NPA DATA SERVICES NON-EXCLUSIVE LICENSE AGREEMENT
Following are the NPA Data Services Non-Exclusive License Agreement for access to the NPA Data Services, services. By accessing the NPA Data Services, Client accepts and agrees to be bound by these terms.
means the person or entity identified as Client in the preamble of this Agreement.
1.2. “Confidential Information”
means all business or technical information of NPA that is not generally known to the public and that derives value from not being generally known, whether such information is disclosed to Client orally or in writing. Confidential Information may include any of the following: software, reports, documentation, algorithms, devices, compilations of information, methods, techniques, procedures, policies or processes. The Parties expressly acknowledge that this Agreement, the NPA Data Services, the Licensed Data, and any documentation provided to Client hereunder constitute Confidential Information.
means proprietary vehicle, market, pricing, transaction and all other data maintained in a proprietary database by NPA and may be delivered to Client during the term of this Agreement.
1.4. “Intellectual Property Rights”
means any patents and applications thereto, copyrights, trademarks, service marks, trade names, domain name rights, trade secret rights, and all other intellectual property and proprietary rights
1.5. “Licensed Data”
means the portion of the Data to which Client is given access to through the NPA Data Services.
means any work based on or incorporating all or any portion of the Licensed Data or the NPA Data Services, including, without limitation, modifications, enhancements and customizations to same.
1.7. “NPA Data Services”
means NPA’s online, web-based software platform and applications (including those portions of the software interface designed by NPA) that are hosted by NPA or a third party designated by NPA that enables Client to search and access Data.
1.8. “Ownership Rights”
means all rights, including Intellectual Property Rights, title, and interest to the Licensed Data and the NPA Data Services.
means Client’s limited internal business uses of the Licensed Data.
1.10. “Subscription Form”
means the NPA DataServices Subscription Form which includes Client’s address for notices, payment terms, and specifies the Licensed Data to which Client will have access. The terms of this Agreement shall be incorporated into each Subscription Form that will be executed between NPA and Client. If a conflict between this Agreement and an executed Subscription Form exists, the Subscription Form shall control
2. NON-EXLUSIVE LICENSE GRANT
2.1. License Grant.
Subject to the terms and conditions set forth in this Agreement, NPA hereby grants to Client, a non-exclusive, revocable, limited, worldwide, non-assignable, non-transferable, non-sublicensable right to use and access the Licensed Data solely for the Purpose.
2.2. Prohibited Use.
Any use of the Licensed Data for any reason other than the Purpose is strictly prohibited. Without limiting the generality of the foregoing, Client and any company, organization or individual, which has or gains access to the Licensed Data through Client is expressly prohibited from: (i) sublicensing or reselling the Licensed Data; (ii) performing mass searches or “mining” of the Licensed Data; (iii) providing access to the Licensed Data or the NPA Data Services to unauthorized third parties; (iv) using “ghosting” or other techniques to mask or duplicate searches by Client and/or any third parties; (v) using the Licensed Data in any way not specifically authorized in this Agreement or offering it through any third party, including but not limited to display or use of the Licensed Data for consumer and/or public purposes; (vi) disassembling, decompiling, reverse engineering, modifying or otherwise altering the Licensed Data or the NPA Data Services, or any part thereof without Client’s prior written consent; (vii) removing, altering, covering or obfuscating any copyright, trademark, or proprietary notices on the Licensed Data or the NPA Data Services; (viii) attempting to access any Data other than the Licensed Data; (ix) utilizing the Licensed Data to send spam, unlawful, infringing, obscene, or libelous material; (x) taking any action that would interfere with NPA’s title or ownership of its Intellectual Property Rights; or (xi) using the Licensed Data in a way that: (a) intentionally or unintentionally interferes with the operation of the NPA Data Services, (b) would compete with the business operations of NPA, or (c) would disparage NPA, its employees, directors, or officers or any other customer or client of NPA.
3. CLIENT RESPONSIBLITIES
3.1 Authorized Use.
Client shall: (i) be responsible for its and any party acting on its behalf compliance with the terms and conditions of this Agreement; (ii) use the Licensed Data in accordance with applicable laws, rules, regulations (including, without limitation, export, data protection, and privacy laws, rules, and regulations) and any documentation provided by NPA; (iii) prevent unauthorized access to or use of the Licensed Data or the NPA Data Services; and (iv) notify NPA immediately in writing of (a) any unauthorized use of or access to the Licensed Data or the NPA Data Services or (b) any notice or charge of noncompliance with any applicable law, rule or regulation asserted or filed against Client in connection with its use of the Licensed Data or NPA Data Services.
3.2 Security Measures.
Client will hold and will ensure that any parties acting on its behalf hold, all NPA Data Services login information in strict confidence and will report to NPA immediately any loss, theft, disclosure or unauthorized use of same. Unauthorized disclosure of login information by Client may, in NPA’s sole discretion, result in immediate termination of this Agreement.
Client shall consult with and receive NPA’s written consent before issuing any public announcements, press releases, or publications crediting NPA as the source of any Data or other information concerning the transactions contemplated by this Agreement or any Subscription Forms.
4.1. Reservation of Rights.
Client acknowledges that NPA retains full Ownership Rights, regardless of the form of media in which the Licensed Data or the NPA Data Services are contained. NPA’s Ownership Rights extend to any work based on or incorporating any portion of the Licensed Data or the NPA Data Services, including, without limitation, Modifications, including any Modification created by or for Client. Client hereby does and will assign to NPA all right, title and interest worldwide in the Intellectual Property Rights embodied in any and all Modifications. To the extent any of the rights, title, and interest in and to Modifications are found by a court of competent jurisdiction not to be assignable by Client to NPA, Client irrevocably agrees to grant, and hereby grants to NPA an exclusive, royalty-free, transferable, irrevocable, worldwide, fully paid-up license (with the rights to sublicense through multiple tiers of sub-licensees) to fully use, practice, and exploit those non-assignable rights, title and interest, including, but not limited to, the right to make, have made, use, have used, sell, offer for sale, have sold, distribute, and import the Modifications.
NPA’s name, logo, trade names and trademarks are owned by NPA, and no right is granted to Client to use any of the foregoing except as expressly permitted herein or by prior written consent of NPA.
NPA has a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use, copy, modify, or distribute, including by incorporating into any produce or service owned by NPA, any suggestions, enhancement requests, recommendations, or other feedback provided by Client relating to any product or service owned by NPA.
This Agreement shall be effective as of the Effective Date of the Subscription Form and shall extend for the Subscription Length as provided on the Subscription Form (the “Term”).
5.2. Termination for Convenience.
This Agreement may be terminated by NPA at any time during the Term for any reason and in its sole discretion, upon thirty (30) days written notice sent to Client.
5.3. Termination for Breach.
If either party commits a breach of any term, condition, or covenant contained in this Agreement, and if such breach cannot be cured or is not cured within ten (10) days from the receipt of a written notice regarding such breach, the non-breaching party may terminate this Agreement by sending a written notice of immediate termination.
5.4. Grounds for Immediate Termination.
NPA may terminate this Agreement immediately by delivering written notice of termination to Client in the event that Client engages in any Prohibited Use as defined in Section 2.2 of this Agreement.
5.5. Effects of Termination.
Immediately upon termination, Client’s access to the Licensed Data and the NPA Data Services shall cease. Client shall have no further rights to use the Licensed Data or the NPA Data Services.
6.1. Fees and Payment.
Client agrees to pay all fees as specified in the Subscription Form within thirty (30) days from the date of invoice. If Client disputes any charges, it shall notify NPA within thirty (30) days of the invoice date. Any disputes not received within said time period shall be deemed waived. All fees set forth in the Subscription Form are non-cancellable and non-refundable. Overdue amounts are subject to interest at a rate of one percent (1.0%) per month, or the maximum rate permitted by law, whichever is lower.
6.2. Suspension of Access.
If any amount is thirty (30) days or more overdue, NPA may, without limiting its other rights and remedies, suspend access to Licensed Data or the NPA Data Services until such amounts are paid in full.
Unless provided in this Agreement, fees specified do not include any taxes, and Client is responsible for payment and reimbursement of all taxes associated with its purchases hereunder, excluding any taxes based on NPA’s net income or property.
7.1. Protection of Confidential Information.
Client agrees that it will not disclose, provide or otherwise make available any Confidential Information without NPA’s prior written consent. In addition Client agrees that it will not: (i) use the Confidential Information for any purpose beyond the scope of this Agreement; (ii) copy any part of the Confidential Information or disclose any part of the Confidential Information to any person other than Client’s employees who need the information to perform their duties; (iii) authorize or permit any such employee to use or disclose any part of the Confidential Information in violation of this Agreement; (iv) reverse engineer, de-compile or disassemble any such Confidential Information or use any Confidential Information for the purpose of reverse engineering, de-compiling, or disassembling the NPA Data Services; or (v) product any product or offer any service of any nature whatsoever based in whole or in part on the Confidential Information or cause or assist any other person to do so.
Client’s obligations under this Agreement will not apply to any portion of the Confidential Information that: (i) at the time of disclosure to Client, was in the public domain or subsequently becomes part of the public domain through no breach of this Agreement; (ii) Client had in its possession at the time of disclosure by NPA, as established by written documentation in existence at that time, and that was not acquired directly or indirectly from NPA or with knowledge of confidentiality restrictions; (iii) Client subsequently acquires by lawful means from a third party who is under no obligation of confidentiality or non-use owed to NPA; or (iv) information that is independently developed by employees of Client who had no access to the Confidential Information.
7.3. Disclosure Pursuant to Legal Process.
If Client is legally compelled to disclose any portion of the Confidential Information in connection with a lawsuit or similar proceeding or to any governmental agency, Client will give NPA prompt notice, including the legal basis for the required disclosure and the nature of the Confidential Information that must be disclosed. Client shall cooperate fully with NPA in obtaining a protective order or other appropriate protection relating to the disclosure and subsequent use of the Confidential Information. Client will only disclose that potion of the Confidential Information that is legally required to be disclosed.
Client acknowledges that NPA would have no adequate remedy at law should Client breach its obligations under this Section 7 and agrees that NPA will be entitled to enforce its rights under this Section 7 by obtaining appropriate equitable relied including a temporary restraining order and an injunction.
7.5. Return of Confidential Information.
Upon request by NPA, Client will return any portion of the Confidential Information that Client no longer has the right to use, including all copies of the Confidential Information.
8. REPRESENTATIONS AND WARRANTIES
8.1. Mutual Warranties.
Each party warrants and represents that (i) it has the necessary power and authority to enter into and perform its obligations under this Agreement; (ii) the execution of this Agreement by its representative whose signature is set forth at the end of this Agreement has been duly authorized by all necessary organizational action; and (iii) it shall comply with all federal, state, and local laws applicable to its business.
8.2. Client’s Warranties.
Client represents and warrants to NPA that its use of the Licensed Data and the NPA Services will at all times not exceed the scope of the Purpose.
8.3. WARRANTY DISCLAIMER.
THE LICENSED DATA AND NPA DATA SERVICES ARE PROVIDED ON AN “AS IS” BASIS. OTHER THAN THE WARRANTIES PROVIDED IN SECTION 8.1, NPA HEREBY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE OR OF MERCHANTABILITY. EXCEPT AS PROVIDED IN THIS AGREEMENT, CLIENT ASSUMES ALL RISKS ASSOCIATED WITH USING THE LICENSED DATA AND NPA DATA SERIES, AND NPA DOES NOT WARRANT THAT EITHER THE LICENSED DATA OR NPA DATA SERVICES WILL BE ERROR FREE OR WILL MEET CLIENT’S SPECIFIC NEEDS. USE OF NPA DATA SERVICES MAY NOT BE SUPPORTED BY CLIENT’S EQUIPMENT OR CONFIGURATION(S). CLIENT’S USE OR APPLICATION OF THE LICENSED DATA AND NPA DATA SERVICES IS VOLUNTARY AND AT CLIENT’S SOLE DISCRETION. NPA DOES NOT WARRANTY THAT THE NPA DATA SERVICES OR THE LICENSED DATA WILL BE FREE FORM ERRORS OR THAT ITS OPERATION WILL BE UNINTERRUPTED.
Client shall defend, indemnify and hold harmless NPA, its officers, directors, employees, agents, contractors, successors and assigns (each of the foregoing persons, a “NPA Indemnitee”) from and against any and all losses incurred by the NPA Indemnitee arising out of any claim, suit, action or proceeding (each, an “Action”) alleged to arise out of result from (i) Client’s breach of any representation, warranty, covenant or obligation under this Agreement; (ii) Client’s action or failure to take required action, negligence, or more culpable act or omission (including recklessness or willful misconduct) in connection with its performance under this Agreement.
10. INJUNCTIVE RELIEF
Client recognizes, understands and agrees that monetary damages would be inadequate to compensate NPA for any breach by Client of the covenants set forth herein. Irreparable harm should be presumed if Client breaches any covenant in this Agreement. The faithful observance of all covenants in this Agreement is an essential condition to this Agreement, and NPA is depending upon absolute compliance. Damages may be very difficult to ascertain if Client breached any covenant in this Agreement. This Agreement is intended to protect the confidential and proprietary rights of NPA in many important ways. Even the threat of any misuse of the confidential or proprietary information of NPA and its users would be extremely harmful since such information is essential to the business of NPA. In light of these facts, Client agrees that any court of competent jurisdiction should immediately enjoin any breach or threatened breach of this Agreement upon the request of NPA, and Client specifically waives any right or defense or NPA otherwise being subject to any requirement of a showing of irreparable harm or posting any bond in connection with temporary or interlocutory injunctive relief, to the fullest extent permitted by law.
11. LIMITATION OF LIABILITY
IN NO EVENT SHALL NPA BE LIABLE FOR INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES OF ANY KIND OR NATURE, INCLUDING, WITHOUT LIMITATION, LOST CONTRACTS OR LOST PROFITS, IN ANY WAY ARISING OUT OF THE USE OF NPA DATA SERVICES OR THE LICENSED DATA OR OTHERWISE RELATING TO THIS AGREEMENT, HOWSOEVER CAUSED, AND REGADLESS OF WHETHER A CLAIM IS BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR ANY OTHER THEORY EVEN NPA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
NPA’S MAXIMUM LIABILITY TO CLIENT FOR ANY CLAIM, CAUSE OF ACTION, EXPENSE, DEMAND, OR ANY OTHER LIABILITY ARISING OUT THIS AGREEMENT WHETHER ARISING IN TORT, CONTRACT, INDEMNITY, BREACH OF WARRANTY, OR OTHERWISE SHALL NOT EXCEED THE AMOUNT PAID BY CLIENT TO NPA UNDER THIS AGREEMENT DURING THE TWELVE MONTH PERIOD PRECEDING THE DATE OF THE OCCURRENCE OF THE LAST ACT OR OMISSION GIVING RISE TO THE LIABILITY.
Any notice required to be given under this Agreement shall be in writing and delivered personally or mailed by certified, registered or express mail, return receipt requested or by Federal Express to the other designated party at: (i) for Client, the address designated in the Subscription Form or (ii) to NPA at:
Cycle Express LLC
Attn: Legal Department
12400 Stowe Dr.
Poway, California 92064
Either party may update its address for notice by providing notice as required in this Section 12.
13.1. Choice of Law.
This Agreement and any dispute arising therefrom shall be governed in accordance with the laws of the State of California.
13.2. Survival of Terms.
The provisions of Sections 2.2, 4, and 7-11 will survive any expiration or termination of this Agreement.
The provisions of the Agreement shall be binding upon and shall inure to the benefit of the Parties hereto, their heirs, administrators, successors and permitted assigns. However, neither Party may assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance, under this Agreement without the other Party’s prior written consent.
13.4 No Waiver.
No waiver by either party of any default shall be deemed as a waiver of a prior or subsequent default of the same or other provisions of this Agreement.
If any term, clause or provision hereof is held invalid or unenforceable by a court of competent jurisdiction, such invalidity shall not affect the validity or operation of any other term, clause or provision and such invalid term, clause or provision shall be deemed to be severed from the Agreement, which shall remain in full force and effect.
13.6 Entire Agreement.
This Agreement constitutes the entire understanding of the Parties, and revokes and supersedes all prior agreements between the Parties. It shall not be modified or amended except in writing signed by the Parties hereto.
This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement.
13.8 Relationship of Parties.
This Agreement does not create a joint venture or partnership between NPA and Client, and each will act independently of the other. Neither party is empowered to bind or commit the other to any contract or other obligation.