Terms and Conditions
OWNERSHIP. Byzzer owns all Byzzer Reports and Data. “Byzzer Data” means the Byzzer data included in the Byzzer Reports licensed to Client under this Agreement.
REPORT/DATA LICENSE; PERMISSIBLE USES. Client is granted a limited, nonexclusive license to use the Byzzer Reports and underlying Data for Client’s internal use only. This license expressly excludes the right to sublicense, distribute, resell and/or otherwise disclose Reports, Data or Services of Byzzer, in whole or in part. Client may disclose limited excerpts of Data to business partners in the conduct of their business. For purposes of this Agreement, “Limited Excerpts” are defined as excerpts that not sufficient to have independent commercial value. Client may not disclose more than Limited Excerpts of Data to any third party. In all cases, disclosed Data must show Byzzer’s copyright; be accurately labeled; and not be presented in a misleading manner. Notwithstanding anything to the contrary, if applicable as part of the licensed Reports and underlying Data, retailer-identifiable information contained in the Byzzer Data may only be disclosed to the named retailer to whom the data is derived, and shall not be disclosed to any other retailer or third party.
Confidentiality. “Confidential Information” shall mean any and all information related to the business and activities of a party (the “Disclosing Party”) and the party’s and its affiliates’ clients, customers, employees, suppliers, and licensors, and other entities with which the party and its affiliates do business, including, without limitation, software code, inventions, know-how, technical or financial information, strategic plans or customer information that the other party (the “Receiving Party”) receives or has access to in connection with the performance of its obligations under this agreement and that is either marked as confidential or is disclosed under circumstances that one would reasonably expect it to be considered confidential by the Disclosing Party. Byzzer’s Confidential Information shall include, without limitation: (i) any Byzzer Materials; and (ii) the Deliverables. Confidential Information shall not include information the Receiving Party can document: (a) is generally available to the public through no act or omission of the Receiving Party; (b) was already known by the Receiving Party prior to receiving it from the Disclosing Party without an obligation of confidentiality; (c) was received by the Receiving Party from a third party without a breach of that third party’s obligations of confidentiality; or (d) was independently developed by the Receiving Party without use of the Disclosing Party’s Confidential Information. If the Receiving Party is required by court order, subpoena or other lawful government action to disclose Confidential Information of the other party, then the Receiving Party, prior to such Disclosure, shall promptly notify the Disclosing Party of the pending disclosure in writing so the Disclosing Party, with the reasonable assistance of the Receiving Party, may attempt to obtain a protective order, and shall disclose only such information to the minimum extent required to comply. The Receiving Party will, and will cause its employees, subcontractors, agents, consultants and other representatives to, protect the confidentiality of the Disclosing Party’s Confidential Information with the same degree of care as it uses to protect its own Confidential Information, but in no event less than a reasonable degree of care. The Receiving Party shall not disclose or use the Disclosing Party’s Confidential Information, except as necessary to perform its obligations hereunder or as otherwise permitted herein, and except for disclosure to its personnel who have a need to know such information to perform the Services and who are bound by written obligations to protect such information. The confidentiality obligations of each party under this Agreement will survive expiration or termination of this Agreement for a period of five (5) years; except that obligations shall survive indefinitely with respect to any Personal Information or the Disclosing Party’s trade secrets. Upon termination of this Agreement, each party will cease all use of the other party’s Confidential Information and will promptly return, or at the other party’s request, destroy all Confidential Information in tangible form and all copies of Confidential Information. Upon request, a party will certify in writing its compliance with this Section. The Receiving Party will not be required to return or destroy an archive copy of the Disclosing Party’s Confidential Information made for backup purposes in the ordinary course of its business; provided that such archive copy will be subject to the ongoing obligations of confidentiality contained herein and shall be destroyed upon the normal expiration of backup files.
INDEMNITY. Client agrees to indemnify and hold Byzzer and its employees, directors, licensors and representatives harmless from and against all claims, damages, loss or expenses (including attorneys’ fees) arising, directly or indirectly, from Client’s disclosure or use of the Byzzer Reports or Data contrary to the terms of this Agreement.
DISCLAIMER OF WARRANTIES. Information consists primarily of estimates, representing Byzzer’s opinion, based on projections using statistical procedures Byzzer deems appropriate. It is subject to inherent coverage and error rates, and other statistical factors; therefore, Byzzer does not warrant that the Byzzer Data or Byzzer References are error-free. THE REPORTS, DATA AND SERVICES ARE LICENSED “AS IS,” AND BYZZER MAKES NO WARRANTIES, WHETHER EXPRESS, IMPLIED, OR ARISING BY LAW, COURSE OF DEALINGS OR OTHERWISE, WITH RESPECT TO THE REPORTS, DATA OR SERVICES. BYZZER EXPRESSLY DISCLAIMS ANY WARRANTIES OF NONINFRINGEMENT, MERCHANTABILITY, QUALITY OR FITNESS FOR A PARTICULAR PURPOSE. The foregoing disclaimer shall not act as or constitute an admission by Byzzer that any Byzzer Data constitute goods, commodities or tangible personal property under applicable law.
LIMITATION OF LIABILITY. IN THE EVENT THAT BYZZER FAILS IN ANY MATERIAL RESPECT TO DELIVER THE LICENSED REPORTS IN ACCORDANCE WITH THE TERMS SET FORTH IN THIS AGREEMENT, BYZZER WILL USE COMMERCIALLY REASONABLE EFFORTS TO CURE SUCH FAILURE AND, IF BYZZER IS UNABLE TO EFFECT SUCH A CURE, IT WILL GIVE CLIENT A PRO-RATA REFUND OF FEES PAID FOR THE AFFECTED PORTION OF THE REPORTS. THESE ARE CLIENT’S EXCLUSIVE REMEDIES. TO THE EXTENT PERMITTED BY APPLICABLE LAW, BYZZER WILL NOT OTHERWISE BE LIABLE, IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, FOR ANY DAMAGES, WHETHER DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL (INCLUDING WITHOUT LIMITATION, ANY LOSS OF PROFITS, REVENUE, DATA OR DATA USE), ARISING FROM THE FAILURE TO DELIVER ANY REPORTS, ANY ERRORS IN THE REPORTS OR DATA, OR THE USE OF THE BYZZER REPORTS, DATA OR SERVICES BY CLIENT OR OTHERS.
TERMINATION. Byzzer may terminate this Agreement upon notice to Client in the event of any breach of the terms of this Agreement by Client or any Client user or in the case that any of the requested information that Client provides via the Site or otherwise in connection with verifying Client’s eligibility and completing the license application process is untrue or incomplete.
FEES AND PAYMENTS. All invoices, including any applicable tax, are due and payable upon presentation. All fees and charges for licensed Reports shall be billed to and paid for by Client within the time period set forth in the applicable invoice, including all applicable taxes relating to use of the Reports, Data and Services through Client’s account. If not paid within 30 days, Byzzer may suspend Services. Interest accrues on invoices unpaid after thirty days at the lesser of 1.5% or the maximum allowed by law.
GOVERNING LAW; WAIVER. This Agreement and the parties’ respective rights and duties shall be interpreted and governed in accordance with the internal laws of the State of Illinois, United States of America. No waiver by either party of any breach of this Agreement by the other shall be a waiver of any preceding or subsequent breach thereof.
ENTIRE AGREEMENT. This Agreement constitutes the entire agreement between the parties with respect to the Reports, Data and Services and supersedes all prior negotiations and agreements, whether oral or written, with respect to the Reports, Data and Services. All obligations concerning confidentiality, liability, indemnification and uses of licensed Reports, Data and Services survive termination.