These terms govern your access and use of Empirical Justice’s Services, as that term is defined below. “We”, “our” “EJ” and “Empirical Justice” means Empirical Justice, Inc.; “you” and “your” means the client, customer or subscriber agreeing to or accepting these terms. Your Ordering Document identifies the Services, quantities, charges and other details of your order. The applicable Ordering Document may also refer to and incorporate documents which may apply to the Services you selected. Each Ordering Document, any applicable incorporated documents and these terms constitute the complete agreement (the “Agreement”) and supersede any prior or contemporaneous discussions, agreements, representations or warranties regarding your order. Other terms and conditions you incorporate in any purchase order or otherwise are not part of the Agreement and do not apply. If you are permitted to provide an affiliate with access to any part of the Services, you will ensure that such affiliate complies with all provisions of the Agreement applicable to you.

 

1.        DEFINITIONS

1.1.      “Documentation” means manuals, handbooks, guides and other user instructions, documentation and materials available through the product or provided by us regarding the capabilities, operation, and use of our Services.

1.2.      “Professional Services” means the implementation, customization, training, consulting or other professional services we provide, as may be described in the applicable Ordering Document.

1.3.      “Property” means our property, which includes but is not limited to our products, Services, information, Documentation, data (whether tangible or intangible) and Usage Information.

1.4.      “Services” means the software-as-a-service, online research services, Professional Services, as well as any products supplied by Empirical Justice under the Agreement that are detailed in the applicable Ordering Document.

1.5.      “Usage Information” means (i) data and information related to your use of our Property which is aggregated and anonymized, including statistical compilations and performance information related to the provision and operation of our Property and (ii) any information, data, or other content derived from your access to or use of the Services, but does not include Your Data.

1.6.      “Your Data” means, other than Usage Information, information, data, and other content, in any form or medium, that is submitted, posted, or otherwise transmitted by you or on your behalf through the Services.

2.        IP OWNERSHIP; LICENSES & DELIVERY

2.1.      Reservation of Rights. Together with our licensors, we reserve all rights not expressly granted under the Agreement. Except for the limited rights and licenses expressly granted herein, nothing in the Agreement grants, by implication, waiver, estoppel, or otherwise, to you or any third party any intellectual property rights or other right, title, or interest in or to our Property.

2.2.      Services License. Subject to the terms and conditions of the Agreement, we hereby grant you a non-exclusive, non-sublicensable, non-transferable right to access, view, and use our Services solely for your own internal business purposes.

2.3.      Documentation License. Subject to the terms and conditions contained in the Agreement, where Documentation is available, we hereby grant you a non-exclusive, non-sublicensable, non-transferable license to use such Documentation solely for your internal business purposes and in connection with your use of our Services.

2.4.      Limited License to Your Data. You hereby grant us a non-exclusive license and right to use, copy, store, host, display, transmit and process Your Data solely as necessary for Empirical Justice, our employees and contractors to provide our Services under the Agreement and in accordance with applicable law. We may delete or disable Your Data if required under applicable law, in which case we will use our reasonable efforts to provide notice to you.

2.5.      Delivery. We will deliver our Services and any Documentation electronically, on tangible media, or by other means, in our sole discretion. When you download or access our Services or Documentation, you are accepting it for use in accordance with the Agreement.

3.        OUR SERVICES

3.1.   Changes to Service. Our Services may change from time to time, but we will not change their fundamental nature. Certain Services include updates (bug fixes, patches, maintenance releases). Upgrades (releases or versions that include new features or additional functionality) or any application programming interfaces (“APIs”) may be subject to additional charges.

3.2.   Passwords. Your access to certain Services is password protected. You are responsible for ensuring that passwords are kept confidential. Sharing passwords is strictly prohibited. Each of us shall maintain industry standard computing environments to ensure that both your and our property is secure and inaccessible to unauthorized persons.

3.3.   Unauthorized Technology. Unless prior written authorization is given by Empirical Justice, you must not (i) run or install any computer software or hardware on our Services or network; (ii) mine, scrape, index, or automatically download our data; or (iii) automatically connect (whether through APIs or otherwise) our data to other data, software, services or networks. Neither of us will knowingly introduce any malicious software or technologies into any products, services or networks.

3.4.   Use Restrictions. You shall not use our Property or permit a third party to use our Property for any purposes beyond the scope of the access granted herein. Unless otherwise expressly permitted in the Agreement, you may not and you may not permit a third party to: (i) sell, license, sublicense, distribute, publish, display, store, copy, modify, decompile, decode or disassemble, reverse engineer, remove any proprietary notices, translate or transfer our Property in whole or in part, or as a component of any other product, service or material; (ii) use our Property or our third-party providers’ property to train any artificial intelligence (AI) or machine learning algorithms or software or create any derivative works, compilations or collective works or in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law; or (iii) allow any third parties to access, use or benefit from our Property in any way. Notwithstanding the foregoing, you may (a) download and print limited extracts of content from our Services solely for your own internal business purposes and (b) on an infrequent, irregular and ad hoc basis, distribute limited extracts of content from our Services; provided that, in either case, (1) such extracts do not reach such quantity as to have commercial value and you do not use such extracts as a substitute for any Services and (2) Empirical Justice and any third-party content provider, if applicable, is cited and credited as the source. Exercising legal rights that cannot be limited by agreement is not precluded. Only if you are in the business of providing audit, tax, or accounting services, or legal advice to your clients, this Section >3.6 does not preclude you from using our Services to benefit your clients in the ordinary course of your business in accordance with the Agreement. Except as expressly set forth in the Agreement we retain all rights and you are granted no rights in or to our Property.

3.5.   Security. Each of us will use and will require any subcontractors to use industry standard organizational, administrative, physical and technical safeguards to protect the other’s data. Each party will inform the other in accordance with applicable law if such party becomes aware of any unauthorized third-party access to the other party’s data and will use reasonable efforts to remedy identified security vulnerabilities.

3.6.   Compliance. Each of us shall at all times comply with applicable law, including export controls and economic sanctions that apply to us in connection with the Agreement. You warrant that you are not affiliated with any individual or entity that will cause you to be in violation of this section.

3.7.   Your Responsibilities. You are responsible for (i) proper use of our Property in accordance with all Documentation, usage instructions and operating specifications; (ii) adherence to the minimum recommended technical requirements; (iii) changes you make to our Services or data; (iv) your combination of our Property with any other products, services, data or other property; (v) implementing and maintaining proper and adequate virus or malware protection and proper and adequate backup and recovery systems; and (vi) installing updates.

4.        CHARGES

4.1.   Payment and Taxes. You must pay our charges within 30 days of the date of invoice in the currency stated on the applicable Ordering Document. An Empirical Justice affiliate may act as a billing and collection agent for the Empirical Justice entity listed on the applicable Ordering Document. For online purchases, you authorize us to charge you for charges stated in the applicable Ordering Document via credit card, debit card, or Automated Clearing House (“ACH”) or any other method you have agreed to in advance. If you are a non-government subscriber and you fail to pay your invoiced charges, you are responsible for collection costs including legal fees. You must also pay applicable taxes and duties, other than taxes on our income, in addition to the price quoted, unless you provide valid proof that you are exempt. Invoice disputes must be notified within 15 days of the date of the invoice.

4.2.   Changes. We may increase, or adjust the basis for calculating, the charges for our Services with effect from the start of each renewal term by giving you at least 60 days written notice; any other price changes or adjustments will be as set out in your Ordering Document.

4.3.   Excess Use. You must pay additional charges if you exceed the scope of use specified in the applicable Ordering Document, based on the rates specified on the applicable Ordering Document or our current standard pricing, whichever is greater. We may change the charges if you merge with, acquire or are acquired by another entity which results in additional access to our Services or data.

5.        PRIVACY

The parties agree that the terms of the Privacy Policy available at: Privacy Policy Link shall apply to the extent Empirical Justice Processes Customer Personal Data (as those terms are defined in the Privacy Policy), in which case the Privacy Policy is hereby incorporated into the Agreement by this reference.

6.        CONFIDENTIALITY

Each party agrees to (i) protect any confidential information received from the other party using the same standard of care it uses to protect its own confidential information (which shall be no less than a reasonable degree of care) and (ii) not disclose any part of it to any third party except to its affiliates, contractors, financial advisors, accountants and attorneys who are subject to confidentiality duties or obligations to the recipient that are no less restrictive than the terms and conditions of the Agreement. If a court or government agency orders either of us to disclose the confidential information of the other, the other will be promptly notified so that an appropriate protective order or other remedy can be obtained unless the court or government agency prohibits prior notification. These obligations of confidentiality do not apply to information which: (a) is or becomes generally available to the public (through no act or omission of the receiving party); (b) becomes known to the receiving party on a non-confidential basis through a third party who is not subject to an obligation of confidentiality with respect to that information; (c) was lawfully in the possession of the receiving party prior to such disclosure as established by documentary evidence; or (d) is independently developed by the receiving party, as established by documentary evidence, without reference to or use of, in whole or in part, any of the disclosing party's confidential information. This section shall survive three (3) years after the termination of the Agreement or until the confidential information is no longer deemed confidential under applicable law, whichever occurs first.

7.        WARRANTIES AND DISCLAIMERS

7.1.   Limited Warranty. Except with respect to installed software or professional services, we warrant that properly licensed services will materially conform to any documentation that accompanies the services. This limited warranty applies for the duration of the term. Your only remedy in the event we breach this limited warranty shall be the repair or replacement of the services at no charge. This limited warranty does not cover problems caused by your failure to adhere to instructions or caused by events beyond our reasonable control.

7.2.   Professional Services. We warrant that we will provide any professional services using reasonable skill and care.

7.3.   Disclaimer of Warranties. The foregoing warranties do not apply, and we strictly disclaim all warranties, with respect to any third-party data or third-party software. Except for the limited warranties provided in sections >7.1>, >7.2>, and >7.3> herein, our services are provided “as is”, and all warranties, conditions and other terms implied by statute or common law including, without limitation, warranties or other terms as to suitability, merchantability, satisfactory quality and fitness for a particular purpose, are excluded to the maximum extent permitted by applicable law. In entering the agreement, neither party has relied upon any statement, representation, warranty or agreement of the other party except for those expressly contained in the agreement. Unless otherwise expressly stated in the agreement, and to the fullest extent permissible under applicable law, we do not warrant or represent or include any other term that the services will be delivered free of any inaccuracies, interruptions, delays, omissions or errors, or that any of these will be corrected, and we will not be liable for any damages resulting from such faults. We do not warrant the life of any url or third-party web service.

7.4.   No Advice. We are not providing financial, tax and accounting, legal, compliance or any other professional advice by allowing you to access and use our services, documentation or data. Your decisions made in reliance on the services, documentation or your interpretations of our data are your own for which you have full responsibility. We are not responsible for any damages resulting from any decisions by you or anyone accessing the services through you made in reliance on the services, including financial, tax and accounting, legal, compliance, or any other professional advice. You agree that you use the services at your own risk in these respects. You are solely responsible for the preparation, content, accuracy and review of any documents, data, or output prepared or resulting from the use of any services and for any decisions made or actions taken based on the data contained in or generated by the services.

8.        LIABILITY

8.1.   Limitation. Each party’s or any of its third party providers’ entire liability in any calendar year for damages arising out of or in connection with the agreement, including for negligence, will not exceed the amount payable in the prior 12 months for the service that is the subject of the claim for damages (or, if the claim is made within the first 12 months, 12 times the average of the monthly charges paid). In no event shall we or our third-party providers be liable for any penalties, interest, taxes or other amounts imposed by any governmental or regulatory authority. Neither party is liable to the other for indirect, incidental, punitive, special or consequential damages, for loss of data, or loss of profits (in either case, whether direct or indirect) even if such damages or losses could have been foreseen or prevented.

8.2.   Unlimited Liability. Section >8.1> does not limit either party’s liability for (i) fraud, fraudulent misrepresentation, willful misconduct, or conduct that demonstrates reckless disregard for the rights of others; (ii) negligence causing death or personal injury; or (iii) infringement of intellectual property rights. Section >8.1> does not limit your indemnification obligations in Section >8.4> or your obligation to pay the charges on the applicable Ordering Document and all amounts for use of the Services that exceed the usage permissions and restrictions granted to you. Nothing in the Agreement limits liability that cannot be limited under law.

8.3.   Third Party Intellectual Property. If a third party sues you claiming that our Services, excluding any portions of the same provided by our third-party providers, infringes their intellectual property rights, and your use of such Services has been in accordance with the terms of the Agreement, we will defend you against the claim and pay damages that a court finally awards against you or that are included in a settlement approved by Empirical Justice, provided the claim does not result from: (i) a combination of all or part of our Services with technology, products, services or data not supplied by Empirical Justice; (ii) modification of all or part of our Services other than by Empirical Justice or our subcontractors; (iii) use of a version of our Services after we have notified you of a requirement to use a subsequent version; or (iv) your breach of the Agreement. Our obligation in this Section >8.3 is conditioned on you (1) promptly notifying Empirical Justice in writing of the claim; (2) supplying information we reasonably request; and (3) allowing Empirical Justice to control the defense and settlement.

8.4.   Your Obligations.You are responsible for any loss, damage or cost we and our affiliates incur arising out of or in connection with a third-party claim, or a regulatory fine or penalty, connected to: (i) an allegation that our or our affiliates’ use of the information, data, software, or other materials provided to us by you or on your behalf, which we are required to host, use or modify in the provision of our Services infringes the intellectual property rights of a third party (except to the extent of any indemnity we provide you under Section >8.3 (Third Party Intellectual Property); (ii) your or your subcontractors’ use of our Property in breach of the Agreement or in violation of applicable law; (iii) our or our affiliates’ compliance with any instruction given by you to us in the course of the provision of our Services; or (iv) an assertion by any person accessing or receiving the benefit of any part of our Services through you.

8.5.   Customer Assistance.We will not be responsible if our Service fails to perform because of your third-party software, your hardware malfunction, or your actions or inaction.

9.        TERM, TERMINATION

9.1.   Term. The term and any renewal terms for the Services are described in the applicable Ordering Document. If not otherwise stated in the applicable Ordering Document, the Agreement will automatically renew annually unless either of us gives the other at least 30 days written notice before the end of the then current term.

9.2.   Suspension. We may on notice terminate, suspend or limit your use of any portion or all of our Services if (i) requested to do so by a third-party provider, court or regulator; (ii) you become or are reasonably likely to become insolvent; or (iii) there has been or it is reasonably likely that there will be: a breach of security; a breach of your obligations under the Agreement or another agreement between us; a breach of our agreement with a third-party provider; or a violation of third party rights or applicable law. Our notice will specify the cause of the termination, suspension or limitation and, if the cause of the termination suspension or limitation is reasonably capable of being remedied, we will inform you of the actions you must take to reinstate the Service. If you do not take the actions or the cause cannot be remedied within 30 days, we may suspend, limit or terminate the Agreement in whole or in part. Charges remain payable in full during periods of suspension or limitation arising from your action or inaction.

9.3.   Termination. We may, upon reasonable notice, terminate all or part of the Agreement in relation to a Service which is being discontinued. Either of us may terminate the Agreement immediately upon written notice if the other commits a material breach and fails to cure the material breach within 30 days of being notified to do so. Any misrepresentation by you or failure to fully pay any amount when due under the Agreement is a material breach for this purpose. Where (i) we terminate a Service, other than for a termination for your breach pursuant to this Section >9.3 or a termination for your insolvency pursuant to Section >9.2, or (ii) you terminate a Service for our breach pursuant to this Section >9.3, you will be entitled to a pro rata refund of any prepaid unused recurring charges for the terminated Service.

9.4.   Effect of Termination. Except to the extent we have agreed otherwise, upon expiration or termination of the Agreement, all licenses and rights granted herein shall end immediately and you must uninstall or destroy all of our Property. Additionally, upon expiration or termination, at your request, we will, at our discretion, either return or destroy your confidential information, except as may be required for archival or compliance purposes. Termination of the Agreement will not (i) relieve you of your obligation to pay Empirical Justice or its agent any amounts you owe up to and including the date of termination; (ii) affect other accrued rights and obligations; or (iii) terminate those parts of the Agreement that by their nature should continue or those that expressly state shall survive termination.

9.5.   Amendments.We may modify the Agreement at any time by posting the updated Agreement at Terms and Conditions. Modified terms become effective 30 days after posting. By using the Services after the effective date, you agree to be bound by the most recent version of the Agreement. You are responsible for reviewing and becoming familiar with any such modifications.

9.6.   Force Majeure. We are not liable for any damages or failure to perform our obligations under the Agreement because of circumstances beyond our reasonable control. If those circumstances cause material deficiencies in the Services and continue for more than 30 days, either of us may terminate any affected Service on written notice to the other.

10.     THIRD PARTY RIGHTS

Our third-party providers benefit from our rights and remedies under the Agreement. Except for our third-party providers, no other third parties have any rights or remedies under the Agreement.

11.     GENERAL

11.1.   Assignment. You may not assign, delegate or otherwise transfer the Agreement (including any of your rights or remedies) to anyone else without our prior written consent. We may assign, delegate or otherwise transfer the Agreement (including any of our rights or remedies) in whole or in part to an affiliate or any entity that succeeds to all or substantially all of the assets or business associated with our Property. We may subcontract any of the Services in our sole discretion. Any assignment, delegation or other transfer in contravention of this Section >11.1is void.

11.2.   Feedback. You may voluntarily provide any comments, suggestions, ideas or recommendations (collectively, “Feedback”) to Empirical Justice, and if so, you grant Empirical Justice a perpetual, irrevocable, transferable, non-exclusive right, without charge, to use any Feedback you provide related to any of our Property in any manner and for any purpose.

11.3.   Agreement Compliance. We or our professional representatives may review your compliance with the Agreement throughout the term of the Agreement. If the review reveals that you have exceeded the authorized use permitted by the Agreement, you will pay all unpaid or underpaid charges.

11.4.   Governing Law. Unless otherwise stated in the applicable Ordering Document, the Agreement will be governed by the laws of the State of New York and each of us hereby irrevocably submits to the exclusive jurisdiction of the federal and state courts of the State of New York located in New York County to settle all disputes or claims arising out of or in connection with the Agreement.

11.5.   Precedence. The descending order of precedence is: third party license terms that we have agreed to; the applicable Ordering Document; and the remaining provisions of the Agreement.

11.6.   Trials. All trials of our Services are subject to the terms of these General Terms and Conditions, unless we notify you otherwise. Access to our Services for trials may only be used for your evaluation purposes. Unless we agree otherwise in writing, any data you enter into the Services, and any customizations made to the Services by or for you, during any free trial may be permanently destroyed at the end of the trial.

11.7.   Support Provided.To assist in resolving technical problems with the Services, Empirical Justice, or its agents on behalf of Empirical Justice, may provide telephone and/or online access to its helpdesk or may provide self-help tools.

11.8.   No Waiver.If either party delays or fails to exercise any right or remedy under the Agreement, it will not have waived that right or remedy.

11.9.   Severability.If any part of the Agreement that is not fundamental is illegal or unenforceable, it will be deemed modified to the minimum extent necessary to make it legal and enforceable. If such modification is not possible, the part will be deemed deleted. Any such modification or deletion will not affect the validity and enforceability of the remainder of the Agreement.

11.10.Consent to Electronic Communications. You hereby consent to receiving electronic communications from us. These electronic communications may include notices about applicable fees and charges, transactional information, and other information concerning or related to the Services.

11.11.Entire Agreement and Non-Reliance.The Agreement contains the entire understanding between us regarding its subject matter and supersedes all prior agreements, understandings, negotiations, proposals and other representations, verbal or written, in each case relating to such subject matter, including without limitation any terms and conditions appearing on a purchase order or other form(s) used by you. Each of us acknowledges that in entering into the Agreement neither of us have relied on any representations made by the other that are not expressed in the Agreement.