EXHIBIT A – TERMS & CONDITIONS
|1||License||PTX hereby grants Customer a limited, non-exclusive, non-sublicensable and non-transferable (except as set forth in Section 22 hereof) license to use the data files identified in the “Products” section of the applicable Order Form (the “Data Files”) during the term of this Agreement. As used herein, “Agreement” means these Terms and Conditions, each applicable Order Form, PTX’s then-current Maintenance and Support Services Policy, and any supplements or amendments thereto expressly agreed to in writing and expressly incorporated into this Agreement.|
|2||Permitted Use||Customer may use the Data Files only for its own internal business purposes and only in compliance with all laws or regulations governing such use.|
|3||User Restrictions||No Reverse Engineering. Customer may not attempt to reverse engineer the Data Files or any criteria, methods or tools developed or used by PTX to compile them. |
No Resale, Etc. Customer may not disclose, re-sell, redistribute, lease, publish or reproduce the Data Files (or any data derived therefrom) by any means or in any format.
No Copying. Except for a single copy made solely for archival, back-up or disaster recovery purposes, Customer shall not copy the Data Files or any part thereof nor permit anyone else to do so.
|4||Updates||PTX will provide Customer Data File updates during the term of this Agreement as such updates become available to PTX and are made generally available by PTX to its customers.|
|5||Maintenance||Maintenance and support will be governed by PTX’s then-current Maintenance and Support Services Policy. The current policy is set forth in Exhibit B.|
|6||Proprietary Rights||Customer acknowledges that the Data Files represent original, confidential, proprietary and copyrighted information and trade secrets of PTX or its licensor(s), and PTX’s proprietary rights or those of its licensor(s) are not assigned or released as a result of this Agreement. As between PTX and Customer, all ownership rights in the Data Files and the data contained therein are and shall remain the sole and exclusive property of PTX.|
|7||Annual Subscription Fee||General. Customer will pay PTX the Annual Subscription Fee set forth on the applicable Order Form. Unless otherwise set forth in an Order Form, PTX may increase the Annual Subscription Fee up to 5% each year. PTX shall not be required to provide the Data Files until the applicable Annual Subscription Fee is paid in full.|
Metrics. The Annual Subscription Fee is metric-based (e.g., per assessor’s account, per bill, per parcel, etc.) as set forth on the applicable Order Form. If the Data Files exceed or fall short of the applicable metric, then the difference will be added to or subtracted from the next year’s Annual Subscription Fee (or paid by the applicable party if the agreement is terminated).
Invoices. PTX will invoice Customer in advance at the beginning of each year for the Annual Subscription Fees due for that year. Customer must pay such invoice in U.S. dollars within 30 days following the beginning of such year. Any unpaid amounts will bear interest at the rate of 1.5% per month.
|8||Taxes||All amounts due to PTX hereunder are net of any and all taxes (including withholding taxes) of any governmental authority, all of which shall be the sole obligation of Customer, except for taxes payable on the income of PTX.|
|9||Third Party Access||Customer will prevent access to the Data Files by any person except Customer’s employees who need access for the permitted use set forth in Section 2 above. Customer shall not make available to any third party any part of the Data Files without PTX’s prior written approval. If the approved third party does not comply with the terms of this Agreement, Customer shall be jointly and severally liable to PTX with such third party for such breach.|
|10||Acceptance||Customer will have 10 business days to notify PTX of any defects, errors or mistakes in the Date Files, otherwise the Data Files shall be deemed accepted by Customer.|
|11||Indemnification||Each party agrees to indemnify the other party and their affiliates, directors, officers, employees, successors and permitted assigns from and against any third party claims, demands, suits, actions, losses, damages, fines, liabilities costs and expenses (including reasonable attorneys’ fees) arising out of the indemnifying party’s (1) use of the Data Files in violation of this Agreement or any laws or regulations, (2) breach of this Agreement and (3) violation of any third party intellectual property right. The indemnifying party shall, at its own expense, defend the indemnified party against any such claim with respect to which indemnified party provides written notice to the indemnifying party. The indemnifying party may not settle any such claim or consent to any judgment that requires the indemnified party to admit wrongdoing, perform any obligation or pay any sum without first obtaining the written consent of the indemnified party. Either party may participate in its own defense at its own expense.|
|12||Warranties||PTX is providing the Data Files on an “as is” basis, without warranty or representation of any kind, and PTX hereby disclaims all representations and warranties with respect to the Data Files.|
|13||Liability Limits||In no event shall PTX or its members, managers, officers, employees, directors, or agents be liable under any circumstances for special, indirect, punitive or consequential damages of any nature whatsoever (whether arising out of contract, strict liability, or otherwise), including, without limitation, any lost revenues or profits of Customer, under this Agreement, whether or not PTX has been advised of the possibility of such damages and even if Customer’s remedies fail of their essential purpose. Notwithstanding anything in this Agreement to the contrary, the parties agree that PTX’s aggregate liability under this Agreement shall not exceed, under any circumstances, the amount of annual subscription fees actually received by PTX from Customer in the preceding twelve-month period.|
|14||Term||Agreement. The term of this Agreement shall begin on the Effective Date of the first Order Form and shall continue until there are no Order Forms in effect. |
Order Forms. The term of each Order Form will begin on the Effective Date set forth therein and will continue for a period of 1 year thereafter.
Renewals. Unless the Order Form says otherwise, each Order Form will automatically renew for successive annual renewal terms unless either party provides written notice of termination at least 60 days prior to the end of the then-current term of such Order Form.
|15||Termination||General. Either party may terminate this Agreement an Order Form if the other party (a) commits a material default of such Order Form or this Agreement and fails to cure such default within 60 days following written notice from the other party or (b) files for bankruptcy, makes an assignment to for the benefit of its creditors or ceases to conduct business.|
Consequences. Termination of this Agreement shall not prejudice or affect any right of action or remedy which shall have accrued or shall thereafter accrue to either party. Following termination, Customer shall (a) retain a perpetual right and license to use the Data Files as permitted and subject to the restrictions hereunder and (b) have no right to receive, and PTX shall have no obligation to provide, any Updates, Maintenance and Support Services for such Data Files.
|16||Survival||Sections 1, 2, 3, 6, 9, 11, 12, 13, 16 and 17 shall survive any termination or expiration of this Agreement.|
|17||Confidentiality||Each party shall maintain in confidence all confidential information of the other party and of its affiliates and shall not use, copy or disclose any such confidential information without the other party’s prior written consent.|
|18||Reimbursement||Customer will reimburse PTX for all travel and related expenses incurred in the performance of any onsite maintenance or support or other consulting services set forth in an Order Form.|
|19||Audits||PTX may, from time to time, conduct audits to determine Customer’s compliance with this Agreement. Customer will cooperate in all such audits. PTX may conduct audits at Customer’s facilities during normal business hours upon reasonable notice to Customer.|
|20||Export Law||Customer shall not transfer the Data Files to any destination subject to export restrictions under United States law unless such export is permitted under all applicable laws, rules and regulations of any governmental authority.|
|21||Notices||All notices required by this agreement must be in writing and will be delivered from PTX by email to the Data File Delivery Contact Email Address as listed in the order form, or from Customer to email@example.com. Such notices will be deemed received at such addresses upon the earlier of (i) actual confirmed receipt or (ii) at the end of the third full business day following the initial email correspondence.|
|22||Miscellaneous||Relationship. PTX and Customer are independent contractors under this Agreement and are not agents, representatives, partners or joint venturers.|
Amendment and Waiver. Any amendments or waivers of obligations under this Agreement or any Order Form must be in writing and signed by the parties.
Assignment. Neither party may assign or otherwise transfer this Agreement without prior written consent, provided that either party may assign this Agreement without consent in connection with the merger, consolidation or sale of all or substantially all of its assets; provided, however, that either party shall be entitled to assign this Agreement in its entirety (including all Order Forms), without the prior written consent of the other party, to any entity which directly or indirectly controls, is controlled by or under common control with such party, or to any successor corporation which succeeds as a going concern to the business presently conducted by such party pursuant to a merger, consolidation or sale of all or substantially all of its assets, if such successor corporation assumes in writing such party’s obligations hereunder.
Governing Law. This Agreement will be governed solely by the internal laws of the State of Georgia without reference to such State’s principles of conflicts of law.
Entire Agreement. This Agreement (including each Order Form) contains the entire agreement and understanding between the parties relating to the subject matter hereof.
Equitable Relief. Customer acknowledges that money damages would be both incalculable and an insufficient remedy for any breach of this Agreement by Customer and that any such breach would cause PTX irreparable harm. Accordingly, Customer also agrees that in such event, PTX, in addition to any other remedies at law or in equity PTX may have, is entitled, without the requirement of posting any security, to seek equitable relief, including injunctive relief and specific performance.
Force Majeure. To the extent caused by force majeure, no delay, failure, or default will constitute a breach of this Agreement.
EXHIBIT B – MAINTENANCE & SUPPORT SERVICES
The License subscription includes remote support by email and telephone from 8:00 am – 8:00 pm EST during each Annual Subscription Year, for transfer, structure and formatting of data and ongoing support. This support is subject to the following policies and guidelines:
|Response Time||PTX will make commercially reasonable efforts to respond to support or maintenance requests per the response times listed in the table below, provided that in no event will PTX have any liability for any failure to meet any such response time or resolution time:|
*Time from the point that PTX is notified of the issue either by email or phone.
|Contact Methods||Phone requests can be made by calling the PTX Tech support line at 404-494-0133 from 8:00am to 8:00pm EST.|
Email requests can be made by sending an email with a description of your request and preferred contact method to firstname.lastname@example.org.
PTX will provide onsite support as available, as requested and arranged in advance, provided that Customer will reimburse PTX within thirty (30) days after invoice for all travel and related expenses incurred in the performance of such onsite support.
|Support Period||PTX Tech will provide support for all data products that have been provided to the customer for as long as the customer is actively licensing the data for which support is being requested. Severity 1 response guidelines will only apply to current subscription year data files.|
|Initialization||During the first annual subscription term for any data set, PTX Tech will work with the customer to initialize customer data to support future data imports. This support of customer data, to facilitate data imports, will continue throughout the life of the support agreement.|