1.1 These terms and conditions apply to the Licensed Material (defined below) licensed by ICIS, Inc to the customer named (the "Customer") on the applicable Subscription Order Form or any separate agreement that may exist between ICIS, Inc and such Customer (together with these terms and conditions, "the Order") for the supply of the market analysis and Information database product(s) selected by the Customer and specified on the Order ("the Products") and the use of the data, information and any software (together 'Licensed Material') included in the Products.
1.2 The Order shall be governed by and construed in accordance with the laws of the State of New York, without regard to its conflict of law principles. Any action or proceeding arising out of or relating to this Agreement shall be instituted only in the United States District Court for the Southern District of New York or a New York State Court located in New York County.
2. Access to the Product
2.1 The Customer will comply with any instructions relating to the security of the Products issued by ICIS, Inc. A specially designated username and password will be allocated by ICIS, Inc to the Customer or named employees of the Customer who are authorised to access and use the Products ('Authorised Users') for the sole use of the Customer or Authorised Users to access the Products and the Licensed Material. Usernames are unique to the named individual Authorised User and must not be shared or transferred. ICIS, Inc may alter usernames and/or passwords from time to time in accordance with its standard security procedures and shall inform the Customer accordingly.
2.2 The Customer shall notify ICIS, Inc promptly if it becomes aware or suspects that any unauthorised person has obtained a password. ICIS, Inc will alter the password and inform the Customer accordingly. Where the Customer notifies ICIS, Inc by telephone, such notification shall be confirmed in writing by the Customer within 48 (forty eight) hours.
3.1 ICIS, Inc grants to the Customer a non-exclusive, non-transferable licence for the Customer and its Authorised Users to access and use the Products and the Licensed Material for its internal business use only subject to and in accordance with these terms and conditions, and for this purpose to:
3.2 The Customer hereby acknowledges that the copyright, database rights and all other intellectual property rights comprised in or relating to the Licensed Material and all compilations thereof and in documentation supplied by ICIS, Inc pursuant to the Products (“Documentation”) are and shall remain the sole property of ICIS, Inc, Save as expressly permitted hereunder, no part of the Licensed Materials or Documentation may be reproduced in any form or by any means and may not be used to prepare or compile directories, database, mailing lists or other derivative works without the prior written permission of ICIS, Inc.
3.3 The Customer may not use automated applications or software to access, search or download Licensed Material.
3.4 The Customer shall not use or permit the use of the Products or Licensed Material otherwise than for the purpose of its normal business activities and shall permit no-one other than its Authorised Users to use or have access to the Products, Licensed Material or any parts thereof.
3.5 The Customer may not:
4. Changes to the Product
4.1 ICIS, Inc reserves the right from time to time to make alterations to the Products or any part or parts thereof or to withdraw any part of parts thereof and to make alterations in the times of the availability of the Products and the rules of operation relating thereto and in particular:
4.2 If through the fault of ICIS, Inc (which shall not include any circumstances beyond ICIS Inc’s reasonable control) any Product is suspended or interrupted or is otherwise temporarily unavailable or a fault occurs in the Product which prevents the Customer from effectively being able to gain access to the Licensed Data during normal service hours, ICIS, Inc will take all necessary steps to rectify the fault as soon as reasonably practicable but shall not be liable for any loss or damage whatsoever suffered by the Customer as a result.
5. No Warranties
5.1 To the extent permitted by applicable law, ICIS, Inc makes no express warranty or representation regarding the Products or the Licensed Materials and excludes any implied warranties including but not limited to any implied warranty that the information contained in the Licensed Data is accurate or up to date or that it is suitable for any particular purpose. All conditions, warranties or representation express or implied as to the operation or supply of the Product are hereby expressly excluded.
6. Licence Fee
6.1 The Customer will pay the fee payable to ICIS, Inc as set out in the Order or otherwise communicated to the Customer by ICIS, Inc, together with applicable value added tax or other sales tax, in the manner provided in the Order Form. ICIS, Inc may assess and collect late charges on past due invoices of up to one and one half (1 ½) percent per month or the highest amount permitted by law, whichever is lower.
7. Limitation of Liability; Indemnification
7.1 The total aggregate liability of ICIS, Inc to the Customer for any direct loss arising out of the use of any Product by the Customer or its Authorised Users is limited to an amount equal to the aggregate amount paid by the Customer to ICIS, Inc for the use of the Product during the period of 12 months prior to the date the loss was incurred.
7.2 ICIS, Inc will not be liable to the Customer for any indirect or consequential loss or damage including without limitation economic loss arising out of the Customer's use of the Product or otherwise arising out of the Order whether or not the possibility of such loss or damage was notified to ICIS, Inc or was within their contemplation.
7.3 Nothing in these terms and conditions is intended to limit the liability of any person for death or personal injury caused by the negligence of that person, its employees or agents or for fraud, except to the extent permitted by applicable law.
7.4 While the employees, servants and agents of ICIS, Inc may be authorised to assist the Customer by means of help-desk, and data support facilities, any assistance given by such employee, servant or agent shall be solely at the Customer's risk and ICIS, Inc will not be liable for any loss or damage suffered by the Customer arising there-from.
7.5 The Customer shall indemnify ICIS, Inc against any liabilities, losses, damages, costs or expenses whatsoever caused incurred by ICIS, Inc directly or indirectly as a result of any claim or course of action made or instituted against ICIS, Inc by any third party arising from the unauthorised use of the Products by the Customer or its Authorised Users.
7.6 ICIS, Inc will defend, indemnify and hold Customer harmless, and at ICIS, Inc’s option, settle any action or proceeding of any kind or description based upon a third party’s claim of patent, copyright or trademark infringement asserted against Customer in relation to the Licensed Materials (a ‘Claim’), provided: (i) the Licensed Materials are used as provided by ICIS, Inc; (ii) ICIS, Inc is given prompt, written notice of any such claim; (iii) ICIS, Inc is given the right to control and direct the investigation, the defence and settlement of each such Claim; and (iv) Customer reasonably cooperates with ICIS, Inc, at ICIS Inc’s expense, in connection with the foregoing and makes no admission or offer of settlement without the prior written authority of ICIS, Inc. This indemnity does not extend to any modifications to the Licensed Materials by the Customer where; (i) such modification is the cause of the Claim; or (ii) the Customer’s use of the Licensed Materials in combination with any other product or resource not furnished or authorised by the ICIS, Inc where such combination is the cause of the Claim. Should the Licensed Materials, become, or in ICIS, Inc’s opinion are likely to become, the subject of a Claim, Customer shall permit ICIS, Inc, at Licensor’s option and expense, and as Customer’s sole and exclusive remedy, either: (i) to procure for the Customer the right to continue using the Licensed Materials; (ii) to replace or modify the same so that they become non-infringing; or (iii) to grant the Customer a refund of the unused portion of the fees paid by the Customer in relation to the relevant Licensed Materials.
7.7 The Products may contain links to external sites. ICIS, Inc is not responsible for and has no control over the content of such sites and, to the extent permissible by law, disclaims all responsibility and liability in relation to information available on such sites or accessible from the Products via hypertext links.
8. Use of the Products
8.1 The Customer shall use the Products and the Licensed Materials in accordance with all laws and regulations applicable to the Customer.
8.2 It shall be the responsibility of the Customer to ensure that its terminals and other associated equipment are compatible with the requirements of the Products and the Customer shall pay all relevant charges associated with such hardware, equipment or other network components of Customer.
8.3 The Customer shall ensure that any copies of the Licensed Material are deleted from its equipment before disposal of the equipment.
8.4 Customer shall keep an accurate record of usage of the Licensed Materials. ICIS, Inc may, by giving no less than ten (10) days notice in writing, require Licensee to provide written verification, certified by an officer of Customer, that all Products and Licensed Materials are being used in accordance with these terms and conditions. ICIS, Inc may, alternatively or additionally, at its option, require Customer to submit to an audit of Customer’s usage and records to ensure that Customer is using the Licensed Materials in compliance with the Order and otherwise complying with these terms and conditions. Licensee agrees to provide access to its premises and its relevant documentation to any internal or external auditors or examiners of ICIS, Inc for the purposes of any such audit. Any such audit examination will be conducted during normal business hours and on no less than ten (10) days written notice. Customer will cooperate fully with ICIS, Inc and/or its agent and allow inspection of all relevant books and records. Except where ICIS, Inc has reasonable grounds to suspect non compliance by the Customer with these terms and conditions ICIS, Inc will not require a verification of use or carry out an audit under this paragraph more than once in any 12 month period.
9. Data Protection
9.1 Each party shall comply with all data protection and privacy regulations applicable to it in respect of any personally identifying information relating to any individual (‘personal data’) contained in the Licensed Materials. The Customer may make no use of such personal data except as expressly authorised by the Product or by applicable law.
9.2 The Customer authorises ICIS, Inc to set such cookies (as defined by Directive 2009/136/EC (‘the Directive’) on the computers of Authorised Users in the European Union as are necessary for the purpose of enabling Authorised Users to use and operate the Product. ICIS, Inc acknowledges that it is responsible for obtaining any other permission required from Authorised Users under the Directive to set cookies which collect personal data relating to Authorised Users.
10.1 Without prejudice to any other right or remedy which may be available to it ICIS, Inc may terminate the Order immediately if:
10.2 Upon termination for any reason the licenses granted ICIS, Inc will cease to make the Products available to the Customer, all indebtedness of the Customer to ICIS, Inc shall become immediately due and the Customer will forthwith return to ICIS, Inc all documentation relating to the Products.
10.3 ICIS, Inc shall additionally be entitled to suspend supply of the Products to the Customer if it reasonably suspects that the Customer is in breach of these terms and conditions and may impose a reasonable charge to the Customer for restoring the Products.
11.1 The Customer may not assign (including in connection with the acquisition of any equity interest of Customer of greater than 25 percent (25%), transfer, mortgage, charge or part with any of its rights, duties or obligations under the Order to any third party without the prior written consent of ICIS, Inc. Any purported assignment will be null and void.