In consideration of the covenants and agreements contained herein, and for other good and valuable consideration (the receipt and sufficiency of which are hereby acknowledged), the parties agree as follows:
- Incorporation of Recitals: The recitals and prefatory paragraph set forth above are incorporated in full into this Agreement.
The initial term of this Agreement shall be (“1”) month or 1 year (the “Initial Term”) as agreed upon by the parties, beginning on the date of execution (the “Effective Date”). This Agreement shall remain in effect for the period indicated or until terminated as provided herein. This Agreement shall automatically renew and continue in effect for each successive consecutive additional term of one month or one year (each, a “Renewal Term”) following the end of the Initial Term (the Initial Term and each Renewal Term hereinafter can be referred to as a “Term”). This Agreement shall be terminable by either party at any time by providing at least 30 days’ written notice to the other party as set forth in Section 17 of this Agreement. In the event that a termination notice is delivered, such termination shall be effective 30 days from such the date such notice was received.
- Registration and Activation for Services.
BKData™ Online Services is an online service for customers (the "Services") offered by BKData [BKData, PLLC].
Licensee becomes a subscriber to the Services ("Subscriber") by registering Licensee’s information and creating an account on the BKData signup page and completing the registration. Additionally, as a Subscriber Licensee may obtain access to certain services, software and technology ("Subscriptions") available to Subscribers.
Each Subscription allows Licensee access to certain services, software and other technology as may be provided now or in the future under the terms of each such Subscription and this Agreement. In addition, each Subscriber acknowledges and agrees to be bound and must follow the Online Terms and Conditions of Use posted on the BKData Website at http://www.BKData.com ("Online Terms"). These Online Terms also apply to the use of a given Subscription, and are incorporated into this Agreement. As a Subscriber, Licensee agrees to all of the terms and conditions listed above as a condition to Licensee use of the Services and as a Subscriber to BKData’s services and products.
When Licensee completes the registration process, Licensee creates account ("Account"). Licensee’s Account may also include billing information if applicable. Licensee is solely responsible for all activity on its Account and for the security of Licensee’s computer system. If Licensee permit others to use its Account, Licensee is responsible for their illegal or improper use by such persons. Licensee’s Account and Subscription(s) are subject to the Agreement. Licensee may not sell or charge others for the right to use its Account, or otherwise share or transfer its Account. Each Account is valid only for one specific I.P. address tied to the computer that was utilized upon registration and Licensee cannot access its Account from any other computer or I.P. address .
E. In providing information to BKData, Licensee agrees to (a) provide true, accurate, current and correct information about Licensee, and (b) to maintain and update Licensee’s registration information to keep it true, accurate, current and complete. If BKData has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, BKData has the right to suspend or terminate Licensee’s Account and refuse any and all current or future use of Licensee’s use of the Services or BKData (or any portion thereof).
F. In using this the site and Services Licensee agrees that Licensee will not: a) post, disseminate or transmit unauthorized advertising, promotional materials or any other type of unsolicited mass email to people or entities that have not agreed to be part of such mailings; b) omit, delete, forge or misrepresent transmission information, including Internet protocol addresses, or otherwise manipulate identifiers to disguise the origin of any content; c) impersonate any person or entity, or falsely state or otherwise misrepresent an affiliation with any person or entity; d) engage in any activities intended to withhold or cloak identity or contact information; e) send harassing and/or threatening messages to others.
G. To the extent that the following activities are prohibited by applicable law, in using this site Licensee will not: a) use the site for any illegal purpose, in violation of any applicable laws or regulations; b) engage in any Internet activities that would violate the personal privacy rights of others, including but not limited to, collecting and distributing information about Internet users without their permission, except as permitted by applicable law.
H. To the extent that any of the following activities materially interfere with this site or the network and systems of BKData, Licensee will not: a) interfere with, disrupt, or harm in any way the or servers or networks connected to this site or Service; b) use this site or Service to access the Accounts of others without permission; attempt to penetrate security measures of the this site, Service; or c) engage in denial of service attacks, i.e., actions designed to impair network access by flooding a site or the Internet with useless traffic.
In consideration for Licensee paying to BKData the Fees described in this Agreement, BKData shall license to Licensee use of the www.BKData.com site to view all mined data, charts, graphs, and maps (the “Data”) designated by which monthly package Licensee chooses.
CMS. Licensee will have access to a personal account on the BKData website which provides various reporting on the mined data. Such reports include but not limited to filed cases by Licensee, dismissed cases by Licensee, filed cases by all division/district competitors, dismissed cases by all division/district competitors, case information, targeting mapping of cases filed and dismissed, etc.
A. Website and Services License. BKData may provide Licensee with proprietary information, code or other similar materials, including without limitation the CMS (“Services IP”), including through its extranet services, solely in connection with providing the Services hereunder. Subject to the terms and conditions of this Agreement, BKData grants to Licensee a world-wide, revocable, non-exclusive, non-transferable, non-sublicensable, limited use license to access and use the BKData Website and Services IP solely in connection with Licensee’s business and solely to the extent expressly set forth in this Agreement. Such license shall immediately expire upon expiration of the Term or termination of this Agreement by either party for any reason. Licensee understands that the BKData may automatically update or create new versions of the BKData Website at its discretion.
B. Software License.
The BKData Website and Licensee’s Subscription(s) requires the use of the BKData interface software and may require the automatic download of software, other content and updates thereto onto your computer ("BKData Software"). You may not use BKData Software for any purpose other than the permitted access to the BKData and Licensee’s Subscription(s). Licensee understands that the BKData may automatically update, pre-load, create new versions or otherwise enhance the BKData Software and accordingly, the system requirements to use the BKData Software may change over time. You understand that neither this Agreement nor the terms associated with a particular Subscription entitles Licensee to future updates, new versions or other enhancements of the BKData Software associated with a particular Subscription although BKData may choose to provide certain future updates, new versions or other enhancements of the BKData Software in its sole discretion.
BKData hereby grants, and Licensee accepts, a limited, non-exclusive license and right to use the Services to view the Data as described in this Agreement. Licensee agrees not to duplicate, copy, download, store or resell such information and Data.
hereby grants, and Licensee accepts, a limited, non-exclusive license and right to use the BKData Software for Licensee’s use in accordance with this Agreement and any additional Subscription terms. The BKData Software is licensed, not sold. Licensee’s license confers no title or ownership in the BKData Software. This license is effective until termination in accordance with this Agreement.
E. Ownership. The BKData Software is the copyrighted and patent pending work of BKData and/or its licensors. All rights reserved, except as expressly stated herein. The BKData Software is protected by the copyright laws of the United States, international copyright treaties and conventions and other laws. The BKData Software may contain certain licensed materials and BKData’s licensors may protect their rights in the event of any violation of this Agreement.
F. Restrictions. Licensee may not, in whole or in part, copy, photocopy, reproduce, translate, reverse engineer, derive source code, modify, disassemble, decompile, create derivative works based on, or remove any proprietary notices or labels from the BKData Software or any software accessed via the BKData Website without the prior consent, in writing, of BKData.
Licensee is entitled to use the BKData Software for its own use, but Licensee is not entitled to: (i) sell, grant a security interest in or transfer reproductions of the BKData Software to other parties in any way, nor to rent, lease or license the BKData Software to others without the prior written consent of BKData; (ii) emulate or redirect the communication protocols used by the BKData Software; or (iii) exploit the BKData Software or any of its parts for any commercial purpose without BKData’s express written permission.
I n consideration for providing the Services to Licensee hereunder, Licensee shall pay to BKData all Fees detailed to Licensee. Fees are subject to change and BKData reserves the right to vary the amount of the Fees at anytime upon notice to Licensee.
Upon execution of this Agreement, Licensee agrees 1) provide a valid credit card to BKData to prepay for a month’s Services, and 2) to be charged immediately for such Services. Licensee will subsequently be auto-billed for all Fees every 30 days. Licensee hereby authorizes BKData to keep Licensee’s credit card on file for payment and to charge Licensee’s credit card for all Fees due and owing hereunder this Agreement provided by Licensee to BKData. In the event either party provides 30 days’ written notice of termination of this Agreement to the other party, BKData shall have the right to require, if applicable, the Licensee to immediately pay a deposit reasonably estimated by BKData to cover any Fees which are anticipated to be due and owing for the 30-day period prior to the termination date (which deposit shall be partially credited back to Licensee in the event the actual Fees due and owing for such period are less than the amount of such deposit). Licensee shall not, under any circumstance, (i) revoke the above-referenced authorization to charge the above-referenced credit card or ACH for any Services previously rendered or to be rendered during the above-referenced 30-day termination period, or (ii) contest any charges to the above-referenced credit card or ACH which are made by BKData in accordance with this Section 7. Licensee agrees it cannot halt any payment of Fees due to any technical difficulties or issues experienced by Licensee for the Services. Licensee shall, as is the case with other disputes arising hereunder, be entitled to resolve any and all such disputes pursuant to Section 15 of this Agreement.
- Breach of Licensee’s obligations:
If Licensee materially breaches any of its obligations under this Agreement, including the failure to timely pay any Fees or other monies owed, BKData shall be permitted, at its sole discretion, to do any or all of the following (it being understood that such remedies are not exclusive of one another or any other remedies BKData may have at equity or law): (1) terminate this Agreement without notice, in which case Fees shall remain due and owing to BKData for all Services provided prior to the date of termination; (2) temporarily suspend this Agreement without notice (it being understood that BKData shall retain the right to reinstate this Agreement at any time in its sole discretion); (3) for unpaid Fees, assess interest at the lesser of 1.5% of the amounts owed per month or the maximum amount allowed by law; (4) collect from Licensee reimbursement for all costs, including attorneys’ fees, incurred by BKData in collecting any Fees or other monies owed to it by Licensee, or otherwise enforcing its rights under this Agreement; and/or (5) provide Services to other customers of BKData in Licensee’s Territory.
- BKData’s Intellectual Property: BKData shall at all times retain sole and exclusive ownership of, or, as applicable, sole and exclusive rights as a licensee or sublicensee of, all of its copyrights, trademarks, trade names, trade dress, patents, software, source code, object code and other intellectual property rights, including, without limitation, the CMS and all of the proprietary material provided and/or displayed by BKData at the website, affiliated Web sites, extranet, marketing materials or otherwise. This Agreement shall not be construed to convey, assign, sell or transfer any copyrighted, trademarked or other material which BKData does not have the right to convey or assign or which is otherwise not specifically identified herein.
- Indemnification: The Parties agree to defend, indemnify, and hold harmless the other Party and, where applicable, its past and present shareholders, members, parent companies, partners, licensees, consultants, affiliates, contractors, subsidiaries, successors, predecessors, assigns, officers, directors, managers, employees, attorneys, agents, and all third parties working with the other Party in connection with any of the Services, from and against any and all losses, claims, controversies, causes of action, demands, torts, damages, costs, attorneys' fees and liabilities of any kind actually or allegedly related to or arising out of the indemnifying party’s actions or omissions in connection with:
a. Any breach of this Agreement, including any breach of its representations or warranties set forth herein;
b. Any professional malpractice or other breach of duty in the course of its communications with Contacts or the legal representation of clients in any matter;
c. Any increase or decrease in the number or amount of business or profits of any kind or from any source.
- Limitations of Liability: BKData shall not be held liable for any special, indirect, incidental or consequential damages arising out of the Services or otherwise arising out of this Agreement, regardless of whether a claim is based on contract, tort, strict liability or otherwise, or whether caused by BKData, its affiliates, agents, employees, subsidiaries, representatives, assigns, or otherwise. In addition, BKData’s total liability hereunder shall not exceed the aggregate Fees paid to BKData during the 6-month period preceding any claim. Furthermore, Licensee hereby agrees and acknowledges that any liability arising out of this Agreement or the business relationship between BKData and Licensee shall be limited to BKData, and Licensee shall not seek to collect any amounts or damages from any party which is an affiliate of BKData or any party with which BKData does business or licenses intellectual property. To the extent Licensee breaches this Section 13 by seeking to collect any amounts from any such third party, such third party shall be deemed to be a third party beneficiary of this Section 13 and shall be entitled to have such claim dismissed on account of Licensee’s agreements set forth in this Section 13. Licensee shall provide BKData timely written notice of any error, omission or violation of any third party right by BKData of any kind, immediately upon learning of same.
THE ENTIRE RISK ARISING OUT OF USE OR PERFORMANCE OF THE BKData SOFTWARE AND ANY PRODUCTS OR FEATURES IN CONNECTION WITH ANY SUBCRIPTION REMAINS WITH YOU, THE LICENSEE. BKData EXPRESSLY DISCLAIMS ANY WARRANTY FOR THE BKData, THE BKData SOFTWARE AND ANY PRODUCT(S), GOOD(S) OR MATERIALS GENERATED BY BKData AS PART OF THE BKData OR ANY SUBSCRIPTION(S). THE BKData AND THE BKData SOFTWARE IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT. ANY WARRANTY AGAINST INFRINGEMENT THAT MAY BE PROVIDED IN SECTION 2-312(3) OF THE UNIFORM COMMERCIAL CODE AND/OR IN ANY OTHER COMPARABLE STATE STATUTE IS EXPRESSLY DISCLAIMED.
BKData DOES NOT GUARANTEE CONTINOUS, ERROR-FREE, VIRUS-FREE OR SECURE OPERATION AND ACCESS TO THE BKData, THE BKData SOFTWARE, YOUR ACCOUNT AND YOUR SUBSCRIPTIONS(S). YOU ASSUME THE ENTIRE RISK WITH RESPECT TO THE PERFORMANCE AND RESULTS IN CONNECTION WITH YOUR SUBSCRIPTIONS AND THE BKData SOFTWARE IN CONNECTION WITH YOUR HARDWARE.
NEITHER BKData, ITS LICENSORS, NOR THEIR AFFILIATES SHALL BE LIABLE IN ANY WAY FOR LOSS OR DAMAGE OF ANY KIND RESULTING FROM THE USE OR INABILITY TO USE THE BKData, YOUR ACCOUNT, YOUR SUBSCRIPTIONS, THE BKData SOFTWARE AND ANY FEATURES OR PRODUCTS IN CONNECTION WITH ANY SUBSCRIPTION INCLUDING, BUT NOT LIMITED TO, LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, OR ANY AND ALL OTHER COMMERCIAL DAMAGES OR LOSSES. YOU ACKNOWLEDGE AND AGREE THAT YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY DISPUTE WITH BKData IS TO DISCONTINUE USE OF THE BKData AND CANCEL YOUR ACCOUNT. BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH STATES OR JURISDICTIONS, BKData, ITS LICENSORS, AND THEIR AFFILIATES LIABILITY SHALL BE LIMITED TO THE FULL EXTENT PERMITTED BY LAW.
- Venue and Choice of Law: This Agreement is intended to and shall be governed by the laws of the State of Texas (without regard to its rules regarding conflicts of laws). Exclusive venue for any applicable state or federal court, or arbitration tribunal, shall lie within Tarrant County Texas.
- Arbitration: Except as provided below, any controversy or claim asserted by Licensee or BKData, arising out of or relating to this Agreement, or the breach hereof, shall be resolved by binding arbitration in accordance with the rules, then obtaining, of the American Arbitration Association (Commercial Rules), and judgment upon the award rendered may be entered in any court having jurisdiction thereof. Notwithstanding the foregoing, BKData may, at its option, bring an action in state or Federal court in Tarrant County Texas to collect any past due amounts owing by Licensee to BKData hereunder.
Any claim arising from this Agreement or the services offered herewith shall be adjudicated on an individual basis, and shall not be consolidated in any proceeding with any claim or controversy of any other party. In the event of any arbitration or litigation arising out of or relating to this Agreement, the substantially prevailing party in such action shall be entitled to recover all costs and fees associated therewith including, without limitation, attorneys' fees.
- No Waiver: The waiver of any provision or breach of this Agreement shall not be deemed a waiver of any other provision or breach of this Agreement.
- Notice. All notices required or permitted under this Agreement shall be in writing and shall be deemed received when (a) delivered personally, (b) sent by confirmed facsimile (followed by the actual document via U.S. mail), (c) one (1) day after deposit with a commercial express courier specifying next day delivery, with written verification of receipt, or (d) sent by e-mail (followed by the actual document via U.S. mail). Unless otherwise indicated in writing by either party to the other party, all communications shall be sent to the address set forth for each party on the signature page hereto.
- Force Majeure. BKData shall not be liable for failure or delay in performing its obligations hereunder if such failure or delay is due to a force majeure event or other circumstances beyond its reasonable control, including, without limitation, acts of any governmental body, war, insurrection, sabotage, embargo, fire, flood, labor disturbance, interruption of or delay in transportation, unavailability of third party services, failure of third party software or inability to obtain raw materials, supplies or power used in or equipment needed for provision of the Services.
- Independent Contractors. The relationship of BKData and Licensee established by this Agreement is that of independent contractors, and nothing contained in this Agreement shall be construed to constitute the parties as partners, joint venturers, co-owners or otherwise as participants in a joint or common undertaking.
- Severability Clause: If any part of this Agreement is determined to be illegal and/or unenforceable, all other parts shall be given effect separately and shall not be affected.
- Survival of Certain Provisions: Sections 13 through 23 of this Agreement shall survive any termination of this Agreement.
- Incorporation of Summary of Services: The Summary of Services and Credit Card Authorization are hereby incorporated into this Agreement as if fully stated herein.