General Terms And Conditions
1. Licensed Content
1.1 Delivery of Licensed Content. Remington Advisors shall deliver to Client the Survey(s) (the “Licensed Content”) specified in the Order Form in either hard copy and/or electronic formats as requested by the Client.
1.2 License Grant. Subject to these general terms and conditions (the “T&Cs”), Remington Advisors hereby grants to Client a perpetual, nonexclusive, nontransferable, worldwide right and license to use and create derivative works based upon the Licensed Content (or any portion thereof) solely for Client’s internal use and only in accordance with applicable law. Except as specified in Section 1.3 below, Client shall not distribute or disclose the Licensed Content to any other party.
1.3 Service Providers. Subject to these T&Cs, Client may allow any of its service providers to use and access the Licensed Content solely for Client’s internal business use or purposes provided that (i) such Licensed Content is used solely on behalf of Client, (ii) such service provider agrees in writing to be bound by all of the terms and conditions set forth herein and (iii) Client shall be liable for any breach of the terms and conditions of these T&Cs by such service provider.
1.4 Ownership and Reservation of Rights. Except for the license granted hereunder, Remington Advisors retains all right, title and interest in and to the Licensed Content and nothing in these T&Cs shall (or shall be construed to) restrict, impair, transfer, license, convey or otherwise alter or deprive Remington Advisors of any of its rights or proprietary interests in any intellectual property, content, data, information or any other materials or rights, tangible or intangible.
2.1 License Fee. Client shall pay to Remington Advisors the non-refundable non-cancelable fees specified in the Order Form.
2.2 Payment Terms. The fees shall be due and payable on the date specified in the Order Form. Overdue balances are subject to a service charge equal to the lesser of 1.5% per month or the maximum legal interest rate allowed by law. Client shall be responsible for taxes levied on any transaction under these T&Cs, including all federal, state, and local taxes, levies and assessments, excluding any tax based on Remington Advisors’ income.
3.1 By Remington Advisors. Remington Advisors shall indemnify, defend and hold harmless Client, its officers, directors, employees, affiliates, subsidiaries, agents, successors and assigns (“Client Indemnitees”) from and against any third party claim against a Client Indemnitee and resulting damages, losses, costs, expenses or settlement fees incurred in connection therewith (including reasonable attorneys’ fees and costs) arising out of or relating to any claim that Client’s permitted use of the unmodified Licensed Content infringes, misappropriates or violates any copyright, trademark, trade secret, privacy, publicity or other intellectual property or proprietary right of any person, provided that (i) Client provides Remington Advisors with prompt written notice upon becoming aware of any such claim, (ii) Client reasonably cooperates with Remington Advisors in the defense of such claim, and (iii) Remington Advisors has sole and exclusive control over the defense and settlement of any such claim.
3.2 By Client. Client shall indemnify, defend and hold harmless Remington Advisors, its officers, directors, employees, affiliates, subsidiaries, agents, successors and assigns (“Remington Advisors Indemnitees”) from and against any third party claim against a Remington Advisors Indemnitee and resulting damages, losses, costs, expenses or settlement fees incurred in connection therewith (including reasonable attorneys’ fees and costs) arising out of or relating to Client’s use of the Licensed Content (except for claims which Remington Advisors is required to indemnify Client as specified in Section 3.1 above), provided that (i) Remington Advisors provides Client with prompt written notice upon becoming aware of any such claim, (ii) Remington Advisors reasonably cooperates with Client in the defense of such claim, and (iii) Client has sole and exclusive control over the defense and settlement of any such claim.
4. Warranties; Limitation of Liability
4.1 Remington Advisors Warranties. Remington Advisors represents and warrants that (a) Remington Advisors has the right and authority to enter into these T&Cs and to grant to Client the rights granted hereunder; (b) Remington Advisors has not been charged or threatened with infringement or violation of any intellectual property right or other right of any person or entity in connection with the Licensed Content.
4.2 Client Warranties. Client represents and warrants that Client has the right and authority to enter into these T&Cs.
4.3 Warranty Disclaimer. EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN THESE T&Cs, NEITHER PARTY MAKES ANY OTHER REPRESENTATIONS OR WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT AND THE LICENSED CONTENT IS PROVIDED AS IS.
4.4 Limitation of Liability. Neither party nor any of its parents, subsidiaries, affiliates, members, managers, directors, officers, employees, consultants, agents, licensors, suppliers or other representatives (“Representatives”) shall be liable for any indirect, special or consequential damages, or damages for loss of profits, business interruption, loss of goodwill, computer failure or malfunction or otherwise, arising from or relating to these T&Cs, even if such party or its Representatives is expressly advised of the possibility of such damages. The foregoing limitation of liability and exclusion of certain damages shall apply regardless of the failure of essential purpose of any remedies available to either party. Except as may arise out of Remington Advisors’ breach of Section 5 or Remington Advisors’ indemnification obligations in Section 3.1, the total liability of Remington Advisors to Client for any and all claims and damages under these T&Cs, whether arising by statute, contract tort or otherwise, will not exceed the amounts paid by (and not otherwise refunded to) Client to Remington Advisors under the Order Form which form the subject of the claim in the twelve month period preceding the event which gave rise to the claim.
5.1 Confidential Information. “Confidential Information” means all information disclosed by one party (“Discloser”) to the other party (“Recipient”) (in writing, orally or in any other form) that is designated, at or before the time of disclosure, as confidential, or provided under circumstances reasonably indicating that the information is confidential, including, without limitation, trade secrets, Client lists, business plans, technical data, product ideas, personnel, contract and financial information. The Licensed Content shall be Remington Advisors’ Confidential Information. Confidential Information does not include information or material that (a) is now, or hereafter becomes, through no act or failure to act on the part of the Recipient, generally known or available; (b) is or was known by the Recipient at or before the time such information or material was received from the Discloser, as evidenced by the Recipient’s tangible (including written or electronic) records; (c) is furnished to the Recipient by a third party that is not under an obligation of confidentiality to the Discloser with respect to such information or material; or (d) is independently developed by the Recipient without any breach of these T&Cs, as evidenced by the Recipient’s contemporaneous tangible (including written or electronic) records.
5.2 Restrictions on Use. Each party shall take all reasonable measures to protect the confidentiality of the other party’s Confidential Information in a manner that is at least protective as the measures it uses to maintain the confidentiality of its own Confidential Information of similar importance. Recipient shall hold Confidential Information in strict confidence and shall not disclose, copy, reproduce, sell, assign, license, market, transfer or otherwise dispose of such information, or give or disclose such information to third parties, or use such information for any purposes whatsoever other than as necessary in order to fulfill its obligations or exercise its rights under these T&Cs. Notwithstanding the foregoing, Recipient may disclose the other party’s Confidential Information (a) to employees and consultants that have a need to know such information, provided that Recipient shall advise each such employee and consultant of their obligations to keep such information confidential and shall require that each such employee and consultant sign a written nondisclosure agreement consistent with the confidentiality and nondisclosure provisions herein, and (b) to the extent Recipient is legally compelled to disclose such Confidential Information, provided that Recipient shall give advance notice of such compelled disclosure to the other party, and shall cooperate with the other party in connection with any efforts to prevent or limit the scope of such disclosure and/or use of the Confidential Information.
6.1 Assignment. Neither party shall assign, sell, transfer, delegate or otherwise dispose of, whether voluntarily or involuntarily, by operation of law or otherwise, these T&Cs or any or its rights or obligations under these T&Cs; provided, however, a party may assign, sell, transfer, delegate or otherwise dispose of these T&Cs or any of its rights and obligations hereunder as part of a merger, consolidation, corporate reorganization, sale of all or substantially all of its assets, sale of stock, change of name or like event. Any purported assignment, sale, transfer, delegation or other disposition, except as permitted herein, shall be null and void. Subject to the foregoing, these T&Cs shall be binding upon and shall inure to the benefit of the parties and their respective successors and permitted assigns.
6.2 Severability. If any provision of these T&Cs, or the application thereof to any person, place or circumstance, shall be held by a court of competent jurisdiction to be invalid, void or otherwise unenforceable, such provision shall be enforced to the maximum extent possible so as to effect the intent of the parties, or, if incapable of such enforcement, shall be deemed to be deleted from these T&Cs, and the remainder of these T&Cs and such provisions as applied to other persons, places and circumstances shall remain in full force and effect.
6.3 Waivers. The waiver by either party of a breach of or a default under any provision of these T&Cs, shall not be effective unless in writing and shall not be construed as a waiver of any subsequent breach of or default under the same or any other provision of these T&Cs, nor shall any delay or omission on the part of either party to exercise or avail itself of any right or remedy that it has or may have hereunder operate as a waiver of any right or remedy.
6.4 Governing Law. These T&Cs and the Order Form is to be construed in accordance with and governed by the internal laws of the Commonwealth of Massachusetts without giving effect to any choice of law rule that would cause the application of the laws of any jurisdiction other than the internal laws of the Commonwealth of Massachusetts to the rights and duties of the parties.
6.5 Publicity. Unless otherwise set forth in an Order Form, Client hereby grants Remington Advisors a non-exclusive license to list Client’s name and display the Client’s logo in the Client section of Remington Advisors’ website and to use Client’s name and logo in Remington Advisors’ Client lists but only to the extent that other Clients of Remington Advisors are also listed on such list.
6.6 Independent Contractors. Each party is an independent contractor and neither party’s personnel are employees or agents of the other party for federal, state or other taxes or any other purposes whatsoever, and are not entitled to compensation or benefits of the other. Except for the specific obligations set forth in these T&Cs, nothing hereunder shall be deemed to constitute, create, give effect to or otherwise recognize a joint venture, partnership or business entity of any kind, nor shall anything in these T&Cs be deemed to constitute either party the agent or representative of the other.
6.7 Notices. Any demand, notice, consent, or other communication required by these T&Cs must be given in writing and shall be deemed delivered upon receipt when delivered personally or upon confirmation of receipt following delivery by internationally recognized overnight courier service, in each case addressed to the receiving party at its address set forth on the Order Form at the address first listed above for each party. Either party may change its address by giving written notice of such change to the other party.
6.8 Headings. Headings used in these T&Cs are for reference purposes only and shall not be deemed a part of these T&Cs.
6.9 Entire Agreement. These T&Cs (including the Order Form which is governed by these T&Cs, which is incorporated herein by reference) constitutes the entire agreement of the parties hereto with respect to its subject matter and may be amended or modified only in writing and signed by duly authorized officers of both parties. These T&Cs and the Order Form supersede all previous, contemporaneous and inconsistent agreements, negotiations, representations and promises between the parties, written or oral, regarding the subject matter hereunder. There are no oral or written collateral representations, agreements or understandings except as provided herein.