Licensing Agreement
PLEASE READ THIS AGREEMENT CAREFULLY. BY USING ALL OR ANY PORTION OF THE LICENSED INFORMATION FROM TOTAL DEALER COMPLIANCE CORP (“TDC”), YOU ACCEPT ALL THE TERMS AND CONDITIONS OF THIS LICENSE AGREEMENT AND OF THE SUBSCRIPTION REQUEST. YOU AGREE THAT THIS LICENSE AGREEMENT AND SUBSCRIPTION REQUEST ARE ENFORCEABLE LIKE ANY OTHER WRITTEN NEGOTIATED AGREEMENT SIGNED BY YOU. IF YOU DO NOT AGREE, DO NOT USE THE TDC LICENSED INFORMATION.
This agreement ("the Agreement") is made between the Total Dealer Compliance Corp ("Licensor") and the entity purchasing the online subscription ("Licensee").
1. Definition of Terms
1.1 "Agreement" means this License Agreement including all and any schedules and any properly executed variations or addenda.
1.2 "Commercial Use" includes i) copying or downloading any of the Licensed Materials or linking to the Licensed Materials for further redistribution, sale or licensing, for a fee; ii) copying, downloading or posting of any of the Licensed Materials on a site or service that incorporates advertising with such content; iii) the inclusion or incorporation of any of the Licensed Materials in other works or services (other than legally permitted quotations with an appropriate citation) that is then available for sale or licensing, for a fee; iv) use of any of the Licensed materials (other than legally permitted quotations with an appropriate citation) by organizations for promotional purposes, whether for a fee or otherwise; and v) use of the Licensed Materials for the purposes of monetary reward by means of sale, resale, license, loan, hire, transfer or other form of commercial exploitation.
1.3 "Customer Content.” All references to “Customer Content” will mean Licensee’s documentation and information supplied by Licensee to TDC in connection with and/or pursuant to this Agreement.
1.4 “Data.” All references to “Data” will mean all of the information stored and contained in the Licensed Information. Except for the limited license granted to You in this Agreement, all Data provided by TDC and/or its third party or affiliate providers in all languages, formats, and media throughout the world will continue to be the exclusive copyrighted property of TDC and/or its third party or affiliate providers.
1.5 “Information Products.” All references to “Information Products” will include, but is not limited to continuing professional education products and services.
1.6 “Licensed Information.” All references to “Licensed Information” will mean any combination of the Information Products, the Software Products, and the product’s Data and Program licensed under this Agreement. This may also be used to refer to print products.
1.7 “You,” “Your” and “Licensee.” All references to “You,” “Your” and “Licensee” will mean the customer and/or the user.
1.8 "Fee" means the subscription fee payable by the Licensee for the Licensed Material as set out on the Website. Your payment entitles You to access the Licensed Information and use of the Program, in the United States only, unless otherwise indicated on the subscription form, in accordance with the terms of this Agreement.
1.9 "License" means the License as discussed in Sec 2 of the Agreement.
1.10 "Licensed" means the electronic version of the Licensor’s publication(s) which the Licensee subscribes to.
2. License
2.1 “Fee” In consideration of receipt of the Fee, Licensor grants the Licensee a non-exclusive, non-transferable License to access the Licensed Materials with a password or other necessary authentication to access the Licensed Materials. The Licensee shall not claim ownership of the Licensed Material, or any intellectual property rights in the Licensed Material, by reason of its use of or access to the Licensed Material. The Fee is non-refundable. You may terminate the renewal option once You subscribe to the Initial Term.
2.2 The Licensor reserves the right at any time to withdraw from the Licensed Materials, any item or part of an item for which it no longer retains the rights to publish, or which it has reasonable grounds to believe infringes copyright or is defamatory, obscene, unlawful or otherwise objectionable.
2.3 Term . Initial Term. The term will be the initial term set forth on the subscription form. As long as You comply with the terms of this Agreement, TDC grants You a non-exclusive license to use the Licensed Information for the purposes described in the product documentation. You are being charged an annual subscription Fee, which is not refundable once you access the portal/Data.
2.4 Automatic Renewal. At the conclusion of Your initial term, Your Agreement will automatically renew thereafter for subsequent terms of one year (1) unless and until either party gives the other party prior written notice of termination before the start of the renewal term.
3. Permitted uses
3.1 All use of the Licensed Material is subject to all applicable copyright laws and fair use conventions, and reproduction of any portion of the Licensed Material is permitted for personal, non-Commercial Use as follows:
3.2 Access the website portal in order to view, research, and learn the Licensed Materials, and to view and retrieve small proportions thereof;
3.3 Electronically save small portions of the Licensed Materials; and
3.4 Print out single copies of portions of the Licensed Materials.
Licensee's obligations
4.1 Licensee agrees that the License is personal to the Licensee and:
4.2 it will not knowingly permit anyone else to use designated passwords so to access the Licensed Materials;
4.3 You become aware of unauthorized access to the Licensed Materials, you notify Licensor immediately and co-operate in locating and attempting to stop the specific individuals who are abusing the service. If the specific abuser(s) cannot be identified or stopped, Licensor has the right to withhold, suspend, or terminate access to all or any portion of the Licensed Materials, without liability; and
4.4 will not remove, cover, overlay, obscure, block, or change any copyright notices, legends, or terms of use which Licensor or its licensors may post on the Site in order to inform users about system features, terms of use, or copyright notices;
4.5 will not systematically make printed or electronic copies of multiple portions of the Licensed Materials for any purpose or created any derivative works from the Licensed Materials;
4.6 create any derivative works from the Licensed Materials;
4.7 display or distribute any part of the Licensed Materials on any electronic network, including without limitation, an intranet, the internet and the Worldwide Web; or
4.8 make any Commercial Use of the Licensed Materials.
Technical access
5.1 Licensor intends for the user access to be available 24 hours per day, 7 days per week. However, neither to the fullest extent permitted by law, Licensor nor any of its licensors will be liable for damages or refunds should the access to the subscribed materials is obstructed, temporarily suspended, or unavailable due to technical difficulties.
Termination
6.1 Either party may terminate this Agreement:
6.1.1 where the other party commits a material or persistent breach of any term of this Agreement and fails to remedy such breach within 30 days of notification in writing from the other party; or
6.1.2 immediately upon the other party becoming insolvent, subject to receivership, liquidation or similar external administration.
6.1.3 On termination of this License for just cause, access to the Licensed Materials by Licensee and Authorized Users shall be terminated.
Warranty and liability
7.1 THE PRODUCT AND LICENSED INFORMATION ARE PROVIDED “AS IS” AND NEITHER TDC NOR ANY THIRD PARTY OR AFFILIATE PROVIDER MAKES ANY WARRANTY OR REPRESENTATION, EITHER EXPRESS OR IMPLIED, WITH RESPECT TO ANY LICENSED INFORMATION PROVIDED, INCLUDING ITS QUALITY, ACCURACY, PERFORMANCE, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. YOU ASSUME THE ENTIRE RISK AS TO THE RESULTS AND PERFORMANCE OF THE LICENSED INFORMATION. TDC DOES NOT WARRANT, GUARANTEE, OR MAKE ANY REPRESENTATIONS REGARDING THE USE OF, OR THE RESULTS OBTAINED WITH THE LICENSED INFORMATION IN TERMS OF ACCURACY, CORRECTNESS, OR RELIABILITY.
7.2 IN NO EVENT WILL TDC OR ITS THIRD PARTY OR AFFILIATE PROVIDERS BE LIABLE FOR DIRECT, INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF DELAYS, ERRORS, OMISSIONS, INACCURACIES, OR THE USE OR INABILITY TO USE THE LICENSED INFORMATION OR DOCUMENTATION, OR FOR INTERRUPTION OF THE LICENSED INFORMATION, FROM WHATEVER CAUSE. THIS WILL APPLY EVEN IF TDC OR ITS THIRD PARTY OR AFFILIATE PROVIDERS HAVE BEEN ADVISED THAT THE POSSIBILITY OF SUCH DAMAGES EXISTS.
7.3 NEITHER TDC NOR ANY THIRD PARTY OR AFFILIATE PROVIDER ARE RESPONSIBLE FOR ANY COSTS, INCLUDING THOSE INCURRED AS A RESULT OF LOST PROFITS OR REVENUE, LOSS OF DATA, THE COST OF RECOVERING SUCH PROGRAMS OR DATA, THE COST OF ANY SUBSTITUTE PROGRAM, CLAIMS BY THIRD PARTIES, OR FOR OTHER SIMILAR COSTS. EXCEPT FOR TDC’S INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION OR IN THE CASE OF TDC’S BREACH, IN NO CASE WILL TDC‘S OR ANY THIRD PARTY OR AFFILIATE PROVIDER’S LIABILITY EXCEED THE AMOUNT OF THE LICENSE FEES PAID.
7.4 IN NO EVENT SHALL LICENSEE BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES BASED ON ANY THEORY OF CONTRACT, TORT, STRICT LIABILITY, STATUTE OR UNDER ANY OTHER LEGAL OR EQUITABLE PRINCIPLE OR OTHERWISE.
7.5 Licensee shall be responsible for notifying all Authorized Users and any other users of the Licensed Materials or Site acting under Licensee that such users must always read the full disclaimers on the relevant website for each of the Licensed Materials and that their use of the Licensed Materials shall be deemed acceptance of those terms. Licensee shall indemnify Licensor and its licensors against any claims, costs, expenses, proceeding, awards and demands made against the Licensor or its licensors by Authorized Users or any other party using the Licensed Materials or Site under Licensee. Licensor and its licensors do not warrant or guarantee its accuracy, completeness, merchantability, non-infringement or fitness for a particular purpose of the Licensed Materials or the Site and to the fullest extent permitted by law, Licensor and its licensors expressly disclaim the foregoing and all others, (other than where expressly agreed to herein) and in addition, any conditions, warranties and other terms howsoever, which might otherwise be implied by statute, common law or otherwise.
Indemnification
8.1 Licensee agrees to defend, indemnify and hold TDC and any third party or affiliate provider harmless from and against all third party claims and damages (including reasonable attorneys’ fees) regarding Licensee’s use of any Licensed Information, unless the claims or damages are due to TDC’s or any third party or affiliate provider’s gross negligence or willful misconduct or arise out of an allegation for which TDC is obligated to indemnify Licensee.
8.2 Licensee agrees to defend, indemnify and hold TDC harmless at Licensee’s expense in any suit, claim or proceeding brought against TDC alleging that TDC’s use of any Customer Content delivered to TDC hereunder infringes a patent, copyright, trademark, trade secret, or other third party proprietary right, provided Licensee is (i) promptly notified, (ii) given the assistance required at Licensee’s expense, and (iii) permitted to retain legal counsel of Licensee’s choice and to direct the defense. Licensee also agrees to pay any damages and costs awarded against TDC by final judgment of a court of last resort in any such suit or any agreed settlement amount on account of any such alleged infringement, but Licensee will have no liability for settlements or costs incurred without its consent.
8.3 Should Licensee’s use of any such Licensed Information be enjoined, or in the event that TDC desires to minimize its liability hereunder, TDC will, at its option and expense, (i) substitute fully equivalent non-infringing Licensed Information for the infringing item; (ii) modify the infringing item so that it no longer infringes but remains substantially equivalent; or (iii) obtain for Licensee the right to continue use of such item. If none of the foregoing is feasible, TDC will terminate Licensee’s access to the Licensed Information and refund to Licensee the applicable fees paid by Licensee for the infringing item(s). THE FOREGOING STATES THE ENTIRE LIABILITY OF TDC AND LICENSEE’S SOLE REMEDY FOR INFRINGEMENT OR FOR ANY BREACH OF WARRANTY OF NON-INFRINGEMENT, EXPRESS OR IMPLIED. THIS INDEMNITY WILL NOT APPLY TO ANY ALLEGED INFRINGEMENT BASED UPON LICENSEE’S COMBINATION OF OTHER SOFTWARE OR INFORMATION WITH THE LICENSED INFORMATION WHERE THE LICENSED INFORMATION WOULD NOT HAVE OTHERWISE INFRINGED ON ITS OWN.
9. Confidentiality.
9.1 Confidentiality Obligations. During this Agreement negotiation process and subsequent term of this Agreement and thereafter, except as specifically provided herein and/or to the extent reasonably necessary to perform its obligations or exercise or enforce its rights hereunder, neither party shall provide or disclose to any third party, or itself use, unless authorized in writing to do so by the other party or properly directed or ordered to do so by public authority, any information or matter that (i) constitutes or concerns this Agreement negotiation process and/or terms and conditions of this Agreement, including pricing, (ii) is provided to it by the other party hereunder or as a result hereof, or (iii) regards any dealings or negotiations with the other party related to this Agreement (collectively hereinafter referred to as “Confidential Information”).
9.2 Limitation on Confidentiality. The parties will have no confidentiality obligation under Section 9.2 hereof with respect to any information or matter specified therein that (i) is or becomes generally available to the public other than as a result of disclosure by the receiving party or anyone to whom it transmits the information; (ii) becomes available to the receiving party on a non-confidential basis from a source other than the disclosing party who is not bound by a confidentiality agreement with the disclosing party or other legal or fiduciary obligation of secrecy; (iii) the receiving party can document was known to it or in its possession on a non-confidential basis prior to the date of disclosure by the disclosing party; (iv) is independently developed by the receiving party without use of, or reference to, the Confidential Information, as demonstrated by tangible evidence; or (v) is furnished by the disclosing party to others with written confirmation that such information is not confidential and may be disclosed. Any party claiming an exception to Section 9.2 hereof under this Section 9.2 will have the burden of proving the basis for the exception.
9.3 Confidentiality Standard. The parties shall follow the same procedures to insure their compliance with the requirements of this Section as they follow to protect their own confidential and proprietary information and matter of a similar nature (but in no case less than a reasonable standard of care).
Miscellaneous Provisions
10.1 Neither party shall be liable for failure, default or delay in performing its obligations under this License, caused by a Force Majeure event which shall include any act of God, war, or threatened war, act or threatened act of terrorism, riot, strike, lockout, individual action, fire, flood, drought, tempest or other event beyond the reasonable control of either party.
10.2 TDC and its third party or affiliate providers retain all rights not expressly granted to You in this Agreement. The software, material, content and related documentation in the Licensed Information are protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties. Nothing in this Agreement constitutes a waiver of TDC’s nor its third party or affiliate providers’ rights under the applicable copyright law. In the event that this Agreement is terminated, You agree to erase all Software Products. TDC will not be responsible for performance problems due to circumstances beyond its reasonable control.
10.3 In the event that TDC discontinues the production, sale or licensing of any Licensed Information and does not substitute equivalent Licensed Information for the discontinued Licensed Information, TDC will give the Licensee reasonable advance notice of such discontinuation, and upon such date of discontinuation, TDC shall have the right to terminate the applicable subscriptions as to such discontinued Licensed Information. As of the date of termination of such subscription, TDC shall credit to Licensee, on a pro-rated basis, any applicable pre-paid fees for the discontinued Licensed Information, and TDC shall have no further obligation to provide support as provided for in this Agreement.
10.4 This Agreement, including the information on Your subscription and any amendments or addendums that specifically reference this Agreement, constitutes the entire contract between You and TDC with regards to the subject matter addressed herein. All prior agreements and all oral or collateral representations, agreements, and understandings regarding the Licensed Information on Your subscription order are superseded by this Agreement. Licensee acknowledges and agrees that no representations have been made by TDC other than as expressly set forth in this Agreement and that Licensee has not relied on any representations not expressly set forth herein. If any of the provisions within the License Agreement are contradictory or inconsistent, then the provisions of this License Agreement will control unless indicates otherwise. Notwithstanding the above, Licensee may be required to review and accept third party or affiliate click-through license agreements before accessing third party or affiliate provider Licensed Information. Any additional or conflicting terms contained in any Licensee purchase order, proposal or other document shall be deemed to be rejected by TDC without need of further notice of objection, even if such document is acknowledged or accepted by TDC, and regardless of any statement to the contrary which may be contained therein, and shall be of no effect or in any way binding upon TDC.
10.5 Except as expressly provided above, this Agreement, or any part thereof, cannot be changed, waived, or discharged other than by a statement in writing signed by You and TDC.
10.6 If a court of competent jurisdiction declares any section of this Agreement to be invalid, unlawful or unenforceable as drafted, such section will be amended and construed in a manner designed to effectuate the purposes of the section to the fullest extent permitted by law. If such section cannot be so amended and construed, it shall be severed, and the remaining sections will remain unimpaired and in full force and effect to the fullest extent permitted by law.
10.7 TDC may assign or transfer its rights in this Agreement. You may not sublicense, assign, or transfer Your interests in this Agreement.
10.8 Notices under this Agreement will be considered to have been given when mailed by first class mail, postage paid, to Total Dealer Compliance Corporation, Customer Service Department, 733 Third Ave, 15th Floor, New York, NY 10017 and to You at Your address as indicated on Your subscription form. Such addresses may be changed by notice as stipulated in this Agreement.
10.9 This Agreement will be governed and construed in accordance with the laws of the State of New York. You expressly agree that all actions taken in connection with this Agreement and/or TDC will be initiated in the State of New York.
10.10 Licensor may assign or transfer any of its rights and obligations under this Agreement, upon written notice to Licensee. Licensee may not assign its rights or transfer its obligations herein without the prior written consent of Licensor.
10.11 Alterations to this Agreement are only valid if they are recorded in writing and signed by both parties.
10.12 In the event that any provision of this Agreement is held to be invalid, the remainder of the provisions shall continue in full force and effect.
10.13 TDC IS NOT A LAW FIRM AND DOES NOT PROVIDE LEGAL SERVICES. DISTRIBUTION OF THIS LICENSE DOES NOT CREATE AN ATTORNEY-CLIENT RELATIONSHIP. CREATIVE COMMONS PROVIDES THIS INFORMATION ON AN "AS-IS" BASIS. TDC MAKES NO WARRANTIES REGARDING THE INFORMATION PROVIDED, AND DISCLAIMS LIABILITY FOR DAMAGES RESULTING FROM ITS USE.
THE WORK (AS DEFINED BELOW) IS PROVIDED UNDER THE TERMS OF THIS LICENSE. THE WORK IS PROTECTED BY COPYRIGHT AND/OR OTHER APPLICABLE LAW. ANY USE OF THE WORK OTHER THAN AS AUTHORISED UNDER THIS LICENSE OR COPYRIGHT LAW IS PROHIBITED. BY EXERCISING ANY RIGHTS TO THE WORK PROVIDED HERE, YOU ACCEPT AND AGREE TO BE BOUND BY THE TERMS OF THIS LICENSE. THE LICENSOR GRANTS YOU THE RIGHTS CONTAINED HERE IN CONSIDERATION OF YOUR ACCEPTANCE OF SUCH TERMS AND CONDITIONS.
