The Data Subscription Agreement is made up of these Terms and Conditions together with the applicable Order Form(s) and any exhibits thereto (collectively, the “Agreement”). The Agreement is made by and between the subscriber named in the Order Form (“Subscriber” or “you”) and Financial Information Technologies, LLC (“Fintech) (Subscriber and Fintech, each a “Party” and collectively the “Parties”) and governs Subscriber’s use of Data, Software, and other Services.
“Affiliate” means, with respect to a Party, any corporation or other business entity Controlled by, Controlling or under common Control with that Party, where “Control” means (i) the direct or indirect ownership of more than 50% (fifty percent) of the equity interest in such corporation or business entity, or (ii) the ability in fact to control the management decisions of such corporation or business entity.
“API” means any application programming interface made available by Fintech to Subscriber in connection with this Agreement.
“Authorized Users” means Subscriber and its employees, contractors, or consultants, provided they use the Data, Software, and Services for Subscriber’s internal business purposes only and no other purpose, and that Subscriber is responsible for Authorized Users’ access and use of the Data, Software, and Services and liable for any Authorized User’s breach of the Agreement.
“Data” means certain data regarding alcoholic beverage sales to retailers and consumers collected and aggregated by Fintech.
“Effective Date” means the date set forth in the Order Form on which the Data subscription and Software license commence.
“Fee” means the subscription fee set out in the Order Form.
“Feedback” means all Subscriber suggestions and recommendations to Fintech concerning the Fintech IP, including without limitation new features or functionality.
“Fintech IP” means all Intellectual Property of Fintech, including without limitation the Data and Software (including any API) and all source code, object code, documentation, modifications, enhancements, revisions, changes, copies, translations, compilations, mathematical calculations, Reports, and other methods used by Fintech to process Data and Subscriber Content to create Reports and other analyses, and all derivative works thereof and thereto.
“Initial Term” means the initial Data subscription and Software license period set out in the Order Form.
“Intellectual Property Rights” or “IP” means all patents, rights to inventions, utility models, copyright and related rights, trademarks, service marks, trade, business and domain names, trade dress, goodwill, unfair competition rights, rights in designs, rights in computer software, database rights, moral rights, rights in confidential information (including know-how and trade secrets), and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world.
“Order Form” means the Data subscription enrollment form entered into by and between Fintech and Subscriber, with any exhibits thereto.
“Payment Due Date” means the date that is thirty (30) days after the applicable invoice date, unless other payment terms are specified in the Order Form.
“Renewal Term” means any Data subscription and Software license period following a renewal of the Initial Term, as provided for in the Order Form.
“Reports” means Fintech’s proprietary reports, analyses, insights, attributes, segments, models, inferences, algorithms, derivations, coefficients, artificial intelligence, and other analytic and business intelligence tools that reside within Fintech’s database and/or database technology and may be created with or by reference to the Subscriber Content and are based on Fintech IP.
“Services” means any services provided by Fintech to Subscriber under this Agreement that are related to the Data or Software.
“Software” means the Fintech online business intelligence tool and any other software applications set out in the Order Form, including upgrades thereto and any related documentation, APIs, software tools, or trial environmentsr.
“Subscriber Content” means any and all Subscriber-owned data, applications, files, information, or other data input into the Software by Subscriber or its Authorized Users.
“Term” means the Initial Term together with any Renewal Term(s).
2. Data Subscription and Software License; Use Restrictions; Ownership.
2.1. Data Subscription. Subject to the terms and conditions of the Agreement and payment of all Fees set forth in the Order Form, Fintech grants Subscriber a limited, non-exclusive, non-transferable, revocable right and license during the Term to download, access, and use the Data: (a) in connection with Subscriber’s internal business purposes; and (b) in connection with services Subscriber provides to its clients. Fintech may periodically update the Data for as long as it maintains the Data. It is the responsibility of Subscriber to check the Data or API and retrieve updated Data from time to time. Fintech will provide the Data in accordance with any requirements set forth in the Order Form.
2.2. Data Privacy Obligations. In connection with its use of the Data, Subscriber shall (a) comply with all applicable national, international, federal, state, and local laws, rules, and regulations and self-regulatory guidelines, including, without limitation, laws relating to data privacy, data security, and unfair business practices; and (b) establish, implement, and maintain reasonable physical, electronic, and procedural safeguards to maintain the security and confidentiality of the Data.
2.3. Restrictions on Use of Data and Software; Subscriber Responsibilities. Subscriber shall not (and shall not authorize or knowingly permit any third party to): (a) make any use or disclosure of the Data that is not expressly permitted under this Agreement; (b) publish the Data, in whole or in part; (c) resell, distribute, transfer, assign, or sublicense the Data; or (d) attempt to de-aggregate the Data. Subscriber is responsible for (i) all activity in and under Subscriber’s user accounts and compliance with the terms and conditions of this Agreement; (ii) taking all reasonable precautions to keep user credentials secure; and (iii) complying with all applicable laws that might impact Subscriber’s right to use the Data, Software, and Services.
2.4. Ownership; Reservation of Rights; Limited License to Subscriber Content. As between Subscriber and Fintech, Fintech owns all rights, title, and interest in and to the Fintech IP. Fintech reserves all rights not expressly granted to Subscriber under this Agreement. Nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise to Subscriber or any third party any Intellectual Property Rights or other rights, title, or interest in or to the Fintech IP. Fintech is free to use Feedback, and Subscriber hereby assigns to Fintech, without attribution or compensation, all right, title, and interest in and to any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback. Subscriber Content will remain the property of Subscriber, but Subscriber will and hereby does grant Fintech a perpetual, irrevocable, transferable, worldwide, royalty-free right and license to download, copy, display, create derivative works, combine with other data, store, maintain, manipulate, aggregate, and otherwise process and use Subscriber Content for purposes of creating, offering, distributing, and selling Reports and to improve Fintech’s products and services. Upon Subscriber’s written request, Fintech will destroy Subscriber Content within a commercially reasonable period of time; provided, however, Fintech will not be required to destroy or delete all or portions of Reports containing Subscriber Content or copies of Subscriber Contained stored in electronic archives or required to be kept by government agencies or Fintech’s document retention policies.
2.5. Software License; Restrictions. Fintech hereby grants to Subscriber a limited, non-exclusive, non-transferable, revocable right and license (without the right to sublicense) to use Fintech’s Software (including API), for the sole purpose of accessing and retrieving the Data as permitted in this Agreement during the Term. Subscriber acknowledges and agrees that Fintech may limit, modify, or cease support of current or prior versions or releases of the Software or API at any time, in its sole discretion, without liability. Fintech will use reasonable efforts to notify Subscriber of changes to its Software or API but will not be liable for any failure to notify. Subscriber will not, and will not authorize or knowingly permit any third party to, make any use of the Data, Software, or API that is not expressly permitted under this Agreement, including, without limitation: (a) reverse engineering, decompiling, disassembling, or otherwise attempting to discern the source code or interface protocols of the Software or API; (b) modifying, adapting, or translating the Software or API; (c) copying or creating derivative works of the Data, Software, or API (except to the extent necessary for Subscriber’s internal business purposes, in accordance with the Agreement); (d) reselling, distributing, renting, leasing, lending, assigning, or sublicensing the Data, Software, or API or otherwise allowing any third party to use or access the Data, Software, or API; (e) removing or modifying any proprietary marking or restrictive legends placed on the Data, Software, or API; (f) using the Data, Software, or API in violation of any applicable law or regulation, including without limitation any laws pertaining to privacy, data security, or intellectual property rights; (g) introducing into the Software or API any virus, worm, “back door,” Trojan Horse, or similar harmful code; (h) interfering or attempting to interfere with the proper working of the Software or API; (i) using (via direct user interactions, scripts, or APIs) or access the Software in any manner which harms, unduly burdens, or impairs performance of the Software; or (j) using the Software to: (i) try to gain unauthorized access to or disrupt any service, device, data, account, or network, (ii) post, transmit, upload, link to, send or store any content that is unlawful, abusive, obscene, or discriminatory, or (iii) store or transmit content that infringes any person’s Intellectual Property Rights. Subscriber will be responsible for any Authorized Users’ use or misuse of third-party software or systems that are accessed from the Software using an API or by any other means.
2.6 Downtime; Suspension of Access; Upgrades. Fintech and/or its licensors and contractors shall use commercially reasonable efforts to minimize downtime of the Software or API, other than for scheduled maintenance or downtime or due to downtime caused by virus attack or hackers, a Force Majeure event (as defined in Section 14), or the unavailability of or interruption or delay in telecommunications or third-party services. Fintech immediately may suspend Subscriber’s access to the Data, Software, and API: (a) if Fintech reasonably determines that (i) there is a threat or attack on any Fintech IP, (ii) Subscriber’s use of the Fintech IP disrupts or poses a security risk to Fintech IP or any other Fintech Subscriber or provider, (iii) Subscriber is suing Fintech IP for fraudulent or illegal activities, (iv) Subscriber has ceased business in the ordinary course, made an assignment for the benefit of creditors, or become the subject of any bankruptcy, reorganization, liquidation, or similar proceeding, or (v) Fintech’s provision of Data is prohibited by law; (b) if any Fintech vendor or licensor suspends or terminates its access to or use of third-party services or products required to enable Subscriber to access the Data, Software, or API; or (c) in accordance with Section 3.2. Subscriber acknowledges and agrees that the right to use the Software is not subject to or contingent upon the delivery of any future modules, features, functionalities, upgrades, or enhancements or contingent on any comments by Fintech, whether oral or written, regarding the same.
3. Term and Termination.
3.1 Initial Term and Renewal Terms. This Agreement begins on the Effective Date and will continue until the expiration of the Term, unless terminated earlier in accordance with Section 3.2.
3.2 Termination. (a) In the event of a material breach of this Agreement by a Party, the non-breaching Party may terminate this Agreement by giving thirty (30) days’ written notice to the breaching Party; provided, however, that this Agreement will not terminate if the breaching Party cures the breach before the expiration of such 30-day period. (b) If Subscriber fails to pay any Fee in full when due, Fintech may, at any time and without notice, suspend Subscriber’s access to the Data and license to use the Software. (c) The Agreement will terminate automatically and immediately, in the event Subscriber has ceased business in the ordinary course, made an assignment for the benefit of creditors, or become the subject of any bankruptcy, reorganization, liquidation, or similar proceeding. (d) If Fintech discontinues its periodic update of the Data for a material period of time during the Term (other than pursuant to Sections 2.6 or 14 or in the event of a termination under clauses (a) – (c) of this Section 3.2), it shall provide Subscriber with notice of such discontinuance, and Subscriber may terminate this Agreement upon receipt of such notice by giving written notice to Fintech.
3.3 Effect of Termination. Upon termination of this Agreement: (a) due to a material breach by Subscriber, Subscriber shall pay Fintech immediately all amounts payable under the Agreement, including the full Fee and any other amounts that would have been owed by Subscriber during the remainder of the Term; (b) due to a material breach by Fintech or due to Fintech’s discontinuation of periodic updates of the Data, Fintech shall refund Subscriber a pro-rata portion of any pre-paid Fees for the remainder of the Term; and (c) all rights granted hereunder to Subscriber immediately will cease, and Subscriber immediately shall cease all access to the Data, Software, and the API; provided, however, that Subscriber may retain any Data downloaded prior to the effective date of termination and use such Data in accordance with the terms of this Agreement.
3.4 Survival. Sections 2.3, 2.4, 3.3, 3.4, 4 (until all Fees and taxes due and payable hereunder are paid), 5, 6, 7, 8-11, and 13-14 will survive termination of the Agreement.
4. Financial Terms.
4.1 Fee. As consideration for the rights granted hereunder, Subscriber shall pay Fintech the Fee. Subject to Section 3.3(b), or unless otherwise stated on the Order Form, all Fees are non-refundable. Fintech reserves the right to change the Fee for any Renewal Term on at least sixty (60) days’ notice before commencement of such Renewal Term.
4.2 Payment Terms. Fintech will issue Subscriber invoice(s) on the schedule set forth in the Order Form. Subscriber shall pay all invoices in full by the Payment Due Date. Access to the Data during the Initial Term will be provided at the time of invoicing and revoked if full payment is not received by the Payment Due Date. All amounts stated in this Agreement or on any invoice are in U.S. dollars, and all payments shall be made in U.S. dollars. All amounts paid are non-refundable (except in the case of a termination pursuant to Section 3.3(b), or unless expressly stated otherwise in the Order Form). Fintech reserves the right to charge a late fee of 1.5% of any invoice balance that remains unpaid after the Payment Due Date, such late fee measured from the invoice date, or the maximum amount permitted by applicable law, whichever is greater. Subscriber agrees to provide Fintech with complete and accurate billing and contact information.
4.3 Taxes. The Fee does not include transaction taxes. If Fintech is required by law to pay any federal, state, county, local, or value added tax, sales and use tax, goods and services tax, or similar applicable taxes based on this Agreement, Subscriber shall reimburse Fintech in full, and Fintech shall invoice Subscriber for such taxes in accordance with applicable rules, so as to allow Subscriber to reclaim such value-added and/or similar tax from the appropriate government authority. Otherwise, Subscriber will be solely responsible to ensure that such taxes are paid to the appropriate government authority.
- Disclaimer of Warranties.TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE DATA, SOFTWARE, AND API ARE PROVIDED “AS IS” AND “AS AVAILABLE.” FINTECH MAKES NO WARRANTY WITH RESPECT TO THE DATA, SOFTWARE, API, OR OTHERWISE IN CONNECTION WITH THIS AGREEMENT AND HEREBY DISCLAIMS ANY AND ALL EXPRESS, IMPLIED, OR STATUTORY WARRANTIES, INCLUDING WITHOUT LIMITATION ANY WARRANTIES OF TITLE, MERCHANTABILITY, NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, UPTIME, AVAILABILITY, AND ERROR-FREE OR UNINTERRUPTED OPERATION, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE. FINTECH DISCLAIMS ALL WARRANTIES WITH RESPECT TO ANY THIRD-PARTY PRODUCT OR SERVICE. TO THE EXTENT THAT FINTECH MAY NOT AS A MATTER OF APPLICABLE LAW DISCLAIM ANY WARRANTY, THE SCOPE AND DURATION OF SUCH WARRANTY SHALL BE THE MINIMUM PERMITTED UNDER SUCH LAW. THE TERMINATION RIGHTS SET FORTH IN SECTIONS 3.2 AND 3.3 AND THE LIMITED LIABILITY UNDER SECTION 6 ARE SUBSCRIBER’S SOLE REMEDIES FOR ANY BREACH OF WARRANTY. FINTECH IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER LOSS OR DAMAGE RESULTING FROM THE TRANSFER OF DATA OVER COMMUNICATIONS NETWORKS AND FACILITIES WHICH ARE NOT OWNED BY FINTECH OR UNDER ITS DIRECT CONTROL, INCLUDING THE INTERNET. SUBSCRIBER ACKNOWLEDGES THAT THE DATA SUBSCRIPTION MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES. SUBSCRIBER ACKNOWLEDGES THAT ALTHOUGH THE DATA CAN BE USED AS AN AID TO SUBSCRIBER AND ITS CLIENTS AND SUBSCRIBERS TO MAKE INFORMED BUSINESS DECISIONS, THE DATA ARE NOT MEANT TO SUBSTITUTE LEGAL OR BUSINESS ADVICE FOR SUBSCRIBER’S OR ITS CLIENTS’ EXERCISE OF THEIR OWN BUSINESS JUDGMENT.. IF THE DATA INCLUDE ESTIMATES OR PREDICTIONS OF FUTURE EVENTS OR BEHAVIORS, FINTECH MAKES NO GUARANTEES AS TO THE OCCURRENCE OF SUCH FUTURE EVENTS OR BEHAVIORS.
- Limitation of Liability.TO THE MAXIMUM EXTENT PERMITTED BY LAW, FINTECH WILL NOT BE LIABLE FOR: (A) SPECIAL, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES; (B) LOSS OF REVENUES OR PROFITS; (C) LOSS OR INACCURACY OF DATA; OR (D) COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES, OR TECHNOLOGY, ARISING UNDER OR IN CONNECTION WITH THIS AGREEMENT IN EACH CASE, REGARDLESS OF THE FORM OF ACTION (AND WHETHER (B) THROUGH (D) ARE CHARACTERIZED AS DIRECT, SPECIAL, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES) OR WHETHER FINTECH WAS ADVISED, HAD OTHER REASON TO KNOW, OR KNEW OF THE POSSIBILITY THEREOF. IN NO EVENT WILL FINTECH’S AGGREGATE LIABILITY UNDER THIS AGREEMENT EXCEED THE FEES PAID BY SUBSCRIBER DURING THE SIX (6) MONTHS PRECEDING THE EVENT GIVING RISE TO THE CLAIM. NO ACTION, REGARDLESS OF FORM, ARISING FROM OR PERTAINING TO THIS AGREEMENT MAY BE BROUGHT BY SUBSCRIBER MORE THAN ONE (1) YEAR AFTER SUCH ACTION HAS ACCRUED.
- Indemnification.Subscriber shall indemnify, defend (using counsel approved by Fintech, in its reasonable discretion), and hold harmless Fintech and its officers, directors, employees, attorneys, agents, licensors, contractors, shareholders, and Affiliates (collectively, “Indemnified Parties”) from and against any and all losses, liabilities, damages, fines, and claims and all related costs and expenses (including legal fees and disbursements and costs of investigation, litigation, settlement, judgment, interest, and penalties) (collectively, “Claims”) incurred by Indemnified Parties in connection with any Claim, to the extent arising from Subscriber’s (a) unauthorized use of the Data, Software, or API; (b) breach of this Agreement; (c) negligence or willful misconduct; (d) violation of law; or (e) use of Fintech IP in combination with any software, hardware, equipment, or technology not provided or authorized in writing by Fintech. Subscriber may not settle any Claim without Fintech’s written consent. Fintech will have the right, at its option and cost, to defend itself against a Claim or to participate in the defense thereof with counsel of its choice.
- Confidentiality.Fintech may exchange certain information with Subscriber about its business, products, services, intellectual property, trade secrets, third-party confidential information, and other sensitive and proprietary information that is not generally available to the public. All such non-public information will be considered “Confidential Information,” whether provided electronically, in hard copy, or orally and whether marked or designated as confidential at the time of its disclosure. Confidential Information includes, but is not limited to, the terms of this Agreement and Data. Confidential Information does not include information that Subscriber can show, via contemporaneous evidence, at the time of its disclosure was: (a) in the public domain; (b) known to Subscriber without breach of this Agreement or received by Subscriber from a third party under no obligation of confidentiality; or (c) independently developed by Subscriber. Subscriber shall not disclose Confidential Information to any person or entity, without Fintech’s prior written consent, except those of its employees who have a need to know in order for Subscriber to use the Data and exercise its rights or perform its obligations under this Agreement. Notwithstanding the foregoing, Subscriber may disclose Confidential Information to the limited extent required to comply with the order of a court or other applicable governmental body, or as otherwise required by law, provided Subscriber first notifies Fintech in order to enable it to seek a protective order. Upon expiration or termination of this Agreement, at Fintech’s election, Subscriber promptly shall return to Fintech all copies, whether written or electronic, of Confidential Information or destroy Confidential Information, as certified in writing by an officer of Subscriber. Subscriber’s obligations under this Section 8 will continue for three (3) years after the expiration or termination of this Agreement. Subscriber will use its best efforts, but in no event less than the efforts it takes to safeguard its own confidential information, to protect and ensure non-disclosure of Data and Confidential Information.
- Notice.Any notice, consent, or approval required to be given under the terms of the Agreement will be considered to have been properly delivered if sent by registered first class mail, return receipt requested, or deposited with an internationally recognized overnight delivery service, such as Federal Express, with all fees and charges prepaid, to: (a) Subscriber at the address set out in the Order Form; and (b) to Fintech at 3109 W. Dr. Martin Luther King, Jr. Blvd., Suite 200, Tampa, Florida 33607, Attention Legal Department.
- Integration. This Agreement embodies the entire agreement and understanding of the Parties with respect to the subject matter hereof and supersedes all prior discussions, negotiations, agreements and understandings among the Parties with respect to the subject matter hereof. No amendment, waiver, or modification of this Agreement is binding unless it is in a writing that explicitly references the Agreement and is signed by an authorized representative of each Party.
- Governing Law; Dispute Resolution. This Agreement is for the benefit of the Parties and will be governed by and construed in accordance with the laws of the State of Florida, without regard to its conflict of laws principles. The Parties expressly agree that any claim, controversy, dispute and/or litigation arising from or related in any way to this Agreement will be resolved exclusively in the federal or state courts of competent jurisdiction located in Hillsborough County, Florida. Subscriber waives any objections to jurisdiction or inconvenient forum and expressly agrees to submit to the personal jurisdiction of such courts.
- Assignment.Subscriber may not assign, transfer, or sublicense its rights or obligations under this Agreement without Fintech’s prior, written consent. Subject to the foregoing, this Agreement will be binding upon and inure to the benefit of the Parties and their respective successors and permitted assigns.
- Severability and Waiver.If any term, provision, covenant, or restriction of this Agreement is held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remainder of the terms, provisions, covenants, and restrictions of this Agreement will remain in full force and effect and shall in no way be affected, impaired, or invalidated. The failure of a Party to enforce a provision, exercise a right, or pursue a default of this Agreement will not be considered a waiver.
- Force Majeure.Neither Party will be liable for any failure or delay in performing an obligation under this Agreement that is due to a cause beyond its reasonable control, including without limitation any of the following: acts of God, accident, riots, war, terrorist act, epidemic, pandemic, quarantine, civil commotion, breakdown of communication facilities, breakdown of web host, breakdown of internet service provider, natural catastrophes, governmental acts or omissions, declaration of a state of emergency or natural disaster, changes in laws or regulations, national strikes, fire, flood, explosion, or generalized lack of availability of raw materials or energy. Notwithstanding the foregoing, nothing under this Section 14 will relieve Subscriber of any payment obligation under the Agreement.
Last updated: 7/13/2020
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