PERC DATA SUBSCRIPTION AGREEMENT
IMPORTANT: PLEASE READ THESE TERMS CAREFULLY BEFORE DOWNLOADING LICENSED DATA (DEFINED BELOW). BY DOWNLOADING OR USING LICENSED DATA, YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, THAT YOU UNDERSTAND IT, AND THAT YOU AGREE TO BE BOUND BY ITS TERMS. IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, PLEASE DO NOT PROCEED WITH THE REGISTRATION PROCESS, DOWNLOAD OR USE LICENSED DATA.
This Agreement is entered into between Perc Data ("Company"), a Texas corporation having a place of business at 904 Windmill Ct, Cedar Hill, TX 75104 and YOU ("You"), for the purpose of using a television listings product ("Licensed Data") supplied by TRIBUNE MEDIA SERVICES, INC. ("Supplier") to be used by You solely in conjunction with devices included on the Approved Device List (defined below) ("Licensed Application").
1. GRANT OF PERMISSION.
Subject to the terms and conditions of this Agreement, Company hereby agrees to permit You, on a non-exclusive, revocable, non-transferable, limited basis, to access and to use Licensed Data under the terms of this Agreement, provided that such access and use of Licensed Data are solely (i) for Your personal use and for non-commercial purposes; (ii) achieved using devices included on the Approved Device List (defined below); and (iii) in accordance with the restrictions and limitations set forth in this Agreement.
2. RESTRICTIONS ON USE.
Without limiting the generality of Section 1, You shall not, without Company's prior written consent, which consent may be granted or denied in Company's sole discretion, (i) redistribute or republish Licensed Data in any media now known or hereafter developed, in original or in modified form (including, without limitation, translations, changes in formatting, alterations to meta-data content, or variations in the arrangement of Licensed Data); (ii) assign, rent, lease, grant a security interest in, re-license, sublicense, or otherwise transfer any rights to Licensed Data; (iii) remove or alter any trademark, logo, copyright or other proprietary notice, legend, symbol or label contained in Licensed Data; (iv) publish Licensed Data or its derivative on a website or any other server connected to the Internet; (v) access Licensed Data via a device which is not included in the approved devices list available at http://www.percdata.com/approved-devices, which list may be updated by Company from time to time in Company's sole discretion ("Approved Device List"); and (vi) engage in any act that, directly or indirectly, would jeopardize, limit, or interfere in any manner with the operation of Company's Licensed Data service.
(a) Device.Company or Supplier shall deliver Licensed Data to You via a device (hardware or software) on the Approved Device List. Any attempt to access Licensed Data via a device not included on the Approved Device List will constitute a breach of this Agreement. In the event such a breach occurs, Company has the right to cancel Your User Account (defined below) and to terminate this Agreement immediately, with no further liability or obligation to You. Company's approval of a device for use with Licensed Data does not (i) constitute an endorsement of the device; (ii) guarantee that the device will work with Licensed Data or be error-free; (iii) guarantee the device's reliability or safety in any way; or (iv) grant or purport to grant You any right or license in the device. In no event shall Company be liable to You in any way, including any general, special, incidental, consequential or punitive damages or lost-profit damages, arising out of Your use of a device included on the Approved Device List.
(b) Compliance and Costs.You acknowledge and agree that, while accessing Licensed Data, You are subject to and shall comply with all applicable laws, rules, and regulations, and any additional posted guidelines, rules, terms, and conditions, including, without limitation, any guidelines, rules, terms, and conditions imposed by applicable third parties, such as Internet access providers. You are solely responsible for any broadband, telephone line or any other connection charges You may incur when connecting to Company's services.
4. USER ACCOUNT; SECURITY.
(a) Registration.In order to obtain access to Licensed Data, You must register via Company's registration page, which is currently located at http://www.percdata.com/signup. During the registration process, You will be required to provide personal information, including, without limitation, Your name and email address. You will also be required to create a username and password, which together will constitute Your user account with Company ("User Account") and enable You, subject to the payment and other terms contained herein, to access Licensed Data via one of the devices included in the Approved Device List. After You provide Your Registration Information, You will be asked to select a service period (available service periods may be updated and changed by Company in its sole discretion and without notice at any time) and be directed to a third party payment processor, such as, without limitation, Paypal (see www.paypal.com) or Google Checkout (see www.checkout.google.com) (each a "Payment Processor"), so that You can provide a method of payment and Company, pursuant to Section 6, can charge You for the services provided hereunder. You acknowledge that, as part of the registration process and solely in order to provide You with access to Licensed Data, Company may forward some or all of Your Registration Information to Payment Processor and to Supplier and that (i) Company makes no representations regarding Payment Processor's or Supplier's uses of Your Registration Information; and (ii) Company is not liable for Payment Processor's or Supplier's uses of Your Registration Information.
(b) User Account.You represent and warrant to Company that all Registration Information You provide in connection with Your User Account is, and shall remain throughout the term of this Agreement, true, accurate and complete. You will not, without Company's prior written consent, permit any third party to access Licensed Data via Your User Account. You shall maintain Your User Account in strict confidence and You shall be liable for any inappropriate uses of Your User Account as well as any inappropriate uses of Licensed Data retrieved using Your User Account. Company will not be liable to You or any third party for any damages or loss incurred as the result of the theft, loss or unauthorized use of Your User Account, for any reason whatsoever. Company reserves the right to deactivate or cancel Your User Account if at any time Company believes that such access is harmful or potentially harmful to Company or any of Company's users or Supplier.
(c) Fraud Detection.In case Company detects suspicious activity in connection with Your User Account, Your User Account may be deactivated and remain deactivated until Company is satisfied that no security breach has taken place, or, if a security breach has occurred, that such security breach has been resolved. If You have reason to believe that Your User Account has been compromised and is not secure (e.g., in the event Your User Account is lost, stolen, disclosed or used without authorization), You must promptly notify Company of such occurrence by sending an email message to email@example.com. From time to time, and when Company detects suspicious activity in connection with Your User Account, an e-mail will be sent to the email address associated with Your User Account, which email will provide You with instructions for confirming the authenticity of Your User Account. Company may deactivate or cancel Your User Account and terminate this Agreement if You fail to comply with such security precautions.
(a) Discussion Forum.Company may provide on its website a discussion forum via which You may report any difficulties or problems You encounter while using the services contemplated under this Agreement ("User Report"). Company will in its sole discretion determine if a User Report identifies a material problem. In the event Company determines a User Report identifies a material problem, Company will make a commercially reasonable effort to implement an appropriate solution. Company is not liable to You for the interruption of service (if any) or the unavailability of any Licensed Data that may occur as a result of implementing such correction measures.
(a) Fees.Licensed Data is provided to You for a service fee payable in advance (a schedule of service fees, which service fees may be updated and changed by Company in its sole discretion and without notice at any time, is available at http://www.percdata.com/membershiplevels (each a "Service Fee")). You authorize Company or its designee to charge the Service Fee to You via Payment Processor when (i) You register with Company and (ii) each time You renew Your membership with Company.
(b) Refund.In the event that Company is, for any reason, no longer able to provide access to Licensed Data, or in the event Supplier no longer makes Licensed Data available to Company, and, pursuant to Section 7 below, Company terminates this Agreement, Company will refund to You, on a pro-rata basis, any remaining portion of the Service Fee, provided that Payment Processor is able to process such a refund transaction. In the event Payment Processor is not able to process a refund, Company will issue a refund, in the currency of U.S. Dollars, by forwarding a check, via the postal service, to a mailing address on file in Company's records, or if unavailable, which You provide via notification to the email address in Your Registration. You will not be eligible for a pro-rata or any other type of refund under any other circumstances, including, without limitation, termination of this Agreement prior to the expiration of the then current Service Period. The foregoing states Company's entire liability to You and Your sole remedy in the event Company is unable to provide access to Licensed Data hereunder.
7. TERM AND TERMINATION.
This Agreement shall commence on the date You register on Company's web site and create a User Account ("Effective Date") and terminate at the end of the initial Service Period. You may renew the Agreement at Your election for successive Service Periods. Before the completion of each Service Period, Company will send to the email address You provide as part of Your Registration Information a reminder that Your User Account is about to expire, along with instructions for renewal. Unless You renew Your User Account before the expiration of the then current Service Period, Your User Account will be cancelled and this Agreement will terminate.
Company may terminate this Agreement and cancel Your User Account, with no further liability or obligation to You, if (i) You are in breach of this Agreement; or (ii) Company is, for any reason, no longer able to compile and deliver Licensed Data and otherwise to perform services hereunder.
The Agreement shall automatically terminate if You cancel Your User Account. You will not receive a pro-rata or any other type of refund of Your Service Fee or any other accrued fees if You elect to terminate this Agreement.
Upon the termination of this Agreement, (i) Company will cancel Your User Account; and (ii) You shall purge all Licensed Data from any and all computers in Your household. Sections 8, 9, 10, 11, 12 and 13, as well as Your obligations under Section 4, will survive the termination of this Agreement.
8. LIMITATION OF LIABILITY.
You acknowledge that (i) Licensed Data is assembled by Company from information provided by Supplier; (ii) Company has no obligation to verify the accuracy of Licensed Data; and (iii) Company is not liable for any inaccuracies contained in Licensed Data. COMPANY PROVIDES LICENSED DATA ON AN "AS IS" BASIS, MAKES NO EXPRESS OR IMPLIED WARRANTIES REGARDING LICENSED DATA, AND DISCLAIMS ALL WARRANTIES OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE.
Neither Company nor Supplier is responsible for the functioning or performance of the Licensed Application.
Company and Supplier and their respective affiliates, officers, directors, employees, representatives and agents (collectively, the "Company and Supplier Parties") shall not be liable for any loss or damages of any kind, including, without limitation, loss or damages suffered by You or any third party as a result of non-delivery or as a result of any delay or interruption in the delivery of Licensed Data for any reason whatsoever. IN NO EVENT SHALL THE LIABILITY OF COMPANY AND SUPPLIER PARTIES TO YOU OR TO ANY THIRD PARTY EXCEED THE AMOUNT PAID BY YOU TO COMPANY UNDER THIS AGREEMENT. IN NO EVENT SHALL COMPANY AND SUPPLIER PARTIES BE LIABLE FOR DIRECT, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES OR LOST-PROFIT DAMAGES.
You shall indemnify, defend and hold harmless Company and Supplier Parties from and against any and all claims, damages, costs and expenses (including attorneys' fees) arising out of or relating to Your use of Licensed Data and User Account, including, without limitation, (a) any modifications or alterations You make to Licensed Data; (b) any violation by You or on behalf of You of any trade secret, copyright, trademark, service mark or other intellectual property right and/or interest; and (c) any use of Licensed Data by a third party who received Licensed Data from You without Company's prior written approval.
10. OWNERSHIP AND PROPRIETARY RIGHTS.
Neither Company nor Supplier grants or purports to grant to You any rights or licenses to any trademarks or other intellectual property contained or embodied in Licensed Data, or to any other materials made available to You in connection herein. Without limiting the generality of the foregoing, neither Company nor Supplier grants to You any rights or licenses in or to Licensed Data, the related names and trademarks or associated components, including, without limitation, the content and proprietary systems used by Company or Supplier in connection with Licensed Data. You acknowledge that Supplier owns all copyrights and other proprietary rights in and to Licensed Data. You shall not, by virtue of this Agreement or by virtue of its access to Licensed Data, obtain any copyright or other proprietary right or interest in or to Licensed Data except the rights specifically granted to You herein.
For any materials that You transmit to Company, You grant Company a worldwide, non-exclusive, assignable, royalty-free, sub-licensable (through multiple tiers), perpetual, irrevocable right and license to use, copy, distribute, transmit, reproduce, edit, modify, translate, and reformat such materials, in any media now known or hereafter developed, without compensation to You. You represent and warrant that You have all rights necessary to grant the foregoing licenses. You represent and warrant that any materials You transmit to Company (i) do not infringe upon any rights of any third parties, including, but not limited to, any contract rights, rights of privacy or intellectual property rights; (ii) are not libelous, pornographic, or causing Company or Supplier to be in breach of any agreement between Company and Supplier, or between either Company or Supplier and a third party, concerning Licensed Data or a component thereof; and (iii) do not generate confusion as to the source of such materials.
11. GOVERNING LAW; VENUE.
This Agreement is governed by and shall be construed in accordance with the laws of the State of Texas, U.S.A., without regards to its principles of conflicts of law. You agree to the exclusive jurisdiction by the federal and state courts located in Dallas County in the State of Texas, U.S.A., and hereby waive any jurisdictional, venue, or inconvenient forum objections to such courts. This Agreement will not be governed or interpreted in any way by referring to any law based on the Uniform Computer Information Transactions Act (UCITA), even if or to the extent such law is adopted in the State of Texas, U.S.A.
12. NO JOINT VENTURE.
Nothing in this Agreement and its performance shall be construed as creating a joint venture, partnership or agency between You and Company.