Terms and Conditions
1. TERM: This agreement, including all of the provisions set forth above together with these terms and conditions ("Agreement") is for the Subscription Period that Customer has selected (the "Term") and is cancelable upon written notice delivered at least 30 days prior to the cancelation date. Without limitation of its rights and remedies hereunder, RCD may immediately terminate this Agreement in the case of any breach hereof by Customer, including, without limitation, failure to pay any amount when due. RCD reserves the right to adjust the price of subsequent subscriptions.
2. PAYMENT TERMS: Customer agrees to pay all subscription fees set forth in accordance with the schedule for the applicable subscription. Should RCD elect to collect unpaid amounts due hereunder through any attorney-at-law, Customer shall be responsible for all costs of collection, including principal and court costs. A charge of one and one-half percent (1.5%) per month (or, if less, the maximum rate permitted by law) may be added by RCD to any overdue amounts.
3. LICENSE: Subject to all of the terms and conditions hereof, Customer is hereby granted a personal, nontransferable, nonassignable and nonexclusive license during the Term to use data furnished by RCD pertaining to construction projects, as set forth in the product descriptions (the "Information"), for the number of users specified.
4. DISCLAIMER; LIMITATION OF LIABILITY; INDEMNITY: RCD MAKES NO REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, CONCERNING
THE INFORMATION OR ANY OTHER MATERIALS OR SERVICES PROVIDED HEREUNDER, OR GUARANTEE OF ANY RESULTS TO BE DERIVED
THEREFROM. WITHOUT LIMITATION OF THE FOREGOING, THE INFORMATION IS PROVIDED ON AN "AS IS" BASIS, AND RCD HEREBY DISCLAIMS
ANY REPRESENTATION OR WARRANTY WITH RESPECT TO MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT,
DESIGN, CONDITION, QUALITY, ACCURACY, RELIABILITY, CAPACITY, MATERIAL WORKMANSHIP, COUNTS, SCALES, COMPLETENESSOR THE LIKE, OR THAT ANY SERVICES SHALL BE UNINTERRUPTED, IT BEING EXPRESSLY AGREED THAT ALL SUCH RISKS SHALL BE BORNE BY CUSTOMER. Customer further agrees to verify all scales, dimensions, values, costs, quantities and any other data important to Customer's use of the Information. Under no circumstances shall RCD or its affiliates be liable to Customer or any other person or entity for any incidental, special or consequential damages of any nature or kind whatsoever, including any interruption or loss of service, any loss of goodwill or profits, or business loss arising out of, or in connection with, any deficiency or inadequacy of Information or other materials or services made available by RCD or the preparation of proposals or bids using any of the foregoing items. Although RCD has disclaimed all liability, should any liability on the part of RCD be found, the parties agree that (i) Customer's damages are difficult to approximate and therefore shall be limited to liquidated damages in the amount of one thousand dollars ($1,000) and (ii)in no event shall RCD's maximum aggregate liability exceed one thousand dollars ($1,000). Customer agrees to hold RCD harmless of and from any and all loss, cost, expenses, or liability arising out of Customer's use of the Information or any other services or materials furnished by RCD. Customer shall indemnify, defend and hold harmless RCD and its affiliates and their employees, directors, agents, licensors, representatives and contractors, against any loss, claim, judgment or expense (including reasonable attorneys' fees) arising out of (i) any breach by Customer of any representation, warranty, covenant or other term or condition hereof, or (ii) any claim or threatened claim by any individual or entity made against RCD or its affiliates relating to Customer's use of the Information or any other services or materials furnished by RCD.
5. PROPRIETARY RIGHTS: The Information constitutes proprietary, confidential and trade secret information belonging to RCD or its licensors. As between the parties, RCD shall retain all right, title and interest in and to the Information, including all copyrights and other proprietary rights therein. Customer acknowledges, and agrees not to challenge in any fashion, that the Information (a) constitutes original collections and assemblies of preexisting data, the selection, coordination and arrangement of which results in works which are original, (b) contains data which is not preexisting, but instead is RCD's own original expression; and (c) derives value from information gathered and published by RCD in a prompt fashion. Customer shall not create derivative works based on the Information. All rights not expressly licensed to Customer hereunder are hereby reserved by RCD and/or its licensors.
6. NONDISCLOSURE; RESTRICTIONS: Customer agrees not to disclose or otherwise make the Information available to any person other than employees of Customer required to have such knowledge in the normal course of Customer's business and authorized to access the Information hereunder. Customer agrees not to: (i) copy the Information, or disclose, publish, distribute, transfer or disseminate the Information to any third party, directly or indirectly; (ii) use the Information in a manner that violates any applicable law, copyright or other third party right; (iii) use the Information directly or indirectly to compete with any products or services of RCD or its affiliates; (iv) use the Information as a basis for providing project leads in any product or service disseminated to any third party (a "Competitive Product"), directly or indirectly; or (v) use the Information, directly or indirectly, to provide data or competitive information to any provider of Competitive Products or affiliate thereof. Customer represents, warrants and covenants to RCD that: (i) it is not, and shall not be during the Term, a supplier of Competitive Products, nor is it subscribing to the Information, directly or indirectly, for the purpose of providing data or competitive information to a supplier of Competitive Products or any affiliate thereof; and (ii) it has entered into this Agreement under its true name and is not, directly or indirectly, impersonating any real or fictitious person or entity or otherwise acting so as to deceive RCD as to the actual identity of Customer. RCD shall have the right to audit Customer at any time on reasonable advance notice to verify Customer's compliance with the terms and conditions hereof, and Customer shall cooperate in providing access to its facilities and systems for such purpose, it being agreed that RCD shall treat any Customer information disclosed in connection with such audit as confidential information of Customer. RCD reserves the right to "seed" the Information made available hereunder from time to time with a small quantity of data that does not correspond to any actual construction projects, for the sole purpose of identifying unauthorized disclosures or uses of Information.
7. MISCELLANEOUS: Neither party shall be liable to the other for any delay or failure to perform any of the services or obligations set forth in this Agreement (other than payment obligations) due to causes beyond its reasonable control. Any disputes arising hereunder shall be subject to the exclusive jurisdiction of the state or federal courts located in the County and State of New York and all parties consent to personal jurisdiction in such courts. This Agreement and performance hereunder shall be governed by the laws of the State of New York without reference to conflict of laws principles. Customer may not assign its rights, duties or obligations under this Agreement to any person or entity without the prior written consent of RCD, not to be unreasonably withheld. Customer shall comply with all laws, including export control laws and regulations, applicable to its use of the Information. The waiver or failure of either party to exercise any right in any respect provided for herein shall not be deemed a waiver of any further right hereunder. If any provision of this Agreement is determined to be invalid under any applicable statute or rule of law, it is to that extent to be deemed omitted, and the balance of the Agreement shall remain enforceable. Sections 4-7 hereof, together with any payment obligations of Customer that shall have accrued prior to expiration or termination or shall apply to the remainder of the then-current term, shall survive the expiration or sooner termination hereof. A copy of any notice with respect to the interpretation, breach or termination hereof sent by courier or certified mail to: Reed Business Information, Attn: General Counsel, 360 Park Avenue South, New York, NY 10010-1710. This Agreement constitutes the entire agreement between the parties hereto with respect to the subject matter hereof and there are no representations, understandings or agreements relative hereto which are not fully expressed herein. No amendment, change, waiver, or discharge hereof shall be valid unless in writing and signed by an authorized representative of the party against which such amendment, change, waiver, or discharge is sought to be enforced.