RateShop Licensing Agreement
CAREFULLY READ THIS AGREEMENT BEFORE USING THE "LICENSED MATERIALS" (AS DEFINED BELOW). YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT BY EXECUTING AND SUBMITTING A “PROPOSAL ACCEPTANCE” OR "ORDER FORM" (AS DEFINED BELOW) OR, AS APPLICABLE, BY SUBMITTING PAYMENT IN RESPONSE TO AN INVOICE FOR LICENSED MATERIALS FROM RATESHOP. IF AT ANY TIME YOU ARE NOT IN COMPLIANCE WITH THE TERMS OF THIS AGREEMENT, YOU MAY NO LONGER USE LICENSED MATERIALS.
This RateShop Licensing Agreement ("Agreement") is made by and between RateShop, LLC, a Delaware company ("RateShop"), and the entity identified as the Licensee in the associated Proposal Acceptance and any renewal notice thereof ("Licensee"). This Agreement consists of this RateShop Licensing Agreement and any of the following which may be utilized during the term of the Agreement: the Pricing & Proposal Acceptance (“Proposal Acceptance”), the Order Form ("Order Form"), any Renewal Notice thereof ("Renewal Notice") and any other agreements that may be signed by RateShop and Licensee from time to time.
This Agreement and the initial term shall be effective as of the date specified in the Order Form or the Proposal Acceptance ("Effective Date"). In the event of a conflict between the Order Form, Proposal Acceptance and this Agreement, the Proposal Acceptance will control. RateShop expressly rejects any additional or different terms, including but not limited to terms added or appended to the Agreement unless agreed to in writing by RateShop and Licensee.
In consideration of the foregoing promises and the mutual covenants set forth in this Agreement and other valuable considerations, the parties agree as follows:
1. License
(a) RateShop hereby grants Licensee a non-exclusive license to use the Licensed Materials for the permitted uses as set forth in this Agreement only. All other rights in and to the Licensed Materials, including but not limited to all copyright and other intellectual property rights relating to the Licensed Materials are retained by RateShop.
2. License Materials
(a) Licensed Materials. The “Licensed Materials” covered by this agreement include all aspects of RateShop interest rates, fees, specials and product information and other related data and databases (including any components provided by third-party suppliers), software, interfaces and related documentation, which includes but is not limited to data, analysis, articles, statements, documentation, graphs, comparisons and reports based upon or derived from data or analysis provided by RateShop, including any data, analysis or other components provided by third party suppliers to RateShop.
(b) Provision for enhancements to Licensed Materials. RateShop may modify, augment, reformat or otherwise alter the Licensed Materials and licensing terms at any time and in its sole discretion and without prior notice; provided, however, that (a) Licensee shall continue to receive the Licensed Materials to which it subscribed during the balance of the then-applicable subscription term and (b) this Agreement shall continue to govern Licensee’s rights to use any Licensed Materials subscribed to under this Agreement for the balance of the then-applicable initial or renewal term. RateShop shall provide Licensee with reasonably contemporaneous notice of any material changes to the Licensed Materials.
3. Data Availability and Permitted Uses
(a) Licensee may only use Licensed Materials for internal analysis only. If Licensee would like to provide or use Licensed Materials with other third parties in any way, Licensee shall submit a request by email to RateShop at service@rateshopreports.com. Within five (5) business days, RateShop may accept or deny the request in its sole discretion, which shall not be unreasonably withheld.
(g) Data Availability. Data may not be available for certain competitors and products and availability may change without notice, depending upon whether information is publicly available on competitors’ websites using automated methods to download data. Competitors and products may be substituted upon request if not available. No refunds.
4. Prohibited Uses
(a) Licensee is prohibited from the use of the Licensed Materials not expressly permitted in the preceding section. Prohibited uses include but are not limited to:
i. Using Licensed Materials in a manner that is considered under applicable law to be pornographic, obscene, immoral, infringing, defamatory or libelous in nature, or that would be reasonably likely cause any person or property reflected in the Product to be seen in a false light;
ii. Removing any notice of copyright, trade-mark or other proprietary right from any place where it is on or embedded in the Licensed Materials;
iii. Sub-license, re-sell, rent, lend, assign, gift or otherwise transfer or distribute the Licensed Materials or the rights granted under this Agreement;
5. Verification of Licensed Materials
(a) The information supplied under this Agreement: (i) has been gathered by RateShop from sources believed by RateShop to be reliable; and (ii) has been arranged by RateShop in a way that RateShop believes will increase the ease of access, use and utility of the information. However, RateShop does not warrant the correctness, completeness, currentness, or accuracy of the information in the Licensed Materials, and it does not warrant that the interface used to access the Licensed Materials will be error free or bug free.
6. RateShop's Always Accurate Guarantee
(a) In the event of inconsistent data, RateShop does offer an ‘ALWAYS ACCURATE GUARANTEE’. More information may be found at https://www.rateshopreport.com/accuracyguarantee.
7. Ownership
(a) Ownership of Licensed Materials. Licensee acknowledges that RateShop, and/or it partners, are the exclusive owner of the Licensed Materials, and agrees to do nothing inconsistent with such ownership. Licensee agrees that the license or use of the Licensed Materials shall not create any interest or right, express or implied, by Licensee except as set forth in this Agreement. Unless the parties expressly agree to the contrary by written instrument signed by their duly authorized representatives, RateShop owns all materials developed by RateShop or derived from Licensed Materials, including but not limited to, software, documentation, business and marketing plans, written copy, creative, data, analysis and other derivative thereof. Licensee shall not grant, assign, convey, sublicense, transfer or use any of its rights or obligations hereunder without the written consent of RateShop except as expressly permitted by this Agreement.
(b) Authority to Grant. RateShop owns or has the right to distribute the Licensed Materials pursuant to this Agreement. To the knowledge of RateShop, the use by Licensee of the Licensed Materials in accordance with this Agreement will not infringe any third-party patent, copyright, trade secret or other intellectual property rights.
(c) Covenant Not to Infringe. Licensee acquires only a right to use the Licensed Materials as authorized herein. Licensee agrees not to contest or challenge RateShop or its third party suppliers’ ownership of the Licensed Materials and associated intellectual property rights, and not to take any action that would infringe, misappropriate, constitute unfair competition with respect to, or otherwise violate RateShop or its third party suppliers’ ownership of or rights in, the Licensed Materials. Licensee agrees that none of the Licensed Materials will be used by Licensee in a manner which would compete with the collection and distribution of current and historical data for financial institutions main and branch interest rates, specials, fees, features and other related information.
8. Fees
(a) Initial Fees and Usage Fees. Licensee agrees to pay RateShop according to the terms as specified in the Proposal Acceptance, Order Form, Renewal Notice or other arrangement as may be agreed between the parties.
(b) Renewal Fees. The pricing during any automatic renewal term will be the same as that during the immediately prior term unless RateShop has provided written notice of a pricing increase at least 45 days before the end of that prior term, in which case the pricing increase will be effective upon renewal and thereafter.
(c) Payment. Payment is for the full term of service. Unless agreed otherwise, all fees shall be paid in full within 30 days of receiving the invoice.
9. Limited Trademark License
(a) Each of parties hereby grants to the other party a non-exclusive, royalty-free, revocable license to use such party’s respective name, logo and trademark in accordance with the terms and conditions set forth in this Agreement. Both parties shall have the right to review and approve in advance all marketing or advertising material, public relations releases, promotional activities and references to its respective name, logo and trademark.
10. Term & Termination
(a) Unless specified otherwise, the grant of this license is as of the Effective Date and shall continue in effect for a period of one year. This Agreement shall be renewable automatically at the end of the current term for a successive term of 1 year unless either party gives written notice of its intention not to renew at least thirty (30) days before the expiration of the current term.
(b) In the event that either party believes that the other materially has breached any obligations under the Agreement, or if RateShop believes that Licensee has exceeded the scope of the license, such party shall so notify the breaching party in writing. The breaching party shall have 30 days from the receipt of notice to cure the alleged breach and to notify the non-breaching party in writing that cure has been effected. If the breach is not cured within the 30 days-day period, the non-breaching party shall have the right to terminate the Agreement without further notice.
(c) Upon termination, Licensee shall discontinue all use of all Licensed Materials, claims or any confusingly similar or conflicting names or marks after the effective date of the termination or expiration of this Agreement, and will destroy all merchandise related bearing the Licensed Materials in Licensee’s possession, custody and/or control.
(d) Unless specified in writing otherwise, no refunds will be paid in the event of an early termination, unless such termination is due to a material fault or breach by RateShop in which case a refund will be provided on a pro-rata basis provided that Licensee submits such notice to RateShop clearly defining the fault or breach and that RateShop is given thirty (30) days from the date of the notice to correct any fault or breach.
(e) All provisions under Sections 7, 14, 15 and 16 shall survive termination of this agreement for two years or the maximum period provided under the law, whichever is greater.
11. Warranties
(a) RateShop warrants that it has the right to license the rights granted under this Agreement to use the Licensed Materials, that it has obtained any and all necessary permissions from third parties to license the Licensed Materials, and that use of the Licensed Materials in accordance with the terms of this Agreement shall not infringe the copyright or other right of any third party.
(b) EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTY 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. CONTENT AND BETA SERVICES ARE 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 HOSTING PROVIDERS.
12. Compliance & Updates
(a) RateShop makes certain resources and procedures available to Licensee to update rates, fees and disclosures in Licensed Materials. Licensee is solely responsible for using these resources and procedures to update rates, fees, disclosures and any other information required to comply with regulations governing the use and disclosure of all Licensed Materials.
13. No Endorsement
(a) Except for Certified Products which have been submitted for approval pursuant to Paragraph 6 herein, RateShop does not endorse any of Licensee's claims that relate in any way to Licensee's use of the Licensed Materials or related advertising claims thereof or use of data obtained from any data or analysis provided by RateShop to Licensee.
14. Indemnification
(a) Each party (“indemnitor”) shall indemnify, defend (with legal counsel reasonably acceptable to indemnitee) and hold harmless the other party (“indemnitee”) for any and all third-party claims, damages, causes of action, liabilities and expenses arising out of (i) any negligent acts, errors, or omissions, or the intentional or willful misconduct, of the indemnitor, its agents or employees, and (ii) any breach by indemnitor of the terms, conditions, or representations set forth in this Agreement.
(b) Except for a party’s gross negligence, willful misconduct or third-party indemnification obligations set forth in Section 14 above, or the breach of Section 11(a) or Section 15, each party agrees that the extent of the other party’s liability under this Agreement shall not exceed the fees paid by Licensee to RateShop in any one annual period.
15. Confidentiality and Privacy
(a) Both parties may acquire certain information that is confidential, proprietary or trade secret information of the other party or a third party ("Confidential Information") in the analysis and delivery of Licensed Materials. RateShop acknowledges that Licensee's Confidential Information includes Licensee's customer information, including nonpublic personal information. RateShop warrants that it shall not republish any of Licensee's Confidential Information. Licensee acknowledges that RateShop's Confidential Information includes data, source code, software, services and any related documentation, system design, data base design, algorithms, trade secrets, technology, pricing and licensing. Other Confidential Information of either party shall be clearly identified in writing as Confidential at the time of disclosure or promptly thereafter. The party receiving Confidential Information will: (a) use such information solely for performance under this Agreement; (b) not disclose such information to any third party (excluding agents that are not potential competitors of the disclosing party); and (c) otherwise protect such information from any unauthorized use or disclosure. The receiving party shall see that its employees, agents and affiliates having access to Confidential Information are bound by confidentiality obligations consistent with this provision.
(b) As soon as possible upon the written request of either party, the other will destroy or delete (or, at its option, return to the requestor) all tangible Information provided to that party. Such destruction or deletion (or return) will be confirmed in writing to the requestor. Any information not so destroyed or deleted (or returned) will remain subject to this Agreement.
(c) RateShop will maintain and monitor policies and procedures relating to data security by complying with appropriate regulations and by addressing administrative, technical and physical safeguards designed to (i) ensure the security and confidentiality of nonpublic personal information relating to Licensee's customers; (ii) protect against any anticipated threats or hazards to the security or integrity of such information; and (iii) protect against unauthorized access to or use of such information that could result in substantial harm or inconvenience to Licensee's customers. RateShop will provide prompt notice to Licensee if RateShop becomes aware of an unauthorized disclosure involving Licensee's "sensitive customer or member information," as those terms are defined by regulatory guidance issued by the applicable federal agency that regulates Licensee. Notification may be delayed to the extent necessary to prevent interference with a criminal investigation related to the disclosure. RateShop will permit a review to assess whether appropriate key controls are in place and/or will provide reasonable documentation to verify that RateShop has complied with its obligations under this paragraph, if (a) required of Licensee by state or federal regulators; (b) conducted by either Licensee and/or its regulator(s) at Licensee's expense and during regular business hours; (c) limited to the scope of RateShop's obligations with respect to the software and data and pursuant to this paragraph; and (d) Licensee provides reasonable advance notice. At Licensee's request, RateShop may provide additional services related to its obligations under this paragraph at RateShop's then-current fees for such services.
(d) Nevertheless, neither RateShop nor Licensee will be obligated to keep confidential any information that is: (a) publicly available through no fault of the receiving party, (b) received by the receiving party from a third party who is not under a confidentiality obligation regarding the information, (c) independently developed by the receiving party without referring to the Confidential Information, or (d) required by applicable law to be disclosed by the receiving party, provided the receiving party shall give prompt notice to the disclosing party (unless notice is not allowed by a regulating agency seeking such information) and assist and support the disclosing party's efforts to maintain the confidentiality of the information, including, but not limited to, securing protective orders and limiting the information disclosed. RateShop may disclose in press releases, research reports and other marketing brochures the Licensee's name, logo and identify the respective Licensee's products and rate information.
(e) Each party recognizes that the remedy at law for any breach of its obligations under the Agreement will be inadequate, and, hence, each party agrees that the other shall be entitled to seek equitable or injunctive relief in the event of breach by either party hereto, without the necessity of proving damages or posting any bond or other security.
16. General Terms
(a) Severability. If any section, clause, provision, exhibit, addendum or portion of this ordinance is judged unconstitutional or invalid by a court of competent jurisdiction, the remainder of the ordinance shall remain in forces and not be affected by such judgment.
(b) Governing Law. This Agreement shall be governed by and interpreted in accordance with the internal laws of the defending party ("Neutral State") as applied to agreements entered into and fully performed therein. Both parties submit to jurisdiction in the Neutral State and further agree that any cause of action arising under this Agreement shall be brought in the appropriate courts in the Neutral State.
(c) Arbitration. Any controversy or claim arising out of or in relation to this Agreement or the validity, construction or performance of this Agreement, or the breach thereof, shall be resolved by arbitration in accordance with the rules of the American Arbitration Association (AAA) under its jurisdiction in the Neutral State before a single arbitrator. The parties shall have the right to engage in pre-hearing discovery in connection with such arbitration proceedings. The parties agree hereto that they will abide by and perform any award rendered in any arbitration conducted pursuant hereto, that any court having jurisdiction thereof may issue a judgment based upon such award and that the prevailing party in such arbitration and/or confirmation proceeding shall be entitled to recover its reasonable attorney’s fees and expenses. The arbitration award shall be final, binding, and non-appealable. The parties agree to accept service of process in accordance with the AAA Rules.
(d) Non-waiver. No failure or neglect of either party hereto in any instance to exercise any right, power or privilege under this Agreement or under applicable law shall constitute a waiver of any other right, power or privilege in any other instance. All waivers by either party must be in wiring and signed by the party to be charged.
(e) Entire Agreement. This Agreement contains the entire agreement and understanding between the parties and supersedes any prior or contemporaneous written or oral agreements, representations and warranties between them respecting the subject matter of this Agreement. This Agreement may be amended only by a writing signed by Licensee and by a duly authorized representative of the RateShop.
(f) Force Majeure. Neither party shall have any liability whatsoever for interruptions of service or other breach of this Agreement due to fire, explosion, lightning, power surge or failure, water or floods, acts of God, war, civil disturbance, acts or omissions of communications carriers, governmental acts, natural disasters, strikes or industrial disputes, political disturbances, epidemics and all other circumstances which, against its will, prevent or hinder such party from performing its obligations.
(g) Notices. All notices given pursuant to this Agreement shall be submitted to RateShop at service@rateshopreports.com and to Licensee at the address of file with the regulatory agency to which Licensee reports at the time of the notice.
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