NEWSLEVER
LICENSE TERMS AND CONDITIONS
BY AGREEING TO A DOCUMENT INCORPORATING THESE LICENSE TERMS AND CONDITIONS (THESE “TERMS”) (AN “ORDERING DOCUMENT”), NEWSLEVER AND LICENSEE AGREE THAT THESE TERMS SHALL GOVERN THE RELATIONSHIP BETWEEN THE PARTIES AS TO ANY NEWSLEVER PRODUCTS OR SERVICES PROVIDED OR TO BE PROVIDED TO LICENSEE AS SET FORTH IN SUCH ORDERING DOCUMENT. AS TO ANY PARTICULAR ORDERING DOCUMENT, THE ORDERING DOCUMENT, THE SERVICES DEFINITIONS AND SERVICE-SPECIFIC TERMS AND CONDITIONS, AND THESE TERMS TOGETHER CONSTITUTE THE AGREEMENT OF THE PARTIES AND ARE REFERRED TO COLLECTIVELY HEREIN AS THE “AGREEMENT.” IN THE EVENT OF ANY CONFLICT BETWEEN THE ORDERING DOCUMENT AND THESE TERMS, THESE TERMS SHALL PREVAIL UNLESS THE ORDERING DOCUMENT EXPRESSLY PROVIDES THAT IT IS MODIFYING THESE TERMS WITH RESPECT TO SUCH AGREEMENT.
“Newslever” means Newslever, a Delaware corporation, with an office located at 33 Hilltop Drive, North Caldwell, New Jersey 07006, or one of its affiliates, as set forth in the Ordering Document.
“Licensee” means the party to whom Newslever is to provide products or services pursuant to the Ordering Document (whether identified as “licensee”, “customer”, “client” or similar designation in the Ordering Document). If “Licensee” includes more than one legal person, the obligations imposed upon each shall be joint and several. The act of, notice from or to, or signature of any one or more of the persons included within “Licensee” shall be binding on all such persons with respect to all rights and obligations under the Agreement, including but not limited to any renewal, extension, termination or modification of the Agreement.
WHEREAS, Newslever is the developer, owner and operator of a proprietary cloud-based application which curates, compiles and analyzes corporate intelligence information (the “Newslever Service”); and
WHEREAS, Newslever desires to license to Licensee, and Licensee desires to license from Newslever, the Newslever Service, in accordance with the terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual premises and conditions herein contained, and other due and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereby agree as follows:
Subject to all the terms of the Agreement and the payment of all fees by Licensee, as hereinafter set forth, Newslever grants Licensee the following license (the “License”): a non-sublicensable, nonexclusive, nontransferable right to use the Newslever Service on the cloud-based system maintained by Newslever to be used solely by authorized employees and independent contractors of Licensee (each, a “User”).
Unless Newslever shall agree in advance in writing, Licensee shall not use the Newslever Service for any purpose other than those purposes specifically set forth herein.
Licensee shall pay to Newslever all fees associated with using the Newslever Service, as set forth on the Ordering Document (collectively, the “Fees”). Such Fees are exclusive of taxes and duties that may apply depending on the jurisdiction in which Licensee is located, which taxes and/or duties, if collected by Newslever, shall be paid by Licensee. All Fees and other charges due from Licensee to Newslever shall be paid by Licensee no later than 30 days after invoice. Past due amounts are subject to late charges of 1.5% per month or the maximum amount permitted by applicable law. Payment shall be by the method set forth on Schedule 1 attached hereto. There are no refunds for cancellation; if Licensee cancels before the end of a billing cycle, Licensee will continue to have access to their account for the remainder of the billing cycle. In the event that Newslever terminates the Agreement, due to Licensee’s breach of the Agreement or breach of the Ordering Document, Licensee shall receive no refund or exchange for any unused time on a subscription or any Fees for any portion of the Newslever Services.
The Newslever Service and all intellectual property rights in and to the Newslever Service are and shall at all times remain the sole and exclusive property of Newslever and are protected by applicable copyright, trademark, trade dress, patent and/or trade secret laws and treaties. Under no circumstances shall Licensee be deemed to receive title to any portion of the Newslever Service or Newslever's intellectual property rights therein.
Newslever reserves the right to make changes to the Newslever Service, including, without limitation, the interface and layout thereof, without prior notice to Licensee.
Licensee shall not rent, lease, transfer, distribute, assign, license, sublicense, disassemble or reverse engineer any part of the Newslever Service.
Licensee shall not build a product or service using similar ideas, features, functions or content of the Newslever Service, or copy any of the same.
The License does not include any right for Licensee to use any trademark, service mark, trade name or any other mark of Newslever or any other party or licensor except as set forth herein.
Licensee agrees to use best efforts to ensure (i) only authorized Users utilize the Newslever Service, (ii) each User shall be responsible for maintaining the confidentiality of his/her account and password, and (iii) each User shall be responsible to restrict access to his/her computer in an effort to effectuate the above.
Licensee shall accept responsibility for all activities that occur under the account or password of each authorized User. Licensee shall immediately notify Newslever of any actual or suspected unauthorized use or access of the Newslever Service and provide reasonable assistance to Newslever in the investigation and prosecution of any such unauthorized use or access.
No rights or licenses are granted except as expressly and unambiguously set forth herein.
THE NEWSLEVER SERVICE IS PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND. NEWSLEVER EXPRESSLY DISCLAIMS ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE NEWSLEVER SERVICE, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, ACCURACY, RELIABILITY NONINFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE. NEWSLEVER SPECIFICALLY DISCLAIMS ANY WARRANTY THAT THE OPERATION OF THE NEWSLEVER SERVICE WILL BE UNINTERRUPTED, ERROR FREE OR FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. NEWSLEVER DISCLAIMS ALL RESPONSIBILITY FOR ANY LOSS, INJURY, CLAIM, LIABILITY OR DAMAGE, OF ANY KIND, RESULTING FROM, ARISING OUT OF OR ANY WAY RELATED TO (A) ANY ERRORS IN OR OMISSIONS FROM THE NEWSLEVER SERVICE, INCLUDING BUT NOT LIMITED TO, TECHNICAL INACCURACIES AND TYPOGRAPHICAL ERRORS, (B) THIRD PARTY COMMUNICATIONS, (C) ANY THIRD PARTY WEB SITES OR CONTENT CONTAINED THEREIN, DIRECTLY OR INDIRECTLY ACCESSED THROUGH LINKS IN THE NEWSLEVER SERVICE, INCLUDING BUT NOT LIMITED TO ANY ERRORS OR OMISSIONS THEREFROM, (D) THE UNAVAILABILITY OF THE NEWSLEVER SERVICE, THE INTERACTIVE AREAS, THE CONTENT, THE POSTINGS, OR ANY PORTION THEREOF, (E) LICENSEE’S USE OF THE NEWSLEVER SERVICE, THE INTERACTIVE AREAS, THE CONTENT, OR THE POSTINGS, OR (F) LICENSEE’S USE OF ANY EQUIPMENT OR SOFTWARE IN CONNECTION WITH THE NEWSLEVER SERVICE, THE INTERACTIVE AREAS, THE CONTENT, OR THE POSTINGS. This disclaimer of warranty constitutes an essential part of the Agreement.
Licensee may not, intentionally or unintentionally, use the Newslever Service or permit the Newslever Service to be used in any manner which violates any local, state, national, or international law, including, but not limited to, statutes regulating or prohibiting unsolicited e-mail, statutes requiring accuracy in routing, subject, or sender information, and statutes requiring working opt-out mechanisms. Licensee agrees to fully comply with the CAN-SPAM Act of 2003 and the Telephone Consume Protection Act, and specifically acknowledges having sole responsibility for maintaining knowledge of and adhering to all applicable state and federal laws. Licensee may not use the Newslever Service or permit the Newslever Service to be used to transmit messages or content that threaten, incite or encourage bodily harm, violence, vandalism, or destruction or to transmit any e-mail messages that harass any person or entity, or for any activity which impairs the ability of others to use the internet, computer systems, or networks. This includes, but is not limited to, the intentional or unintentional overload of third-party systems. Licensee agrees not to use the software in any situation where significant damage or injury to persons, property or business could occur.
N NO EVENT SHALL NEWSLEVER BE LIABLE UNDER ANY LEGAL OR EQUITABLE THEORY (INCLUDING, WITHOUT LIMITATION, CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE) ARISING OUT OF THE USE OF OR INABILITY TO USE THE LICENSED SOFTWARE, THE INTERACTIVE AREAS, ANY FACTS OR OPINIONS APPEARING ON OR THROUGH ANY OF THE INTERACTIVE AREAS, ANY THIRD PARTY COMMUNICATIONS OR ANY OTHER SUBJECT MATTER OF THE AGREEMENT, FOR ANY (I) INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, BUSINESS INTERRUPTION, LOSS OF INFORMATION, ATTORNEY’S FEES OR OTHER PECUNIARY LOSS), (II) MATTER BEYOND ITS REASONABLE CONTROL, (III) COST OF PROCUREMENT OF SUBSTITUTE GOODS, TECHNOLOGY, SERVICES OR RIGHTS OR (IV) ANY AMOUNT IN EXCESS OF THE AMOUNT ACTUALLY RECEIVED BY NEWSLEVER FROM LICENSEE FOR THE NEWSLEVER SERVICE LICENSED HEREUNDER. THE FOREGOING LIMITATIONS SHALL APPLY EVEN IF LICENSEE SHALL HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES. TO THE EXTENT THE FOREGOING LIMITATION OF LIABILITY IS PROHIBITED OR FAILS IN ITS ESSENTIAL PURPOSE, NEWSLEVER'S SOLE OBLIGATION TO LICENSEE FOR DAMAGES SHALL BE LIMITED TO $100.00.
Newslever shall not be liable for any failure of the Newslever Service to perform or any delay in performance of the same where such failure or delay is occasioned by force majeure including, but not limited to, an act of God, an act of government, fire, embargo, labor strike, terrorism, or interruption of electrical or telecommunications service, or any other circumstances beyond Newslever's control which shall prevent Newslever from providing the Newslever Service in the normal and usual course of its business.
Licensee shall indemnify, defend and hold Newslever harmless from and against any and all losses, liabilities, claims, obligations, costs and expenses (including reasonable attorneys’ fees), which result from, arise in connection with or are related in any way to any use or misuse of the Newslever Service by Licensee or any breach by Licensee of any of its obligations hereunder. Newslever shall have the right, but not the obligation, to control the defense and settlement of any such action using attorneys of its own selection, and to be promptly reimbursed by Licensee upon demand for all costs and expenses incurred in defending and resolving any such claims.
The initial term of the Agreement shall be as set forth in the Ordering Document (together with any period of extension under this section the “Initial Term”). The Agreement is not cancellable and shall remain in effect until it expires or is earlier terminated according to its terms. The Agreement shall automatically renew for subsequent periods of time equal in duration to the Initial Term (each, a “Renewal Term”, and together with the Initial Term, the “Term”), and the Term shall continue thereafter until the Agreement is terminated as set forth in this section; provided, however, that either party may cancel such automatic renewal if it gives written notice of non-renewal to the other party at least 30 days prior to the expiration of the Initial Term or the Renewal Term, as the case may be. Any termination of the Agreement shall also concurrently terminate the License granted hereunder. All accrued rights to payment shall survive termination of the Agreement. Except as otherwise expressly provided herein, the terms of the Agreement shall survive termination. Notwithstanding anything else herein, the Licensee’s failure to pay any amounts due to Newslever within 30 days after such amounts come due shall be grounds for the immediate termination of the Agreement by Newsever. Termination is not an exclusive remedy of Newslever, and all other remedies will be available to Newslever whether or not termination occurs.
The Agreement constitutes the entire agreement between Licensee and Newslever pertaining to the subject matter hereof, and supersedes any and all written or oral agreements with respect to such subject matter. The Agreement shall be governed by and construed in accordance with the laws of the State of New Jersey. The state and federal courts located in or having jurisdiction over Passaic County in the State of New Jersey shall have exclusive jurisdiction over disputes arising hereunder. The Agreement may be amended only by a writing executed by both parties. If any provision of the Agreement is held to be unenforceable for any reason, such provision shall be reformed only to the extent necessary to make it enforceable. The failure of Newslever to act with respect to a breach of the Agreement by Licensee or others does not constitute a waiver and shall not limit Newslever's rights with respect to such breach or any subsequent breaches. The Agreement is personal to Licensee and may not be assigned or transferred for any reason whatsoever (including, without limitation, by operation of law, merger, reorganization, or as a result of an acquisition or change of control involving Licensee) without Newslever's written consent and any action or conduct in violation of the foregoing shall be void and without effect. Newslever expressly reserves the right to assign the Agreement and to delegate any of its obligations hereunder. The Agreement may be signed in counterparts, any one of which will be deemed to be an original and all of which, when taken together, will constitute one and the same agreement. Delivery of an executed counterpart of a signature page of the Agreement by telephone facsimile and/or electronic mail transmission will be effective as delivery of a manually executed counterpart of the Agreement.
Version: August 8, 2024
