All of the users of OneSource accept below terms and conditions, as described in Japanese contract referring to this website (http://hansokuanime.com/terms/general/) too.
ONESOURCE SERVICE SUBSCRIPTION AGREEMENT
This OneSource Service Subscription Agreement is made and entered into as of the date first signed below (“Effective Date”) by and between
Avention, Inc. (“Avention”) and the corporate entity specified on the last page to this Agreement (“Customer”) (each, a
“Party” and, collectively, the “Parties”). Avention and Customer hereby agree as follows:
Definitions
Affiliate – means, with respect to an entity, any other entity that
controls, is controlled by, or is under common control with such
entity, for the duration of time that such entity controls, is
controlled by, or is under common control with such other
entity.
Agreement – means this OneSource Service Subscription
Agreement, all applicable Order Schedule(s), exhibits thereto
and amendments agreed to by the parties from time-to-time.
Contract Year – means each successive twelve (12) month
period during the Term of the applicable Order Schedule,
starting on the effective date of such Order Schedule.
Customer Account ID – means the confidential access code
assigned by Avention to Customer for authorized use and
access to Service by a User.
Customer Data – means any data originated by Customer that
Customer and its Users submit or provide to Avention in the
course of accessing or using Service.
Information – means the proprietary data of Avention and/or
its third party information providers (“Information Providers”)
including Record and/or Record Download Add-On that are
made available to Customer as part of Service.
Order Schedule – means Avention ordering document that
states the specific Service subscribed to by Customer including
the subscription term, the fees, the number of designated User(s)
authorized to use Service and other applicable terms. Order
Schedules shall be deemed incorporated herein by reference.
Record – means business record pertaining to a company, which
include company name and address supplied by Avention and
contained in Information.
Record Download Add-On – means downloadable business
record (including to a CRM system or in any file format,
including a Microsoft Excel file) pertaining to an individual,
which includes email address and/or direct dial telephone
number supplied by Avention and contained in Information.
Service – means one or more of Avention’s online
subscription-based product(s) and/or any professional data
services, extensions or evolutions of such products or services,
as specified in the applicable Order Schedule, which may
include Information, Record, Record Download Add-On,
databases, and/or user documentation.
Term – means the term of Customer’s license for any particular
Service as specified in the applicable Order Schedule.
User – means any employee, officer, onsite consultant and/or
contractor of Customer that has authorized access to Service by
use of an assigned Customer Account ID, a User-selected User
ID and password and use Service exclusively for Customer’s
benefit.
User ID – means the unique and distinctive “log-on” identifier
selected by a User that is used in conjunction with a User
selected password that enables authorized access to Service.
1. License Grant
1.1 Avention grants to Customer a limited, worldwide,
nonexclusive, nonsublicensable and nontransferable license
during the Term to use and access Service and to use, access and
display Information, subject to the terms and conditions of the
Agreement and applicable laws. 1.2 Avention shall issue a
Customer Account ID to Customer. Customer may provide the
Customer Account ID to up to the quantity of designated Users
stated in the applicable Order Schedule. The User ID and
password may only be used by one authorized User and may not
be shared. Customer is responsible for any violations of this
Agreement by User(s), and Customer shall be responsible for
compliance by User(s) with all terms and conditions of this
Agreement and the maintenance and security of the Customer
Account ID. In the event that Avention reasonably believes
that Customer is exceeding the quantity of designated User(s)
stated in the applicable Order Schedule, Avention will, upon
ten (10) days written notice, increase Customer’s subscription
charges, at the then-current price per User, to reflect the
increased usage and/or treat Customer’s actions as a material
breach of this Agreement (and Customer shall promptly pay
such charges).
2. Use of Service and Information
2.1 User(s) may access Service and use Information only in the
internal operation of Customer’s business. Customer and User(s)
shall not, directly or indirectly: (i) alter, modify, adapt, translate,
de-compile, disassemble, reverse engineer, distribute, or create
derivative works of Service, (ii) make Service available via a
service bureau, time sharing, or similar arrangement, (iii) permit
any third party to access Service or Information, except as
expressly permitted herein or in the applicable Order Schedule,
(iv) attempt to gain unauthorized access to Service or their
related systems or networks, or (v) access Service in order to (a)
build a competitive data-related commercial product or service,
or (b) copy any features, functions or graphics of Service.
2.2 Customer and User(s) shall not copy or download excessive
quantities of Information or scrape, batch harvest, upload or in
any other way reproduce Information for the purpose of
aggregating Information. Users are limited to: a) downloading
5,000 Records in any single download; b) downloading 500,000
Records in any Contract Year; and c) downloading 10,000
Record Download Add-Ons in any Contract Year. User(s) may
copy and distribute small and insubstantial quantities of
Information for Customer’s internal use only to the extent that
such Information has no independent commercial value and
could not be used by a recipient as a substitute for purchasing
additional licenses. 2.3 Customer and User(s) shall not
distribute, resell, loan, rent, transfer or convey Service or
Information to, or on behalf of, any third party (including any
Affiliate, franchisee or dealer of Customer). This prohibition on
distribution to third parties includes a prohibition on the use of
Information to generate any
statistical information that is or will be provided to third parties,
publication of Information in the news media, use of Information
for comparison to other information databases that will be
provided to third parties or use of Information in any legal
proceeding, unless required by law and where Customer has
notified Avention of such legal requirement.
2.4 Customer and User(s) shall not use Information as a factor in
connection with: (i) establishing an individual’s eligibility for
credit or insurance; (ii) underwriting individual insurance; (iii)
evaluating an individual for employment or for promotions,
reassignment or retention as an employee; (iv) a determination
of an individual’s eligibility for a license or other benefit granted
by a governmental instrumentality; (v) any sweepstakes, contest
game or similar promotional devices; (vi) any pornographic
product or service or other product or service which caters to
prurient interests; or (vii) criminal investigations or other law
enforcement purposes.
2.5 Customer and User(s) shall use Service and Information in
compliance with all applicable laws and regulations including
but not limited to those regarding telemarketing, commercial
email, customer solicitation (including fax or wireless
advertising and/or direct mail solicitation), data protection,
privacy and anti-corruption as well as any industry guidelines to
which it is subject. Information may contain personal
information protected under the data protection laws and
regulations of various countries and Customer shall comply with
any applicable obligations required under such laws and
regulations. Avention and its Information Providers shall have
no liability arising out of or relating in any way to any
solicitation and/or communication Customer or its Users make
using Information or Service. Systematic access or extraction of
Information by any automated means is strictly prohibited,
including the use of “bots” or “spiders.”
3. Delivery of Service; Customer Support
3.1 Avention shall use commercially reasonable efforts to
make Service available to Customer during the Term stated in
the applicable Order Schedule. Customer shall be solely
responsible for the selection and use of telecommunications,
internet access, and any other systems and services required to
connect to, access or otherwise use Service, including, without
limitation, computers, computer operating system and web
browser (collectively, the “Equipment”) and any charges
associated therewith. Avention shall have no liability with
respect to Customer’s or its Users’ inability to access or use
Service or Information resulting from the Equipment needed to
connect to, access or otherwise use Service or Information.
3.2 Avention’s Customer Support Department shall use
commercially reasonable efforts to respond to Customer’s and
User(s) reasonable telephone and e-mail inquiries regarding
problems with Service as follows:
Customer Support US:
+1 800-433-0287
+1 978-318-4650
Monday – Friday 9:00 am – 8:00 pm EST/EDT
Customer Support UK & EMEA:
+44 (0) 800 389 4265
+44 (0) 207 415 7721
Monday – Friday 9:00 am and 5:30 pm GMT/BST
10:00 and 18:30 CET/CEST
3.3 Avention shall have the right to perform scheduled or
emergency maintenance with respect to Service that may limit or
suspend the availability of Service. Avention shall provide
reasonable prior electronic or other notice of all scheduled
maintenance activities, and shall use commercially reasonable
efforts to limit potential service disruptions and when reasonably
practicable will schedule such maintenance activities during
non-peak hours.
4. Term; Termination
4.1 The term of this Agreement shall commence on the Effective
Date and shall continue in effect until terminated in accordance
with this Section 4. In each case, the applicable Order Schedule
will set out the Term during which Avention will provide
Service and Information to Customer. This Agreement may be
terminated as follows: (i) by either Party without cause, with at
least thirty (30) days written notice, in the event that there are no
Order Schedule(s) currently in effect; or (ii) by either Party
immediately, if the other Party shall have materially breached
this Agreement (including failure to pay for Service under this
Agreement) and failed to cure such material breach and prevent
its reoccurrence within thirty (30) days after written notice from
the non-breaching Party; or (iii) by either Party immediately
upon written notice in the following circumstances: (a) the other
Party makes a general assignment on behalf of creditor(s); (b)
the other Party admits in writing an inability to pay debts as they
mature; (c) a proceeding is instituted for relief under applicable
bankruptcy protection laws or similar laws, and such proceeding
is not dismissed within forty-five (45) days; and/or (d) the other
Party ceases to conduct business in the ordinary course
consistent with its previous practices.
4.2 Avention reserves the right to monitor Service to audit
Customer’s and User(s)’ compliance with the terms of the
Agreement. Avention may suspend Customer’s access to
Service (i) if Avention reasonably suspects or believes it
detects any prohibited use of Service or Information, and during
any investigation it may undertake based on such suspicion or
belief, or (ii) upon written notice to Customer for material
breach. Any investigation will be carried out promptly and
Customer agrees to cooperate with Avention in connection
with any such investigation. A suspension under this Section 4.2
shall not modify or otherwise be deemed as a waiver of
Avention’s right to terminate, or any other right or remedy,
available under this Agreement or under applicable law. A
violation of Section 2 shall constitute a material breach of this
Agreement and may, at Avention’s option, result in (x) a
denial of access by Customer or User(s) to Service and/or
Information, or (y) any other remedy available to Avention
under this Agreement or under applicable law.
4.3 In the event a Party has the right to terminate this
Agreement, such Party shall also have the right to terminate any
or all Order Schedules then in effect. Sections 2, 6, 7, 8, 9, 10,
and 11 and this Section 4 shall survive any termination or
expiration of this Agreement. Notwithstanding termination under
this Section 4, unless otherwise mutually agreed to in writing by
the Parties, this Agreement shall govern the Order Schedule(s)
as executed by the Parties. In the event of any inconsistency,
ambiguity or conflict between the terms of this Agreement and
the terms of an Order Schedule, the terms of this Agreement
shall control.
4.4 Upon expiration or termination of the applicable Order
Schedule or this Agreement, the rights and license granted
hereunder will automatically terminate and Customer shall: (i)
ensure that copies of all or any portion of Service or Information
are deleted from its computers and the computers of any service
provider or other third party of Customer; (ii) cease using
Service or Information, and at Avention’s written request,
delete or destroy all copies, whether in print, tape or other
media, of Service or Information in its possession; and (iii)
certify in writing that it has deleted or returned to Avention all
copies of Service or Information in their possession. This
requirement shall not apply to: (i) information acquired from
Service or Information that Customer has embedded into
Customer’s internal databases or business records through its
authorized use of Service (“Embedded Data”), provided,
however, that Customer’s use of such Embedded Data shall
continue to be subject to the terms and conditions of this
Agreement after expiration or termination of the applicable
Order Schedule or this Agreement; or (ii) one copy of Service or
Information maintained strictly for archival or regulatory
compliance purposes (such backup or archive shall not be used
for any commercial purpose). Avention shall have the right to
request that Customer ceases its use of any Embedded Data in
the event that any of Avention’s Information Providers require
Avention to do so under its agreement(s) with such
Information Providers.
5. Payment
5.1 Customer agrees to pay the total charges stated in the current
or any renewal Order Schedule(s) (“Total Charges”) within
thirty (30) days following the date of invoice. Customer agrees
to pay any and all taxes (excluding Avention income taxes),
however designated, and related to the Total Charges or the
Agreement. Customer will provide Avention with complete
and accurate billing and contact information and update such
information within thirty (30) days after any changes to such
information. All fees paid are non-refundable. Customer shall be
responsible for (i) all reasonable costs and reasonable attorneys’
fees incurred by Avention to collect any overdue amount of the
Total Charges, and (ii) the lower of interest charges of eighteen
percent (18%) per annum and the maximum rate of interest
allowed by law. If Customer disputes any charge, Customer will
notify Avention of such dispute in writing prior to the due date
of the payment at issue.
6. Representations; Limited Warranties
6.1 Each Party warrants that this Agreement constitutes a valid
and binding obligation of, and is enforceable against it, in
accordance with the terms of this Agreement and that its
execution and performance of this Agreement does not and will
not conflict with any agreement, arrangement or understanding
that it has with any third party.
6.2 NEITHER AVENTION NOR ANY OF ITS
INFORMATION PROVIDERS MAKE ANY
REPRESENTATIONS OR WARRANTIES REGARDING
ACCURACY, ADEQUACY, COMPREHENSIVENESS,
COMPLETENESS, TIMELINESS, OR RESULTS TO BE
DERIVED FROM SERVICE OR INFORMATION. SERVICE
AND INFORMATION ARE PROVIDED TO CUSTOMER ON
AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT
WARRANTY OF ANY KIND, EITHER EXPRESS OR
IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF
MERCHANTABILITY, OR FITNESS FOR A PARTICULAR
PURPOSE, IN EACH CASE TO THE MAXIMUM EXTENT
PERMITTED BY APPLICABLE LAW. NEITHER
AVENTION NOR ANY OF ITS INFORMATION
PROVIDERS WILL BE LIABLE FOR ANY LOSS OR
INJURY ARISING OUT OF, IN WHOLE OR IN PART,
PROCURING, COMPILING, COLLECTING,
INTERPRETING OR REPORTING INFORMATION.
7. Limitations on Liability
7.1 In no event shall Avention, any Information Provider, or
third party supplier of Avention have any liability, in contract,
tort, or otherwise, for any indirect, special, incidental,
consequential (including loss of business or profits), or punitive
damages, or acts of third parties, arising out of this Agreement or
Service provided hereunder, even if Avention or its
Information Providers have been advised of the possibility of
such damages to the maximum extent permitted by applicable
law. Information Provider will have no liability under this
Agreement to Customer, its Users, or any third party to the
maximum extent permitted by applicable law. In no event shall
the liability of Avention exceed the Total Charges paid by
Customer for the applicable Service under the applicable Order
Schedule(s) in the twelve (12) months prior to when the claim
arose.
8. Protection of Confidential or Proprietary Information
8.1 Customer acknowledges and agrees that the terms of this
Agreement, Information and any other information that is
provided, made available or otherwise disclosed to Customer by
Avention that is labeled “confidential” or that Customer should
reasonably expect to be confidential given the context of its
disclosure (collectively, “Confidential Information”), is
proprietary to Avention and/or its Information Providers and
comprises: (i) original works of authorship, including compiled
information containing Avention and/or its Information
Providers selection, arrangement, coordination and expression of
such information or pre-existing material it has created, gathered
or assembled; (ii) confidential and trade secret information; and
(iii) information that has been created, developed and maintained
by Avention and/or its Information Providers at great expense
of time and money. Avention hereby reserves all ownership
rights (including copyrights and database rights and other
intellectual property rights) in Service and Information and any
items it creates or derives in the
course of performing Service. Customer acknowledges that
misappropriation or unauthorized use of the Services and
Information by others for commercial gain would unfairly and
irreparably harm Avention and/or its Information Providers.
8.2 If in connection with Service provided by Avention
hereunder, Customer provides Avention with the Customer
Data and/or Customer’s confidential information (such as
customer and prospective customer lists, financial information,
sales and marketing plans, techniques, processes, programs, and
schematics, software source documents, and any other
information Avention knows or has reason to know is
confidential and proprietary information of Customer), then
Avention agrees to protect the confidentiality of such
information and not use the information except as acknowledged
in this Agreement. Notwithstanding the foregoing, the following
shall not be deemed part of Customer’s confidential information:
information that (i) becomes available to the public through no
fault or negligence of Avention; (ii) was already rightfully
known to Avention as of the date hereof, and not subject to
any duty of confidentiality; (iii) is independently developed by
Avention without reference to any Customer confidential
information; or (iv) is lawfully and in good faith made available
or known to Avention by a person not connected with
Customer and without an obligation of confidence to such party,
directly or indirectly. Customer shall be solely responsible for
the accuracy, quality, content and legality of Customer Data, the
means by which Customer Data is acquired and the transfer of
Customer Data outside of Service.
8.3 Each Party agrees that it shall not commit or permit any act
or omission by its agents, employees or any third party that
would impair the other Party’s and/or Information Provider’s
copyright, database rights or other proprietary or intellectual
property rights. Each Party shall take security measures to
prevent the unauthorized duplication, distribution, or use of the
Service and Information and other Confidential Information at
least equal to that which the other Party uses to protect its own
proprietary or confidential information, and in no event shall
such measures be less than commercially reasonable degree of
care. Customer will not use the tradenames, trademarks, service
marks or copyrighted materials of Avention and/or its
Information Providers in any manner without the prior written
approval of Avention. Customer shall reproduce Avention’s
and/or its Information Provider’s copyright notice and
proprietary rights legends on all copies of the Information. In
addition, Customer agrees to honor and comply with reasonable
requests submitted by Avention and/or its Information
Providers to protect its and their respective rights in Service and
Information.
9. Indemnification by Avention
9.1 Except to the extent caused by the acts or omissions of
Customer, Avention will defend, hold harmless, and indemnify
Customer against all liabilities, costs, and expenses (including
reasonable attorneys’ fees) incurred by Customer that arise out
of any claim asserted by a third party (except for claims for
which Avention is entitled to indemnification
under Section 10) that Service infringes a United States patent,
copyright, or trade secret, subject to the following conditions:
(i) Customer promptly notifies Avention in writing of any
notice of such claim; and
(ii) Avention, at its option, will have sole control of such
defense and all negotiations for any settlement or compromise,
provided that Customer shall be entitled to participate in its own
defense at Customer’s expense; and
(iii) should Service become, or in Avention’s opinion be likely
to become, the subject of any such claim, Avention may, at
Avention’s option and expense, (a) procure for Customer the
right to continue using Service, (b) modify Service so that it
becomes non-infringing, (c) remove the affected portion(s) of
Services and reduce the Total Charges on a pro rata basis to
reflect such removal, or (d) refund or credit Customer the
pro-rata portion of Total Charges paid representing the unused
portion of the subscription and terminate the applicable Order
Schedule(s) or this Agreement.
9.2 Avention’s indemnification obligation and liability shall
not apply to the extent the infringement arises out of: (1) any
Service or Information that has been altered, modified, or
revised by any person other than Avention; or (2) the
combination, operation, or use of the Service or Information
with products not furnished by Avention; or (3) Customer’s
continuation of the allegedly infringing activity after being
notified to cease such activity. This Section 9 states Avention’s
sole liability to Customer, and Customer’s exclusive remedy
against Avention, for any type of claim described in this
Section 9.
10. Indemnification by Customer
10.1 Customer shall defend, hold harmless, and indemnify
Avention and/or its Information Providers from and against all
claims, liabilities, costs, and expenses (including reasonable
attorneys’ fees) incurred by Avention and/or its Information
Providers arising out of or relating to the use of or access to
Service or Information by: (i) individuals or entities that have
not been authorized by this Agreement to have access to and/or
use Service or Information; or (ii) Customer or its User(s) to the
extent such use is not permitted under the terms of this
Agreement; or (iii) any claims that the Customer Data violates or
infringes the intellectual property rights of any third party.
11. General
11.1 Neither Party shall assign this Agreement without the other
Party’s written consent, except that either Party may assign this
Agreement without the consent of the other Party to any entity
that directly or indirectly controls, is controlled by, or is under
common control with such assigning Party, or to a successor to
all or substantially all of its business, assets, and obligations.
This Agreement shall be binding upon and inure to the benefit of
the Parties hereto and their respective permitted successors and
assigns. The parties are independent contractors and no joint
venture, partnership, employment, or agency relationship exists
between Avention and Customer as a result of this Agreement
or use of Service.
11.2 This Agreement, together with all Order Schedule(s), when
executed, shall comprise the exclusive agreement between
Customer and Avention, and shall supersede all preceding
agreements and proposals, whether oral, written, or otherwise.
This Agreement may not be amended or waived, unless agreed
upon in a writing signed by the parties hereto; provided, however,
that Avention reserves the right to withdraw, reconfigure,
modify, and/or substitute Information (and only to the extent)
required as a result of new legislation, or new technologies, or,
where sourced from Information Providers, changes to the terms
upon which information or services are supplied or made available
to Avention, provided that such changes do not materially alter
the existing functionality of Service or Information. Avention
shall notify Customer as soon as is reasonably practicable if any
such change affects this Agreement. Customer’s and Users’
continuing use of Service and Information will constitute their
acceptance of such requirements. No Customer purchase order or
similar document shall form a part of this Agreement nor shall any
such document purport to modify or override the terms and
conditions of this Agreement. The terms and conditions of this
Agreement are severable and if any provision is deemed illegal or
unenforceable, all other provisions shall remain in effect and such
illegal or unenforceable provision shall be deemed amended to the
extent permitted by law. The words “include,” “includes” and
“including” shall be deemed to be followed by the phrase “without
limitation.”
11.3 In the event that one Party believes that another Party has
failed to perform any of its obligations under the Agreement, such
Party’s account representative shall promptly notify the other
Party’s account representative and request a meeting. The account
representatives will discuss the problem and negotiate in good
faith in an effort to promptly resolve the dispute without any
formal proceedings. If the account representatives are unable to
resolve the dispute within fourteen (14) days after their first
meeting, each Party will appoint a designated officer of its
corporation to attempt to resolve the dispute. No litigation for the
resolution of such disputes may be commenced until the
designated officers have met and either Party has concluded in
good faith that amicable resolution through continued negotiation
does not appear possible.
11.4 This Agreement, and all intellectual property issues, rights,
and obligations shall be governed by the laws of the State of
Massachusetts (without regard to its conflict of laws provisions).
Any disputes arising out of this Agreement that cannot be resolved
by the Parties in accordance with Section 11.3 above will be
brought in the state or federal courts located in the State of
Massachusetts.
11.5 Neither Avention, its Information Providers or its third
party suppliers shall be responsible or have any liability for delays
or performance failures caused from acts beyond their reasonable
control. In the event that any Information becomes unavailable for
any reason, Avention may remove such Information from
Service. Customer agrees that Avention’s Information Providers
may directly enforce its rights under this Agreement against
Customer and User(s).
11.6 Customer hereby represents and warrants to Avention that it
is not an Affiliate of Allant Group, Compass Marketing Solutions,
Nokia, Navteq, Epsilon, Reach Marketing, Factual, Localeze,
Locationary, Neustar, TomTom North America, TransUnion,
Equifax, Acxiom, Knowledgebase, Database LLC (dba
Database101 dba DatabaseUSA.com), Dun & Bradstreet,
Integrated Direct Marketing, Inc., or web.com. Customer hereby
acknowledges and agrees that it will promptly notify Avention in
writing in the event it becomes an Affiliate of any such entity. In
consideration for the rights granted under the terms of this
Agreement, Customer grants Avention the right to reference
Customer as a client of Avention, including the use of
Customer’s logo in Avention marketing materials, and to issue a
press release to that effect.
11.7 Any notice to be given hereunder to any other Party,
including any notice of a change of address, shall be in writing and
shall be deemed validly given if (a) delivered personally, (b)
delivered by overnight or second day express delivery services; (c)
delivered by registered or certified mail, postage prepaid, return
receipt requested, or (d) sent by confirmed facsimile transmission,
and addressed to such Party at the address or facsimile number
indicated for such Party on the last page to this Agreement. This
Agreement may be executed in counterparts, each of which shall
constitute an original, but which together shall constitute one and
the same instrument.
In consideration of the mutual obligations contained in this Agreement, each Party, by signing below, agrees to be bound by the terms
set out in the Agreement as of the Effective Date and represents to the other Party that this Agreement is validly entered into by its duly
authorized representatives.
Avention:
Signature: _______________________________
Name: _______________________________
Title: _______________________________
Date: _______________________________
Customer
Signature: _______________________________
Name: _______________________________
Title: _______________________________
Date: _______________________________
Avention Notice Address:
Company Name: Avention, Inc
Attn: Subscription Services
Address: 300 Baker Ave, Concord, Massachusetts
01742-2131
Customer Notice Address:
Account No:
Company Name:
Attn:
Address:
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