A. PARTIES:
The parties to this "Agreement" are Customer, as licensee, and National
Information Services Corporation ("NISC"), as licensor. This Agreement shall
become effective between the parties upon the Customer's first subscription to and receipt
of a NISC product.
B. PRODUCTS: The "Products" subject to this Agreement
are: a) The "Database(s)" on optical compact discs which are ordered under this
Agreement by the Customer; b) The "Software" provided by NISC to Customer that
permits searching, retrieval, and reporting of information contained within the
Database(s); and, c) the "Media" upon which the Database(s) and Software are
delivered to Customer. For this Agreement, the plural includes the singular and vice
versa.
C. LICENSED USE, SUBSCRIPTION PERIOD: 1. NISC hereby grants to
Customer and Customer hereby accepts from NISC a non-transferable license to use the
Products in accordance with the terms, conditions, and subscription period set forth in
this Agreement. Customer acquires no ownership rights to the Products whatsoever, or any
portions thereof, and all such rights remain with NISC. The Products are property of NISC
and NISC's suppliers. Customer's uses of the Products are subject to any disclaimers and
restrictions on usage that may be published by NISC. Neither the Products, nor any
portions thereof, may be reproduced, transferred, or transmitted in any form or by any
means without the written consent of NISC, except as expressly permitted by this
Agreement.
2. Customer may use the Products only for internal purposes and shall not use the Products
as a part of or as the basis of a database for commercial sale, access, or distribution
outside of the Customer's organization. Customer is not permitted to alter or duplicate
the Products in any manner.
3. Specific restrictions which apply to Customer's use of the Products, or any portions
thereof, include the following: a) Products cannot be used in a service or software rental
bureau, timesharing; b) Portions of the Database may be copied onto electronic/magnetic
media (or other machine-readable form) for temporary use or storage only in conjunction
with Customer's editing or re-formatting of data for purposes of making a single printout;
c) No telecommunications transfer of any portion of the Products can be made; d) The
Products, including any portions thereof, shall not be exported outside of the territorial
limits of the country in which it was originally delivered; and e) Customer may not
reverse engineer, decompile, attempt to disassemble or reveal the proprietary programming
techniques and structures used in the software, nor create derivative works based on the
Products or any portions thereof.
4. The Product(s) shall be installed and used on a single monitor/single CPU microcomputer
system owned or controlled by the Customer located on the Customer's premises and, for
Network license holders, may be networked for display at the appropriate number of
workstations authorized by the network license.
5. The subscription period, license, and rights granted to Customer by this Agreement
shall commence upon the Customer's first subscription to and receipt of a NISC product.
The subscription period, license terms, and rights shall continue for twelve (12) months
from the date of the Customer's first receipt of Products and is subject to renewal and
continuation in accordance with NISC's most current applicable terms at the time of
renewal and at the option of both parties hereto. It is also agreed that other Products
and/or additional units of the Product(s) ordered hereunder are subject to this Agreement
upon the order thereof by Customer at the then-applicable prices and acceptance of such
order by NISC. In such an event, such Product(s) shall be added to this Agreement by
mutual consent and subject to all of the terms and conditions of this Agreement.
6. The license and rights granted to Customer hereunder shall terminate upon the earlier
of: a) Expiration of the twelve month subscription period for the last Product made
subject to this Agreement, if same is not renewed; or, b) Termination by Customer or by
NISC in accordance with any of the termination provisions described in this Agreement.
Individual Product(s) may be terminated at the expiration of the applicable subscription
period and, the license and rights granted Customer will terminate, effective at
expiration of the subscription period, whereupon individually terminated Products, or
portions, shall be promptly destroyed or returned to NISC. Upon termination of this
Agreement, Products and all portions shall be destroyed or returned to NISC within thirty
(30) days. Customer's failure to destroy or return Products to NISC shall be a material
breach of this Agreement by Customer.
7. This Agreement may be changed from time to time and the Customer will be sent all
revisions. Revised license terms shall apply to the Product(s) received before and after
the revision(s). If Customer does not agree to the revised License Terms, it may terminate
its subscription within thirty (30) days after receiving such revised License Terms. A
failure to terminate the subscription shall constitute acceptance of the revised License
Terms.
D. THIRD-PARTY ACCESS: In the event that Customer is a public
library, an educational institution, a government agency, or a non-profit entity providing
public access to data/information, then, notwithstanding the restrictions described in
Section C, but subject to any Product specific restriction, Customer may provide public
access to the Database by public users.
E. COPYRIGHT AND PROTECTION: 1. The Products, including all
portions thereof, except where expressly stated otherwise, are protected by copyright and
other laws respecting proprietary rights. Unauthorized reproduction, transfer and/or use
may be a criminal, as well as civil, offense under law.
2. Customer shall take all necessary action, whether by instruction, agreement or
otherwise, to restrict, control and limit the access to the Products to those uses
expressly permitted hereunder (unless otherwise agreed in writing by NISC) and shall
secure the Products, and all portions thereof, to prevent unauthorized copying, transfer
or use.
3. The Products contain highly proprietary and valuable trade secrets of NISC and of its
suppliers. Accordingly, it is acknowledged that unauthorized copying, transfer or use may
cause NISC and/or its suppliers injury that cannot be adequately compensated by means of
monetary damages. It is agreed that any breach hereof by Customer may be enforced by means
of equitable relief in addition to any other rights and remedies that may be available.
F. UPDATES AND REPLACEMENT OF DISCS: 1. So long as Customer is not
in default hereunder, NISC will make available to the Customer, within the Products'
subscription period, all updates to the Products that are made generally available to
Customers under the terms for that product at approximately those update frequencies given
(if any). Updates are made available on an exchange/replacement basis and Customer's
refusal, delay, or inability to destroy or return replaced portions of Products within
thirty (30) days shall be good cause for NISC to withhold shipment of updates without
liability to Customer or to third parties, in addition to any other remedies available to
NISC. Notwithstanding any other provision hereof, the license and rights granted to
Customer hereunder shall terminate with respect to replaced Products upon NISC's making
available to Customer hereunder a replacement Product or portion. Customer shall utilize a
traceable method of transit when returning products to NISC.
2. In certain instances, updates may include the following: a) A more current version of
the Database; b) A more current or new version of the Software; c) Corrections to the
Software; or d) A more current version of the Documentation including, without limitation,
changes to disclaimers and/or restrictions applicable thereto.
3. Upon receipt of a new update to any Database(s) or an updated copy of the software,
Customer must stop using prior updates to that Database(s) and/or software and destroy or
return the same to NISC at Customer's expense within thirty (30) days. Failure to do so
will result in termination of your subscription, no refunds, and will be followed with
appropriate legal action to secure the destruction or return of NISC's property. In the
event of loss or theft of a Product, NISC may, at its option, require Customer to execute
a Certificate of loss or theft, as appropriate. CD-ROM discs which are lost or stolen will
be replaced for $40.00 USD.
4. NISC reserves the right to alter or modify Products from time to time, including
portions thereof. Such alterations and/or modifications may include, without limitation,
addition or withdrawal of features, data, changes in instructions or frequency of Product
updates. NISC may also eliminate or cancel Products or updates thereto, including any
portions thereof, at any time, and for any reason, whereupon NISC may grant Customer a
credit or refund for any current updates of Database(s) not provided under the terminated
subscription, or may replace Products with subsequent Products, at NISC's discretion.
G. LIMITED WARRANTY, REPRESENTATIONS, AND RISKS: 1. NISC provides
the following limited warranty to Customer: a) NISC has the right to enter into this
Agreement and to license the Products to Customer; b) The media provided to Customer is
not defective at the time shipped to Customer; c) The Software and Database are properly
recorded on the media at the time shipped to Customer; and d) The Database and Software
will function substantially as described in Documentation (as may be modified from time to
time). Software may contain errors and, although NISC may use its best efforts to correct
significant errors in Software, NISC does not warrant that all errors will be corrected.
The Customer's sole and exclusive remedy under this limited warranty is to return the
Products to NISC, at Customer's expense, for free repair or replacement within ninety (90)
days of Customer's discovery of error or malfunction.
2. While the Products have been prepared using reasonable standards of care and while
there are no indications or reasons to believe that there exist inaccuracies or defects in
the Products, NISC AND ITS SUPPLIERS MAKE NO REPRESENTATION OR WARRANTIES OF ANY KIND,
EXCEPT AS SET FORTH IN 1. IMMEDIATELY ABOVE, WHICH ARE IN LIEU OF ANY AND ALL OTHER
WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY
OR FITNESS FOR A PARTICULAR PURPOSE. NISC AND ITS SUPPLIERS NEITHER ASSUME NOR AUTHORIZE
ANY OTHER PERSON TO ASSUME FOR NISC AND ITS SUPPLIERS ANY OTHER LIABILITY IN CONNECTION
WITH THE LICENSING OF THE PRODUCTS UNDER THIS AGREEMENT AND/OR THE USE THEREOF BY CUSTOMER
OR THIRD PARTIES.
3. NEITHER NISC NOR ITS SUPPLIERS WARRANT THE ACCURACY OF INFORMATION CONTAINED WITHIN ANY
DATABASE AND ALL RESPONSIBILITY PERTAINING TO THE USE THEREOF UNDER THIS AGREEMENT IS
HEREBY ASSUMED BY CUSTOMER. NEITHER NISC NOR ITS SUPPLIERS SHALL BE LIABLE FOR LOSS OF
PROFITS, LOSS OF USE OF PRODUCTS (OR PORTIONS THEREOF), INCIDENTAL, CONSEQUENTIAL OR
EXEMPLARY DAMAGES, EVEN IF AWARE OF THE POSSIBILITY THEREOF.
4. IN NO EVENT MAY CUSTOMER BRING ANY CLAIM OR CAUSE OF ACTION AGAINST NISC OR ITS
SUPPLIERS MORE THAN ONE (1) YEAR AFTER SUCH CLAIM OR CAUSE OF ACTION ARISES, IRRESPECTIVE
OF THE CAUSE OR FORM OF ACTION, NISC'S LIABILITY UNDER THIS AGREEMENT SHALL IN NO EVENT
EXCEED THE FEE THEN PAID BY CUSTOMER FOR THE PRODUCTS GIVING RISE TO THE CLAIM OR CAUSE OF
ACTION, WHETHER OR NOT DUE TO BREACH OF WARRANTY, OF ANY OBLIGATION ARISING HEREUNDER, AND
WHETHER LIABILITY IS EXPRESSED IN CONTRACT OR IN TORT, INCLUDING NEGLIGENCE AND STRICT
LIABILITY.
5. Customer agrees to indemnify, defend and hold NISC and its suppliers harmless from and
against any and all claims from third parties arising out of or in any way related to
Customer's use of the Products.
H. PRICES, FEES, AND PAYMENT: 1. Prices applicable to Products are
as published in NISC's then-current price list and are payable in advance of shipment of
and renewal of Product subscriptions. Invoices are due upon receipt and will be deemed
delinquent if not fully paid within thirty (30) days thereafter. Delinquent invoices are
subject to interest charges at eighteen percent (18%) per annum on the unpaid balance (or
the maximum rate allowed by law). Customer shall be liable for all costs of collection,
attorney's fees and court costs if NISC must collect delinquent payments and/or enforce
other rights or remedies available. Failure or delay in rendering payments due NISC under
this Agreement or in promptly destroying or returning Products hereunder shall, at the
option of NISC, constitute a material breach of this Agreement. In addition to any other
rights and remedies available to NISC resulting from Customer's breach hereof, NISC may
retain any deposit of Customer and may charge Customer at then-current fees for the
"holdover" period in which Customer has retained Products beyond termination or
expiration of the term applicable thereto.
2. Products are provided F.O.B. point of shipment and shipment charges may be invoiced
separately. Taxes, if any, are not included in published Products' prices and must be
added to invoices. If not so added, such taxes (exclusive of taxes based upon NISC's net
income) are the exclusive responsibility of the Customer.
3. Customer may for any reason return at its expense all undamaged Products within thirty
(30) days of their receipt, and shall be entitled to a refund of 11/12 of the subscription
rate. This return right shall only apply to the initial issue and not updates provided
under the subscription.
I. RIGHTS OF TERMINATION: 1. If Customer breaches any provision of
this Agreement, in addition to any rights or remedies, NISC may terminate this Agreement
and all licenses granted hereunder without prior notice.
2. If Customer or NISC terminates this Agreement respecting any Product made subject
hereto at the expiration of the term therefor, this Agreement and the license granted
hereunder shall, with respect to such Product, be automatically terminated; however, NISC
may, at its option, permit Customer to retain the license for the same or different
Products hereunder upon payment by Customer and acceptance by NISC of the appropriate fees
associated therewith and, in such event, this Agreement and the license granted hereunder
shall continue in full force and effect as if termination had not occurred.
3. Upon the cancellation of any Products licensed under this Agreement by either party for
any reason, Customer shall return Products to NISC within fifteen (15) days of
cancellation. Upon termination or expiration as described in Section C.6. herein customers
shall destroy or return Products to NISC and destroy any back-up copy of Software.
4. The provisions set forth in Sections C.,E.,H.,I. and J. shall survive the term of this
Agreement and shall continue in force into perpetuity.
J. GENERAL PROVISIONS: 1. All notices, consents or other
communications referred to herein shall be in writing to the other party by first class
mail, addressed to that party at the address given for shipment of Products. Service shall
start on the earlier of actual receipt or the fourth business day after the mailing date
for orders in the United States and the tenth business day for orders outside of the
United States.
2. NISC and its suppliers shall not be liable or deemed in default for any delays or
failure in performance resulting directly or indirectly from any cause or circumstance
beyond their reasonable control, including but not limited to acts of God, war, embargoes,
fire, flood, accidents, strikes, shortages of transportation facilities,
telecommunications facilities or software programs not in Products.
3. This Agreement, and the license granted herein, may not be assigned by Customer to any
third party.
4. If any term or condition hereof is found by a court or administrative body to be
invalid or unenforceable, the remaining terms and conditions hereof shall remain in full
force.
5. If the Customer utilizes a purchase order in conjunction with this Agreement, then
Customer agrees that the following statement is hereby automatically made part of such
purchase order; "The terms and conditions set forth in the NISC DISC CD-ROM Annual
License and Subscription Agreement are made part of this purchase order and are in lieu of
all terms and conditions, express or implied, in this purchase order, including any
renewals hereof."
6. NISC's remedies herein are not exclusive and are in addition to any other remedies
available by law or in equity, none of which shall be deemed as waived by virtue of NISC's
exercise of any other remedy.
7. This Agreement is the entire agreement and supersedes any and all prior agreements and
understandings. There are no representations, warranties, promises, covenants or
undertakings, except as described herein.
8. End.
