Hoover's, Inc. ("HOOVER'S") and the company named below ("Customer") agree that Hoover's, either directly or through its affiliates, shall make available to Customer business information services ("Services"), which may include business information, legal or financial data and ratings of business entities ("Information"); computer programs or applications (including those accessed remotely), documentation and media (collectively, "Software"); professional services and other services, subject to this Hoover's Subscription Agreement ("Agreement"). The Services subject to this Agreement are identified in orders entered into from time to time by HOOVER's and Customer (“Orders”), which may include particular Service-specific terms and conditions. No obligation to furnish or to pay for a particular Service arises under this Agreement until HOOVER'S accepts the applicable order in writing (i.e., by signature of a HOOVER'S or delivery of a HOOVER's invoice to Customer in connection with such Order). All accepted Orders for Services entered into after the effective date hereof are subject to this Agreement, and the terms of such Orders are incorporated by reference in this Agreement. Where there is a conflict between the terms of any Order and this Agreement, the terms of the Order shall control with respect to the Services set forth in such Order and solely to the extent of the conflict. The effective date of this Agreement is as set forth below HOOVER'S signature. In consideration of the mutual obligations set forth in this Agreement, each party agrees to the terms and conditions below and represents that this Agreement is executed by duly authorized representatives:
1.1 HOOVER'S grants to Customer a non-exclusive, non-transferable license ("License") to use and display the Information specified in an Order, subject to the limitations contained in this Agreement and such Order. HOOVER'S retains all ownership rights (including copyrights and other intellectual property rights) in the Services, in any form, and Customer obtains only such rights as are explicitly granted in this Agreement and such Order.
1.2 Each license is for a term of twelve (12) months, beginning on the effective date of the Order, unless another term is specified in the Order. The Service (i) is available only for the number of users or benefiting audience members identified and described in the Order ("Authorized Users"); (ii) is intended only for each Authorized User’s individual use; and (iii) may not be shared with other persons or entities, either internally or externally. An Authorized User is authorized by Customer to access the Services during the term of this Agreement and according to the terms of the Order, either online, or after the Information has been downloaded in accordance with the terms of this Agreement. Hoover's reserves the right to deny access to any and all users in excess of the number of Authorized Users specified in the Order.
1.3 Software "Updates" (i.e., minor enhancements, additions, and substitutions to Software, including corrections and bug fixes) are provided at no additional fee, if made commercially available by Hoover's. "Upgrades" (i.e., modifications, additions or substitutions that result in a substantial change, improvement or addition to Software), if made commercially available by Hoover's, are provided for an additional fee, if applicable. The determination of whether a matter involves an Update or an Upgrade is within the sole discretion of Hoover's. All Updates and Upgrades made available to Customer are subject to this Agreement.
2.1 The Services are licensed for Customer's internal use only and subject to any restrictions set forth in the Order. Customer will not provide Information, or other Services to others, whether directly in any media or indirectly through incorporation in a database, marketing list, report or otherwise, or use or permit the use of Information to generate any statistical or other information that is or will be provided to third parties (including as the basis for providing recommendations to others); use or permit the use of Information to prepare any comparison to other information databases that is or will be provided to third parties; or voluntarily produce Information in legal proceedings.
2.2 Customer will not use Information as a factor in establishing an individual's eligibility for (i) credit or insurance to be used primarily for personal, family, or household purposes, or (ii) employment. Customer will not use any Services to engage in any unfair or deceptive practices. Customer will use the Services only in compliance with all applicable local, state, federal and international laws, rules, regulations and ordinances, including, but not limited to, laws and regulations promulgated by the Office of Foreign Assets Control, applicable trade sanctions and export restrictions, and all applicable laws and regulations regarding telemarketing, commercial e-mail (e.g. CAN-SPAM), customer solicitation (including fax and/or direct mail solicitation), data protection and privacy.
2.3 Customer will not attempt to access, use, modify, copy, reverse engineer, or otherwise derive the source code of Software.
2.4 Upon expiration or termination of a License with respect to particular Information, or upon receipt of Information that is intended to supersede previously obtained Information, unless HOOVER'S instructs Customer otherwise, Customer will immediately delete or destroy all originals and copies of the Information, as applicable, and upon request, provide HOOVER'S with certification thereof.
2.5 Upon reasonable notice and during regular business hours, Customer will permit HOOVER'S to inspect the locations at, or computer systems on which, Information is used, stored or transmitted so that HOOVER'S can verify Customer's compliance with this Agreement.
2.6 HOOVER'S reserves the right to monitor Customer's use of the Service to ensure compliance with this Agreement and prevent fraudulent use. Such monitoring of use may include but will not be limited to determining whether or not the Service is accessed from multiple computers, as well as noting downloads beyond the limit of the total number of records as may be set forth in the applicable Order or a disproportionate number of users. HOOVER'S reserves the right to limit access to the Services to (i) viewing or printing using a third party web browser print function, and (ii) downloading a maximum number of records per search. In addition, Authorized Users shall be bound by any access and download limitations per search session that are internal to a Service. Per 12-month term of the License, Customer and its Authorized Users shall be limited to downloading such total number of records as may be set forth in the applicable Order or posted within a Service. All download limitations will be enforced at Hoover's discretion. Customer may not make available a user name and password to a party that is not an Authorized User. Systematic access or extraction of content from the Service, including, but not limited to, the use of "bots" or "spiders," is prohibited. If such monitoring indicates you are not in compliance with this Agreement or if fraudulent activity is suspected, HOOVER'S reserves the right to take such action as it deems necessary, including, but not limited to, suspension or termination of the account.
3.1 D-U-N-S Numbers are proprietary to and controlled by Dun & Bradstreet, Inc. (an affiliate of HOOVER'S) and its affiliates. HOOVER'S grants Customer a non-exclusive, perpetual, limited license to use D-U-N-S Numbers (excluding linkage D-U-N-S Numbers) solely for identification purposes and only for Customer's internal business use. Where practicable, Customer will refer to the number as a "D-U-N-S® Number" and state that D-U-N-S is a registered trademark of the Dun & Bradstreet, Inc. and its affiliates.
4.1 Customer will pay HOOVER'S in accordance with the Order. Prices and product descriptions are those set forth in the Order. A late payment charge of the lesser of 1½% per month or the highest lawful rate may be applied to any outstanding balances until paid.
4.2 Customer will pay any applicable taxes relating to this Agreement, other than taxes based on HOOVER'S income and franchise - related taxes.
5.1 Though HOOVER'S and its affiliates use extensive procedures to keep its database current and to promote data accuracy, Customer acknowledges that the Information will contain a degree of error.
5.2 ALL SERVICES ARE PROVIDED ON AN "AS IS," "AS AVAILABLE" BASIS. OTHER THAN AS EXPLICITLY STATED IN THIS AGREEMENT, HOOVER'S DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF ACCURACY, COMPLETENESS, CURRENTNESS, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. HOOVER'S DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE AND DISCLAIMS ANY WARRANTY OR REPRESENTATION REGARDING AVAILABILITY OF A SERVICE, SERVICE LEVELS OR PERFORMANCE. HOOVER'S WILL NOT BE LIABLE FOR ANY LOSS OR INJURY ARISING OUT OF, IN WHOLE OR IN PART, HOOVER'S CONDUCT IN PROCURING, COMPILING, COLLECTING, INTERPRETING, REPORTING OR DELIVERING SERVICES OR INFORMATION.
5.3 Social Media Integration. Through the Hoover’s service, Customers may have access to certain social media applications on the Internet, or information from such social media applications, that are not part of the Services. Hoover’s has not, in all cases, contracted directly with these social media services for continued access. Hoover’s will use good faith efforts to maintain access to these social media applications for the term of this Order, but Customer acknowledges and agrees that such aspect of the services is not integral to the Services provided hereunder and therefore will not be entitled to a refund if such services become unavailable despite Hoover’s efforts. Hoover’s makes no representations, warranties or endorsements with respect to any such website or service, or information thereon, that may be accessed through the Services. When Customer accesses a non-Hoover’s site, or information from a non-Hoover’s site, Customer acknowledges that Hoover’s has no control over the content or information at that site, and that it is Customer’s responsibility to protect its system from such items as viruses, worms, Trojan horses and other items of a destructive nature. Customer affirms that it is authorized to access and import information from such outside sites into Hoover’s.
6.1 Services are proprietary to HOOVER’S and its affiliates and may include copyrighted works, trade secrets, or other materials created by HOOVER’S or its affiliates at great effort and expense. Customer will not disclose, contest the validity of HOOVER’S or its affiliates’ ownership of, or impair the value of, the Services in any way. Customer will reproduce HOOVER'S or its affiliate's copyright and proprietary rights legend on all copies of the Services.
6.2 Customer will not use any trademark, service mark or trade name of HOOVER'S or any of HOOVER'S affiliated companies or publish any press releases regarding this Agreement or any order. Customer shall not disclose the negotiated pricing or terms of this Agreement, or any order, to any third party.
6.3 HOOVER'S represents and warrants to Customer that, to HOOVER'S knowledge, the Information, when used in accordance with this Agreement, does not violate any existing, U.S. copyrights, patents, trademarks, or other intellectual property rights of any third party, as of the effective date of the applicable Order. The foregoing warranty does not apply to the extent Customer modifies the Information in any way or combines the Information with material from third parties.
6.4 Customer shall implement and maintain security measures with respect to the Information in Customer's possession that effectively restrict access to Information only to Authorized Users with a need to know, and protect Information from unauthorized use, alteration, access, publication and distribution. In no event shall such security measures be less restrictive than those Customer employs to safeguard its most confidential information. Customer shall supply HOOVER'S with a description of such security measures at HOOVER'S request. In the event of an actual or suspected breach of such security measures, Customer shall notify HOOVER'S within 24 hours.
7.1 In the event of material breach of paragraph 1, 2 or 6, the non-breaching party may immediately terminate, or HOOVER'S may suspend Services under, the applicable Orders without prior notice. In the event of material breach of any other part of this Agreement by Customer or HOOVER'S, the non-breaching party may terminate this Agreement or particular Orders if such breach is not cured within thirty (30) days of written notice of breach.
7.2 The provisions set forth in paragraphs 2, 3, 5, 6, 7.2, 8 and 9 will survive the termination of this Agreement.
8.1 EXCEPT FOR CLAIMS ARISING OUT OF VIOLATIONS OF PARAGRAPHS 1.2, 2 OR 6, AGGREGATE LIABILITY WITH RESPECT TO A PARTICULAR ORDER, FOR CUSTOMER, WILL NOT EXCEED THE AGGREGATE AMOUNT PAYABLE BY CUSTOMER TO HOOVER'S PURSUANT TO SUCH ORDER, OR, FOR HOOVER'S, THE AGGREGATE AMOUNT PAID TO HOOVER'S BY CUSTOMER PURSUANT TO SUCH ORDER. ANY CLAIMS WILL BE BROUGHT, IN ACCORDANCE WITH THIS AGREEMENT, WITHIN 12 MONTHS OF THE FIRST OCCURRENCE GIVING RISE TO SUCH CLAIMS, OR SUCH CLAIMS WILL BE FOREVER BARRED.
8.2 HOOVER'S SHALL NOT BE LIABLE FOR SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF PROFITS), EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
9.1 This Agreement is governed by and construed in accordance with the laws of the State of Texas, without regard to choice of law provisions. Any disputes arising out of this Agreement that cannot be resolved by the parties will be brought in state or federal court located in Austin, Texas.
9.2 Customer will pay all costs and expenses, including reasonable attorneys' fees, that HOOVER'S incurs in any action to enforce Customer's obligations under this Agreement.
10.1 All prior agreements, both oral and written, between the parties on the matters contained in this Agreement are expressly cancelled and superseded by this Agreement. In no event shall any terms or conditions included on any form of Customer purchase order apply to the relationship between HOOVER'S and Customer hereunder, unless such terms are expressly agreed to by the parties in writing. Any amendments of or waivers relating to this Agreement or any Order must be in writing signed by both parties.
10.2 Third parties (including affiliates of HOOVER'S) that provide information, software or services to HOOVER'S or its affiliates for use in providing the Services are intended third party beneficiaries of paragraphs 5 and 8.
10.3 This Agreement binds and inures to the benefit of the parties and their successors and permitted assigns, except that neither party may assign this Agreement without the prior written consent of the other party; however, HOOVER'S may assign the Agreement to an affiliate or in connection with a merger or consolidation involving HOOVER'S (so long as the assignment is to the newly merged or consolidated entity) or the sale of substantially all of HOOVER'S assets (so long as the assignment is to the acquirer of such assets).
REVISED November 1, 2010