BY ACCEPTING THE TERMS AND CONDITIONS, YOU FURTHER REPRESENT, WARRANT AND COVENANT THAT: (1) YOU ARE A MUNETRIX SITE LICENSEE IN GOOD STANDING OR ARE CURRENTLY AUTHORIZED BY SUCH A LICENSEE TO USE THE MUNETRIX SITE; (2) YOU WILL NOT HOLD OUT MUNETRIX LLC, A MICHIGAN LIMITED LIABILITY COMPANY (THE "COMPANY"), OR ANY OF ITS AFFILIATES, MEMBERS, OFFICERS, EMPLOYEES, AGENTS, OR REPRESENTATIVES, AS AN "INVESTMENT ADVISER," AS SUCH TERM IS DEFINED IN THE U.S. INVESTMENT ADVISERS ACT OF 1940 ("ADVISERS ACT") OR ANY OTHER SIMILAR LAW OR REGULATION IN ANY JURISDICTION IN WHICH THE PRODUCT IS ACCESSED, USED OR DISTRIBUTED BY YOU; (3) YOU ASSUME ALL SUITABILITY (AND OTHER RELATED) RESPONSIBILITIES FOR YOURSELF, YOUR CLIENTS AND AFFILIATES; AND (4) YOU WILL LIMIT DISTRIBUTION OF THE PRODUCT (OR ANY PORTION THEREOF) TO THOSE INDIVIDUALS PROVIDED HEREIN.
YOU FURTHER REPRESENT, WARRANT AND COVENANT THAT, IF YOU PROVIDE ANY PERSON WITH ANY PRODUCTS OR SERVICES IN CONNECTION WITH YOUR USE OF THE PRODUCT HEREUNDER THAT COULD REASONABLY BE CONSTRUED AS "INVESTMENT ADVICE" UNDER THE TERMS OF THE ADVISERS ACT OR ANY OTHER SIMILAR LAW OR REGULATION IN ANY JURISDICTION IN WHICH YOUR COMPANY IS LOCATED OR IN WHICH YOU PROVIDE INVESTMENT ADVICE OR IN WHICH YOU ACCESS, USE OR DISTRIBUTE THE PRODUCT AND, IF YOU ARE NOT OTHERWISE EXEMPT FROM THE REGISTRATION REQUIREMENTS THEREIN, YOU WILL ACT AS THE "INVESTMENT ADVISER" TO THAT PERSON AND COMPLY WITH ALL APPLICABLE LAWS AND OBLIGATIONS RELATED TO THAT ROLE.
THIS AGREEMENT SUPERSEDES ANY PREVIOUS AGREEMENT BETWEEN YOU AND THE COMPANY WITH RESPECT TO THE PRODUCT (OTHER THAN ANY AGREEMENTS THAT EXPLICITLY STATE THEREIN THAT THE TERMS THEREOF CONTROL AND PREVAIL OVER THE TERMS OF THIS AGREEMENT TO THE EXTENT THAT A DIRECT CONFLICT BETWEEN SUCH AGREEMENT AND THIS AGREEMENT EXISTS).
1. The Product Licensed. The term "Product" shall mean the computer programs, Internet web pages, data (excluding specific fiscal and other data that is entered by certain Subscriber Licensees, from time to time, on the Munetrix Site; provided, that the Company reserves the right to use, copy, store, display, and distribute such entered data, as may be revised from time to time by such Subscriber Licensees, on the Munetrix Site and in Product Output), analyses, screens, manuals and other information of any kind that are housed on and accessible to you through, the Company's website located at the URL: http://munetrix.com ("Munetrix Site") as well as all updates, enhancements and modifications thereto, and all intellectual property contained therein. Without limiting the generality of the foregoing, the Product shall include: (i) a database of financial information relating to various cities, municipalities, and/or other Governmental Entities (as defined below) accessible via the Munetrix Site by means of a subscription paid for by the below-defined Licensee and/or otherwise made available to Users through a non-revenue user license (the "Database"); (ii) the format and organization of information entered by a user of the Product, and the integration of such information with the Database (the "Format"); (iii) the HTML code, Java code, C++ code, C# code, ASP scripts, text, help screens, CGI scripts, other computer programs and associated documentation that provide a graphical user interface and system to store, process, retrieve and output information contained in either or both the Database and the User-Entered Information (the "Programs"); (iv) the format and organization of information output by the Product; and (v) Internet web page reports, spreadsheets, graphs, charts, tables, documents and other materials, whether in printed, electronic or any other form, that contain copies of all or part of the Database or Format, together with any works derived from such materials (collectively, "Product Output"). The licensed Product does not include the right to view or obtain, and the Company does not have an obligation to provide, any financial information of Governmental Entities for any future time periods, unless and until such time as this information has been provided by the Company through the Munetrix Site.
2. Licensee. The term "Licensee" shall mean (i) the person, whether an individual or entity, that is responsible for subscribing to, and paying for, the license to use the Product hereunder through a separate agreement ("Subscriber Licensee") or (ii) the person, whether an individual or entity, that uses the Product to view or access elements of the Product that are not generally accessible to public without the use, directly or indirectly, of a log-in username or password (e.g., public data) ("Non-Subscriber Licensee").
3. Authorized User. The term "Authorized User" shall mean (i) in the case of a Subscriber Licensee, an individual for whom Licensee has paid the necessary licensing fees and whom the Licensee permits to access or otherwise use the Product by providing that individual with a user name and password for access to the Product and (ii) in the case of a Non-Subscriber Licensee, an individual that accesses or otherwise uses the non-subscription elements of the Product that are generally available to the public without the use, directly or indirectly, of a log-in username or password. An Authorized User must be the Licensee (if an individual) or a partner, employee, or agent of the Licensee.
4. User. The term "User" shall mean an individual who is the Licensee, any Authorized User and/or any other third party who accesses or uses the Product hereunder. Each User understands and agrees that the Company may use auditing software to monitor IP address access and excess bandwidth use. Should usage levels exceed what the Company deems reasonable for individual use, or should multiple IP addresses be detected on an Authorized User's account, the Company reserves the right to assess additional charges for that bandwidth usage or terminate this Agreement.
5. Client. The term "Client" shall mean any individual or entity for which the Licensee, Authorized User, or User is currently providing or is proposing to provide products or services to.
6. Grant of License. Subject to the terms and conditions of this Agreement, the Company grants to each Authorized User a limited nonexclusive, nontransferable (except as otherwise provided by the Company in writing) license to do the following:
6.1 Authorized User's Internal Use of the Product to Generate Product Output. Only an Authorized User may use the Programs and Database to generate Product Output and then, only for the Licensee's normal business use.
6.2 Authorized Users' Distribution of Product Output. Only an Authorized User may distribute Product Output. Product Output may be distributed internally, subject to the terms of this Agreement and the following additional restrictions: (1) Product Output in non-static, electronic format, including, without limitation, that maintained in any database, spreadsheet or the like, may only be distributed to other Authorized Users; and (2) Product Output containing substantially similar content and/or analysis may be distributed only in print and/or static electronic (e.g., .pdf) format. In addition to internal distribution of Product Output as provided above, Product Output may be distributed externally to Clients or other third parties, subject to the following conditions: (i) the Product Output must be in print or static electronic format; (ii) no part of the Database is resold; and (iii) in no event shall the aggregate Product Output distributed to any Client or other third party consist of more than an insubstantial portion of the Database. The distribution of any Product Output that does not meet all of the conditions set forth herein will require the express prior written consent of the Company, and the payment of additional fees or royalties to be determined in the Company's sole discretion. Except as otherwise explicitly provided in Section 6.2 or elsewhere in this Agreement, in no event shall Product Output be copied or distributed to any person.
Any Product Output that is distributed to any third party must contain the following statement, in legible type:
"(c) Munetrix LLC 2010 - . All rights reserved. The information contained herein: (1) is proprietary to Munetrix LLC and/or its content providers; (2) may not be copied, adapted or distributed; and (3) is not warranted to be accurate, complete or timely. NeitherMunetrix LLC nor its affiliates or content providers are responsible for any damages or losses arising from any use of this information."
6.3 Additional Rights of the Company. The Company reserves the right, in its sole discretion, to: 1) determine to whom it will provide the Product 2) change the price for the Product on an annual, semi-annual, or more frequent basis, and 3) to change, limit, or discontinue any aspect, content, tool, or feature that is a part of the Product. The Company further reserves the right, in its sole discretion, to restrict the use of the Product as well as suspend or revoke your rights to use the Product if the Company determines that such use is in violation of this Agreement or applicable law.
7. Payment. In exchange for the rights granted hereunder, in the case of a Subscriber Licensee, such Subscriber Licensee has agreed to pay the Company (or the Company’s designee if explicitly set forth in a separate written agreement) the subscription fees in the amount specified in a separate agreement between the Licensee and the Company. In addition to any other rights that the Company may have hereunder, if full payment of all fees owed by such Subscriber Licensee is not forthcoming when due, the Company reserves the right to immediately terminate this Agreement and all of Users' rights hereunder. All subscription fees are non-refundable.
8. Ownership. User acknowledges and agrees that: (i) the Product, including, without limitation, any modifications, enhancements and updates, and any originals and copies thereof, in whole or in part, and all intellectual property rights therein (collectively, "Proprietary Information"), is owned by the Company and/or its third party content providers ("Content Providers"), as applicable; (ii) the Proprietary Information shall be treated as copyrighted and proprietary material of the Company and/or its Content Providers, as the case may be, and is protected by United States and international copyright law and international treaty provisions; (iii) the Proprietary Information is licensed, rather than sold, to Authorized User pursuant to this Agreement; and (iv) User has no rights in the Proprietary Information, other than the rights and licenses explicitly granted to it pursuant to this Agreement or otherwise available under applicable law. The Company may, from time to time, disclose additional information to Authorized User in the form of upgrades, documentation or other support. User agrees that such information shall also be deemed Proprietary Information.
9. Trademarks. User acknowledges that the Company, Inc. has acquired, and is the owner of, trademark rights in: (1) the name and word mark: "MUNETRIX"; and (2) the design mark: "MUNETRIX". User shall not, at any time or for any reason, challenge the validity of, or the Company's ownership of, the foregoing names and marks, and User waives any rights User may have at any time to do so. User agrees not to infringe, dilute, or misappropriate the foregoing names or marks, including without limitation by using them to identify material not created by the Company. All marks not owned by the Company are the property of their respective owners.
10. Restrictions on Use. Except as expressly provided in this Agreement or any amendment or addendum thereto or in a separate agreement, no User may: (i) use, copy, modify, merge, install, transfer or distribute the Product; (ii) reverse-engineer, decompile, translate, disassemble or separate the components of the Product (including, without limitation, viewing or otherwise obtaining HTML source code); (iii) sublicense, rent, sell or lease the Product or any part thereof; (iv) use any program, procedure, device or method other than the Programs and a web browser to access, use, reproduce or process the Database, the Programs, the Product Output or Format or any part thereof, without the Company's express prior written authorization; (v) encourage or facilitate any other User's breach of the terms of this Agreement; (vi) permit use of the Product by a person other than an Authorized User; (vii) use the same password and user name combination as another User, unless permitted by the Company; (viii) export the Product to any country where export is prohibited by the United States, or any other export laws; (ix) attempt to defeat, modify or work around any security devices protecting the Product, including, but not limited to, any attempt to probe, scan or test the vulnerability of a Product system or network or to breach Product security or authentication measures without proper authorization; (x) attempt to interfere with service to any User, host or network, including, without limitation, via means of submitting a virus to the Product, overloading, conducting "denial of service attacks", "flooding", "spamming", "mail bombing" or "crashing", (xi) send unsolicited e-mail, including, but not limited to, promotions and/or advertising of other products or services, via the Product or any affiliated system, (xii) forge any TCP/IP packet header or any part of the header information in any e-mail or newsgroup posting, (xiii) prepare, publish, or disseminate under the Company’s name or trademarks any chart, report, graphic, or information not created by the Company, (xiv) prepare, publish, or disseminate under the Company’s name or trademarks any data not actually obtained via the Product or that has been adulterated after being obtained via the Product.Violations of Product system or network security may result in civil or criminal liability. The Company reserves the right, at its sole discretion, to investigate such occurrences and to cooperate with law enforcement authorities in prosecuting Users who are involved in such violations.
11. Warranty and Disclaimer of Warranty. The Company warrants that it will make commercially reasonable efforts (or their equivalent under applicable law) to ensure that the Product is free of viruses and damaging or disabling code, errors or other defects. The Company reserves the right, without the obligation, to correct any known and correctable errors or defects in the Product.
EXCEPT AS OTHERWISE EXPLICITLY PROVIDED HEREIN OR IN ANOTHER WRITTEN AGREEMENT, THE PRODUCT IS PROVIDED "AS IS" WITH ALL FAULTS AND THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND EFFORT IS WITH USER. AUTHORIZED USER ACKNOWLEDGES FOR ITSELF AND ALL USERS ACCESSING THE PRODUCT THROUGH IT THAT, BECAUSE OF THE NATURE OF SOFTWARE AND THE INTERNET, THE PRODUCT MAY NOT BE ACCESSIBLE WHEN NEEDED, AND THAT INFORMATION TRANSMITTED OVER THE INTERNET (INCLUDING, BUT NOT LIMITED TO, DATA UPDATES, THE PRODUCT OUTPUT AND THE USER-ENTERED INFORMATION) MAY BE SUBJECT TO THIRD PARTY INTERCEPTION AND MODIFICATION. EXCEPT AS SPECIFICALLY SET FORTH HEREIN, THE COMPANY DISCLAIMS ALL WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT, ACCURACY OF INFORMATIONAL CONTENT, AND ABSENCE OF VIRUSES AND DAMAGING OR DISABLING CODE. NEITHER THE COMPANY NOR ITS CONTENT PROVIDERS WARRANT THE ACCURACY, CORRECTNESS, COMPLETENESS, OR TIMELINESS OF THE PRODUCT. EXCEPT TO THE EXTENT OTHERWISE SPECIFICALLY PROHIBITED BY APPLICABLE LAW, NEITHER THE COMPANY NOR ITS AFFILIATES (COLLECTIVELY, THE "COMPANY PARTIES") NOR THEIR CONTENT PROVIDERS SHALL BE RESPONSIBLE FOR INVESTMENT DECISIONS, DAMAGES, OR OTHER LOSSES RESULTING FROM USE OF THE PRODUCT OR THE INFORMATION CONTAINED THEREIN. PAST PERFORMANCE DOES NOT GUARANTEE FUTURE RESULTS. ANY INFORMATION PROVIDED IS FOR INFORMATIONAL AND EDUCATIONAL PURPOSES ONLY.
EACH USER OF THE PRODUCT ACKNOWLEDGES AND AGREES THAT ALL DATA ON THE MUNETRIX SITE IS PROVIDED BY THIRD PARTIES AND NOT THE COMPANY AND THAT NO MEMBER OF THE COMPANY GROUP IS RESPONSIBLE FOR THE ACCURACY, FINALITY, OR RELIABILITY OF ANY SUCH DATA. EACH USER OF THE PRODUCT ACKNOWLEDGES AND AGREES THAT THE COMPANY PROVIDES CERTAIN LICENSED USERS, INCLUDING CERTAIN GOVERNMENT ENTITIES THE ABILITY TO ENTER AND REVISE PROJECTIONS, FORECASTS, FISCAL AND OTHER DATA ON THE MUNETRIX SITE, FROM TIME TO TIME, AS DETERMINED IN THE DISCRETION OF SUCH LICENSED USERS. EACH USER OF THE PRODUCT ACKNOWLEDGES AND AGREES THAT ANY USE OF THE PRODUCT AND THE DATA CONTAINED THEREON SHALL BE AT SUCH USER'S SOLE RISK.
11.1 AUTHORIZED USER: EACH AUTHORIZED USER WHO MANIFESTS HIS OR HER ASSENT TO THE PROVISIONS OF THIS AGREEMENT REPRESENTS, WARRANTS AND COVENANTS THAT HE OR SHE IS COMPLETELY AND UNCONDITIONALLY AUTHORIZED BY LICENSEE TO ENTER INTO THIS AGREEMENT, THAT HE OR SHE IS BOUND BY ALL OF ITS TERMS, THAT HE OR SHE IS AUTHORIZED TO ACKNOWLEDGE AND AGREE TO ITS TERMS ON BEHALF OF ANY USER ACCESSING OR USING THE PRODUCT THROUGH HIM OR HER AND THAT HE OR SHE IS RESPONSIBLE FOR THE USE OF THE PRODUCT BY ANY OTHER USER WHO ACCESSES OR USES IT THROUGH OR ON BEHALF OF THAT AUTHORIZED USER.
12. Limitation of Liability. In addition to any other disclaimer, limit and/or restriction contained in this Agreement, each User expressly agrees that it is solely responsible for (i) the manner by which, and the purpose for which it accesses and uses the Product hereunder, (ii) the results it obtains (or not) from such access or use; and (iii) any damages to itself, any Licensee, any other User or Authorized User, any Client and/or any other third parties arising from its use of the Product. Except as otherwise specifically prohibited by applicable law, the Company Parties and their content providers will not be liable for: (i) loss of, or damage to, records or information of any User, Licensee, Authorized User, Client or other third party; or (ii) any damages suffered or claimed by any such person(s) based on any third party claim related to use of the Product.
EXCEPT AS SPECIFICALLY PROHIBITED BY APPLICABLE LAW OR OTHERWISE EXPLICITLY PROVIDED HEREIN, THE AGGREGATE LIABILITY FOR THE COMPANY FOR ANY DIRECT DAMAGES ARISING UNDER OR IN ANY WAY RELATING TO THIS AGREEMENT, THE PRODUCT OR ANY OTHER SERVICES PROVIDED BY THE COMPANY, WHETHER ARISING IN CONTRACT, TORT OR ANY OTHER LEGAL THEORY SHALL NOT UNDER ANY CIRCUMSTANCES EXCEED THE AMOUNT PAID TO THE COMPANY BY SUCH LICENSEE, AUTHORIZED USER, OR USER, AS APPLICABLE, FOR USE OF THE PRODUCT DURING THE SIX-MONTH PERIOD IMMEDIATELY PRECEDING THE OCCURRENCE OF SUCH CLAIM FOR DAMAGE. NOTWITHSTANDING ANY OTHER PROVISION IN THIS AGREEMENT TO THE CONTRARY AND EXCEPT AS OTHERWISE SPECIFICALLY REQUIRED BY APPLICABLE LAW, THE COMPANY WILL NOT BE LIABLE FOR ANY PUNITIVE, SPECIAL, INCIDENTAL, INDIRECT, EXEMPLARY OR OTHER, SIMILAR FORMS OF CONSEQUENTIAL DAMAGES, LOSS OF PROFITS, LOSS OF BUSINESS, LOSS OF REVENUE, LOSS OF GOODWILL OR ANTICIPATED SAVINGS, OR LOSS OF DATA. NO PARTY AFFILIATED WITH THE COMPANY SHALL HAVE ANY LIABILITY TO ANY LICENSEE, AUTHORIZED USER, USER, CLIENT OR ANY OTHER THIRD PARTY UNDER THIS AGREEMENT.
13. Termination. Notwithstanding any provision in this Agreement to the contrary, the Company may immediately terminate this Agreement without notice in the event that Licensee or any Authorized User or any User accessing the Product through Licensee or any Authorized User commits any act or omission that would be a breach of the ownership, use, copying, distribution, confidentiality provisions of this Agreement if such act or omission were committed by the Authorized User, including, but not limited to, (i) permitting use of the Product by a person other than an Authorized User; or (ii) using, copying or distributing Product Output other than as expressly authorized by this Agreement.
14. Effect of Termination. Upon expiration or termination of this Agreement for any reason, all of Authorized User's rights in and to the Product (excluding previously obtained Product Output; provided, that the restrictions applicable to the use and distribution of Product Output remain adhered to), as well as the rights of all Users and any Licensee obtaining access to the Product through such Authorized User, shall immediately terminate. Expiration or termination shall not affect any obligation to pay all fees and/or royalties due prior to that event, and expiration/termination shall not relieve any party of any liability for breach of this Agreement. The terms of Sections 8, 9, 10, 11, 12, 14, 15, 16, 17.1, 17.2, 17.3, 18, 19, 20, 21, 22, 24, and 26 shall survive expiration or termination of this Agreement.
15. Confidentiality. Except as expressly provided in this Agreement or as required by law, Authorized User shall keep secret and confidential and shall not disclose, provide or otherwise make available to any person the Proprietary Information and shall cause each User accessing or using the Proprietary Information through, or on behalf of that Authorized User to do the same. Authorized User (i) shall use his or her best efforts, and shall employ reasonable security measures, to prevent any unauthorized disclosure of the Proprietary Information and (ii) shall immediately advise the Company of any information Authorized User has or receives of any actual or potential unauthorized disclosure or access. Authorized User acknowledges that the Product is only being disclosed to Authorized User based on a confidential relationship established under this Agreement. Authorized User further acknowledges that such information is to be used only as expressly permitted hereunder, and that the restrictions of this Agreement are necessary to protect the secrecy of the information and to protect against the occurrence of irreparable injury or harm to the Company.
16. Compliance with Regulations. User is solely responsible -- either by itself or through Licensee -- for obtaining appropriate regulatory approval of any Product Output to the extent necessary. User understands and agrees that (i) certain personally-identifiable information of User or Clients may be processed in the United States to enable the Company to fulfill its obligations hereunder and (ii) in providing such personally-identifiable information to the Company, User consents to such transfer and processing and agrees that, as between itself and the Company, User is solely responsible for complying with any rules or regulations applicable to such transfers. For absence of doubt, unless an applicable separate agreement expressly provides otherwise, the Company's role in the handling of any such personally-identifiable data is strictly limited to that of being a data processor for and on behalf of Licensee.
17. Family Educational Rights and Privacy Act, 20 U.S.C. Â§1232g (“FERPA”). The Parties understand and agree that: (i) As part of the work that the Company will provide pursuant to this Agreement (“Work”), the Company may create, receive, access or maintain, records or record systems from or on behalf of Licensee that (a) are subject to FERPA or (b) contain personally identifiable information from “Education Records” as defined by and subject to FERPA (collectively, “FERPA Records”). FERPA Records include all data that constitute FERPA Records in any form whatsoever, including, but not limited to, electronic, written and machine-readable form; (ii) Notwithstanding any other provision of this Agreement, these FERPA provisions or any other agreement, all FERPA Records created, received, accessed or maintained by the Company pursuant to this Agreement will remain the sole and exclusive property of Licensee; (iii) Licensee shall comply with all FERPA obligations applicable to Licensee and shall identify all FERPA Records to the Company
17.1 FERPA Compliance. In connection with all FERPA Records that the Company may create, receive, access or maintain on behalf of Licensee pursuant to this Agreement, the Company is designated as a School Official with a legitimate educational interest in and with respect to such FERPA Records, only to the extent to which the Company (a) is required to create, receive, access or maintain FERPA Records to carry out this Agreement, and (b) understands and agrees to all of the following terms and conditions:
17.1.1 Prohibition on Unauthorized Use or Disclosure of FERPA Records. The Company will hold Licensee FERPA Records in strict confidence. The Company will not use or disclose FERPA Records received from or on behalf of Licensee, including any FERPA Records provided by a Licensee student directly to the Company, except as permitted or required by this Agreement or these FERPA provisions.
17.1.2 Maintenance of the Security of FERPA Records. The Company will use administrative, technical and physical security measures to preserve the confidentiality and security of all FERPA Records received from, or on behalf of Licensee, its students or any third party pursuant to this Agreement.
17.1.3 Reporting of Unauthorized Use or Disclosure of FERPA Records. The Company shall, within a reasonable amount of time after the Company’s discovery, report to Licensee any known use or disclosure of FERPA Records not authorized by these FERPA provisions. The Company’s report will identify, if known: (i) the nature of the unauthorized use or disclosure, (ii) the FERPA Records used or disclosed, (iii) who made the unauthorized use or disclosure, (iv) what the Company has done or will do to mitigate any deleterious effect of the unauthorized use or disclosure, and (v) what corrective action the Company has taken or will take to prevent future similar unauthorized use or disclosure. The Company will provide such other information related to any unauthorized use or disclosure of FERPA Records, including written reports, as reasonably requested by Licensee. For purposes of this Section 26.4, an unauthorized disclosure or use includes any use or disclosure of a FERPA Record by a Company employee or agent that the employee or agent does not require to perform Work. The Parties agree that these FERPA provisions in no measure is a commitment on behalf of the Company to contractually assume any Licensee obligation under FERPA.
17.1.4 Right to Audit. If Licensee has a reasonable basis to believe that the Company is not in compliance with the terms of these FERPA provisions, Licensee may inform the Company of said belief and thereafter Licensee and the Company shall cooperate in determining whether an audit is necessary and in the event determined shall cooperate in the reasonable auditing of the Company’s compliance with FERPA as the Company’s compliance relates to Licensee’s FERPA Records maintained by the Company.
17.2 Return or Secure Destruction of FERPA Records. The Company agrees that no later than thirty (30) days after expiration or termination of this Agreement or these FERPA provisions for any reason, or within thirty (30) days after Licensee’s written request, the Company will halt all access, use, creation, or processing of FERPA Records and will return to Licensee or Securely Destroy all FERPA Records, including any copies created by the Company or any subcontractor; and the Company will certify in writing to Licensee that all FERPA records have been returned to Licensee or Securely Destroyed. Pursuant to this Section 17.2, “Secure Destruction,” “Securely Destroy” and “Securely Destroyed” mean shredding, erasing or otherwise modifying a record so as to make it unreadable or indecipherable.
17.3 Disclosure. The Company will restrict disclosure of FERPA Records solely to those employees, subcontractors, or agents of the Company that have a need to access the FERPA Records in order for the Company to perform its obligations under this Agreement or these FERPA provisions. If the Company discloses any FERPA Records to a subcontractor or agent, the Company will require the subcontractor or agent to comply with restrictions and obligations that align with the restrictions and obligations imposed on the Company by this Agreement and these FERPA provisions
17.4 Compliance Expenses. Any expenses, costs or damages incurred by the Company resulting from Licensee’s failure to comply with FERPA shall be Licensee’s responsibility.
18. Governmental Licensee. Notwithstanding anything to the contrary contained in this Agreement, if Licensee is a Governmental Entity (a "Government Licensee"), then such Government Licensee and its Authorized Users may disclose the Product Output to the extent reasonably necessary to comply with any applicable foreign, domestic, federal, state, or local laws (as each of the same may be in effect from time to time), including, without limitation, any Freedom of Information Act or other disclosure requirements imposed by law. Notwithstanding anything to the contrary contained in this Agreement, a Governmental Licensee does not waive any sovereign or governmental immunity from suit or liability by entering into this Agreement and fully retains all immunities and defenses provided by law with respect to any action based upon or occurring as a result of this Agreement. For the purposes of this Agreement, a "Governmental Entity" means any government or political subdivision thereof, whether foreign or domestic, federal, state, provincial, county, local, municipal or regional, or any other governmental entity, any agency, authority, department, division or instrumentality of any such government, political subdivision or other governmental entity, any public school district, public school academy, non-public school, intermediate school district, any court, arbitral tribunal or arbitrator, and any nongovernmental regulating body, to the extent that the rules, regulations or orders of such body have the force of law.
19. No Advice. User acknowledges and agrees that the Munetrix Site does not provide investment advice (as defined in the applicable jurisdiction(s)), that nothing within the Product constitutes such investment advice and that the User will not treat any Product Output as investment advice or make any representation to any third party to that effect. User further acknowledges and agrees that; (i) the Company does not endorse or oppose the financial strength or spending decisions of any Governmental Entities or other parties whose information is accessed through or analyzed by the Product; and (ii) nothing within the Product is intended to be or to be treated as an inducement or invitation to engage or not engage in any kind of business activity or relationship with any Governmental Entities or other parties.
20. Inadequacy of Legal Remedy. User acknowledges that the Company's legal remedies (including the payment of damages) may not be sufficient in the event of any breach by User of any provisions of this Agreement including, but not limited to, those related to the ownership, use, copying, distribution, confidentiality or nondisclosure of the Product, Product Output,Trademarks or other the Company proprietary information, and that the Company may suffer continuing and irreparable injury to its business as a direct result of such breach. Therefore, in the event of any such breach, the Company may seek any injunctive relief necessary to prevent or cure such breach (including temporary and preliminary relief, and relief by order of specific performance), without notice or the need to post bond.
21. Place for all Disputes. All disputes arising out of this Agreement or the performance thereof shall be determined exclusively under the laws of the State of Michigan, United States of America, without regard to its conflict-of-law provisions. In the event of any legal proceedings arising out of this Agreement or the performance thereof, User agrees and consents to the exercise of personal jurisdiction over User by any state or federal court of law or equity located in Oakland County, Michigan, U.S.A. User shall not initiate any legal proceeding arising out of this Agreement or the performance thereof except in the applicable jurisdiction set forth above. Alternatively, at the Company's sole option, disputes arising out of this Agreement or the performance thereof, including all claims for non-performance by the Company, may be finally settled by arbitration in Pontiac, Michigan U.S.A. under the Rules of the American Arbitration Association. Such arbitration shall be conducted by one or more arbitrators appointed in accordance with such rules applying this Agreement and consistent provisions of the internal laws (except conflict of law rules) of the State of Michigan, U.S.A.
22. Entire Agreement; Variation. This Agreement sets forth the entire agreement between the parties with respect to the subject matter hereof. The Company reserves the right to modify this Agreement from time to time at its discretion and User agrees that it will be bound by such modified Agreement upon User's accessing the Product after the date of the modification in question.
23. Assignment. No Licensee or Authorized User may assign any of its rights under this Agreement without the Company's prior written consent. Any purported assignment by a Licensee or Authorized User without such prior written consent will be void.
24. Third Party Beneficiaries. There are no intended third party beneficiaries of this Agreement (including, without limitation, any Licensee) and no law or regulation providing to the contrary shall apply to this Agreement.
25. Severability. If any provisions of this Agreement shall be held to be invalid, illegal or unenforceable, such provisions shall be modified, or if not possible, severed, to reflect the fullest valid, legal and enforceable expression of the intent of the parties and the remainder of this Agreement shall not be affected thereby.
26. Additional Product Features.
26.1 Links. The Munetrix Site may contain information, products, and services provided by third parties and links (including advertisements) to third party web sites. This information and these products, services, and links are provided only as a convenience to Users. The Company does not review or control this information or these products, services, or other web sites, and the Company does not make any representations or warranties, express or implied, regarding this information or these products, services, or web sites. Inclusion of any of the foregoing in the Product does not constitute or imply an endorsement, authorization, sponsorship, or affiliation by or with the Company with respect to any third party or its web site or content, or any information, products, or services provided by that third party.
26.2 Emergency Preparedness Manager. The Munetrix Emergency Preparedness Manager Program (the “EPM Program”) is designed to help licensed schools schedule and report certain fire, severe weather, and security lockdown drills. Munetrix does not, however, represent that use of the EPM Program will ensure compliance with all applicable legal requirements or that using the EPM will assure that the Licensee or its students are free of any harm should unfortunate events occur. Licensees are urged to independently consult with their own counsel to determine compliance or risks associated with fire, tornado or lockdown events. The EPM is a planning tool designed to help manage a schedule for training purposes. Munetrix will not be liable for any loss, damage, or claim relating to the Licensee’s legal compliance of the EPM Program. The use of the EPM Program will be subject to all of the terms and conditions of the Licensee’s existing subscription agreement with Munetrix, including, without limitation, this agreement.
EFFECTIVE: JUNE 20, 2020