GRIZZLY ANALYTICS CLIENT AGREEMENT – INDIVIDUAL REPORTS
This Grizzly Analytics Analysis Report Service Agreement (‘Subscription Terms’) is entered into by you and Grizzly Analytics LLC (Provider) regarding the purchase of a Grizzly Analytics research report (the ‘Service’) as further described (collectively, the ‘Agreement’). ‘You’ or ‘your’ means the individual or entity listed on the account you create (Client) and you represent you have the authority to agree to this Agreement for that party. You represent and warrant you are authorized to act on behalf of, and bind to this Agreement, any third party for which you utilize the Service. By registering for the Service, you are consenting to become a party to this Agreement and agreeing to be bound by the Terms herein. If you do not accept and agree to all the Terms, please discontinue the registration process.
WHEREAS, Provider is in the business of providing research and analysis services to its customers through sale of analysis reports; and
WHEREAS, Client, on the terms and conditions set forth herein, desires Provider to provide such services.
NOW, THEREFORE, in consideration of the agreements set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows:
I. The Service
Provider will furnish Client with a research report selected by the Client, from among the Provider's set of reports known as Grizzly Analytics Analysis Reports, to allow Client to monitor and understand technology developments in the industry of choice (e.g., mobile) in the specific subject of choice covered by the selected report.
The Provider's analysis and other reported material
is based on material collected using established search engines and Provider’s
proprietary filtering and analysis methodologies. Provider shall deliver the purchased
report by e-mail to the e-mail address designated by the Client.
II. Term and Termination
The delivery of Services to Client by Provider will commence within three (3) working days immediately after the Effective Date.
III. Fees and Billing
In consideration of Provider providing the Services and delivering to Client the selected report, Client agrees to pay Provider, by valid credit card, using the on-line PayPal service, or through invoicing payable by credit card or check, the charge established and confirmed at the time of subscription. In the event Provider is unable to successfully charge Client’s credit card via EFT, or an invoice is not paid within thirty (30) days after the date of delivery of such invoice, Provider reserves the right to terminate or suspend Client’s access to the Services. Services (the selected report) will be delivered to the Client by the Provider as soon as possible after receipt of payment, within three (3) working days of such receipt of payment. Fees paid for Services are non-refundable.
IV. Service good faith
a. Provider shall use good faith efforts to provide comprehensive and accurate Services. However, Provider cannot assure that all relevant information will be found or delivered, or that irrelevant information will not be delivered. Delivery of the Services may be delayed due to scheduled or unscheduled maintenance or factors beyond Provider’s control, and Provider’s delay in delivering the Services in such event or events shall not constitute a breach of this Agreement.
V. Client’s Acknowledgments and Agreements
a. Client acknowledges that Provider aggregates and distributes, but does not generate, the source material content underlying the Services, and that Grizzly Analytics Reports furnished by Provider may include opinions of others and may contain inaccuracies or libelous material. Analysis of said content by Grizzly Analytics analysts are the opinions or conclusions of Grizzly Analytics, and are not represented as fact or certainty.
b. Client understands and acknowledges that the Grizzly Analytics Reports are for internal review, analysis, and research only, and Client agrees, represents, and warrants to not redistribute Grizzly Analytics Reports, in whole or in part, to others, or publish, broadcast, or sell any material received hereunder, or in any manner infringe on any copyrights or proprietary interests of any third party from which data or other information contained in any Grizzly Analytics Report was generated.
c. Client agrees to indemnify, defend, and hold harmless Provider, its owners, employees, governing persons, affiliates, agents, successors, assigns, and attorneys from and against any and all claims, suits, demands, actions, proceedings, costs, damages, expenses (including, but not limited to, legal fees and out-of-pocket expenses) and losses incurred by any of such parties arising out of or related to or occurring in connection with Client’s breach or alleged breach of any of its obligations arising out of or in connection with this Agreement, including Client’s publication, transmission, delivery, or other use of any information or material contained in any Grizzly Analytics Report furnished to Client pursuant to this Agreement. Upon written request from Provider, Client shall promptly defend or settle such claim, suit, demand, action, or proceeding at Client’s sole expense through counsel reasonably acceptable to Provider; provided, however, Client may not settle or compromise any claim without the prior written consent of Provider, which consent shall not be unreasonably withheld. In the event Client elects, for any reason or for no reason, not to defend any claim hereunder, Provider may settle, compromise, or defend such claim, and shall be entitled to recover from Client the amount of any final settlement or judgment, as well as all costs and fees incurred by Provider in connection with such settlement or defense, including reasonable attorney’s fees and expenses. The foregoing notwithstanding, nothing herein shall prevent Provider, in its sole discretion, from defending or settling any such claim, suit, demand, action, or proceeding at its own expense and through its own counsel. The indemnification obligations set forth in this section shall survive the termination or expiration of this Agreement.
d. Client shall pay all amounts due upon receipt of any invoice from Provider for Services rendered hereunder, or, in the event Client authorizes Provider to debit via EFT Client’s credit card on the first day of each month, to provide Provider with a valid credit card with sufficient credit to effect each such EFT transfer.
VI. Disclaimers and Limited Warranties
a. Provider shall make good-faith effort, but shall not be required hereunder, to substantiate the truthfulness of any Grizzly Analytics Report, and Provider does not endorse, warrant, attest to, or make any judgment about the content of any Grizzly Analytics Report.
b. PROVIDER MAKES NO WARRANTY HEREUNDER OF ANY KIND, EXPRESS OR IMPLIED, TO CLIENT WITH RESPECT TO THE SERVICES AND/OR THE CONTENTS OF ANY GRIZZLY ANALYTICS REPORT. PROVIDER EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. PROVIDER EXPRESSLY DISCLAIMS RESPONSIBILITY FOR THE ACCURACY, TIMELINESS, OR ADEQUACY OF THE SERVICES OR THE INFORMATION FURNISHED HEREUNDER PURSUANT TO ANY GRIZZLY ANALYTICS REPORT. CLIENT AGREES THAT IN NO EVENT SHALL PROVIDER BE LIABLE FOR ANY LOSS OR DAMAGES ARISING FROM THE USE OF THE SERVICES OR RELIANCE ON THE CONTENT OF ANY GRIZZLY ANALYTICS REPORT.
VII. Limitation of Liability
BECAUSE CLIENT IS ACQUIRING THE SERVICES FOR INTERNAL USE ONLY, AND BECAUSE PROVIDER IS ACTING SOLELY AS AN AGGREGATOR AND SPECULATIVE ANALYST OF CONTENT EXISTING ON THE WORLD WIDE WEB, IN NO EVENT WILL PROVIDER BE LIABLE TO CLIENT FOR ANY DAMAGES INCLUDING, WITHOUT LIMITATION, ANY DIRECT OR INDIRECT DAMAGES, WHETHER FORESEEABLE OR NOT, OF ANY KIND, INCLUDING WITHOUT LIMITATION, LOST PROFITS, LOSS OF GOODWILL, LOSS OF OR DAMAGE TO DATA, SOFTWARE, OR HARDWARE, LOSS OF USE OF PRODUCTS, DOWNTIME, PROPERTY DAMAGE, OR LIABILITY OF ANY KIND RELATING TO INFRINGEMENT OF THIRD PARTY INTELLECTUAL PROPERTY RIGHTS, IN EACH CASE ARISING FROM THE PROVIDING OF SERVICES HEREUNDER, EVEN IF PROVIDER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL PROVIDER BE LIABLE TO CLIENT, UNDER ANY THEORY OF LAW, WHETHER IN CONTRACT OR TORT, IN AN AMOUNT GREATER THAN THE AGGREGATE AMOUNT OF THE FEES PAID TO PROVIDER HEREUNDER.
VIII. Intellectual Property Rights
Nothing contained in the Agreement is intended to convey, or shall be construed to convey, to Client any right, title or interest in or to the Services, the Grizzly Analytics Reports, or any of the software underlying the gathering of information in connection with the Services or the generation of any Grizzly Analytics Report. For all purposes of this Agreement, all right, title and interest in and to the Services and any Grizzly Analytics Report is owned exclusively by Provider.
IX. Confidential Information
a. “Confidential Information” for purposes of this Agreement includes information that (a) has been or is developed or is otherwise owned by either party hereto or any of their respective affiliates, whether developed by such party or an affiliate of such party or by any other person for or on behalf of such party or affiliate of such party, (b) is not readily available to the public and not generally ascertainable by proper means by the public, (c) if disclosed to the public, would be harmful to the interests of a party or an affiliate of a party, or (d) is treated or designated by a party hereto or an affiliate of a party hereto as being confidential.
b. Each party hereto agrees that such party will not, directly or indirectly, at any time disclose to any person, or take or use for any purpose, other than for purposes in accordance with the intent of this Agreement, any Confidential Information. The obligations of the parties in this section apply to, and are intended to prevent, the direct or indirect disclosure of any Confidential Information to any person where such disclosure of the Confidential Information would reasonably be considered to be useful to the competitors of a party or a party’s affiliates or to any other person to become a competitor based, in whole or in part, on such Confidential Information.
c. The agreement of the parties contained in this section shall survive the termination or expiration of this Agreement.
X. Miscellaneous Provisions
a. This Agreement may be assigned in whole or in part by Provider at any time. Client may not assign this Agreement without the prior written consent of Provider. A sale of all or substantially all of the assets of Client or a sale of all or a controlling interest in Client shall for all purposes hereunder be deemed an assignment of this Agreement.
b. Provider is, and for all purposes hereunder shall be deemed, an independent contractor, and not an agent, partner or joint venturer of Client. Neither party shall make any warranties or representations of any kind, express or implied, to third parties in the name of the other party, nor shall any party hereunder assume or create, or attempt to assume or create, any obligation of any kind on behalf of the other party.
c. Accessing or using the Services signifies the acceptance of this Agreement by Client.
d. No delay or omission by either party in exercising any right under this Agreement will operate as a waiver of that or any other right. A waiver or consent given by a party on any one occasion is effective only on that occasion, and shall not be construed as a waiver of that right or consent as to any other occasion or any other breach. No course of dealing between the parties will give rise to any implied amendment or waiver.
e. If any provision of this Agreement is found to be unenforceable or invalid, such provision shall be modified to the least extent necessary to make it enforceable or valid, and the remaining provisions of this Agreement will remain in full force and effect.
f. Neither party shall be in default by reason of failure in performance of this Agreement if such failure arises, directly or indirectly, out of causes beyond the reasonable or foreseeable control of either party, including but not limited to, default by suppliers, acts of God, acts of terrorism or the public enemy, U.S. or foreign governmental acts in either a sovereign or contractual capacity, transportation contingencies, fire, flood, epidemic, restrictions and strikes.
g. This Agreement shall be exclusively governed by, and construed in accordance with, the laws of the State of
h. ANY PARTY BRINGING A LEGAL ACTION OR PROCEEDING AGAINST ANOTHER PARTY FOR THE RESOLUTION OF ANY DISPUTE ARISING IN CONNECTION WITH THE INTERPRETATION, CONSTRUCTION, OR ENFORCEMENT OF THIS AGREEMENT SHALL BRING SUCH LEGAL ACTION OR PROCEEDING IN ANY COURT OF THE STATE OF DELEWARE OR ANY FEDERAL COURT HAVING JURISDICTION OVER THE STATE OF DELEWARE. EACH PARTY HERETO AGREES TO SUBMIT TO THE EXCLUSIVE PERSONAL JURISDICTION AND VENUE OF THE STATE AND FEDERAL COURTS HAVING JURISDICTION OVER THE STATE OF DELEWARE, FOR THE RESOLUTION OF ALL DISPUTES ARISING IN CONNECTION WITH THE INTERPRETATION, CONSTRUCTION, AND ENFORCEMENT OF THIS AGREEMENT, AND HEREBY WAIVES THE CLAIM OR DEFENSE THEREIN THAT SUCH COURTS CONSTITUTE AN INCONVENIENT FORUM. EACH PARTY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION THAT IT MAY NOW OR LATER HAVE TO THE LAYING OF VENUE OF ANY LEGAL ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT BROUGHT IN ANY SUCH COURTS.
i. If litigation, or any form alternative dispute resolution, is necessary to enforce the terms of this Agreement, the prevailing party will be entitled to recover its reasonable attorneys’ fees and costs, court costs, and costs of any alternative dispute resolution.
j. This Agreement may be executed in counterparts, including without limitation by facsimile or electronic signature, each of which shall be deemed an original, and all of which, taken together, shall constitute one and the same agreement.
k. This Agreement may not be amended except by an instrument in writing signed by a duly authorized representative of each party hereto.
l. Any and all notices, requests, claims, demands and other communications required or permitted hereunder shall be in writing and shall be given (and shall be deemed to have been duly given upon receipt) by delivery in person, by facsimile, by nationally recognized overnight courier, or by express, registered or certified mail to the respective party at the address or facsimile number first set forth above (or at such other address as a party shall specify in a written notice given in accordance with this paragraph).
m. This Agreement, together with any attachments referred to herein, constitutes the entire agreement between the parties with respect to the delivery of Services, including the delivery hereunder of any Grizzly Analytics Report, and supersedes all prior or contemporaneous agreements, proposals, negotiations, representations or communications, whether written or oral, relating to such subject matter. The parties acknowledge and agree that they have not been induced to enter into this Agreement by any representations or promises not specifically stated herein.