NOTICE: THE FOLLOWING TERMS AND CONDITIONS APPLY TO YOUR USE OF THE TacticalFlowMeter.com ONLINE SERVICES IF YOU ARE AN AUTHORIZED USER IN AN ORGANIZATION THAT HAS ACCEPTED THESE TERMS IN WRITING. OTHERWISE, YOUR USE OF THE ONLINE SERVICES IS SUBJECT TO THE TERMS AND CONDITIONS EXECUTED BETWEEN YOUR ORGANIZATION AND TacticalFlowMeter.com.
TERMS & CONDITIONS FOR USE OF THE ONLINE SERVICES
April 11, 2016
The terms and conditions listed below govern use of the online services (the “Online Services”) and materials available therein (“Materials”) provided by TacticalFlowMeter.com, a division of Take 5, Inc. and its affiliated companies (collectively “TFM”). The terms “you” and “your” in uppercase or lowercase shall mean the entity (e.g., company, corporation, partnership, sole proprietor, etc.) or government agency entering into a Subscription Agreement with TFM. The “Subscription Agreement” shall consist of these General Terms and Conditions, and the standard, transactional rates applicable to you (the “Price Schedule”).
- GRANT OF RIGHTS; RESTRICTIONS ON USE
1.1 You and your Authorized Users (defined below in Section 2.1) are granted a nonexclusive, nontransferable, limited right to access and use for research purposes the Online Services and Materials made available to you. The rights granted to each Authorized User are as follows:
(a) The right to electronically display Materials retrieved from the Online Services for the Authorized User’s individual use (e.g., no Authorized User may network others via LANs, WANs, intranets or the Internet). Notwithstanding the foregoing, an Authorized User may display a de minimis amount of the Materials on an incidental, infrequent basis for non-commercial purposes to other Authorized Users so long as the Authorized Users are in the same physical location and the mode of display is not through the Internet, an intranet or other types of networking communication like LANs or WANs;
(b) The right to email, fax, download or make printouts using the commands of the Online Services and the right to create a single printout of Materials accessed or downloaded by any other means (collectively, “Authorized Printouts”);
(c) With respect to Materials that are court cases, court rules, court briefs, agency issued documents, agency regulations or executive branch materials from the United States, its states, local governments, or territories (collectively, “Authorized Legal Materials”), the right to download using the commands of the Online Services and store in machine-readable form, primarily for that Authorized User’s exclusive use, a single copy of insubstantial portions of those Authorized Legal Materials included in any individually searchable file or content source in the Online Services to the extent the storage of those Authorized Legal Materials is not further limited or prohibited by the Supplemental Terms. The storage may continue so long as the Authorized Legal Materials are needed for purposes contemplated under this Subscription Agreement;
(d) With respect to all Materials other than Authorized Legal Materials, the right to download using the commands of the Online Services and store in machine readable form for no more than 90 days, primarily for that Authorized User’s exclusive use, a single copy of insubstantial portions of those Materials included in any individually searchable file or content source in the Online Services, to the extent the storage of those Materials is not further limited or prohibited by the Supplemental Terms;
(e) Notwithstanding anything to the contrary herein, the right to (1) excerpt or quote insubstantial portions of Materials in documents prepared in the ordinary course of your business to the extent permitted by applicable copyright law; (2) distribute Authorized Printouts to persons who are not Authorized Users (including by emailing through the functionality of the Online Services) on an occasional, infrequent basis as permitted by applicable copyright law; and (3) store Materials for periods in excess of the periods set forth above to the extent required for legal or regulatory compliance provided all other Materials are purged promptly upon the expiration of this Subscription Agreement; and
(f) For the avoidance of doubt, downloading and storing Materials in an archival database is prohibited. The Online Services and the Materials are protected by copyright, intellectual property laws, and other laws that prevent unauthorized access and use. If you are not an Authorized User, you are not permitted to access or use the Online Services for any purpose whatsoever. If you nevertheless access and use the Online Services or Materials without authorization, your access and use will be governed by these General Terms and Conditions and you will be liable to TFM for any breach of the General Terms and Conditions as well as for unauthorized access and payment for use at the rates in the applicable Price Schedule.
1.2 To the extent permitted by applicable copyright law and not further limited or prohibited by the Supplemental Terms, you and your Authorized Users may make copies of Authorized Printouts and distribute Authorized Printouts and copies.
1.3 Except as specifically provided in Sections 1.1 and 1.2, you and your Authorized Users are prohibited from downloading, emailing, faxing, storing, reproducing, transmitting, displaying, copying, distributing, or using Materials retrieved from the Online Services. You may not exploit the goodwill of TFM, including its trademarks, service marks, or logos without the express written consent of TFM. Additionally, under no circumstances may you or any Authorized User offer any part of the Online Services or Materials for commercial resale or commercial redistribution in any medium or use the Online Services or the Materials to compete with the business of TFM.
1.4 All right, title, and interest (including all copyrights, trademarks and other intellectual property rights) in the Online Services and Materials in any medium belongs to TFM or its third party suppliers of Materials. Take 5, Group and the RE symbol are trademarks of Take 5, Intellectual Properties SA, used under license. Neither you nor your Authorized Users acquire any proprietary interest in the Online Services, Materials, or copies thereof, except the limited rights granted herein.
1.5 Neither you nor your Authorized Users may use the Online Services or Materials in any fashion that infringes the intellectual property rights or proprietary interests of TFM or any third party. Your use of the Online Services and Materials must comply with all applicable laws, rules or regulations.
1.6 Neither you nor your Authorized Users may remove or obscure the copyright notice or other notices contained in Materials.
1.7 Neither you nor your Authorized Users may use information included in the Online Services or Materials to determine an individual consumer’s eligibility for (a) credit or insurance for personal, family, or household purposes; (b) employment; or (c) a government license or benefit. The term “consumer” is defined in the United States Fair Credit Reporting Act at 15 USC §1681.
1.8 Other provisions that govern use of the Materials are set forth in the applicable Price Schedule, the Supplemental Terms, online descriptions of files, online notices following source selection, and individual documents retrieved from the Online Services (collectively, the “Additional Terms”), all of which are incorporated by reference into this Subscription Agreement.
- ACCESS TO SERVICES
2.1 Only your employees, temporary employees, students, partners/members, and contractors dedicated to performing work exclusively for you (to the extent those categories of persons are appropriate to your situation) are eligible to access and use the Online Services and Materials (“Eligible Persons”). Without limitation, external professional service providers such as attorneys, accountants, outsourcers and public relations firms are specifically excluded from being Eligible Persons. The term “Authorized User” means an Eligible Person whom you have identified to TFM for purposes of issuing an TFM ID. You agree that each TFM ID may only be used by the Authorized User to whom TFM assigns it and that the TFM ID may not be shared with or used by any other person, including other Authorized Users. You will manage your roster of Authorized Users and will promptly notify TFM to deactivate an Authorized User’s TFM ID if the Authorized User is no longer an Eligible Person or you otherwise wish to terminate the Authorized User’s access to the Online Services. You are responsible for all use of the Online Services accessed with TFM IDs issued to your Authorized Users, including associated charges, whether by Authorized Users or others. You will use reasonable commercial efforts to prevent unauthorized use of TFM IDs assigned to your Authorized Users and will promptly notify TFM, in writing, if you suspect that an TFM ID is lost, stolen, compromised, or misused. You may not access or otherwise use the Online Services if you are identified on, and You may not provide access to the Online Services to any individuals identified on, OFAC’s list of Specially Designated Nationals, the UK’s HM Treasury’s Consolidated List of Sanctions Targets, or the EU’s Consolidated List of Persons, Groups, and Entities Subject to EU Financial Sanctions.
2.2 Use of the Online Services via mechanical, programmatic, robotic, scripted or any other automated means is strictly prohibited. Unless otherwise agreed to by TFM in writing, use of the Online Services is permitted only via manually conducted, discrete, individual search and retrieval activities.
2.3 To comply with local privacy, data protection and other laws, each TFM ID is country specific and may not be used outside the country for which it is issued, except for short periods not to exceed 30 continuous days. If TFM suspects use of an TFM ID outside the country of issue for a period in excess of 30 continuous days, TFM may suspend the TFM ID or require you to use and pay for an TFM ID for the relevant country. On request, TFM will issue a geographically compliant TFM ID.
2.4 The Online Services, Materials, and feature functionality within the Online Services may be enhanced, added to, withdrawn, or otherwise changed by TFM without notice.
2.5 Subject to Section 2.4 above, the Online Services may contain a feature that will allow your Authorized Users to create work folders or work spaces (“Folders”) from within research sessions that are associated solely with their respective TFM IDs. The Folders are designed to allow your Authorized Users to save copies of Materials made available by TFM, as well as links to materials made available on the Internet or other documents that you or your Authorized Users’ own or otherwise have the right to upload to Folders. Applicable charges for the Folders are listed in the Price Schedule. TFM represents and warrants that: (a) the Folders will be under the exclusive control of your Authorized Users; and (b) TFM will not access or otherwise review the content of Folders without your authorization. Notwithstanding the foregoing, TFM may access or disclose the content of Folders to the extent necessary to facilitate features and functions of the Online Services and to comply with contractual and legal obligations including, but not limited to, an administrative or judicial proceeding. Authorized Users are solely responsible for the content of their respective Folders. You represent and warrant that the Authorized Users have the right and authority to upload any and all content to the Folders that is not provided by TFM. Authorized Users are prohibited from uploading content to the Folders that is defamatory, libelous, pornographic or obscene, unless such content is reasonably related to professional responsibilities. In addition, Authorized Users are strictly prohibited from uploading content to the Folders that is unlawful or that is considered protected health information under the Health Accountability and Portability Protection Act of 1996 (HIPAA) or the Health Information Technology for Economic and Clinical Health Act of 2009 (HITECH). You agree to indemnify, defend, and hold TFM harmless for any and all claims, damages, costs, fines and expenses that TFM may incur as a result of you or your Authorized Users’ use of the Folders or any content uploaded to the Folders, excluding TFM Materials. Authorized Users are solely responsible for securing or saving the content of their respective Folders before the expiration or termination of this Subscription Agreement, if desired. TFM has no obligation to provide the content of Folders to you or your Authorized Users after the termination of this Subscription Agreement. All TFM Materials contained in Folders remain subject to the storage limitations and other license terms and restrictions set forth in this Subscription Agreement.
- LIMITED WARRANTY
3.1 TFM represents and warrants that it has the right and authority to make the Online Services and Materials available to you and your Authorized Users as authorized expressly by this Subscription Agreement.
3.2 EXCEPT AS OTHERWISE PROVIDED IN SECTION 3.1, THE ONLINE SERVICES AND MATERIALS ARE PROVIDED ON AN “AS IS”, “AS AVAILABLE” BASIS AND TFM AND EACH THIRD PARTY SUPPLIER OF MATERIALS EXPRESSLY DISCLAIM ALL OTHER WARRANTIES, INCLUDING THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
- LIMITATION OF LIABILITY
4.1 A Covered Party (as defined below) shall not be liable for any loss, injury, claim, liability, or damage of any kind resulting in any way from (a) any errors in or omissions from the Online Services or any Materials available or not included therein, (b) the unavailability or interruption of the Online Service or any features thereof or any Materials, (c) your or an Authorized User’s use of the Online Services or Materials, (d) the loss or corruption of any data or equipment in connection with the Online Services, (e) the content, accuracy, or completeness of Materials, all regardless of whether you received assistance in the use of the Online Service from a Covered Party, (f) any delay or failure in performance beyond the reasonable control of a Covered Party, or (g) any content retrieved from the Internet even if retrieved or linked to from within the Online Services.
4.2 “Covered Party” means (a) TFM and any officer, director, employee, subcontractor, agent, successor, or assign of TFM; and (b) each third party supplier of Materials, third party alliance entities, their affiliates, and any officer, director, employee, subcontractor, agent, successor, or assign of any third party supplier of Materials or third party alliance entity or any of their affiliates.
4.3 TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES WILL THE AGGREGATE LIABILITY OF THE COVERED PARTIES IN CONNECTION WITH ANY CLAIM ARISING OUT OF OR RELATING TO THE ONLINE SERVICES OR MATERIALS OR THIS SUBSCRIPTION AGREEMENT EXCEED THE LESSER OF YOUR ACTUAL DIRECT DAMAGES OR THE AMOUNT YOU PAID FOR THE ONLINE SERVICES IN THE TWELVE MONTH PERIOD IMMEDIATELY PRECEDING THE DATE THE CLAIM AROSE. YOUR RIGHT TO MONETARY DAMAGES IN THAT AMOUNT SHALL BE IN LIEU OF ALL OTHER REMEDIES WHICH YOU MAY HAVE AGAINST ANY COVERED PARTY.
4.4 TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, NEITHER YOU NOR THE COVERED PARTIES WILL BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER (INCLUDING, WITHOUT LIMITATION, ATTORNEYS’ FEES) IN ANY WAY DUE TO, RESULTING FROM, OR ARISING IN CONNECTION WITH THE ONLINE SERVICES, MATERIALS, OR THE FAILURE OF ANY COVERED PARTY TO PERFORM ITS OBLIGATIONS. THE FOREGOING LIMITATION OF LIABILITY SHALL NOT APPLY TO A PARTY’S INDEMNITY OBLIGATIONS OR YOUR (AND YOUR AUTHORIZED USERS’) INFRINGEMENT OF INTELLECTUAL PROPERTY OR MISAPPROPRIATION OF PROPRIETARY DATA BELONGING TO TFM OR ITS THIRD PARTY SUPPLIERS.
4.5 Notwithstanding anything to the contrary in this Section 4: (a) If there is a breach of the warranty in Section 3.1 above, then TFM at its option and expense, shall either defend or settle any action and hold you harmless against proceedings or damages of any kind or description based on a third party’s claim of patent, trademark, service mark, copyright or trade secret infringement related to use of the Online Services or Materials, asserted against you by such third party provided: (i) all use of the Online Services and Materials was in accordance with this Subscription Agreement; (ii) the claim, cause of action or infringement was not caused by you modifying or combining the Online Services or Materials with or into other products or applications not approved by TFM; (iii) you give TFM prompt notice of any such claim; and (iv) you give TFM the right to control and direct the investigation, defense and settlement of each such claim. You, at TFM’s expense, shall reasonably cooperate with TFM in connection with the foregoing.
(b) In addition to Section 4.5(a), if the Online Services or the operation thereof become, or in the opinion of TFM are likely to become, the subject of a claim of infringement, TFM may, at its option and expense, either: (i) procure for you the right to continue using the Online Services, (ii) replace or modify the Online Services so that they become non-infringing, or (iii) terminate this Subscription Agreement on notice to you and grant you a pro-rata refund or credit (whichever is applicable) for any pre-paid fees or fixed charges.
(c) The provisions of Sections 4.5(a) and (b) shall constitute your sole and exclusive remedy for the respective matters specified therein.
- MISCELLANEOUS
5.1 These General Terms and Conditions, including the Additional Terms may be changed from time to time as described below or by written agreement. Charges and payment terms may be changed in accordance with the terms of your Price Schedule; all other provisions may be changed by TFM immediately upon notice to you. If any changes are made to this Subscription Agreement, such changes will: (a) only be applied prospectively; and (b) not be specifically directed against you or our Authorized Users but will apply to all similarly situated TFM customers using the Online Services. You may terminate this Subscription Agreement upon written notice to TFM if any change to these General Terms and Conditions is unacceptable to you. For termination to be effective under this Section 5.1, written notice of termination must be provided to TFM within 90 days of the effective date of the change. Continued use of the Online Services following the effective date of any change constitutes acceptance of the change but does not affect the foregoing termination right. Except as provided above, this Subscription Agreement may not be supplemented, modified or otherwise revised unless signed by duly authorized representatives of both parties. Furthermore, this Subscription Agreement may not be supplemented, modified or otherwise revised by email exchange even if the email contains a printed name or signature line bearing signature-like font. The foregoing does not prohibit the execution of electronic contracts bearing electronic signatures of authorized representatives of both parties, provided such signatures include digital certifications or are otherwise authenticated.
5.2 You or TFM may terminate this Subscription Agreement at any time in accordance with this Section 5.2. The effective date of termination shall be 10 days after the receipt of written notice of termination, unless a later date is specified in the notice. TFM may temporarily suspend or discontinue providing access to the Online Services to any or all Authorized Users in breach of this Subscription Agreement without notice and TFM may pursue any other legal remedies available to it.
5.3 All notices and other communications hereunder shall be in writing or displayed electronically in the Online Services by TFM. Notices shall be deemed to have been properly given on the date deposited in the mail, if mailed; on the date first made available, if displayed in the Online Services; or on the date received, if delivered in any other manner. Legal notices to TFM should be sent to TacticalFlowMeter.com, Attn: Dave Korpi 405 Monterey Ave. Pacific Grove, CA 93950
5.4 The failure of you, TFM, or any third party supplier of Materials to enforce any provision hereof shall not constitute or be construed as a waiver of such provision or of the right to enforce it at a later time.
5.5 Neither you nor any Authorized User may assign your rights or delegate your duties under this Subscription Agreement without the prior written consent of TFM, which consent shall not be unreasonably withheld. This Subscription Agreement and any amendment thereto shall be binding on, and will inure to the benefit of the parties and their respective successors and permitted assigns.
5.6 TFM’s ability to provide Materials is regulated by a variety of privacy, data protection, and other laws in a variety of jurisdictions (“Data Laws”) and by the licenses under which it obtains Materials (“Licenses”). You acknowledge that TFM will perform a due diligence review of your account upon registration and that the due diligence review will be heightened if you desire to access sensitive, non-public Materials about individuals. You also acknowledge that TFM will perform periodic reviews of you and your Authorized Users’ use of Materials subject to Data Laws or Licenses (“Regulated Data”) in order to comply with Data Laws and license restrictions, and that the review may include asking you or your Authorized Users to verify that use of Regulated Data was for a permissible purpose. You and your Authorized Users will cooperate with TFM in any such due diligence or regulatory review and will promptly produce all relevant records and documentation reasonably requested by TFM. All reviews will be at TFM’s expense. If there is any failure to cooperate with TFM, or if any review reveals the lack of a permissible purpose to access Regulated Data, TFM may deny access to the Online Services or to Regulated Data. TFM will be under no obligation to reduce the fees payable by you to the extent that it is unable to provide Regulated Data to you based solely on your non-cooperation.
5.7 If you, any of your Authorized Users, or any person you or your Authorized Users permits to use the Online Services or who gains access through an Authorized User’s failure to properly secure his or her TFM ID or computer (a “User”) should access or use Regulated Data in an unauthorized manner (a “Security Event”), then the following provisions will apply: (a) if required by applicable law, you will notify the individuals whose information has potentially been accessed or used that a Security Event has occurred; (b) you will notify any other parties (including but not limited to regulatory entities and credit reporting agencies) as may be required by law; (c) the notification will not reference TFM or the product through which the Regulated Data was provided, nor will TFM be otherwise identified or referenced in connection with the Security Event, without the express written consent of TFM; (d) you will be solely liable for all claims that may arise from a Security Event caused by you, your Authorized Users or a User and you will indemnify TFM for any third party claims directed against TFM that arise from the Security Event; and (e) all notifications and indemnity claims related to the Security Event will be solely at your expense.
5.8 This Subscription Agreement shall be governed by and construed in accordance with the laws of the State of New York regardless of the law that might otherwise apply under applicable principles of conflicts of law.
5.9 This Subscription Agreement will be enforced to the fullest extent permitted by applicable law. If any provision of this Subscription Agreement is held to be invalid or unenforceable to any extent, then (a) such provision will be interpreted, construed and reformed to the extent reasonably required to render it valid, enforceable and consistent with its original intent and (b) such invalidity or unenforceability will not affect any other provision of this Subscription Agreement.
5.10 Where applicable, each affiliated company of TFM and each third party supplier of Materials has the right to assert and enforce the provisions of this Subscription Agreement directly on its own behalf as a third party beneficiary.
5.11 This Subscription Agreement constitutes the entire agreement of the parties with respect to its subject matter and replaces and supersedes any prior written or verbal communications, representations, proposals or quotations on that subject matter.