Each Order Form, together with these Reed Construction Data Standard Terms and Conditions and applicable additional terms and conditions set forth below for certain products and services constitutes one agreement (“Agreement”). Any change to the scope of work or services shall be made by written amendment to the Order Form signed by an authorized representative of each party prior to implementation of the change.
TERM: The term of the agreement set forth on the Order Form (the “Initial Term”), is not cancelable during that time. Upon the expiration of the Initial Term of a subscription agreement, the Agreement shall automatically renew for successive subscription periods (excluding promotional months) of equal length (“Renewal Terms”; the Initial Term, together with any Renewal Terms, is hereinafter referred to as the “Term”) unless canceled by either party on written notice delivered at least thirty (30) days prior to the expiration of the then-current Term. Products denominated as “one time” do not renew. Either party may terminate this Agreement immediately for cause if it has given written notice to the other party of a breach that the breaching party does not cure within ten business days of receipt. RCD may terminate this Agreement upon at least ninety (90) days advance written notice in the event that RCD generally discontinues offering to its customers the product or service provided hereunder, provided that Customer may, at its discretion, elect to receive a pro rata refund of any fees paid in advance or apply such fees toward a subscription to an alternative RCD product.
FEES AND PAYMENT: Customer agrees to pay the fees set forth in the Order Form in accordance with the schedule in the Order Form. All payments are due 30 days after the date of invoice. RCD may, in its discretion, increase fees payable hereunder by up to five percent (5%) per year during each calendar year following the Initial Term, and Customer hereby agrees to any such increase. RCD may increase fees payable hereunder by more than five percent (5%) during each calendar year following the Initial Term, provided that any increase in excess of five percent (5%) shall become effective only upon sixty (60) days advance written notice to Customer, and Customer shall have the right to terminate this Agreement on written notice to RCD delivered within thirty (30) days of receipt of the notice. RCD may increase fees on 30 days notice for monthly subscription products.
The fees and expenses to be paid by Customer do not include any federal, state, local or foreign taxes, duties or levies of any nature. Any taxes required to be paid by RCD as a result of the services provided hereunder, other than taxes based on RCD’s income, shall be billed to and paid by Customer.
Credit Card and bank debit payments will be processed and billed to Customer’s credit card or bank account (as the case may be). RCD may pre-authorize such charges with the credit card company or bank. Customer shall pay all costs of collecting overdue payments including reasonable attorneys’ fees and court costs. A charge of one and one half percent (1.5%) per month (or, if less, the maximum rate permitted by law) may be added by RCD to any overdue amounts. Customer shall notify RCD of any billing discrepancies within 90 days after they first appear on Customer’s account statement or it waives any right to dispute discrepancies. RCD may suspend its performance if any undisputed payment is past due; suspension will not relieve Customer of its obligation to pay in full.
LICENSE: Subject to all of the terms and conditions hereof, Customer is hereby granted a nontransferable, nonassignable and nonexclusive license to use data, reports, work product and services purchased or licensed during the Term, (the "Information"), solely for Customer’s internal business purposes. If the product is a subscription to a database, the license granted to Customer is limited to the number of users specified on the Order Form. RCD may remove any Information or user interface without notice.
DISCLAIMER; LIMITATION OF LIABILITY; INDEMNITY: EXCEPT AS EXPLICITY STATED HEREIN, RCD MAKES NO REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, CONCERNING THE INFORMATION OR ANY OTHER MATERIALS, INTERFACES, BANNERS, eNEWSLETTERS, LISTS, OR SERVICES PROVIDED HEREUNDER OR GUARANTEE OF ANY RESULTS TO BE DERIVED THEREFROM. WITHOUT LIMITATION OF THE FOREGOING, THE INFORMATION AND SERVICES ARE PROVIDED ON AN “AS-IS” BASIS, AND RCD HEREBY DISCLAIMS ALL REPRESENTATIONS OR WARRANTYS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, DESIGN, CONDITION, QUALITY, ACCURACY, RELIABILITY, CAPACITY, MATERIAL, WORKMANSHIP, COUNTS, SCALES, COMPLETENESS OR THE LIKE, OR THAT ANY SERVICES SHALL BE UNINTERRUPTED, IT BEING EXPRESSLY AGREED THAT ALL SUCH RISKS SHALL BE BORNE BY CUSTOMER. Customer further agrees to verify all scales, dimensions, values, costs, quantities and any other data pertaining to Customer’s use of the Information. RCD disclaims all liability regardless of whether such liability is based on contract, tort (negligence), strict liability, equity, statute, or any other theory of liability. Under no circumstances shall RCD or its affiliates be liable to Customer or any other person or entity for any incidental, special or consequential damages of any nature or kind whatsoever, including any interruption of, or loss of, service, any loss of goodwill or profits, or business loss arising out of, or in connection with, any deficiency or inadequacy of Information or other materials, work product or services made available by RCD or the preparation of proposals or bids using any of the foregoing items regardless of whether RCD has been advised of the possibility of such damages or if such damages were reasonably foreseeable. RCD’s aggregate liability for damages hereunder shall not exceed the amount of fees actually paid by Customer to RCD under this Agreement during the prior 12 months. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY AND SHALL SURVIVE TERMINATION OF THIS AGREEMENT AND COMPLETION OF SERVICES. Customer shall indemnify, defend and hold harmless RCD and its affiliates and their employees, directors, agents, licensors, representatives and contractors, against any loss, claim, judgment or expense, including reasonable attorneys' fees, arising out of (i) any breach by Customer of any representation, warranty, covenant or other term or condition hereof, or (ii) any claim or threatened claim by any individual or entity made against RCD or its affiliates relating to Customer’s use of the Information or any other services or materials furnished by RCD.
PROPRIETARY RIGHTS: The Information and all metadata concerning the Information and its use, and all services, constitute proprietary, confidential and trade secret information belonging to RCD or its licensors. As between the parties, RCD shall retain all right, title and interest in and to the Information and services, including all copyrights, trade secrets and other proprietary rights therein. Customer acknowledges, and agrees not to challenge in any fashion, that the Information: (i) constitutes original collections and assemblies of preexisting data, the selection, coordination and arrangement of which results in works which are original, (ii) contains data which is not preexisting, but instead is RCD’s own original expression; and (iii) derives value from information gathered and published by RCD in a prompt fashion. Customer shall not create derivative works based on the Information. All rights not expressly licensed to Customer hereunder are hereby reserved by RCD and/or its licensors.
NONDISCLOSURE; RESTRICTIONS: Customer agrees not to disclose or otherwise make the Information available to any person other than employees of Customer required to have such knowledge in the normal course of Customer's business. Customer may provide Information to independent contractors in Customer’s sales channel (for example distributors and independent representatives) who are required to have such knowledge in the normal course of Customer's business provided each independent contractor agrees in writing to nondisclosure restrictions at least as protective of RCD’s rights as this Agreement. Customer, its employees and independent contractors may not directly or indirectly: (i) copy the Information, or disclose, publish, distribute, transfer or disseminate the Information or project leads based on the Information to any third party; (ii) use the Information in a manner that violates any applicable law, copyright or other third party right; (iii) use the Information to compete with any products or services of RCD or its affiliates or to provide benchmark results. Customer represents, warrants and covenants to RCD that it and its employees and independent contractors who receive Information, are not, and shall not be during the Term, suppliers of project leads to other entities. Customer represents, warrants and covenants to RCD it has entered into this Agreement under its true name and is not, directly or indirectly, impersonating any real or fictitious person or entity or otherwise acting to withhold the actual identity of Customer. Customer shall be responsible for breaches of this Section by its employees or independent contractors. RCD reserves the right to “seed” the Information made available hereunder from time to time with a small quantity of data that does not correspond to any actual construction projects, for the sole purpose of identifying unauthorized disclosures or uses of Information.
Each user must have his or her own user name and password. RCD shall have the right to review records of Customer relating to compliance with this Section 6 on not less than ten (10) days prior written notice. RCD will hold all information disclosed by Customer pursuant to this Section 6 in confidence and use it solely to enforce its rights.
WEBSITE TERMS AND CONDITIONS: All access to RCD websites is subject to the following terms: If Customer posts any contact information, literature or other information of any kind to an RCD website, Customer is solely responsible for that information, and acknowledges that personal information may be viewed, collected or used by other site visitors and may result in unsolicited communication from site visitors. RCD may modify or remove such posted information in its sole discretion. Customer may not post any content that is not original to Customer, that is threatening, harassing, profane, tortious, defamatory, vulgar, obscene, deceptive, fraudulent, invasive of another's privacy or publicity rights, or any information that infringes any intellectual property right, or violates any laws, regulations or securities exchange requirements, or that contains a virus, worm or other harmful component, (each “Prohibited Content”), or contains advertising. Customer grants RCD a royalty-free, unrestricted, worldwide, perpetual, irrevocable, nonexclusive, sub-licensable and freely transferable right and license, for all formats and media, whether now known or hereafter devised or discovered, to use, reproduce, modify, edit, adapt, publish, translate, create derivative works of, distribute, perform, publish and display (in each case, in whole or in part) all such information Customer posts, including without limitation any ideas, concepts, methods, systems, designs, plans, techniques or other similar information included therein, and/or to incorporate them in other works.
Customer may not use any RCD website in an unlawful manner or to promote unlawful conduct or in a manner likely to give rise to civil liability, impersonate, or misrepresent Customer’s affiliation with, any other person or entity, engage in spamming or “flooding”, “scrape” or use any other automated means to extract data or other information from an RCD website, frame an RCD website, or attempt to gain unauthorized access to other computer systems through an RCD website.
Customer may access an RCD website using a password only if all information provided during the registration process is correct and kept updated. Customer is responsible for all use of passwords used in conjunction with Customer’s account, and agrees not to use any other entity’s user name, password or account number.
Customer agrees that RCD has no liability for information, services or materials provided by third party web sites to which links are provided on an RCD website.
FORCE MAJEURE: No delay, failure or default in performance of any obligation of either party hereunder, except payment obligations, shall constitute a breach of this Agreement to the extent caused by events or conditions beyond the affected party's reasonable control (such as, without limitation, war, acts of terrorism, acts of government, natural disasters, fire and explosions (“Force Majeure Events”).
MISCELLANEOUS: Any disputes arising hereunder shall be subject to the exclusive jurisdiction of the state or federal courts located in the City of Atlanta, Fulton County, State of Georgia, and the parties consent to the personal jurisdiction of such courts. This Agreement and performance hereunder shall be governed by the laws of the State of New York without reference to conflict of laws principles. Customer may not assign its rights, duties or obligations under this Agreement to any person or entity without the prior written consent of RCD. RCD may assign this agreement. Customer shall comply with all laws, including export control laws and regulations, applicable to its use of the Information. The waiver or failure of either party to exercise any right provided for herein shall not be deemed a waiver of any further right hereunder. RCD and Customer are independent contractors. RCD may use third party contractors to perform any of its obligations under this Agreement. If any provision of this Agreement is determined to be invalid under any applicable statute or rule of law, it is to that extent omitted, and the balance of the Agreement shall remain enforceable. Sections 2, 4-10 of this Agreement, MS 2-4, specEdge 1-6, MI 4 and cūbus 1 if applicable, shall survive the expiration or termination hereof. All notices, including notices of address change shall be in writing and shall be deemed to have been given when personally delivered, mailed by certified mail return receipt requested, or when sent by recognized overnight courier service to the address of RCD or Customer shown on the Order Form. In the case of a notice to RCD, a copy of such notice shall also be delivered by courier or certified mail to Reed Business Information, 360 Park Avenue South, New York, NY 10010-1710, Attn: General Counsel. This Agreement constitutes the entire agreement between the parties hereto with respect to the subject matter hereof and there are no representations, understandings or agreements which are not fully expressed herein. No amendment, change, waiver, or discharge hereof shall be valid unless in writing and signed by both parties.