This Master Data License Agreement(the “Agreement”) is entered into by and between CostQuest Associates, LLC, an Ohio corporation, having its principal office at 659 Van Meter Street, Suite 520 Cincinnati, OH 45202 (“CostQuest”), and the Licensee identified on an applicable order, including its Authorized Users, (“Licensee”) that is submitted by Licensee on the CostQuest website for Licensed Materials (the “Order”).
YOU MAY NOT ORDER OR OBTAIN LICENSED MATERIALS FROM THIS COSTQUEST WEBSITE IF YOU (A) DO NOT AGREE TO THIS AGREEMENT, (B) ARE NOT THE OLDER OF (i) AT LEAST 18 YEARS OF AGE OR (ii) LEGAL AGE TO FORM A BINDING CONTRACT WITH COSTQUEST, OR (C) ARE PROHIBITED FROM ACCESSING OR USING THE COSTQUEST WEBSITE OR ANY OF COSTQUEST’S WEBSITE’S CONTENTS BY APPLICABLE LAW.
All Orders are subject to the terms and conditions of this Agreement. By placing an Order and clicking “Accept”, or by accessing, browsing, submitting information to and/or using the CostQuest website to purchase Licensed Material, you agree and acknowledge on your own behalf that you have read, understand and agree to be bound by this Agreement and to comply with all applicable laws including, without limitation, all federal, state and local tax and tariff laws, regulations, and/or directives. IF YOU DO NOT AGREE TO THIS AGREEMENT, DO NOT PLACE AN ORDER.
This Agreement incorporates by reference, and should be read in conjunction with, the CostQuest Privacy Policy.
The parties acknowledge receipt and sufficiency of good and valuable consideration and agree as follows:
CostQuest License
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License Grant. Subject to the terms and conditions of this Agreement, CostQuest hereby grants Licensee a non-exclusive, non-sublicensable, and non-transferable (except as expressly contemplated by Section 10(f) herein below) license during the term to access and use the proprietary data compilation(s) (“Data”) which are further described and defined in one or more Orders entered into pursuant to this Agreement (individually and collectively, the “Licensed Material”), solely for Licensee's internal business purposes, including rights to access, prepare, use, copy, modify, reproduce, and distribute the Licensed Material and Derivatives thereof for internal use only (the “Permitted Use”). “Licensed Material” includes Data and any Derivative(s) thereof, as well as any associated material related thereto, including: documentation, source code, related drawings, designs, object code, defined processes and approaches, and concepts, created or generated by CostQuest, at any time before, during, or after the term of this Agreement. “Derivative” means any addition, improvement, update, modification, transformation, adaptation or derivative work of or to the Licensed Material, including, without limitation, reformatting of the Licensed Material into a different format or media from which it is delivered to Licensee; any addition or extraction of data, information or other content to or from the Licensed Material; or any copy or reproduction of the Licensed Material.
Licensee is prohibited from using Licensed Material for any other use, including commercial use, publication, and other uses for purposes beyond the Permitted Uses herein.
Licensee expressly acknowledges and agrees that any Derivative created by Licensee pursuant to this Agreement and the Order shall at all times be subject to the terms and conditions of this Agreement and the Order, including the same general use restrictions and permitted uses set forth in this Agreement and the Order.
Regulatory Compliance. Licensee represents and warrants that Licensee’s receipt and use of the Licensed Material will be in compliance with all applicable laws, rules and regulations (including, but not limited to, privacy laws). Furthermore, during the term of this Agreement and not more than once per year (unless circumstances warrant additional audits as described below), CostQuest reserves the right to audit Licensee’s record(s) to ensure compliance with this Agreement upon at least 10 business days’ written notice. Notwithstanding the foregoing, the parties agree that CostQuest reserves the right to conduct an audit at any time upon reasonable notice in the event of investigations of bona fide claims of misappropriation, fraud, or business irregularities of a potentially criminal nature by Licensee.
Licensee’s Responsibilities and Usage Restrictions.
Licensee shall use the Licensed Material solely for the Permitted Use and Licensee will not (without written permission from CostQuest or unless expressly set forth in an Order) and will not permit any other party to: (i) create a Derivative of the Licensed Material, other than consistent with the terms of this Agreement (including the Order); (ii) make the Licensed Material available to, or use any of the Licensed Material for the benefit of, anyone other than Licensee, in whole or in part; (iii) sell, resell, license, sublicense, distribute, assign, rent, lease, or loan the Licensed Material, in whole or in part, or any rights therein to any third party (including the inclusion of the Licensed Material into a platform or viewer that is made available to any third party), or include any of the Licensed Material in a service bureau, outsourcing offering, or other commercial effort; (vi) receive or access any of the Licensed Material to build a competitive product or service, including but not limited to, use in the creation of any similar data set, or use to improve the accuracy of any other geospatial data that are substantially similar to or that serve substantially the same purpose as the Licensed Material; (v) use or access the Licensed Material, in whole or in part, for the purpose of developing, training, testing, or validating a machine learning or artificial intelligence platform; (vi) combine the Licensed Material with any personally identifiable information (as that term is defined under any applicable law or regulation); (vii) reverse engineer, reverse assemble, decode, decompile, adapt or otherwise attempt to derive or gain access to the source of the Licensed Material, in whole or in part, or the methods used to compile the Licensed Material; (viii) remove any proprietary notices included within the Licensed Material; or (ix) modify any Licensed Material in a manner that infringes upon the intellectual property or other proprietary rights of any third party(s), or otherwise violates any applicable law. Except as expressly allowed for and set forth in the Permitted Uses, Licensee shall not disclose, release, distribute, or deliver the Licensed Material, or any portion thereof, to any third party without CostQuest’s prior written consent. Any purpose or use not specifically authorized in Section 1(a) above is prohibited unless otherwise expressly agreed to in a separate writing by CostQuest.
Licensee shall have the obligation to ensure that access to and use of Licensed Material is strictly limited as prescribed in this Agreement and that the Licensed Material is retained in a secure place of limited access. Licensee may permit its employees, contractors and legal agents (“Authorized Users”) to access and use the Licensed Material on behalf of and for the benefit of Licensee, provided that (i) any such access and use is in accordance with this Agreement, and (ii) that Licensee shall at all times be responsible for the acts of its Authorized Users, including for any breaches of this Agreement. Licensee shall ensure that all Authorized Users agree to the terms and conditions of this Agreement. Annually, CostQuest may request Licensee to provide a list of its Authorized Users, noted with those who are new and those that have ceased access. Licensee also agrees to allow CostQuest to audit the list of Authorized Users upon at least thirty (30) days’ written notice and no more than one (1) time in any twelve (12) month calendar period.
Fees and Payment.
Generally. Licensee will pay all fees specified in the applicable Order. Payment obligations are non-cancelable and fees paid are non-refundable. Information about Licensed Products is provided on the CostQuest website for illustrative and informational purposes and despite CostQuest’s best efforts, occasional typographical errors, inaccuracies or omissions that may relate to descriptions, pricing, specifications and/or availability may occur. Accordingly, CostQuest does not guarantee the accuracy or completeness of any information on the CostQuest website. CostQuest reserves the right to correct or update the CostQuest website with respect to Licensed Material at any time without prior notice (including after you have submitted an Order).
Taxes. The fees do not include any excise, sales, use, value added or other taxes, tariffs or duties that may be applicable. When CostQuest has the legal obligation to collect such taxes, tariffs or duties, the amount of such taxes, tariffs and duties will be specified in the applicable Order and Licensee will pay such amount at the time of sale unless Licensee provides CostQuest with a valid tax exemption certificate authorized by the appropriate taxing authority. All payments by Licensee will be made free and clear of, and without reduction for, any withholding taxes. Licensee will provide CostQuest with official receipts issued by the appropriate taxing authority or such other evidence as is reasonably requested by CostQuest to establish that such taxes have been paid.
Payment. Fees are due in accordance with the applicable Order at the time of sale. Licensee is responsible for providing complete and accurate billing and contact information to CostQuest and notifying CostQuest of any changes to such information. In the event of payment issues, payments more than 30 days overdue are subject to interest of 1.5% per month on any overdue amounts, or the maximum permitted by law, whichever is less. CostQuest may suspend Licensee’s access to the Licensed Material in the event of late payment upon 5 days’ prior written notice, and/or condition future subscription renewals and orders on shorter payment terms.
Intellectual Property Rights.
As between CostQuest and Licensee, CostQuest owns all right, title and interest in and to all elements of the Licensed Material, and all other aspects, products, results and outputs of any services provided by CostQuest in connection therewith, including all applicable patents, copyrights, trademarks and other proprietary and intellectual property rights therein. Except for the limited rights expressly granted in this Agreement, Licensee has no rights in or to the foregoing, and any rights not expressly granted are reserved by CostQuest.
Term, Termination and Suspension.
The term of this Agreement begins on the date the Order is placed and, unless terminated earlier pursuant to this Agreement, will continue for one (1) year, unless otherwise expressly set forth and defined in any applicable Order(s).
Termination for Cause. Either party may terminate this Agreement by means of a written notification in accordance with this Agreement in case of the other party failing to perform any material obligation under this Agreement, with such breach (if capable of being remedied) remaining uncured following 10 days written notice. In case such breach is not capable of being remedied, termination may occur forthwith by means of a written notification.
Payment upon Termination. If this Agreement is terminated by CostQuest for cause in accordance with the preceding subsection, then all Orders which are then in effect between CostQuest and Licensee shall be terminated and Licensee will pay any unpaid fees covering the remainder of the term(s) of all such Orders. In no event will termination by CostQuest for cause relieve Licensee of Licensee’s obligation to pay any fees payable to CostQuest for the period prior to the effective date of termination. If this Agreement is terminated by Licensee for cause in accordance with the preceding subsection, CostQuest will return any unused prepaid fees to Licensee.
Suspension. CostQuest may suspend Licensee’s access to the Licensed Material, in whole or in part, in case of: (i) any late payment; (ii) CostQuest becoming aware of what CostQuest deems a credible claim that Licensee’s use of the Licensed Material violates any applicable law, rules or regulations or infringes upon third party rights; (iii) Licensee’s use of the Licensed Material in violation of this Agreement; or (iv) in any event where CostQuest is entitled to terminate this Agreement for cause. In each case of suspension as per above (with the exception of (i) in which case suspension will occur upon five days’ written notice), CostQuest will give Licensee an advance 12 hours’ notice, unless CostQuest reasonably determines that giving a shorter or no notice is necessary to protect CostQuest’s interests, Licensee’s interests, or the interests of any third party.
Results of Termination. Following termination of this Agreement, (i) Licensee will no longer utilize the Licensed Material or any Derivatives thereof for any purposes; and (ii) Licensee shall return or destroy, within 30 days from such termination, the Licensed Material and any Confidential Information received, including Derivatives thereof. Licensee will certify to CostQuest in writing that the above (i) and (ii) actions have been taken. Termination of this Agreement will not relieve a party from any accrued payment obligations.
Surviving Provisions. Any obligations and duties which by their nature extend beyond the expiration or termination of this Agreement will survive the expiration or termination of this Agreement. Without limiting the foregoing, Sections 2, 4 and 6 through 10 will survive the expiration or termination of this Agreement.
Confidentiality and Data Security.
As used herein, “Confidential Information” means all information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. For purposes of clarity, Confidential Information of each party includes the terms and conditions of this Agreement, all Orders (including pricing), as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. Without limiting the foregoing, for the purposes of this Agreement, the Licensed Material will be deemed Confidential Information of CostQuest. Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party.
Protection of Confidential Information. The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) and agrees (i) to not use any Confidential Information of the Disclosing Party except as provided in this Agreement, and (ii) to limit access to Confidential Information of the Disclosing Party to those of its employees, contractors, agents and professional advisors who need that access for purposes consistent with this Agreement and who have written or other confidentiality obligations consistent with this Agreement. The Receiving Party will remain liable to the Disclosing Party for unauthorized use or disclosure of Confidential Information by its employees, contractors, agents and professional advisors. The Receiving Party will promptly notify the Disclosing Party upon any unauthorized party accessing or otherwise obtaining any of the Disclosing Party’s Confidential Information except as permitted by this Agreement.
Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party's cost, in obtaining confidential treatment for any information so disclosed.
Data Security. Licensee shall use all reasonable legal, organizational, physical, administrative, and technical measures, and security procedures to safeguard and ensure the security of the Licensed Material and any Confidential Information of CostQuest and to protect the same from unauthorized access, disclosure, duplication, use, modification, or loss. If Licensee discovers that an unauthorized use, access, violation, compromise or other breach of security (electronic or physical) involving or relating to the Licensed Material or CostQuest Confidential Information has occurred (“Security Incident”), whether the incident originates within Licensee or externally, Licensee shall (i) within 48 hours notify CostQuest (with written email confirmation to ITSupport@costquest.com, with a copy to CostQuest’s General Counsel, at GC@costquest.com) identifying the nature of the Security Incident; (ii) use continuous efforts to correct the Security Incident within that period or, if that is not feasible, within the appropriate time period as determined by CostQuest; (iii) provide CostQuest with interim and final written reports, as CostQuest reasonably requires; and (iv) document the Security Incident in a detailed incident response log. In addition, Licensee will comply and cooperate with any information requests made by CostQuest to help protect the Licensed Material and/or CostQuest Confidential Information, and reduce its liability, including as necessary to comply with applicable laws.
Representations, Warranties, Exclusive Remedies and Disclaimers
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Each party represents that it has validly entered into this Agreement and has the legal power to do so.
Disclaimers. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTY OR REPRESENTATION OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, LICENSED MATERIAL IS PROVIDED “AS IS”, EXCLUSIVE OF ANY WARRANTY WHATSOEVER. EACH PARTY DISCLAIMS ALL LIABILITY AND INDEMNIFICATION OBLIGATIONS FOR ANY HARM OR DAMAGES CAUSED BY ANY THIRD-PARTY. COSTQUEST MAKES NO WARRANTY OF ANY KIND THAT THE LICENSED MATERIAL, OR ANY DATA PRODUCTS, OR RESULTS OF USE OF THE SAME, WILL MEET LICENSEE'S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE.
Mutual Indemnification.
Indemnification by CostQuest. Subject to Section 9 (Limitation of Liability), CostQuest will defend Licensee against any claim, demand, suit or proceeding made or brought against Licensee by a third party alleging that the use of the Licensed Material in accordance with this Agreement infringes or misappropriates such third party’s intellectual property rights (a “Claim Against Licensee”), and will pay any damages, attorney fees and costs finally awarded or agreed to in settlement of any Claim Against Licensee, provided Licensee (i) promptly gives CostQuest written notice of the Claim Against Licensee, (ii) gives CostQuest sole control of the defense and settlement of the Claim Against Licensee, and (iii) gives CostQuest all reasonable assistance in connection therewith, at CostQuest’s expense. If CostQuest receives information about an infringement or misappropriation claim related to the Licensed Material, CostQuest may in CostQuest’s discretion and at no cost to Licensee (1) modify the Licensed Material so that it no longer infringes or misappropriates, (2) obtain a license for Licensee’s continued use of that portion of the Licensed Material in accordance with this Agreement, or (3) terminate Licensee’s subscriptions for that portion of the Licensed Material upon 30 days’ written notice and refund Licensee any prepaid fees covering the remainder of the term of the terminated license. The above obligations do not apply to the extent a Claim Against Licensee arises out of or is related to (y) Licensee’s breach of this Agreement, or (z) the combination of any Licensed Material with any materials or services not provided by CostQuest (“Excluded Claims”).
Indemnification by Licensee. To the extent permitted by law, Licensee will defend CostQuest against any claim, demand, suit or proceeding made or brought against CostQuest by a third party arising out of or related to any claims, (i) that if brought against CostQuest, would be an Excluded Claim, (ii) relating to Licensee’s receipt of the Licensed Material in breach of applicable law, or (iii) arising out of or in connection with Licensee’s or its Authorized Users’ negligence or willful misconduct (a “Claim Against CostQuest”), and will pay any damages, attorney fees and costs finally awarded or agreed to in settlement of, a Claim Against CostQuest, provided CostQuest (1) promptly gives Licensee written notice of the Claim Against CostQuest, (2) gives Licensee sole control of the defense and settlement of the Claim Against CostQuest (except that Licensee may not settle any Claim Against CostQuest without CostQuest’s prior written consent unless it unconditionally releases CostQuest from and secures an unconditional release from all involved third parties releasing CostQuest from all liability), and (3) gives Licensee all reasonable assistance in connection therewith, at Licensee’s expense.
Exclusive Remedy. This section states CostQuest’s sole liability to, and Licensee’s exclusive remedy in connection with, any claim for indemnification.
Limitation of Liability.
EXCEPT FOR WITH RESPECT TO EITHER PARTY’S BREACH OF SECTION 6 (CONFIDENTIALITY AND DATA SECURITY), OR WITH RESPECT TO LICENSEE’S OBLIGATIONS TO INDEMNIFY AS SET FORTH IN SECTION 8(B) (OR FOR ANY BREACH THEREOF), IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS, REVENUES OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW. EXCEPT FOR WITH RESPECT TO EITHER PARTY’S BREACH OF SECTION 6 (CONFIDENTIALITY AND DATA SECURITY), OR WITH REPSECT TO LICENSEE’S OBLIGATIONS TO INDEMNIFY AS SET FORTH IN SECTION 8(B) (OR FOR ANY BREACH THEREOF), NEITHER PARTY'S LIABILITY WITH RESPECT TO ANY SINGLE INCIDENT ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL EXCEED THE AMOUNT PAID BY LICENSEE HEREUNDER IN THE 12 MONTHS PRECEDING THE INCIDENT, AND PROVIDED FURTHER THAT NEITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL EXCEED THE TOTAL AMOUNT PAID BY LICENSEE HEREUNDER. THE ABOVE LIMITATIONS WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, AND REGARDLESS OF ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED HEREIN.
Miscellaneous.
Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties.
Entire Agreement and Order of Precedence; Headings. This Agreement is the entire agreement between Licensee and CostQuest regarding Licensee’s receipt of Licensed Material from CostQuest and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement will be effective unless in writing and signed by the party against whom the modification, amendment, or waiver is to be asserted. In the event of any conflict or inconsistency among the following documents, the order of precedence shall be: first, the Order (but only as pertains to that specific Order), second, this Agreement, and third, any other CostQuest website terms of use. The headings and captions used in this Agreement are used for convenience only and are not to be considered in construing or interpreting this Agreement.
Force Majeure. Neither party will be responsible for, nor be in default under this Agreement due to any delays or failure of performance resulting from acts or causes beyond its reasonable control, including without limitation, acts of war, export regulations, third‐party labor strikes, pandemics, power failures, natural disasters or other similar events (“Force Majeure Events”). In the event that either party is unable to perform any of its obligations under this Agreement because of a Force Majeure Event, the party who has been so affected will promptly give notice to the other and will exercise all reasonable efforts to resume performance.
Governing Law. This Agreement and any supplemental documents and activities shall be deemed to be a contract made under and subject to and governed by the laws of the State of Ohio without regard to conflict of laws principles under the laws of the State of Ohio or any other state, and any litigation between the parties shall be brought within the courts of the State of Ohio and both parties irrevocably consent to the jurisdiction of such courts and agree that Hamilton County shall be the proper venue.
Notices. All notices and communications under this Agreement shall be in writing and addressed to the parties at the addresses set forth in the preamble of this Agreement (or to such other address that may be designated by each party from time to time in accordance with this sub-section). The parties shall deliver notices by personal delivery, nationally recognized overnight courier (with all fees pre-paid), email, or certified or registered mail (in each case, return receipt requested, postage pre-paid). Notices or other communications delivered by email are deemed as delivered with confirmation of read receipt requested or, in the absence of a read receipt, five (5) business days after the notice was sent. Except as otherwise provided in this Agreement, a notice is effective only: (i) upon receipt by the receiving party, and (ii) if the party giving the notice has complied with the requirements of this sub-section.
Assignment. Neither party may assign or transfer any rights or obligations under this Agreement (including by operation of law or otherwise) without the prior written consent of the other party. Notwithstanding the preceding sentence, with the exception of an assignment to a competitor of the nonassigning party (which will require written consent from the nonassigning party), either party may assign this Agreement without obtaining the consent of the other party, to an affiliate or to any entity into which the assigning party is merged, or to an acquirer of all or substantially all of the business or assets of the assigning party, or as part of a business restructuring, change in control, or other similar recapitalization or reorganization. Any purported assignment of rights or transfer of obligations in violation of this section is void. This Agreement will bind each party’s authorized successors and assigns.
Severability. If any court of competent jurisdiction finds any portion of any provision of this Agreement to be unenforceable or contrary to applicable law, the parties agree that the provision will be deemed modified to the least extent necessary to make it enforceable, and all other provisions of this Agreement will remain unaffected.
Publicity. CostQuest may include Licensee’s name and trademark(s) on its website and disclose that Licensee is a customer of CostQuest (e.g., in customer lists, commercial proposals, sales presentations, websites, conferences etc.) in connection with its marketing and business development activities. CostQuest acknowledges and agrees that all proprietary, intellectual property and any other rights in and to Licensee’s name, logo, service mark and/or trademark are the sole and exclusive property of Licensee.
