LICENSE AGREEMENT (this "Agreement") between Insurance Information Institute with offices at 110 William Street, New York, New York 10038 ("III") and the user that clicks acceptance to this Agreement ("Licensee" or "You"), with respect to the Know Your Plan ™ Application (the "Application").
THIS IS A BINDING CONTRACT. BY INDICATING "ACCEPT", YOU FULLY AGREE TO ALL OF ITS TERMS AND CONDITIONS. IF YOU DO NOT FULLY AGREE, YOU MUST NOT ACCESS, DOWNLOAD OR USE THE APPLICATION.
YOU REPRESENT AND WARRANT THAT YOU ARE AT LEAST EIGHTEEN (18) YEARS OLD. IF YOU ARE NOT AT LEAST EIGHTEEN, YOU CANNOT USE OR ACCESS THE APPLICATION.
1. DEFINITIONS. The following definitions shall apply to this Agreement.
1.1 "Content" means all data and information entered into the Application by Licensee.
1.2 "Party" means III or Licensee individually, and "Parties" means both III and Licensee.
2. USE OF APPLICATION AND THE PARTIES' CONTENT
2.1 License Grant. Subject to the terms and conditions of this Agreement, III grants Licensee a non-exclusive, limited, non-transferable license to access and use the Application and enter the Content in the Application solely for Licensee's personal use and not for any commercial use or for providing any services to any third party. Licensee agrees that it shall not modify or make derivative works of the Application or copy any ideas, features, functions or graphics of the Application. Licensee shall not attempt to gain unauthorized access to the Application's systems code or networks or interfere with or disrupt the integrity or performance of the Application or the data contained therein. Except as expressly set forth herein, no other use, access, copying, display or distribution, in any form, of the Application, in whole or in part, by Licensee is permitted.
2.2 Withdrawal of Application. III has the right in its sole discretion to cease allowing use of the Application at any time, in which event upon receipt of email notice from III, Licensee shall promptly cease using the Application.
2.3 Limitations and Restrictions. Licensee shall not download, re-engineer, reverse engineer, reverse translate, decompile, reverse assemble, disassemble or in any manner decode or attempt to derive object or source code from the Application for any purpose whatsoever. Licensee agrees that it shall not (or attempt to) access, download, copy or use (or use any remote or automatic device, code or method to access, download, copy or use) any data or other information provided by any other user of the Application.
2.4 Ownership and Responsibility for Licensee Content and Accounts. Licensee acknowledges that Licensee is solely responsible for the Content (including, without limitation, its accuracy, quality, legality, and reliability) and Licensee's use of the Application. Licensee is the sole owner of the Content and III has no ownership rights with respect to the Content. Licensee agrees that all Content entered into the Application are limited to data and information with respect to homes, apartments, cars and personal possessions owned or leased by Licensee. Licensee represents and warrants that it shall not provide any Content that Licensee does not have the right to include in the Application. Licensee agrees that it shall not send or store in or through use of the Application (i) any infringing, obscene, threatening, libelous, or otherwise unlawful data or information or data or information that violates any third party's privacy's rights, or (ii) any material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs. Licensee agrees that Licensee is fully responsible for all activity occurring under Licensee's accounts and passwords. Licensee shall immediately notify III of any unauthorized use of any of Licensee's passwords or accounts or any other unknown or suspected breach of security. Licensee agrees to comply with all applicable laws with respect to Licensee's use of the Application.
3. BREACH OF AGREEMENT
3.1 In the event that either Party breaches this Agreement, the other Party has the immediate right to terminate this Agreement without notice to the other Party.
3.2 Upon breach of this Agreement by Licensee, III has the right to withhold, remove and discard any and all of the Content without notice. Upon termination of this Agreement, Licensee's right to use and access the Application and the Content shall immediately cease.
4.1 Taxes. Licensee will pay to III or to the relevant taxing authority, as appropriate, any applicable sales, use, goods and services, value added or other taxes payable with respect to Licensee's use of the Application.
5. DISCLAIMERS; LIMITATION OF LIABILITY
5.1 Disclaimers; Limitation of Liability. TO THE MAXIMUM EXTENT NOT PROHIBITED BY APPLICABLE LAW, IN NO EVENT SHALL III, OR ANY OF ITS AFFILIATES, OFFICERS, DIRECTORS, OR EMPLOYEES OR ANY THIRD PARTY THAT HOSTS THE APPLICATION OR THE CONTENT BE LIABLE TO LICENSEE OR TO ANY THIRD PARTY FOR (I) ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, OR INDIRECT DAMAGES, (II) FOR ANY DAMAGES WITH RESPECT TO THE ACCURACY OR DELETION OF ANY DATA OR CONTENT ENTERED, OR STORED ON OR IN THE APPLICATION OR (III) FOR THE SUFFICIENCY OR COMPLETENESS OF ANY DATA OR CONTENT ENTERED OR STORED ON OR IN THE APPLICATION, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY ARISING OUT OF THIS AGREEMENT OR THE APPLICATION, WHETHER OR NOT ADVISED OF THE POSSIBLITY OF SUCH DAMAGES, AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. LICENSEE ACKNOWLEDGES AND AGREES THAT THERE IS NO GUARANTEE THE DATA OR CONTENT ENTERED INTO OR STORED ON THE APPLICATION WILL BE SECURE. TO THE MAXIMUM EXTENT NOT PROHIBITED BY LAW, IN NO EVENT SHALL III OR ITS AFFILIATES, OFFICERS, DIRECTORS OR EMPLOYEES OR ANY THIRD PARTY THAT HOSTS THE APPLICATION OR THE CONTENT HAVE ANY LIABILITY OF ANY KIND WITH RESPECT TO THE DELETION OF ANY OR ALL OF LICENSEE'S DATA OR THE CONTENT OR ACCESS TO LICENSEE'S DATA OR THE CONTENT. LICENSEE AGREES THAT LICENSEE IS SOLELY RESPONSIBLE FOR MAINTAINING COPIES OF ALL DATA AND CONTENT ENTERED OR STORED IN OR ON THE APPLICATION. TO THE MAXIMUM EXTENT NOT PROHIBITED BY APPLICABLE LAW, IN NO EVENT SHALL III'S AGGREGATE LIABILITY UNDER ANY AND ALL LEGAL THEORIES WITH RESPECT TO THIS AGREEMENT, THE APPLICATION, LICENSEE'S DATA OR THE CONTENT BE IN EXCESS OF ONE DOLLAR ($1.00).
5.2.1 III DOES NOT MAKE ANY REPRESENTATIONS OR WARRANTIES AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE APPLICATION OR ACCURACY OR RELIABILITY OF THE APPLICATION OR THE ABILITY TO ACCESS THE APPLICATION. TO THE MAXIMUM EXTENT NOT PROHIBITED BY APPLICABLE LAW, III SPECIFICALLY DISCLAIMS ANY AND ALL WARRANTIES, CONDITIONS, GUARANTEES AND REPRESENTATIONS WITH RESPECT TO THIS AGREEMENT, THE APPLICATION OR THE HOSTING OF THE APPLICATION AND THE CONTENT, WHETHER EXPRESS OR IMPLIED IN LAW OR IN FACT, ORAL OR IN WRITING INCLUDING, WITHOUT LIMITATION, DISCLAIMING ANY AND ALL WARRANTIES AS TO MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT,. THE APPLICATION AND THE RESULTS OBTAINED FROM USE OF THE APPLICATION ARE PROVIDED ON AN "AS IS" BASIS.
5.2.2 TO THE MAXIMUM EXTENT NOT PROHIBITED BY LAW, IN NO EVENT SHALL III OR ITS AFFILIATES, OFFICERS, DIRECTORS OR EMPLOYEES BE LIABLE FOR ANY DAMAGES SUFFERED OR INCURRED BY LICENSEE OR ANY THIRD PARTIES ARISING OUT OF ANY FAULTS, INTERRUPTIONS, DELAYS, INACCURACIES, ERRORS, DELETIONS OR OMISSIONS IN CONNECTION WITH THE LICENSEE'S DATA, THE CONTENT OR THE APPLICATION. III IS NOT RESPONSIBLE OR LIABLE FOR THE DELETION, CORRECTION, DESTRUCTION, DAMAGE, LOSS OF OR FAILURE TO STORE ANY AND ALL OF LICENSEE’S DATA OR THE CONTENT. LICENSEE ACKNOWLEDGES AND AGREES THAT LICENSEE IS SOLELY RESPONSIBLE FOR MAINTAINING COPIES OF LICENSEE'S DATA AND THE CONTENT.
6.1 Indemnification by Licensee. Licensee shall indemnify and hold harmless III, any third party that hosts the Application and each of their affiliates and each of their directors, officers and employees with respect to any claim, demand, cause of action, liabilities, damages, awards, settlements, costs, losses, and expenses (including, without limitation, reasonable attorneys' fees and costs of investigation) arising out of any claim relating to or arising out of Licensee's use of the Application, any of Licensee's data or any of the Content, including, without limitation, any claims by Licensee's insurance companies that provide insurance coverage to Licensee, other than any third party claims that the Application infringes a third party's patent, copyright, trademark, trade secret or other intellectual property rights. Licensee shall not settle any such claim without a full release of III from all liability.
7.1 Ownership. III shall own all right, title and interest, including all related intellectual property rights, in and to the Application and any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Licensee relating to the Application. This Agreement does not convey to Licensee any rights of ownership in or related to the Application. III's name, logo, and the product names associated with the Application are trademarks of III or third parties. III owns all proprietary rights, including, without limitation, patent, copyright, trade secret and trademark rights to the Application and any modifications, enhancements and derivatives to the Application. Licensee acknowledges that Licensee is granted only a limited right of use of the Application, which right of use is not coupled with an interest and is revocable in accordance with the terms of this Agreement. Licensee agrees not to assert any ownership interest in the Application or any software used in connection with producing or providing the Application. Licensee agrees that the Application embodies valuable, confidential and trade secret information of III.
8.1 Governing Law. This Agreement and all claims arising out of or relating to this Agreement, the Content or the Application, including without limitation tort claims, shall be interpreted, construed and enforced in all respects in accordance with the United States federal laws with respect to patent and copyright rights and with respect to all other claims with the laws of the State of New York, except for its conflict of laws principles. The parties agree that any action or proceeding arising out of or in connection with this Agreement, the Content or the Application shall be brought exclusively in the federal and state courts located in the Borough of Manhattan, in New York City in the State of New York, U.S.A. and the Parties waive any right to claim inconvenient forum and the Licensee waives any and all rights to claim immunity. The Parties waive any and all rights to a jury trial.
8.2 Notices. Notices will be deemed effective hereunder if in writing, delivered in person, or by facsimile, certified or registered mail, or by FedEx or similar private mail service, and addressed to III at its above address and to Licensee at the email address that Licensee uses when Licensee clicks acceptance (or to such successor addresses as the Parties may identify by providing notice in accordance with this Section). Licensee can also contact III with respect to questions and complaints about the Application by emailing firstname.lastname@example.org.
8.3 Assignments. This Agreement shall be binding upon and inure to the benefit of the Parties and their affiliates, successors and assigns. Neither Party may assign or transfer this Agreement or its rights and obligations under this Agreement, except in connection with a merger, acquisition or sale of substantially all of the assets of a Party. Any assignment or transfer in violation of this Section is null and void.
8.4 Independent Contractors. The Parties to this Agreement are independent contractors. Neither Party is an agent, representative or partner of the other Party. Neither Party shall have any right, power or authority to enter into any agreement for, or on behalf of, or incur any obligation or liability of, or to otherwise bind, the other Party. This Agreement shall not be interpreted or construed to create an association, agency, joint venture or partnership between the Parties or to impose any liability attributable to such a relationship upon either Party.
8.5 Force Majeure. If any Party shall be delayed, interrupted or prevented from the performance of any obligation hereunder by reason of an act of God, fire, flood, war, public disaster, strike or labor dispute, natural disasters or other event beyond a party’s reasonable control, such party shall not be liable to the other for damages arising from such event and the time for performance of such obligation shall be extended for a period equal to the duration of the contingency that occasioned the delay, interruption or prevention.
8.6 Waivers; Entire Agreement. Any waiver of this Agreement by III must be in writing and executed by III to be effective. The failure of III at any time or times to require full performance of any provision hereof will in no manner affect the right of III at a later time to enforce the same. This Agreement constitutes the entire agreement between the Parties with respect to this Agreement, the Content and the Application and supersede all prior understandings between the Parties, written or oral, with respect to the subject matter of this Agreement.
8.7 Construction; Headings. In the event that any provision of this Agreement conflicts with the law under which this Agreement is to be construed or if any such provision is held invalid by a court with jurisdiction over the Parties to this Agreement, such provision shall be deemed to be restated to reflect as nearly as possible the original intentions of the Parties in accordance with applicable law, and the remainder of this Agreement shall remain in full force and effect. Headings of paragraphs and sections in this Agreement are for convenience only and should not be given any interpretative effect.
8.8 Survival. The provisions of Sections 1, 2.3, 2.4, 3.2, 4, 5, 6 and 7 of this Agreement shall survive the termination and expiration of this Agreement.
8.9 Injunctive Relief. In the event of a violation or threatened violation of III's intellectual property or proprietary rights with respect to any of the Application or the use of the Application in violation of this Agreement, III shall have the right, in addition to such other remedies as may be available pursuant to law or this Agreement, to injunctive or declaratory relief (including, temporary and preliminary relief) without the posting of any bond. Licensee acknowledges that legal remedies for such violation or threatened violation are inadequate.
8.10 Export Laws and Other Applicable Laws. Licensee agrees to use the Application in accordance with all applicable export and other laws, including, without limitation, United States export controls. Licensee represents and warrants that (i) Licensee is not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a "terrorist supporting" country and (ii) Licensee is not listed on any U.S. Government list of prohibited or restricted parties.
8.11 Modifications of this Agreement. III reserves the right to change, modify or amend this Agreement from time to time, effective five (5) days after the posting of an updated version of this Agreement. Licensee is responsible for reviewing this Agreement each time Licensee accesses or uses the Application. Use by Licensee of the Application five days after the initial posting of such changes, modifications or amendments shall constitute Licensee's acceptance of the revised Agreement.
Effective Date: June 4, 2013