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Terms of Service
Data Lowdown License Terms and Conditions
BY CREATING AN ACCOUNT ON THE Cradles PLATFORM (www.cradles.ai/subscribe), PURCHASING AN ITEM FROM THE Cradles STORE (www.cradles.ai/shop), OR AGREEING TO A DOCUMENT INCORPORATING THESE DATA LOWDOWN, INC. LICENSE TERMS AND CONDITIONS (“THE TERMS”) (AN “ORDERING DOCUMENT”) DATA LOWDOWN AND LICENSEE AGREE THAT THESE TERMS SHALL GOVERN THE RELATIONSHIP BETWEEN THE PARTIES AS TO ANY DATA LOWDOWN PRODUCTS OR SERVICES PROVIDED OR TO BE PROVIDED TO LICENSEE AS SET FORTH IN SUCH ORDERING DOCUMENT. AS TO ANY PARTICULAR ORDERING DOCUMENT, THE ORDERING DOCUMENT, THE SERVICES DEFINITIONS AND SERVICE-SPECIFIC TERMS AND CONDITIONS, AND THESE TERMS TOGETHER CONSTITUTE THE AGREEMENT OF THE PARTIES AND ARE REFERRED TO COLLECTIVELY HEREIN AS THE “AGREEMENT.” IN THE EVENT OF ANY CONFLICT BETWEEN THE ORDERING DOCUMENT AND THESE TERMS, THESE TERMS SHALL PREVAIL UNLESS THE ORDERING DOCUMENT EXPRESSLY PROVIDES THAT IT IS MODIFYING THESE TERMS WITH RESPECT TO SUCH AGREEMENT.
Licensee and Data Lowdown agree as follows
:"Cradles" means the Cradles Platform accessible from www.cradles.ai“Data Lowdown” means Data Lowdown, Inc. or one of its affiliates, as set forth in the Ordering Document.
“Licensee” or "User" means the party to whom Data Lowdown is to provide products or services pursuant to the Ordering Document (whether identified as “licensee”, “customer”, "user", “client” or similar designation in the Ordering Document). If “Licensee” includes more than one legal person, the obligations imposed upon each shall be joint and several. The act of, notice from or to, or signature of any one or more of the persons included within “Licensee” shall be binding on all such persons with respect to all rights and obligations under this Agreement, including but not limited to any renewal, extension, termination or modification of this Agreement.
"Ordering Document" means the purchase agreement, evaluation agreement, beta, pre-release agreement, receipt for a transaction on the Lowdown website (www.datalowdown.com), or similar agreement between the Licensee and Data Lowdown.
YOUR ACCOUNT
If you create an account on the Cradles Platform, you are responsible for maintaining the security of your account, and you are fully responsible for all activities that occur under the account and any other actions taken in connection with the account. You must immediately notify Cradles of any unauthorized use of your account or any other breaches of security. Data Lowdown will not be liable for any acts or omissions by Licensee, including any damages of any kind incurred as a result of such acts or omissions.
By creating a Cradles account, You warrant that you are a human. Accounts registered by "bots" or other automated methods are not permitted. You must provide your legal full name, a valid email address, and any other information requested in order to complete the signup process. You may not use your account, the Cradles Platform, or any Licensed Materials accessed under your account for any illegal or unauthorized purpose. You must not, in the use of the Cradles Platform or Licensed Materials, violate any laws in your jurisdiction or the laws of any jurisdiction under which the use of the Cradles Platform or Licensed Materials may be governed.
1. SUBSCRIBED SERVICES, GRANT OF LICENSE
1.1 Data Lowdown, directly or through an affiliate, agrees to provide to Licensee the products and/or services set forth in the Ordering Document (the “Services”). The Services may include information (the “Licensed Materials”), access to and/or use of software or other technology (the “Cradles Platform”), or other services including premium support. Specific Services may be defined by and are subject to the Services Definitions and Service-Specific Terms and Conditions included with the Ordering Document. Data Lowdown will make the Services available to the Licensee via password-protected online access accessible by Licensee with usernames and passwords or as otherwise mutually agreed by the parties. Subject to the terms and conditions herein, Data Lowdown grants to Licensee a non-exclusive, non-transferrable license to access and use the Services in accordance with this Agreement and during the Term of this Agreement.
1.2 The Services will be provided as they exist and are updated and amended throughout the Term. Information provided as part of any Licensed Materials may be updated on an ongoing basis and provided according to the criteria used to define the scope of the subscribed Services. Licensee understands and acknowledges that the contents of Licensed Materials will change over time as the data is updated, and that at any given time it has a right to access and use the data to which it is subscribed as it exists at that time. Features and functions of the Cradles Platform are provided “as is” and as they may be modified, supplemented, or removed from time to time in Data Lowdown' sole discretion. Data Lowdown shall have no liability to Licensee for any modification to any Service, provided that the product or service provided substantially conforms to the description in the Ordering Document.
1.3 Ownership. Licensee acknowledges and agrees that, as between Licensee and Data Lowdown, the Licensed Materials, the Cradles Platform, and any related documentation (including, without limitation, the content, layout, functions, design, appearance, trademarks, service marks, copyrights, patents, and other intellectual property comprising the Licensed Materials or Cradles Platform) are the property of Data Lowdown, whether or not they are trademarked, copyrighted, or patented. Licensee acknowledges and agrees that this Agreement does not transfer any ownership, right, title, or interest in the Licensed Materials or Cradles Platform, nor any part thereof, except the limited license provided hereunder, and Licensee expressly disclaims and waives any and all claims to any ownership interest in any such information or materials. This includes, without limitation, any Licensed Materials that Licensee downloads, prints, saves, or incorporates into other materials. Licensee further acknowledges and agrees that the Licensed Materials, in whole or in part, are unique, special, and valuable. Subject to the limited rights expressly granted hereunder, Data Lowdown, its affiliates and/or its licensors reserve all right, title, and interest in and to the Licensed Materials and Cradles Platform, including all related intellectual property rights. No rights are granted to Licensee hereunder other than as expressly set forth herein.
1.4 Support. Data Lowdown will provide reasonable assistance and ongoing support to assist Licensee and Authorized Users in accessing the Licensed Materials. Data Lowdown will make its personnel available by email for feedback, problem solving, or general questions between the hours of 8:00 a.m. and 6:00 p.m. Eastern Time (Monday – Friday) and will make reasonable efforts to acknowledge support requests within 24 business hours. Premium support services are subject to any service-specific terms and conditions included with the Ordering Document.
2. AUTHORIZED USE OF LICENSED MATERIALS AND Cradles PLATFORM, RESTRICTIONS
2.1 Authorized Users. One Authorized User is permitted per subscription/account created on the Cradles Platform. For enterprise solutions, Licensee shall be entitled to designate persons as Authorized Users up to the number of Authorized Users subscribed as stated in the Ordering Document. If Licensee designates additional persons as Authorized Users beyond the number subscribed, such designation may be deemed by Data Lowdown, to be confirmed by notice to Licensee, as Licensee’s subscription to such additional number of Authorized Users. In the event of such subscription, Data Lowdown may charge Licensee a corresponding additional Subscription Fee equal to the prevailing per-Authorized User rate. Each Authorized User will be provided a unique username and password. Such usernames and passwords may not be shared and may not under any circumstances be used by anyone who is not an Authorized User. If any Authorized User’s login credentials are disclosed to any person who is not an Authorized User but who would satisfy the qualification requirements of Section 2.2 hereof, Data Lowdown may, upon notice to Licensee, deem such sharing to be Licensee’s subscription to the number of additional Authorized Users equal to the number of persons to whom such credentials were disclosed. Licensee shall be responsible for compliance with the terms of this Agreement by all Authorized Users, including, without limitation, the restrictions on use and transfer of Licensed Materials set forth herein. Licensee acknowledges and agrees that Authorized Users must provide Data Lowdown with certain identifying information, including their name and a business email address, and that Authorized Users may be required to accept an end-user license agreement agreeing to Data Lowdown' privacy policy and representing that they are authorized to access the Services on Licensee’s behalf.
2.2 Qualification of Authorized Users. For enterprise solutions, Licensee shall not designate any person as an Authorized User unless such person is: (1) a natural person and (2) an employee of Licensee. Licensee may designate a non-employee (i.e., an independent contractor) as an Authorized User only with Data Lowdown' prior permission and provided Licensee takes reasonable steps to ensure such non-employee uses the Services only as permitted under this Agreement. If the employment of any Authorized User that was in effect as of the date such person was designated as an Authorized User terminates, such person’s authorization to access the Services shall be revoked automatically without any further action by Data Lowdown. In the event of a termination as described in the previous sentence, Licensee shall promptly notify Data Lowdown and take all reasonable steps to ensure that such person ceases accessing the Services. Licensee may reassign Authorized User designations at any time subject to the foregoing qualification requirements. Authorized User licenses that are not provisioned for more than 90 days may be deemed expired.
2.3 Authorized Uses, Restrictions. Licensee shall not access or use the Services for any purpose except the business-to-business sales, marketing, recruiting, strategy, market research, or business development activities of Licensee. Licensee shall not access or use the Licensed Materials for the benefit of or on behalf of any person or entity except Licensee. Subject to Licensee’s compliance with all applicable laws, rules, and regulations, Licensee may use the Services to: (i) view the Licensed Materials; (ii) communicate with any Licensed Materials Contact in a manner that relates to such person’s profession, business, or employment; and (iii) identify prospective sales opportunities, research Licensee’s existing customers and prospects, and otherwise analyze the Licensed Materials in a manner relating to Licensee’s business-to-business sales, marketing, recruiting, and business development activities. Licensee shall not permit anyone who is not an Authorized User to access or use the Services, including any Licensed Materials or any Authorized User login credentials. Licensee shall not distribute, sublicense, transfer, sell, offer for sale, disclose, or make available any of the Licensed Materials or any part of the Services to any third party. Licensee shall not incorporate any portion of the Services or Licensed Materials into Licensee’s own products or services. Upon expiration or termination of this Agreement for any reason, Licensee shall cease accessing the Services and shall cease using the Licensed Materials in any way. Notwithstanding the foregoing, where Licensee has, through using the Licensed Materials in a manner permissible under this Agreement, received responsive communication from a Licensed Materials Contact, Licensee shall not be required to delete such Licensed Materials Contact record upon expiration or termination hereof, and may continue to use such information in a manner otherwise consistent with this Agreement. Licensee is solely responsible for any communications between Licensee or any Authorized User and any Licensed Materials Contact.
2.4 Permitted Use of Cradles Platform, Restrictions. Licensee is permitted to use the Cradles Platform solely for the purpose of accessing and using the Licensed Materials as permitted by this Agreement. Licensee will not (i) reverse assemble, reverse engineer, decompile, or otherwise attempt to derive source code from any of the Cradles Platform; (ii) reproduce, modify, create, or prepare derivative works of any of the Cradles Platform or related documentation; (iii) distribute or display any of the Cradles Platform or related documentation other than to Authorized Users; (iv) share, sell, rent, or lease or otherwise distribute access to the Cradles Platform, or use the Cradles Platform to operate any timesharing, service bureau, or similar business; (v) create any security interest in the Cradles Platform; (vi) alter, destroy, or otherwise remove any proprietary notices or labels on or embedded within or on the Cradles Platform or related documentation; (vii) disclose the results of any Cradles Platform or program benchmark tests to any third parties without Data Lowdown' prior written consent; or (viii) use automated means, such as bots or crawlers, to access any Cradles Platform or extract information therefrom (except such means as are expressly approved in advance in writing by Data Lowdown). Licensee may use Cradles Platform only in accordance with this Agreement and not for the benefit of any third party, except with Data Lowdown' express prior written permission.
2.5 Limitations on Use of the Services. Licensee shall use the Services in a responsible and professional manner consistent with the intended and permissible uses herein and consistent with standard industry practice. Licensee shall not override or circumvent, or attempt to override or circumvent, any security feature, control, or use limits of the Cradles Platform. Licensee will not use the Licensed Materials or Cradles Platform for commercial purposes not permitted under this Agreement and shall not designate any person as an Authorized User if Licensee has reason to believe such person is likely to use the Services on behalf of a third party or otherwise in violation of this Agreement. Data Lowdown may use technological means to place reasonable use limits to prohibit excessive use, including excessive downloads or screen views that indicate a violation of this Agreement, such as sharing with third parties or attempting to circumvent limitations to purchased credits (if applicable). If Licensee’s access to the Services is limited under this paragraph, it may request that the limit be removed, and Data Lowdown may remove or modify a particular limitation if it determines in its sole and absolute discretion that the proposed use by Licensee is in good faith and otherwise consistent with this Agreement.
2.6 Unauthorized Access and Use. In the event Data Lowdown has a reasonable belief that Licensee or any Authorized User is engaged in any unauthorized access or use of the Licensed Materials or Cradles Platform in violation of this Agreement, Data Lowdown, in its sole discretion, may immediately suspend Licensee’s access to the Licensed Materials and/or Cradles Platform until such violation is resolved to Data Lowdown' reasonable satisfaction. Data Lowdown will have no liability to Licensee for such period of suspension and a suspension shall have no effect on the Term of this Agreement nor on Licensee’s obligation to pay the Subscription Fee.
3. TERM AND TERMINATION
3.1 Term. The Initial Term of the Agreement is that which is set forth in the Ordering Document (together with any period of extension under Section 3.2 hereof, the “Term”). The Agreement is not cancellable and shall remain in effect until it expires or is earlier terminated according to its terms.
3.2 Automatic Extension of the Term. On the last day of the Term (the “Extension Date”), the Term will automatically extend for a period equal to the length of the Initial Term, unless either party, before the Extension Date, notifies the other in writing that the Term shall not so extend. In the event that the Term is extended under this paragraph: (1) Licensee shall remain subscribed during such period of extension to the Services to which it was subscribed as of the Extension Date, and (2) the Subscription Fees to be paid to Data Lowdown for such Services during such period of extension shall be equal to the annualized amount of the Subscription Fee applicable to all Services to which Licensee was subscribed as of the Extension Date multiplied by the length of the term in years. Subscription Fees for the period of extension hereunder shall be due upon extension of the Term, and shall be payable as invoiced. Data Lowdown will invoice Subscription Fees for any period of extension in a manner substantially consistent with the payment schedule that applied to the Agreement as of the Extension Date.
3.3 Termination. Either party may terminate this Agreement immediately, without further obligation to the other party, in the event of a material breach of this Agreement by the other party that is not remedied within twenty-one (21) days after the breaching party’s receipt of written notice of such breach. The parties may terminate this Agreement at any time upon their mutual Agreement.
3.4 Effect of Termination.
3.4.1 Expiration or Termination for any Reason. Upon expiration or termination of this Agreement for any reason, Licensee acknowledges and agrees that its access to the Licensed Materials may be automatically terminated, all passwords and individual accounts removed, and all information that has been uploaded into Data Lowdown' systems by Licensee destroyed. Upon expiration or termination of this Agreement for any reason, unless otherwise provided herein, Licensee agrees to destroy any and all copies of Licensed Materials and any information it has obtained from the Licensed Materials, whether in hard copy or electronic form.
4. FEES AND TAXES
4.1 Licensee shall pay all fees stated in the Ordering Document and any other fees applicable to its subscription to Services as provided hereunder (the “Subscription Fee”). All Subscription Fees are due upon execution of the Ordering Document, or notice of a deemed subscription as provided herein, and payable on the terms set forth therein. If no payment schedule is specified for any Subscription Fees, the entire amount shall be payable within 30 days of Data Lowdown' transmission to Licensee of an appropriate invoice. All amounts payable by Licensee under this Agreement will be paid to Data Lowdown without setoff or counterclaim, and without any deduction or withholding. Data Lowdown' acceptance of partial payment or any payment of less than the full amount payable at any given time shall not constitute a waiver or release of Data Lowdown' right to unpaid amounts. If you are paying by credit card, you authorize Data Lowdown to charge your credit card or bank account for all fees payable at the beginning of the Subscription Term and all subsequent Billing Periods, including upgrades. You further authorize Data Lowdown to use a third party (Stripe, WixPay) to process payments, and consent to the disclosure of your payment information to such third party. All payment obligations are non-cancelable and all amounts paid are non-refundable.
4.2 If Licensee fails to timely make any payment of Subscription Fees, Data Lowdown may, in its sole discretion, take any or all of the following actions: (i) restrict or suspend Licensee’s access to the Licensed Materials until all past-due payments are made, (ii) terminate this Agreement, or (iii) accelerate the payment of Subscription Fees such that all unpaid Subscription Fees shall be immediately payable. Data Lowdown shall have the right to charge interest at the rate of 1.5% per month (or, if less, the highest rate permitted by law) on any late payments. Restriction or suspension of Licensee’s online access to the Licensed Materials during period of non-payment shall have no effect on the Term of this Agreement nor on Licensee’s obligation to pay the Subscription Fee.
4.3 Licensee is responsible for any applicable taxes, including, without limitation, any sales, use, levies, duties, or any value added or similar taxes payable with respect to Licensee’s subscription and assessable by any local, state, provincial, federal, or foreign jurisdiction. Unless expressly specified otherwise in the Ordering Document, all fees, rates, and estimates include sales taxes. If Data Lowdown believes any such tax applies to Licensee’s subscription and Data Lowdown has a duty to collect and remit such tax, the same may be set forth on an invoice to Licensee unless Licensee provides Data Lowdown with a valid tax exemption certificate, direct pay permit, or multi-state use certificate, and shall be paid by Licensee immediately or as provided in such invoice. Licensee shall indemnify, defend, and hold harmless Data Lowdown and its officers, directors, employees, shareholders, agents, partners, successors, and permitted assigns against any and all actual or threatened claims, actions, or proceedings of any taxing authority arising from or related to the failure to pay taxes owed by Licensee, except to the extent that any such claims, action, or proceeding is directly caused by a failure of Data Lowdown to remit amounts collected for such purpose from Licensee. Data Lowdown is solely responsible for taxes based upon Data Lowdown' net income, assets, payroll, property, and employees.
5. DATA PROTECTION AND CONFIDENTIALITY
5.1 Licensee acknowledges and agrees that Data Lowdown will operate in accordance with its published Privacy Policy (available at www.datalowdown.com/privacy/ or as Data Lowdown may otherwise indicate), which is incorporated herein by reference.
5.2 “Confidential Information” of a party means such party’s (or its affiliate’s): inventions, discoveries, improvements, and copyrightable material not yet patented, published, or copyrighted; special processes and methods, whether for production purposes or otherwise, and special apparatus and equipment not generally available or known to the public; current engineering research, development, design projects, research and development data, technical specifications, plans, drawings and sketches; business information such as product costs, vendor and customer lists, lists of approved components and sources, price lists, production schedules, business plans, and sales and profit or loss information not yet announced or not disclosed in any other way to the public; and any other information or knowledge not generally available to the public. “Confidential Information” does not include the Licensed Materials (which are subject to other restrictions under this Agreement) nor otherwise include business contact or firmographic information regarding third parties. All business terms of this Agreement, including, but not limited to, pricing and access, shall be considered Confidential Information of Data Lowdown.
5.3 Each party shall keep in confidence all Confidential Information of the other party obtained prior to or during the Term of this Agreement, and shall protect the confidentiality of such information in a manner consistent with the manner in which such party treats its own confidential material, but in no event with less than reasonable care. Without the prior written consent of the other party, a party shall not disclose or make available any portion of the other party’s Confidential Information to any person, firm, association, or corporation, or use such Confidential Information, directly or indirectly, except for the performance of this Agreement. The foregoing restrictions shall not apply to Confidential Information that: (a) was known to such party (as evidenced by its written record) or was in the public domain prior to the time obtained by such party; (b) was lawfully disclosed to such party by a third party who did not receive it directly or indirectly from such party and who is under no obligation of secrecy with respect to the Confidential Information; or (c) became generally available to the public, by publication or otherwise, through no fault of such party. The parties shall take all necessary and appropriate steps in order to ensure that its employees and subcontractors adhere to the provisions of this section. All Confidential Information shall be returned to the disclosing party or destroyed upon receipt by the receiving party of a written request from the disclosing party.
5.4 Personal Information. To the extent that either party transmits or receives personal information under this Agreement, such party shall comply with all applicable laws, rules, and regulations regarding privacy and the lawful processing of personal information. To the extent that personal data obtained by Licensee under this Agreement is subject to the E.U. General Data Protection Regulation (the “GDPR”), each party agrees that it is a “controller” with respect to such data as defined in the GDPR and agrees to comply with all applicable provisions. Notwithstanding anything in this Agreement to the contrary, Licensee shall not use any information subject to the GDPR unless it is for a purpose that constitutes a “legitimate interest” (including direct marketing) as defined in the GDPR, or Licensee has another lawful basis to process such information.
6. REPRESENTATIONS AND WARRANTIES
6.1 Each party represents and warrants that: (1) it is duly organized and validly existing and authorized to do business in the jurisdictions where it operates; and (2) it has the requisite power and authority to enter this Agreement and entering and complying with its obligations under this Agreement does not violate any legal obligation by which such party is bound.
6.2 Licensee represents and warrants, and covenants that it will not, in connection with this Agreement, including its use of or access to the Services, engage in, encourage, or permit conduct that violates or would violate any applicable law, rule, or regulation or any right of any third party.
7. REMEDIES
7.1 Remedies not Exclusive. No remedy provided in this Agreement shall be deemed exclusive of any other remedy that a party may have at law or in equity unless it is expressly stated herein that such remedy is exclusive.
7.2 Provisional Remedies. Each party recognizes that the unauthorized disclosure of Confidential Information or, as to Licensee, Licensed Materials, may cause irreparable harm to the other party for which monetary damages may be insufficient, and in the event of such disclosure, such other party shall be entitled to seek an injunction, temporary restraining order, or other provisional remedy as appropriate without being required to post bond or other security.
7.3 Liquidated Damages. Licensee acknowledges that the Licensed Materials are for its own use only, and that the disclosure to a third party of a list of Licensed Materials, or materials derived from the Licensed Materials (such as aggregated reports or analyses), will cause damage to Data Lowdown in an amount that is difficult to quantify. In order to avoid the time and expense of quantifying damages, if Licensee, negligently or intentionally, discloses a list of Licensed Materials or any materials derived from the Licensed Materials to a third party or permits a third party to access any Licensed Materials records through use of login credentials to Cradles Platform issued to any Authorized User, Data Lowdown shall be entitled to damages from Licensee in the liquidated amount equal to $1 per Licensed Material record that is so disclosed or made available either directly or as part of aggregated materials.
8. INDEMNIFICATION
8.1 You agree to defend, indemnify, and hold harmless Data Lowdown and its subsidiaries, agents, licensors, managers, and other affiliated companies, and their employees, contractors, agents, officers and directors, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney’s fees) arising from: (i) your use of and access to the Service, including any data or content transmitted or received by you; (ii) your violation of any term of this Agreement, including without limitation your breach of any of the representations and warranties above; (iii) your violation of any third-party right, including without limitation any right of privacy or Intellectual Property Rights; (iv) your violation of any applicable law, rule or regulation; (v) any other party’s access and use of the Service with your unique username, password or other appropriate security code; (vi) if you are a Developer, use of your Developer App.
9. LIMITATION OF LIABILITY
In no event will Data Lowdown, or its suppliers or licensors, be liable with respect to any subject matter of this agreement under any contract, negligence, strict liability or other legal or equitable theory for: (i) any special, incidental or consequential damages; (ii) the cost of procurement for substitute products or services; (iii) for interruption of use or loss or corruption of data; or (iv) for any amounts that exceed the fees paid by you to Data Lowdown under this agreement during the twelve (12) month period prior to the cause of action. Data Lowdown shall have no liability for any failure or delay due to matters beyond reasonable control. The foregoing shall not apply to the extent prohibited by applicable law.
10. DISCLAIMER OF WARRANTIES
EXCEPT FOR ANY EXPRESS REPRESENTATIONS AND WARRANTIES STATED HEREIN, THE LICENSED MATERIALS, CRADLES PLATFORM, AND ANY OTHER SERVICES ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS, AND NEITHER PARTY MAKES ANY ADDITIONAL REPRESENTATION OR WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER WHATSOEVER AND EACH PARTY EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, TITLE, AND NON-INFRINGEMENT. NEITHER PARTY WILL HAVE THE RIGHT TO MAKE OR PASS ON ANY REPRESENTATION OR WARRANTY ON BEHALF OF THE OTHER PARTY TO ANY THIRD PARTY.
11. MISCELLANEOUS PROVISIONS
11.1 Marketing. Licensee hereby authorizes Data Lowdown to use Licensee’s name and logo for its marketing efforts unless and until such authorization is revoked in writing.
11.2 Assignment. Either party hereto may assign this Agreement to a successor-in-interest pursuant to an acquisition of such party (whether by merger, stock sale, or asset sale) without the other party’s consent, provided however that (1) Licensee’s assignment hereof shall be effective only after fourteen (14) days’ written notice to Data Lowdown, and (2) Licensee may not assign this agreement to any competitor of Data Lowdown without Data Lowdown' express written consent. No rights or obligations under this Agreement may be assigned or delegated except as provided in this section without the prior written consent of the other party, and any assignment or delegation in violation of this section shall be void.
11.3 Notices. Licensee shall provide an email address for notices under this Agreement. All notices or other communications permitted or required to be given hereunder shall be sent by electronic mail to the email address provided by the other party for such purpose and shall be deemed given when sent. Notices to Data Lowdown shall be sent to support@datalowdown.com. If Licensee fails to provide an email address for notices, Data Lowdown may provide notices hereunder by any means reasonably calculated to provide Licensee with actual notice thereof.
11.4 Currency. All monetary amounts specified in this Agreement are in United States dollars unless otherwise expressly stated.
11.5 Suggestions and Feedback. Data Lowdown shall have a royalty-free, worldwide, transferable, sub-licensable, irrevocable, perpetual license to use or incorporate into the Services any suggestions, enhancement requests, recommendations or other feedback provided by Licensee, including Authorized Users, relating to the operation of the Services.
11.6 Entire Agreement. This Agreement constitutes the entire Agreement of the parties and supersedes all prior communications, understandings, and agreements relating to the subject matter hereof, whether oral or written. Any un-expired subscription set forth in any Ordering Document or agreement between the parties for access to Data Lowdown Services shall be governed by the terms hereof.
11.7 Amendment. Data Lowdown may propose amendments to this Agreement at any time by providing notice of such proposed amendments in a manner permitted hereunder. Such proposed amendments shall be deemed accepted and become part of this Agreement thirty (30) days after the date such notice is given unless Licensee informs Data Lowdown that it does not accept such amendments. In the event Licensee informs Data Lowdown that it does not accept the proposed amendments, the proposed amendments will not take effect and the existing terms will continue in full force and effect. No other modification or claimed waiver of any provision of this Agreement shall be valid except by written amendment signed by authorized representatives of Data Lowdown and Licensee.
11.8 Force Majeure. Neither Data Lowdown nor any of its affiliates will be liable for any delay or failure to perform any obligation under this Agreement where the delay or failure results from any cause beyond its reasonable control, including, but not limited to, acts of God, labor disputes or other industrial disturbances, electrical or power outages, utilities or other telecommunications failures, earthquake, storms or other elements of nature, blockages, embargoes, riots, acts or orders of government, acts of terrorism, or war.
BY CREATING AN ACCOUNT ON THE Cradles PLATFORM (www.cradles.ai/subscribe), PURCHASING AN ITEM FROM THE Cradles STORE (www.cradles.ai/shop), OR AGREEING TO A DOCUMENT INCORPORATING THESE DATA LOWDOWN, INC. LICENSE TERMS AND CONDITIONS (“THE TERMS”) (AN “ORDERING DOCUMENT”) DATA LOWDOWN AND LICENSEE AGREE THAT THESE TERMS SHALL GOVERN THE RELATIONSHIP BETWEEN THE PARTIES AS TO ANY DATA LOWDOWN PRODUCTS OR SERVICES PROVIDED OR TO BE PROVIDED TO LICENSEE AS SET FORTH IN SUCH ORDERING DOCUMENT. AS TO ANY PARTICULAR ORDERING DOCUMENT, THE ORDERING DOCUMENT, THE SERVICES DEFINITIONS AND SERVICE-SPECIFIC TERMS AND CONDITIONS, AND THESE TERMS TOGETHER CONSTITUTE THE AGREEMENT OF THE PARTIES AND ARE REFERRED TO COLLECTIVELY HEREIN AS THE “AGREEMENT.” IN THE EVENT OF ANY CONFLICT BETWEEN THE ORDERING DOCUMENT AND THESE TERMS, THESE TERMS SHALL PREVAIL UNLESS THE ORDERING DOCUMENT EXPRESSLY PROVIDES THAT IT IS MODIFYING THESE TERMS WITH RESPECT TO SUCH AGREEMENT.
Licensee and Data Lowdown agree as follows
:"Cradles" means the Cradles Platform accessible from www.cradles.ai“Data Lowdown” means Data Lowdown, Inc. or one of its affiliates, as set forth in the Ordering Document.
“Licensee” or "User" means the party to whom Data Lowdown is to provide products or services pursuant to the Ordering Document (whether identified as “licensee”, “customer”, "user", “client” or similar designation in the Ordering Document). If “Licensee” includes more than one legal person, the obligations imposed upon each shall be joint and several. The act of, notice from or to, or signature of any one or more of the persons included within “Licensee” shall be binding on all such persons with respect to all rights and obligations under this Agreement, including but not limited to any renewal, extension, termination or modification of this Agreement.
"Ordering Document" means the purchase agreement, evaluation agreement, beta, pre-release agreement, receipt for a transaction on the Lowdown website (www.datalowdown.com), or similar agreement between the Licensee and Data Lowdown.
YOUR ACCOUNT
If you create an account on the Cradles Platform, you are responsible for maintaining the security of your account, and you are fully responsible for all activities that occur under the account and any other actions taken in connection with the account. You must immediately notify Cradles of any unauthorized use of your account or any other breaches of security. Data Lowdown will not be liable for any acts or omissions by Licensee, including any damages of any kind incurred as a result of such acts or omissions.
By creating a Cradles account, You warrant that you are a human. Accounts registered by "bots" or other automated methods are not permitted. You must provide your legal full name, a valid email address, and any other information requested in order to complete the signup process. You may not use your account, the Cradles Platform, or any Licensed Materials accessed under your account for any illegal or unauthorized purpose. You must not, in the use of the Cradles Platform or Licensed Materials, violate any laws in your jurisdiction or the laws of any jurisdiction under which the use of the Cradles Platform or Licensed Materials may be governed.
1. SUBSCRIBED SERVICES, GRANT OF LICENSE
1.1 Data Lowdown, directly or through an affiliate, agrees to provide to Licensee the products and/or services set forth in the Ordering Document (the “Services”). The Services may include information (the “Licensed Materials”), access to and/or use of software or other technology (the “Cradles Platform”), or other services including premium support. Specific Services may be defined by and are subject to the Services Definitions and Service-Specific Terms and Conditions included with the Ordering Document. Data Lowdown will make the Services available to the Licensee via password-protected online access accessible by Licensee with usernames and passwords or as otherwise mutually agreed by the parties. Subject to the terms and conditions herein, Data Lowdown grants to Licensee a non-exclusive, non-transferrable license to access and use the Services in accordance with this Agreement and during the Term of this Agreement.
1.2 The Services will be provided as they exist and are updated and amended throughout the Term. Information provided as part of any Licensed Materials may be updated on an ongoing basis and provided according to the criteria used to define the scope of the subscribed Services. Licensee understands and acknowledges that the contents of Licensed Materials will change over time as the data is updated, and that at any given time it has a right to access and use the data to which it is subscribed as it exists at that time. Features and functions of the Cradles Platform are provided “as is” and as they may be modified, supplemented, or removed from time to time in Data Lowdown' sole discretion. Data Lowdown shall have no liability to Licensee for any modification to any Service, provided that the product or service provided substantially conforms to the description in the Ordering Document.
1.3 Ownership. Licensee acknowledges and agrees that, as between Licensee and Data Lowdown, the Licensed Materials, the Cradles Platform, and any related documentation (including, without limitation, the content, layout, functions, design, appearance, trademarks, service marks, copyrights, patents, and other intellectual property comprising the Licensed Materials or Cradles Platform) are the property of Data Lowdown, whether or not they are trademarked, copyrighted, or patented. Licensee acknowledges and agrees that this Agreement does not transfer any ownership, right, title, or interest in the Licensed Materials or Cradles Platform, nor any part thereof, except the limited license provided hereunder, and Licensee expressly disclaims and waives any and all claims to any ownership interest in any such information or materials. This includes, without limitation, any Licensed Materials that Licensee downloads, prints, saves, or incorporates into other materials. Licensee further acknowledges and agrees that the Licensed Materials, in whole or in part, are unique, special, and valuable. Subject to the limited rights expressly granted hereunder, Data Lowdown, its affiliates and/or its licensors reserve all right, title, and interest in and to the Licensed Materials and Cradles Platform, including all related intellectual property rights. No rights are granted to Licensee hereunder other than as expressly set forth herein.
1.4 Support. Data Lowdown will provide reasonable assistance and ongoing support to assist Licensee and Authorized Users in accessing the Licensed Materials. Data Lowdown will make its personnel available by email for feedback, problem solving, or general questions between the hours of 8:00 a.m. and 6:00 p.m. Eastern Time (Monday – Friday) and will make reasonable efforts to acknowledge support requests within 24 business hours. Premium support services are subject to any service-specific terms and conditions included with the Ordering Document.
2. AUTHORIZED USE OF LICENSED MATERIALS AND Cradles PLATFORM, RESTRICTIONS
2.1 Authorized Users. One Authorized User is permitted per subscription/account created on the Cradles Platform. For enterprise solutions, Licensee shall be entitled to designate persons as Authorized Users up to the number of Authorized Users subscribed as stated in the Ordering Document. If Licensee designates additional persons as Authorized Users beyond the number subscribed, such designation may be deemed by Data Lowdown, to be confirmed by notice to Licensee, as Licensee’s subscription to such additional number of Authorized Users. In the event of such subscription, Data Lowdown may charge Licensee a corresponding additional Subscription Fee equal to the prevailing per-Authorized User rate. Each Authorized User will be provided a unique username and password. Such usernames and passwords may not be shared and may not under any circumstances be used by anyone who is not an Authorized User. If any Authorized User’s login credentials are disclosed to any person who is not an Authorized User but who would satisfy the qualification requirements of Section 2.2 hereof, Data Lowdown may, upon notice to Licensee, deem such sharing to be Licensee’s subscription to the number of additional Authorized Users equal to the number of persons to whom such credentials were disclosed. Licensee shall be responsible for compliance with the terms of this Agreement by all Authorized Users, including, without limitation, the restrictions on use and transfer of Licensed Materials set forth herein. Licensee acknowledges and agrees that Authorized Users must provide Data Lowdown with certain identifying information, including their name and a business email address, and that Authorized Users may be required to accept an end-user license agreement agreeing to Data Lowdown' privacy policy and representing that they are authorized to access the Services on Licensee’s behalf.
2.2 Qualification of Authorized Users. For enterprise solutions, Licensee shall not designate any person as an Authorized User unless such person is: (1) a natural person and (2) an employee of Licensee. Licensee may designate a non-employee (i.e., an independent contractor) as an Authorized User only with Data Lowdown' prior permission and provided Licensee takes reasonable steps to ensure such non-employee uses the Services only as permitted under this Agreement. If the employment of any Authorized User that was in effect as of the date such person was designated as an Authorized User terminates, such person’s authorization to access the Services shall be revoked automatically without any further action by Data Lowdown. In the event of a termination as described in the previous sentence, Licensee shall promptly notify Data Lowdown and take all reasonable steps to ensure that such person ceases accessing the Services. Licensee may reassign Authorized User designations at any time subject to the foregoing qualification requirements. Authorized User licenses that are not provisioned for more than 90 days may be deemed expired.
2.3 Authorized Uses, Restrictions. Licensee shall not access or use the Services for any purpose except the business-to-business sales, marketing, recruiting, strategy, market research, or business development activities of Licensee. Licensee shall not access or use the Licensed Materials for the benefit of or on behalf of any person or entity except Licensee. Subject to Licensee’s compliance with all applicable laws, rules, and regulations, Licensee may use the Services to: (i) view the Licensed Materials; (ii) communicate with any Licensed Materials Contact in a manner that relates to such person’s profession, business, or employment; and (iii) identify prospective sales opportunities, research Licensee’s existing customers and prospects, and otherwise analyze the Licensed Materials in a manner relating to Licensee’s business-to-business sales, marketing, recruiting, and business development activities. Licensee shall not permit anyone who is not an Authorized User to access or use the Services, including any Licensed Materials or any Authorized User login credentials. Licensee shall not distribute, sublicense, transfer, sell, offer for sale, disclose, or make available any of the Licensed Materials or any part of the Services to any third party. Licensee shall not incorporate any portion of the Services or Licensed Materials into Licensee’s own products or services. Upon expiration or termination of this Agreement for any reason, Licensee shall cease accessing the Services and shall cease using the Licensed Materials in any way. Notwithstanding the foregoing, where Licensee has, through using the Licensed Materials in a manner permissible under this Agreement, received responsive communication from a Licensed Materials Contact, Licensee shall not be required to delete such Licensed Materials Contact record upon expiration or termination hereof, and may continue to use such information in a manner otherwise consistent with this Agreement. Licensee is solely responsible for any communications between Licensee or any Authorized User and any Licensed Materials Contact.
2.4 Permitted Use of Cradles Platform, Restrictions. Licensee is permitted to use the Cradles Platform solely for the purpose of accessing and using the Licensed Materials as permitted by this Agreement. Licensee will not (i) reverse assemble, reverse engineer, decompile, or otherwise attempt to derive source code from any of the Cradles Platform; (ii) reproduce, modify, create, or prepare derivative works of any of the Cradles Platform or related documentation; (iii) distribute or display any of the Cradles Platform or related documentation other than to Authorized Users; (iv) share, sell, rent, or lease or otherwise distribute access to the Cradles Platform, or use the Cradles Platform to operate any timesharing, service bureau, or similar business; (v) create any security interest in the Cradles Platform; (vi) alter, destroy, or otherwise remove any proprietary notices or labels on or embedded within or on the Cradles Platform or related documentation; (vii) disclose the results of any Cradles Platform or program benchmark tests to any third parties without Data Lowdown' prior written consent; or (viii) use automated means, such as bots or crawlers, to access any Cradles Platform or extract information therefrom (except such means as are expressly approved in advance in writing by Data Lowdown). Licensee may use Cradles Platform only in accordance with this Agreement and not for the benefit of any third party, except with Data Lowdown' express prior written permission.
2.5 Limitations on Use of the Services. Licensee shall use the Services in a responsible and professional manner consistent with the intended and permissible uses herein and consistent with standard industry practice. Licensee shall not override or circumvent, or attempt to override or circumvent, any security feature, control, or use limits of the Cradles Platform. Licensee will not use the Licensed Materials or Cradles Platform for commercial purposes not permitted under this Agreement and shall not designate any person as an Authorized User if Licensee has reason to believe such person is likely to use the Services on behalf of a third party or otherwise in violation of this Agreement. Data Lowdown may use technological means to place reasonable use limits to prohibit excessive use, including excessive downloads or screen views that indicate a violation of this Agreement, such as sharing with third parties or attempting to circumvent limitations to purchased credits (if applicable). If Licensee’s access to the Services is limited under this paragraph, it may request that the limit be removed, and Data Lowdown may remove or modify a particular limitation if it determines in its sole and absolute discretion that the proposed use by Licensee is in good faith and otherwise consistent with this Agreement.
2.6 Unauthorized Access and Use. In the event Data Lowdown has a reasonable belief that Licensee or any Authorized User is engaged in any unauthorized access or use of the Licensed Materials or Cradles Platform in violation of this Agreement, Data Lowdown, in its sole discretion, may immediately suspend Licensee’s access to the Licensed Materials and/or Cradles Platform until such violation is resolved to Data Lowdown' reasonable satisfaction. Data Lowdown will have no liability to Licensee for such period of suspension and a suspension shall have no effect on the Term of this Agreement nor on Licensee’s obligation to pay the Subscription Fee.
3. TERM AND TERMINATION
3.1 Term. The Initial Term of the Agreement is that which is set forth in the Ordering Document (together with any period of extension under Section 3.2 hereof, the “Term”). The Agreement is not cancellable and shall remain in effect until it expires or is earlier terminated according to its terms.
3.2 Automatic Extension of the Term. On the last day of the Term (the “Extension Date”), the Term will automatically extend for a period equal to the length of the Initial Term, unless either party, before the Extension Date, notifies the other in writing that the Term shall not so extend. In the event that the Term is extended under this paragraph: (1) Licensee shall remain subscribed during such period of extension to the Services to which it was subscribed as of the Extension Date, and (2) the Subscription Fees to be paid to Data Lowdown for such Services during such period of extension shall be equal to the annualized amount of the Subscription Fee applicable to all Services to which Licensee was subscribed as of the Extension Date multiplied by the length of the term in years. Subscription Fees for the period of extension hereunder shall be due upon extension of the Term, and shall be payable as invoiced. Data Lowdown will invoice Subscription Fees for any period of extension in a manner substantially consistent with the payment schedule that applied to the Agreement as of the Extension Date.
3.3 Termination. Either party may terminate this Agreement immediately, without further obligation to the other party, in the event of a material breach of this Agreement by the other party that is not remedied within twenty-one (21) days after the breaching party’s receipt of written notice of such breach. The parties may terminate this Agreement at any time upon their mutual Agreement.
3.4 Effect of Termination.
3.4.1 Expiration or Termination for any Reason. Upon expiration or termination of this Agreement for any reason, Licensee acknowledges and agrees that its access to the Licensed Materials may be automatically terminated, all passwords and individual accounts removed, and all information that has been uploaded into Data Lowdown' systems by Licensee destroyed. Upon expiration or termination of this Agreement for any reason, unless otherwise provided herein, Licensee agrees to destroy any and all copies of Licensed Materials and any information it has obtained from the Licensed Materials, whether in hard copy or electronic form.
4. FEES AND TAXES
4.1 Licensee shall pay all fees stated in the Ordering Document and any other fees applicable to its subscription to Services as provided hereunder (the “Subscription Fee”). All Subscription Fees are due upon execution of the Ordering Document, or notice of a deemed subscription as provided herein, and payable on the terms set forth therein. If no payment schedule is specified for any Subscription Fees, the entire amount shall be payable within 30 days of Data Lowdown' transmission to Licensee of an appropriate invoice. All amounts payable by Licensee under this Agreement will be paid to Data Lowdown without setoff or counterclaim, and without any deduction or withholding. Data Lowdown' acceptance of partial payment or any payment of less than the full amount payable at any given time shall not constitute a waiver or release of Data Lowdown' right to unpaid amounts. If you are paying by credit card, you authorize Data Lowdown to charge your credit card or bank account for all fees payable at the beginning of the Subscription Term and all subsequent Billing Periods, including upgrades. You further authorize Data Lowdown to use a third party (Stripe, WixPay) to process payments, and consent to the disclosure of your payment information to such third party. All payment obligations are non-cancelable and all amounts paid are non-refundable.
4.2 If Licensee fails to timely make any payment of Subscription Fees, Data Lowdown may, in its sole discretion, take any or all of the following actions: (i) restrict or suspend Licensee’s access to the Licensed Materials until all past-due payments are made, (ii) terminate this Agreement, or (iii) accelerate the payment of Subscription Fees such that all unpaid Subscription Fees shall be immediately payable. Data Lowdown shall have the right to charge interest at the rate of 1.5% per month (or, if less, the highest rate permitted by law) on any late payments. Restriction or suspension of Licensee’s online access to the Licensed Materials during period of non-payment shall have no effect on the Term of this Agreement nor on Licensee’s obligation to pay the Subscription Fee.
4.3 Licensee is responsible for any applicable taxes, including, without limitation, any sales, use, levies, duties, or any value added or similar taxes payable with respect to Licensee’s subscription and assessable by any local, state, provincial, federal, or foreign jurisdiction. Unless expressly specified otherwise in the Ordering Document, all fees, rates, and estimates include sales taxes. If Data Lowdown believes any such tax applies to Licensee’s subscription and Data Lowdown has a duty to collect and remit such tax, the same may be set forth on an invoice to Licensee unless Licensee provides Data Lowdown with a valid tax exemption certificate, direct pay permit, or multi-state use certificate, and shall be paid by Licensee immediately or as provided in such invoice. Licensee shall indemnify, defend, and hold harmless Data Lowdown and its officers, directors, employees, shareholders, agents, partners, successors, and permitted assigns against any and all actual or threatened claims, actions, or proceedings of any taxing authority arising from or related to the failure to pay taxes owed by Licensee, except to the extent that any such claims, action, or proceeding is directly caused by a failure of Data Lowdown to remit amounts collected for such purpose from Licensee. Data Lowdown is solely responsible for taxes based upon Data Lowdown' net income, assets, payroll, property, and employees.
5. DATA PROTECTION AND CONFIDENTIALITY
5.1 Licensee acknowledges and agrees that Data Lowdown will operate in accordance with its published Privacy Policy (available at www.datalowdown.com/privacy/ or as Data Lowdown may otherwise indicate), which is incorporated herein by reference.
5.2 “Confidential Information” of a party means such party’s (or its affiliate’s): inventions, discoveries, improvements, and copyrightable material not yet patented, published, or copyrighted; special processes and methods, whether for production purposes or otherwise, and special apparatus and equipment not generally available or known to the public; current engineering research, development, design projects, research and development data, technical specifications, plans, drawings and sketches; business information such as product costs, vendor and customer lists, lists of approved components and sources, price lists, production schedules, business plans, and sales and profit or loss information not yet announced or not disclosed in any other way to the public; and any other information or knowledge not generally available to the public. “Confidential Information” does not include the Licensed Materials (which are subject to other restrictions under this Agreement) nor otherwise include business contact or firmographic information regarding third parties. All business terms of this Agreement, including, but not limited to, pricing and access, shall be considered Confidential Information of Data Lowdown.
5.3 Each party shall keep in confidence all Confidential Information of the other party obtained prior to or during the Term of this Agreement, and shall protect the confidentiality of such information in a manner consistent with the manner in which such party treats its own confidential material, but in no event with less than reasonable care. Without the prior written consent of the other party, a party shall not disclose or make available any portion of the other party’s Confidential Information to any person, firm, association, or corporation, or use such Confidential Information, directly or indirectly, except for the performance of this Agreement. The foregoing restrictions shall not apply to Confidential Information that: (a) was known to such party (as evidenced by its written record) or was in the public domain prior to the time obtained by such party; (b) was lawfully disclosed to such party by a third party who did not receive it directly or indirectly from such party and who is under no obligation of secrecy with respect to the Confidential Information; or (c) became generally available to the public, by publication or otherwise, through no fault of such party. The parties shall take all necessary and appropriate steps in order to ensure that its employees and subcontractors adhere to the provisions of this section. All Confidential Information shall be returned to the disclosing party or destroyed upon receipt by the receiving party of a written request from the disclosing party.
5.4 Personal Information. To the extent that either party transmits or receives personal information under this Agreement, such party shall comply with all applicable laws, rules, and regulations regarding privacy and the lawful processing of personal information. To the extent that personal data obtained by Licensee under this Agreement is subject to the E.U. General Data Protection Regulation (the “GDPR”), each party agrees that it is a “controller” with respect to such data as defined in the GDPR and agrees to comply with all applicable provisions. Notwithstanding anything in this Agreement to the contrary, Licensee shall not use any information subject to the GDPR unless it is for a purpose that constitutes a “legitimate interest” (including direct marketing) as defined in the GDPR, or Licensee has another lawful basis to process such information.
6. REPRESENTATIONS AND WARRANTIES
6.1 Each party represents and warrants that: (1) it is duly organized and validly existing and authorized to do business in the jurisdictions where it operates; and (2) it has the requisite power and authority to enter this Agreement and entering and complying with its obligations under this Agreement does not violate any legal obligation by which such party is bound.
6.2 Licensee represents and warrants, and covenants that it will not, in connection with this Agreement, including its use of or access to the Services, engage in, encourage, or permit conduct that violates or would violate any applicable law, rule, or regulation or any right of any third party.
7. REMEDIES
7.1 Remedies not Exclusive. No remedy provided in this Agreement shall be deemed exclusive of any other remedy that a party may have at law or in equity unless it is expressly stated herein that such remedy is exclusive.
7.2 Provisional Remedies. Each party recognizes that the unauthorized disclosure of Confidential Information or, as to Licensee, Licensed Materials, may cause irreparable harm to the other party for which monetary damages may be insufficient, and in the event of such disclosure, such other party shall be entitled to seek an injunction, temporary restraining order, or other provisional remedy as appropriate without being required to post bond or other security.
7.3 Liquidated Damages. Licensee acknowledges that the Licensed Materials are for its own use only, and that the disclosure to a third party of a list of Licensed Materials, or materials derived from the Licensed Materials (such as aggregated reports or analyses), will cause damage to Data Lowdown in an amount that is difficult to quantify. In order to avoid the time and expense of quantifying damages, if Licensee, negligently or intentionally, discloses a list of Licensed Materials or any materials derived from the Licensed Materials to a third party or permits a third party to access any Licensed Materials records through use of login credentials to Cradles Platform issued to any Authorized User, Data Lowdown shall be entitled to damages from Licensee in the liquidated amount equal to $1 per Licensed Material record that is so disclosed or made available either directly or as part of aggregated materials.
8. INDEMNIFICATION
8.1 You agree to defend, indemnify, and hold harmless Data Lowdown and its subsidiaries, agents, licensors, managers, and other affiliated companies, and their employees, contractors, agents, officers and directors, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney’s fees) arising from: (i) your use of and access to the Service, including any data or content transmitted or received by you; (ii) your violation of any term of this Agreement, including without limitation your breach of any of the representations and warranties above; (iii) your violation of any third-party right, including without limitation any right of privacy or Intellectual Property Rights; (iv) your violation of any applicable law, rule or regulation; (v) any other party’s access and use of the Service with your unique username, password or other appropriate security code; (vi) if you are a Developer, use of your Developer App.
9. LIMITATION OF LIABILITY
In no event will Data Lowdown, or its suppliers or licensors, be liable with respect to any subject matter of this agreement under any contract, negligence, strict liability or other legal or equitable theory for: (i) any special, incidental or consequential damages; (ii) the cost of procurement for substitute products or services; (iii) for interruption of use or loss or corruption of data; or (iv) for any amounts that exceed the fees paid by you to Data Lowdown under this agreement during the twelve (12) month period prior to the cause of action. Data Lowdown shall have no liability for any failure or delay due to matters beyond reasonable control. The foregoing shall not apply to the extent prohibited by applicable law.
10. DISCLAIMER OF WARRANTIES
EXCEPT FOR ANY EXPRESS REPRESENTATIONS AND WARRANTIES STATED HEREIN, THE LICENSED MATERIALS, CRADLES PLATFORM, AND ANY OTHER SERVICES ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS, AND NEITHER PARTY MAKES ANY ADDITIONAL REPRESENTATION OR WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER WHATSOEVER AND EACH PARTY EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, TITLE, AND NON-INFRINGEMENT. NEITHER PARTY WILL HAVE THE RIGHT TO MAKE OR PASS ON ANY REPRESENTATION OR WARRANTY ON BEHALF OF THE OTHER PARTY TO ANY THIRD PARTY.
11. MISCELLANEOUS PROVISIONS
11.1 Marketing. Licensee hereby authorizes Data Lowdown to use Licensee’s name and logo for its marketing efforts unless and until such authorization is revoked in writing.
11.2 Assignment. Either party hereto may assign this Agreement to a successor-in-interest pursuant to an acquisition of such party (whether by merger, stock sale, or asset sale) without the other party’s consent, provided however that (1) Licensee’s assignment hereof shall be effective only after fourteen (14) days’ written notice to Data Lowdown, and (2) Licensee may not assign this agreement to any competitor of Data Lowdown without Data Lowdown' express written consent. No rights or obligations under this Agreement may be assigned or delegated except as provided in this section without the prior written consent of the other party, and any assignment or delegation in violation of this section shall be void.
11.3 Notices. Licensee shall provide an email address for notices under this Agreement. All notices or other communications permitted or required to be given hereunder shall be sent by electronic mail to the email address provided by the other party for such purpose and shall be deemed given when sent. Notices to Data Lowdown shall be sent to support@datalowdown.com. If Licensee fails to provide an email address for notices, Data Lowdown may provide notices hereunder by any means reasonably calculated to provide Licensee with actual notice thereof.
11.4 Currency. All monetary amounts specified in this Agreement are in United States dollars unless otherwise expressly stated.
11.5 Suggestions and Feedback. Data Lowdown shall have a royalty-free, worldwide, transferable, sub-licensable, irrevocable, perpetual license to use or incorporate into the Services any suggestions, enhancement requests, recommendations or other feedback provided by Licensee, including Authorized Users, relating to the operation of the Services.
11.6 Entire Agreement. This Agreement constitutes the entire Agreement of the parties and supersedes all prior communications, understandings, and agreements relating to the subject matter hereof, whether oral or written. Any un-expired subscription set forth in any Ordering Document or agreement between the parties for access to Data Lowdown Services shall be governed by the terms hereof.
11.7 Amendment. Data Lowdown may propose amendments to this Agreement at any time by providing notice of such proposed amendments in a manner permitted hereunder. Such proposed amendments shall be deemed accepted and become part of this Agreement thirty (30) days after the date such notice is given unless Licensee informs Data Lowdown that it does not accept such amendments. In the event Licensee informs Data Lowdown that it does not accept the proposed amendments, the proposed amendments will not take effect and the existing terms will continue in full force and effect. No other modification or claimed waiver of any provision of this Agreement shall be valid except by written amendment signed by authorized representatives of Data Lowdown and Licensee.
11.8 Force Majeure. Neither Data Lowdown nor any of its affiliates will be liable for any delay or failure to perform any obligation under this Agreement where the delay or failure results from any cause beyond its reasonable control, including, but not limited to, acts of God, labor disputes or other industrial disturbances, electrical or power outages, utilities or other telecommunications failures, earthquake, storms or other elements of nature, blockages, embargoes, riots, acts or orders of government, acts of terrorism, or war.