license

RESEARCH LICENSE AGREEMENT

CLICKING ACCEPT or SIGNING AN ORDER FORM MEANS THE LICENSEE IS BOUND BY THE TERMS OF THIS AGREEMENT.

The Order Form (the "Order") together with any changes thereto, and these Terms and Conditions ("Terms") constitute the agreement between the parties ("Agreement"), as follows:

1.      GRANT OF LICENSE:  AF Industries, LLC d/b/a Flom LBS Consulting  (the "Company", "Our", or "We") hereby grants to the licensee stated on the Research Order (the "Licensee", or "You"), for internal use by Licensee's employees and sub-contractors (except Competitors of the Company) who are part of your normal work force (the "Users"), a non-exclusive, perpetual license to use the research report(s), questionnaires, presentations, focus group transcripts, spreadsheets and videos, any extracts of the foregoing materials and any works derived from the foregoing materials (collectively, the "Research"), subject to the terms of this Agreement.

2.      ORDER. Company or its representatives shall supply an order form (the “Order”). Orders are subject to acceptance by the Company. Other than contact information, any changes to the Order or this Agreement by the Licensee or its representatives, including handwritten remarks, custom research, or changes to standard prices and terms, shall be subject to review by the Company. The Company can indicate its acceptance by directly delivering the Research to the Licensee or by returning an Order countersigned by an officer of the Company. Receipt of an Order form or funds by Licensee shall not constitute acceptance. Orders are not cancellable or refundable except by the Company.

3.      DISTRIBUTION. Licensee agrees not to remove or obscure any proprietary marks including copyright, confidentiality and limitations of distribution from the Research, and to prominently include such marks when distributing the Research or any portions or derivative works thereof (the “Copies”). If the Licensee is granted an enterprise license in the Order, Licensee may distribute the Copies to employees of the Company and any affiliate which is owned at least 51% by the Licensee in any location worldwide. If the Licensee is granted a location license, Licensee may distribute the Copies only to Users whose normal work location is within the specified location. If the Licensee is granted a department or division license, Licensee may distribute the Copies only to Users whose normal work location is within that department or division.  If the Licensee is granted a single user license, Licensee may not further distribute any Copies. Should the application location, department or division or user, be eliminated, merged or consolidated, and the merged, consolidated or replacement entity does not hold a License to the Research, Licensee shall promptly notify the Company and pay for an appropriate License or shall permanently destroy all Copies licensed by that Order. Licensee agrees that Company may implement reasonable measures to audit, monitor or limit the distribution of its Research according to this agreement, including but not limited to placing of cookies on Users computers; requiring Id’s, Passwords and/or access to the Internet for access to or use of the Research; placing the Research on secure servers, and logging where, when and by whom its Research is being used. Licensee agrees not to interfere with these measures.

4.      TITLE:  The Company shall at all times own all right, title, and interest, including all intellectual property rights in the Research.

5.      CHARGES AND PAYMENT. Licensee shall provide payment in good U.S. funds to the Company as indicated in the Order. Licensee agrees to pay a $50 fee for returned checks, a $100 fee plus interest of 1 ½% per month or portion thereof, or the maximum amount allowed by law, on the late portion of any payments.  In the event that sales tax on any part of the Research is imposed or required by law, even retroactively or after termination of this Agreement, Licensee agrees to promptly reimburse the Company for such tax.

6.      NONUSE:  The Research and any Copies may not be provided, sold or distributed to any third party or used to create competitive research offered for sale to third parties.  Licensee agrees that any such use will cause irreparable harm to Company. The parties agree that money damages would not be a sufficient remedy for any breach or violation of this provision, and that  Company will be entitled to specific performance and temporary and permanent injunctive relief without posting a bond and without proof of actual damages as remedies available at law or equity. Should Licensee violate this provision, Licensee agrees that all previous and future revenues related to any such product shall become the property of or accrue to the Company in addition to any additional remedies the Company may have.

7.      RIGHTS TO USE CONTENT: Licensee grants the limited right to use Licensee’s logo and company name on the Research or for marketing of the Research, subject to reasonable usage guidelines provided in advance by Licensee. Any comments about the Research or the Company provided to the Company by Users may be used with attribution (including name and title of the User) by the Company for marketing the Research.

8.      LICENSEE DATA.  Licensee may optionally provide the Company with e-mail addresses, phone numbers, customer names and other information about its prospects or customers (“Customer Information”) to serve as panelists in the Research. Licensee warrants that it has permission from its customers as required by law to provide such Customer Information to third parties. Company will treat such Customer Information as confidential except that it may be provided to Company’s subcontractors, under provisions of confidentiality, solely to produce the Research.

9.      DISCLAIMER OF WARRANTY AND LIMITATION OF LIABILITY: EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, THE RESEARCH IS PROVIDED "AS IS" AND WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW:  (A) COMPANY, REPRESENTATIVES AND SUPPLIERS FURTHER DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, COMPLETENESS, ACCURACYAND NON-INFRINGEMENT; (B) THE ENTIRE RISK ARISING OUT OF THE USE OF THE RESEARCH REMAINS WITH LICENSEE;  (C) IN NO EVENT SHALL THE COMPANY, ITS REPRESENTATIVES OR SUPPLIERS BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE, OR OTHER DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, LOSS OF DATA OR OTHER PECUNIARY LOSS) ARISING OUT OF THIS AGREEMENT OR THE USE OF OR INABILITY TO USE THE RESEARCH EVEN IF THE COMPANY, ITS SUPPLIERS OR LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. BECAUSE SOME STATES/JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO LICENSEE. TO THE EXTENT ALLOWED BY APPLICABLE LAW, ANY IMPLIED WARRANTIES THAT CANNOT BE DISCLAIMED ARE LIMITED TO NINETY (90) DAYS FROM THE EFFECTIVE DATE.  

10.  MEDIA WARRANTY: The Company warrants that, for up to ninety (90) days from the date of Licensee's purchase of the License to the Service, the storage media on which the Research is distributed, if any, will be free from defects in materials and workmanship. The Company will replace defective media or documentation at no charge, provided Licensee notifies the Company within ninety (90) days of receipt of the Research. If the Company is unable to replace defective media, the Company will refund the license fee. This Limited Warranty is void if failure of this Service has resulted from accident, abuse, or misapplication.  Any replacement media will be warranted for the remainder of the original ninety (90) day warranty period or thirty (30) days, whichever is longer.  These are Licensee's sole remedies.

11.  LIMITATION OF LIABILITY. The Company, (and its representatives and suppliers, including their suppliers) shall not be liable for any loss, injury, claim, liability or damage of any kind resulting in any way from (i) Licensee's use of the Research, (ii) any acts or omissions of any third party, or (iii) any causes beyond the Company's reasonable control. Licensee hereby waives any and all liability Company may have with respect to any damage to any computer system through the use of the Research.  NOTWITHSTANDING ANY OTHER PROVISION HEREOF, THE MAXIMUM LIABILITY OF THE COMPANY FOR DAMAGES HEREUNDER, INCLUDING ANY ATTORNEYS COSTS, LEGAL COSTS, COURT FEES AND INTEREST, SHALL NOT EXCEED THE AMOUNT OF GOOD FUNDS ACTUALLY RECEIVED BY COMPANY FROM LICENSEE FOR THE RESEARCH.

12.  INDEMNITY:  Licensee officer warrants that he/she is authorized to sign and commit Licensee, that Licensee’s organization in good standing in the state where it was formed. Licensee hereby indemnifies and holds Company, its successors, officers, directors and employees (including their respective licensors, suppliers, assignees, subsidiaries, affiliated companies, and the respective officers, directors, employees, shareholders, agents and representatives of each of them) harmless from Licensee’s failure to comply with this Agreement.

13.  TERM AND TERMINATION: This Agreement shall commence on receipt of a valid Order by the Company and terminate the later of when the Research is delivered to the Licensee or any post-research consulting is completed. The confidentiality provisions of this Agreement and rights to use (licensee’s) content shall survive termination.

14.  DEFAMATION. Licensee agrees not to defame or publicly criticize the Company in any way or in any media during the Term of this Agreement or after termination of this Agreement.

15.  CONFIDENTIALITY. The fees, quotes, Order, and Research and any user-id’s or passwords supplied by the Company shall be shall be considered the Proprietary and Confidential Information of, and may contain trade secrets of, the Company or its suppliers. The Licensee Data shall be considered the Confidential Information of Licensee. Each party agrees to keep in confidence the Confidential Information of the other party, as provided in this Agreement. Licensee may publically disclose highlights from the Research made available by the Company in its non-confidential marketing materials.

16.  GOVERNING LAW: This Agreement shall be governed by and construed in accordance with the laws of the State of New Jersey, without reference to its conflicts of law principles.   In any action against the Company or Licensee, and any and all litigation that may arise hereunder, shall be heard solely in the state or federal courts located in Bergen County, New Jersey, and Company and Licensee each  waive all objections to personal jurisdiction and venue  in such courts.  The application of the U.N. Convention on Contracts for the International Sales of Goods is hereby disclaimed.

17.  LIMITATIONS OF ACTIONS:  NO ACTION MAY BE FILED OR MAINTAINED BY EITHER THE COMPANY OR LICENSEE MORE THAN EIGHTEEN (18) MONTHS AFTER THE LEGAL ACTION THEREFORE ACCRUES.

18.  ENTIRE AGREEMENT: This Agreement constitutes the complete and exclusive agreement between the Company and Licensee with respect to the subject matter hereof, and supersedes all prior oral or written understandings, communications or agreements not specifically incorporated herein. This Agreement may not be modified in any manner except in a writing duly signed by authorized representatives of the Company and Licensee, except as provided herein.

19.  WAIVER: The failure of either party to require performance by the other party of any provision hereof shall not affect the full right to require such performance at any time thereafter; nor shall the waiver by either party of a breach of any provision hereof be taken or held to be a waiver of the provision itself.

20.  ASSIGNMENT: Neither this Agreement nor any rights or obligations of Licensee hereunder may be assigned by Licensee in whole or in part without the prior written approval of the Company. Any attempted assignment not in accordance with the foregoing shall be null and void ab initio.

21.  SEVERABILITY: If any provision of this Agreement shall be held invalid or unenforceable by a court of competent jurisdiction, such invalidity or unenforceability shall not invalidate or render unenforceable the entire Agreement; rather, the entire Agreement shall be construed as if not containing the invalid or unenforceable provision, and the rights and obligations of each party shall be construed and enforced accordingly

22.  CHANGES TO THIS AGREEMENT. Company may modify this Agreement by posting a revised version of this Agreement on the Company's web site.

23.  NOTICES. This Agreement and any revisions may be executed by postal mail, express mail, fax, or online methods agreed to by the Company.  Fax or online methods shall be as valid as an original. Notices from Licensee to the Company or from the Company to the Licensee shall be made only via certified or registered postal mail, overnight delivery from a recognized overnight courier which provides the signature, name, time and date of receipt, or fax to the numbers specified in the order form.

24.  FORCE MAJEURE:  With the exception of any payment obligations under this Agreement, a party's performance under this Agreement may be delayed for limited periods of resulting directly or indirectly from any act of God, action or omission of a governmental authority, accidents or disruptions (including fire and explosions), breakdown of essential equipment, power shortage or spike, transportation or storage delay, labor difficulties or strike, telecommunications or electrical power service disruption, and acts of war (declared or undeclared) or terrorism.