1.1 Client Data. Client shall own all right, title and interest in and to all data provided by Client (“Client Data”). Client grants TCPG a worldwide, royalty-free, non-exclusive, perpetual license to access and use Client Data to provide the reports outlined in the attached Statement of Work (“Report” or “Reports”) to Client.
1.2 Data Requirements. Client is responsible for ensuring that Client Data does not violate any applicable law (including any consents required under applicable data privacy laws) or infringe the rights of any third parties. While TCPG will not verify the Client Data or TCPG’s right to use the Client Data pursuant to this Agreement it retains the right to return to Client or delete any Client Data that violates this Agreement or is otherwise objectionable or inappropriate, as determined by TCPG in its sole discretion.
1.3 Restrictions and Responsibilities.
1.3.A Client will not, directly or indirectly: reverse engineer, crawl, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to any Reports or any software, documentation or data related to the Reports (“Software”); or seek to obtain intellectual property protection on any Reports or Software, or any part thereof; or remove any proprietary notices or labels.
1.3.B Client will only use the Reports in compliance with this Agreement and all applicable laws and regulations. Client is responsible for all activity related to Client’s use of the Reports, including but not limited to, actions of Client’s employees, owners, officers, directors, contractors, subsidiaries, vendors, and third-party agents.
FOR PURPOSES OF THESE TERMS AND CONDITIONS AND SOLELY TO OBTAIN CLIENT DATA FOR YOU AT YOUR REQUEST FROM A THIRD PARTY OR THIRD PARTY SITE, YOU GRANT US A LIMITED POWER OF ATTORNEY, AND APPOINT US AS YOUR ATTORNEY-IN-FACT AND AGENT, WITH FULL POWER OF SUBSTITUTION AND RE-SUBSTITUTION, FOR YOU AND IN YOUR NAME, PLACE AND STEAD, IN ANY AND ALL CAPACITIES, TO ACCESS THIRD PARTY SITES, SERVERS OR DOCUMENTS, RETRIEVE INFORMATION AND USE YOUR INFORMATION WITH THE FULL POWER AND AUTHORITY TO DO AND PERFORM EACH AND EVERY ACT AND THING REQUISITE AND NECESSARY TO BE DONE IN CONNECTION WITH SUCH ACTIVITIES, AS FULLY TO ALL INTENTS AND PURPOSES AS YOU COULD DO IN PERSON. YOU ACKNOWLEDGE AND AGREE THAT WHEN WE ARE ACCESSING AND RETRIEVING YOUR CLIENT DATA FROM THIRD PARTY SITES AT YOUR DIRECTION, WE ARE ACTING AS YOUR AGENT, AND NOT AS THE AGENT OF OR ON BEHALF OF ANY THIRD PARTY. YOU AGREE THAT THIRD PARTY ACCOUNT PROVIDERS SHALL BE ENTITLED TO RELY ON THE FOREGOING AUTHORIZATION, AGENCY AND POWER OF ATTORNEY GRANTED BY YOU.
2.1 Client will pay TCPG the fees described in the Order Form and any other fees required under the terms of this Agreement (“Fees”). Fees are due and payable as described in the Order Form and any Fees outstanding more than ten (10) days after written request for payment are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection, including but not limited to attorney’s fees. All Fees are non-refundable. Fees are exclusive of applicable taxes. Client shall be responsible for all taxes associated with any Report, including but not limited to sales and use, excise, state and local privilege tax and VAT, but excluding U.S. taxes based on TCPG’s net income. TCPG reserves the right to change the Fees or applicable charges and to institute new Fees or charges, at the end of the Initial Term or then-current renewal term, upon thirty (30) days prior written notice to Client (which may be sent by email).
2.2 Fees may be paid by ACH or with a credit card. Client understands there will be no fee for payment by ACH. If Client chooses to pay with credit card, Client will incur a 3% service charge for each transaction.
2.3 Client may engage TCPG to provide additional services and analysis as may be agreed upon by the parties in writing, which may be billed separately and subject to any additional terms and conditions as agreed upon by Client and TCPG.
3.1 TCPG shall own and retain all right, title and interest in and to (a) the Reports and Software, all improvements, enhancements or modifications thereto, (b) any software, applications, inventions, templates, methodologies, or other technology developed in connection with Client support services, and (c) all intellectual property rights relating to any of the foregoing. To the extent Client now or hereinafter acquires any right, title or interest in the foregoing, Client hereby assigns all such right, title and interest to TCPG. Except for the license rights expressly granted to Client herein, no other rights in or to any Reports, Software, or any other intellectual property of TCPG are granted to Client herein.
3.2 Notwithstanding anything to the contrary, TCPG may use Client Data (1) for its internal business purposes, including to improve, administer and deliver the Reports, and (b) to create aggregate and anonymous data, which TCPG shall own and is permitted to use for any purpose.
4.1 Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Confidential Information” of the Disclosing Party). Confidential Information of TCPG includes, but is not limited to, non-public information regarding features, functionality and performance of the Reports and Software. Confidential Information of Client includes non-public data provided by Client to TCPG to enable production of the Reports. The Receiving Party agrees: (i) to take reasonable precautions to protect such Confidential Information, and (ii) not to use (except in providing the Reports or as otherwise permitted in this Agreement) or divulge to any third person any such Confidential Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information that the Receiving Party can document (a) is or becomes generally available to the public (through no actions of Receiving Party), or (b) was rightfully in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Confidential Information of the Disclosing Party as evidenced by contemporaneous written records. Notwithstanding the restrictions in Section 5, if the Receiving Party is required to disclose any of the Disclosing Party’s Confidential Information by law, such as in response to a subpoena or requirement of any regulator, court, arbitral, administrative, or legislative body, the Receiving Party must: where reasonably possible and permitted, immediately provide written notice to the Disclosing Party of the required disclosure to give the Disclosing Party an opportunity to move for a protective order or otherwise prevent the disclosure; disclose only the minimum amount of Confidential Information required to satisfy the legal obligation; and assert and take proper steps with the body requiring disclosure to maintain the confidentiality of the Confidential Information to be disclosed.
The Term commences as stated on the Client Order Form and continues for an initial term as stated on the Client Order Form (“Initial Term”). Thereafter, this Agreement will renew as stated on the Client Order Form unless either party terminates by providing at least 30 days written notice prior to renewal (the Initial Term and any renewal term, collectively, “Term”). Further, either party may terminate this Agreement, if the other party materially breaches this Agreement and fails to cure such breach within thirty (30) days following written notice of the breach (or without notice in the case of nonpayment). Upon termination (i) Client shall pay all outstanding Fees through the end of the current Term (or if Client terminates due to a material breach by TCPG, through the date of termination), and (ii) TCPG will return all Client Data to Client, at Client’s expense, or erase or otherwise destroy all Client Data if so directed by Client (with the exception of (1) automatically generated computer back-up or archival copies generated in the ordinary course of TCPG business, provided that such information shall remain subject to the confidentiality provisions herein until such information is automatically destroyed and (2) Client Data that has been aggregated, anonymized, or usage data collected by TCPG as permitted by this Agreement). All sections of this Agreement which by their nature should survive termination, will survive termination, including, without limitation, accrued rights to payment, ownership, proprietary rights, confidentiality, indemnity, warranty disclaimers and limitation of liability.
6.1 Client. Client represents and warrants that (i) it holds all rights and authority to engage in, and to authorize TCPG to engage in, the activities contemplated hereunder; (ii) the execution, delivery and performance of this Agreement, will not violate any existing law, rule, regulation, corporate document, order, determination or award of any governmental authority or arbitrator, applicable to Client and this Agreement and is a legal, valid and binding obligation of Client, enforceable in accordance with its terms; and (iii) Client is authorized to furnish the Client Data for use in the Report and that the Client Data (and the provision of the Client Data) does not violate any law or infringe the rights of any third party.
6.2 TCPG. TCPG warrants that the Report will be in substantial conformity with the description in the Order Form. In the event of a breach of this warranty, TCPG will use commercially reasonable efforts to correct the reported non-conformity, at no charge to Client. The foregoing shall be Client’s sole and exclusive remedy for any breach of the warranty set forth in this Section 5.2.
6.3 Limitations and Exclusions. TCPG DOES NOT WARRANT THAT THE REPORTS WILL BE ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE REPORTS. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE REPORTS AND CONTENT REPORT ARE PROVIDED “AS IS” AND TCPG DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
7.1 Client Indemnification. Client will defend, indemnify and hold harmless TCPG and its owners, officers, directors, affiliates, subsidiaries, representatives, contractors and employees from and against any and all claims or other actions arising from Client’s breach of this Agreement or any third party claims with respect to TCPG and its owners, officers, directors, affiliates, subsidiaries, representatives, contractors and employees’ use of Client Data (provided such use is in accordance with this Agreement). TCPG will give Client prompt notice of any such claim and Client shall have the option to assume the defense of the claim. TCPG will not be responsible for any settlement it does not approve in writing.
7.2 TCPG Indemnification. TCPG will defend, indemnify and hold harmless Client from and against any and all claims or other actions arising from TCPG’s breach of this Agreement. Client will give TCPG prompt notice of any such claim and TCPG shall have the option to assume the defense of such claim. Client will not be responsible for any settlement it does not approve in writing.
NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, TCPG AND ITS SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT AND TECHNOLOGY SUPPLIERS), OWNERS, OFFICERS, DIRECTORS, AFFILIATES, SUBSIDIARIES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND TCPG’S REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY CLIENT TO TCPG UNDER THIS AGREEMENT, IN EACH CASE, WHETHER OR NOT TCPG HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
The parties will use commercial best efforts to resolve any disputes by working together in good faith. Any dispute, claim, or breach of this Agreement that cannot be resolved with good faith negotiations shall be finally settled by binding arbitration conducted in the English language, in Charlotte, North Carolina, USA, under the commercial arbitration roles of the American Arbitration Association (“AAA”). The prevailing party shall be entitled to an award of reasonable attorney fees incurred in connection with the arbitration in the amount as may be determined by the arbitrator. The award of the arbitrator shall be the sole and exclusive remedy of the parties and shall be enforceable in any court of competent jurisdiction. Notwithstanding anything contained in this section, each party shall have the right to institute judicial proceedings against the other party or any party acting by, through, or under such other party, in order to enforce the instituting party’s rights hereunder through specific performance, injunction, or similar equitable relief.
We reserve the right at any time and from time to time to revise these Terms and Conditions, and therefore we suggest that you check this link from time to time. We may notify you of any changes at the email address associated with your account. If you do not agree to the changes after receiving notice of the changes, you may stop using the Platform and terminate your account. Your continued access or use of the Platform indicates your agreement to be bound by any such changes.
This Agreement is not assignable by Client, except with prior written consent from TCPG. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. Each party will be excused for any failure or delay in its performance resulting from causes beyond its control, including, but not limited to, electric or other power failure, acts of God or of the public enemy, war, riot, civil disorder, embargo, fire, flood or strikes (however, this shall not apply to payment obligations hereunder). This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications, and other understandings relating to the subject matter of this Agreement. All waivers and modifications of this Agreement must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement and All sections of this Agreement which by their nature should survive termination, will survive termination, including, without limitation, accrued rights to payment, ownership, proprietary rights, confidentiality, indemnity, warranty disclaimers and limitation of liability. All notices under this Agreement will be in writing to the Primary Contact listed on the Order Form and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. This Agreement shall be governed by the laws of the State of North Carolina without regard to its conflict of laws provision. This Agreement may be executed in any number of counterparts, all of which taken together shall be deemed an original and shall constitute one and the same document, and a signature delivered electronically or by facsimile or e-mail shall have the same force and effect as an original.