Appendix A

Additional Third Party Terms

Vertical IQ is pleased to offer certain content provided by LexisNexis, a division of RELX Inc. (“LexisNexis”), through the Portal (the “LexisNexis Content”) as an optional no-cost add on to the Reports you access through the Portal pursuant to the Agreement.  The LexisNexis Content includes industry articles, journals, and other content that is prohibited from public use.

 

Your access to the LexisNexis Content is subject to the Agreement, and the additional terms and conditions described in this Appendix A (the “Appendix”).  Capitalized terms used but not defined in this Appendix shall have the meaning given to them in the Agreement.  The LexisNexis Content will be deemed to be a Report under the Agreement and subject to the Agreement in all respects except as expressly set forth in this Addendum.  In the event of any conflict between the Agreement and this Appendix, this Appendix shall govern.

 

LexisNexis requires each customer of Vertical IQ to agree in writing to the LN Subscription Agreement attached hereto as Exhibit A (the “LexisNexis Terms”) as a condition of accessing the LexisNexis Content, which is hereby incorporated by reference. Company must sign the LexisNexis Terms and return the signed version to Vertical IQ before accessing the LexisNexis Content.  Company’s use of the LexisNexis Content is subject to the LexisNexis Terms, and Company agrees to comply with the LexisNexis Terms in all respects.  Company acknowledges that the LexisNexis Content is subject to additional limitations on distribution and Company shall not provide the content to any third party except to the extent expressly authorized by both the Agreement and the LexisNexis Terms.  Vertical IQ reserves the right to discontinue providing any of the LexisNexis Content at any time.

 

The LexisNexis Content is made available by LexisNexis to Vertical IQ on an “as is” and “as available” basis.  THEREFORE, NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THE AGREEMENT, VERTICAL IQ IS PROVIDING THE LEXISNEXIS CONTENT ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED WITH RESPECT TO THE LEXISNEXIS CONTENT, INCLUDING ANY EXPRESS OR IMPLIED WARRANTIES OF ACCURACY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. VERTICAL IQ EXPRESSLY DISCLAIMS ANY AND ALL LIABILITY WITH RESPECT TO COMPANY’S ACCESS TO AND USE OF THE LEXISNEXIS CONTENT OR THIRD PARTY SITES THAT COMPANY MAY ACCESS IN CONNECTION WITH THE LEXISNEXIS CONTENT. Notwithstanding anything to the contrary in the Agreement, Company agrees to indemnify and hold harmless Vertical IQ from any loss, damage, and expense (including reasonable attorneys’ fees) suffered by Vertical IQ as a result of any third party claim (including by LexisNexis) as a result of use of the LexisNexis Content by Company or any of its users, and for clarity, any indemnification obligation and indemnification procedure set forth in the Agreement (other than in this Appendix) shall not apply with respect to any claim relating to the LexisNexis Content.  Any limitation of liability in the Agreement shall not apply to Company’s indemnification obligation set forth in this Addendum.

 

Exhibit A

LN Subscription Agreement

 

The undersigned organization (“Subscriber”) has entered into an agreement with Vertical IQ, Inc. (“Company”) for access to Vertical IQ’s portal (“Vertical IQ Portal”). In connection therewith, Subscriber agrees that all access to and use of content made available by LexisNexis, a division of RELX Inc. (“LexisNexis”), through (or in connection with) the Vertical IQ Portal shall be provided for media monitoring and evaluation purposes only and is subject to the terms and conditions provided in the General Terms and Conditions for Use of the LexisNexis Services (and updates thereof) available online at www.lexisnexis.com/terms/general (the “General Terms”). Subscriber further agrees that the General Terms constitute and form a separate binding agreement between LexisNexis and Subscriber and that LexisNexis has the right to assert and enforce this Agreement, including the General Terms, directly on its own behalf. LexisNexis’ consent to the terms of this Agreement shall be evidenced by providing Subscriber with the means to access LexisNexis content.

LexisNexis expressly disclaims any and all liability with regard to Subscriber’s access to and use of any materials retrieved from third party websites (“Web Materials”) by and through the Vertical IQ Portal. LexisNexis has not entered into a licensing agreement or linking agreement with the owners of the websites that provide Web Materials and makes no representation that it has the right to sublicense access to the Web Materials to Subscriber. Subscriber’s use of the Web Materials including any distribution or redistribution thereof is solely at its own risk. Subscriber will indemnify and hold LexisNexis and its affiliates and its and their employees, officers, and directors (the “Covered Parties”) harmless from any loss or damage suffered by the Covered Parties as a result of a third party claim brought against the Covered Parties as a result of Subscriber’s use of Web Materials.

Notwithstanding anything to the contrary in the General Terms, to the fullest extent permissible by applicable law, under no circumstances will the aggregate liability of Subscriber in connection with any claim arising out of or relating to the online services or materials or the General Terms exceed the Covered Party’s (as defined in the General Terms) actual direct damages. A Covered Party’s right to monetary damages in that amount shall be in lieu of all other remedies which you may have against Subscriber. The foregoing limitation of liability shall not apply to Subscriber’s indemnity obligations for infringement of intellectual property or misappropriation of proprietary data belonging to LexisNexis or its third party suppliers.

LexisNexis and Company are independent entities and neither is acting on behalf of, or has any right to bind, the other for any purpose or in any way. LexisNexis shall not be responsible for any actions, operations or business of Company, including, without limitation, errors or omissions that may be introduced into LexisNexis Licensed Content by Company. Subscriber agrees that it will not make any claim or take any action against LexisNexis for or in connection with the actions, activities, negligence, operations or business of Company.

TERMS AND CONDITIONS

Vertical IQ License Terms and Conditions

By executing the Subscriber Vertical IQ Order Form (the “Order Form”) incorporating these Vertical IQ License Terms and Conditions (“Terms and Conditions”), Vertical IQ and the customer named in the Order Form (“Customer”) agree that these Terms and Conditions together with the Order Form (the Order Form collectively with these Terms and Conditions, the “Agreement”) represent the entire agreement between the parties.

All terms capitalized but not defined in these Terms and Conditions shall have the meanings ascribed to them in the Order Form.

BACKGROUND

Vertical IQ has previously developed a web-based portal (the “Portal”) that provides users with access to profiles describing industries such as nursing homes, commercial printing, dentists and approximately 550+ others, which provide information for accountants, advisors, consultants, lenders, marketing experts, among others, to use in researching various industries to facilitate informed decisions and advice regarding general lending considerations, and other information. Each industry profile contains approximately fifteen to twenty pages of portal-accessed proprietary content—including a combination of trends, challenges, financing, news, statistics, videos about the industry, email alerts, and more—along with certain user-modifiable components.

Customer desires to have access to the proprietary industry research profiles offered through the Portal (as hosted by Vertical IQ or its contractor), subject to the terms and conditions set forth in this Agreement.

Because the Portal has been previously developed by Vertical IQ, this Agreement does not contemplate any custom development by Vertical IQ for Customer, “on-site” services (other than limited training opportunities set forth below), or the receipt by Vertical IQ of any information about customers of Customer or other sensitive information.

NOW THEREFORE, in consideration of the mutual benefits provided herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:

1. Definitions

“Vertical IQ Technology” means any Vertica l IQ technology, including, but not limited to, the Portal, the Internet website through which the Reports are provided, hardware, software, documents, documentation, processes, algorithms, user interfaces, and know-how created, conceived, used, or otherwise developed, licensed or acquired by Vertical IQ or embodied or otherwise incorporated in, or used to operate or provide access to the Reports, in whole or in part, including without limitation, all inventions and works of authorship included in the foregoing.

“Authorized User” means the employee and authorized representative of Customer as described on the Order Form that is authorized to carry out functions on behalf of Customer and is authorized by the Customer to access and use the Reports in accordance with the terms hereof.

“Proprietary Right” means any patent, copyright, trademark, trade secret, trade dress, moral right, right of attribution or integrity or other intellectual or proprietary rights.

“Reports” means those web-based reports, works of authorship, as well as any additions, improvements, modifications, updates, upgrades, new releases, or revisions to the foregoing provided through the Vertical IQ Technology.

“User-Modifiable Components” means those sections of the Reports and Portal that are designated as “My Notes” and the “Forum,” which sections are custom modifiable (within certain parameters) by the Customer as further set forth herein.

1. Rights and OWNERSHIP

2.1        License Grant. Subject to the terms and conditions of this Agreement, Vertical IQ hereby grants to Customer a limited, non-exclusive, non-transferable, non-sublicensable right and license to access and use the Reports as made available to Customer through the Portal during the Term solely for Customer’s internal business purposes, provided that all such use and access shall be undertaken solely by the Authorized User stated on the Order Form. The foregoing license includes the Customer’s right to share one copy of the Reports with each of their clients; provided, however, the Customer shall not charge the client for the copy of the Reports. This Agreement constitutes a license and not a transfer of title in the Reports.

2.2        Vertical IQ Technology and Reports. As between Customer and Vertical IQ, Vertical IQ is the sole and exclusive owner of all rights in the Reports and Vertical IQ Technology and all products or services developed by Vertical IQ in relation thereto. All rights in the Reports and Vertical IQ Technology not expressly granted hereunder are hereby retained by Vertical IQ. Customer acknowledges that the Reports and Vertical IQ Technology are proprietary to Vertical IQ, may contain confidential and unpublished material and are protected by trade secret, copyright and other Proprietary Rights.

2.3        Third Party Content.  Certain content included in the Reports is made available by third parties and is subject to additional terms and conditions set forth in the Lexis Nexis agreement.

Restrictions and REPRESENTATIONS

Except as expressly authorized in this Agreement, Customer will not, and shall ensure that Authorized Users do not, directly or indirectly: (i) resell, transfer or broker the Reports except as set forth herein in Section 2.1; (ii) allow the publication of the Reports or allow the Reports to be displayed publicly within the meaning of the United States Copyright Act; (iii) commingle, merge or append any Reports or information contained therein with any separate file or data bank without the prior written consent of Vertical IQ unless such activity is in the normal course of business such as internal documents or files; (iv) modify, reverse engineer, disassemble or decompile the Reports or the Vertical IQ Technology, or attempt to determine any portion of the source code or any trade secrets with respect to the Reports or the Vertical IQ Technology, or prepare derivative works based on the Reports or the Vertical IQ Technology; (v) sublicense or subcontract the right to reproduce the Reports or the Vertical IQ Technology; (vi) remove, obscure, or alter any notice of copyright, trademark, or other Proprietary Right appearing in or on any item included with the Reports or the Vertical IQ Technology; (vii) circumvent or attempt to circumvent any methods employed by Vertical IQ to control access to the components, features or functions of the Reports or the Vertical IQ Technology, or to prevent unauthorized use of the Reports or the Vertical IQ Technology; (viii) use the Reports or the Vertical IQ Technology in any commercially hosted or service bureau environment; (ix) use or authorize or permit any third party to use any “robot,” “spider” or other automatic device, or a program, algorithm or methodology having similar processes or functionality, or any manual process, to monitor, copy or reverse engineer any of the web pages, data or content found on the Portal; (x) utilize any software, application, or algorithm, whether integrated in a browser or otherwise, that modifies or adds content to the layout, design, or content of the Portal; (xi) transfer any web pages, data or content, found on the Portal to any other computer, server, website, or other medium for mass distribution or for any use other than as expressly permitted hereunder; or (xii) use any device, software or routine that interferes or attempts to interfere with the normal operation of the Portal or take any action that imposes an unreasonable or disproportionate burden or load on the infrastructure of the Portal. The Reports shall at all times identify Vertical IQ as the source of the Reports. Customer may not use the Reports or any data contained therein to create, develop or enhance a competing product or service.  Customer may, through its Authorized User, modify and create derivative works of the User-Modifiable Components, solely for the Customer’s internal use.

1. Rights and Obligations OF THE PARTIES

4.1        Authorized User. The Authorized User is set forth on the Order Form. The Authorized User may increase the set of Authorized Users by placing an additional order with Vertical IQ at Vertical IQ’s then-current fees.

4.2        Compliance with Laws. Each party shall comply with all applicable laws, regulations, rules, orders and other requirements, now or hereafter in effect, of any applicable governmental authority, in its performance of its activities hereunder.

4.3        Access to and Use of the Portal and Reports. In accordance with the terms of the Agreement, Vertical IQ will provide Customer’s Authorized User with access to the Portal, as hosted on Vertical IQ’s dedicated servers (either owned by Vertical IQ or maintained by a third party contractor). Customer is entitled to continued access to the Portal and Reports only for the duration of the Term. Customer is solely responsible for the designation and administration of passwords (“Passwords”) to access the Portal and Reports. Subject to the terms hereof, Customer will use commercially reasonable measures to prevent unauthorized access to, or use of, the Portal or Reports by any person or entity other than Authorized User, including without limitation adhering and ensuring that Authorized User adhere to the restrictions hereunder and any terms, conditions or rules that appear on the Portal or in the Reports from time to time and keeping and ensuring that Authorized User keep all user identification numbers and Passwords confidential and are not shared with any other person (including any other Customer personnel). Except as otherwise agreed by the parties in writing, Customer shall have sole responsibility for acquiring and maintaining its own technical environment, including but not limited to the hardware and Internet access to access the Portal as permitted hereunder, which for clarity shall include satisfaction of the Minimum System Requirements set forth on Exhibit A hereto.

4.4        Publicity. Vertical IQ shall not in any way or in any form publicize or advertise in any manner the fact it is providing services or Reports to Customer without the express written approval of Customer, obtained in advance, for each item of advertising or publicity. In no event will Vertical IQ use the Customer trademark in any printed material, websites, or other medium without the prior written approval of Customer.

Confidentiality

5.1        Confidentiality. Each party (“Receiving Party”) will hold in confidence all information obtained from the other party (“Disclosing Party”) in connection with this Agreement (“Confidential Information”) and use and disclose it only as expressly permitted under this Agreement, provided that these restrictions will not apply to any information that (i) was already known to the Receiving Party without obligation of confidentiality; (ii) is or becomes properly available to the Receiving Party (under conditions which do not restrict further disclosure) from a third party source who did not obtain such information directly or indirectly from the Disclosing Party; or (iii) is or becomes part of the public domain through no fault of the Receiving Party. The Reports and the terms of this Agreement constitute Confidential Information of Vertical IQ for all purposes under this Agreement.

5.2        Injunctive Relief. The parties acknowledge and agree that (a) any actual or threatened breach by a party of its duties and obligations under this Section 5 will cause the other party irreparable harm for which money damages would not constitute an adequate remedy; and (b) in the event of any such actual or threatened breach, the Disclosing Party will be entitled to seek injunctive relief to prevent or eliminate such breach.

5.3        No Customer Information. Unless otherwise specifically agreed in writing between the parties, Customer agrees that it shall not provide Vertical IQ with any information about the Customer whatsoever, including without limitation name, address, identification numbers, bank account information, credit card information, or any other personally-identifiable information or other similar information.

1. Support

6.1        Modification. Vertical IQ reserves the right to modify the Portal used to provide the Reports for purposes including but not limited to accommodating evolving technology and increased network demand, and providing enhanced Reports, provided that such modifications do not have a material adverse effect on the Reports provided hereunder. Without limiting the generality of the foregoing, to the extent any such change results in a change in the Internet Protocol addresses associated with the Portal, Vertical IQ shall reasonably assist Customer to ensure that Customer’s domain names are registered with the new Internet Protocol addresses in a timely manner.

6.2        Technical Support. Vertical IQ will provide Customer with technical support during Vertical IQ’s normal business hours via teleconference at no additional charge to Customer.

6.3        Updates and Improvements. Vertical IQ will provide Customer with ongoing maintenance, updates and improvements to the Reports that Vertical IQ provides to all of its Customers at no additional charge to Customer, provided, however, that such updates and improvements do not constitute a new or separate Report, as determined in the sole discretion of Vertical IQ.

1. Fees

7.1        Amounts. Customer agrees to pay to Vertical IQ the amounts set forth on the Order Form for the Initial Term and any Renewal Term. All payments shall be made by credit card.

7.2        Taxes. Customer shall pay all taxes (except for taxes based on Vertical IQ’s income) due on all payments received by Vertical IQ hereunder.

7.3        Payments.  Customer will make payment by credit card only.  After first payment, the customer’s credit card will be charged automatically at renewal date unless the subscription is terminated.

1. Term and Termination

8.1        Term. The Initial Term of this Agreement will commence on the Date the Subscriber clicks agree, and will end one year later. The Initial Term will automatically renew for successive periods equal to the length of the expiring Term (each, a “Renewal Term”, and together with the Initial Term, the “Term”).  The pricing during any Renewal Term may be increased by Vertical IQ without prior notice. Credit card payments will be automatically processed on the renewal date.

8.2        Termination. Either party may terminate this Agreement at any time upon notice to the other party.  Terminations during a renewal term will not result in a refund of any fees paid.

8.3        Effect of Termination. Sections 2.2, 3, 5, 7, 8.3, 9, 10, and 11.6 of this Agreement, and any other provisions which would reasonably be expected to survive, will survive any termination or expiration of this Agreement. Upon the expiration or termination of this Agreement pursuant to and in accordance with this Section 8, the following will apply unless otherwise agreed upon by the parties, Customer will immediately cease to have access to the Reports.

1. Limited Warranty and INDEMNITY

9.1        Warranty. Vertical IQ warrants that, to Vertical IQ’s actual knowledge, the current versions of the Reports as made available to Customer by Vertical IQ, when used in accordance with this Agreement, do not infringe any third party’s intellectual property rights. If the Reports do not comply with this warranty, Customer’s sole remedy and Vertical IQ’s sole obligation will be to indemnify and hold Customer harmless from and against any third-party infringement claims, actions, investigations or liabilities (including damages, losses, costs, expenses, and reasonable attorneys’ fees) resulting specifically from the non-compliance (provided Customer permits Vertical IQ to defend Customer against any such claim), and to use commercially reasonable efforts to (A) procure for Customer the right to continue to use the Reports as set forth in this Agreement; (B) provide a reasonable workaround solution; or (C) replace or modify the Reports to make their use non-infringing without any material degradation of performance or, if alternatives (A)-(C) are not practicable, to refund a prorated portion of the fees paid by Customer for the affected Reports and terminate this Agreement as to the affected Reports upon written notice to Customer.

9.2        Customer Indemnity. The information contained in the Reports is intended for background preparation and general information only, and is not to be used for making lending decisions or other business purposes. Customer assumes sole responsibility for results obtained from the use of the Reports by Customer and conclusions drawn therefrom. Customer will defend, indemnify and hold Vertical IQ harmless from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses, attorneys’ fees, or disbursements of any kind or nature whatsoever that may be imposed upon, incurred by or asserted against Vertical IQ arising from (a) any violation of the terms of this Agreement; (b) results obtained by Customer’s use of the Reports and conclusions drawn therefrom and (c) Customer’s use of the Reports except to the extent resulting from any breach of this Agreement by Vertical IQ.

9.3        Procedure. In any claim described in this Section 9, the party seeking indemnification will: (a) give the indemnifying party prompt written notice of the claim; (b) permit the indemnifying party to control the defense and settlement of the claim (provided that the indemnifying party may not settle any claim without the indemnified party’s prior written consent, which consent may not be unreasonably withheld or delayed); and (c) cooperate with the indemnifying party (at the indemnifying party’s expense) in the defense and settlement of the claim.

9.4        Disclaimer and Release.  EXCEPT AS SPECIFICALLY SET FORTH IN THIS AGREEMENT, VERTICAL IQ MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, REGARDING USE OF OR RELIANCE ON THE REPORTS AND THE REPORTS ARE PROVIDED “AS IS”.  THE WARRANTIES OF VERTICAL IQ AND THE REMEDIES OF COMPANY SET FORTH IN THIS SECTION 9 ARE EXCLUSIVE AND IN SUBSTITUTION FOR, AND COMPANY HEREBY WAIVES, RELEASES AND DISCLAIMS ALL OTHER WARRANTIES, OBLIGATIONS AND LIABILITIES OF VERTICAL IQ AND ALL OTHER REMEDIES, RIGHTS AND CLAIMS OF COMPANY EXPRESS OR IMPLIED, ARISING BY LAW OR OTHERWISE, WITH RESPECT TO ANY DEFECT, DEFICIENCY, DATA ACCURACY, OR NONCONFORMITY IN THE REPORTS, VERTICAL IQ TECHNOLOGY, DOCUMENTATION OR ANYTHING ELSE FURNISHED UNDER THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO ANY: (A) IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE; (B) IMPLIED WARRANTY ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING, OR USAGE OF TRADE; (C) ANY OBLIGATION, LIABILITY, RIGHT, REMEDY OR CLAIM IN TORT, NOTWITHSTANDING ANY FAULT, NEGLIGENCE, STRICT LIABILITY OR PRODUCT LIABILITY OF VERTICAL IQ (WHETHER ACTIVE, PASSIVE OR IMPUTED); AND (D) CLAIM OF INFRINGEMENT (EXCEPT AS SET FORTH SPECIFICALLY IN SECTION 9.1).  VERTICAL IQ DOES NOT WARRANT THAT OPERATION OF OR USE OF THE REPORTS OR SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, OR ENTIRELY SECURE.  COMPANY WILL BEAR ALL RISK ASSOCIATED WITH ANY USE OF THE INTERNET OR OTHER MEANS OF COMMUNICATION OR DATA TRANSMISSION BY OR ON BEHALF OF COMPANY UNDER THIS AGREEMENT, INCLUDING WITH RESPECT TO ANY VIRUS OR HARMFUL CODE RESULTING THEREFROM, AND VERTICAL IQ DISCLAIMS ALL LIABILITY AND RESPONSIBILITY IN CONNECTION WITH SUCH USE.

 

1. Limitations

10.1      Excused Performance. Neither party will be liable for, or be considered to be in breach of or default under this Agreement on account of, any delay or failure to perform as required by this Agreement (other than monetary obligations) as a result of any cause or condition beyond such party’s reasonable control.

10.2      Limitation of Liability. VERTICAL IQ’S LIABILITY (WHETHER BASED ON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE WHETHER ACTIVE, PASSIVE OR IMPUTED) OR ANY OTHER THEORY) ARISING UNDER OR WITH REGARD TO THIS AGREEMENT OR THE REPORTS, VERTICAL IQ TECHNOLOGY, DOCUMENTATION, OR OTHER ITEMS FURNISHED HEREUNDER WILL IN NO EVENT EXCEED IN THE AGGREGATE THE TOTAL COMPENSATION PAID BY CUSTOMER TO VERTICAL IQ UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING ASSERTION OF THE APPLICABLE CLAIM.

10.3      Limitation of Damages. IN NO EVENT WILL VERTICAL IQ HAVE ANY OBLIGATION OR LIABILITY (WHETHER BASED ON CONTRACT, WARRANTY TORT (INCLUDING NEGLIGENCE WHETHER ACTIVE, PASSIVE OR IMPUTED) OR OTHER THEORY) FOR THE COST OF COVER OR FOR ANY INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES OR LIABILITIES (INCLUDING, BUT NOT LIMITED TO, ANY LOSS OF DATA, REVENUE, PROFIT OR BUSINESS) ARISING OUT OF OR PERTAINING TO THIS AGREEMENT OR THE REPORTS, DOCUMENTATION, VERTICAL IQ TECHNOLOGY OR OTHER ITEMS FURNISHED HEREUNDER, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

 

1. General

11.1      Independent Contractors. Vertical IQ and Customer are independent contractors, not employees, agents, or franchisees of one another. Neither party will represent or hold itself out as an employee, agent, or franchisee of the other. Neither party will be entitled to, and neither party will attempt to, create or assume any obligation, express or implied, on behalf of the other party. This Agreement will not be interpreted or construed as creating or evidencing any association, joint venture, or partnership among the parties or as imposing any partnership or franchisor obligation or liability on any party. Further, this Agreement will not be interpreted or construed to create an exclusive relationship between the parties. Each party reserves the right to promote, market and solicit sales, licenses and other offerings of its products or Reports without restriction, either directly or through others, at any time during or after the termination or expiration of the Term.

11.2      Notices. Any notice or other communication under this Agreement given by either party to the other will be in writing and delivered either (a) in person or by first-class, registered, or certified U.S. mail or overnight delivery service, return receipt requested, postage prepaid to the address set forth in the Order Form, or (b) by electronic mail to info@verticaliq.com (for notice to Vertical IQ) or Customer’s email address set forth in the Order Form (for notice to Customer). Where a notice is sent under (a) above, notices will be deemed received twenty-four (24) hours after the same has been sent in accordance with this Section 11.2. Where a notice is sent under (b) above, notices will be deemed received upon delivery. Notices will be directed to the intended recipient at the address specified at the beginning of this Agreement or electronic mail address listed in this Section 11.2. Either party may from time to time change such addresses by giving the other party notice of such change in accordance with this paragraph.

11.3      Assignment. Customer will not assign or delegate this Agreement or its rights or obligations under this Agreement by operation of law or otherwise without the prior written consent of Vertical IQ. Any assignment by Customer, with or without Vertical IQ’s consent, will not relieve Customer of any of its obligations under this Agreement. Subject to the foregoing restriction on assignments by Customer, this Agreement will be fully binding upon, inure to the benefit of and be enforceable by the parties and their respective successors and assigns. Any assignment in violation of the foregoing restrictions shall be null and void.

11.4      Nonwaiver. The failure of either party to insist upon or enforce strict performance of any of the provisions of this Agreement or to exercise any rights or remedies under this Agreement will not be construed as a waiver or relinquishment to any extent of such party’s right to assert or rely upon any such provisions, rights, or remedies in that or any other instance; rather, the same will be and remain in full force and effect. Further, no waiver will be valid unless set forth in a written instrument signed by the party to be bound thereby.

11.5      Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be unenforceable, the enforceability of the remaining provisions of this Agreement shall not be affected and the unenforceable provision shall be deemed modified such that it is enforceable and accomplishes the intention of the parties to the fullest extent possible.

11.6      Applicable Law. This Agreement will be interpreted, construed and enforced in all respects in accordance with the laws of the State of North Carolina without reference to its choice of law principles to the contrary. Each party hereby consents to the jurisdiction and venue of the state and federal courts located in Wake County, North Carolina, with regard to any suit or claim arising under or by reason of this Agreement. Customer will not commence or prosecute any suit or claim to enforce this Agreement, or otherwise arising under or by reason of this Agreement, other than in such courts.

11.7      Entire Agreement. This Agreement, the Order Form(s), and the exhibits hereto constitute the entire agreement and understanding of the parties regarding the subject matter hereof and may not be modified except by a written instrument which expressly amends this Agreement signed by an authorized representative of each party. In the event of an inconsistency between these Terms and Conditions and the Order Form, the Order Form shall control.

11.8      Counterparts.  This Agreement may be executed in two or more counterparts, and each counterpart will be deemed an original, but all counterparts together will constitute a single instrument.

 

 

 

 

 

 

 

 

 

 

EXHIBIT A

Minimum System Requirements

In order to access the Portal, Customer must meet the following “Minimum System Requirements”:

1) Most recent release and one previous release of Microsoft Edge, Chrome, Firefox or Safari

2) Javascript

3) Most recent release and one previous for Android or IOS (for mobile app).

PRIVACY POLICY

Vertical IQ, Inc. (“Vertical IQ,” “us,” “we” or “our”) respects your privacy. This Privacy Notice describes how we collect, use, and disclose Personal Information through our website, www.verticaliq.com, or any of our related websites or applications that link to this Privacy Notice (collectively, the “Site”) that are owned and controlled by Vertical IQ. As used in this Privacy Notice, “Personal Information” means information that identifies or that could be used to identify you.

The Vertical IQ business intelligence platform (“Vertical IQ Platform”) allows subscribers who access the platform through their organization (“Platform Subscribers”) to receive business analytics reports.  Vertical IQ acts as a “data processor” for Personal Information that we collect or process on behalf of Platform Subscribers.  This Privacy Notice does not apply to information that Platform Subscribers collect, create, or provide to the Vertical IQ Platform (which for purposes of this Privacy Notice, we refer to as “Customer Data”). Customer Data, which may include Personal Information contained in text, images, or other content that is created or shared in connection with the Vertical IQ Platform, is owned and controlled by the Platform Subscriber. Our use and disclosure of Customer Data is governed by our agreements with Platform Subscribers. If you have questions about the information practices of the Platform Subscriber that uses the Vertical IQ Platform for business analytics, please review the Platform Subscriber’s privacy policy or contact them directly.

INFORMATION WE COLLECT ABOUT YOU AND HOW WE USE IT

The Personal Information we collect and how we use it depends on the context of your interactions with us. As explained below, we collect Personal Information when you provide it directly to us and when we receive it from third parties. We also collect certain information automatically when you interact with the Site.

Information You Provide Us

We collect Personal Information that you choose to share with us when you use the Site, as described below.

Account and Contact Information

If you visit our Site or create an account, we will collect Personal Information from you, including through forms presented on the Site.

This Personal Information may include:

• name,
• email address,
• password,
• company name and job title/position, and
• phone number.

Payment Information

If you make a payment through the Site, we will need to collect your payment card number, expiration date, CVV, credit card type, and billing name and address.

Additional Information

If you contact us or participate in a survey or promotion, we collect the information you submit such as your name, email address, contact information, and message.  If you apply for a job through the “Careers” page on our Site, we (or our third party career services providers) will collect information necessary to evaluate and contact you about your application, which may include your contact details, your resume/CV, employment history, job preferences, educational background, achievements, immigration status and entitlement to work; as well as information for diversity monitoring, such as your gender, race, disability or veteran status.

Information We Collect Automatically

 

In addition to the information you share with us, we collect some information automatically when you use the Site. The types of information that we collect automatically may include:

• Technical information about your computer, device, hardware, or software you use to access the Internet or our Site, such as IP address or other transactional or identifier information for your device (such as device make and model, information about device operating systems and browsers, or other device or system related specifications);
• Usage information and statistics about your interaction with the Site which may include the URLs of the Site that you have visited, URLs of referring and exiting pages, page views, time spent on a page, number of clicks, the applications and features you use, when and how long you use those applications and features, and other usage statistics;
• Information that facilitates a safer and more personalized experience with the Site, such as user identification information, saved preferences, and device identifiers or usage information for authentication and fraud prevention purposes; and
• Information about your approximate location, which we may derive from device information such as IP address.

We collect some of this information through tracking technologies such as cookies and web beacons. For more information, please see the How We Use Cookies and Other Tracking Technologies section below.

In some cases, we receive Personal information from third parties. For instance, while using our Site, individuals may provide information about another individual, or an authorized user (such as an account administrator) creating an account on your behalf may provide information about you.

We may also receive Personal Information from other third-party sources, including:

• Our service providers, such as online analytics providers.
• Data brokers from which we purchase demographic data to supplement the data we collect.
• Publicly available sources, such as business registries.
• When one individual provides us with information (including Personal Information) about another individual, we assume that the individual has permission and authority to do so and to consent on behalf of that individual to the collection and use of Personal Information as described in this Privacy Notice. Please contact us immediately if you become aware of an individual providing us with Personal Information about another individual without being authorized to do so.

We may use the Personal Information that we collect or receive through the Site for the following purposes:

• To respond to your inquiries and requests and communicate with you about the Site, or services you subscribe to through the Site;
• To send you invoices and other accounting purposes;
• To operate and provide support for your use of the Site;
• To store information about your preferences and customize your experience on the Site;
• To analyze usage trends and patterns and measure the effectiveness of the Site;
• To perform our agreements with customers, including fulfilling orders and requests and processing payments;
• To provide you with customized information about products and services we offer, and other information we think may be of interest to you;
• To administer, evaluate, and improve our business and the Site (including developing new products and services; managing our communications; and performing accounting, auditing, billing, reconciliation and collection activities);
• To comply with legal or regulatory requirements, judicial process, and our company policies (including due diligence and contracting activities);
• To secure the Site, including by protecting against and responding to fraud, illegal activity (such as incidents of hacking or misuse of the Site), and claims and other liabilities, including by enforcing our customer agreements and Terms and Conditions;
• To evaluate or conduct a merger, divestiture, restructuring, reorganization, dissolution, or other sale or transfer of some or all of our assets, including as part of bankruptcy, liquidation, or similar proceeding;
• To demonstrate and verify compliance with our internal policies and procedures, and applicable privacy and data security laws and regulations; and
• For any other purpose that you may authorize or direct at the time we collect your Personal Information.

We may also use de-identified or aggregated information for product development, research, analytics and other purposes, including marketing and promotional purposes.

HOW WE USE COOKIES AND OTHER TRACKING TECHNOLOGIES

We collect information about your use of the Site through tracking technologies such as cookies and web beacons. A “cookie” is a unique numeric code that is transferred to your computer to track your interests and preferences and to recognize you as a return visitor. A “Web beacon” is a transparent graphic image placed on a website, e-mail or advertisement that enables the monitoring of things such as user activity and site traffic.

The Site may use cookies and web beacons to learn more about how visitors use the Site, to help improve user experience, remember your preferences, allow us to bring you the content and features that are likely to be of interest to you, and to analyze the use of our Site and to improve the Site’s functionality. One of the ways we do this is through the use of Google Analytics. For more information about how Google Analytics uses and processes data, please visit https://www.google.com/policies/privacy/partners/.

Most web browsers accept cookies automatically, but can be configured not to do so or to notify the user when a cookie is being sent. If you wish to disable cookies, refer to your browser help menu to learn how to disable cookies. Please note that if you disable cookies, you may not be able to use some customized features available through the Site.

HOW WE SHARE PERSONAL INFORMATION

 

To accomplish the purposes set out above, we may share your Personal Information with other parties that may include the following:

• Service providers that perform services on our behalf and under our direction;
• Other third parties as necessary to (a) protect or defend our interests and the legal rights or property; (b) protect the rights, interest and safety and security of the Site, our organization, or members of the public; (c) protect against fraud; and (d) investigate and prosecute users who engage in behavior that is illegal or harmful to others or to others’ property;
• A buyer or other successor or organization in the event of an actual or potential merger, divestiture, restructuring, reorganization, dissolution, or other sale or transfer of some or all of our assets, including as part of bankruptcy, liquidation, or similar proceeding; and
• Such other parties, or for such other purposes, as you may authorize or direct when we collect your Personal Information.

INFORMATION SECURITY

We are committed to protect and secure the information of Vertical IQ and Site users and we use a variety of security technologies and procedures to help protect against unauthorized access to or alteration, disclosure, or destruction of Personal Information. We encrypt many of our services using SSL and we review our information collection, storage and processing practices, including physical security measures, to guard against unauthorized access to our systems. Nevertheless, transmission via the internet is not completely secure and we cannot guarantee the security of information about you.

YOUR CHOICES

 

You can always choose whether or not to provide information to the Site. However, if you choose not to disclose certain information, your access to certain functions of the Site may be limited. Other examples of your choices include:

• You can browse our Site without registering or directly submitting any information to us (although we may still collect some limited information automatically, as described above);
• You may opt out of receiving our messages at any time by using the opt-out mechanism provided in the message; and
• You may change your browser settings or take other steps to block, manage, or delete cookies. Our Site does not currently respond to browser “do not track” signals, so you will need to use your browser settings to effectively manage cookies. In some cases, blocking or disabling cookies may cause the Site not to work as intended and some features may not be available.

LINKS TO OTHER WEBSITES AND SERVICES

The Site may contain links to other third-party websites and services. These websites and services are not subject to this Privacy Notice. They are not controlled by Vertical IQ and Vertical IQ is not responsible for their content or their privacy policies, which may differ from ours. We have not reviewed and make no representations about the accuracy of information on third-party websites, or about their information handling practices. Visits you make to these websites are at your own risk, and we encourage you to review their Privacy Notice.

OUR GLOBAL PRACTICES

We may process and store your Personal Information in the United States and in any other country where we or our or service providers operate. By your use of the Site you acknowledge that we will maintain your Personal Information in jurisdictions which may have different data protection rules than in your country, and that your Personal Information may become accessible as permitted by law in those jurisdictions, including to law enforcement or national security authorities.

HOW TO CONTACT US

If you have any questions or comments about this Privacy Notice, if you need to report a problem, or if you would like to exercise one of your rights under this policy, please contact us at or using the information below. Please include your name, contact information, and the nature of your request so that we can respond appropriately and promptly to your communication.

Email: info@verticaliq.com
Postal Mail: 601 St Marys St, Raleigh, NC 27605
Attn: Privacy Policy Question

 

MODIFICATIONS AND UPDATES TO THIS Privacy Notice

We reserve the right to change the terms of this Privacy Notice at any time. Any changes to this Privacy Notice will be reflected on this page with a new “Last Updated” date. We encourage you to review this Privacy Notice regularly for any changes. Your continued use of the Site after we post changes is deemed to be acceptance of those changes.

Effective Date: 11-15-2022
Last Updated:  11-15-2022

 At Vertical IQ (“VIQ” or the “Website”) the privacy of your information is extremely important.  This Privacy Policy outlines the types of personal information we receive and collect, and how it is used.
We will never share your e-mail address or any other personal information with anyone without your direct consent.
The Information We Collect
VIQ collects personal identifiable information from Website visitors or users who voluntarily register for an account.  During the registration, we may request certain personal information, including your name, e-mail address, user name, phone number, and password.
We utilize a third party vendor to collect and process credit card transactions.  VIQ does not retain this information.  To review the applicable policies, please go to Authorize.net.
Cookies
VIQ (or a third party service provider on our behalf) may set and access cookies on your computer.  A cookie is a small amount of data, often including a unique identifier that is sent to your browser from a website’s computers and stored on your computer’s hard drive.  VIQ uses cookies to understand site usage and to improve the content and offerings on our site.  Our cookies contain no personally identifiable information.
Use of Data
VIQ (or third party service providers on our behalf) may also use cookies to collect aggregate information about website users on an anonymous basis.  We may share aggregate demographic and usage information with our prospective and actual business partners, advertisers and other third parties for any business purpose.  Some third-parties may place cookies on your browser for targeted ad purposes. If you don’t want cookies, most web browsers include an option that allows you to not accept them.
Opt-Out of Targeted Ads
Targeted ads (served by AdRoll) will contain an AdChoices logo (the blue triangle) in the corner of the ad. Click the logo to learn more about interest-based advertising, who served the ad, and manage your ad options. You can also opt out of seeing personalized ads using the NAI opt out tool here.
Choice/Opt-Out of E-Mails generated from VIQ
We provide users the opportunity to opt-out of receiving communications from us and our partners.  You will notice in any e-mail generated from this Website there is an unsubscribe e-mail address at the bottom of the message.  Simply send an e-mail to this address info@verticaliq.com letting us know that you wish to unsubscribe from all future VIQ e-mails, and we will make sure that we remove you from any and all VIQ e-mail lists.
Where this Privacy Policy does not apply
The Website may contain hyperlinks to other websites.  The Website also may contain advertisements of third parties.  We are not responsible for the privacy practices or the content of such third party websites to which we link, although we may share aggregate data with such websites (such as how many people use our Website).  Please check with those third party websites to determine their privacy policy.
Security
This Website has reasonable security measures in place to protect the loss, misuse and alteration of the information under our control. We use Secure Socket Layer (SSL) encryption to safely transmit data to and from our website. Of course, no computer system should be considered safe from intrusion. E-mail may pass through many computer systems, and should not be considered as a secure means of communication unless encrypted. Access to the personal information contained on the Website is limited to a very small number of employees with a defined need and is password protected.
Ultimately, you are solely responsible for determining whether you intend for your personal information to be confidential and for maintaining its confidentiality. Please be careful and responsible whenever you’re online.
Consent
By using VIQ and by signing up for VIQ services; you consent to the collection and use of the previously mentioned information by VIQ. This privacy policy is subject to change. To stay up-to-date with our policies, please check this page frequently. We reserve the right to change, modify, add, or remove portions of this policy at any time.
Corrections and Questions
If you desire to change or modify information previously provided or if you have questions about this privacy policy or the practices of the Website, you may either e-mail info@verticaliq.com or contact us at the following address: 601 St. Mary’s St, Raleigh, NC  27605, or at 919-787-4600.

By executing the Vertical IQ Order Form (the “Order Form”) between Vertical IQ, Inc., a North Carolina corporation located at 601 St. Mary’s Street Raleigh, NC 27605 (“Vertical IQ”) and the customer named in the Order Form (“Customer”), incorporating these Vertical IQ License Terms and Conditions (“Terms and Conditions”), Vertical IQ and Customer agree that these Terms and Conditions together with the Order Form (the Order Form collectively with these Terms and Conditions, the “Agreement”) represent the entire agreement between the parties.
All terms capitalized but not defined in these Terms and Conditions shall have the meanings ascribed to them in the Order Form.

BACKGROUND

Vertical IQ has previously developed a web-based portal (the “Portal”) that provides users with access to profiles describing industries such as nursing homes, commercial printing, dentists and approximately 525 others, which provide information for accountants, advisors, consultants, lenders, marketing experts, among others, to use in researching various industries to facilitate informed decisions and advice regarding general lending considerations, and other information. Each industry profile contains approximately fifteen to twenty pages of portal-accessed proprietary content—including a combination of trends, challenges, financing, news, statistics, videos about the industry, email alerts, and more—along with certain user-modifiable components forum communications;
Customer desires to have access to the proprietary industry research profiles offered through the Portal (as hosted by Vertical IQ or its contractor), subject to the terms and conditions set forth in this Agreement; and
Because the Portal has been previously developed by Vertical IQ, this Agreement does not contemplate any custom development by Vertical IQ for Customer, “on-site” services (other than limited training opportunities set forth below), or the receipt by Vertical IQ of any information about customers of Customer or other sensitive information.
NOW THEREFORE, in consideration of the mutual benefits provided herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:

1.            Definitions

“Vertical IQ Technology” means any Vertical IQ technology, including, but not limited to, the Portal, the Internet website through which the Reports are provided, hardware, software, documents, documentation, processes, algorithms, user interfaces, and know-how created, conceived, used, or otherwise developed, licensed or acquired by Vertical IQ or embodied or otherwise incorporated in, or used to operate or provide access to the Reports, in whole or in part, including without limitation, all inventions and works of authorship included in the foregoing.
“Authorized Users” means those employees and authorized representatives of Customer as described on the Order Form that are authorized to carry out functions on behalf of Customer and are authorized by the License Administrator to access and use the Reports in accordance with the terms hereof. The maximum number of Authorized Users are set forth on the Order Form.
“License Administrator” means the employee of Customer that Customer designates on the Order Form to manage and administer Customer’s access and use of the Reports.
“Proprietary Right” means any patent, copyright, trademark, trade secret, trade dress, moral right, right of attribution or integrity or other intellectual or proprietary rights.
“Reports” means those web-based reports, works of authorship, as well as any additions, improvements, modifications, updates, upgrades, new releases, or revisions to the foregoing provided through the Vertical IQ Technology.
“User-Modifiable Components” means those sections of the Reports and Portal that are designated as “My Notes” and the “Forum,” which sections are custom modifiable (within certain parameters) by the Customer as further set forth herein.
2.            Rights and OWNERSHIP
2.1       License Grant. Subject to the terms and conditions of this Agreement, Vertical IQ hereby grants to Customer a limited, non-exclusive, non-transferable, non-sublicensable right and license to access and use the Reports as made available to Customer through the Portal during the Term solely for Customer’s internal business purposes, provided that all such use and access shall be undertaken solely by those Authorized Users subject to the maximum number stated on the Order Form. The foregoing license includes the Customer’s right to share one copy of the Reports with each of their clients; provided, however, the Customer shall not charge the client for the copy of the Reports. This Agreement constitutes a license and not a transfer of title in the Reports.
2.2       Vertical IQ Technology and Reports. As between Customer and Vertical IQ, Vertical IQ is the sole and exclusive owner of all rights in the Reports and Vertical IQ Technology and all products or services developed by Vertical IQ in relation thereto. All rights in the Reports and Vertical IQ Technology not expressly granted hereunder are hereby retained by Vertical IQ. Customer acknowledges that the Reports and Vertical IQ Technology are proprietary to Vertical IQ, may contain confidential and unpublished material and are protected by trade secret, copyright and other Proprietary Rights.

3.            Restrictions and REPRESENTATIONS

Except as expressly authorized in this Agreement, Customer will not, and shall ensure that Authorized Users do not, directly or indirectly: (i) resell, transfer or broker the Reports except as set forth herein in Section 2.1; (ii) allow the publication of the Reports or allow the Reports to be displayed publicly within the meaning of the United States Copyright Act; (iii) commingle, merge or append any Reports or information contained therein with any separate file or data bank without the prior written consent of Vertical IQ unless such activity is in the normal course of business such as internal documents or files; (iv) modify, reverse engineer, disassemble or decompile the Reports or the Vertical IQ Technology, or attempt to determine any portion of the source code or any trade secrets with respect to the Reports or the Vertical IQ Technology, or prepare derivative works based on the Reports or the Vertical IQ Technology; (v) sublicense or subcontract the right to reproduce the Reports or the Vertical IQ Technology; (vi) remove, obscure, or alter any notice of copyright, trademark, or other Proprietary Right appearing in or on any item included with the Reports or the Vertical IQ Technology; (vii) circumvent or attempt to circumvent any methods employed by Vertical IQ to control access to the components, features or functions of the Reports or the Vertical IQ Technology, or to prevent unauthorized use of the Reports or the Vertical IQ Technology; (viii) use the Reports or the Vertical IQ Technology in any commercially hosted or service bureau environment; (ix) use or authorize or permit any third party to use any “robot,” “spider” or other automatic device, or a program, algorithm or methodology having similar processes or functionality, or any manual process, to monitor, copy or reverse engineer any of the web pages, data or content found on the Portal; (x) utilize any software, application, or algorithm, whether integrated in a browser or otherwise, that modifies or adds content to the layout, design, or content of the Portal; (xi) transfer any web pages, data or content, found on the Portal to any other computer, server, website, or other medium for mass distribution or for any use other than as expressly permitted hereunder; or (xii) use any device, software or routine that interferes or attempts to interfere with the normal operation of the Portal or take any action that imposes an unreasonable or disproportionate burden or load on the infrastructure of the Portal. The Reports shall at all times identify Vertical IQ as the source of the Reports. Customer may not use the Reports or any data contained therein to create, develop or enhance a competing product or service. Notwithstanding the foregoing, Customer may, through its License Administrator, modify and create derivative works of the User-Modifiable Components, solely for the Customer’s internal use.

4.            Rights and Obligations OF THE PARTIES

4.1       License Administrator. The License Administrator is set forth on the Order Form. The License Administrator or his designees may increase the set of Authorized Users hereunder (e.g., to add additional divisions or offices as Authorized Users) by placing an additional order with Vertical IQ at Vertical IQ’s then-current fees.
4.2       Compliance with Laws. Each party shall comply with all applicable laws, regulations, rules, orders and other requirements, now or hereafter in effect, of any applicable governmental authority, in its performance of its activities hereunder.
4.3       Access to and Use of the Portal and Reports. In accordance with the terms of the Agreement, Vertical IQ will provide Customer’s Authorized Users with access to the Portal, as hosted on Vertical IQ’s dedicated servers (either owned by Vertical IQ or maintained by a third party contractor). Customer is entitled to continued access to the Portal and Reports only for the duration of the Term. Customer is solely responsible for the designation and administration of passwords (“Passwords”) to access the Portal and Reports. Subject to the terms hereof, Customer will use commercially reasonable measures to prevent unauthorized access to, or use of, the Portal or Reports by any person or entity other than Authorized Users, including without limitation adhering and ensuring that Authorized Users adhere to the restrictions hereunder and any terms, conditions or rules that appear on the Portal or in the Reports from time to time and keeping and ensuring that all Authorized Users keep all user identification numbers and Passwords confidential and are not shared with any other person (including any other Customer personnel). Except as otherwise agreed by the parties in writing, Customer shall have sole responsibility for acquiring and maintaining its own technical environment, including but not limited to the hardware and Internet access to access the Portal as permitted hereunder, which for clarity shall include satisfaction of the Minimum System Requirements set forth on Exhibit A hereto.
4.4       Publicity. Vertical IQ shall not in any way or in any form publicize or advertise in any manner the fact it is providing services or Reports to Customer without the express written approval of Customer, obtained in advance, for each item of advertising or publicity. However, nothing herein shall preclude Vertical IQ from listing Customer as a client. In no event will Vertical IQ use the Customer trademark in any printed material, websites, or other medium without the prior written approval of Customer.

5.            Confidentiality

5.1       Confidentiality. Each party (“Receiving Party”) will hold in confidence all information obtained from the other party (“Disclosing Party”) in connection with this Agreement (“Confidential Information”) and use and disclose it only as expressly permitted under this Agreement, provided that these restrictions will not apply to any information that (i) was already known to the Receiving Party without obligation of confidentiality; (ii) is or becomes properly available to the Receiving Party (under conditions which do not restrict further disclosure) from a third party source who did not obtain such information directly or indirectly from the Disclosing Party; or (iii) is or becomes part of the public domain through no fault of the Receiving Party. The Reports and the terms of this Agreement constitute Confidential Information of Vertical IQ for all purposes under this Agreement.
5.2       Injunctive Relief. The parties acknowledge and agree that (a) any actual or threatened breach by a party of its duties and obligations under this Section 5 will cause the other party irreparable harm for which money damages would not constitute an adequate remedy; and (b) in the event of any such actual or threatened breach, the Disclosing Party will be entitled to seek injunctive relief to prevent or eliminate such breach.
5.3       No Customer Information. Unless otherwise specifically agreed in writing between the parties, Customer agrees that it shall not provide Vertical IQ with any information about its customers whatsoever, including without limitation names, addresses, identification numbers, bank account information, credit card information, or any other personally-identifiable information or other similar information.

6.            Support

6.1       Modification. Vertical IQ reserves the right to modify the Portal used to provide the Reports for purposes including but not limited to accommodating evolving technology and increased network demand, and providing enhanced Reports, provided that such modifications do not have a material adverse effect on the Reports provided hereunder. Without limiting the generality of the foregoing, to the extent any such change results in a change in the Internet Protocol addresses associated with the Portal, Vertical IQ shall reasonably assist Customer to ensure that Customer’s domain names are registered with the new Internet Protocol addresses in a timely manner.
6.2       Technical Support. Vertical IQ will provide Customer with technical support during Vertical IQ’s normal business hours via teleconference at no additional charge to Customer.
6.3       Updates and Improvements. Vertical IQ will provide Customer with ongoing maintenance, updates and improvements to the Reports that Vertical IQ provides to all of its customers at no additional charge to Customer, provided, however, that such updates and improvements do not constitute a new or separate Report, as determined in the sole discretion of Vertical IQ.
6.4       Additional Services; Training. Vertical IQ will provide Customer with such additional services and/or training for use of Vertical IQ’s Reports and Vertical IQ Technology as set forth on the Order Form.

 7.            Fees

7.1       Amounts. Customer agrees to pay to Vertical IQ the amounts set forth on the Order Form for the Initial Term and any Renewal Term. All payments shall be made by check sent to Vertical IQ at the address set forth in the preamble hereto.
7.2       Taxes. Customer shall pay all taxes (except for taxes based on Vertical IQ’s income) due on all payments received by Vertical IQ hereunder.
7.3       Invoices. Unless otherwise stated herein, all invoices shall be due and payable within thirty (30) days of the invoice date. For any invoice not paid within ninety (90) days, Vertical IQ may assess and Customer shall pay a service charge accruing thereafter until the date of payment of the lesser of (a) the rate of one and one-half percent (1.5%) per month or (b) the maximum lawful interest rate applicable.

8.            Term and Termination

8.1       Term. The Order Form sets forth the Term of this Agreement.
8.2       Termination. Either party may terminate this Agreement at any time (a) upon written notice to the other if the other party commits a material breach hereunder and fails to cure such breach within thirty (30) days following receipt of written notice thereof, or (b) immediately upon written notice to the other if the other commits any breach of Sections 2 (Rights and Ownership) or 5 (Confidentiality).
8.3       Effect of Termination. Sections 2.2, 3, 5, 7, 8.3, 9, 10, and 11.6 of this Agreement, and any other provisions which would reasonably be expected to survive, will survive any termination or expiration of this Agreement. Upon the expiration or termination of this Agreement pursuant to and in accordance with this Section 8, the following will apply unless otherwise agreed upon by the parties, Customer will immediately cease to have access to the Reports.

9.            Limited Warranty and INDEMNITY

9.1       Warranty. Vertical IQ warrants that, to Vertical IQ’s actual knowledge, the current versions of the Reports as made available to Customer by Vertical IQ, when used in accordance with this Agreement, do not infringe any third party’s intellectual property rights. If the Reports do not comply with this warranty, Customer’s sole remedy and Vertical IQ’s sole obligation will be to indemnify and hold Customer harmless from and against any third-party infringement claims, actions, investigations or liabilities (including damages, losses, costs, expenses, and reasonable attorneys’ fees) resulting specifically from the non-compliance (provided Customer permits Vertical IQ to defend Customer against any such claim), and to use commercially reasonable efforts to (A) procure for Customer the right to continue to use the Reports as set forth in this Agreement; (B) provide a reasonable workaround solution; or (C) replace or modify the Reports to make their use non-infringing without any material degradation of performance or, if alternatives (A)-(C) are not practicable, to refund a prorated portion of the fees paid by Customer for the affected Reports and terminate this Agreement as to the affected Reports upon written notice to Customer.
9.2       Customer Indemnity. The information contained in the Reports is intended for background preparation and general information only, and is not to be used for making lending decisions or other business purposes. Customer assumes sole responsibility for results obtained from the use of the Reports by Customer and conclusions drawn therefrom. Customer will defend, indemnify and hold Vertical IQ harmless from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses, attorneys’ fees, or disbursements of any kind or nature whatsoever that may be imposed upon, incurred by or asserted against Vertical IQ arising from (a) any violation of the terms of this Agreement; (b) results obtained by Customer’s use of the Reports and conclusions drawn therefrom and (c) Customer’s use of the Reports except to the extent resulting from any breach of this Agreement by Vertical IQ.
9.3       Procedure. In any claim described in this Section 9, the party seeking indemnification will: (a) give the indemnifying party prompt written notice of the claim; (b) permit the indemnifying party to control the defense and settlement of the claim (provided that the indemnifying party may not settle any claim without the indemnified party’s prior written consent, which consent may not be unreasonably withheld or delayed); and (c) cooperate with the indemnifying party (at the indemnifying party’s expense) in the defense and settlement of the claim.
9.4       Disclaimer and Release. EXCEPT AS SPECIFICALLY SET FORTH IN this AGREEMENT, VERTICAL IQ MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, REGARDING USE OF OR RELIANCE ON THE REPORTS AND THE REPORTS ARE PROVIDED “AS IS”. THE WARRANTIES OF VERTICAL IQ AND THE REMEDIES OF CUSTOMER SET FORTH IN THIS SECTION 9 ARE EXCLUSIVE AND IN SUBSTITUTION FOR, AND CUSTOMER HEREBY WAIVES, RELEASES AND DISCLAIMS ALL OTHER WARRANTIES, OBLIGATIONS AND LIABILITIES OF VERTICAL IQ AND ALL OTHER REMEDIES, RIGHTS AND CLAIMS OF CUSTOMER EXPRESS OR IMPLIED, ARISING BY LAW OR OTHERWISE, WITH RESPECT TO ANY DEFECT, DEFICIENCY, DATA ACCURACY, OR NONCONFORMITY IN THE REPORTS, VERTICAL IQ TECHNOLOGY, DOCUMENTATION OR ANYTHING ELSE FURNISHED UNDER THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO ANY: (A) IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE; (B) IMPLIED WARRANTY ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING, OR USAGE OF TRADE; (C) ANY OBLIGATION, LIABILITY, RIGHT, REMEDY OR CLAIM IN TORT, NOTWITHSTANDING ANY FAULT, NEGLIGENCE, STRICT LIABILITY OR PRODUCT LIABILITY OF VERTICAL IQ (WHETHER ACTIVE, PASSIVE OR IMPUTED); AND (D) CLAIM OF INFRINGEMENT (except as set forth specifically in section 9.1). VERTICAL IQ DOES NOT WARRANT THAT OPERATION OF OR USE OF THE REPORTS OR SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, OR ENTIRELY SECURE. CUSTOMER WILL BEAR ALL RISK ASSOCIATED WITH ANY USE OF THE INTERNET OR OTHER MEANS OF COMMUNICATION OR DATA TRANSMISSION BY OR ON BEHALF OF CUSTOMER UNDER this AGREEMENT, INCLUDING WITH RESPECT TO ANY VIRUS OR HARMFUL CODE RESULTING THEREFROM, AND VERTICAL IQ DISCLAIMS ALL LIABILITY AND RESPONSIBILITY IN CONNECTION WITH SUCH USE.

10.            Limitations

10.1     Excused Performance. Neither party will be liable for, or be considered to be in breach of or default under this Agreement on account of, any delay or failure to perform as required by this Agreement (other than monetary obligations) as a result of any cause or condition beyond such party’s reasonable control.
10.2     Limitation of Liability. VERTICAL IQ’S LIABILITY (WHETHER BASED ON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE WHETHER ACTIVE, PASSIVE OR IMPUTED) OR ANY OTHER THEORY) ARISING UNDER OR WITH REGARD TO THIS AGREEMENT OR THE REPORTS, VERTICAL IQ TECHNOLOGY, DOCUMENTATION, OR OTHER ITEMS FURNISHED HEREUNDER WILL IN NO EVENT EXCEED IN THE AGGREGATE THE TOTAL COMPENSATION PAID BY CUSTOMER TO VERTICAL IQ UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING ASSERTION OF THE APPLICABLE CLAIM.
10.3     Limitation of Damages. IN NO EVENT WILL VERTICAL IQ HAVE ANY OBLIGATION OR LIABILITY (WHETHER BASED ON CONTRACT, WARRANTY TORT (INCLUDING NEGLIGENCE WHETHER ACTIVE, PASSIVE OR IMPUTED) OR OTHER THEORY) FOR THE COST OF COVER OR FOR ANY INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES OR LIABILITIES (INCLUDING, BUT NOT LIMITED TO, ANY LOSS OF DATA, REVENUE, PROFIT OR BUSINESS) ARISING OUT OF OR PERTAINING TO THIS AGREEMENT OR THE REPORTS, DOCUMENTATION, VERTICAL IQ TECHNOLOGY OR OTHER ITEMS FURNISHED HEREUNDER, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

11.            General

11.1     Independent Contractors. Vertical IQ and Customer are independent contractors, not employees, agents, or franchisees of one another. Neither party will represent or hold itself out as an employee, agent, or franchisee of the other. Neither party will be entitled to, and neither party will attempt to, create or assume any obligation, express or implied, on behalf of the other party. This Agreement will not be interpreted or construed as creating or evidencing any association, joint venture, or partnership among the parties or as imposing any partnership or franchisor obligation or liability on any party. Further, this Agreement will not be interpreted or construed to create an exclusive relationship between the parties. Each party reserves the right to promote, market and solicit sales, licenses and other offerings of its products or Reports without restriction, either directly or through others, at any time during or after the termination or expiration of the Term.
11.2     Notices. Any notice or other communication under this Agreement given by either party to the other will be in writing and delivered either (a) in person or by first-class, registered, or certified U.S. mail or overnight delivery service, return receipt requested, postage prepaid to the address set forth in the Order Form, or (b) by electronic mail to info@verticaliq.com (for notice to Vertical IQ) or Customer’s email address set forth in the Order Form (for notice to Customer). Where a notice is sent under (a) above, notices will be deemed received twenty-four (24) hours after the same has been sent in accordance with this Section 11.2. Where a notice is sent under (b) above, notices will be deemed received upon delivery. Notices will be directed to the intended recipient at the address specified at the beginning of this Agreement or electronic mail address listed in this Section 11.2. Either party may from time to time change such addresses by giving the other party notice of such change in accordance with this paragraph.
11.3     Assignment. Customer will not assign or delegate this Agreement or its rights or obligations under this Agreement by operation of law or otherwise without the prior written consent of Vertical IQ. Any assignment by Customer, with or without Vertical IQ’s consent, will not relieve Customer of any of its obligations under this Agreement. Subject to the foregoing restriction on assignments by Customer, this Agreement will be fully binding upon, inure to the benefit of and be enforceable by the parties and their respective successors and assigns. Any assignment in violation of the foregoing restrictions shall be null and void.
11.4     Nonwaiver. The failure of either party to insist upon or enforce strict performance of any of the provisions of this Agreement or to exercise any rights or remedies under this Agreement will not be construed as a waiver or relinquishment to any extent of such party’s right to assert or rely upon any such provisions, rights, or remedies in that or any other instance; rather, the same will be and remain in full force and effect. Further, no waiver will be valid unless set forth in a written instrument signed by the party to be bound thereby.
11.5     Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be unenforceable, the enforceability of the remaining provisions of this Agreement shall not be affected and the unenforceable provision shall be deemed modified such that it is enforceable and accomplishes the intention of the parties to the fullest extent possible.
11.6     Applicable Law. This Agreement will be interpreted, construed and enforced in all respects in accordance with the laws of the State of North Carolina without reference to its choice of law principles to the contrary. Each party hereby consents to the jurisdiction and venue of the state and federal courts located in Wake County, North Carolina, with regard to any suit or claim arising under or by reason of this Agreement. Customer will not commence or prosecute any suit or claim to enforce this Agreement, or otherwise arising under or by reason of this Agreement, other than in such courts.
11.7     Entire Agreement. This Agreement, the Order Form(s), and the exhibits hereto constitute the entire agreement and understanding of the parties regarding the subject matter hereof and may not be modified except by a written instrument which expressly amends this Agreement signed by an authorized representative of each party. In the event of an inconsistency between these Terms and Conditions and the Order Form, the Order Form shall control.

EXHIBIT A

Minimum System Requirements
In order to access the Portal, Authorized Users must meet the following “Minimum System Requirements”:

1) Most recent release and one previous release of Microsoft Edge, Chrome, Firefox or Safari

2) Javascript

3) Most recent release and one previous for Android or IOS (for mobile app).