Theses Sublicensing Terms (“Sublicensing Terms”), are incorporated into the Agreement, by reference. The Agreement consists of the Introduction, the Terms, the Authorized Use Policy, theses Sublicensing Terms, and any other Additional Terms, that the Parties have agreed to by means of a signed writing.
- Application. These Sublicensing Terms only apply to Client if Client desires to offer the Authorized WealthEngine Products to Client’s Customer(s). If Client makes any Authorized WealthEngine Products available to Client’s Customer(s) in additional to all other Terms, Client must strictly comply with the requirements of these Sublicensing Terms.
- Appointment. Subject to the Agreement, specially including the Terms of Service, WealthEngine hereby grants to Client a non-exclusive, non-sublicenseable, non-assignable, non-transferable right and license, to market, and sell, the Authorized WealthEngine Products during the Term in the Authorized Territory to Client’s Customer(s), solely as contemplated by the provisions of this Agreement. In addition to all other Terms, without limitation specifically including Exhibit A, Client, is obligated, and accepts ongoing responsibility for ensuring that any sale or use of an Authorized WealthEngine Product is pursuant to a satisfactory Customer Agreement. Client shall indemnify WealthEngine against any and all loss arising in relation a Client’s Customer, and any to failure to secure a Customer Agreement as required by these Sublicensing Terms.
- Orders. Subject to this Agreement, including, the usage restrictions and/or limitations in this Agreement, WealthEngine hereby grants solely to Client’s Authorized User(s) a limited, non-exclusive, non-transferable, and non-sublicensable right to access the applicable Products during the Term solely for the purpose of placing Order(s) on a Customer’s behalf, and enabling the performance of Applications in strict compliance with these Terms.
- Applications. Subject to the Agreement, WealthEngine hereby grants to Client the non-transferable, non-assignable, non-exclusive right during the term of this Agreement to use the WealthEngine Products for purposes of providing Applications, as described in section II (5) of the Terms, in accordance with the Terms, and solely to the Customer(s) identified in the applicable Order(s). In no event shall Client use any WealthEngine Products to market the Client’s own products or services. Any use of the WealthEngine Brand or Products, by Client, under this section 4, not specifically permitted in this Agreement is prohibited, unless Client first secures WealthEngine’s written approval. Client is explicitly prohibited from utilizing any WealthEngine Products to develop new products or services, or create derived products, other than an Application.
- Brand License. Subject to the Agreement, WealthEngine hereby grants to Client a non-exclusive, non-assignable, non-sublicenseable, non-transferable right and license to use the WealthEngine Brand during the Term in association with the WealthEngine Products in connection with the marketing and distribution of such Authorized WealthEngine Products, solely as required or expressly permitted in this Agreement, and solely in the Authorized Territory.
- Branding Obligations.
- Client will display the WealthEngine Brand in association with the WealthEngine Products within or upon any publications or marketing materials, as well as on each Web page within any Client website which (i) markets, promotes or references the WealthEngine Products to Customers and/or prospective Customers; (ii) which contains hyperlinks to any WealthEngine website; (iii) which otherwise references or relates to WealthEngine and/or the WealthEngine Products; or (iv) lists or catalogues Client’s strategic business partnerships or alliances, which shall reference WealthEngine.
- Without limiting any provision of the Agreement, WealthEngine will have the right from time to time to specify, amended, or distribute, additional usage terms or guidelines with respect to the WealthEngine Brand or WealthEngine Products, and all uses by Client of the WealthEngine Brand or Products will be subject to any such usage terms or guidelines upon receipt thereof. Without limiting the foregoing, Client will not (i) use the WealthEngine Brand in connection with any product or service other than the WealthEngine Products, or an Application; (ii) attach any additional trademarks, service marks, trade names, logos or other designations to the WealthEngine Products or any part of the WealthEngine Brand; or (iii) alter, erase, deface or overprint any WealthEngine proprietary notice, including, without limitation, any trademark notice or copyright notice included with the WealthEngine Products or any part of the WealthEngine Brand.
- General Usage Restrictions.
- Client will not use the WealthEngine Products or the WealthEngine Brand for any purposes beyond the scope of the licenses granted hereunder.
- Client will not market the WealthEngine Products other than to Customers, located within the Authorized Territory, or otherwise market the WealthEngine Products except in strict accordance with this Agreement.
- Without limiting the generality of foregoing, except as expressly set forth herein, Client will not (i) copy or duplicate the WealthEngine Products; (ii) decompile, disassemble, reverse engineer or otherwise attempt to obtain or perceive the source code from which any software component of the WealthEngine Products is compiled or interpreted, and Client hereby acknowledges that nothing herein will be construed to grant Client any right to obtain or use such source code; (iii) combine or integrate the WealthEngine Products with hardware, software or technology not provided to Client by WealthEngine hereunder, except with the prior written consent of WealthEngine; such consent may be inferred from WealthEngine’s own, topically relevant, written marketing materials; (iv) modify, further develop or create any derivative product, other than an Application, from the WealthEngine Products or the WealthEngine Brand, except with the prior written consent of WealthEngine; or (v) assign, sublicense, sell, lease or otherwise transfer or convey, or pledge as security or otherwise encumber, Client’s rights under the licenses granted in this Agreement.
- All use by Client of the WealthEngine Brand will strictly comply with such usage guidelines as WealthEngine may specify from time to time.
- Client will undertake all measures necessary to ensure that its use of the WealthEngine Products and the WealthEngine Brand complies in all respects with any contractual or other legally binding obligations of WealthEngine to its third party licensors, as set forth in Customer Agreements, or made known to Client by WealthEngine in writing. Client will not enter into any contractual relationship or other legally binding obligation with any third party, which will have the purpose or effect of encumbering the use by WealthEngine of the WealthEngine Products or the WealthEngine Brand.
- Client will undertake all measures necessary to ensure that its use of the WealthEngine Products and the WealthEngine Brand complies in all respects with all applicable laws, statutes, regulations, ordinances or other rules promulgated by governing authorities having jurisdiction over the Parties, the WealthEngine Products or the WealthEngine Brand. The foregoing obligation of this section 7 (f), specifically includes but is not limited to, Client’s obligation to secure satisfactory Customer Agreements.
- Ownership and Proprietary Rights. Subject to the rights granted herein, WealthEngine retains all right, title and interest in and to the WealthEngine Products and the WealthEngine Brand, and Client acknowledges that it neither owns nor acquires any rights in or to the WealthEngine Products and/or WealthEngine Brand, or any derived output, not expressly granted by this Agreement. Client further acknowledges that WealthEngine retains the right to use the WealthEngine Products and the WealthEngine Brand for any purpose in WealthEngine’s sole discretion. Without limiting the generality of the preceding sentence, Client acknowledges that WealthEngine retains the right to distribute the WealthEngine Products, directly or indirectly through additional resellers or distributors, within the Authorized Territory, or elsewhere. Client will promptly notify WealthEngine in the event Client suspects or becomes aware of any misuse of the WealthEngine Products or WealthEngine Brand or any violation, infringement or misappropriation of WealthEngine’s proprietary rights therein by any Customer or other third party.
- Customer License Agreements. Client acknowledges that any and all Authorized WealthEngine Products will be licensed to Customers pursuant to a license agreement directly between Client and each such Customer. However, except as explicitly provided herein, Client will have no authority to vary any such license agreement on WealthEngine’s behalf, nor will Client undertake any negotiation with any prospective Customer regarding, or purport to modify, any term or provision required by Exhibit A of these Sublicensing Terms. Client understands and agrees that it has no right under this Agreement to grant a sublicense in or to any software components of the WealthEngine Products to any Customer or any other third party. Client shall indemnify WealthEngine for any and all loss or liability arising in relation to Client’s Customer(s) and Client’s failure to secure sufficient Customer Agreements. Client shall obtain Customer Agreement(s) that include the terms and conditions contained in Exhibit A. Without limiting the foregoing Client bears the responsibility for including all terms related to any Prospecting Products in applicable Customer Agreements. If Client is utilizing any WealthEngine Products for its own internal business purposes then Client’s use of the WealthEngine Products shall comply with the terms contained in Exhibit A, as if Client where a Customer and by executing this Agreement Client acknowledges and agrees to all of the terms of Exhibit A, and accepts any fees related to any usage of a Service for Client’s internal business purpose.
- Authorized Use. At any time and in WealthEngine’s sole discretion WealthEngine may suspend access to any WealthEngine Services. Client shall notify WealthEngine immediately if it becomes aware of any unauthorized use, and is responsible for any activities conducted in relation to the information provided to Client’s Authorized Users. Any Client or Customer use of any WealthEngine Services or Data is subject to WealthEngine’s Authorized Use Policy, which is incorporated into this Agreement, by reference.
- WealthEngine Products & Authorization. If WealthEngine receives any Orders for WealthEngine Products other than the Authorized WealthEngine Products, from Client, WealthEngine reserves the right to contract directly with Customer for the provision of the WealthEngine Products, which are not included within the Authorized WealthEngine Products.
- Compliance Auditing Rights. Throughout the Term hereof, and for one year directly following the conclusion of the Term, WealthEngine will have the right, at its own expense, upon reasonable prior notice, to periodically inspect and audit Client’s use of the WealthEngine Services, WealthEngine Products and the WealthEngine Brand for purposes of determining Client’s compliance with the terms and conditions herein. Without limitation the foregoing WealthEngine audit rights specifically include WealthEngine’s right to request and review any and all applicable Customer Agreement(s). Client agrees to cooperate with WealthEngine in the performance of any such audit, and will provide to WealthEngine such access to Client’s records, data, information, personnel and/or facilities as WealthEngine may reasonably request for such limited purposes.
- Fees. Client shall pay all fees identified in the Service. If an Order is not placed via the Service upon confirmation of an Order Client shall be obligated to pay all fees due under the corresponding Order, within the payment terms set forth in each Order. If no payment terms are set forth in the Order the payment terms will be NET 30 from the effective date of the applicable Order. Client shall be responsible for all invoicing and collections related to Customer Agreements, and their corresponding Order(s). In the event of that usage exceeds the volume ordered any such overage shall be paid at the pro-rata rate, as determined by reference to the corresponding Order. Client assumes all liability for payment of the amount due for each Order and Client shall not be excused of the obligations of this section 13 for any reason including cancelation or non-payment by Customer.
- Client Operating Expenses. Client will bear all expenses incurred in performance of its obligations hereunder and in marketing and promoting the WealthEngine Products to any Customer.
- Taxes. Client will assume full responsibility for the proper reporting and payment of all taxes, contributions and special levies imposed or required under unemployment insurance, social security, income tax, and any other laws or regulations, with respect to Client’s employees and agents and Client’s performance of this Agreement. Client agrees to indemnify and hold WealthEngine harmless from any liability, loss, damage, or claim arising against, incurred or paid by WealthEngine by reason of any failure by Client fully or timely to assume such responsibilities.
- Representations and Warranties.
- Each Party hereby represents and warrants (i) that it is duly organized, validly existing and in good standing under the laws of its jurisdiction of incorporation; and (ii) that this Agreement constitutes a valid and binding obligation of such Party and will be enforceable against such Party in accordance with its terms.
- Client further represents and warrants that it will (i) perform its obligations hereunder and otherwise conduct its business in a manner that reflects favorably upon WealthEngine, the WealthEngine Services, WealthEngine Products and the WealthEngine Brand; and (ii) refrain from deceptive, misleading or unethical business practices of any kind.
- Professional Standards. Client acknowledges and agrees that WealthEngine owns all intellectual property rights in the WealthEngine Products and Services, and that WealthEngine derives substantial value from the goodwill associated therewith. Client will undertake all measures necessary to ensure that its marketing and promotional activities hereunder conform to industry standards of professionalism and fair practices, and Client understands that WealthEngine will have the right to terminate this Agreement in the event that WealthEngine determines, in its sole discretion, that Client has failed to meet the foregoing standards. Additionally, if Client disparages WealthEngine, or any WealthEngine Products, WealthEngine may terminate this Agreement, without any liability whatsoever, effective ten (10) days following delivery of notice, of the intent to so terminate, to Client.
Exhibit A: Required terms applicable to Sub-licensing
REQUIREMENTS FOR CUSTOMER AGREEMENTS
The following terms are required in all Customer Agreements, as mandated by these Sublicensing Terms. Client is obligated to include the following terms in legally binding agreements with any and all Customers (prior to providing any Customer with access to any WealthEngine Service, or an Application created by referencing a WealthEngine Service):
TERMS AND CONDITIONS
This Agreement is a binding, contractual agreement between Customer and Client. All references to WealthEngine, shall mean WealthEngine, Inc., a Delaware Corporation, with offices at 4330 East West Highway, Bethesda, MD 20814. All references to (“Customer” or “You”) refers to entity that is purchasing WealthEngine Services from WealthEngine’s Client (“Client”).
You represent that you have the authority to bind Customer/You and its affiliates to the terms and conditions of this Agreement; if you do not have such authority, or if you do not accept and agree to all of the Terms and Conditions contact Client.
WHEREAS, Customer has ordered certain services from Client, which are to be provided by WealthEngine (the “Services”); and
WHEREAS, Client is required by WealthEngine to, gain Customer’s assent to these Terms and Conditions with respect to the Services, in order to be able to offer the Services to Customer;
NOW THEREFORE, in exchange for good and valuable consideration, sufficiency of which is acknowledged, the Parties agree as follows:
- All sales are final. No refunds are permitted. Your order has been fulfilled with data owned by WealthEngine or its third party supplier(s). In no event should you look to WealthEngine for performance of this order; any performance of the services ordered here in is solely the responsibility of Client.
- “WealthEngine Data” means all data owned or licensed by WealthEngine made available to You, by Client or through any or other means. “Prospecting Product(s)” means the WealthEngine Data containing contact information, and WealthEngine Data created using WealthEnine Data and not originating from Client’s or Your data. These Prospecting Products are subject to additional laws and regulations, in addition to the restrictions contained in herein.
- Subject to all applicable laws, rules, and regulations, and the terms and conditions contained herein, including all legally required obligations of suppression, Client hereby grants You a limited, non-exclusive, non-transferable, and non-sublicensable right and license to use a Prospecting Product or any related WealthEngine Product(s) for Your internal business purposes and not for the benefit of any third party for a one year period beginning on the delivery of the WealthEngine Product. You will ensure that You destroy all Prospecting Products no later than 12 months after the delivery of the Prospecting Product. You agrees to provide Client with certification of destruction of applicable WealthEngine Data, upon request by Client. To the extent permitted by law, WealthEngine and its third party licensors or suppliers (“Licensors”) have no liability to You for any use of the WealthEngine Data.
- Each Party hereby acknowledges that the WealthEngine Data will include personal information pertaining to individual consumers. You shall treat the foregoing information responsibly and take reasonable steps to maintain strict confidentiality and to prevent unlawful dissemination or misuse by You or any other person with access to such information. You shall not disclose any such information or technology to any third party unless You can demonstrate the information or technology: (a) is part of the public domain through no breach of the terms herein or another obligation of confidence, (b) was in Your possession prior to disclosure by WealthEngine, (c) was obtained by You from a third party that was under no obligation to keep such technology or information confidential; or (d) was required to be disclosed by law, provided that You disclose the minimum amount of information required to satisfy the relevant legal requirement. You acknowledge and agree that any technology underlying the WealthEngine Data or any WealthEngine Service, is proprietary to, and/or exclusively owned by WealthEngine, or its licensors and comprises: (a) works of original authorship, including compiled information; (b) confidential and trade secret information; and (c) information, including sourcing information, has been created, developed and maintained by WealthEngine or its licensors at great expense of time and money, such that misappropriation or unauthorized use by others for commercial gain would unfairly or irreparably harm WealthEngine or Licensors. You agree that You will not take any action that would impair WealthEngine or its Licensors copyright or other proprietary and intellectual rights in the relevant WealthEngine Data. The WealthEngine Data is for the Your use only, and may not be sold or otherwise transferred by You to any third party. You acknowledge you have no right to mention WealthEngine or its Licensors in any public statements of any kind.
- By agreeing to these terms You and Your Company accept sole and full responsibility for the legal and proper use of any Data provided by WealthEngine or its Licensors. To expand on the foregoing this includes responsibility identifying and complying with any applicable law, regulation, order and opinion, including but not limited to any laws or regulations regarding privacy, use of personally information, and/or contact information (including phone, fax, email, or postal address data). To the extent permitted by law, in no event shall you look to WealthEngine, for relief, regarding any complaint or allegation arising out of your use of the Data. No use of the WealthEngine Data shall presume knowledge of, gained from the WealthEngine Data, the recipient of Your communications.
- Neither WealthEngine nor its Licensors make any representations or warranties, whether express, implied, or statutory (by any territory or jurisdiction) to the extent permitted by law, hereunder with respect to the WealthEngine Data or the method by which the WealthEngine Data is provided, WealthEngine expressly excludes any warranties of non-infringement, title, merchantability, fitness for a particular purpose, data accuracy, security, quiet enjoyment, usage of trade or course of dealing, to the extent permitted by law. WEALTHENGINE DOES NOT AND CANNOT WARRANT THE PERFORMANCE OR RESULTS OBTAINED BY CLIENT IN USING THE SERVICES, OR THAT THE SERVICES OR DATA WILL MEET CLIENT’S REQUIREMENTS OR THAT THE OPERATION OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE. WealthEngine does not warrant that the Services will be uninterrupted or error-free. ALL WEALTHENGINE DATA IS PROVIDED ON AN AS IS, AS AVAILABLE BASIS. ANY USE OR RELIANCE ON THE WEALTHENGINE DATA IS AT YOUR OWN RISK.
- TO THE EXTENT PERMITTED BY LAW WEALTHENGINE’S MAXIMUM LIABILITY TO YOU IS LIMITED TO THE AMOUNT PAID BY CLIENT TO WEALTHENGINE FOR THE APPLICABLE ORDER. You may be required to supply WealthEngine with a copy of a sample mail piece, telephone script or html upon request from WealthEngine. WealthEngine, reserves the right to refuse an order for any reason or no reason at all. IN NO EVENT WILL WEALTHENGINE BE LIABLE FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL, PUNITIVE, OR OTHER INDIRECT DAMAGES, REGARDLESS OF THE NATURE OF THE CLAIM, ARISING FROM ANY SOURCE, EVEN IF WEALTHENGINE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. The limitations contained in herein form an essential basis of the bargain between the Parties, and absent such limitations the terms of the bargain including any economic terms would be substantially different. However nothing herein shall limit or exclude liability which cannot lawfully be excluded or limited.
- You agree to indemnify and hold WealthEngine and its Licensors harmless from any loss arising for any reason in relation to your use of the WealthEngine Data or Services.
- Client is required to incorporate terms equivalent to those contained in section VI of the Terms in all Customer Agreements.