TERMS OF SERVICE
Last modified: September 2020
The Company may make changes to the content offered on the Site at any time. The Company can change, update, or add or remove provisions of these Terms, at any time by posting the updated Terms on this Site. By using this Site after The Company has updated the Terms, you are agreeing to all the updated Terms; if you do not agree with any of the updated Terms, you must stop using the Site.
By using this Site, you represent, acknowledge and agree that you are at least 18 years of age, or if you are under 18 years of age but are at least 13 years old (a “Minor”), that you are using the Site with the consent of your parent or legal guardian and that you have received your parent’s or legal guardian’s permission to use the Site and agree to its Terms. If you are a parent or legal guardian of a Minor, you hereby agree to bind the Minor to these Terms and to fully indemnify and hold harmless the Company if the Minor breaches any of these Terms. If you are not at least 13 years old, you may not use the Site at any time or in any manner or submit any information to the Company or the Site.
The Company provides content through the Site that is copyrighted and/or trademarked work of the Company or the Company’s third-party licensors and suppliers or other users of the Site (collectively, the “Materials”). Materials may include logos, graphics, video, images, software and other content.
Subject to the terms and conditions of these Terms, and your compliance with these Terms, the Company hereby grants you a limited, personal, non-exclusive and non-transferable license to use and to display the Materials and to use this Site solely for your personal use. Except for the foregoing license, you have no other rights in the Site or any Materials and you may not modify, edit, copy, reproduce, distribute, create derivative works of, reverse engineer, alter, enhance or in any way exploit any of the Site or Materials in any manner. If you breach any of these Terms, the above license will terminate automatically, and you must immediately destroy any downloaded or printed Materials.
Restrictions and Unauthorized Activities
You may not use, or encourage, promote, faciliate or instruct others to use, the Site and Services for any illegal, unlawful, harmful, or offensive use, or to create, transmit, store, display, or distribute or otherwise make available content that is illegal, unlawful, harmful, or offensive. Examples of prohibited activities and content include:
- Illegal activities including advertising, transmitting, or otherwise making available gambling sites or services or storing, disseminating, promoting, or facilitating child pornography.
- Harmful or fraudulent activities including activities that may be harmful to others or to B3 Insight’s operations or reputation, such as offering or disseminating speculative or fraudulent goods, services, schemes, or promotions, engaging in any deceptive practices, or engaging in practices that pose or create a privacy or security risk to any person.
- Infringing content any use of content other than as authorized or in a manner that misappropriates the intellectual property or proprietary rights of others.
- Offensive content including content in any format that is defamatory, obscene, abusive, invasive of privacy, pornographic, gratuitously violent, or otherwise objectionable within the context and intended use of the Sites and Services.
- Harmful content including any content or technology, such as viruses, Trojan horses, worms, time bombs, and cancelbots, that may damage, interfere with, modify, intercept, or expropriate any system, program, or data.
- Unsolicited or unlawful mailings including transmitting or distributing “junk mail,” “chain letters,” “SPAM,” or other forms of unsolicited mail or instant messages or attempting to solicit personal information from anyone under the age of 18.
- Content that discloses personal data including any content, in any format, posted to forums; comments; templates, workflows, use cases, or examples on the Site, or any other sharing of content using the Site or Services that discloses the identifying information of others.
- Alter the opinions or comments posted by others on this Site.
This list of prohibitions provides examples and is not complete or exclusive. The Company reserves the right to terminate access to your account, your ability to post to this Site with or without cause and with or without notice, for any reason or no reason, or for any action that the Company determines is inappropriate or disruptive to this Site or to any other user of this Site. The Company may report to law enforcement authorities any actions that may be illegal, and any reports it receives of such conduct. When legally required or at the Company’s discretion, the Company will cooperate with law enforcement agencies in any investigation of alleged illegal activity on this Site or on the Internet.
User may use any B3 trademarks, including ‘B3’ and ‘B3 Data, Insight, or Outcomes,’ without B3’s prior express written permission.
The Company respects the intellectual property rights of others, and we ask you to do the same. The Company may, in appropriate circumstances and at our discretion, terminate service and/or access to this Site for users who infringe the intellectual property rights of others. If you believe that work belonging to you has been made available on the Site without your permission, please notify B3 Insight in writing to:
In accordance with the Digital Millennium Copyright Act, your written notification must include:
- Your physical or electronic signature, or that of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
- Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works on a single site are covered by a single notification, a representative list of such works at that site.
- Identification of the material that is claimed to be infringing or the subject of infringing activity and for which removal or disabled access is requested, together with information reasonably sufficient to permit B3 Insight to locate the material.
- Information reasonably sufficient to permit B3 Insight to contact you or the complaining party, such as an address, telephone number, and, if available, an email address, at which you or the complaining party may be contacted.
- A statement that you or the complaining party has a good faith belief that use of the material in the manner described in the notification is not authorized by you or the copyright owner, its agent, or the law; and
- A statement that the information provided in the notification is accurate and, under penalty of perjury, that you or the complaining party is authorized to act as or on behalf of the owner of an exclusive right that is allegedly infringed.
Disclaimers of Warranties and Limitation of Liability
YOUR USE OF THE SITE AND SERVICES (INCLUDING ANY CONTENT OR WORKFLOW) IS AT YOUR OWN RISK. THE SITE, SERVICES, DATA, INFORMATION, CONTENT, MATERIALS, PRODUCTS, AND ANY SERVICES INCLUDED ON OR OTHERWISE MADE AVAILABLE TO YOU THROUGH THE SITE AND SERVICES (INCLUDING ANY WORKFLOWS), ARE PROVIDED BY B3 INSIGHT ON AN “AS IS” AND “AS AVAILABLE” BASIS. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, B3 INSIGHT DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, ACCURACY OR COMPLETENESS OF RESPONSES, RESULTS, REASONABLE CARE OR WORKMANLIKE EFFORT, LACK OF NEGLIGENCE, AND/OR LACK OF VIRUSES, ALL WITH REGARD TO THE SITE AND SERVICES, INCLUDING, BUT NOT LIMITED TO, ANY CONTENT OR WORKFLOWS. FURTHER, B3 INSIGHT MAKES NO WARRANTY THAT CONTENT OR WORKFLOWS PUBLISHED TO THE SERVICES WILL OPERATE PROPERLY AS INTEGRATED WITH YOUR WORKFLOWS OR PROVIDE ANY PARTICULAR RESULTS. B3 INSIGHT DOES NOT WARRANT THAT THE SITE, SERVICES, DATA, INFORMATION, CONTENT, OR MATERIALS (INCLUDING ANY WORKFLOWS) MADE AVAILABLE TO YOU THROUGH THE SITE AND SERVICES, B3 INSIGHT’S SERVERS, OR E-MAIL SENT FROM B3 INSIGHT ARE FREE OF VIRUSES OR OTHER HARMFUL CODE.
B3 INSIGHT AND ITS SUBSIDIARIES, AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, PARTNERS, AND LICENSORS SHALL HAVE NO LIABILITY (INCLUDING, BUT NOT LIMITED TO, DIRECT, INDIRECT, INCIDENTAL, PUNITIVE, AND CONSEQUENTIAL DAMAGES) FOR ANY WORKFLOWS OR CONTENT PUBLISHED BY ANY PARTY ON THE SITE OR SERVICES, OR DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, OR OTHER INTANGIBLE LOSSES (EVEN IF B3 INSIGHT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) RESULTING FROM: (i) USE OR INABILITY TO USE THE SITE OR SERVICES; (ii) COST OF PROCURING SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY CONTENT, DATA, INFORMATION, OR SERVICES OBTAINED, MESSAGES RECEIVED, OR TRANSACTIONS ENTERED INTO, FROM, OR AS A RESULT OF THE SITE OR SERVICES; (iii) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (iv) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SITE OR SERVICES; OR (v) ANY OTHER MATTER RELATING TO THE SITE AND SERVICES. YOU EXPRESSLY AGREE THAT YOUR USE OF THIS SITE AND THE SERVICES IS AT YOUR SOLE RISK.
CERTAIN JURISDICTIONS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL LEGAL RIGHTS. THIS SECTION FAIRLY ALLOCATES THE RISKS BETWEEN THE PARTIES AND IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES AND SHALL APPLY NOTWITHSTANDING ANY FAILURE OF THE ESSENTIAL PURPOSE OF THE AGREEMENT OR ANY LIMITED REMEDY HEREUNDER.
Local Laws and Export Control.
The Company controls and operates this Site from its headquarters in the United States of America and the Materials may not be appropriate or available for use in other locations. If you use this Site outside the United States of America, you are responsible for following applicable local laws. The laws of the State of Colorado, excluding its conflict-of-law rules, without regard to principles of conflict of laws, will govern these Terms and any dispute of any sort that may arise between you and B3 Insight. Users agree to submit to the non-exclusive jurisdiction of, and agree that venue is proper in, state courts in the City and County of Denver, Colorado or the U.S. District Court for the District of Colorado (if federal subject matter jurisdiction applies), in any legal proceeding arising out of, based on or relating to the Terms.
If any provision of the Terms, or the application of such provision, is held invalid by a court of competent jurisdiction, the remainder of the Terms shall not be affected and any invalid or unenforceable portions shall be construed in a manner that most closely reflects the effect and intent of the original language and is valid and enforceable.
If you have any questions about these Terms or otherwise need to contact THE COMPANY for any reason, you can reach us at [email protected] or (855) 556-8037.
B3 Insight Full Platform Terms of Service
- B3 collects data from numerous sources by means of various proprietary research methods and data collection tools, and has created proprietary Databases, including compilations of geospatial data, digital maps, and other B3 Proprietary Data, application software and related materials, as well as print reports the access to which, or to certain features or functionality of which, may from time to time be offered and accessible via the Site or via digital delivery methods to subscribers.
- During the Term and subject to the terms and conditions of this Agreement, including restrictions and payment of fees:
- Access. B3 grants Customer a non-exclusive, non-transferable, non-sublicensable right, solely for Customer’s Internal Use, for the Permitted Number of Authorized Users to (1) access the Products, (2) download and reproduce discrete elements of Proprietary Data, (3) store Proprietary Data on computer systems controlled by Customer, (4) manipulate, analyze, reformat, print, or display such Proprietary Data. B3 has no obligation to deliver or make available any software or other technology used to provide the Products to Customer. Authorized Users shall use the Products solely for the benefit of Customer.
- Data Providers. Third party data services may be subject to agreements with data providers that Customer must execute prior to receiving service. Customer shall comply with all terms imposed by data providers with respect to Products that include data from third party data providers. Fees for data services are subject to change from time to time by data providers and data providers may terminate service at any time without notice or liability. If Customer requests in writing (or via email) that B3 terminate the associated data services, B3 will do so unless contractually prohibited. If third party data services are terminated, B3 shall cease to provide the terminated data services, without affecting any other services.
- Customer Content. Certain features of B3 Services and Products allow for the upload of Customer Content by an Authorized User to his or her account. Customer and its Authorized Users assume all responsibility and liability for use of such features and Customer Content, and grant B3 license to process such Customer Content in order to facilitate its upload to an Authorized User’s account.
- Creation of Work Product. Customer may incorporate Proprietary Data into its work product (i) as static graphical images that do not display specific data points and from which it is not possible to extract or manipulate such data and/or (ii) in text containing individual data points (“Customer Work Product”). Customer may provide Customer Work Product to third parties only on a non-continuous basis and (not updated in real-time or in accordance with a regular schedule). Customer shall attribute B3 prominently including, “Data used with permission from B3 Insight” and, upon request, Customer shall provide B3 a copy of Customer Work Product. Customer Work Product shall not extend any warranties on behalf of B3 or imply that B3 is responsible for reliability, accuracy, completeness or currency of any Proprietary Data or Customer Work Product.
- 3.1 Customer shall not and shall not permit or authorize any third party to:
- Use the Products other than as authorized
- Use the Products to compete with B3, advise or build a competitive product, provide packages or summaries of Proprietary Data, copy any Product features, functions, or graphics, or provide Proprietary Data to third parties.
- Reverse engineer, decompile, decrypt, or disassemble Products, remove proprietary notices or labels, use any robot, spider, or other automated method to access, download, or reproduce Proprietary Data, or use Products in a way that causes a denial of service for other users or interferes with or unduly burdens performance.
- Disclose, use, or permit use of any B3 Confidential Information, including (i) Proprietary Data, (ii) documentation or technical information related to the Products, and (iii) the terms and conditions of this Agreement (including pricing terms). B3 may suspend or terminate access to the Products if Customer or any Authorized User violates these restrictions.
- 3.2 Third Party Websites.
- B3 is not responsible for any activities or policies of third party websites, and does not endorse or recommend any product or service of any third party B3 is not responsible or liable for any act or omission of any third party or any failure to deliver any goods or to perform any services promised by, or for any losses or damages which Customer, any Authorized User or any other Person may as the result of any of their respective dealings with third parties.
- 3.3 Changes to TOS; B3 Service Modifications and Maintenance.
- B3 may from time to time, in its sole and absolute discretion: (i) enhance, modify, disable, or remove, in whole or in part, any feature(s) or functionality of any B3 Service or any B3 Proprietary Data; (ii) add additional B3 Service Offerings; (iii) remove B3 Service offerings; or (iv) modify this TOS, or any guideline, policy or other terms referenced in this TOS or posted on the Site from time to time, including by modification, deletion, or addition of any part(s) thereof (the immediately preceding (i)-(iv) collectively, “Revised Terms”).
- In addition to its right to suspend or terminate the Authorized User Permission or Database License in accordance with any other provision of this TOS or the Agreement, B3 may in its sole and absolute discretion from time to time suspend all or any part of any one or more of the B3 Services, without incurring liability and without prior notice to Customer or any other Person: (i) in order to update, improve, replace, modify, delete, upgrade, patch, alter the specifications for or functionalities of, repair, maintain or protect the Site, any of the B3 Services or other B3 Technology, any part or aspect of B3’s infrastructure, or any B3 Proprietary Data; or (ii) as B3 in its sole and absolute discretion determines may be required by applicable Law. B3 will endeavor in good faith (but will have no obligation) to provide Customer with notice of scheduled maintenance or other suspension if applicable B3 Services, whether by posting such notice to the Site, by email to the Account Administrator or otherwise as B3 in its sole and absolute discretion determine.
- Fees are due within 30 days of the applicable invoice. Customer may pay via check, ACH, wire payment, or credit card. Fees are based on access to the Products, not usage. Payment obligations, including all fees for the entire Term, are non-cancelable and fees paid are non-refundable. If Customer has elected to utilize credit card payment method, Customer hereby authorizes B3 to periodically charge Customer credit card for any amounts due and payable during the subscription term; and for any renewal amounts due and payable upon expiration of the 30 day termination notice period (Section 5). An administrative fee of 3.5% shall be applied to any payment made by credit card, and 0.10% (1/10 th of 1%) for any payment via ACH. Subscription level cannot be reduced during the Term. B3 may suspend or terminate access to the Products in its sole discretion if fees are not paid in accordance with this provision. Customer will not setoff or offset against B3’s invoices amounts that Customer claims are due Customer. Fees are exclusive of taxes, levies, duties and other fiscal charges, including but not limited to sales tax, use tax, withholding, value-added or similar tax, and property taxes (collectively, “Taxes”). Customer shall not deduct or withhold Taxes. If B3 has the legal obligation to pay or collect Taxes, B3 will invoice and Customer shall pay such amounts, unless and only to the extent that Customer provides B3 with a valid tax exemption certificate authorized by the appropriate taxing authority. Customer shall pay interest on any unpaid balances at least 30 days past due at the rate of one and a half percent (1.5%) per month up to the maximum rate permitted by law plus reasonable expenses incurred by B3 in collection efforts.
- Renewals. Unless Customer provides B3 written termination notice 30 days prior to the end of the term certifying that it will comply with Section 5(C),B3 shall have the right, but not the obligation, to renew this agreement and each product listed on the order form for subsequent periods which shall be the longer of (a) one year and (b) the same length of time as the original term specified in the Order Form (each a “renewal term”). Rates for the renewal terms will be the greater of (1) B3’s then-current rate, or (2) the rate and rate increase on the Order Form. Upon request, Customer shall promptly provide B3 with an accurate count of its then-current number of employees and other information requested to determine pricing.
- Termination. B3 shall have the right to terminate the Agreement immediately without refund if Customer violates any of the terms and conditions of the Agreement. B3 shall also have the right to terminate the Agreement immediately without cause at any time upon notice followed by issuance to Customer of a pro rata refund of the subscription fees applicable to the remainder of Customer’s subscription. Customer’s sole and exclusive right to terminate this Agreement shall be termination without cause upon written notice to B3 and payment of all unpaid fees for the full Term without refund or setoff.
- Results of Termination. Upon termination or expiration of the Agreement (i) all rights, licenses, and access to the Products terminate, but the Agreement will otherwise survive; (ii) Customer shall immediately destroy all copies (including copies in email) of Proprietary Data in Customer’s possession or control; (iii) Customer shall cause each Authorized User to certify that it has completed these procedures and provide such certifications to B3; and (iv) B3 may pursue any remedies available at law or in equity. Customer Work Product may be retained subject to continued application of Section 2d. If Customer’s Product access changes, this provision shall apply to Products to which Customer no longer has access. If Customer violates this Section 5c, Customer shall pay B3 three times Customer’s most recent annual subscription fee, as liquidated damages and not as a penalty.
- Destruction of Information. Upon B3’s request and in any event upon expiration or any earlier termination of the Agreement, Customer shall promptly return or destroy (provided that any such destruction shall be certified by a duly authorized representative of Customer) all documents, files or other materials (and in all forms or media) containing or comprising B3 Proprietary Data and B3 Confidential Information. Customer may however retain copies of its Work Product, provided that all restrictions on use, disclosure, and distribution of Work Product set forth in this TOS shall remain in full force and effect and shall survive any expiration or termination of the Database License or the Agreement.
- Disclaimers of Warranties.
- B3 PROVIDES THE SITE, B3 SERVICES, B3 TECHNOLOGY, AND B3 PROPRIETARY DATA, “AS IS,” AND “AS AVAILABLE”, WITH ALL FAULTS. TO THE MAXIMUM EXTENT PERMITTED BY LAW, B3 HEREBY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS, ORAL, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING ANY IMPLIED WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, TITLE, OR NON-INFRINGEMENT, AND ANY WARRANTIES ARISING BY VIRTUE OF CUSTOM OR USAGE OF TRADE OR COURSE OF DEALING. B3 DOES NOT REPRESENT OR WARRANT THAT THE SITE, ANY B3 SERVICE OR PRODUCT, B3 TECHNOLOGY, OR B3 PROPRIETARY DATA OR ANY WORK PRODUCT WILL MEET REQUIREMENTS OR THAT THEY ARE SUITABLE FOR NEEDS OR THAT THE SITE, ANY B3 SERVICE OR PRODUCT, B3 TECHNOLOGY OR B3 PROPRIETARY DATA, OR RESULTS (INCLUDING ANY WORK PRODUCT) ARE OR WILL BE SECURE, CORRECT, ACCURATE, TIMELY, COMPLETE, SUITABLE, OR RELIABLE. B3 PROPRIETARY DATA ARE COMPILED FROM SOURCES BEYOND B3’S CONTROL AND ERRORS, GAPS, AND INACCURACIES MAY EXIST. THE SITE, B3 SERVICES, B3 TECHNOLOGY, AND B3 PROPRIETARY DATA ARE PROVIDED ON AN “AS IS,” “WITH ALL FAULTS” BASIS WITHOUT WARRANTIES OF ANY KIND. CUSTOMER ASSUMES ALL RISK OF ERRORS AND OMISSIONS IN THE SITE, B3 SERVICES AND PRODUCTS, B3 TECHNOLOGY, B3 PROPRIETARY DATA, AND IN ANY CUSTOMER CONTENT OR WORK PRODUCT. CUSTOMER SHALL IMPLEMENT SUFFICIENT PROCEDURES AND CHECKS TO SATISFY ITS REQUIREMENTS FOR SECURITY, ACCURACY AND SUITABILITY, AND SHALL MAINTAIN MEANS FOR THE RECONSTRUCTION OF LOST DATA. B3 SERVICES AND B3 PROPRIETARY DATA ARE A SUPPLEMENT TO, NOT A SUBSTITUTE FOR, THE KNOWLEDGE, EXPERTISE, SKILL, AND JUDGMENT OF PROFESSIONALS. CUSTOMER ACCEPTS ALL RISK IN ITS USE OF THE SITE, B3 SERVICES, B3 TECHNOLOGY, B3 PROPRIETARY DATA, CUSTOMER CONTENT AND WORK PRODUCT, INCLUDING BUT NOT LIMITED TO ANY INVESTMENT, ACQUISITION, PRODUCTION, LEGAL OR FINANCIAL DECISIONS. NO INFORMATION OBTAINED THROUGH USE OF THIS SITE, ANY B3 SERVICE, OR B3 PROPRIETARY DATA, OR ANY CUSTOMER CONTENT OR WORK PRODUCT CONSTITUTES LEGAL ADVICE, TRADING ADVICE, TRADING RECOMMENDATIONS, OR TRADING INFORMATION.
- B3 MAKES NO REPRESENTATIONS OR WARRANTY THAT THE SITE, ANY B3 SERVICE OR PRODUCT, B3 TECHNOLOGY, B3 PROPRIETARY DATA, OR ANY CUSTOMER CONTENT OR WORK PRODUCT PROCESSED ON OR THROUGH THE SITE OR ANY B3 SERVICE OR ANY PART THEREOF WILL BE SECURE, FREE FROM ERRORS OR DEFECTS, THAT THEY WILL MEET CUSTOMER’S NEEDS, THAT ANY CONTENT, FILES, DATA OR OTHER MATERIALS (INCLUDING BUT NOT LIMITED TO ANY CUSTOMER CONTENT, WORK PRODUCT OR OTHER DATA) UPLOADED TO, DOWNLOADED FROM, OR VIA, OR STORED, DISPLAYED OR OTHERWISE PROCESSED BY OR UTILIZING ANY OF THE B3 SERVICES WILL BE ACCURATE, TIMELY, CURRENT OR SECURE. OR WILL NOT BE LOST, CORRUPTED OR OTHERWISE DAMAGED OR IMPAIRED, OR THAT B3 WILL BE ABLE TO PREVENT DISRUPTION OF OR TO THE SITE, OR ANY OF THE B3 SERVICES OR THAT B3 WILL CORRECT ANY DEFECTS OR THAT ANY B3 SERVICE, B3 PROPRIETARY DATA, OR ANY CUSTOMER CONTENT OR WORK PRODUCT WILL BE UNINTERRUPTED OR ERROR FREE. THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND EFFORT OF THE SITE, B3 SERVICES, B3 TECHNOLOGY, B3 PROPRIETARY DATA, CUSTOMER CONTENT AND WORK PRODUCT SHALL BE SOLELY WITH CUSTOMER.
- B3 Indemnity. Subject to Section 7c, B3 shall indemnify Customer against any action to the extent based on a claim that the unmodified Products infringe a U.S. patent issued as of the date hereof or a U.S. copyright, trademark, or trade secret (“IP Claim”). If adjudged to infringe, B3 shall, at its option (i) procure for Customer the right to continue using the Products, (ii) modify or replace the Products so that they do not infringe; or (iii) terminate the Agreement and refund the part of the pre-paid subscription fee for the period after termination. B3 shall have no liability for claims based on: (1) use of other than a current, unaltered Products, (2) use of Products in combination with non-B3 products, software, services, or data, (3) third party software or data, including open source or third party commercial software, (4) failure to use the Products in accordance with the terms of this Agreement or for its intended purpose, or (5) infringement caused by compliance with Customer’s designs, requirements, or specifications. THE FOREGOING STATES THE ENTIRE LIABILITY OF B3 AND THE EXCLUSIVE REMEDY OF CUSTOMER WITH RESPECT TO CLAIMS OF INFRINGEMENT OF PROPRIETARY RIGHTS OF ANY KIND.
- Customer Indemnity. Subject to Section 7c, Customer shall hold B3 harmless and indemnify B3 for and against any claims, actions, losses, liabilities, injuries, expenses, costs (including all reasonable attorneys’ fees and costs of litigation), and damages, resulting from or arising out of Customer’s use of the Products or breach of this Agreement, regardless of the form of action (excluding claims that are covered by B3’s obligations under Section 7a). CUSTOMER’S OBLIGATIONS SHALL APPLY EVEN IF RESULTING FROM A PERSONAL INJURY OR DUE IN WHOLE OR IN PART TO B3’S NEGLIGENCE OR OTHER FAULT, BREACH OF CONTRACT, STRICT LIABILITY OR VIOLATION OF ANY STATE OR FEDERAL LAW. This paragraph applies to claims of Customer as well as third party claims.
- Conditions. The indemnified party shall: (i) promptly notify the indemnifying party in writing of any claim (failure to provide such prompt notice shall only affect the rights of an indemnified party to the extent that such failure has a prejudicial effect on the defenses or other rights available to the indemnifying party); (ii) allow the indemnifying party to have sole control of the defense and all related settlement negotiations (the indemnified party may retain independent counsel at its own expense); and (iii) provide the indemnifying party with the information, authority and assistance necessary to perform the indemnifying party’s obligations under this Section.
- Limitation of Liability.
- Notwithstanding any provision hereof to the contrary, B3 shall not be liable under any theory of liability, whether tort (including without limitation negligence), contract, strict liability, statutory, or otherwise, for any special, incidental, consequential, exemplary, punitive, or indirect damages of any kind, including loss of revenue, profits, goodwill, use, or data or the cost of procurement of substitute products or services, relating to the Agreement or this TOS, or the use or inability to use the Site, any B3 Service or Product, B3 Technology, B3 Proprietary Data, or any Customer Content or Work Product, even if apprised of the possibility of such damages in advance. In no event shall B3’s have any liability hereunder or otherwise with respect to any claims arising from or incident to the Agreement for any amount or amounts which in the aggregate exceed the Service Fees paid by Customer to B3 under the Agreement in the six months preceding the first event giving rise to such liability minus any amounts previously paid by B3 to Customer in satisfaction of any liability under the Agreement. This Section fairly allocates the risks between the Parties and is an essential element of the basis of the bargain between the Parties and shall apply notwithstanding any failure of the essential purpose of the Agreement or any limited remedy hereunder.
- Ownership / Feedback / Reference.
- Unauthorized Use.
- B3 may utilize security keys and other license enforcement mechanisms to prevent operation of the Products outside the bounds authorized hereunder. Customer shall not attempt to defeat or circumvent any such encryption, security, or license enforcement mechanisms. Customer will prevent unauthorized use of the Products and immediately notify B3 of any unauthorized use. Customer will require each Authorized User to keep its user ID and password for the Products confidential. If Customer or any Authorized User suspects that any of its passwords have been disclosed or made known to any other person or if any previously Authorized User ceases to be an employee or contractor of Customer, Customer will immediately notify B3 at [email protected]. B3 shall have the right to suspend, cap, limit, or disable file transfers, downloads, and exports as part of Product design, to protect Proprietary Data, or to facilitate operations.
- Upon request from B3, Customer shall certify in writing that the Products are being used in accordance with this Agreement, including that only the Permitted Number of Authorized Users are using the Products. Customer will maintain complete and accurate books, records, and electronic backups in connection with its use of the Products (or in the case of termination, evidence of steps taken to comply with Section 5c), in sufficient detail to permit B3 to verify Customer’s compliance with the terms and conditions of this Agreement. B3 shall have the right to perform an inspection and audit of Customer’s premises, equipment and records during standard business hours and upon ten (10) days prior written notice and at its own expense. Customer will make available to B3 or its representatives all Customer systems on which any Proprietary Data resides and any records pertaining to the Proprietary Data.
- Force Majeure.
- B3 shall not be liable for any loss or liability related to acts of God, equipment failures, DoS/DDoS or similar attacks, connection problems, weather, strikes, walkouts, fire, riots, armed conflicts, wild beasts, acts of war, or any causes outside the reasonable control of B3. B3 shall have no responsibility to provide access to the Products during such delays or interruption regardless of the cause.
- Governing Law, Jurisdiction, Remedies.
- The laws of the State of Colorado, excluding its conflict-of-law rules, shall govern this Agreement. The U.N. Convention on Contracts for the International Sale of Goods does not apply. B3 and Customer agree to submit to the non-exclusive jurisdiction of, and agree that venue is proper in, state courts in the City and County of Denver, Colorado or the U.S. District Court for the District of Colorado (if federal subject matter jurisdiction applies), in any legal proceeding arising out of, based on or relating to this Agreement. Except as otherwise provided in this Agreement, the rights, powers, remedies and privileges provided in this Agreement are cumulative and not exclusive of any rights, powers, remedies and privileges provided by applicable law.
- Customer shall not transfer or assign, whether by operation of law, merger (including reverse triangular), change of ownership, or otherwise, this Agreement or any of the rights conferred or obligations imposed by this Agreement, without B3’s written permission, which may be withheld or conditioned in B3’s discretion. No transfer or assignment shall discharge any obligations under this Agreement. Attempted assignment in violation of this provision shall be void and of no effect. Subject to the foregoing, this Agreement shall inure to the benefit of and be binding upon the Parties’ and their respective permitted successors, transferees, and assigns. If Customer acquires or is acquired by another B3 customer or its affiliate (whether by merger, stock purchase, asset purchase, or otherwise), the acquiring B3 customer’s subscription fee may be increased to account for the combined entity. B3 may freely assign this Agreement, assign its rights, or delegate its duties under this Agreement.
- US Government End Users.
- With respect to the procurement or use of any B3 Service by or for any agency or part of the U.S. Government, any software provided in connection with any B3 Service and any related explanatory written materials are “Commercial Items” as that term is defined at 48 C.F.R. Section 2.102, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation” as such terms are used in 48 C.F.R. Section12.212 or 48 C.F.R. Section 227.7202, as applicable. Consistent with 48 C.F.R. Section 12.212 or 48 C.F.R. Section 227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computers Software Documentation are being licensed to the U.S. Government end users (a) only as Commercial Items; and (b) with only those rights as are granted to Customer or its Authorized Users pursuant to the terms, conditions and restrictions of the Agreement.
- Export Controls.
- The Products are subject to U.S. Export Administration Regulations. Diversion or use contrary to U.S. or other applicable law and regulation is prohibited. Customer agrees not to export, import, or transmit Products, B3 Proprietary Data or any other software or technical data to any country or end user or for any use in (1) any countries subject to U.S. trade embargoes (and all other nations that may from time to time be included on such a list); or (2) any persons or entities on the U.S. “Denied Persons List,” “Specially Designated Nationals List,” and “Entities List;” or (3) other locations or persons prohibited by law. Customer represents that neither the U.S. Bureau of Industry and Security nor any other governmental agency has issued sanctions against Customer or denied Customer’s export privileges.
- B3 Security Measures.
- B3 shall, at all times have the right to suspend, limit, or disable file transfers, downloads, and exports as part of any B3 Services design (whether through use of security keys or other license enforcement mechanism(s) technology or otherwise) to protect the Site, any B3 Service or other B3 Technology, or any B3 Proprietary Data, or to facilitate operations. If Customer ever becomes aware of any violation of the Agreement (including any violation of any provision of this TOS), it must be immediately notify B3 thereof in writing. If an Authorized User is ever in default or breach of any of his or her obligations under this TOS, Customer is required to terminate such person’s status as an Authorized User. B3 reserves the right to limit or terminate the Authorized User Permission, any Database License, or any Person’s access to or use of the Site, any B3 Services, or B3 Proprietary Data and immediately without prior notice in the event B3 has reason to believe that there has been a technical failure or any improper access to or use of the Site, any B3 Service or other B3 Technology, or B3 Proprietary, but in no event shall B3 have any liability for any failure to do so or for any delay in doing so.
- Miscellaneous Provisions.
- If any provision of this Agreement, or the application of such provision, is held invalid by a court of competent jurisdiction, the remainder of this Agreement shall not be affected and any invalid or unenforceable portions shall be construed in a manner that most closely reflects the effect and intent of the original language and is valid and enforceable. The failure by either Party to take any action or to demand compliance with any provision of the Agreement, or this TOS, shall not constitute, or be deemed to be, a waiver of any right or remedy of such Party under the Agreement or otherwise at law or in equity. The Agreement may be executed in two or more counterparts, each of which shall be deemed an original and all of which, taken together, shall constitute one and the same instrument. The Agreement may be executed by pdf copy or electronic signature, which shall be considered legally binding for all purposes.
- Neither Customer nor any Authorized User may use any B3 trademarks, including ‘B3’ and ‘B3 Data, Insight, or Outcomes,’ without B3’s prior express written permission.
- Entire Agreement.
- This TOS, each Order Form, and all policies posted by B3 on the Site (as such policies and guidelines may be modified by B3 from time to time) constitute the entire agreement between B3 and Customer regarding the subject matter hereof and supersedes any and all prior or contemporaneous agreements.
- “Customer” means the purchaser of Products indicated on the Order Form or listed on a B3 invoice.
- “Database” means a compilation or collection of data, data points, data sets, data elements, attributes, attribute data, metadata, records, documents, files, text, graphics, maps, audio, visual, audio/visual or other multimedia content, or other information content and materials arranged in systematic or methodical way and access to which by electronic or other means may be provided by B3 via a B3 Service or otherwise pursuant to the Agreement.
- “Internal Use” means ordinary use for internal business purposes, not including activities in Section 3.
- “Order Form” means, if applicable, the order form executed by B3 and Customer describing the Products.
- “Products” means B3 products listed on the Order Form or B3 invoice, Proprietary Data, and anything else B3 provides to Customer.
- “Proprietary Data” or “B3 Proprietary Data” means the Databases, data points, records, documents, analyses, models, maps, tables, charts, and other data to which Customer has access using the Products or that is otherwise provided by B3 to Customer. B3 Proprietary Data does not include data obtained from third parties on a pass-through basis.
- “Term” is the earliest date on the Order Form until the latest date on Form (even if in separate bullets), or one year if Customer has not completely executed an Order Form, together with Renewal Terms.
- “B3 Confidential Information” means any information, data or facts concerning or comprising in whole or in part any B3 Technology, B3 Proprietary Data, or the business, operations, finances, assets, affairs or prospects of B3 or any of its Affiliates, which may at any time or from time to time be disclosed by B3 to Customer, any Authorized User or any of Customer’s other representatives.
- “B3 Technology” means B3’s proprietary technology, including any database management system or other software, in any form, software tools, user interfaces, interface designs, APIs, algorithms, flow charts, specifications, architecture, libraries, objects, user or programmer manuals or instructions, developer notes and other related documentation network and hardware designs and configurations, know-how, trade secrets, B3 Services, the Site, any feature, functionality, sub-domains or subdirectories of or on the Site, computers, servers, modems, routers, cables and any other equipment, devices, or connections utilized by B3, its Affiliates or third party contractor(s) to facilitate B3 Services, and any Derivatives developed at any time whether before, on, or after the effective date of the Agreement, and any intellectual property rights in any of the foregoing.
- “Site” means the website operated by B3 and located at www.B3insight.com, any of its subdomains, as well as any other website operated by or for B3 and which B3 may from time to time designate for the provision of B3 Services.
- “Customer Content” means any data, file, image, video, audio, visual work, text, work of authorship or other material created and owned by Customer or with respect to which Customer or an Authorized User has obtained all requisite third party permissions necessary (without any obligation on the part of B3 or its third party contractors to pay any compensation). Customer Content does not include any B3 Proprietary Data.