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Retail Intelligence API / DATABASE LICENSE AGREEMENT
Information and Software are licensed by Digital Folio, Inc. ("DIGITAL FOLIO") to You provided that You comply with the terms and conditions below. "You" or "Your" means the single end-user customer organization executing this Agreement.
1. API/Database. DIGITAL FOLIO agrees to provide for PURCHASER retail-related data as well as API services for access to and retrieval of this data ("Data Services").
2. Technology License. DIGITAL FOLIO hereby grants PURCHASER a non-exclusive, non-transferable, non-assignable, non-sub-licensable, worldwide license to use the Data Services. PURCHASER shall not rent, lease, loan, sell, sub-license, assign, disseminate,
or otherwise transfer the Data Services to any third party including any subsidiaries or affiliates of PURCHASER. PURCHASER shall not reverse-engineer, decompile, or disassemble the Data Services, and PURCHASER shall not modify or create derivative works of
the Data Services except as provided for under Section 4 "Use of Work Product" below. PURCHASER acknowledges that breach of this provision by it would result in irreparable harm to the DIGTIAL FOLIO, for which money damages would be an insufficient remedy,
and therefore DIGITAL FOLIO shall be entitled to seek injunctive relief to enforce this provision.
3. Confidential Information. Each party hereto ("Such Party") shall hold in trust for the other party hereto ("Such Other Party"), and shall not disclose to any nonparty to the Agreement, any confidential information of Such Other Party. Confidential
information is information which relates to Such Other Party's research, development, trade secrets or business affairs, but does not include information which is generally known or easily ascertainable by non-parties of ordinary skill in computer design and
4. Use of Work Product. DIGITAL FOLIO and PURCHASER agree that PURCHASER shall have nonexclusive ownership of any deliverable product utilizing the Data Services and the ideas embodied therein. PURCHASER expressly agrees to utilize Data Services
for internal use only and not to compete with, interfere with, or provide competing services with DIGITAL FOLIO directly or indirectly. PURCHASER may however publish data or related-analyses utilizing Data Services and Data Services' data, solely or in part,
in so long as such work carries legible attribution: "Data Powered by Digital Folio".
5. Liability. DIGITAL FOLIO warrants to PURCHASER that the Data Services to be delivered have been procured from the manufacturers, retailers, authorized manufacturers or retailer representatives, DIGITAL FOLIO's universal shopping platform operation, or independent data sources; and that, to the best of DIGITAL FOLIO's knowledge, PURCHASER's use of the Data Services does not infringe on the intellectual property rights of any manufacturer or third party. Every attempt has been made to verify the data and image components of the Data Services. However, as the components of the Data Services are gathered from various data sources, elements of the Data Services are subject to human and / or machine error; therefore, DIGITAL FOLIO CANNOT AND DOES NOT WARRANT THAT THE DATA SERVICES WILL BE ERROR FREE OR THAT ALL DATA ELEMENTS WILL BE AVAILABLE OR PROVIDED FOR EACH PRODUCT OR DATA SERVICES COMPONENT. DIGITAL FOLIO DOES NOT WARRANT THAT REQUIRED IMAGES FOR EACH ITEM IN THE DATA SERVICES WILL BE AVAILABLE. DIGITAL FOLIO DOES NOT WARRANT THAT THE DATA SERVICES WILL MEET ALL THE NEEDS OF THE PURCHASER. DIGITAL FOLIO MAKES NO OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
In no event shall DIGITAL FOLIO be liable for special or consequential damages, either in contract or tort, whether or not the possibility of such damages has been disclosed to DIGITAL FOLIO in advance or could have been reasonably foreseen by DIGITAL FOLIO, and in the event this limitation of damages is held unenforceable then the parties agree that by reason of the difficulty in foreseeing possible damages all liability to PURCHASER shall be limited to One Hundred dollars ($100.00) as liquidated damages and not as penalty.
6. Indemnification. DIGITAL FOLIO shall, at its sole expense, defend, indemnify and hold PURCHASER and its' officers, directors, agents and employees harmless from and against all liability, damages and costs (including reasonable attorneys' fees and court costs) that may result from or arise out of any claim or suit brought against PURCHASER or its' officers, directors, agents or employees in connection with or arising out of the infringement by the Data Services of any patent, copyright, trade secret, or other proprietary right of a third party prior to the expiration or termination of this Agreement. The foregoing indemnity shall not apply to any infringement claim to the extent that the claim arises from (i) the modification of the Data Services by, or on behalf of, PURCHASER, except to the extent such modification is done by or at the direction of DIGITAL FOLIO; (ii) PURCHASER's use of the Data Services in conjunction with PURCHASER's data to the extent no such infringement would occur absent such combination; (iii) PURCHASER's use of the Data Services with other software or hardware, to the extent no such infringement would occur absent such combination; or (iv) PURCHASER's use of the Data Services in breach of this Agreement.
PURCHASER shall, at its sole expense, defend, indemnify and hold DIGITAL FOLIO and its' officers, directors, agents and employees harmless from and against all liability, damages and costs (including reasonable attorneys' fees and court costs) that may result from or arise out of any claim or suit asserted or brought against DIGITAL FOLIO by a third party in connection with or arising out of (i) content, technology, software, or hardware not provided by DIGITAL FOLIO, (ii) any illegal or unauthorized use of the Data Services by PURCHASER, its' officers, directors, employees, or contractors; and (iii) any electronic commerce activities relating to third parties to the extent such claim or suit would not have occurred absent the Data Services.
7. Refunds and Returns. As there is no valid means of establishing non-use or destruction of the Data Services once delivered, DIGITAL FOLIO will accept no Returns or issue no Refunds. Should, however, there be found a technical inaccuracy in the
data, DIGITAL FOLIO will make all efforts to supply corrections.
8. Complete Agreement. This Agreement contains the entire agreement between the parties hereto with respect to the matters covered herein. No other agreements, representations, warranties or other matters, oral or written, purportedly agreed to or
represented by or on behalf of DIGITAL FOLIO by any of its employees or agents, or contained in any sales materials or brochures, shall be deemed to bind the parties hereto with respect to the subject matter hereof. PURCHASER acknowledges that it is entering
into this Agreement solely on the basis of the representations contained herein.
9. Applicable Law. DIGITAL FOLIO shall comply with all applicable laws in delivering the Data Services but shall be held harmless for violation of any governmental procurement regulation to which it may be subject but to which reference is not previously
made. This Agreement shall be construed in accordance with the laws of the State of Colorado.
10. Scope of Agreement. If the scope of any of the provisions of the Agreement is too broad in any respect whatsoever to permit enforcement to its full extent, then such provisions shall be enforced to the maximum extent permitted by law, and the
parties hereto consent and agree that such scope may be judicially modified accordingly and that the whole of such provisions of this Agreement shall not thereby fail, but that the scope of such provisions shall be curtailed only to the extent necessary to
conform to law.
11. Assignment. This Agreement may not be assigned by either party without the prior written consent of the other party. Except for the prohibition on assignment contained in the preceding sentence, this Agreement shall be binding upon and inure to
the benefit of the heirs, successors and assigns of the parties hereto.
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