TERMS AND CONDITION
These Terms of Subscription (“Agreement”) are entered into by and between the entity or person placing an order or accessing the Services (as defined below) (“Client”) and Aggregate Intelligence, Inc (the producer of the HowsMyRate services) referred hereto as ‘HowsMyRate'.
The “Effective Date” of this Agreement is the date that the person placing the order accepts the Terms by clicking ‘Accept Terms of Subscription’ during the subscription account set-up process on the HowsMyRate website.
If you are entering into this Agreement on behalf of a company or other legal entity, you represent that you have the authority to bind such entity to this Agreement in which case the term “Client” shall refer to such entity. If you do not have such authority, or if you do not agree to the terms of this Agreement, do not accept this Agreement or use the Services. If you receive free access or a trial account for evaluation you are deemed a “Client” under this Agreement and are subject to its terms.
You may not use or access the Services if you are a direct competitor of HowsMyRate or if you are accessing or using the Services for the benefit of a direct competitor of HowsMyRate.
This Agreement permits Client to purchase a subscription to Services and related Professional Services from HowsMyRate pursuant to Quotes and sets forth the terms and conditions under which those Services and Professional Services will be delivered. This Agreement shall govern Client’s initial purchase as well as any future purchases made by Client that reference this Agreement. This Agreement includes any and all Exhibits, referenced policies and attachments, and any and all Quotes and SOWs.
From time to time, HowsMyRate may modify this Agreement with five (5) days’ notice to the Client. Unless otherwise specified by HowsMyRate, changes become effective for existing Clients upon posting of the modified Agreement. If Client does not agree to such changes, Client must notify HowsMyRate of such disagreement within the five (5) day notice period, and HowsMyRate (at its option and as Client’s exclusive remedy) may either: (a) permit Client to continue under the prior version of this Agreement until the next renewal of the current Subscription Term, after which the modified Agreement will apply (for example, if Client is on an monthly Subscription Term, then the modified Agreement will apply starting from the beginning of Client’s next monthly Subscription Term after it is posted) or (b) terminate this Agreement. will use reasonable efforts to notify Client of the changes through Client’s Account,and email. Client may be required to click to accept the modified Agreement before using the Services in a renewal Subscription Term, and in any event continued use of the Services during the renewal Subscription Term will constitute Client’s acceptance of the version of the Agreement in effect at the time the renewal Subscription Term begins.
Each party expressly agrees that this Agreement is legally binding upon it.
WHEREAS, HowsMyRate collects publicly available and other procured and derived content (‘data’) and presents such data in a proprietary structure and in proprietary visualizationsavailable from an online dashboard and email report delivery service (the 'Service’).
WHEREAS, Client desires to access the Service for the purposes of business intelligence.
The parties hereto agree as follows:
GRANT OF RIGHTS:
HowsMyRate grants to Client a non-exclusive, worldwide, royalty-free perpetual, irrevocable license to use the provided Data for the purposes of only general business intelligence, internal display and business decision-making. Data may be shared with affiliate team only in case of team working on the above and for no other purposes. Data may not, under any circumstances, be sold or distributed to any other third party.
In full consideration for the rights granted hereunder, Client shall pay HowsMyRate the specific Subscription Fee detailed on the Client’s Sign-Up page on the HowsMyRate website.
The term of the subscription is specified on the Client Sign-up page. Either party has the right to terminate this Agreement if the other party materially breaches any representation, warranty, covenant or agreement made by it hereunder or otherwise fails to perform any of its material obligations hereunder which breach or failure has not been cured within thirty (30) days after receipt of written notice of default from the non-breaching party (or such additional cure period as the non-breaching party may authorize). Either party may immediately terminate this Agreement upon written or digital tianotice to the other party if the other party has a receiver or similar party appointed for all or substantially all of its property, is declared insolvent by a court of competent jurisdiction, ceases to do business, files a petition in bankruptcy or a petition is filed against it in bankruptcy, becomes the subject of any court or administrative proceeding related to its liquidation or insolvency (whether voluntary or involuntary) which is not dismissed within sixty (60) days, or makes an assignment for the benefit of its creditors. In the case where HowsMyRate is unable to provide Service for any portion of the Subscription term for any of the reasons above or otherwise, the Client has the right to a pro-rated refund for fees collected for the period of Service not delivered.
WARRANTY AND INDEMNITY
- HowsMyRate represents and warrants to Client that it has full power and authority to enter into this Agreement and to perform the obligations set forth hereunder and that the execution, delivery and performance of this Agreement does not, and will not, conflict with or violate any other agreement or instrument applicable to HowsMyRate, any applicable law, rule or regulation, or any proven rights of a third party.
- HowsMyRate does not warrant that Data presented in any of its Services is 100% accurate or current, but does warrant that HowsMyRate has provided the Data in the best of intentions and with the belief that the Data is accurate and current based on available evidence. In the case of any known and provable discrepancy, HowsMyRate will do everything within its power to correct and remedy any inaccuracy in the most expeditious way
- HowsMyRate shall defend, indemnify, and hold Client and its affiliates harmless against all claims, demands, suits, losses, costs, damages, and expenses, including reasonable attorneys’ fees, that Client and/or its affiliates may sustain or incur by reason of any breach or alleged breach of the aforesaid representations and warranties.
- Except with respect to indemnification obligations hereunder in no event shall either party be liable to the other party for indirect, incidental, consequential or exemplary damages, including, without limitation, damages for loss of revenue or lost profits, arising from any provision of this agreement, even if such party has been advised of the possibility of such damages.
Neither party shall publicly use the other party’s or each of its affiliates’ name, trademarks or service marks in any publicity, promotion, news release, website posting, announcement, client list, marketing materials or other disclosure or otherwise refer to the other party or its affiliates in any way in or with the media with respect to this Agreement or the transactions contemplated hereunder, unless such party has obtained the prior written consent of the other party in each case.
CHOICE OF LAW
This Agreement shall be governed by and construed in accordance with the laws of the State of Michigan without reference to conflict of law principles thereunder. Any dispute arising under this Agreement shall be resolved in the state and federal courts of Detroit, Wayne County, Michigan, and each party hereto waives any objection to venue and hereby submits to the personal jurisdiction of such courts.
Neither party shall be liable for any delay or failure in performing its obligations hereunder if caused by a factor beyond such party’s reasonable control, including, without limitation, acts of God, acts of terrorism, acts of government, fire or other casualty, provided the affected party makes every effort to promptly resume performance. In the event that the affected party cannot resume performance within sixty (60) days, then the other party may, without penalty or liability, terminate this Agreement upon written notice.
In the event of a conflict between the terms and conditions set forth in the body of this Agreement and any attachment hereto, the terms and conditions of this Agreement shall take precedence over any conflicting terms and conditions in any attachment hereto, provided that if a particular attachment expressly amends by section a term of this Agreement, such amendment shall take precedence and be valid.
The failure by either party to insist upon strict enforcement of any terms and conditions of this Agreement shall not be construed as a waiver of such right or of any other right hereunder.
Except as expressly limited herein, the rights and remedies set forth hereunder are cumulative and in addition to any other remedies available at law or in equity.
Nothing contained in this Agreement shall be deemed or construed as creating a joint venture or partnership between the parties. Neither party, by virtue of this Agreement, is authorized as an agent, employee or legal representative of the other party. Neither party shall bind or attempt to bind the other party to any agreement or performance of any obligation, nor represent that it has any right to enter into any undertaking on behalf of the other party. The relationship of the parties shall be that of independent contractors.
Any and all notices and other communications to either party hereunder shall be in writing and deemed delivered to the specified email address of the Client in the Subscription Sign-up page or – to HowsMyRate – to support@HowsMyRate.com.
If any provision of this Agreement shall be held by a court of competent jurisdiction to be illegal, invalid, or unenforceable, the remaining provisions shall remain in full force and effect.
This Agreement constitutes the entire understanding between the parties with respect to the subject matter hereof and supersedesany prior and contemporaneous agreements and understandings, whether oral or written, regarding such subject matter.