Terms & Conditions
Updated Aug 2018
1. License Grant and Restrictions. Clear Seas grants to Subscriber a limited, personal, non-transferable, non-sublicensable license to possess, and use the information in, each Report, solely for the purpose of analysis and decision-making in support of Subscriber’s own business operations (the “Purpose”).
2. Report Fees. Unless this Agreement expressly provides otherwise, Subscriber will pay to Clear Seas the License Fees identified in this Agreement within 30 days after receipt of each Report or additional copy thereof.
3. Ownership of Reports. Except to the extent of the express license granted in Section 1, all right, title, and interest in and to each Report (including, but not limited to, each copy of each Report) remains the property exclusively of Clear Seas.
4. Restrictions. The following restrictions are in addition to, and not in lieu of, any other restriction in this Agreement
(a) Subscriber will not disclose any Report or any information in any report to any third party.
(b) Subscriber will use, and permit the use of, each Report only for the Purpose.
(c) Subscriber will disclose each Report only to such of Receiving Party’s employees as have a bona fide need to possess or know the information in the Report in the course of accomplishing the Purpose.
(d) Subscriber will cause each employee to whom Subscriber discloses any Report to be bound by an obligation of confidentiality that is at least as rigorous as the obligation contained in this Agreement.
(e) Subscriber will not use any part of the Report or any information in any Report in any ad, promotion, publication, or other communication with any third party.
(f) Subscriber will not copy any Report or any portion of any Report.
5. Marketing Statements. Notwithstanding anything in Section 4 to the contrary, but subject to the provisions of this Section 5, Subscriber may use in its advertising and promotion Marketing Statements approved by Clear Seas.
(a) A “Marketing Statement” is a single, short, concise statement or assertion based on data contained in a Report. Combinations or lists of statements or claims will be broken into multiple Marketing Statements for purposes of Evaluation Fees and approvals. For the avoidance of doubt, a Marketing Statement does not include any name, trademark, or trade dress of Clear Seas, BNP Media, Inc., BNP Media II, LLC, or any other affiliate of Clear Seas.
(b) If Subscriber wishes to use one or more Marketing Statements in its advertising or promotion, Subscriber may submit to Clear Seas by any commercially reasonable means the proposed Marketing
Statement(s), along with the Evaluation Fee for each. Subscriber may submit, together with its proposed Marketing Statement(s), references to the Report that support the claim(s) made in such Marketing Statement(s).
(c) Within a commercially reasonable time after Subscriber’s submission of one or more Marketing Statements to Clear Seas, Clear Seas will evaluate each Marketing Statement.
(d) If Clear Seas determines, in Clear Seas’ sole but reasonable discretion, that a Marketing Statement is supported by the data in the applicable Report, Clear Seas will give to Subscriber notice so stating and, with respect to each Marketing Statement, Subscriber may use such Marketing Statement in advertising and promotion notwithstanding anything in Section 4 to the contrary.
(e) If Clear Seas determines, in Clear Seas’ sole but reasonable discretion, that a Marketing Statement is not supported by the data in the applicable Report, Clear Seas will give to Subscriber notice so stating and the restrictions in Section 4 will continue to apply. Clear Seas may, but need not, suggest revisions to a Marketing Statement that would qualify such Marketing Statement for the treatment provided for in Section 5(d).
(f) For the avoidance of doubt:
(i) The Evaluation Fee is payable for each Marketing Claim regardless of the determination by Clear Seas; and
(ii) Clear Seas makes no representation or warranty with respect to any Marketing Statement (regardless of any determination by Clear Seas under Section 5(d)) that the Marketing Statement
will meet any requirement of substantiation under Federal Trade Commission or other requirement.
6. Indemnification. Subscriber will indemnify, defend, and hold harmless Clear Seas and Clear Seas’ equity holders, directors, officers, employees, agents, and affiliates from and against any damages, penalties, costs, fees (including, but not limited to, reasonable attorneys’ fees), or liability of every kind arising out of, or related to, any of the following things, to the extent resulting from an act or omission of, or claim, suit, or cause of action by or against, Subscriber or any affiliate or agent of Subscriber.
(a) Any requirement that Clear Seas respond to any legal process, including, but not limited to, depositions, requests for admission, requests for documents, court or arbitration appearances, or similar requirements;
(b) Any investigation, enforcement action, or similar proceeding by any regulatory or law enforcement agency, including, but not limited to, the Federal Trade Commission or any state attorney general;
(c) Any use by Subscriber of any Marketing Statement; or
(d) Any violation or alleged violation by Subscriber of any law. If Clear Seas is required to provide one or more copies of any Report to one or more third parties in any suit, investigation, or proceeding, Subscriber will pay to Clear Seas the License Fees for each Report or copy thereof and, for the avoidance of doubt, the First Copy fee will apply to the first copy of the Report provided to each third party.
7. Warranty and Limitation of Liability.
(a) Clear Seas represents and warrants that each Report was prepared with commercially reasonable care, as limited by the methodology or restrictions stated in, or contemplated by, the relevant Report.
(b) EXCEPT AS EXPRESSLY WARRANTED IN SECTION 7(a), CLEAR SEAS MAKES NO REPRESENTATION OR
WARRANTY WHATSOEVER WITH RESPECT TO ANY REPORT OR ANY OTHER MATTER. SUBSCRIBER'S SOLE
REMEDY FOR CLEAR SEAS’ BREACH OF ANY OR ANY OTHER CLAIM, SUIT, OR CAUSE OF ACTION RELATED IN ANY WAY TO THIS AGREEMENT IS A REFUND OF THE FEES PAID FOR THE SPECIFIC REPORT OR PORTION
THEREOF WITH RESPECT TO WHICH THE LIABILITY ARISES. IN NO EVENT SHALL CLEAR SEAS BE LIABLE TO
SUBSCRIBER FOR ANY AMOUNT IN EXCESS OF THE FEES PAID FOR THE SPECIFIC REPORT OR PORTION THEREOF WITH RESPECT TO WHICH THE LIABILITY ARISES. CLEAR SEAS SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOST PROFITS, GOODWILL, USE, DATA, OR INTANGIBLE LOSSES, WHETHER DERIVED FROM THIRD PARTY CLAIMS OR LOSSES OF ANY NATURE WHATSOEVER OR OTHERWISE, REGARDLESS OF WHETHER CLEAR SEAS WAS ADVISED OF THE POSSIBILITY OR LIKELIHOOD OF SUCH DAMAGES OR COSTS OCCURRING, AND REGARDLESS OF WHETHER SUCH LIABILITY WAS BASED UPON TORT, WARRANTY, NEGLIGENCE, STRICT LIABILITY, CONTRACT, PRODUCT LIABILITY, OR ANY OTHER CLAIM AT LAW OR IN EQUITY. THIS LIMITATION WILL APPLY NOTWITHSTANDING THAT IS CAUSES ANY REMEDY TO FAIL OF ITS ESSENTIAL PURPOSE. THE LIMITATIONS OF LIABILITY AS SET FORTH HEREIN SHALL BE APPLICABLE TO AND SHALL INURE TO THE BENEFIT OF CLEAR SEAS AND ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, ATTORNEYS, AFFILIATES, AND PARTNERS.
(c) Without limiting the foregoing, and for the avoidance of doubt, Clear Seas makes no representation or warranty that anything in any