TERMS AND CONDITIONS
The Data License Agreement (“Agreement”) between your company (the “Company”) and Resource & Financial Management Systems, Inc. (“RFMS”) (Company and RFMS each a “Party” and collectively referred to as the “Parties”) is subject to the following Terms and Conditions:
SECTION 1. GRANT OF LICENSE
1.1. The Company does hereby grant RFMS the exclusive, royalty-free right (“License”) to collect, use, process and distribute Company Data, defined in Section 2 below, collected by RFMS.
1.2. RFMS shall not use the Data except as set forth herein. RFMS agrees to establish adequate mechanisms to ensure, to the best of RFMS’ ability, that the Data will be used in full compliance with the License granted herein and other ancillary services.
1.3. Nothing in this Agreement transfers or is intended to transfer any rights, title, or interest that the Company holds in the Data to RFMS, other than the rights set forth herein.
SECTION 2. LICENSED DATA
2.1. “Data” as used in this Agreement shall mean all Company transactional information contained in the Company’s RFMS system, including, but not limited to, the sales and financial information of the Company. Data used in the benchmarking information of Business Insights by RFMS (“BIR”) shall not include information which identifies the Company or the individual source of such Data.
SECTION 3. TERM
3.1. This Agreement and the License granted herein shall begin on the date the Company electronically or physically signs the Agreement and shall be of a perpetual nature.
SECTION 4. WARRANTY AND INDEMNIFICATION
4.1. The Company warrants that it has or has obtained all necessary rights in and to the licensed Data to enter into the License Agreement, and that RFMS will be able to fully exercise the License granted herein free from claims that RFMS’ exercise of the License violates any third-party right. The Company shall indemnify, defend, save and hold harmless RFMS from all claims, demands, suits, actions, proceedings, losses, liabilities, damages, awards and costs which may be brought or made against RFMS arising out of or related to the infringement of any patent, copyright, trademark, trade secret or other proprietary right of any third party by Company’s delivery or RFMS’ use of the License provided under the Agreement.
SECTION 5. CONFIDENTIALITY
5.1. During the course of this Agreement, RFMS agrees to protect all confidential proprietary information of the Company, including all information that has or could have commercial value or other utility to Company in its business and that, if disclosed without authorization, could be detrimental to Company's interests. Such information includes all information designated and maintained by Company as confidential and includes but is not limited to financial information, customer and supplier identities and marketing plans or strategies. RFMS agrees that it will not disclose any confidential information of Company to any third party not contemplated in this Agreement without Company’s prior written consent and will disclose confidential information only to those bound by obligations of confidentiality.
SECTION 6. TERMINATION
6.1. The Company or RFMS may terminate this Agreement after providing written notice to the other Party. Upon termination of this Agreement, RFMS may continue to use all Data previously provided to and held by RFMS prior to the date of termination in accordance with the terms provided herein.
SECTION 7. MISCELLANEOUS
7.1. Notices. All notices (except as otherwise specifically provided above), requests, demands, and other communications hereunder shall be in writing (including, but not limited to, electronic mail or facisimile) and shall be given by either electronic mail or personal delivery, United States mail, with first class postage prepaid:
7.1.1. If to RFMS:
Resource & Financial Management Systems, Inc.
3073 Palisades Court
Tuscaloosa, AL 35405
With a copy (which shall not constitute notice) to:
Bert M. Guy
Campbell, Guin, Williams, Guy & Gidiere, LLC
Capitol Park Center
2711 University Boulevard (35401)
P. O. Box 3206
Tuscaloosa, Alabama 35403
Telephone: (205) 633-0200
7.1.2. If to Company:
Company Address on file at RFMS.
Any Party may change the address to which notices are to be delivered to such Party, by a notice given in accordance with this Section 7.1 to the other Party. All such notices, requests, demands, and other communications shall be effective when received. Routine mailings or notices need not be accompanied by a copy to counsel for the respective Parties.
7.2. Amendment in Writing. This Agreement may not be amended, altered, terminated, or waived in any respect whatsoever, except by a further agreement in writing, properly executed by the Parties.
7.3. Prior Agreements. This Agreement supersedes and replaces any and all prior agreements the Company may have signed with RFMS related to the subject matter contained herein.
7.4. Final Integration. This Agreement constitutes the entire agreement of the Parties, as a complete and final integration thereof with respect to its subject matter. All prior understandings and agreements between and among the Parties are merged into this Agreement, which alone fully and completely expresses their understandings. No representation, warranty, or covenant made by any Party that is not contained in this Agreement or expressly referred to herein has been relied on by any other Party in entering into this Agreement.
7.5. Binding Effect. This Agreement shall bind the parties and their respective personal representatives, heirs, next of kin, legatees, distributees, successors, and assigns.
7.6. Independent Relationship. Nothing herein contained shall be construed to place the Parties in the relationship of partners or joint venturers, and no Party hereto shall have any power to obligate or bind any other Party hereto in any manner whatsoever, except as otherwise provided for herein.
7.7. Delay or Omission Not Waiver. No delay in exercising or failure to exercise any right or remedy by any Party shall impair any such right or remedy or constitute a waiver of any such right, remedy, or default, breach, or violation of any term, condition, or provision of this Agreement or an acquiescence therein. Every right and remedy given by this Agreement or by applicable laws to a Party may be exercised from time to time and as often as deemed expedient by that Party.
7.8. Rights and Remedies Cumulative. Except as otherwise specifically provided above, no right or remedy conferred upon or reserved to a party in this Agreement or any document or instrument delivered in accordance herewith is intended to be exclusive of any other right or remedy, and every right and remedy shall, to the extent permitted by applicable laws, be cumulative and in addition to every other right and remedy given under this Agreement or any document or instrument delivered in accordance herewith or now or hereafter existing at law or in equity. Except as otherwise specifically provided above, the assertion or employment of any right or remedy under this Agreement or otherwise shall not prevent the concurrent assertion or employment of any other appropriate right or remedy.
7.9. Assignability. This Agreement shall be binding upon and inure to the benefit of the successors and permitted assigns of the Parties hereto. The rights and obligations of the Parties granted hereunder are unique and personal in nature, and neither this Agreement nor the License may be assigned by RFMS or the Company without the other Party’s prior written consent.
7.10. Compliance with Applicable Laws. RFMS, to the best of its ability, shall comply with all laws, rules, regulations and requirements of any governmental body which may be applicable to the operations of RFMS contemplated herein including, but not limited to, the distribution, sale, use, marketing, advertising, or promotion of the licensed Data.
7.11. Governing Law. This Agreement shall be construed in accordance with and governed by the laws of the State of Alabama, applicable to contracts made and to be wholly performed therein without regard to its conflicts of law rules.
7.12. Jurisdiction and Venue. Any action based on this Agreement or any document or instrument delivered in accordance herewith shall be instituted in the Circuit Court of Tuscaloosa County, Alabama or the federal district court serving such county and, to the maximum extent permitted by law, each Party hereby irrevocably consents to the exclusive jurisdiction of such court and waives any jurisdictional defenses that each may have to the institution of such an action in such court. This paragraph does not waive any agreement to arbitrate.
7.13. Severability. All the terms, provisions, and conditions of this Agreement shall be deemed to be severable in nature. If for any reason the provisions hereof are held by a court of competent jurisdiction to be invalid or unenforceable to any extent, to the extent that such provisions are valid and enforceable, such court shall construe and interpret this Agreement to provide for maximum validity and enforceability.
7.14. Captions. The paragraph and section headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement.
7.15. Further Assurances. Each Party shall execute such additional documents and instruments as may be reasonably required by counsel for another Party to carry out the purpose and intent of this Agreement.
7.16. Counterparts. This Agreement may be executed in two more counterparts, each of which shall be deemed an original.
Terms & Conditions - Data Agreement 330927.2 4/4/2017