retrieving Your Data from the Platform upon expiration or earlier termination of your Subscription Term or Evaluation Period. We expressly disclaim all obligations, warranties, representations, and liability with respect to storage of Your Data.
7.1 Limited Warranty. We warrant that the Platform will operate in substantial conformity with the applicable User Guide. Our sole liability (and your sole and exclusive remedy) for any breach of this warranty shall be, in our sole discretion and at no charge to you, to use commercially reasonable efforts to correct the reported non-conformity, or if we determine such remedy to be impracticable, to allow you to terminate the applicable Subscription Period and receive as your sole remedy a pro-rata refund of any monthly Subscription Fees you prepaid for the thirty (30) day period prior to the date the warranty claim was made.
7.2 Exclusions. The above warranty shall not apply: (i) unless you make a claim within thirty (30) days of the date on which the condition giving rise to the claim first appeared; (ii) if the Platform is used with hardware or software not authorized in the User Guide; (iii) if the error was caused by misuse, unauthorized modifications or third-party hardware, software or services (including Third-Party Applications); or (iv) to any Evaluation Access or other use provided on a no charge or evaluation basis.
7.3 Disclaimer. EXCEPT AS SET FORTH HEREIN, THE SERVICES, ACCESS TO THE PLATFORM AND ALL MATERIALS AND INFORMATION IN CONNECTION THEREWITH (INCLUDING THIRD-PARTY DATA) IS PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTY OF MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE. WE DO NOT GUARANTEE THAT THE USE OF THE PLATFORM WILL BE UNINTERRUPTED OR ERROR-FREE, THAT THE PLATFORM IS COMPLIANT WITH ANY SPECIFIC DATA PROTECTION LAWS OR PRIVACY LAWS APPLICABLE TO YOU, THAT THE PLATFORM WILL PRESERVE OR MAINTAIN YOUR DATA WITHOUT LOSS, OR THAT THE PLATFORM OR SERVICES WILL MEET YOUR NEEDS OR EXPECTATIONS. WE SHALL NOT BE LIABLE FOR ANY ALLEGED BREACH OF SPECIFIC DATA PROTECTION OR PRIVACY LAWS APPLICABLE TO PERSONAL INFORMATION OF THIRD PARTIES THAT YOU UPLOAD OR CAUSE TO BE UPLOADED ONTO THE PLATFORM. THE FOREGOING WARRANTY IS EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES.
8.1 Indemnification by Us. If a third-party claims that your use of the Platform as provided to you infringes any United States patent, copyright, trademark or trade secret, you must promptly notify us in writing. We will defend you against such claim if you reasonably cooperate with us and allow us to control the defense and all related settlement negotiations, and then we will indemnify you from and against any damages finally awarded for such infringement or settlements entered into by us on your behalf. Notwithstanding the foregoing, we will have no liability, and will have no obligation to defend or indemnify you, for any third-party claim of infringement based upon (a) use of other than the then-current, unaltered version of the Platform; (b) use, operation or combination of any aspect of the Platform with programs, data, equipment or documentation other than ours if such infringement would have been avoided but for such use, operation or combination; (c) any Third-Party Applications, or other software, code, or materials of third-parties, including any “open source”, “Creative Commons” or other publicly-licensed materials; (d) Third-Party Data; or (e) Your Data. In the event the use of the Platform is, or we believe is likely to be, alleged or held to infringe any third-party intellectual property right, we may, at our sole option and expense, (i) procure for you the right to continue using the affected aspect of the Platform, (ii) replace or modify the affected aspect of the Platform with substantially equivalent functionality so that it does not infringe, or, if either (i) or (ii) is not commercially feasible, (iii) terminate the Agreement and refund the Subscription Fees received by us from you for the affected aspect of the Platform for the remaining term of the then-current Subscription Period. The foregoing constitutes our entire liability, and your sole and exclusive remedy with respect to any third-party claims of infringement of intellectual property rights.
8.2 Indemnification by You. You will defend and hold us harmless from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney’s fees) arising from your use of and access to the Platform except for claims covered by Section 8.1 above, including without limitation in connection with: (i) your violation of the Agreement; (ii) Your Data; (iii) Third-Party Applications; or (iv) your violation of any third-party right, including without limitation any copyright, property, or privacy right. In the event indemnification is sought by us, we will (a) promptly give you written notice of the claim (provided that no failure to do so will relieve your obligations hereunder except to the extent you suffer actual prejudice by such failure; (b) give you sole control of the defense and settlement of the claim (provided that we may participate in such defense and settlement through attorneys of our own choosing at our own cost and you may not settle any Claim unless the settlement unconditionally release us of all liability); and (c) provide to you all reasonable assistance, at our expense.
9.1 Limitation of Liability. To the maximum extent permitted by applicable law, in no event will: (A) We or other person or entity claiming through US under any equity, common law, contract, estoppel, negligence, tort, strict liability or any other theory (regardless of the form of action) be liable for any indirect, special, incidental, consequential or exemplary damages arising out of or in any way relating to the Agreement, THE SERVICES or the Platform including, without limitation, damages for loss of goodwill, work stoppage, lost profits, loss of data, computer failure or any and all other commercial damages or losses even if advised of the possibility thereof and regardless of the legal or equitable theory (contract, tort or otherwise) upon which the claim is based; and (B) OUR aggregate and cumulative liability arising out of or relating to the Agreement exceed the amounts received by us from you during twelve (12) months immediately preceding the first event giving rise to liability.
9.2 Basis of Bargain. The parties acknowledge and agree that the foregoing sections on warranties and disclaimers, indemnification and limitation of liability fairly allocate the risks between the parties and are essential elements of the basis of the bargain between the parties. You expressly acknowledge that the Subscription Fees are based upon our expectation that the risk of any loss or injury that may be incurred by use of the Platform will be borne by you and not us and were we to assume any further liability other than as set forth herein, such Subscription Fees would of necessity be set substantially higher. Certain states and/or jurisdictions do not allow the exclusion of implied warranties or limitations of liability for incidental or consequential damages, so the exclusions set forth above may not apply to you.
10.1 Term of Agreement. The Agreement commences on the date you indicate acceptance, the date you submit Ordering Pages, or the date of any access to the Platform through your Account if earlier, and continues through the end of the Subscription Period or Evaluation Period unless terminated earlier as permitted herein.
10.1 Subscription Period. The Subscription Period is identified on the Ordering Pages, and will automatically renew for successive terms of a length specified on the Order Pages, unless either party gives the required notice of non-renewal to the other party before the end of then-current Subscription Period. The Subscription Fees during any renewal term will be the same as the full-priced (non-discounted) Subscription Fees during the prior term unless we have communicated to you a pricing increase at least thirty (30) days before the end of such prior term, in which case the pricing increase will be effective upon renewal and thereafter, unless the pricing in the prior term was designated on the relevant Ordering Pages as promotional or one-time.
10.1 Return of Your Data. It is your obligation to remove Your Data from the Platform prior to the date of termination or expiration of the Evaluation Period or Subscription Period. After such termination or expiration, we will have no obligation to maintain or provide to you any of Your Data.
11.1 Notices. Notices to you may be sent by email or within the Platform and will be effective on the date we send. Any notices to us shall be effective only if delivered in writing in compliance with this section to Chief Legal Officer, Advance Publications, Inc., One World Trade Center, New York, NY 10007 with a copy sent contemporaneously to CLO@advance.com. Such notices will be deemed to have been given: (i) as of the date delivered if delivered personally, or (ii) one (1) day after deposit with a nationally recognized overnight courier, or (iii) upon receipt if sent by U.S. certified mail, return receipt requested.
11.2 Agreement to Governing Law and Jurisdiction. Each party agrees to the applicable governing law of the State of New York without regard to choice or conflicts of law rules, and to the exclusive jurisdiction of the applicable court in New York.
11.3 Waiver of Jury Trial. Each party hereby waives any right to a jury trial in connection with any action or litigation in any way arising out of or related to the Agreement.
11.4 Export Compliance. You acknowledge that the Platform may be subject to the United States export control and economic sanctions laws, regulations and requirements and to import laws, regulations, and requirements of certain foreign governments. You shall not, and shall not allow any third party to, export from the United States or allow the re-export or re-transfer of any part of the Platform: (i) to any country subject to export control embargo or economic sanctions implemented by any agency of the U.S. Government; (ii) to any person or entity on any of the U.S. Government’s Lists of Parties of Concern; (iii) to any known end-user or for any known end-use related to the proliferation of nuclear, chemical or biological weapons or missiles, without first obtaining any export license or other approval that may be required by any U.S. Government agency having jurisdiction with respect to the transaction; or (iv) otherwise in violation of any export or import laws, regulations or requirements of any United States or foreign agency or authority.
11.5 Relationship of the Parties. The parties are independent contractors. The Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties.
11.6 No Third-Party Beneficiaries. There are no third-party beneficiaries to the Agreement.
11.7 Amendments; From time to time, we may modify the Agreement. Unless otherwise specified by us, changes become effective for existing subscription customers upon renewal of the then-current Subscription Period. We will use reasonable efforts to notify you of the changes by communications through the Platform, email, or other means. You may be required to click to accept the modified Agreement before using the Platform in a renewal Subscription Period, and in any event, continued use of Platform during the renewal Subscription Term Period constitutes your acceptance of the version of the Agreement in effect at the time the renewal Subscription Period begins.
11.8 Waiver and Cumulative Remedies. No failure or delay by either party in exercising any right under the Agreement will constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.
11.9 Severability. If any provision of the Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of the Agreement will remain in effect.
11.10 Attorney Fees. You will pay on demand all of our reasonable attorney fees and other costs incurred by us to collect any Subscription Fees or other charges due us under the Agreement following your breach of Section 4 (Invoicing and Payment) or Section 6 (Restrictions).
11.11 Assignment. Neither party may assign the Agreement or any of its rights or obligations under the Agreement, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, we may assign the Agreement in its entirety without your consent to our affiliates or a successor in interest pursuant to a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Subject to the foregoing, the Agreement binds and inures to the benefit of the parties, their respective successors and permitted assigns.
11.12 Publicity. Neither party will, without the other party’s prior written consent, make any press release, public announcement, or in any manner advertise or publish the fact that the parties have entered into the Agreement. Notwithstanding the above, we may use your name and logo on our customer lists and in general customer presentations in all formats and means of distribution.
11.13 Force Majeure. Neither party will be liable for any delay or failure in performance due to circumstances beyond its reasonable control including, without limitation, fire, flood, earthquake, elements of nature or acts of God, acts of war, terrorism, riots, civil disorders, rebellions or revolutions, strikes, lockouts, labor difficulties, generalized internet interruptions, telecommunications problems, equipment or network malfunctions, denial of service attacks, worms, and the like.
11.14 Entire Agreement. The Agreement constitutes the entire agreement between the parties and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. Notwithstanding any language to the contrary therein, no terms or conditions stated in your purchase order or other order documentation you provide will be incorporated into or form any part of the Agreement, and all such terms or conditions will be null and void.