YOUR ATTENTION IS SPECIFICALLY DRAWN TO THE LIMITATIONS AND EXCLUSIONS CONTAINED IN SECTIONS 3 AND 4 OF THIS AGREEMENT.
1. Definitions, Interpretation and Term.
1.1 In this Agreement, unless the contrary intention appears:
"Additional User" means any other individual that is a direct Employee of the Primary User
"Agreement" means these Terms and Conditions and any consents or permissions obtained from the Primary User on the eCommerce Platform;
"eCommerce Platform" means the online platform accessed through ISO's website allowing customers to browse the inventory of Reports available for purchase, permits electronic delivery and used to conclude this Agreement;
"Effective Date" means the date on which you first order a Report;
"Employee" means term employees working directly for Primary User in Primary User's regular course of business. This specifically excludes independent contractors or consultants that are hired by Primary User on a project basis.
"Fee" means the amount displayed, in the relevant currency, on the eCommerce Platform as being payable to purchase and download Reports.
“Permitted Computer” means any computer, tablet or mobile device that is under the personal control of the Primary User or an Additional User.
"Primary User" or "you" means the individual entering into this Agreement to obtain a Report pursuant to a License, jointly with any legal person by whom such individual is employed or engaged on whose behalf the Report is used; and
"Report" means the Report ordered using ISO's eCommerce Platform, and associated data files.
2. Grant of License
Report License Terms
2.1 Where you have selected to purchase a Report, ISO grants you, upon the terms and conditions set forth in this Agreement:
(a) a non-transferable, non-assignable and non-exclusive License to use the Report solely for the internal business purposes of the Primary User in assessing physical, financial, risk, and other attributes of commercial properties covered by the report with regard to the commercial real estate market;
(b) solely to support such use, a non-transferable and non-exclusive License to copy such Report, and portions of the Report (including any embedded files contained in the Reports), into new files and properly attributed to ISO in accordance with section 5.2, below, whether or not such new files constitute derivative works, and reproduce such new files in storage media of a Permitted Computer; and
(c) a non-transferable and non-exclusive License to copy and distribute electronic or printed copies of a Report, to Additional Users.
2.2 For the purposes of this Agreement, acts or omissions of Additional Users shall also be deemed to be your acts or omissions.
2.3 You will ensure that any Additional User that receives a copy of a Report pursuant to the terms of the License is made aware of and complies with the terms of this Agreement.
2.4 Notwithstanding the foregoing, you may not exercise your rights hereunder so as to include information obtained from a Report in, or supply such information for inclusion in, any public document relating to a financial transaction, including a prospectus, circular, memorandum or report, without obtaining ISO’s prior written consent (which may be subject to payment of a fee or other conditions for such use of information).
2.5 This Agreement grants no right to sublicense, rent or loan any Report, nor does it grant any right to create a derivative work based upon any Report except as otherwise expressly provided in section 2.1(b), 2.2(b), or 2.3(b) as applicable. Neither You, your employees, any other authorized user of the Report, nor anyone acting by or through You shall sell, transfer, distribute, publish, disclose, display, or otherwise make the Report or any of the information therein, available, in whole or in part, to any other person or entity, without the express written consent of ISO.
2.6 Each Report provided to you is proprietary and confidential to ISO, and you shall protect each Report as a trade secret. You may not disclose or distribute, or permit to be disclosed or distributed, any Report or any information or data contained in or derived from any Report to any person, except as expressly permitted pursuant to this Agreement. You may not copy or use all or any portion of a Report except as expressly permitted in accordance with this Agreement).
2.7 This License does not extend to any affiliate or subsidiary of Primary User. No person or entity that is not a Primary User or an Additional User shall have access to the Report. This restriction does not include internal derivative works.
2.8 You, your employees or authorized users shall not use the Report for purposes of insurance underwriting (including ratemaking, risk classification, actuarial calculations, identification of prospective licensees, or reclassification of licensees), policy cancellation, or renewal, establishing or stabilizing claims payment levels, granting of credit or other similar purpose governed by the Fair Credit Reporting Act.
2.9 You acknowledge that a License will not entitle you or any Additional User to any updates to a Report, except where ISO elects to make an update available.
3. Representations and Warranties.
3.1 Except for statements that are expressly identified in this Agreement as representations or warranties, ISO makes no written, oral, statutory, express or implied warranties, conditions or representations, concerning the Reports or their content.
3.2 ISO warrants that it has used reasonable endeavors to obtain the factual information contained in the Reports from sources deemed by it to be reliable at the time such information was obtained but ISO makes no warranties or representations about the accuracy or completeness of such information.
3.3 ISO also warrants that it has used reasonable skill and care in creating the Reports, but ISO makes no warranties or representations about the accuracy or completeness of the Reports or about the content of such, including the interpretations it has made regarding the factual information in the Reports.
3.4 ISO makes no representation or warranty regarding the data, the judgements or the opinions contained in the Reports except as expressly set forth herein.
3.5 YOU WARRANT AND REPRESENT THAT YOU AND ANY ADDITIONAL USER THAT RECEIVES A COPY OF A REPORT ARE ACTING FOR PURPOSES WHICH ARE WHOLLY OR MAINLY IN CONNECTION WITH YOUR TRADE, BUSINESS, CRAFT, OR PROFESSION.
4. Limitation of Liability
41. UNDER NO CIRCUMSTANCES SHALL ISO BE LIABLE FOR:
(a) SPECIAL, INCIDENTAL OR PUNITIVE LOSSES OR DAMAGES;
(b) INDIRECT OR CONSEQUENTIAL LOSSES OR DAMAGES; OR
(c) LOSS OF BUSINESS, REVENUE, GOODWILL, PROFITS, CONTRACTS OR ANTICIPATED SAVINGS (WHETHER SUCH LOSS IS DIRECT OR INDIRECT, FORESEEABLE OR OTHERWISE),
IN ANY SUCH CASE ARISING FROM OR IN CONNECTION WITH OR OTHERWISE RELATING TO THE REPORT, THE WEB SITE, ANY WM MEDIA OR THIS AGREEMENT WHETHER ON THE BASIS OF NEGLIGENCE, TORT, BREACH OF CONTRACT, MISREPRESENTATION OR OTHERWISE.
4.2 NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT BUT SUBJECT TO SECTION 4.5 BELOW, UNDER NO CIRCUMSTANCES SHALL ISO BE LIABLE FOR ANY CLAIMS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, ON WHATSOEVER BASIS, IN AN AMOUNT IN EXCESS OF THE AMOUNT ACTUALLY PAID BY YOU (EXCLUDING TAX) IN A SINGLE TRANSACTION FOR ONE OR MORE REPORTS PURSUANT TO THIS AGREEMENT.
4.3 The Reports and the information therein, do not include, nor shall they be construed as including, advice, guidance, recommendations or predictive value from ISO to take, or not to take, any actions or decisions in relation to any matter, including in relation to investments or the purchase or sale of assets of any kind. Should you or any person take any such action or decision based on information in a Report, you do so entirely at your own risk and ISO shall have no liability whatsoever for any business or legal conclusions, judgments or decisions, loss, damage, costs or expenses incurred or suffered by you or any person as a result.
4.4 In no event shall you provide access to the Reports, or any part of the Reports, to any person other than as permitted by the license without obtaining prior written consent from ISO, which ISO may withhold in its absolute discretion or make subject to conditions. You hereby indemnify ISO against any loss, damage or expense suffered or incurred by it in relation to a breach of this section 4.4.
4.5 Notwithstanding anything to the contrary in this Agreement, ISO does not limit or exclude its liability for fraud or fraudulent misrepresentation, or for any liability which cannot by law be restricted or limited.
5. Proprietary Rights.
5.1 At all times, ISO or its licensor shall retain title to, and ownership of the copyright and all other intellectual property rights in, the Reports and extracts and copies thereof.
5.2 You shall not alter, obscure, remove, interfere with or add to any of the trademarks, trade names, markings or notices affixed to or contained in the Reports, and shall ensure that all those trademarks, trade names, markings and notices are reproduced completely and legibly on all copies of the Reports. If you excerpt any portion of a Report or utilize any information contained in a Report in any document (which you are entitled to do only to the extent expressly permitted under this Agreement), you will accompany such excerpt or information with an attribution as follows: “The foregoing [chart/graph/table/information] was obtained from [name of ProductTM, a product of ISO.” If Product(s) are reprinted, copied or otherwise used in part, the following legend must appear at the bottom of each page so used “Includes copyrighted material of Insurance Services Office, Inc. with its permission.” If the material to be reprinted, copied or otherwise used is copyrighted by a third party, Licensee must obtain permission of the copyright owner to so use the material, and abide by any requirements set forth by the third party.
5.3 Subject to section 4.2, ISO shall defend any and all suits, actions and claims brought against you in respect of, and shall pay all settlements and judgments directly resulting from or relating to any suits, actions or claim that a Report infringes any intellectual property right of any person not licensed hereunder, except for any claim which arises from breach of this Agreement by you or an Additional User or from a modification to any material from a Report not made by ISO. You agree to, and it shall be a condition to the continuation of the obligations of ISO pursuant to this section 5.3 that you:
(a) promptly notify ISO of such alleged infringement or violation;
(b) make no admission as to liability in respect to such claim, or otherwise prejudice ISO's defense of any suit, action or claim;
(c) allow the conduct, settlement, negotiation or litigation of such claim to be solely handled by ISO; and
(d) co-operate reasonably with ISO, at ISO’s reasonable expense, in the defense of any such claim to the extent requested to do so by ISO.
In no event shall ISO be liable for any compromise or settlement entered into without ISO’s prior consent. Notwithstanding any other provision of this Agreement, if any such infringement shall be alleged ISO shall have the right, in its discretion, to (i) modify or replace a Report (or part thereof) to avoid the infringement, (ii) procure the right for you and any Additional Users (as applicable) to continue using such Report or (iii) terminate your use of the Report and/or this Agreement and, if such termination is within one (1) year after the Effective Date, refund to you a pro-rata portion of the Fee already paid by you to ISO for such Report.
6. Termination of Access to Reports.
6.1 ISO may terminate this Agreement, immediately, without credit or refund on written notice to you:
(a) if ISO reasonably concludes that you are in breach of your obligations regarding the use of the Reports under a License; or
(b) if you shall have breached or violated any other term or condition of this Agreement and such breach or violation shall have continued for (or remains after) fourteen (14) days after the date of notice of such breach or violation.
6.2 ISO may terminate this Agreement, immediately on written notice to you if there is a legal or regulatory change which prevents or prohibits ISO from providing the Reports to you in the way that the Reports are provided; or otherwise where ISO considers such termination necessary to comply with a legal or regulatory requirement. In such case, ISO will give you a refund of the Fee paid for the Reports pro-rated on the basis on a twelve (12) month straight-line depreciation.
6.3 Upon termination of this Agreement, (a) your license to access and use the Reports shall terminate forthwith and you shall make no further use of the Reports whatsoever; (b) you shall within five (5) days destroy any copies of any Reports and
any part of any document or electronic file that contains data and other information (howsoever recorded and stored) extracted, exported or reproduced from any such Reports held by you or any Additional Users (and you shall certify, upon request, to ISO in writing that you have complied with this subsection (b)); and (c) ISO shall be relieved of any future obligation regarding your access to any Report. The terms of this section 6.3(b) do not require you to destroy any document or electronic file in your possession that contains data or information extracted exported or reproduced from any Report pursuant to a License, provided that the data or information contained in such document or file, together with any data or information contained in any other document or file, does not constitute more than an insubstantial portion of any Report.
6.4 The termination of this Agreement shall not affect any rights or obligations of either party which have accrued prior to the date of termination. The following provisions shall survive termination and shall remain in full force and effect: sections 1, 2.3, 2.9, 3, 4, 5.1, 6.3, 6.4, 8, 9, 10, 11, 12, 13, 14, and 15.
7. Fees; Taxes.
7.1 Unless otherwise stated, the Fees charged by ISO as consideration for a License exclude any sales or use tax, any value added tax or any other tax or other governmental charge payable in connection with your execution and delivery of this Agreement or the exercise of your rights hereunder. You shall pay any such tax or other governmental charge in addition to any Fee, whether or not separately invoiced by ISO. You shall indemnify and hold harmless ISO from your failure to make any such payment in a timely manner.
7.2 You shall pay each Fee promptly upon your receipt of an invoice therefor. The invoice may be provided by ISO, or a subsidiary, affiliate or parent company of ISO. If ISO shall elect to provide you any Report prior to your having paid the Fee therefor, such election by ISO shall not relieve you of your obligation to pay such fee as provided in the preceding sentence. No Fee is refundable for any reason except to the extent otherwise expressly provided herein.
7.3 The Fee for each Report as stated in this Agreement is net of any applicable withholding taxes that may be imposed by governmental authorities of any country from which payment of such Fee may be made. If any such withholding taxes shall be imposed or collected in connection with such Fee such that the amount of such Fee actually received by ISO shall have been reduced from the amount of the Fee stated in this Agreement, you shall be responsible for paying to ISO such additional amounts from time to time as shall be necessary to cause ISO to have received in connection with this Agreement the full amount of the Fee stated herein without regard to the imposition or collection of any such withholding taxes.
8. Entire Agreement; Severability.
This Agreement constitutes the entire agreement, and supersedes any proposals, previous agreements or existing contracts previously executed, with respect to the subject matter hereof. If any provision, clause or application of this Agreement to any party or circumstance is held invalid and unenforceable, this shall not affect any other provision, clause or application of this Agreement.
9. Injunctive Relief.
You agree that there can be no adequate remedy at law for any breach of your obligations hereunder regarding the use of the Reports or portions thereof; and that ISO, in addition to whatever other remedies it might have at law or in equity, shall be deemed to have suffered irreparable harm, and shall be entitled to appropriate equitable relief to prevent the use of any Report in breach of this Agreement or the unauthorized use, copying, or distribution of any Report or portion thereof.
A waiver of any provision of this Agreement or of any breach or default in performing or observing any such provision shall not be effective unless in writing and shall not constitute a continuing waiver unless expressly so provided. That waiver shall not prevent the waiving party from subsequently enforcing any provision of this Agreement not waived, or from acting on any subsequent breach or default.
No amendment or variation of this Agreement shall be effective unless made in writing and signed by you and ISO.
All notices, consents, approvals or other communications pursuant to this Agreement shall be made in writing and shall be delivered by personal delivery, by prepaid registered or certified mail (return receipt requested), by overnight courier (with receipt for delivery), to the applicable address specified by, in your case, on the e- Commerce Platform or, in the case of ISO, to ISO offices at 545 Washington Boulevard, Jersey City, New Jersey 07310-1686, attn: General Counsel or as otherwise notified to you from time to time.
13. Governing Law; Jurisdiction.
This Agreement shall be governed by and interpreted in accordance with the laws of New York. No action regarding this Agreement, any Report or the relationship between you and ISO may be commenced in any court except the in a court of competent jurisdiction (whether federal or state) sitting within the State and County of New York, which shall have the exclusive jurisdiction over any action. You and ISO (i) consent to the personal jurisdiction of the County of New York in any action; (ii) consent to the venue of the court of competent jurisdiction in the State and County of New York; and (iii) consent to service of process by the means specified herein for giving notice.
Neither the Primary User nor any Additional User may assign, transfer or sublicense voluntarily or by operation of law in any manner by Licensee any of its rights and privileges under this Agreement without ISO's prior written consent.
15. Third Party Rights.
A person who is not a party to this Agreement has no right to enforce any term of this Agreement but this does not affect any right or remedy of a third party which exists or is available.
16. Export Controls
16.1 You acknowledge that the provision of the Report may be subject to the export control laws (including trade sanctions) of the United States of America, and other relevant jurisdictions (including but not limited to the US Export Administration Regulations and you agree that you will comply with all applicable export control laws of all relevant jurisdictions to the extent that they apply. You further agree that you will not, and you will ensure that your employees will not, access or use the Report so as to cause ISO to breach any applicable export control laws or sanctions. ISO reserves the right to restrict your access to the Report to locations which are not subject to sanctions or export controls of the United Kingdom, the United States of America, and other relevant jurisdictions without liability to you. ISO further reserves the right to suspend provision of Report to you or terminate this Agreement upon written notice, without liability, in the event that you, your affiliates or employees, or the uses to which you put the Report, are or become the target of export control laws and regulations or trade sanctions of the United Kingdom, the United States of America, or any relevant jurisdiction. In the event that ISO determines that you or any of your affiliates or employees are in breach of this section, ISO may immediately terminate this Agreement without credit or refund on written notice to you.
16.2 You shall indemnify ISO and its affiliates from any and all loss, settlement, damage or expense (including reasonable legal fees) and any fine or penalty howsoever suffered or incurred that arise in relation to your breach of the restrictions in Section 16.1 above.
17. Use of Data.
ISO collects some information from you, including but not limited to your name, address, telephone number, and order history. We securely store your information and will only use it to provide you with the Report and services that you requested. We will not share this information with any other party, including our affiliates without your permission.