Subscriber’s Terms of Use Agreement

Liquid and Grit

This Subscriber’s Terms of Use Agreement (the “Agreement”) provides the terms and conditions upon which you as well as any and all users that access our Service through your account (collectively referred to as “you”, or “Subscriber” herein) agree to grant to Liquid and Grit LLC, a California limited liability company (hereinafter referred to as “we”, “our”, “us” or “L&G”), certain rights with respect to your account as a Subscriber of our content on our website (including any subdomains) located at www.liquidandgrit.com (the “Website”).  This Agreement incorporates by reference herein L&G’s Terms of Use and Privacy Policy located at www.liquidandgrit.com.

By clicking the “I Agree” button, you agree to the terms of this Agreement governing your use, or the use by the party you represent, of L&G’s Service.

You further represent that you are an Administrator entering into this Agreement on behalf of a corporation or other legal entity, and that you have the authority to bind such entity to this Agreement and the terms “you”, “your” or “Subscriber” refers to both you and such entity.  If you do not have such authority, or if you do not agree with anything in this Agreement, do not click “I Agree,” and you may not use the Service. You may access L&G’s Terms of Use and Privacy Policy on the Website.

We advise that you print and retain a copy of this Agreement before you click on the “I Agree” button.

TERMS OF USE

1. Definitions

“Administrator” means any employee, administrator, or other representative who enters into this Agreement on behalf of a corporation or other legal entity.

“L&G IP” means all of L&G’s intellectual property and proprietary technology including, without limitation, any reports, materials, information, data, graphics, pictures, software, hardware, work product, processes, algorithms, Subscriber interfaces, know-how, techniques, designs and other tangible or intangible technical material or information, made available to you by L&G in providing the Service.

“Effective Date” means the earlier of either the date this Agreement is accepted by your selecting the “I Agree” option presented on the screen after this Agreement is displayed, or the date you begin using the Service.

“Intellectual Property Rights” means inventions, patent applications, patents, design rights, copyrights, trademarks, service marks, trade names, domain name rights, know-how and other trade secrets, and all other intellectual property rights, derivatives thereof, and forms of protection of a similar nature anywhere in the world.

“Pricing Proposal” means the pricing proposal delivered to you by L&G prior to your entering into this Agreement.

“Service” means L&G’s regular business intelligence reports, including access to L&G’s archived research reports and analysis, any other specific services identified in the Pricing Proposal and any other services identified during the ordering process, that are developed, operated, and maintained by L&G, accessible via the Website or another designated website or IP address, or any other services rendered to you by L&G under this Agreement.

“Subscribers” means you, your employees, representatives, consultants, contractors, agents and others who are authorized to use the Service and who have been supplied Subscriber identifications and passwords by you (or by L&G at your request).

2. License Grant

Subject to the terms and conditions of this Agreement, L&G hereby grants to you a non-exclusive, non-transferable, worldwide right to use the Service, solely for your own internal business purposes and within your organization, subject to the terms and conditions of this Agreement. L&G hereby grants you the right to use the Service for the applicable periods for which subscription fees have been paid.  Our providing you with the Service does not give you any license to our intellectual property.

All rights not expressly granted to you herein are reserved by L&G and its licensors.

3. Restrictions

You may not share, distribute, publicly display, publish, or reproduce any deliverables or materials (or any portion thereof) tendered to you in connection with the Service to anyone outside of your organization, unless you obtain express written consent in advance from L&G. L&G hereby grants you the right to use the Service for the applicable periods for which subscription fees have been paid; provided, however, you may access a sample report at www.liquidandgrit.com that has been approved for our Subscribers to share and distribute for non-commercial purposes.

You agree that you will not (i) sublicense, sell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Service or any materials received in connection with the Services in any way; (ii) modify or prepare derivative works of the Service contrary to any applicable international or US intellectual property laws or Intellectual Property Rights of L&G; (iii) reverse engineer or otherwise access the Service in order to (a) build a competitive product or service, (b) build a product using similar ideas, features, functions or graphics of the Service, or (c) copy any ideas, features, functions or graphics embodied in the Service in any way contrary to any applicable international or US intellectual property laws or Intellectual Property Rights of L&G.

4. Your Responsibilities

You are responsible for all activity occurring under your Subscriber accounts. You agree to (i) notify L&G immediately of any unauthorized use of any password or account or any other known or suspected breach of security; (ii) report to L&G immediately and use reasonable efforts to stop immediately any copying or distribution of the Service that is known or suspected by you or your Subscribers; (iii) not impersonate another Subscriber or provide false identity information to gain access to or use of the Service; and (iv) comply with applicable laws and regulations with respect to your use of the Service.

By clicking “agree” you represent you are the authorized person to contact L&G on your or your entity’s behalf regarding the Service (the “Authorized Contact”). You may change the Authorized Contact name at any time by notifying L&G via email at [email protected]

5. Ownership of Subscriber Data

L&G agrees that it does not own any Subscriber data, information or material submitted to the Service in the course of using the Service or the Website (collectively, “Subscriber Data”). You, not L&G, will have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Subscriber Data. L&G will make commercially reasonable efforts to backup and secure Subscriber Data. You agree that L&G will not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any Subscriber Data.

6. Confidential Information

a) Nondisclosure and Nonuse. You acknowledge that you may have access to confidential information including, but not be limited to, information or materials about L&G’s business, customers, employees, publishers, consultants, tools, drawings, design, data source, plans, products, technology, “know-how”, marketing and financial plans, information about the Service, any related documentation, tangible and intangible information and proprietary business information of L&G which is expressly labeled or identified to you in writing as “confidential,” “proprietary” or similar, or which, under the circumstances of such disclosure, you know, or reasonably should know, is treated by L&G as confidential (“Confidential Information”). You agree not to disclose or use in any way, except as expressly permitted, L&G’s Confidential Information for a period of three (3) years after the termination of this Agreement; provided, however, that L&G shall be entitled to disclose this Agreement to its actual and prospective investors, lenders or acquirers. You agree that you will take reasonable precautions to protect the L&G’s Confidential Information with the same degree of care you use to protect your own confidential information of a similar nature and in no event less than a reasonable duty of care.  Notwithstanding the foregoing, if you are required by law or order of a governmental agency to disclose any of L&G’s Confidential Information, you may do so, provided that you use all reasonable efforts to cooperate and provide L&G with prior notice of such disclosure so that L&G may seek a protective order therefor.

b) Exceptions. Confidential Information will not include any information that (i) is already known to you at the time that it is disclosed to you (ii) becomes publicly known through no wrongful act by you, (iii) is rightfully received by you from a third party without restriction on disclosure and without breach of any agreement of confidentiality, (iv) is independently developed by you, (v) is approved for release by written authorization of L&G, or (vi) is furnished by L&G to a third party without a similar restriction on disclosure.

c) Remedy. In the event of a breach of this Section 6, you agree that L&G will suffer irreparable harm and injury for which money damages will be an inadequate remedy. Therefore, upon a breach of this Section 6, L&G will be entitled to obtain, in addition to other available remedies at law or equity, injunctive relief.

7. Ownership of Intellectual Property Rights

L&G alone (and its licensors, where applicable) will own all right, title and interest, including all related Intellectual Property Rights, in and to the L&G IP and the Service.

All contents of the Website and the Service including but not limited to design, text, software, technical drawings, configurations, graphics, other files, and their selection and arrangement are: Copyright © Liquid and Grit, and/or the proprietary property of its suppliers, affiliates, or licensors. All Rights Reserved.

L&G and the L&G logo are including without limitation, either trademarks, service marks or registered trademarks of Liquid and Grit LLC, and may not be copied, imitated, or used, in whole or in part, without L&G’s prior written permission. Other product and company names may be trade or service marks of their respective owners.

8. Fees and Payment

(a)  Payment.  You agree that you will pay all fees or charges in accordance with L&G’s fees, charges, and billing terms in effect at the time a fee or charge is due and payable. You are responsible for paying for all the Service for the entire period subscribed, whether or not the Service is actively used.

(b)  Billing.  You may arrange the appropriate payment methods with your account manager at L&G. Unless otherwise agreed in advance in writing, each invoice is due upon receipt.  L&G’s fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and you will be responsible for payment of all such taxes, levies, or duties, excluding only United States (federal or state) taxes based solely on L&G’s income.

(c) Change of Information.  You agree to provide L&G with complete and accurate billing and contact information, including your organization’s legal name, street address, e-mail address, and telephone number.  You agree to update this information within thirty (30) days after any change. If the contact information provided is false or fraudulent, L&G reserves the right to terminate your access to the Service immediately in addition to any other legal remedies that may be available to L&G.

(d) Adjustment.  If you believe your invoice is incorrect, you must contact L&G in writing within sixty (60) days after the date of the invoice containing the amount in question to be eligible to receive an adjustment or credit.

(e) Non-Payment and Suspension.  In addition to any other rights granted to L&G herein, L&G reserves the right to suspend or terminate this Agreement and your access to the Service if your account becomes delinquent. Delinquent invoices are subject to interest of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is less, plus all expenses of collection. You will continue to be charged for subscription fees during any period of suspension. If you or L&G initiates termination of this Agreement, you will be obligated to pay the computed balance due on your account as prescribed above. You agree that L&G may invoice you for such unpaid fees.  L&G reserves the right to impose a reconnection fee if your account is suspended and you thereafter request access to the Service.

9. Representations and Warranties

Each party represents and warrants that it has the legal power and authority to enter into this Agreement. You represent and warrant that you have not falsely identified yourself nor provided any false information to gain access to the Service, and that all billing information you provided is correct.

10. Indemnification; Infringement

You agree to indemnify and hold L&G, its licensors and each such party’s parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys and agents (collective, “Indemnitees”) harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys’ fees and costs) arising out of or in connection with any claim (i) by any third party that use of the Subscriber Data infringes the rights of, or has caused harm to, a third party, or (ii) based on any breach of your representations and warranties made herein or any breach by you or your Subscribers of this Agreement.  L&G will have no indemnification obligation, and you will indemnify L&G pursuant to this Agreement, for claims arising from any infringement arising from the combination of the Service with any of your products, service, hardware or business processes.

Your  obligation to indemnify the Indemnities is conditioned on the party seeking indemnification (i) providing you with written notice of the claim (ii) giving you sole control of the defense and settlement of the claim (provided that you may not settle or defend any claim unless it unconditionally releases the party seeking indemnification of all liability), (iii) providing you with material available information and reasonable assistance, and (iv) not having compromised or settled such claim.

If L&G determines that the Service is likely to infringe any patent, trademark or copyright or misappropriate the trade secret of a third party, L&G may at its option:  (i) procure at no cost to you the right to continue to use the Service and Software in accordance with this Agreement; or (ii) replace or modify the Service or the Software so that it no longer infringes or misappropriates, and thereafter substantially conforms to the requirements hereof; This Section 10 states L&G’s entire liability to you for any infringement of any third party rights.

11. Disclaimer of Warranties

L&G AND ITS LICENSORS MAKE NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE SERVICE OR ANY INFORMATION PROVIDED IN CONNECTION WITH THE SERVICE. L&G AND ITS LICENSORS DO NOT REPRESENT OR WARRANT THAT (A) THE USE OF THE SERVICE WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE. (B) THE SERVICE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (C) ANY STORED SUBSCRIBER DATA WILL BE ACCURATE OR RELIABLE, (D) THE QUALITY OF THE SERVICE OR ANY INFORMATION PROVIDED BY L&G WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, OR (E) THE SERVICE, SOFTWARE OR THE SERVER(S) THAT MAKE THE SERVICE AVAILABLE ARE OR WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE SERVICE ARE PROVIDED TO YOU STRICTLY ON AN “AS IS” BASIS. ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY L&G AND ITS LICENSORS.

12. Term and Termination

a) The term of this Agreement will be indicated on your invoice (“Term”). Such Term will automatically renew for another successive period of the same length, unless either party gives notice to the other at least thirty (30) days prior to the termination date of the Term. You are responsible for paying for the Service for the entire term (whether initial or any renewal), whether or not the Service is actively used.

b) Any breach of your payment obligations, unauthorized use of the L&G IP or Service, or your breach or failure to comply with the terms and conditions hereof, will be deemed a material breach of this Agreement. L&G, in its sole discretion, may immediately terminate your password, account or use of the Service if you materially breach this Agreement. All unpaid fees and charges will become immediately due and payable upon any termination.

c) Return of Information: Upon written request from you within twenty (20) days following the expiration or termination of this Agreement for any reason, L&G will return Subscriber Data to you in a mutually agreeable format. You agree and acknowledge that L&G has no obligation to retain Subscriber Data beyond 90 days following the date of expiration or termination of this Agreement.

13. Limitation of Liability

IN NO EVENT WILL L&G’S AGGREGATE LIABILITY UNDER THIS AGREEMENT EXCEED THE AMOUNTS ACTUALLY PAID BY YOU IN THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. IN NO EVENT WILL L&G OR ITS LICENSORS BE LIABLE TO ANYONE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THE SERVICE OR THE WEBSITE, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE SERVICE, ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION, REGARDLESS OF CAUSE, EVEN IF L&G OR L&G’S  LICENSORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

14. Additional Rights

Certain states and/or jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental, consequential or certain other types of damages, so the exclusions set forth above may not apply to you.

15. Notice

Notices hereunder will be effective when received and will be sufficient if given in writing, hand-delivered, sent by telefax or email with confirmation of receipt, sent by U.S. mail, return receipt requested, or sent by overnight courier service and addressed to the receiving party’s addresses provided by the party.

16. Assignment

Neither party may assign or transfer this Agreement (whether by operation of law or otherwise) without the prior written approval of the other party.  In the event that the Subscriber undergoes any ‘change of control’ resulting from a merger, consolidation, stock transfer or asset sale, Subscriber must promptly provide notice to L&G. Any such ‘change of control’ provides L&G sole discretion to terminate this Agreement unless otherwise mutually agreed by the parties in advance writing. Notwithstanding the foregoing, L&G may assign this Agreement without your consent to a parent or subsidiary of L&G, or in connection with any merger or acquisition to which L&G is a party, provided that such assignee agrees in writing to the terms and conditions of this Agreement. Any attempted assignment in violation of this Section 16 will be void.

17. Modifications

L&G reserves the right to modify its privacy and security statements, in its reasonable discretion from time to time, effective upon posting of an updated version of such statements on the Service or on its Website at www.liquidandgrit.com.

18. Force Majeure

L&G is not responsible for delays or failure to perform any of its obligations hereunder due to causes beyond its reasonable control including, but not limited to, war, riots, natural disasters, terrorism, power or telecommunications failures or unauthorized network intrusions. The affected party will promptly inform the other party of any force majeure event, and either party may require a renegotiation of the schedules set forth in the Pricing Proposal. However, if a force majeure event continues for more than 60 days, either party may terminate the Agreement.

19. General

(a) This Agreement will be governed by California law and applicable United States federal law, without regard to any choice or conflicts of law provisions.  Any disputes, actions, claims or causes of action arising out of or in connection with this Agreement or the Service will be subject to the exclusive jurisdiction of the state and federal courts located in the Northern District of California.

(b) No provisions of any purchase order, preprinted form or document will add to or vary the terms and conditions of this Agreement. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, the remaining provisions will remain in full force and effect and the parties will negotiate in good faith a substitute valid and enforceable provision which most nearly gives effect to the parties’ intent in entering into this Agreement.

(c) No joint venture, partnership, employment, or agency relationship exists between you and L&G as a result of this Agreement or your use of the Service. Neither party will have the authority to enter into any contracts in the name of or on behalf of the other party or otherwise bind such other party.

(d) The failure of either party to enforce any right or provision in this Agreement will not constitute a waiver of such right or provision unless acknowledged and agreed to by such party in writing. In any action to enforce this Agreement, the prevailing party will be entitled to its attorneys’ fees in addition to any other recovery awarded.

(e) The provisions of Sections 6, 7, 10, 11, and 13, will survive the termination of this Agreement and continue thereafter in full force and effect in accordance with their respective terms as will any accrued payment or tax obligation of either party or any cause of action or claim of either party, whether in law or in equity, accrued or to accrue because of any breach or default.

20. Entire Agreement

This Agreement, executed by the parties, contains the entire agreement of the parties with respect to the subject matter hereof, and supersedes all prior agreements between the parties with respect to such subject matter, and any warranty, representation, promise or condition not incorporated herein will not be binding upon either party.  You acknowledge that should you use a standard form purchase order or any other ordering document in any way in connection with this Agreement executed by both parties, any terms of such purchase order or other ordering document that differ from the terms of this Agreement will be deemed rejected, ineffective, and will not modify or supplement this Agreement in any way.

21. Questions or Additional Information

If you have questions regarding this Agreement or wish to obtain additional information regarding the Service or the Website, please send an e-mail message to [email protected]