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Last updated – January 2, 2013
RAPAPORT – PRICES, DATA AND INDICES – LICENSING AGREEMENT
This license agreement (this "License") is made between you and Rapaport
(as defined below). This License governs the use by you of Rapaport diamond prices,
data, indices and/or RapNet diamond listings (the "Data").
By clicking the "Submit" button you hereby agree to use the Data in accordance
with the terms of this License and you are confirming that you are authorized by,
and capable of binding the, company or corporation on behalf of whom you are entering
this License.
WHEREAS:
1. Data includes all Rapaport supplied business information and products, including
Rapaport Price Lists, RapNet Price Lists, Rapaport Diamond Indices, RapNet diamond
listings and other related products;
2. You wish to receive access to the Data.
3. This License sets out the terms and conditions which shall govern your use of
the Data.
IT IS HEREBY AGREED:
This License is subject to the terms and conditions of any member agreement you
may have entered into, which remains unamended, and in full force and effect.
"Web Sites" means the web site on the Public Internet at http://www.diamonds.net,
http://www.rapnet.com, http://technet.rapaport.com or such other web site and/or
address as may be notified to you from time to time.
"Rapaport" or "Licensor" or "we" means the Rapaport
Group of companies, which includes Martin Rapaport, Rapaport USA, Inc. and any company
in which Martin Rapaport has a majority interest, as well as all employees, agents
and consultants of Rapaport.
1. LICENSE
a. In consideration of the undertakings and obligations specified in this License,
we, the Licensor, grant you, as Licensee, a limited, non-exclusive, non-transferable,
non-sublicensable, revocable license for the term of this License to use the Data
exclusively by you, for your own personal use in your business or organization,
and for internal purposes only, subject to the following conditions:
i. You agree that Rapaport retains exclusive ownership of the Data and all of the
documentation and computer recorded data related thereto.
ii. You acknowledge and agree that the Data, including but not limited to, its components
and methods of calculation, and in whatever form provided, including in writing,
electronically or verbally, and all other information provided by Rapaport, including
but not limited to, all documentation, and software, together with all rights, titles
and interests therein, including but not limited to all related Intellectual Property
rights and all other property and proprietary rights is solely and exclusively owned
by Rapaport. "Intellectual Property" shall include rights in copyrights,
database rights, domain names, trademarks and service marks and all goodwill associated
therewith and symbolized thereby, patents, patent applications, inventions, discoveries,
concepts, improvements, know-how, confidential information, trade secrets and design
rights, in each case whether registered or unregistered and including all applications
and rights to apply for registration, and all similar or equivalent rights.
iii. You acknowledge and agree that all such rights, titles and interests in and
to the Data, including but not limited to, its components and methods of calculation,
and in whatever form provided, including in writing, electronically or verbally,
and all other information provided by Rapaport, including but not limited to, all
documentation, and software, are valid, subsisting and enforceable, and the Data,
including but not limited to, its components and methods of calculation, and in
whatever form provided, including in writing, electronically or verbally, and all
other information provided by Rapaport, including but not limited to, all documentation,
and software, is a product of the selection, coordination, arrangement, and editing
of Rapaport and its affiliates and that such efforts involve the considerable expenditure
by Rapaport and its affiliates of time, effort, creativity, money and judgment.
iv. You agree that you shall not, directly or indirectly, do or cause to be done
any act which may in any way jeopardize or adversely affect the validity or enforceability
of, or otherwise infringe or misappropriate, any rights, titles and interests of
Rapaport in and to the Data, including but not limited to, its components and methods
of calculation, and in whatever form provided, including in writing, electronically
or verbally, and all other information provided by Rapaport, including but not limited
to, all documentation, and software, or any Intellectual Property rights and any
property and proprietary rights related thereto. You further agree that you will
not oppose or contest any application by Rapaport and/or any of its affiliates in
connection with the Data, including but not limited to, its components and methods
of calculation, and all other information provided by Rapaport, including but not
limited to, all documentation, and software, including but not limited to, any application
directed to any rights subsisting therein, in the United States or elsewhere, or
any application for extension of such rights.
v. Each party shall treat as confidential and shall not disclose or transmit to
any third party, other than an officer, director or employee of the party who needs
to know such information in order for the party to enter into this contract or fulfill
its obligations hereunder, any documentation or other written materials that are
marked as confidential and proprietary by the providing party. All information regarding
the Data, including but not limited to, its components and methods of calculation,
and all other information provided by Rapaport, including but not limited to, all
documentation, and software, no matter the form provided, including without limitation,
written, electronic or orally conveyed information, is considered proprietary and
Confidential Information of Rapaport. In fulfilling its confidentiality obligations,
each party shall use a commercially reasonable standard of care, at least the same
standard of care, which it uses to protect its own similar confidential or proprietary
information. The specific terms of this Agreement shall be treated as Confidential
Information. Confidential Information shall not include (i) any information that
is or becomes generally available to the public or to the receiving party hereunder
from sources other than the providing party (provided that the receiving party is
aware of the source of such information and such source is not known to the receiving
party to be subject to a confidentiality agreement with regard to such information),
(ii) any information that is independently developed by the receiving party without
use of or reference to information from the providing party or (iii) any information
already available to or in the possession of the receiving party prior to delivery
by the forwarding party, free of a confidentiality obligation. Notwithstanding the
foregoing, either party may reveal Confidential Information to any regulatory agency
or court of competent jurisdiction if such information to be disclosed is (a) approved
in writing by the other party for such disclosure or (b) required by law, regulatory
agency or court order to be disclosed by a party, provided, if permitted by law,
that prior written notice of such required disclosure is given to the other party,
except that prior written notice shall not be required to be provided prior to disclosure
to a regulator having jurisdiction over the receiving party, and provided further
that the providing party shall cooperate with the other party to limit the extent
of such disclosure. With the exception of Confidential Information regarding the
Data, including but not limited to, its components and methods of calculation, and
in whatever form provided, including in writing, electronically or verbally, and
all other information provided by Rapaport, including but not limited to, all documentation,
and software, which shall survive termination or expiration of this agreement without
any period restriction, the provisions of this Section 1.a.v shall survive termination
or expiration of this Agreement for a period of two (2) years from disclosure by
either party to the other of the last item of such Confidential Information.
vi. Given the nature of the Confidential Information and the terms and conditions
of this Agreement and the damage that would result upon unauthorized disclosure
or use, the parties agree that monetary damages alone would not be a sufficient
remedy for the breach or threatened breach of Section 1.a.v. In addition to all
other rights and remedies, a party will be entitled to seek specific performance
and injunctive and other equitable relief as a remedy for any breach or threatened
breach of Section 1.a.v without showing actual monetary damages in connection therewith,
and without requiring a bond to be posted.
vii. You agree not to use the Data in any way beyond the scope of this License and
that You will use sufficient due diligence to safeguard and protect the Data from
unauthorized infringement.
viii. You shall not copy, reproduce, re-manufacture or in any way duplicate all
or any part of the Data, electronically or in any other medium, whether modified
or translated into any other format or not, except for use by You in your business
or organization as specified in this License and in accordance with the terms and
conditions of this License. You shall not, and shall not permit any other party,
to do any of the following with respect to the Data, including but not limited to,
its components and methods of calculation, and all other information provided by
Rapaport, including but not limited to, all documentation, and software, without
the express written permission of Rapaport: (i) copy; (ii) remove or alter any copyright,
trademark, patent or other notices; (iii) translate, deconstruct, reverse engineer,
decompile, disassemble or otherwise attempt to discern the whole or any part or
component thereof; (iv) alter, modify, adapt, translate or reproduce the whole or
any part or component thereof, or merge the whole or any part or component thereof
with or into other software or information, or create derivative works based thereon;
(v) directly or indirectly distribute or make available the whole or any part or
component thereof; or (vi) take or authorize any action that could detrimentally
interfere with the ownership by Rapaport or the proper workings of the whole or
any part or component thereof, including but not limited to, use any robot, spider
or other device or process to monitor or copy the whole or any part or component
thereof, or knowingly transmit any virus or other potentially harmful device in
connection with Licensee's use thereof.
ix. You shall not use the Data or any information provided by Rapaport to establish
a competing diamond pricing, trading or information service or product. In addition,
without derogating from the aforesaid, you will not use Rapaport price indices in
any financial product without entering into a specific separate license agreement
with Rapaport which will govern any such financial product. You expressly represent
and warrant that none of you, your affiliates, or any of your or their respective
directors, officers, shareholders, employees, agents, professional advisors, and
other representatives shall directly or indirectly, during the term of this Agreement
and for a period of twenty-four (24) months following the termination of this Agreement,
establish any business, or provide any data, including but not limited to, anything
identical or similar to the Data and its components and methods of calculation,
and any other information provided by Rapaport, including but not limited to any
documentation, and software, that is competitive with Rapaport or its affiliates
or substantially similar thereto.
x. You agree that unauthorized distributing, copying, duplicating, or otherwise
reproducing all or any part of the Data provided by Rapaport, or the failure to
protect such Data other than use in your business or organization will actually
and materially harm or prejudice the interests of Rapaport. You agree that in the
event You breach this License, You will be liable for damages or injunctive relief
as may be determined by a court of competent jurisdiction.
b. You may appoint agents or sub-contractors to carry out any of the activities
permitted under clauses 1.a of this License. However, you acknowledge that You shall
be responsible for ensuring that such agents or sub-contractors use the Data according
to the terms of this License and that You will at all times remain liable to Rapaport
for the acts and omissions of such agents and sub-contractors. Except as expressly
set out above, You may not share with, or reveal the Data to, any other third party
under any circumstances.
c. You acknowledge that the Data is owned by Rapaport, and that such Data is Confidential
Information of Rapaport and protected by various property and intellectual property
rights owned exclusively by Rapaport, including but not limited to rights arising
under various U.S. federal, U.S. state and international regulations, laws and treaties,
including but not limited to, Intellectual Property rights, misappropriation laws,
copyrights, database rights, trademarks and/or patents.
d. You may only use the Data as expressly granted under this License and for the
avoidance of doubt the Data may not be sold, redistributed or licensed to any third
parties or contained within any commercial product or service. Any use of the Data
outside those expressly granted under this License requires the prior written consent
of Rapaport.
2. MODIFICATIONS
a. Rapaport provides no warranty as to the accuracy of the Data. However, if we
become aware that the Data are in any way inaccurate in any material respect, we
shall use all reasonable efforts to correct the error by modifying the Data.
b. You hereby acknowledge that we may, at our sole discretion, withdraw the availability
of the Data or any updates at any time.
3. LIABILITY
a. You accept that the Data have been devised to meet general market requirements
and not specifically designed to meet your own particular business, technical or
other requirements. All warranties relating to the Data, whether express or implied
by statute, are excluded to the fullest extent permitted by law and in no circumstances
shall we be liable for any loss or damage arising out of the Data or in any way
whatsoever, whether direct or indirect, consequential, exemplary or any other damages
(including loss of profit or goodwill) and whether arising through negligence, misrepresentation
or otherwise.
4. TERM AND TERMINATION
a. This License will take effect once You have clicked on "Submit" below
and will continue until the expiry or termination of this License. This License
will automatically terminate if any membership or subscription you have with Rapaport
lapses or is terminated for any reason.
b. If you are in material breach of a provision of this License and do not remedy
the breach within 7 days after You receive notice from us requiring You to do so,
we may immediately terminate this License by notice to You.
c. Rapaport shall have the ability to terminate this Agreement at any time by providing
thirty (30) days written notice to Licensee of such termination.
d. Rapaport may, without prejudice to any other rights or remedies, terminate this
Agreement and the Licenses granted herein, if a petition in bankruptcy has been
filed by the Licensee (upon 60 days written notice to Licensee with an opportunity
to cure within the stated period if a petition has been filed against the Licensee),
or the Licensee has made an assignment for the benefit of creditors, or a receiver
has been appointed for the Licensee or any substantial portion of Licensee's property,
or the Licensee's or its officers or directors takes action approving or makes an
application for any of the above.
e. Rapaport may elect, without prejudice to any other rights or remedies, to terminate
this Agreement, immediately upon written notice, in the event that Licensee undertakes
a transaction that would result in a Change of Control with respect to Licensee.
Licensee shall provide notice to Rapaport in writing of its execution of any agreement
confirming its intention to undertake a transaction that would result in a Change
of Control with respect to Licensee. At any time within thirty (30) days from receipt
of such a notice from Licensee, or Rapaport otherwise learns of such intentions
or a Change of Control, Rapaport may terminate this Agreement by giving Licensee
notice in writing of its election to terminate. The termination of this Agreement
shall be effective no sooner than thirty (30) days after the service of such notice
but no later than three (3) months after the service of such notice. "Change
of Control" shall mean, with respect to a party, (i) sale of all, or substantially
all, of the Party's assets to another party, or (ii) the transfer of equity ownership
of the Party or the merger of the Party with another party (or similar transaction),
such that a person or persons which could not elect a majority of the directors
of that Party or otherwise exert control over that Party before such transfer, could
elect a majority of the directors or otherwise exert control afterwards, other than
a transfer which occurs in connection with an initial public offering of the shares
of such Party.
f. On termination of this License, the licenses granted to Licensee herein shall
immediately cease. Upon termination of this Agreement, Licensee shall immediately
cease using the Data, including but not limited to, its components and methods of
calculation, and in whatever form provided, including in writing, electronically
or verbally, and all other information provided by Rapaport, including but not limited
to, all documentation, and software. You may no longer access the Data and You shall
promptly, at our option, delete any Data and all copies thereof from your storage
facilities and/or promptly return to us all originals and copies thereof, along
with all documentation and other confidential information provided pursuant to this
License. At our request, You shall provide to us written confirmation from a director
or your internal legal counsel, of compliance with this clause 4f.
5. GENERAL
a. Other than updates of this License as may be available through the Web Sites,
the terms and conditions set out in this License may be altered only in writing
signed by both parties.
b. This License represents the entire agreement between the parties hereto relating
to the Data and supersedes all previous statements and representations.
c. Both parties acknowledge and agree that the parties' relationship is strictly
and solely that of an independent contractor and that nothing contained in this
License shall be construed to create an agency, partnership or joint venture between
the parties.
d. Neither party may assign or transfer in whole or in part any of its rights or
obligations under this License without the prior written consent of the other party
although we may assign this License within Rapaport without your prior written consent.
No failure or delay by either party in exercising any right, power or remedy under
this License shall operate as a waiver of any such right, power and remedy.
e. This License shall be governed by, construed and take effect in accordance with
the laws of Nevada, United States with no regard to the any conflict of laws provisions.
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