IMPORTANT: By using this site, you agree with the following terms and conditions. If you do not, exit the system and contact your administrator. READ THROUGH THIS AGREEMENT CAREFULLY.
WHEREAS, ITS has developed, and is the sole owner of certain Internet-based information functionality, data, content, materials and services, accessible at the URL www.shazam.net ("SHAZAM Access") (collectively, the "SHAZAM Access Functionality").
WHEREAS, User desires to access the SHAZAM Access Functionality on the terms set forth in this Agreement
WHEREAS, ITS desires to grant, and User desires to accept, a license from ITS to access the SHAZAM Access Functionality;
WHEREAS, if User plans to establish FTP connectivity with ITS, User acknowledges the terms and conditions governing access to SHAZAM Access fully apply to FTP connectivity.
NOW, THEREFORE, in consideration of the mutual covenants and premises herein contained, the parties agree as follows:
1. License. ITS owns the SHAZAM Access Functionality. In accordance with the terms of this Agreement, ITS grants User, during the term of this Agreement, a nonexclusive, worldwide, perpetual license to, use the SHAZAM Access Functionality in association with User's internal operations. ITS retains title and ownership of the SHAZAM Access Functionality and all underlying software and intellectual property rights.
2. Transfer Prohibited. User shall not sell, trade, rent, network or distribute the SHAZAM Access Functionality, or any portion or aspect thereof, via any method, including, but not limited to, transfer via a portable physical device such as magnetic media, optical media or hardcopy reproduction.
3. Confidential Information And Publication
3.1 Confidential Information refers to information previously or hereafter disclosed between
the Parties, either orally or in visual or written form, related to the technology of either
Party, as well as other proprietary information, including, but not limited to, proprietary
business information and/or trade secrets of the Party disclosing the Confidential
Information under this Agreement ("Discloser") (which may be in the form of, without
limitation, integrated corporate communications, ideas, concepts, prototypes, documents,
surveys, business methods, records, reports, drawings, tapes, concepts, inventions,
innovations, ideas, plans, recommendations, specifications, formulas, research, interpretations, analyses, forecasts, proposals, business strategies, other methods,
financial information, statistics, personnel information, marketing and sales information,
product and/or pricing information, customer and/or potential customer information,
(including, but not limited to, customer lists, account information, orders, data and other
customer information), and related documentation and information relating to vendors or
potential vendors, as well any and all additions, refinements, amendments or
enhancements thereto and information derived therefrom).
3.2 Except as provided for under 15 U.S.C. Sec. 6801 et seq. (Gramm-Leach-Bliley Act) to allow nonaffiliated third party disclosure for the purposes of permitting the Parties to perform services pursuant to this Agreement, a Party receiving Confidential Information under this Agreement ("Recipient") shall not disclose the Confidential Information and shall use such Confidential Information only in furtherance of executing its obligations under this Agreement. Recipient shall only disclose Confidential Information to its employees having a justifiable "need to know" with respect to such purpose. Each Party shall have a written agreement of nondisclosure with such employees, consistent with this Agreement. The Recipient agrees not to reverse engineer the Confidential Information.
3.3 Each party's duty to protect Confidential Information disclosed under this Agreement shall survive the termination of this Agreement.
3.4 A Recipient shall protect the disclosed Confidential Information, by using the same degree of care, but no less than a reasonable degree of care, to prevent the unauthorized use, dissemination or publication of the Confidential Information as the Recipient uses to protect its own confidential information of a like nature.
3.5 This Agreement imposes no obligation upon a Recipient with respect to Confidential Information which (a) was in the Recipient's possession before receipt from the Discloser; (b) is or becomes a matter of public knowledge through no fault of the Recipient; (c) is rightfully received by the Recipient from a third party without a duty of confidentiality; (d) is disclosed by the Discloser to a third party without a duty of confidentiality on the third party; (e) is independently developed by the Recipient; (f) is disclosed by the Recipient with the Discloser's prior written approval; or (g) is disclosed under operation of law but only if (1) the Recipient provides the Discloser with prompt notice prior to disclosure so that the Discloser may seek judicial protection and (2) the Recipient discloses only that information, which, in the reasonable opinion of its counsel, is required to be disclosed.
4. Proprietary Rights. User agrees that it neither has nor makes a claim to any right or
interest in the ITS name, SHAZAM service mark, reputation, products, intellectual property, or
Confidential Information, and further agrees that by reason of the exercise of any such grant or
authority it shall gain no additional right or interest therein. User acknowledges and agrees that,
as between the User and ITS, ITS holds all ownership rights in and to the SHAZAM Access
Functionality. User agrees to take any and all actions (including, but not limited to, the
execution of any documents) which may be necessary or appropriate in order to document ITS'
full and complete ownership of any aspect of the SHAZAM Access Functionality, if required.
5. Representations And Warranties. ITS hereby represents and warrants to User that ITS has the full power to enter into this Agreement, to carry out its obligations under this Agreement, and to grant the rights and licenses granted to User in this Agreement. ITS further represents and warrants that the SHAZAM Access Functionality, is either owned, or properly licensed by ITS, or is in the public domain and the use thereof by User, does not, and will not, infringe any property rights of any third party. As of the Execution Date of this Agreement, ITS represents that it has not received any notice or claim from a third party alleging that any of the SHAZAM Access Functionality infringes any proprietary rights of any third party.
User hereby represents and warrants to ITS that User has the full power to enter into this Agreement and to carry out its obligations under this Agreement; that this Agreement does not constitute a breach by the User of any other agreement or understanding with any other person, firm or entity; that User's use and implementation of SHAZAM Access Functionality will not result in the violation of any local, state federal or international laws, rules or regulations; and that User has not sold or licensed and will not sell or license any materials directly competitive with the SHAZAM Access Functionality.
6. Equitable Relief. User recognizes and acknowledges that a breach by User of this
Agreement may cause ITS irreparable damage, which cannot be readily remedied in monetary
damages in an action at law, and may, in addition thereto, constitute an infringement of various
intellectual property rights of ITS. In the event of any default or breach by User that could result
in irreparable harm to ITS, or cause some loss or dilution of ITS' goodwill, reputation, or rights
in its intellectual property, including, but not limited to, its copyrights and/or trademarks, ITS
shall be entitled to seek immediate injunctive relief to prevent such irreparable harm, loss, or
dilution in addition to any other remedies available.
7. Termination. If either party commits a breach of this Agreement that is not cured within thirty (30) days after written notice is given by the other party, then the non-breaching party may terminate this Agreement immediately upon giving written notice to the other.
7.1 Upon termination of this Agreement, (a) both Parties shall remain obligated to maintain the confidentiality herein required, (b) User will promptly return or destroy, at ITS' option, the SHAZAM Access Functionality and all modifications and updates thereto, and (c) User will promptly pay to ITS any outstanding amounts due and payable to ITS under this Agreement.
7.2 ITS may revoke User's license immediately if User violates one or more of the provisions of this Agreement. This Agreement and its associated license shall terminate immediately upon the occurrence of any of the following events:
7.2.1 A receiver is appointed for User or its property;
7.2.2 User makes a general assignment for the benefit of its creditors;
7.2.3 User commences, or has commenced against it, proceedings under any bankruptcy, insolvency or debtor's relief law, which proceedings are not dismissed within sixty (60) days; or
7.2.4 User is liquidated or dissolved.
7.3 In the event of any termination/cancellation of this Agreement or any license granted to User hereunder, User shall cease any further access and/or use of the SHAZAM Access Functionality, or any portion thereof, and immediately return all copies of any portion of the SHAZAM Access Functionality to ITS; and ITS shall cease performance of its obligations hereunder without liability to User.
7.4 ITS' foregoing rights and remedies shall be cumulative and in addition to all other rights and remedies available to ITS in law and in equity.
7.5 Either party may terminate this Agreement upon ninety (90) days written notice.
8. Fees and Taxes. User agrees to pay all applicable reoccurring monthly fees for use of
and data distribution via the SHAZAM Access Functionality, as those fees are published in the
SHAZAM Fee Schedule, as well as fees that may apply to optional services provided by the
SHAZAM Access Functionality. User shall pay all taxes based on or in any way measured by
this Agreement, the SHAZAM Access Functionality, or any portion thereof, or any services
related thereto, excluding taxes based on ITS' net income. If User challenges the applicability of
any such tax, User shall pay the same to ITS and User may thereafter challenge such tax and
seek a refund thereof.
9. Term of Agreement. The effective date ("Effective Date") of this Agreement shall be the latest date appearing below. Unless otherwise terminated or cancelled as provided herein, the term hereof and of the license granted hereunder shall commence on the Effective Date of this Agreement, and shall continue until terminated as provided for herein.
10. Modifications and Access. User acknowledges and agrees that ITS may update or
otherwise modify the SHAZAM Access Functionality at its sole discretion. User shall
not modify or change the SHAZAM Access Functionality in any manner. ITS performs
periodic maintenance of the SHAZAM Access website which may prevent access for a
limited period of time. User acknowledges that maintenances may temporarily restrict
access to SHAZAM Access.
10.1 Support. User may refer comments and report problems with the SHAZAM Access Functionality, and ITS will make reasonable efforts to respond thereto commensurate with ITS' assessment, made in its sole discretion, of the severity thereof.
10.2 Hosting. ITS will host the SHAZAM Access on its servers (or on servers within its control) and will provide all computer hardware, software and personnel necessary to operate and maintain the SHAZAM Access as a functional page accessible to users of the World Wide Web.
10.3 Password. User will receive an account and password(s) from ITS to provide access to and use of the SHAZAM Access Functionality. User is entirely responsible for any and all activities that occur under the User account and/or password(s). User shall keep the account and password(s) confidential, allowing no other entity to use the User account or passwords, and to notify ITS promptly if User has any reason to believe that the security of the User account or passwords has been compromised.
10.4 Access. User alone is responsible for obtaining, at User's expense, the computing environment and communication resources necessary to access and utilize SHAZAM Access.
11. Indemnification. User agrees to defend, indemnify and hold ITS, its parents,
subsidiaries, affiliates, officers and employees, its suppliers and their respective affiliates and
agents, harmless from all claims, liabilities, damages and expenses (including attorneys' fees and
expenses) arising out of or relating to User's use of the SHAZAM Access, including, but not
limited to: (1) User's alleged breach of this Agreement; (2) User's misuse or corruption of the
SHAZAM Access Functionality, or (3) User's infringement of any intellectual property or other
right of any person or entity.
Although ITS has taken several steps to ensure the accuracy and security of SHAZAM Access, ITS is not responsible for any errors, corruption or loss of any functionality including, but not limited to, data or information User provides to ITS for inclusion into SHAZAM Access.
12. LIMITATION OF LIABILITY. IN NO EVENT SHALL ITS, ITS PARENTS, SUBSIDIARIES, AFFILIATES, CUSTOMERS, EMPLOYEES, VENDORS OR SUPPLIERS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, RESULTING FROM USER'S USE OR INABILITY TO USE THE SHAZAM ACCESS FUNCTIONALITY, OR FOR THE LOSS OF PROFITS, OR DAMAGES THAT MAY RESULT FROM OMISSIONS, ERRORS, DEFECTS, VIRUSES, OR FAILURE OF PERFORMANCE OF THE SHAZAM ACCESS FUNCTIONALITY, OR FOR THE COST OF OBTAINING SUBSTITUTE GOODS AND SERVICES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF USE, PROFITS, DATA OR OTHER INTANGIBLES WHETHER IN AN ACTION IN CONTRACT, TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE), OR OTHERWISE, EVEN IF ITS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ITS' TOTAL LIABILITY TO USER FOR ALL LOSSES, DAMAGES, AND CAUSES OF ACTION SHALL IN NO EVENT EXCEED THE TOTALITY OF PAYMENTS MADE BY USER TO ITS, IF ANY, UNDER THIS AGREEMENT. NO OTHER WARRANTIES ARE EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND ANY WARRANTY TO ANY ENTITY OTHER THAN USER, ITS SUCCESSORS AND ASSIGNS AND TO ANY AFFILIATE OF USER IF THE AFFILIATE CONSENTS TO BE BOUND BY THIS AGREEMENT TO THE SAME EXTENT AS USER. THE PARTIES ACKNOWLEDGE THAT THE PROVISIONS OF THIS AGREEMENT WERE NEGOTIATED TO REFLECT AN INFORMED, VOLUNTARY ALLOCATION OF ALL RISKS ASSOCIATED WITH THIS AGREEMENT AND THAT THE WARRANTY DISCLAIMERS AND LIMITATIONS IN THIS AGREEMENT ARE INTENDED TO LIMIT THE CIRCUMSTANCES OF LIABILITY.
13. DISCLAIMER. USER ACKNOWLEDGES THAT ITS PROVIDES THE SHAZAM ACCESS FUNCTIONALITY ON AN "AS IS, WHERE IS" BASIS AND THAT ITS MAKES NO REPRESENTATIONS OR WARRANTIES, EITHER EXPRESS OR IMPLIED, REGARDING THE SHAZAM ACCESS FUNCTIONALITY. USER ALSO ACKNOWLEDGES: (1) THE SHAZAM ACCESS FUNCTIONALITY COULD INCLUDE TECHNICAL INACCURACIES AND/OR TYPOGRAPHICAL ERRORS; (2) ITS DOES NOT REPRESENT OR WARRANT THE TIMLINESS, RELIABILITY, COMPLETENESS OR ACCURACY OF THE SHAZAM ACCESS FUNCTIONALITY; AND (3) ITS DOES NOT REPRESENT OR WARRANT THAT THE SHAZAM ACCESS FUNCTIONALITY IS FREE OF ERRORS OR VIRUSES OR OTHER POTENTIALLY DAMAGING CONTENT. ITS MAY PERIODICALLY CHANGE OR UPDATE THE WEBSITE AND WEBSITE FUNCTIONALITY. ITS SHALL EXERCISE REASONABLE EFFORTS TO PRESERVE CONFIDENTIALITY OF USER'S DATA AND INFORMATION IN ACCORDANCE WITH OPERATING RULES OF ITS AND APPLICABLE LAW. ITS SHALL NOT BE LIABLE FOR INADVERTENT DISCLOSURE OF SUCH DATA AND INFORMATION TO A THIRD PARTY IF CAUSED BY NON-AUTHORIZED INTRUSION OR HACKING, OR BY THE FAILURE OF USER TO MAINTAIN PROPER SECURITY OF ITS PASSWORD OR OTHER FORM OF SECURED ACCESS TO THE SHAZAM ACCESS FUNCTIONALITY.
14. Impermissible Activity. User shall not use the SHAZAM Access Functionality to transmit any data which: (1) is unlawful, threatening or abusive; (2) encourages criminal or other activity which would reasonably give rise to civil liability or otherwise violate any local, state, federal or international law; (3) is vulgar, profane, obscene or offensive; (4) is pornographic, sexually explicit or indecent; (5) contains false or misleading information; (6) is defamatory or libelous; or (7) contains a virus or surreptitious code.
15. Data Collection and Use. User's use of the SHAZAM Access Functionality shall be in accordance with ITS' Privacy Policy, available at www.shazam.net, including any future changes and/or modifications thereto.
16. Assignment. User may not assign or transfer this Agreement and the rights and licenses granted hereunder without ITS' prior written consent.
17. Claims. Any claim arising out of or related to this Agreement must be brought no later than one year after it has accrued.
18. Data Collection. The parties shall gather information online only in accordance with
their then-current privacy policies, which shall be in compliance with all United States laws and
regulations related to online data collection. ITS agrees to implement and maintain appropriate safeguards to: (i) ensure the security and confidentiality of nonpublic customer information; (ii)
protect against any anticipated threats or hazards to the security or integrity of such information;
and (iii) protect against unauthorized access to or use of such information that could result in
substantial harm or inconvenience to any customer, including User. ITS will disclose to affected
financial institutions all information related to any breach in security resulting in an unauthorized
intrusion into the institution's customer information systems maintained by ITS. Disclosure of
any such incident will be made as soon as possible after thorough investigation by ITS to enable
the affected institutions to expeditiously implement their response programs.
19. Miscellaneous.
19.1 Force Majeure. Neither party shall be liable to the other for delays or failures in performance resulting from causes beyond the reasonable control of that party, including, but not limited to, acts of God, labor disputes or disturbances, material shortages or rationing, riots, acts of war, governmental regulations, communication or utility failures, or casualties.
19.2 Relationship of Parties. The parties are independent contractors under this Agreement and no other relationship is intended, including a partnership, franchise, joint venture, agency, employer/employee, fiduciary, master/servant relationship, or other special relationship. Neither party shall act in a manner which expresses or implies a relationship other than that of independent contractor, nor bind the other party.
19.3 No Third Party Beneficiaries. Unless otherwise expressly provided, no provisions of this Agreement are intended or shall be construed to confer upon or give to any person or entity other than ITS and User any rights, remedies or other benefits under or by reason of this Agreement.
19.4 Attorneys' Fees. In addition to any other relief awarded, the prevailing party in any action arising out of this Agreement shall be entitled to its reasonable attorneys' fees and costs.
19.5 Notices. Any notice required or permitted to be given by either party under this
Agreement shall be in writing, and shall be personally delivered or sent by a reputable
overnight mail service (e.g., Federal Express), or by first class mail (certified or
registered), or by facsimile confirmed by first class mail (registered or certified). Notices
will be deemed effective (a) five (5) working days after deposit, postage prepaid, if
mailed, or (b) the next day if sent by overnight mail.
19.6 Waiver and Modification. Failure by either party to enforce any provision of this Agreement will not be deemed a waiver of future enforcement of that or any other provision. Any waiver, amendment or other modification of any provision of this Agreement will be effective only if in writing and signed by the parties.
19.7 Severability. If for any reason a court of competent jurisdiction finds any provision of this Agreement to be unenforceable, that provision of the Agreement will be enforced to the maximum extent permissible so as to effect the intent of the parties, and the remainder of this Agreement will continue in full force and effect.
19.8 Controlling Law and Jurisdiction. This Agreement and any action related thereto shall be governed, controlled, interpreted and defined by and under the laws of the State of Iowa and the United States, without regard to the conflicts of laws provisions thereof. The parties specifically disclaim the UN Convention on Contracts for the International Sale of Goods.
19.9 Headings. Headings used in this Agreement are for ease of reference only and shall not be used to interpret any aspect of this Agreement.
19.10 Entire Agreement. This Agreement, including all exhibits which are incorporated herein by reference, constitutes the entire agreement between the parties with respect to the subject matter hereof, and supersedes and replaces all prior and contemporaneous understandings or agreements, written or oral, regarding such subject matter.
19.11 Counterparts. This Agreement may be executed in two counterparts, each of which shall be an original and together which shall constitute one and the same instrument.
20. FTP Connectivity. If User plans to establish FTP connectivity with ITS, User acknowledges the terms and conditions governing access to SHAZAM Access fully apply to FTP connectivity.