NON-ASSIGNABLE, NON-TRANSFERABLE, NON-EXCLUSIVE DATA LIMITED LICENSE AGREEMENT
THIS AGREEMENT is made as of today between eMerges.com, Inc. (“eMerges”), a Maryland corporation having an address at 212 Prince George St., Ste B, Annapolis, MD 21401 Annapolis, Maryland 21401, and:
I. eMerges is in the business of, among other things, compiling demographic information pertaining to public records including Voter Registrations (“hereafter collectively called “Files”) which at a minimum will have name, voting address; congressional, state senate and state legislative districts, and where available, may contain various data elements including registration date, voting history, political party affiliation, age, phone, email, mail address, and other data specific to the particular source file.
II. BUYER desires to obtain and eMerges desires to furnish to BUYER some of the Files as more particularly described in Sections 8 and 11 (hereafter the “Data”),
THEREFORE, in consideration of the background described above and other valuable consideration, the receipt of which is hereby acknowledged, the parties hereto hereby agree as follows:
1. Scope of Agreement/License Grant. eMerges hereby grants to BUYER a non-exclusive, non transferable, non-assignable, limited license to the eMerges.com Files subject to the terms and conditions of this Agreement and any Exhibits. The data is not for resale. BUYER agrees not to sell/transfer/trade/barter or permit any access or use of either all or part or any of the data to any other entity public or private or otherwise without written pre-approval from eMerges. The data is not for public display and is not permitted to be posted on the internet.
A. Description of Data and Data Delivery. <
B. LAYOUT - eMerges data field column headers are supplied with each file.
C. SOME CURRENT FILES have anomalies or quirks. We capture the data as is from the various sources you may find some bad information in some records.
D. DATA DELIVERY DATES – This is a one-time purchase.
2. Title and Use. NON-ASSIGNABLE, NON-TRANSFERABLE, NON-EXCLUSIVE DATA LIMITED LICENSE AGREEMENT
A. BUYER shall have a non-exclusive limited license to use the eMerges Data for any permitted or not restricted use and in accordance with the provisions of any state, Federal or local laws, regulations or requirements that may govern the use of the Data. BUYER will be responsible for ensuring that the data is used for permitted political purposes only or in compliance with Exhibit C whichever is narrower. eMerges represents and warrants the Data is legally usable for permitted or non-restricted purposes only. eMerges hereby grants a limited license to BUYER to use the Database for these purposes. BUYER has a non-exclusive limited license to the eMerges File subject to the terms and conditions of this Agreement only. The Data can only be used by BUYER for permitted or non-restricted purposes.
3. Fees and Payment; <
A. eMerges represents and warrants to BUYER that: (i) it has full power and authority to enter into this Agreement; and (ii) its execution, delivery and performance of this Agreement will not conflict with or result in a breach of any terms, conditions or provisions of, or constitute a default under its certificate of incorporation or bylaws or any other agreement or instrument to which it is a party.
B. eMerges makes all reasonable attempts ensure that the eMerges Data shall be as current, accurate and complete as may be achieved using the source data and compilation methods normally employed by eMerges in the ordinary course of its business; provided, however, in no event is the File warranted as being error free. EXCEPT AS SET FORTH IN SECTIONS 5, 6, 7 AND 8 HEREOF, NEITHER PARTY MAKES ANY REPRESENTATION OR WARRANTY TO THE OTHER INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. In the event of any breach of the foregoing warranty, BUYER’s remedy and eMerges’ liability shall be limited to eMerges re-performing its obligation hereunder without additional charge to BUYER or election of termination of this Agreement with a pro rata refund of fees previously paid to eMerges for the Data which is in error.
B. BUYER represents and warrants to eMerges that it will comply with all federal, state and local laws regarding the eMerges Data. If eMerges is unable to provide such updates to BUYER, eMerges shall provide comparable data or an adjustment in fees. If laws become so restrictive that eMerges makes the determination that it can not provide a reasonable amount of data, this Agreement may be renegotiated or cancelled with both BUYER and eMerges having the option to terminate this Agreement upon providing thirty (30) days prior written notice.
A. BUYER agrees to indemnify and hold harmless eMerges.com Inc. from and against any liabilities, obligations or claims from this transaction and of any nature whatsoever, whether past, current or future, whether accrued, contingent, known or unknown, and which may not have been disclosed. BUYER furthermore shall indemnify, defend and hold eMerges.com Inc. harmless against all losses, damages, costs and expenses (including legal fees) incurred by BUYER in defending against such matters.
A. eMerges represents and warrants to BUYER that it is the true, lawful and exclusive owner of the eMerges File with full power and authority to sell the same to BUYER as provided in this Agreement. eMerges warrants that the eMerges File does not infringe on any United States patent, copyright or other intellectual property right. eMerges shall have no obligation under this Section to indemnify or defend BUYER against a claim of infringement resulting from the modification or alteration by BUYER of the Data provided hereunder by eMerges, or the combination of such Data with any data not supplied by eMerges; provided, that, but for any such combination, modification or alteration, the claim of infringement would not have occurred.
7. Limitation of Liability. NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY HEREUNDER FOR ANY PROFITS LOST BY THE OTHER PARTY OR FOR ANY CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, INDIRECT OR SPECIAL DAMAGES SUFFERED BY THE OTHER PARTY, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
A. In the event eMerges (a) breaches any term, covenant or representation in this Agreement and does not cure such breach within thirty (30) days of written notice thereof from BUYER , or (b) becomes insolvent, makes an assignment for the benefit of its creditors, calls a meeting of its creditors to obtain any greater financial accommodation, suspends business or commences or has commenced against it any case or proceeding under any provision of the U.S. Bankruptcy Code, then in addition to BUYER ’s rights and remedies provided by law and subject to the liability limitations and indemnification obligations set forth herein, BUYER may immediately terminate this Agreement and may be entitled to specific performance and/or injunctive relief.
B. In the event BUYER (a) breaches any term, covenant or representation in this Agreement and does not cure such breach within thirty (30) days of written notice thereof from eMerges, or (b) becomes insolvent, makes an assignment for the benefit of its creditors, calls a meeting of its creditors to obtain any greater financial accommodation, suspends business or commences or has commenced against it any case or proceeding under any provision of the U.S. Bankruptcy Code, then in addition to eMerges’ rights and remedies provided by law and subject to the liability limitations and indemnification obligations set forth herein, eMerges may immediately terminate this Agreement and may be entitled to specific performance and/or injunctive relief. In the event of breach, BUYER agrees to quit using all eMerges supplied data and remove all eMerges supplied data from its databases
9. Term and Termination. The term of this agreement will be four years except that certain provisions in 9B will survive the agreement.. This agreement is non-cancellable. Upon the expiration or earlier termination of this Agreement in accordance with the provisions hereof, the following shall occur:
A. eMerges shall cease to provide BUYER any additional information from the eMerges Data.
B. Those provisions entitled (i) Audit, (ii) Title; (iii) Warranty and Indemnification, (v) Infringement, (vi) Limitation of Liability, and (vii) Confidentiality, (13k) No Transfer and no Assignment and Nondisclosure; shall survive any termination of this Agreement.
10. Excusable Delay. Neither party shall be liable to the other for any delay in the time for performance of its obligations under this Agreement if such delay arises out of circumstances beyond its reasonable control including but not limited to strikes, wars, natural disasters, equipment failure or breakdown, governmental regulations or interference, or other calamity. In the event of any such excusable delay, the time for performance of such obligations shall be extended for a period equal to the length of the delay. The party whose performance is hampered by the excusable delay shall provide written notice to the other party as soon as reasonably possible of the occurrence of the delay and provide a description thereof.
11. Confidentiality and Non Disclosure. The parties hereto agree that the terms and conditions of this Agreement including all Exhibits hereto and any policies, business practices, plans and methods not in the public domain which may be disclosed to either party as a result of this Agreement will be held in confidence and not disclosed to any third party for any reason whatsoever. Neither party will advertise or in any way publicly announce through any media that it has entered into this Agreement. BUYER acknowledges that eMerges has compiled and developed the eMerges Files at great time and expense and has a proprietary interest therein, that BUYER and certain of its employees will become familiar with and have access to the eMerges Files and that eMerges may suffer great harm if BUYER or its employees disclose any of the eMerges Files information to any third party. Accordingly, BUYER agrees to: (i) hold the eMerges Files information in strict confidence; (ii) disclose the eMerges Files only to its employees to whom knowledge is required and to the extent necessary for its proper use in accordance with this Agreement; (iii) require that its employees hold the eMerges Files information in strict confidence; and (iv) take steps to prevent the accidental or unauthorized disclosure of the eMerges Files. BUYER’s obligations under this Section shall survive any termination of the Agreement.
12. Notices. Any notice required or permitted to be given under this Agreement shall be in writing and personally delivered or sent by regular first-class mail with postage fully prepaid to the parties at the addresses specified below, and shall be effective when received, if personally delivered, or when deposited properly addressed and sent by UPS or FedEx. . Each party may change such address by written notice in accordance with this Section.
A. eMerges: Mr. Shawn Harmon, President, eMerges.com, Inc., 212 Prince George St., Ste B, Annapolis, Maryland 21401, [email protected]
13. Relationship of the Parties. The relationship of BUYER to eMerges created by this Agreement is that of independent contractor and not that of employer/employee, principal/agent, partnership, joint venture or representative of the other.
14. General Provisions.
A. The terms and conditions stated herein shall constitute the complete and exclusive statement of the terms hereof and shall supersede all prior oral and written statements of any kind whatsoever made by the parties or their representatives. No statement or writing subsequent to the date hereof purporting to modify or add to the terms and conditions hereof shall be binding unless consented to in a document signed by duly authorized representatives of BUYER and eMerges which makes specific reference to this Agreement. If any of the provisions of this Agreement are invalid under any applicable statute or rule of law, they are to that extent deemed to be omitted.
B. No action arising out of this Agreement, regardless of form, may be brought by BUYER more than one (1) year after the cause of action has accrued.
C. No waiver of any breach of any provision of this Agreement shall constitute a waiver of a prior, concurrent or subsequent breach of the same or any other provisions hereof, and no waiver shall be effective unless made in writing and signed by an authorized representative.
D. (a) This Agreement, and any questions concerning its making, validity, construction, or performance shall be governed by Anne Arundel County Maryland law, without reference to its conflict of laws principles and standards, and may not be assigned by User in whole or in part without the prior written consent of eMerges. Exclusive jurisdiction and venue for the resolution of any disputes hereunder shall and must be in the Courts of Anne Arundel County, Maryland. Failure to insist in any one or more cases upon the strict performance of any of the terms and conditions of this Agreement shall not be considered a waiver or relinquishment for the future of any such term or condition or of any other term or condition.
E. (d) The terms and conditions set forth in this Agreement constitute the entire agreement on the subject matter hereof, and any additional or different terms or conditions set forth in any other document, including without limitation any User purchase order, shall be of no effect.
F. BUYER shall at all times be regarded as an independent contractor and shall at no time be an agent for eMerges.
G. This agreement shall not be construed or interpreted in favor of or against eMerges or User on the basis of authorship, draftsmanship, or responsibility for preparation of the agreement.
H. Should any term or condition of this agreement be declared illegal or otherwise unenforceable, the reminder of this Agreement shall remain in full force and effect, except that such term shall be stricken.
I. Failure by either Party to insist upon the strict performance of any of the terms and conditions of this Agreement shall not be considered a waiver or relinquishment in the future of any such term or condition or any other term or condition.
J. eMerges shall not be responsible for any delay or failure in performance resulting from acts beyond its control.
K. This agreement is Non-transferable under any circumstances. This is an executory, non-exclusive, limited license and in NO instance can you transfer or assign this limited use license to any other entity even in case of sale of your organization or its assets in which case an entirely new agreement must be prenegotiated and preexecuted.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed electronically by their duly authorized representatives as of today.