TERMS AND CONDITIONS
1. License
a. Grant. This Agreement is entered into between (Subscriber), and Capsearch, LLC (Capsearch). Subscriber is granted a non-exclusive, non-transferable, limited license to access Capsearch. Capsearch consists of various Capsearch-owned databases, services, functions and remotely-accessed gateways (collectively "Features") which may change from time to time. Access to certain Features may be restricted. Subscriber is licensed to use Data made available on Capsearch ("Data," which includes "Downloaded Data" as defined below) solely in the regular course of business. Except as otherwise provided with respect to certain Data, the license includes the right to download and temporarily store insubstantial portions of Data ("Downloaded Data") to a storage device under Subscriber's exclusive control solely (i) to display internally such Downloaded Data and (ii) to quote and excerpt from such Downloaded Data (appropriately cited and credited) by electronic cutting and pasting or other means in work product created by Subscriber in the regular course of its research and work. Subscriber may also create printouts of Data for internal use and for distribution to third parties if such third parties agree not to further distribute the printouts. Subscriber may via Capsearch functionality, direct Capsearch to transmit individual documents in electronic format to individual internal user(s) or third parties. Direct transmission of electronic copies by Subscriber is prohibited, except as provided in the electronic brief terms of paragraph 2 herein.
b. Limitations. Subscriber may not copy, download, scrape, store, publish, transmit, retransmit, distribute, transfer, disseminate, broadcast, circulate, sell, resell or otherwise use the Data, or any portion of the Data, in any form or by any means, except (i) as expressly permitted by this Agreement, (ii) with Capsearch's prior written permission, or (iii) if not expressly prohibited by this Agreement as allowed under the fair use provision of the Copyright Act (17 U.S.C.A. § 107). Downloaded Data shall not be stored or used in an archival database or other searchable database except as expressly permitted by this Agreement or as quoted in Subscriber's work product. Subscriber shall not sell, license or distribute Data (including printouts and Downloaded Data) to third parties or use Data as a component of or as a basis for any material offered for sale, license or distribution.
c. Rights in Data. Except for the license granted in this Agreement, all rights, title and interest in Data, in all languages, formats and media throughout the world, including all copyrights, are and will continue to be the exclusive property of Capsearch and other contributors ("Contributors").
2. Capsearch Proprietary Data
Subscriber may, via Capsearch functionality, direct Capsearch to transmit Capsearch-proprietary documents (i.e., documents not licensed from third parties or in the public domain) in electronic format to internal user(s) or to a third party who is an individual if such third party agrees not to further disseminate such documents. Subscriber acknowledges its responsibility in assuring compliance with the foregoing by any third party to whom Subscriber transmits Capsearch-proprietary documents pursuant to the preceding sentence. Direct transmission of electronic copies by Subscriber is prohibited, except as provided in the electronic brief terms set forth herein. Capsearch further grants a non-exclusive, non-transferable, limited license to individual Casearch users within Subscriber entities to store and use Capsearch-proprietary Downloaded Data (as defined above) in a searchable database maintained in connection with the regular course of business. Such database must consist preponderantly of user’s work product with access limited to those internal users actively working with the Subscriber in the regular course of business. The Capsearch-proprietary Downloaded Data may be maintained in the searchable database so long as needed in the regular course of business or until any termination of the Subscriber Agreement, whichever occurs first. Retention of Downloaded Data in the Database after what is required to conduct regular business, in an archival database as used as a research tool or in a database accessible to external users is prohibited. Any further distribution is prohibited without written permission of Capsearch.
3. Capsearch.com
Capsearch.com is an Internet-based service that provides access to Capsearch. Capsearch grants Subscriber a non-exclusive, non-transferable, limited license to use Capsearch.com (including all versions and updates). Subscriber may not reverse engineer, decompile, disassemble or otherwise attempt to discern the source code of the components of Capsearch.com nor may Subscriber reproduce all or any portion of the components of Capsearch.com. Subscriber may use Data cached in Subscriber's local disk drive solely in support of its use of Capsearch.com. Certain software used by Subscriber may not be capable of supporting Capsearch.com. The performance of Capsearch.com varies with the manufacturers' equipment with which it is used.
4. Confidentiality
Capsearch acknowledges that, during the term of this Agreement, they may have contact with and access to confidential, proprietary, and/or trade secret information of Subscriber, in either written, electronic or oral form or in some combination thereof, which information may include, without limitation, trade secrets, know how, processes, product specifications, data, customer lists, price lists, market studies, marketing strategies, formulas, flow charts, computer programs, access codes or other systems information, business, product, or marketing plans, sales and other forecasts, financial information, information relating to compensation and benefits, data, results of tests, operating manuals and methods, forms, costs of operation, profit margins, fee collection methods, servicing processes, concepts, notes, analyses, compilations, studies, reports, samples, special training, the identity and particular needs of clients, methods of production, sales, pricing, and costs, business methods and techniques relating to acquisition and servicing of clients generally or as to any particular client, information regarding relationships with actual or potential clients, business operating procedures, business plans, and similar information (“Confidential Information”).
Capsearch also acknowledges that Subscriber contact information including name, address, phone, fax, and e-mail are collected as part of initiating and maintaining the contracted service. Client contact information is never provided to third parties.
Capsearch maintains strict confidentiality of all information obtained from clients and uses such information solely for the purpose of providing the contracted service. Without the prior written consent of a Party or order of a court of competent jurisdiction, Capsearch will not, at any time, either during or after the term of this Agreement, directly or indirectly, divulge or disclose to any person, firm, association, or corporation, or use for Capsearch’s own benefit, gain, or otherwise, any Confidential Information or contact information. In the event a Party is compelled by order of a court of competent jurisdiction to disclose such information, or is in receipt of legal process which might lead to such disclosure, Capsearch agrees immediately to notify the Subscriber and to allow the Subscriber a reasonable opportunity to interpose an objection.
5. Disclaimer of Warranties and Limitation of Liability
Except as specifically provided in this Agreement, any schedule or license agreement, Capsearch, Features, Data and Capsearch.com are provided “as is,” without warranty of any kind, express or implied, including, but not limited to, warranties of performance, merchantability, fitness for a particular purpose, accuracy, omissions, completeness, currentness and delays. Subscriber’s exclusive remedy and Capsearch’s, its affiliates and/or contributors’ entire liability under this agreement, if any, for any claim(s) for damages relating to Capsearch, Features, Data or Capsearch.com which are made against them, individually or jointly, whether based in contract or negligence, shall be limited to the aggregate amount of Capsearch charges paid by Subscriber relative to the specific Feature or Capsearch.com, as applicable, which is the basis of the claim(s) during the 12 month period preceding the event giving rise to such claim.
In no event shall Capsearch, its affiliates and/or contributors be liable to subscriber for any claim(s) relating in any way to (i) Subscriber’s inability or failure to perform research or related work, even if assisted by Capsearch, or any decision made or action taken by Subscriber in reliance upon data; (ii) any lost profits or other consequential, exemplary, incidental, indirect or special damages relating in whole or in part to Subscriber’s rights under this Agreement or use of, or inability to use, Capsearch, Features, Data or Capsearch.com, even if Capsearch has been advised of the possibility of such damages; or (iii) the procuring, compiling, interpreting, editing, writing, reporting, or delivering data, further, Capsearch shall have no liability whatsoever to Subscriber for an claim(s) relating in any way to any third party feature. Capsearch makes no warranty that access to Capsearch will be uninterrupted, secure, complete or error free. Nor does Capsearch make any warranty as to the life of any URL. Subscriber acknowledges that provision of Capsearch entails the likelihood of some human and machine errors, delays, interruptions and losses, including the inadvertent loss of data or damage to media.
6. Responsibility for Certain Matters
SUBSCRIBER IS RESPONSIBLE FOR ALL ACCESS TO AND USE OF CAPSEARCH BY SUBSCRIBER, SUBSCRIBER’S PERSONNEL (INCLUDING USAGE ATTRIBUTED TO CAPSEARCH PASSWORDS ISSUED TO SUBSCRIBER AND/OR OTHER ACCESS TO AND USE OF CAPSEARCH USED UNDER SUBSCRIBER’S SUBSCRIPTION.
SUBSCRIBER SHALL FURNISH TO CAPSEARCH A LIST OF AUTHORIZED USERS GRANTED USE OF CAPSEARCH UNDER THE SUBSCRIPTION AGREEMENT. NO INDIVIDUAL SHALL HAVE ACCESS TO CAPSEARCH UNDER SUBSCRIBER’S USER NAME OR PASSWORD UNLESS THE INDIVIDUAL IS LISTED AS AN AUTHORIZED USER WITHIN THE SUBSCRIPTION AGREEMENT.
THE FOREGOING SHALL BE ENFORCED WHETHER OR NOT SUBSCRIBER HAS KNOWLEDGE AND AUTHORIZES SUCH ACCESS AND USE. SUBSCRIBER IS SOLELY RESPONSIBLE FOR MAINTAINING SECURITY OF CAPSEARCH PASSWORDS.
7. Limitation of Claims
Except for claims relating to improper use of Capsearch, Features or Capsearch.com, no claim, regardless of form, which in any way arises out of this Agreement, may be made, nor such claim brought, under this Agreement more than one year after the basis for the claim becomes known to the party desiring to assert it.
8. Term and Termination
This Agreement will become effective when Subscriber signs the Agreement below and will run for the term stated on Subscriber’s subscription agreement. Notwithstanding the foregoing, (i) Capsearch may terminate this Agreement immediately upon giving written notice of termination to Subscriber if Subscriber commits a material breach of any obligation to Capsearch under any other agreement between the parties. (ii) Subscriber may terminate this Agreement immediately upon giving written notice of termination to Capsearch after receiving notice of an amendment which contains new terms that materially alter the terms of this Agreement and are unacceptable to Subscriber; and (iii) either party may terminate this Agreement immediately upon giving written notice of termination to the other party if the other party commits a material breach of this Agreement.
If either party terminates the agreement under applicable terms as discussed in this section, Subscriber will be entitled to a refund of payment received by Capsearch for the unfulfilled term of the original subscription agreement.
9. Effect of Agreement
This Agreement embodies the entire understanding between the parties with respect to the subject matter of this Agreement and supersedes any and all prior understandings and agreements, oral or written, relating to the subject matter. Except as otherwise provided in this Agreement, Capsearch may amend the terms and conditions of this Agreement by giving Subscriber at least 30 days prior written or online notice.
10. Force Majeure
Capsearch's performance under this Agreement is subject to interruption and delay due to causes beyond its reasonable control, such as acts of God, acts of any government, war or other hostility, civil disorder, the elements, fire, explosion, power failure, equipment failure, industrial or labor dispute, inability to obtain necessary supplies and the like.
11. Notices
Except as otherwise provided herein, all notices must be in writing to Capsearch at 323 Center Street, Little Rock, Arkansas, 72201, and to Subscriber at the address provided by Subscriber on the invoice.
12. General Provisions
This Agreement will be governed by and construed under the law of the state of Arkansas , U.S.A. without regard to conflicts of law provisions. The parties agree that the state and federal courts sitting in Arkansas will have exclusive jurisdiction over any claim arising out of this Agreement and each party consents to the exclusive jurisdiction of such courts. Neither this Agreement nor any part or portion may be assigned, sublicensed or otherwise transferred by Subscriber without Capsearch's prior written consent. Should any provision of this Agreement be held to be void, invalid, unenforceable or illegal by a court, the validity and enforceability of the other provisions will not be affected thereby. Failure of any party to enforce any provision of this Agreement will not constitute or be construed as a waiver of such provision or of the right to enforce such provision. The headings and captions contained in this Agreement are inserted for convenience only and do not constitute a part of this Agreement.
13. Ideas and Concepts
Any and all title, ownership rights, and intellectual property rights concerning any ideas, concepts, suggestions, materials and the like that Subscriber provides to Capsearch regarding Capsearch, Capsearch.com or Capsearch Software shall become the exclusive property of Capsearch and may be used for its business purposes in its sole discretion without any payment, accounting, remuneration or attribution to Subscriber.