Last updated Jan 19, 2016
CLEAREPORT PURCHASE AGREEMENT
TERMS AND CONDITIONS
1. License Grant and Restrictions. Clear Seas grants to Subscriber a limited, personal, non-transferable, non-sublicensable license to possess, and use the information in, each Report, solely for the purpose of analysis and decision-making in support of Subscriber’s own business operations (the “Purpose”).
2. Report Fees. Unless this Agreement expressly provides otherwise, Subscriber will pay to Clear Seas the License Fees identified in this Agreement within 30 days after receipt of each Report or additional copy thereof.
3. Ownership of Reports. Except to the extent of the express license granted in Section 1, all right, title, and interest in and to each Report (including, but not limited to, each copy of each Report) remains the property exclusively of Clear Seas.
4. Restrictions. The following restrictions are in addition to, and not in lieu of, any other restriction in this Agreement
. (a) Subscriber will not disclose any Report or any information in any report to any third party.
. (b) Subscriber will use, and permit the use of, each Report only for the Purpose.
. (c) Subscriber will disclose each Report only to such of Receiving Party’s employees as have a bona fide need to possess or know the information in the Report in the course of accomplishing the Purpose.
. (d) Subscriber will cause each employee to whom Subscriber discloses any Report to be bound by an obligation of confidentiality that is at least as rigorous as the obligation contained in this Agreement.
. (e) Subscriber will not use any part of the Report or any information in any Report in any ad, promotion, publication, or other communication with any third party.
. (f) Subscriber will not copy any Reportor any portion of any Report.
5. Marketing Statements. Notwithstanding anything in Section 4 to the contrary, but subject to the provisions of this Section 5, Subscriber may use in its advertising and promotion Marketing Statements approved by Clear Seas. Please submit all requests to [email protected] or using our "contact us" form.
. (a) A “Marketing Statement” is a single, short, concise statement or assertion based on data contained in a Report. Combinations or lists of statements or claims will be broken into multiple Marketing Statements for purposes of Evaluation Fees and approvals. For the avoidance of doubt, a Marketing Statement does not include any name, trademark, or trade dress of Clear Seas, BNP Media, Inc., BNP Media II, LLC, or any other affiliate of Clear Seas.
. (b) If Subscriber wishes to use one or more Marketing Statements in its advertising or promotion, Subscriber may submit to Clear Seas by any commercially reasonable means the proposed Marketing Statement(s), along with the Evaluation Fee for each. Subscriber may submit, together with its proposed Marketing Statement(s), references to the Report that support the claim(s) made in such Marketing Statement(s).
. (c) Within a commercially reasonable time after Subscriber’s submission of one or more Marketing Statements to Clear Seas, Clear Seas will evaluate each Marketing Statement.
. (d) If Clear Seas determines, in Clear Seas’ sole but reasonable discretion, that a Marketing Statement is supported by the data in the applicable Report, Clear Seas will give to Subscriber notice so stating and, with respect to each Marketing Statement, Subscriber may use such Marketing Statement in advertising and promotion notwithstanding anything in Section 4 to the contrary.
. (e) If Clear Seas determines, in Clear Seas’ sole but reasonable discretion, that a Marketing Statement is not supported by the data in the applicable Report, Clear Seas will give to Subscriber notice so stating and the restrictions in Section 4 will continue to apply. Clear Seas may, but need not, suggest revisions to a Marketing Statement that would qualify such Marketing Statement for the treatment provided for in Section 5(d).
. (f) For the avoidance of doubt:
(i) The Evaluation Fee is payable for each Marketing Claim regardless of the determination by Clear Seas; and
(ii) Clear Seas makes no representation or warranty with respect to any Marketing Statement (regardless of any determination by Clear Seas under Section 5(d)) that the Marketing Statement will meet any requirement of substantiation under Federal Trade Commission or other requirement.
6. Indemnification. Subscriber will indemnify, defend, and hold harmless Clear Seas and Clear Seas’ equity holders, directors, officers, employees, agents, and affiliates from and against any damages, penalties, costs, fees (including, but not limited to, reasonable attorneys’ fees), or liability of every kind arising out of, or related to, any of the following things, to the extent resulting from an act or omission of, or claim, suit, or cause of action by or against, Subscriber or any affiliate or agent of Subscriber.
. (a) Any requirement that Clear Seas respond to any legal process, including, but not limited to, depositions, requests for admission, requests for documents, court or arbitration appearances, or similar requirements;
. (b) Any investigation, enforcement action, or similar proceeding by any regulatory or law enforcement agency, including, but not limited to, the Federal Trade Commission or any state attorney general;
. (c) Any use by Subscriber of any Marketing Statement; or
. (d) Any violation or alleged violation by Subscriber of any law.
If Clear Seas is required to provide one or more copies of any Report to one or more third parties in any suit, investigation, or proceeding, Subscriber will pay to Clear Seas the License Fees for each Report or copy thereof and, for the avoidance of doubt, the First Copy fee will apply to the first copy of the Report provided to each third party.
7. Warranty and Limitation of Liability.
. (a) Clear Seas represents and warrants that each Report was prepared with commercially reasonable care, as limited by the methodology or restrictions stated in, or contemplated by, the relevant Report.
. (b) EXCEPT AS EXPRESSLY WARRANTED IN SECTION 7(a), CLEAR SEAS MAKES NO REPRESENTATION OR WARRANTY WHATSOEVER WITH RESPECT TO ANY REPORT OR ANY OTHER MATTER. SUBSCRIBER'S SOLE REMEDY FOR CLEAR SEAS’ BREACH OF ANY OR ANY OTHER CLAIM, SUIT, OR CAUSE OF ACTION RELATED IN ANY WAY TO THIS AGREEMENT IS A REFUND OF THE FEES PAID FOR THE SPECIFIC REPORT OR PORTION THEREOF WITH RESPECT TO WHICH THE LIABILITY ARISES. IN NO EVENT SHALL CLEAR SEAS BE LIABLE TO SUBSCRIBER FOR ANY AMOUNT IN EXCESS OF THE FEES PAID FOR THE SPECIFIC REPORT OR PORTION THEREOF WITH RESPECT TO WHICH THE LIABILITY ARISES. CLEAR SEAS SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOST PROFITS, GOODWILL, USE, DATA, OR INTANGIBLE LOSSES, WHETHER DERIVED FROM THIRD PARTY CLAIMS OR LOSSES OF ANY NATURE WHATSOEVER OR OTHERWISE, REGARDLESS OF WHETHER CLEAR SEAS WAS ADVISED OF THE POSSIBILITY OR LIKELIHOOD OF SUCH DAMAGES OR COSTS OCCURRING, AND REGARDLESS OF WHETHER SUCH LIABILITY WAS BASED UPON TORT, WARRANTY, NEGLIGENCE, STRICT LIABILITY, CONTRACT, PRODUCT LIABILITY, OR ANY OTHER CLAIM AT LAW OR IN EQUITY. THIS LIMITATION WILL APPLY NOTWITHSTANDING THAT IS CAUSES ANY REMEDY TO FAIL OF ITS ESSENTIAL PURPOSE. THE LIMITATIONS OF LIABILITY AS SET FORTH HEREIN SHALL BE APPLICABLE
TO AND SHALL INURE TO THE BENEFIT OF CLEAR SEAS AND ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, ATTORNEYS, AFFILIATES, AND PARTNERS.
(c) Without limiting the foregoing, and for the avoidance of doubt, Clear Seas makes no representation or warranty that anything in any Report will be, or contribute to, any requirement of substantiation under the FTC Act, the FTC Policy Statement Regarding Advertising Substantiation, or any similar requirement of law.
8. Publicity. Subscriber will not, without the express written permission of Clear Seas (which permission Clear Seas may withhold for any reason or no reason) use the name, trademarks, or trade dress of Clear Seas, BNP Media, Inc., BNP Media II, LLC, or any other affiliate of Clear Seas in any communication or publication to the public or associate itself with any of the foregoing by any public statement.
9. General Provisions.
. (a) The Parties acknowledge that, because of the nature of the Reports and the information contained in the Reports, the limitations and restrictions on, among other things, use, copying, and distribution contained in this Agreement are essential to the benefit of Clear Seas’ bargain under this Agreement and that the remedies for any breach or violation by Subscriber of any such limitation or restriction will take into account the nature of the information, and Clear Seas’ distribution and revenue model associated with the Reports.
. (b) This Agreement will be governed exclusively by the law of the State of Michigan without regard for its choice of law rules.
. (c) Any claim, suit, or cause of action arising out of, or related to, this Agreement must be brought solely in the courts of the State of Michigan or in the United States District Court for the Eastern District of Michigan – Southern Division. Each Party irrevocably consents to the exclusive jurisdiction of, and venue in, such courts. Notwithstanding the foregoing, Clear Seas may bring an action for injunction or other equitable relief in any court of competent jurisdiction.
. (d) Subscriber may not assign any right or obligation under this Agreement.
. (e) No rule that requires that a particular provision of a contract be enforced against the drafter of the provision will have any effect in the construction or enforcement of this Agreement.
. (f) The relationship of Clear Seas and Subscriber established by this Agreement is solely that of a vendor/customer relationship and independent contractors. Nothing herein shall be deemed to establish in any manner, in whole or part, a partnership, joint venture, association, or employment relationship between the Parties. Clear Seas is not to be considered the agent of Subscriber or any third-party provider of goods or services provided by Subscriber.
. (g) The terms and provisions of Sections 2, 3, 4, 6, 7(b), 8, and 9 shall survive indefinitely any termination or expiration of this Agreement.
. (h) This Agreement constitutes the entire agreement between the Parties with respect to the subject matter of this Agreement and this Agreement supersedes all prior agreements between the Parties, whether written or oral, relating to the same subject matter. This Agreement may not be modified except by a writing signed by the Party against which enforcement is sought.
BH01\1436480.4 ID\SLT - 003744/0999