Specialty Communications, Inc., 8805 Route 415, Campbell, NY 14821-9703 is the owner of the software and has the right to grant the license provided to customer herein. B) Specialty Communications, Inc. will make reasonable commercial efforts to ensure it's computer system will be operational 24 hours a day, 7 days a week, except for reasonable periods of shutdown caused by equipment, system or power failure, database updates or other causes beyond the reasonable control of Specialty Communications, Inc. C) EXCEPT AS OTHERWIDE EXPRESSLY STATED IN SECTION 1(A) AND (B) ABOVE, THE SPECIALTY COMMUNICATIONS, INC. MATERIALS AND THE MEDIUM ON WHICH THEY ARE PROVIDED TO CUSTOMER, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY SPECIALTY COMMUNICATIONS, INC. OR ANY OF ITS EMPLOYEES OR REPRESENTATIVES SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF THE WARRANTIES TO CUSTOMER PROVIDED IN THIS SECTION.
Allocation of Risk: Customer Responsibilities; Grant of License
A) The Licensed Data has been compiled from public records and other sources and neither Specialty Communications nor its data suppliers guarantee its accuracy or completeness. Moreover, Customer acknowledges that Specialty Communications, Inc. has limited control over its data suppliers, and in the event such suppliers discontinue providing Specialty Communications, Inc. with such information, for any reason, that the provision of the Specialty Communications, Inc. materials may be interrupted or terminated by Specialty Communications, Inc. without liability to the Customer. B) The manner of purpose for the use of the Licensed Data, and the verification of its accuracy, is the sole responsibility of the Customer. C) The Licensed Data is not intended to and shall not be used in connection with certification or authentication of real estate ownership and/or real estate transactions. D) Customer represents and warrants to Specialty Communications, Inc. that its purchase of the Specialty Communications, Inc. materials under this Agreement does not violate any agreement to which Customer is a party. Customer assumes sole responsibility for use of the Specialty Communications, Inc. materials by Customer, its agents, employees and customers, and will indemnify and hold harmless Specialty Communications, Inc., its agents, service providers and employees from and against all liabilities, and claims, and all related costs and expenses (including, but not limited to, reasonable experts', attorneys' fees and expenses, including costs of investigation expenses) arising in connection with all such use of the Specialty Communications, Inc. materials. E) During the initial or any renewal term, and subject to the terms and conditions set forth in this agreement, Specialty Communications, Inc. hereby grants to Customer a limited, non-exclusive, non-transferable license to use the above specified products and services (collectively "Specialty Communications, Inc.") for Customer's internal use only. Specialty Communications, Inc. shall retain all right, title and interest in and to the Specialty Communications, Inc. materials provided to Customer hereunder. Customer shall not make copies, resell, sublicense, assign, distribute, allow access to or otherwise transfer the Specialty Communications, Inc. materials to any third person or entity for any purpose; provided, however, that CUSTOMER may make individual copies of the Specialty Communications, Inc. materials and distribute such copies to its customers in connection with its normal business activities so long as said distribution does not compete with or in any way replicate the services being offered by Specialty Communications, Inc. under this Agreement.
Under no circumstances shall Specialty Communications, Inc.’s data suppliers be liable to Customer for any claim or loss resulting from the content of, errors or omissions in, or the use of the information or data contained in or retrieved from the Specialty Communications, Inc. materials. B) Except for a breach by Customer of its obligations under Sections 2, Schedule any obligation or liability to the other for any incidental, consequential and/or special damages arising from or related in any way to this Agreement or to any obligations or performance or non-performance arising from it, including without limitation, lost profits, regardless of how such damages arise or may arise and of whether or not a party was advised such damages might or would arise. C) Specialty Communications, Inc., or any officer, director, employee, agent, subcontractor, successor or assign of Specialty Communications, Inc. or any such company shall not be liable to Customer for any loss, injury, claim, liability or damage of any kind resulting in any way from errors or omissions in the Specialty Communications, Inc. materials from Customer directly or indirectly, or the content of the Specialty Communications, Inc. aterials as provided by Specialty Communications, Inc. under this agreement. Customer's exclusive remedy regarding defects in the Specialty Communications, Inc. materials shall be to have Specialty Communications, Inc. correct such defect(s) within (30) days after written notice from Customer. If Specialty Communications, Inc. is unable to correct such defects after utilizing commercially reasonable efforts, then Customer's sole and exclusive remedy is to terminate this Agreement. D) Under no circumstances shall Specialty Communications, Inc. aggregate cumulative liability hereunder, whether in contract, tort, or otherwise exceed the total amount of fees actually paid to Specialty Communications, Inc. by Customer under this agreement during the three (3) month period immediately preceding the date that the claim arose.
As used in this Agreement, "Specialty Communications, Inc. Confidential Information" means all Specialty Communications, Inc. confidential or proprietary written, record or oral information or data (including without limitation research, developmental, engineering, manufacturing, technical, marketing, sales, financial, operating, performance, costs, business and process information or data, know-how and computer programming and other software and software techniques) provided by a Specialty Communications, Inc. in connection herewith, whether such confidentiality or proprietary status is indicated orally or in writing or in a context in which Specialty Communications, Inc. reasonably communicated, or Customer should reasonably have understood, that the information should be treated as confidential, whether or not the specific works "confidential" or "proprietary" are used. Information shall not be considered Confidential Information to the extent that such information is: A) already know to Customer free of any restriction at the time it is obtained from the other party; B) subsequently learned by Customer from an independent third party free of any restriction and without breach of this Agreement; C) becomes publicly available through no wrongful act of Customer; or D) required to be disclosed by applicable law. Customer shall not, during the Initial or Renewal Term and thereafter, disclose to any other person or entity any Specialty Communications, Inc. Information, except A) to the extent necessary or desirable to perform under this Agreement, B) in connection with any pending action related to this Agreement, or C) as required by a court of competent jurisdiction.
The parties will resolve any dispute arising out or relating to this Agreement in the following manner: To initiate a dispute resolution, one party must deliver to the other a written dispute notice with a brief description of the disputed issues. Then, during the thirty (30) day period immediately following the date that the other party receives the dispute resolution notice, the parties will meet and negotiate to resolve the dispute(s) at issue. Any and all disputes that the parties are unable to resolve during any such thirty (30) day period shall be by binding, final arbitration in Campbell, NY in accordance with the commercial arbitration rules of the American Arbitration Association ("AAA") before a single neutral arbitrator having at least ten (10) years experience with respect to license agreements. The arbitrator shall be mutually agreed upon by Specialty Communications, Inc. and Customer, but if Specialty Communications, Inc. and Customer are unable to agree on an arbitrator, the arbitrator shall be appointed by the AAA. The arbitrator shall be selected within five (5) business days following the initiation of the arbitration proceeding by either party and the arbitrator shall make a final ruling within ninety (90) days after the date of his or her appointment. The arbitrator's decision shall be final and binding as to all matters of substance and procedure, and may be enforced by a petition to a Superior Court, which may be made ex parte, for confirmation and enforcement of the decision. All arbitration proceedings shall be closed to the public and confidential and all records relating thereto shall be permanently sealed, except as necessary to obtain court confirmation of the arbitrator's decision.
All notices required or permitted to be given hereunder shall be in writing and shall be deemed to have been given and sufficient in all respects when delivered personally, or by certified or registered mail, return receipt requested, postage prepaid, to the parties at their respective addresses set forth on page 1 of this Agreement or at such other address as may be specified in a notice pursuant to this section.
This Agreement (as defined in Section 1 above) constitutes the entire agreement between the parties in connection with the subject matter contained herein and supersedes in full or prior and contemporaneous agreements, understandings, negotiations and discussions of the parties.
Except as otherwise expressly set forth herein; this Agreement may be modified or supplemented only by a written document signed by an authorized representative of each party. No person is authorized to make any representation or warranty on behalf of Specialty Communications, Inc., or Customer except as expressly set forth in this Agreement, and any such statement shall not be binding on Specialty Communications, Inc. or Customer.
No waiver of any breach or failure or delay in exercising any right, power or remedy of any provision of this Agreement shall constitute a waiver of the same or any other provision hereof with respect to prior, concurrent or subsequent occurrences and no waiver shall be effective unless made in writing and signed by an authorized representative of the party against whom enforcement of such waiver is sought.
This Agreement may be assigned by Specialty Communications, Inc. to any other person or entity that acquired all or substantially all of the assets or stock of Specialty Communications, Inc. Either party, without the prior written consent of the other party, which consent shall not be unreasonably withheld, may not otherwise assign this Agreement.
Subject to the express limitations set forth elsewhere in this Agreement, all remedies set forth in this Agreement are cumulative, and not exclusive of any other remedies of a party or law or in equity, statutory or otherwise.
The provisions of this Agreement are severable and the unenforceability of any provision of this Agreement shall not affect the enforceability of this Agreement as a while or any other provision hereof. In addition, any provision of this Agreement found to be unenforceable by a court of competent jurisdiction should be construed in a manner designed to effectuate the purposes of such provision to the maximum extent enforceable under applicable law.
This Agreement may be executed in several counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same instrument.
No Third Party Beneficiaries
There shall be no third party beneficiaries of this Agreement.
This Agreement is binding on the permitted successors, legal representatives and assigns of the parties.
Choice of Law
The validity, construction, interpretation and legal effect of this Agreement shall be governed by the laws and judicial decisions of the State without given effect to principles of conflicts of law.
All confidentiality obligations, disclaimers and limitations on liability shall survive the expiration or termination of this Agreement.