Terms and Conditions

VERTICAL IQ LICENSE TERMS AND CONDITIONS

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 265 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 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