License Agreement for Hemisphere
Last Modified: March 11, 2021
These are the Terms and Conditions for the license of the Licensed Software known as Alpha and the Licensed Documentation between Customer Acquisition Inc. (“Company”) and you as a client user (“you” or “Customer”). The Terms and Conditions shall govern Customer’s use of the Licensed Software and the Licensed Documentation offered on this website and any related Digital Marketing Services Agreement (the “Agreement”) by and between Company and you. The Agreement is incorporated herein in its entirety by reference thereto. Please read these License Terms and Conditions carefully.
Company reserves the right to change, amend or modify any and all terms and conditions of the Terms and Conditions of the Licensed Software and the Licensed Documentation without prior notice to you. Any such change, modification or amendment shall be effective immediately upon posting on the website. You agree to periodically review such changes, modifications and amendments on this website. By accessing and continuing to use this website and the Licensed Software and the Licensed Documentation and Services, you agree to be bound and abide by the then current Terms and Conditions of the Licensed Software and the Licensed Documentation.
Company grants to Customer a license to use the Licensed Software and Licensed Documentation under the following terms and conditions:
- License Grant.
- Company grants to Customer a nonexclusive, nontransferable license to use one copy of the Licensed Software and the Licensed Documentation. There are no implied licenses under these Terms and Conditions. All rights not expressly granted herein are reserved.
- License Restrictions.
- You shall not resell, relicense or redistribute the Licensed Software and the Licensed Documentation, in whole or in part. Without limiting the foregoing, and except to the extent expressly authorized in Section 1.1 and/or the Agreement, you shall not share access to the Licensed Software and Licensed Documentation with any other person or entity, including parent, subsidiary, affiliate or other third party, or any third parties involved in any joint venture or joint marketing arrangements with you; (ii) disclose, use, disseminate, reproduce or publish any portion of the Licensed Software and Licensed Documentation in any manner or permit the same; (iii) process or combine any portion of the Licensed Software and Licensed Documentation or permit any portion of the Licensed Software and Licensed Documentation to be processed or combined with other data or software from any other source; (iv) allow access to the Licensed Software and Licensed Documentation through any terminals located outside of the United States; (v) use the Licensed Software and Licensed Documentation to create, enhance or structure any database for resale or distribution; or (vi) use the Licensed Software and Licensed Documentation to create derivative products.
- You shall not disassemble, decompile, manipulate, and/or modify the Licensed Software and Licensed Documentation or reverse engineer any portion of the Licensed Software and Licensed Documentation. You shall take all necessary steps to prevent unauthorized use or disclosure or disassembly, decompiling, manipulation or reverse engineering of the Licensed Software and Licensed Documentation. You shall not (a) rent, lease, sell, transfer, or further sublicense the Licensed Software and Licensed Documentation Software; (b) electronically transfer The Licensed Software and Licensed Documentation; (c) translate the Licensed Software and Licensed Documentation into another computer language; (d) reproduce or distribute the Licensed Software and Licensed Documentation, other than as specifically authorized in these Terms and Conditions; or (e) export the Licensed Software and Licensed Documentation in violation of applicable export laws.
- You shall not use the Licensed Software and Licensed Documentation in any way that would cause the Licensed Software and Licensed Documentation to constitute a “consumer report” under the Fair Credit Reporting Act, 15 U.S.C. § 1681 et seq. or similar statute, or by any other authority having jurisdiction over the parties.
- You shall not use the Licensed Software and Licensed Documentation (or any portion thereof) to create, replace, supplement or enhance any title, legal, vesting, ownership or encumbrance report.
- YOU SHALL NOT PROVIDE DIRECT OR INDIRECT ACCESS TO ANY PORTION OF THE LICENSED SOFTWARE AND LICENSED DOCUMENTATION, IN WHOLE OR IN PART, TO ANY THIRD PARTY. IF A THIRD PARTY WISHES TO ACCESS THE LICENSED SOFTWARE AND LICENSED DOCUMENTATION, THEY MUST ENTER A SEPARATE WRITTEN AGREEMENT DIRECTLY WITH COMPANY.
- Term; Termination.These Terms and Conditions are effective as of the Effective Date of the Agreement for the Term as provided for therein. Otherwise, the License granted remains in force until Customer stops using the Licensed Software and the Licensed Documentation. Company may terminate the License or these Terms and Conditions at any time without notice if Customer fails to comply with any term or condition of these Terms and Conditions. On termination, Customer shall permanently delete and destroy the Licensed Software and the Licensed Documentation, together with all copies thereof.
- License Fee. As compensation for the License granted, Customer shall pay to Company the License Fee or fees stated in Appendix A of the Agreement. The License Fee is exclusive of any tariff, duty, or tax, however designated, levied or based, including, without limitation, any sales or use taxes in any state and local privilege or excise taxes based on gross revenue, on (i) either the Agreement, the Licensed Software or Documentation and/or Customer’s use of it, or (ii) any materials or supplies agreed to be furnished by Company under the Agreement, Customer agrees to pay and be responsible for any and all of those taxes and levies (exclusive, however, of taxes based on the Company’s net income). Company shall have the right, but shall have no obligation, to pay any of those taxes or levies directly, in which event Customer shall reimburse Company, on demand, the amount so paid by Company. In no event does the exercise or nonexercise by Company of the foregoing right relieve Customer of its obligations under the Agreement or impose any liability whatsoever on Company.
- Ownership/Notice. The Licensed Software and Licensed Documentation, and all intellectual property contained therein, are and shall remain the sole and exclusive property of Company and its assignees, and are protected by United States copyright laws and international copyright treaty provisions. Customer shall include any proprietary notices embodied in the Licensed Software and Licensed Documentation on any copy of the Licensed Software and Licensed Documentation in any form, in whole or in part. Any modifications to the Licensed Software and the Licensed Documentation made by Customer shall be owned by Company but are licensed to Customer on the same terms as set forth in these Terms and Conditions. Customer hereby assigns and agrees to assign ownership of such modifications to Company.
- Copies. Any copies of the Licensed Software and the Licensed Documentation are the property of Company. Customer shall make only those copies of the supplied Licensed Software and Licensed Documentation needed for backup or archival purposes. No more than three (3) printed copies and three (3) machine-readable copies shall be in existence at any one time without the prior written consent of Company.
Customer agrees to reproduce the following notice on all copies of the Licensed Documentation in any form:
This computer program is a proprietary trade secret of Customer Acquisition Inc. Possession and use of this program must conform strictly to the Agreement between user and Customer Acquisition Inc., and receipt or possession does not convey any rights to divulge, reproduce, or allow others to use this program without Customer Acquisition’s specific written authorization. Copyright © 2020, an unpublished work by Customer Acquisition, Inc. All rights reserved.
- Security.Customer agrees not to provide or otherwise make available any Licensed Software or Licensed Documentation in any form to anyone other than permanent employees of Customer who are obligated by a written, executed agreement to maintain in confidence third party trade secrets and know-how, licensed or otherwise, in the possession of Customer, without prior written consent of an officer of Company. Customer agrees to advise all employees having access to the Licensed Software and Licensed Documentation of the Terms and Conditions of the License, including the proprietary and confidential nature of the Licensed Software and Licensed Documentation.
- Maintenance; Support
- Company shall use commercially reasonable efforts to provide reasonable amounts of technical support at no charge to Customer for The Licensed Software and Licensed Documentation. Company, however, unless otherwise specified in the Agreement, is under no obligation to provide any specific level or amount of support to Customer.
- Customer may provide Company with notice at any time of any defects it claims are contained in the Licensed Software and the Licensed Documentation. Company makes no warranty that a defect brought to its attention will be corrected or that a revision, if made, will cause the Licensed Software and the Licensed Documentation to operate in any particular manner.
- Company shall have no obligation to provide technical support for any claim based on (a) the use of the Licensed Software and the Licensed Documentation in connection with or in combination with hardware, software, or data not intended for use with the Licensed Software and the Licensed Documentation; (b) the use of the Licensed Software and the Licensed Documentation other than as permitted under these Terms and Conditions or in a manner for which it was not intended; (c) any modification made to the Licensed Software and the Licensed Documentation by Customer or any third party; or (d) if Company has advised the Customer to cease its use of the Licensed Software and Licensed Documentation.
- Customer hereby agrees that it shall keep confidential any information or data obtained from Company in connection with these Terms and Conditions (“Confidential Information”) and shall not divulge the same to any third parties, except for (a) information that, at the time of disclosure, had been previously made public; (b) information that is made public after disclosure to Customer, unless such disclosure is a breach of this or any other agreement; (c) information that, before disclosure to Customer, was already in Customer’s possession without obligation of confidentiality; or (d) information that, subsequent to disclosure, was obtained by Customer from a third party who was lawfully in possession of such information and was not in violation of any obligation of confidentiality to Company or any Company licensee.
- All Confidential Information shall remain the sole property of Company. Customer shall have no implied licenses or other rights in the Confidential Information not specifically granted herein. Customer shall not disclose the Confidential Information to anyone other than its employees and contractors with a demonstrable need to know such information and who have entered into a binding, written, confidentiality obligation to Customer that protects such Confidential Information against unauthorized disclosure or use.
- Customer shall take all reasonable precautions to keep the Confidential Information confidential and to prevent unauthorized use or disclosure of the Confidential Information. Customer acknowledges that any unauthorized use or disclosure of the Confidential Information would cause irreparable harm to Company.
- On termination of these Terms and Conditions, Customer shall destroy all Confidential Information within 3 days of the date of termination.
- The obligations in this Section 9 shall survive for a period of 3 years from the date of termination of these Terms and Conditions.
- Limited Warranties. Company warrants to Customer that the Licensed Software and the Licensed Documentation has the functionality described in the applicable documentation. This warranty shall be limited in duration to 90 days from the Effective Date of the Agreement.
- WARRANTY DISCLAIMERS; LIABILITY LIMITATIONS
- EXCEPT AS SPECIFICALLY SET FORTH IN SECTION 8 ABOVE, COMPANY MAKES NO WARRANTY OR REPRESENTATION WITH RESPECT TO THE LICENSED SOFTWARE AND LICENSED DOCUMENTATION AND IT IS LICENSED “AS IS.” THE WARRANTY AND REMEDY PROVIDED ABOVE ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT. ANY STATEMENTS OR REPRESENTATIONS MADE BY ANY OTHER PERSON OR ENTITY ARE VOID.
- CUSTOMER ASSUMES ALL RISK AS TO THE SELECTION, USE, PERFORMANCE, AND QUALITY OF THE LICENSED MATERIALS. IN NO EVENT SHALL COMPANY OR ANY OTHER PARTY WHO HAS BEEN INVOLVED IN THE CREATION, PRODUCTION, OR DELIVERY OF THE LICENSED SOFTWARE AND LICENSED DOCUMENTATION BE LIABLE FOR SPECIAL, DIRECT, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, INCLUDING LOSS OF PROFITS OR INABILITY TO USE THE LICENSED SOFTWARE AND LICENSED DOCUMENTATION, EVEN IF COMPANY OR SUCH OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
IN NO EVENT SHALL COMPANY’S LIABILITY FOR ANY DAMAGES OR LOSS TO CUSTOMER OR TO ANY THIRD PARTY IN CONNECTION WITH THESE TERMS AND CONDITIONS EXCEED ANY LICENSE FEE ACTUALLY PAID BY THE CUSTOMER FOR THE LICENSED MATERIALS.THE LICENSED SOFTWARE AND LICENSED DOCUMENTATION IS NOT DESIGNED, INTENDED, OR AUTHORIZED FOR USE IN ANY MEDICAL, LIFE-SAVING OR LIFE-SUSTAINING SYSTEMS, OR FOR ANY OTHER APPLICATION IN WHICH THE FAILURE OF THE MATERIALS COULD CREATE A RISK OF PERSONAL INJURY OR DEATH. Should you use the Licensed Software and the Licensed Documentation for any such unintended or unauthorized use, you shall indemnify and hold Company and its officers, subsidiaries, and affiliates harmless against all claims, costs, damages, and expenses, and reasonable attorney fees arising out of, directly or indirectly, any claim of product liability, personal injury, or death associated with such unintended or unauthorized use, even if such claim alleges that Company was negligent regarding the design or manufacture of the part.
- Because some states and/or countries do not allow limitations on how long an implied warranty lasts and some states and/or countries do not allow the exclusion or limitation of incidental or consequential damages, the preceding limitation and exclusion may not apply to Customer. This warranty gives Customer specific legal rights, and Customer may also have other rights which vary from state to state and/or country to country.
- Client Indemnity. You shall indemnify, defend and hold Company harmless from and against all claims, losses, liabilities, damages, costs and expenses (including, without limitation, reasonable attorneys’ fees) arising from a claim, suit or proceeding brought against Company by a third party arising out of or related to: (i) the use of the Licensed Software and Licensed Documentation; (ii) your provision of or Company’s use of any data, documentation or other materials provided by you; and/or (iii) your breach of these Terms and Conditions or the Agreement.
- Direct Marketing Activities. When using the Licensed Software and the Licensed Documentation offered on this website for marketing or solicitation purposes, Customer shall act in a lawful, ethical and honest manner at all times in conducting its direct or digital marketing activities and comply with the published guidelines of the Data & Marketing Association and the Association of National Advertisers.
- Compliance with Law. You represent and warrant that you have all rights necessary to provide any and all data, documentation and other materials that you may make available to Company under the Agreement and that Company may use, copy and otherwise manipulate such data, documentation and other materials as necessary for Company to perform the Services in connection with the Licensed Software and the Licensed Documentation required under the Agreement and these Terms and Conditions. You shall use the Licensed Software and the Licensed Documentation in compliance with all applicable laws, statutes, ordinances, regulations, and all applicable privacy policies. You may provide or otherwise make the Licensed Software and the Licensed Documentation available to any consumer to the limited extent necessary for you to comply with its disclosure obligations under applicable federal and state consumer protection laws.
- Consumer Inquiries. You shall be responsible for accepting and responding to any communication initiated by a consumer (“Consumer Inquiries”) arising out of your use of the Licensed Software and the Licensed Documentation. You agree to implement a “consumer care” system that includes in-house capabilities to suppress consumer information, upon request by a consumer, from future marketing initiatives by you and agree to honor any such request by suppressing such consumer information from your marketing solicitations. You may communicate to Company records of the deceased.
- Audits. You shall maintain current, accurate and complete records relating to your use of the Licensed Software and Licensed Documentation for at least 12 months after each marketing campaign, including, but not limited to (a) sample mail, text, electronic communications and email pieces, (b) all digital materials, photos, ad copy, search engine results and ad campaigns including but not limited to Google, Facebook and Instagram and all other third party websites as well as all data and all related advertising campaign materials of any kind whatsoever. Company may audit you for the purpose of ensuring your compliance with the Terms and Conditions and any applicable rules, laws and regulations, upon five days’ prior written notice. Company may choose the auditor in its sole discretion. If the audit indicates there is a breach in your compliance with these Terms and Conditions or the Agreement: (i) Company may immediately terminate the Agreement and this License and pursue its legal remedies, and (ii) you shall pay for the cost of such audit. If you do not cooperate with Company’s request to audit for compliance, you shall be deemed to have conclusively admitted to a material breach in your compliance for which Company may immediately terminate this Agreement.
- Order of Precedence. In the event of any conflict or inconsistency between or among the Agreement and any Exhibit thereto and/or the License Terms and Conditions of the License granted for the Licensed Software and the Licensed Documentation, then the terms and conditions of the Agreement shall control with respect to the Services provided therein and the License Terms and Conditions shall control with respect to the Licensed Software and the Licensed Documentation.
- General Provisions.
- If any provision or portion of a provision of these Terms and Conditions is determined to be invalid or unenforceable, it shall be deemed omitted and the remaining provisions of these Terms and Conditions shall remain in full force and effect.
- These Terms and Conditions shall be governed and determined by California law, including any laws that direct the application of the law of another jurisdiction. Any dispute that arises under or relates to the Terms or Conditions or the Agreement (whether contract, tort, or both) shall be resolved in the Superior Court in Los Angeles, California, USA and the parties expressly waive any right they may otherwise have to cause any such action or proceeding to be brought or tried elsewhere.
- Attorney Fees and Costs. In any litigation, arbitration, or other proceeding by which one party either seeks to enforce its rights under the License Terms and Conditions (whether in contract, tort, or both) or seeks a declaration of any rights or obligations, the prevailing party will be awarded reasonable attorney fees, together with any costs and expenses, to resolve the dispute and to enforce the final judgment.
- Neither party hereto shall be liable in any manner for any failure or delay in fulfillment of all or part of these Terms and Conditions directly or indirectly caused by any causes or circumstances beyond its reasonable control, including, but not limited to, acts of God.