MASTER SUBSCRIPTION AGREEMENT (US)
This Master Subscription Agreement (the “Agreement”) is entered into by and between New Leaf Data Services, LLC, a Connecticut limited liability corporation, and its affiliates (collectively “NLDS”) and you (the “Subscriber”).
In consideration of the mutual promises and covenants hereinafter contained, the parties hereby agree as follows:
1. LICENSE.
A. Subject to the terms of this Agreement, NLDS grants to Subscriber a non-exclusive, non-transferable, limited license to access and use internally the information, charts and data published by NLDS in its weekly Cannabis Benchmarks Report (referred to herein as the “DATA”) in accordance with this Agreement.
B. Subscriber shall not provide access to the DATA or any component thereof to any person, firm or entity, including, without limitation, any entity that is affiliated with Subscriber and not specifically approved by NLDS in writing. The DATA shall be used exclusively for Subscriber’s own internal business. The DATA shall not be used as part of Subscriber’s intranet or other internal network. Subscriber shall take all precautions that are reasonably necessary to (i) prevent access to the DATA or any component thereof by any individual other than the Subscriber; (ii) prevent any unauthorized distribution or redistribution of the DATA; and (iii) protect the proprietary rights of NLDS, its affiliates and their third-party licensors in the DATA. Subscriber shall not modify, reverse engineer, disassemble, decompile or store the DATA.
C. Except as specifically provided herein, Subscriber shall not publish, reproduce, and/or otherwise distribute, externally or internally, the DATA or any component thereof in any manner (including, but not limited to, via or as part of any internet site). Subscriber shall not create any derivative work from the DATA or distribute, externally or internally, such derivative work without the prior written approval of NLDS, and any such approved use or distribution may be subject to payment of additional fees by Subscriber.
2. TERM/TERMINATION.
A. This Agreement shall commence on the date that the Subscriber enters into this Agreement and shall continue in effect for an initial term of one (1) year, and it shall be automatically extended for successive renewal terms of one (1) year each unless either party notifies the other in writing of its decision not to extend the term of the Agreement at least thirty (30) days prior to the expiration of the term then in effect.
B. In the event of any breach of any material term or provision by either party of this Agreement, the other party may terminate this Agreement by giving thirty (30) days’ prior written notice thereof; provided, however, that such termination shall not take effect if the party in breach cures or corrects the breach within such notice period. In the event of a breach of any material term or provision of this Agreement by the Subscriber, NLDS shall have the right to terminate this Agreement in its entirety; provided, however, that such termination shall not take effect if Subscriber cures or corrects the breach within thirty (30) days of NLDS’ written notice of such termination.
C. Either party may terminate this Agreement upon written notice to the other if the other party is adjudicated as bankrupt or insolvent or if a petition in bankruptcy or winding up is filed by or against the other party or if the other party makes an assignment for the benefit of creditors or an arrangement pursuant to any bankruptcy or insolvency laws.
D. Upon any termination of this Agreement by either party, Subscriber shall cease all use of the DATA or component thereof, and Subscriber shall expunge the relevant DATA, including any copies thereof, from all of Subscriber’s electronic or other systems in Subscriber’s possession or control. At NLDS’ request, Subscriber shall certify to NLDS in writing that Subscriber has fully complied with this requirement.
3. FEES AND CHARGES.
A. Subscriber shall pay the Subscription Fee, as set forth on the Subscription Site, in United States Dollars, plus all applicable taxes, including, but not limited to, value-added, sales, use and similar taxes, in twelve monthly payments with the first payment made at the time the Subscriber enters into this Agreement. After the initial monthly payment, NLDS will send the Subscriber monthly invoices. After the initial term, NLDS may increase its fees and charges for the DATA at any time by providing prior written notice to Subscriber, but NLDS shall not increase its fees for DATA subscribed to hereunder more than once during any twelve (12) month period. Subscriber shall thereupon have a period of thirty (30) days from receipt of such notice in which to terminate this Agreement by written notice to NLDS. In the event of termination this Agreement, Subscriber shall not be liable for payment of the remainder of the annual fees and NLDS will immediately suspend delivery of the DATA.
B. Failure by Subscriber to pay any fees or other fees or charges in connection with the DATA within thirty (30) days of the due date shall constitute a material breach of this Agreement. NLDS may assess a late charge at a rate of one and one-half percent (1½ %) per calendar month on all amounts due and not paid within thirty (30) days of the due date until the time of payment. In addition to all other rights and remedies available to NLDS at law or in equity, NLDS also may suspend delivery of the DATA for as long as any such amount remains unpaid after such thirty (30) day period.
4. DISCLAIMER OF WARRANTIES AND LIMITATION OF LIABILITIES.
NLDS DISCLAIM ANY AND ALL WARRANTIES AND REPRESENTATIONS, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR USE AS TO THE DATA, INCLUDING THE INFORMATION. CHARTS AND DATA CONTAINED THEREIN, OR THE RESULTS OBTAINED BY THEIR USE OR AS TO THE PERFORMANCE THEREOF. NLDS DOES NOT GUARANTEE THE ADEQUACY, ACCURACY, TIMELINESS OR COMPLETENESS OF THE DATA OR ANY COMMUNICATIONS, INCLUDING BUT NOT LIMITED TO ORAL OR WRITTEN COMMUNICATIONS (INCLUDING ELECTRONIC COMMUNICATIONS), WITH RESPECT THERETO. ACCORDINGLY, ANY USER OF THE INFORMATION CONTAINED IN THE DATA SHOULD NOT RELY ON ANY THE INFORMATION IN MAKING ANY INVESTMENT OR OTHER DECISION. NLDS SHALL NOT BE SUBJECT TO ANY DAMAGES OR LIABILITY FOR ANY ERRORS, OMISSIONS OR DELAYS IN THE DATA. THE DATA IS PROVIDED ON AN “AS IS” BASIS AND SUBSCRIBER’S USE OF THE DATA IS AT SUBSCRIBER’S OWN RISK. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, IN NO EVENT WHATSOEVER SHALL NLDS BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS, TRADING LOSSES, OR LOST TIME OR GOOD WILL, EVEN IF THEY HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE. IN NO EVENT SHALL THE MAXIMUM CUMULATIVE LIABILITY OF NLDS IN CONNECTION WITH THE DATA AND/OR THIS AGREEMENT, REGARDLESS OF THE FORM(S) OF ACTION, WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, EXCEED THE FEES PAID BY SUBSCRIBER TO NLDS UNDER THIS AGREEMENT. NO ACTION, REGARDLESS OF FORM, ARISING FROM OR PERTAINING TO THE SERVICE(S) MAY BE BROUGHT BY SUBSCRIBER MORE THAN ONE (1) YEAR AFTER SUCH ACTION HAS ACCRUED.
5. NLDS’ PROPRIETARY RIGHTS/INJUNCTIVE RELIEF.
A. All proprietary rights (including, but not limited to, copyrights, trade secrets, database rights and trademark rights) in the DATA shall remain the sole and exclusive property of NLDS. The DATA is compiled, prepared, revised, selected and arranged by NLDS through the application of methods and standards of judgment developed and applied through the expenditure of substantial time, effort and money, and the DATA constitutes the valuable intellectual property of NLDS. Subscriber shall protect the copyrights, trade secrets, database rights, trademarks, and other proprietary rights of NLDS in the DATA, including, but not limited to, any contractual, statutory, or common-law rights, during and after the term of this Agreement. Subscriber shall honor and comply with all reasonable requests made by NLDS to protect the rights of NLDS in the DATA.
B. Copying of, use of, access to or distribution of the DATA, or any information, charts or data contained therein, in breach of this Agreement shall cause NLDS irreparable injury that cannot be adequately compensated for by means of monetary damages. Any breach hereof by Subscriber may be enforced by NLDS, its affiliates or their third-party licensors by means of equitable relief (including, but not limited to, injunctive relief) in addition to any other rights and remedies that may be available. In the event NLDS has reasonable grounds to believe Subscriber is violating the terms and/or conditions set forth in this Agreement, NLDS shall have the right to suspend delivery of, or Subscriber’s access to, the DATA.
C. If NLDS or Subscriber wishes to use promotional material referring to the other party, its services or marks, the party desiring to use such material shall, before using it, submit such material to the other party for review and written approval, which review and written approval shall not be unreasonably delayed or withheld.
D. Subscriber shall indemnify and hold harmless NLDS and its third-party licensors from and against any and all costs, claims, damages, or liabilities (including reasonable legal expenses) arising from any breach of its obligations, or of the limitations or restrictions set forth in this Agreement.
6. ASSIGNMENT.
This Agreement shall not be assigned or transferred by Subscriber without the prior written consent of NLDS and any attempted assignment or transfer shall be null and void and shall constitute a material breach of this Agreement.
7. MISCELLANEOUS.
This Agreement represents the entire agreement between the parties hereto in respect to its subject matter and supersedes all previous agreements, representations, discussions, understandings or writings between the parties with respect to its subject matter. There are no oral or written collateral representations, agreements or understandings. The provisions and terms of any purchase order or other agreement shall be of no effect and shall not in any way extend or amend the terms and conditions set forth in this Agreement unless expressly accepted in writing by an authorized representative of NLDS. NLDS shall have no responsibility or liability for any delays or interruptions in or failures of its performance under this Agreement beyond its control, including, but not limited to, acts of God, acts of governmental authority, fire, acts of war, terrorism, flood, strikes, severe or adverse weather conditions, power failures or communications line or network failures. No amendment of this Agreement shall be binding upon the parties unless in writing and signed by an authorized representative of NLDS and Subscriber. No waiver of any term or condition of this Agreement shall be effective unless agreed to in writing by the party making the waiver. If any term or condition hereof is found by a court, administrative agency or jurisdiction to be unenforceable, the remaining terms and conditions hereof shall remain in full force and effect and shall be enforceable to the maximum extent permitted by law. No action taken by any party shall constitute or be deemed to constitute that any party is the agent of another, or imply that the parties intend to constitute a partnership, joint venture, or other form of association in which any party may be liable for the acts or omissions of another. This Agreement is made and entered into and shall be interpreted, construed and enforced in accordance with the laws of the State of Connecticut without giving effect to the conflicts of Laws provisions thereof. The parties hereto and their successors and assigns consent to the exclusive jurisdiction of any courts located in the State of Connecticut, Fairfield County, for the resolution of any disputes arising from or related to this Agreement. Sections 4, 5, and 7 shall survive any termination of this Agreement.
8. COMPLIANCE WITH LAW.
Subscriber shall comply with all federal, state, local and exchange laws, rules, and regulations now or hereinafter in effect. Subscriber agrees that it will not engage in, and represents that it is not currently engaged in, the operation of any unlawful transactions or business and that it will not use or permit use or permit anyone to use the DATA for any unlawful purpose.
9. NOTICES.
All notices and other communications required to be sent under this Agreement shall be in writing and shall be deemed to have been duly delivered if delivered by hand, or sent by prepaid post or certified mail.
IN WITNESS WHEREOF, the Subscriber hereto, by clicking the box, has hereby executed this Agreement as of the date therof.
