6510 Mutual Drive
Fort Wayne, Indiana 46825
Phone: 260 470 2728
Fax : 260 407 2734
Express Markets, Inc.
Express Markets, Inc. (“Express Markets”) publishes reports and other publications for which the Licensee has subscribed to acquire from Express Markets (“Products”) For all Products of Express Markets for which Licensee subscribes and acquires, Licensee covenants agrees as follows:
1.1 License Grant. Express Markets hereby grants to Licensee, and Licensee hereby accepts, a non-exclusive, non-transferable, revocable, non-sub licensable license during the Term (as hereinafter defined) to access and use Express Markets Products solely and exclusively for the purpose of Licensees business, subject to all conditions and restrictions contained in this agreement.
1.2 Restrictions of Use. The Licensee will be permitted to use and, in the case of electronic subscriptions, print or download portions of the Products, exclusively for use in Licensee’s business. Licensee shall not directly, or indirectly, allow any other person or third party to use or access the Express Markets Products, and may not, directly or indirectly, use or permit the use of the Products for any purpose other than the Licensee’s business purpose. Without limiting the foregoing, Licensee shall not:
1.2.1 sell, rent, sublicense, lease or otherwise make available the Express Markets Products for third-party training, commercial time-sharing, rental or service bureau use, or outsourcing services for the benefit of any third parties;
1.2.2 reverse engineer, disassemble, or decompile the Express Markets Products, except to the extent otherwise expressly permitted by applicable law;
1.2.3 modify or make any derivative works of the Express Markets Products;
1.2.4 use or data-mine the Express Markets Products in any way for the purpose of designing or developing competing software and/or data or informational products; or
1.2.5 reproduce or store in or transmit the Express Markets Products to any third party web site, newsgroup, mailing list, or electronic bulletin board.
1.3 Notices of Unauthorized Use or Alleged Infringement. Licensee agrees to notify Express Markets immediately if it becomes aware of any unauthorized use or disclosure of the Express Markets Products or if it becomes aware of any alleged facts that, if true, would support a claim that (i) a third party is infringing the rights of Express Markets in Express Markets Products or (ii) that the Express Markets Products infringe any intellectual property rights or other proprietary rights of a third party. Licensee will advise Express Markets of the specific details of the unauthorized use or infringement claim.
1.4 Reservation of Rights. Any use of the Express Markets Products not specifically permitted by this Section 1 is expressly prohibited. All rights not expressly granted hereunder by Express Markets are expressly reserved by Express Markets or its licensors, and no other license or right is granted to Licensee by implication, estoppel or otherwise.
2. OWNERSHIP; PROPRIETARY RIGHTS; CONFIDENTIALITY.
2.1 Ownership. Licensee acknowledges and agrees that the Express Markets Products contain valuable trade secrets and confidential information of Express Markets and its licensors, and are protected or able to be protected by domestic and international trade secret, copyright, and patent laws and other forms of proprietary rights. Licensee acknowledges and agrees that, as between the parties hereto, Express Markets and its licensors shall be the sole and exclusive owner of all right, title and interest in and to the Express Markets Products, subject to the terms of the Express Markets License granted hereunder. Although some tangible objects may be delivered by Express Markets to Licensee in connection with this Agreement, this Agreement does not constitute a sale of the Express Markets Products or any portion or copy thereof.
2.2 Proprietary Rights Notices. Licensee may not remove, obscure or modify any copyright, trademark or other form of proprietary notices on the Express Markets Products. Licensee shall have the limited right to use Express Market’s trademarks and service marks and other indicia of origin in conjunction with the Express Markets Products, solely for the purpose of ensuring the identification of Express Markets as the owner thereof, and any such use shall inure exclusively to the benefit of Express Markets and its successors and assigns. No other use of Express Market’s trademarks, service marks and other indicia of origin may be made by Licensee absent prior written consent of Express Markets in each case.
2.3 Confidentiality. At all times, Licensee agrees to maintain the Express Markets Products, in strict confidence as confidential and proprietary materials of Express Markets, and agrees not to disclose, duplicate or otherwise reproduce, directly or indirectly, said items in whole or in part or any materials relating thereto (except that, during the Term, Licensee may make a reasonable, limited number of copies of the Express Markets Products, as may be necessary to carry out Licensee’s purpose and for archival or back-up purposes). Licensee agrees to take all reasonable measures to ensure that no unauthorized persons shall have access to or use of Express Markets Products, and that all authorized employees having access to said Express Markets Products while in the possession of such will adhere to all conditions stated in this Agreement. Licensee shall be liable to Express Markets for any unauthorized access to, or use of, the Express Markets Products, and further agrees to indemnify, defend and hold harmless Express Markets against any third party claims that may arise out of the same.
3. TERM; TERMINATION; SURVIVAL.
3.1 Term. This Agreement shall continue in effect during such time periods in which Licensee subscribes and purchases from Express Markets, the products produced by Express Markets. The license granted herein shall automatically terminate upon the termination of the Licensee’s subscription or agreement to purchase Express Markets products.
3.2 Effects of Termination; Survival. Immediately upon any termination of this Agreement for any reason, (i) the Express Markets License granted hereunder shall also terminate, (ii) Licensee shall immediately cease all use of the Express Markets Product(s) and their associated documentation and data, (iii) Licensee will promptly remove or delete all software and data included in the Express Markets Product(s) from all computer equipment and any related memory locations, (iv) Licensee will within one (1) month of termination return all tangible copies of the Express Markets Product(s) and associated documentation to Express Markets, and execute and deliver to Express Markets a certificate evidencing its compliance with the foregoing. Upon any expiration or termination of this Agreement for any reason, all rights and obligations of the parties under this Agreement shall cease except for (i) the obligations of Licensee to pay to Express Markets any Subscription Fees or other amounts payable that have accrued as of or prior to the effective date of such termination or expiration, (ii) the rights and obligations of the parties under Sections 2, 4, 5 and 6, which shall survive for an unlimited period, and (iii) the rights and obligations of the parties under any other provision of this Agreement which, by its expressly stated terms, is intended to survive the termination of this Agreement for a specified period, in which case such provision shall survive such termination or expiration for such specified period.
4. LIMITED WARRANTIES; DISCLAIMER
4.1 Mutual Warranties. Each of the parties hereto represents and warrants to the other party that (a) it has full power and authority to execute, deliver and perform under this Agreement and the obligations hereunder, (b) upon execution and delivery hereof, this Agreement shall constitute the valid and binding obligations of such party enforceable in accordance with its terms, and (c) the execution, delivery and performance of this Agreement (i) have been duly approved and authorized by all necessary corporate actions of such party, (ii) do not contravene any law, regulation, rules or order binding on such party, and (ii) do not contravene the provisions of or constitute a default under any contract or other agreement or instrument to which such party is a signatory.
4.2 Disclaimers of Warranties.
(a) EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN THIS SECTION 4, EACH PARTY HERETO MAKES NO REPRESENTATIONS AND EXTENDS NO WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, OR BASED ON COURSE OF DEALING, USAGE OR TRADE.
(b) FURTHERMORE, WITHOUT LIMITING THE FOREGOING, EXCEPT AS EXPRESSLY PROVIDED IN SECTION 4.2, THE EXPRESS MARKETS PRODUCTS ARE LICENSED EXCLUSIVELY ON AN “AS IS” BASIS, AND EXPRESS MARKETS DOES NOT WARRANT THAT THE EXPRESS MARKETS PRODUCTS WILL BE FREE FROM ERRORS OR THAT THEIR USE WILL BE UNINTERRUPTED OR MAKE ANY OTHER REPRESENTATIONS REGARDING THE USE, OR THE RESULTS OF THE USE, OF SUCH EXPRESS MARKETS PRODUCTS IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY, OR SUITABILITY FOR LICENSEE'S BUSINESS, TECHNICAL OR OPERATIONAL REQUIREMENTS, OR OTHERWISE.
(c) LICENSEE EXPRESSLY ACKNOWLEDGES THAT THE EXPRESS MARKETS PRODUCTS, OR PORTIONS THEREOF, ARE DERIVED FROM THIRD PARTY SOURCES WHICH MAY INCLUDE BUT ARE NOT LIMITED TO THE U.S. GOVERNMENT AS WELL AS OTHER DOCUMENTS SUBMITTED BY OTHER COMPANIES. FURTHERMORE THIRD PARTY CONTENT AND DATA ARE NOT NECESSARILY THE OPINIONS NOR REPRESENTATIVE OF THE VIEWS OF EXPRESS MARKETS. ACCORDINGLY, EXPRESS MARKETS , ITS AFFILIATES, LICENSORS AND SUPPLIERS DO NOT AND CANNOT GUARANTEE THE ACCURACY, CONTENT, OR TIMELINESS OF THE EXPRESS MARKETS PRODUCTS, THE USE OF WHICH LICENSEE ACKNOWLEDGES IS SOLELY AT ITS OWN RISK. THE QUOTATIONS CONTAINED IN EXPRESS MARKETS PRODUCTS REPRESENT TO THE BEST OF EXPRESS MARKET’S KNOWLEDGE PREVAILING VALUES IN THE SPECIFIED INFORMATION. THE USE OF QUOTATIONS FOR CONTRACTUAL OR OTHER PURPOSES IS BEYOND EXPRESS MARKET’S CONTROL AND THEY WILL IN NO CASE ASSUME ANY RESPONSIBILITY FOR SUCH USE OR FOR ANY DAMAGES THAT MAY RESULT FROM SUCH USE.
Licensee agrees to indemnify, defend and hold harmless Express Markets, its affiliates, licensors, suppliers and their respective officers, directors, employees, agents, and contractors, (collectively the “Indemnified Parties”), from and against any and all claims, suits, damages and expenses (including without limitation reasonable attorney, accountant and expert fees and related costs of investigation) asserted against or incurred by any of the Indemnified Parties that, directly or indirectly, arise out of, or relate in any manner to, the use, misuse, or inability to use the Express Markets Product(s) or their associated documentation and data by Licensee or any of its officers, directors, employees, agents, contractors and/or customers; provided Licensee is promptly notified in writing of any such suit or claim against any such Indemnified Parties and further provided that Express Markets provides all reasonable assistance to Licensee, at Licensee’s expense, in the defense of such claim.
6. LIMITATIONS OF LIABILITY.
6.1 IN NO EVENT SHALL EXPRESS MARKETS BE LIABLE TO LICENSEE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING LOSS OF PROFIT OR GOODWILL, FOR ANY MATTER ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ITS SUBJECT MATTER, REGARDLESS OF WHETHER SUCH LIABILITY IS ASSERTED ON THE BASIS OF CONTRACT, TORT OR OTHERWISE AND EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL EXPRESS MARKETS’S TOTAL LIABILITY TO LICENSEE FOR ANY DAMAGES WITH RESPECT TO ANY CLAIM OR CAUSE OF ACTION ARISING OUT OF THIS AGREEMENT EXCEED THE AGGREGATE AMOUNT OF SUBSCRIPTION FEES PAID BY LICENSEE TO EXPRESS MARKETS UNDER THIS AGREEMENT DURING THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE UPON WHICH THE FACTS GIVING RISE TO SUCH CLAIM OR CAUSE OF ACTION FIRST ARISE. THE RIGHTS OF THE LICENSEE IN THIS SECTION 6.1 SHALL BE THE LICENSEE'S SOLE AND EXCLUSIVE REMEDY FOR ANY DAMAGES OF ANY NATURE RELATING TO THIS AGREEMENT OR THE EXPRESS MARKETS PRODUCTS.
6.2 THE LIMITATIONS SET FORTH IN THIS SECTION 6 WILL APPLY NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. THE AMOUNTS PAYABLE HEREUNDER REFLECTS THE AGREED-UPON ALLOCATION OF RISK BETWEEN THE PARTIES.
7. GENERAL AND MISCELLANEOUS PROVISIONS.
7.1 Relationship of the Parties. The parties to this Agreement are independent contractors. It is expressly agreed that in exercising its rights granted hereunder, each party is acting as an independent contractor and not as agent or employee of the other party, and nothing contained in this Agreement shall be construed to create an agency, joint venture, or partnership between the parties. Neither party shall have any right, power or authority to enter into any agreement for or on behalf of, or incur any obligation or liability of, or to otherwise bind, the other party.
7.2 Use of Names; Publicity. Except as required by law, neither party shall use the name of the other party or any of their respective officers, employees, consultants, or agents in any press release, promotional material or other publicity without the prior written consent of the other party, which consent will not be unreasonably withheld, delayed or conditioned.
7.3 Notices. Any notices or other communications required or permitted hereunder shall be sufficiently given if delivered personally, sent by reputable overnight delivery service (such as Federal Express or Airborne Express) or sent by first class certified United States mail, postage prepaid, addressed to a party at the parties address of principal place of business or to such other address of which the parties may have given subsequent notice. Unless otherwise specified herein, such notices or other communications shall be deemed received (a) on the date delivered, if delivered personally, (b) one business day after being sent, if sent by reputable overnight delivery service or (c) three business days after being sent, if sent by certified mail.
7.4 Force Majeure. Express Markets, its affiliates, licensors, and its information providers shall not be liable or deemed to be in default for any delay or failure in performance or interruption of the delivery of Express Markets Products resulting directly or indirectly from any cause or circumstance beyond its or their reasonable control, including but not limited to failure of electronic or mechanical equipment or communication lines, telephone or other interconnect problems, computer viruses, unauthorized access, theft, operator errors, severe weather, earthquakes, or natural disasters, strikes or other labor problems, wars, acts of terrorism, or governmental restrictions.
7.5. Governing Law. This Agreement shall be governed by the laws of the United States of America and the State of Indiana, as if the Agreement were a contract wholly entered into and wholly performed within the state of Indiana and between Indiana residents, without reference to the choice of law provisions thereof. Each of the parties hereto irrevocably agrees that any action at law or in equity arising out of or relating to this Agreement shall be filed only in state or federal court located in Allen County, Indiana, U.S.A., and each party hereby irrevocably and unconditionally consents and submits to the exclusive personal jurisdiction and venue of such courts over any suit, action or proceeding arising out of this Agreement.
7.6 Entire Agreement; Amendments. This Agreement, together with the Subscription Agreement, if any, represents the entire understanding and agreement between the parties hereto with respect to the subject matter hereof and supersede all prior oral and written and all contemporaneous oral negotiations, commitments and understandings between such parties. This Agreement may not be modified or amended except by a written agreement duly executed by both parties hereto.
7.7 Waivers. No delay on the part of any party in exercising any right, power or privilege hereunder shall operate as a waiver thereof nor shall any waiver on the part of any party of any such right, power or privilege, nor any single or partial exercise of any such right, power or privilege, preclude any further exercise thereof or the exercise of any other such right, power or privilege. No waiver of any of the provisions of this Agreement shall be binding unless in writing and signed by an officer authorized to take such action on behalf of the waiving party. Further, unless otherwise agreed by the parties, no modification, waiver, termination, rescission, discharge or cancellation hereof shall affect the rights of either party to enforce any claim against the other which accrued prior to the date thereof. The rights and remedies of any party based upon, arising out of or otherwise in respect of any inaccuracy in or breach of any representation, warranty, covenant or agreement contained in this Agreement shall in no way be limited by the fact that the act, omission, occurrence or other state of facts upon which any claim of any such inaccuracy or breach is based may also be the subject matter of any other representation, warranty, covenant or agreement contained in this Agreement (or in any other agreement between the parties) as to which there is not inaccuracy or breach.
7.8 Assignment. This Agreement may not be assigned or otherwise transferred by Licensee without the prior written consent of Express Markets. Any purported assignment in violation of this Section shall be null and void. Any permitted assignee shall assume all obligations of its assignor under this Agreement in writing.
7.9 Section Headings. The section headings are for the convenience of the parties and in no way alter, modify, amend, limit, or restrict the contractual obligations of the parties.
7.10 Severability. If any part of this Agreement is ruled to be invalid, illegal, or unenforceable by a court or other body of competent jurisdiction, the remainder of this Agreement shall continue in full force and effect and shall be deemed modified to the minimum extent necessary to make it enforceable. The effect of any such ruling in question shall be strictly limited to the jurisdiction of the body making the ruling. If any such ruling in question is subsequently overruled or obviated by legislative or other action, the severed provisions of this Agreement shall return to full force and effectiveness.
7.11 Third Party Beneficiaries. The parties hereto agree that this Agreement is not intended to create any third party beneficiaries, other than the Indemnified Parties pursuant to Section 5.