NOW-CAST CORP.

SUBSCRIPTION TERMS AND CONDITIONS



Last Updated: September 9, 2017

These Subscription Terms and Conditions (the “Terms and Conditions”) and each order form entered into by the parties hereto (each, an “Order Form” and collectively with these Terms and Conditions, the “Agreement”) is entered into by and between Now-Cast Corp., a Delaware corporation, with an office at 888c Eighth Avenue, #333, New York, NY 10019 (“Now-Cast” or the “Company”) and the subscriber (the “Licensee” or “You”), as identified in the Order Form.


By clicking “I AGREE”, on the Company’s website You (1) acknowledge that You have read these Terms of Use and Privacy Policy, (2) agree to be legally bound by these Terms and Conditions in their entirety and (3) upon submission to Now-Cast of any Order Form, agree that such Order Form shall be incorporated into these Terms and Conditions and be legally binding upon You. The “Effective Date” of this Agreement shall be the date on which You click “I AGREE.”


This Agreement governs Your use of Now-Cast’s proprietary products and services, including, but not limited to, Now-Cast’s proprietary technologies and algorithms (collectively, the “Services”) identified in the applicable Order Form(s) and the resulting information that Now-Cast transmits to You pursuant to the applicable Order Form(s) (the “Now-Cast Information”).


Now-Cast may, but is under no obligation to, provide use of the Services and Now-Cast Information to You at no charge or at a discounted rate for limited time periods (any such period being referred to as a “Trial Period”). These Terms and Conditions govern Your use of the Services and Now-Cast Information during any Trial Period and, notwithstanding anything contained herein to the contrary, during any Trial Period You will be deemed an Authorized User (as defined below). You acknowledge and agree that: (1) Now-Cast has the sole authority to determine the length of any Trial Period and is under no obligation to continue any Trial Period for any length of time, (2) Now-Cast has the sole discretion to determine which, if any, Services and/or Now-Cast Information it will provide You during a Trial Period, (3) any Trial Period provided to You shall not obligate Now-Cast to provide the same, or any, Trial Period to any other party and (4) You will not use the Services or Now-Cast Information provided during a Trial Period as business or securities trading advice. At the end of any Trial Period, Now-Cast will prompt You to submit an Order Form and to make appropriate payments. If You elect not to submit an Order Form and/or payment, these Terms and Conditions will terminate and Your access to some or all Services and Now-Cast Information will cease until You do so.


This Agreement incorporates by reference the Terms of Use and Privacy Policy of the Now-Cast website (collectively the “Web Site Terms”), as applicable. To the extent the provisions of this Agreement conflict with the provisions of the Web Site Terms, the provisions of this Agreement shall govern.


In consideration of the mutual promises and covenants hereinafter contained, the parties hereby agree as follows:


1. LICENSE.


A. Grant of License. Subject to the terms of this Agreement, Now-Cast grants to Licensee a non-exclusive, non-transferable, limited license to permit Authorized Users (as defined below) to access, solely for Licensee’s internal use, the Services and the Now-Cast Information. “Authorized User” means an employee of Licensee or a contractor acting under Licensee’s direction in the ordinary course of Licensee’s business and subject to the restrictions set forth in this Agreement as well as an appropriate confidentiality undertaking no less restrictive than the provisions of Section 1.B hereof, in each case who is identified in the applicable Order Form and is authorized by Now-Cast to access the Now-Cast Information. Licensee is responsible for ensuring compliance by its Authorized Users with the terms and conditions of this Agreement and the applicable confidentiality undertaking.

B. Use of Now-Cast Information. All access to and use of the Services and the Now-Cast Information subscribed to or otherwise allowed hereunder shall be subject to the restrictions stated in this Agreement. Any capitalized terms used and not defined in these Terms and Conditions herein shall have the meaning set forth in the applicable Order Form. Only those Authorized Users who are expressly named in the applicable Order Form shall have access to or use of the Services and the Now-Cast Information described in that same Order Form. Licensee shall use the Services and the Now-Cast Information only for Licensee’s own internal business, and Licensee shall not provide access to the Services and/or the Now-Cast Information or any portion thereof to any person (either within or outside Licensee’s company), firm or entity, other than as authorized in this Agreement or the applicable Order Form, including without limitation, to any subsidiary, parent or other entity that is affiliated with Licensee and not specifically identified in the applicable Order Form.

C. Restrictions on Use. Licensee shall use and represent the Now-Cast Information correctly and accurately, without any mistakes or distortions. Licensee shall not modify, reverse engineer, disassemble or decompile the Services. Licensee shall not create any derivative work from the Services or the Now-Cast Information and Licensee shall not publish, reproduce, and/or otherwise distribute, externally or internally, the Services or Now-Cast Information or any component or portion of either in any manner (including, but not limited to, via email or as part of any web site) without an additional license, it being understood that any such license is subject to the payment of additional fees to Now-Cast. Licensee shall take all precautions that are reasonably necessary to: (i) prevent access to the Services and the Now-Cast Information or any component thereof by any individual or entity that is not an Authorized User; (ii) prevent any unauthorized distribution or redistribution of the Services and the Now-Cast Information, either internally or externally; and (iii) protect the proprietary rights of Now-Cast, its affiliates and their Suppliers in the Services and the Now-Cast Information. Now-Cast reserves the right to terminate Licensee’s access to the Services and the Now-Cast Information immediately upon Licensee’s violation of any of the terms or conditions set forth in this Agreement.

D. Delivery/Access. Licensee may access the Now-Cast Information by the methods stated in the applicable Order Form or as provided in any Trial Period (such methods subject to revision by Now-Cast on notice to Licensee), and only in accordance with the limitations and restrictions set forth in this Agreement. Now-Cast makes no guarantees as to the timeliness of the Now-Cast Information and such data may be presented with delays. Delivery time options, if any, shall be made available pursuant to additional Order Forms, as set forth in Section 1(E). below. Licensee shall hold and cause all of its Authorized Users to hold any passwords, user IDs and API tokens issued by Now-Cast or by Licensee in connection with access to the Services and/or the Now-Cast Information in strict confidence, and Licensee shall instruct all Authorized Users of their obligations in this regard. Licensee shall not permit the sharing of user IDs, passwords, or API tokens or simultaneous access to the Now-Cast Information via the same password, user ID and/or API token, or otherwise. Now-Cast shall not be liable or otherwise responsible for any of the following: (i) the procurement, installation or maintenance of any equipment on which the Services or the Now-Cast Information are accessed by Licensee; (ii) any communications connection by which the Now-Cast Information is transmitted; (iii) any communication delays or interruptions of the Services or the Now-Cast Information; (iv) the transmission to Licensee of the Now-Cast Information; or (v) any fees payable by Licensee for any communication lines, to any third-party network operator or to any other person, firm or entity. For the avoidance of doubt, this Agreement does not confer on Licensee any rights to use the Now-Cast Information or any data contained therein as the basis for, or as a component of, any indices or any financial instruments whatsoever (including, without limitation, swaps, options, forward contracts, notes, warrants, exchange-traded funds or futures contracts) and that a separate express license from Now-Cast is required for any such purposes.

E. Additional Order Forms. The parties may add additional Services or Now-Cast Information to this Agreement in the future under a new Order Form signed by authorized representatives of both parties. Each Order Form that the parties sign shall be a separate agreement, which will incorporate therein these Terms and Conditions, except for any provisions in these Terms and Conditions that such Order Form specifically excludes or modifies. In the event of any conflict between the terms of these Terms and Conditions and the terms of any Order Form, the terms of these Terms and Conditions shall prevail unless the Order Form expressly states that it governs with respect to any provision, in which case the Order Form shall govern with respect to such provision. Except as may be specifically provided for in an Order Form, any changes contained in any Order Form shall not modify these Terms and Conditions with respect to any other Order Form.

2. TERM/TERMINATION.


A. Term. This Agreement shall commence on the Effective Date and shall continue in effect for as long as any Order Form entered into pursuant to this Agreement remains in effect. The initial term shall be as set forth on each Order Form (“Initial Term”) as it applies to the Services and the Now-Cast Information set forth therein and subscribed to thereunder.

B. Breach. In the event of a breach by either party of any material term or provision of these Terms and Conditions or any Order Form, the non-breaching party may terminate these Terms and Conditions and the applicable Order Form by giving the breaching party thirty (30) days’ prior written notice thereof; provided, however, that such termination shall not take effect if the party in breach cures or corrects the breach within such notice period. Notwithstanding the foregoing, in the event of a breach of any material term or provision of these Terms and Conditions or any Order Form in relation to an unauthorized distribution of Now-Cast Information on the part of Licensee or unauthorized access to the Services caused by Licensee, Now-Cast shall have the right to immediately terminate this Agreement in its entirety (including all Order Forms).

C. Bankruptcy/Insolvency. Either party may terminate any or all Order Forms upon written notice to the other if such other party is adjudicated as bankrupt or insolvent or if a petition in bankruptcy or winding up is filed by or against such other party or if such other party makes an assignment for the benefit of creditors or an arrangement pursuant to any bankruptcy or insolvency laws.

D. Third-Party Information. Licensee acknowledges that the Now-Cast Information may contain information that is provided to Now-Cast by third-party suppliers (the “Suppliers”). Licensee agrees to be bound by and to comply with any terms of use and restrictions that any such Suppliers enforce with respect to the products, services or other information they provide to Now-Cast. In addition, Licensee’s right to receive and use those portions of the Now-Cast Information pursuant to licenses or access granted to Now-Cast by any Suppliers is subject to automatic termination or discontinuation without liability on the part of Now-Cast if such licenses or access are terminated or discontinued. 

E. Effect of Termination. Upon any termination of any Order Form or portion thereof by either party, Licensee shall immediately cease all use of the terminated Services and Now-Cast Information or portion thereof provided under that Order Form and Licensee shall expunge the relevant Now-Cast Information and any portion thereof, including any copies thereof, from all of Licensee’s electronic or other systems and records in Licensee’s possession or control. At Now-Cast’s request, a senior officer of Licensee shall certify to Now-Cast in writing that Licensee has fully complied with this requirement.

F. Termination of Order Forms. Notwithstanding anything to the contrary set forth herein, Now-Cast may in its sole discretion, discontinue offering or providing the Services and the Now-Cast Information or any portion thereof, and may terminate the portion of the applicable Order Form that relates to such discontinued Services or Now-Cast Information. In such event Now-Cast shall have no liability other than to give Licensee a pro rata credit or refund for any unearned subscription fees that have been prepaid for any unused period. Upon termination of all of the Order Forms, this Agreement shall automatically terminate.

3. FEES AND CHARGES.


A. General. Licensee shall pre-pay all fees and charges stated in the Order Forms attached hereto in United States Dollars (unless specified otherwise in the Order Form(s)) (including any software license, maintenance and installation fees) plus all applicable taxes, including, but not limited to, value-added, sales, use and similar taxes. Now-Cast may increase its fees and charges for any Services and the Now-Cast Information at any time after the Initial Term by providing prior written notice to Licensee.

B. Changes in Authorized Users. Licensee may request Now-Cast to increase or decrease the number of Authorized Users for or by which the Now-Cast Information is accessed, used, installed or displayed, subject to the following: (i) any increases to the number of Authorized Users or the addition of any new Services that are agreed to by Now-Cast shall be subject to upward adjustments on a pro-rated prospective basis and Now-Cast shall adjust such fees to reflect Now-Cast’s rates in effect as of the date of the increase; and (ii) Licensee may decrease the number of Authorized Users or terminate any existing Services by giving Now-Cast written notice at least thirty (30) days before the next renewal date of the applicable Order Form, such decrease or termination of the Services and the corresponding adjustment of fees to take effect on the next renewal date. 

C.  Payment. Licensee agrees to pay the applicable subscription fee in advance for the Services and the Now-Cast Information. Subscriptions will be charged on a monthly basis (the “Subscription Period”). If a subscription begins prior to the first day of the month, the subscription charge for the first partial month shall be prorated. The Subscription Period shall automatically renew on the first day of each month unless terminated in accordance with this Agreement. However, if payment is not received prior to the first day of the Subscription Period, Now-Cast may suspend Licensee’s access to the Services and the Now-Cast Information until payment is received. Now-Cast, at its sole discretion, may offer additional prepayment options. 


4. DISCLAIMER OF WARRANTIES AND LIMITATION OF LIABILITY. NOW-CAST, ITS AFFILIATES AND THEIR SUPPLIERS DISCLAIM ANY AND ALL REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF MERCHANTABILITY AND/OR FITNESS FOR A PARTICULAR PURPOSE OR USE AS TO THE SERVICES AND THE NOW-CAST INFORMATION, INCLUDING, BUT NOT LIMITED TO, THE SERVICE(S), INFORMATION, DATA, SOFTWARE AND/OR PRODUCTS CONTAINED THEREIN, AND/OR THE RESULTS OBTAINED BY THEIR USE OR AS TO THE PERFORMANCE THEREOF. A REFERENCE TO A PARTICULAR INVESTMENT, SECURITY, RATING OR ANY OBSERVATION CONCERNING A SECURITY OR INVESTMENT PROVIDED IN THE NOW-CAST INFORMATION IS NOT A RECOMMENDATION TO BUY, SELL OR HOLD SUCH INVESTMENT OR SECURITY OR MAKE ANY OTHER INVESTMENT DECISIONS. NEITHER NOW-CAST, NOR ITS AFFILIATES NOR THEIR SUPPLIERS GUARANTEE THE ADEQUACY, ACCURACY, TIMELINESS OR COMPLETENESS OF THE NOW-CAST INFORMATION OR ANY COMPONENT THEREOF OR ANY COMMUNICATIONS, INCLUDING BUT NOT LIMITED TO ORAL OR WRITTEN COMMUNICATIONS (WHETHER IN ELECTRONIC OR OTHER FORMAT), WITH RESPECT THERETO. ACCORDINGLY, USERS OF THE INFORMATION CONTAINED IN ANY OF THE NOW-CAST INFORMATION SHOULD NOT RELY ON ANY RATING OR OTHER OPINION CONTAINED THEREIN IN MAKING ANY INVESTMENT OR OTHER DECISION. NOW-CAST, ITS AFFILIATES AND THEIR SUPPLIERS SHALL NOT BE SUBJECT TO ANY DAMAGES OR LIABILITY FOR ANY ERRORS, OMISSIONS OR DELAYS IN THE NOW-CAST INFORMATION. THE SERVICES, THE NOW-CAST INFORMATION, AND ALL COMPONENTS THEREOF ARE PROVIDED ON AN “AS IS” “AS AVAILABLE” BASIS AND LICENSEE’S USE OF THE NOW-CAST INFORMATION IS AT LICENSEE’S OWN RISK.


NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, IN NO EVENT WHATSOEVER SHALL NOW-CAST, ITS AFFILIATES OR THEIR SUPPLIERS BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS, TRADING LOSSES, OR LOST TIME OR GOODWILL, EVEN IF THEY HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE. NOW-CAST, ITS AFFILIATES AND THEIR SUPPLIERS SHALL NOT BE LIABLE FOR ANY CLAIMS AGAINST LICENSEE BY THIRD PARTIES. IN NO EVENT SHALL THE MAXIMUM CUMULATIVE LIABILITY OF NOW-CAST, ITS AFFILIATES, AND THEIR SUPPLIERS IN CONNECTION WITH THE NOW-CAST INFORMATION AND/OR THIS AGREEMENT, REGARDLESS OF THE FORM(S) OF ACTION, WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, EXCEED THE MONTHLY OR PRORATA FEES PAID BY LICENSEE TO NOW-CAST UNDER THE APPLICABLE ORDER FORM FOR THE NOW-CAST INFORMATION IN QUESTION IN THE MONTH SUCH LIABILITY IS ALLEGED TO HAVE ARISEN. NOTHING IN THIS AGREEMENT SEEKS TO LIMIT OR RESTRICT LIABILITY FOR DEATH OR PERSONAL INJURY RESULTING FROM NEGLIGENCE.


NO ACTION, REGARDLESS OF FORM, ARISING FROM OR PERTAINING TO THIS AGREEMENT, ANY ORDER FORM OR THE NOW-CAST INFORMATION MAY BE BROUGHT BY LICENSEE MORE THAN ONE (1) YEAR AFTER SUCH ACTION HAS ACCRUED. YOU AGREE THAT ANY PROCEEDINGS TO RESOLVE OR LITIGATE ANY DISPUTE UNDER THIS AGREEMENT WILL BE CONDUCTED SOLELY ON AN INDIVIDUAL BASIS, AND THAT YOU WILL NOT SEEK TO HAVE ANY DISPUTE HEARD AS A CLASS ACTION, A REPRESENTATIVE ACTION, A COLLECTIVE ACTION, A PRIVATE ATTORNEY-GENERAL ACTION, OR IN ANY PROCEEDING IN WHICH YOU ACT OR PROPOSE TO ACT IN A REPRESENTATIVE CAPACITY. YOU AGREE THAT NO PROCEEDING WILL BE JOINED, CONSOLIDATED, OR COMBINED WITH ANOTHER PROCEEDING WITHOUT THE PRIOR WRITTEN CONSENT OF YOU, THE COMPANY, AND ALL PARTIES TO ANY SUCH PROCEEDING.


5. AUDIT/INSPECTION. Except as otherwise provided in an Order Form, Licensee shall at all times during the term of this Agreement maintain full and accurate records (including applicable data in electronic format) of its Authorized Users of the Now-Cast Information for the most recent thirty-six (36) months. During the term of this Agreement and for a twenty-four (24) month period thereafter, Now-Cast shall have the right, during normal business hours and upon reasonable notice to Licensee, to (i) audit and review relevant portions of those records; and (ii) audit the manner of access to and usage of the Now-Cast Information, in each case to confirm that fees and charges have been accurately determined and that restrictions on use and access have been observed. Now-Cast’s failure to conduct an audit pursuant to this Section 5 shall not relieve Licensee from its responsibilities to comply fully with the terms and conditions of this Agreement and all Order Forms. Now-Cast shall bear the costs of any such audit and/or inspection, unless such audit and/or inspection reveals an underpayment to Now-Cast of five percent (5%) or more; in such case, Licensee shall reimburse Now-Cast for its costs and expenses in conducting such audit and/or inspection. To the extent that the Now-Cast Information is being delivered to Licensee via email, Now-Cast may incorporate tracking mechanisms to enable Now-Cast to determine whether restrictions on use are being violated. Such tracking mechanisms shall allow Now-Cast to collect information about whether the Now-Cast Information distributed by Now-Cast to Authorized Users via e-mail is forwarded to other e-mail addresses and to determine the IP address or other information regarding such other destination e-mail addresses. Now-Cast reserves the right to use such IP address or other e-mail address information to enforce Now-Cast’s rights in the event it believes unauthorized redistribution of the Now-Cast Information has occurred. Licensee agrees to permit Now-Cast or its representatives to periodically inspect, at Licensee’s location(s), during reasonable hours and at reasonable intervals, the terminals, workstations and/or any network on or by which any portion of the Now-Cast Information is accessed for purposes of establishing compliance with the terms of this Agreement.

6. NOW-CAST PROPRIETARY RIGHTS / INJUNCTIVE RELIEF/LIQUIDATED DAMAGES.

A. All proprietary rights (including, but not limited to, copyrights, trade secrets, database rights and trademark rights) in the Services and the Now-Cast Information and Services, including, but not limited to, all information, data, ratings and ratings symbology, software, products and documentation contained or included therein, are and shall remain the sole and exclusive property of Now-Cast, its affiliates and their Suppliers, as applicable. The Now-Cast Information is compiled, prepared, revised, selected and arranged by Now-Cast, the application of methods and standards of judgment developed and applied through the expenditure of substantial time, effort and money, and the Now-Cast Information constitutes the valuable intellectual property of Now-Cast, its affiliates and their Suppliers. Licensee shall protect the copyrights, trade secrets, database rights, trademarks and other proprietary rights of Now-Cast, its affiliates and their Suppliers in the Now-Cast Information, including, but not limited to, any contractual, statutory, or common-law rights, during and after the term of this Agreement or of any Order Form. Licensee shall honor and comply with all reasonable requests made by Now-Cast to protect the rights of Now-Cast, its affiliates, and their Suppliers in the Services and the Now-Cast Information and Services.

B. Copying of, use of, access to or distribution of the Services and the Now-Cast Information or any information, data or software contained therein in breach of this Agreement shall cause Now-Cast, its affiliates and/or their Suppliers irreparable injury that cannot be adequately compensated for by means of monetary damages. Now-Cast, its affiliates and their Suppliers may enforce any breach of this Agreement by Licensee by means of equitable relief (including, but not limited to, temporary, preliminary and permanent injunctive relief) in addition to any and all other rights and remedies that may be available, without the posting of a bond. 

C. In addition to the foregoing, Licensee acknowledges that damages suffered by the Company from access to the Services or the Now-Cast Information by an unauthorized third party as a result of disclosure of Licensee’s passwords or otherwise would be speculative and difficult to quantify. Accordingly, as a material inducement to Now-Cast to enter into this Agreement with Licensee, Licensee agrees that in the event that any disclosure of a password or API token results in access to the Service by an unauthorized third party or in the event Licensee makes an unauthorized disclosure of Now-Cast Information to any third party, regardless of whether such disclosure is intentional, negligent or inadvertent, Now-Cast shall be entitled to terminate the Agreement and Licensee shall forfeit any and all fees and charges paid to Now-Cast and shall have no right to any refund of such fees or charges regardless of the duration of the remainder of the Term at the time of termination pursuant to this Section 6(C).

D. In the event Now-Cast has reasonable grounds to believe Licensee is violating the terms and/or conditions set forth in this Agreement, Now-Cast shall have the right to suspend delivery of, or Licensee’s access to, the Services and/or the Now-Cast Information.

E. If Now-Cast or Licensee wishes to use promotional material referring to the other party, its services or marks, the party desiring to use such material shall, before using it, submit such material to the other party for review and written approval, which review and written approval shall not be unreasonably delayed or withheld.

F. Licensee agrees that any third-party Supplier of any portion of the Now-Cast Information may enforce its rights against Licensee as an intended third-party beneficiary of this Agreement, even though such Supplier is not a party to this Agreement.

G. Licensee shall indemnify and hold harmless Now-Cast, its affiliates, their Suppliers and any of their directors, officers, shareholders, members, managers, employees, agents, successors and assigns, from and against any and all costs, claims, damages, expenses and liabilities (including, but not limited to, reasonable legal expenses and court costs) arising from any breach of its obligations, or of the limitations or restrictions set forth in this Agreement and the related Order Form(s).

7. ASSIGNMENT. Licensee may not assign or transfer (including, but not limited to, by operation of law) this Agreement without the prior written consent of Now-Cast, and any attempted assignment or transfer shall be null and void and shall constitute a material breach of this Agreement. In addition to and notwithstanding the foregoing, if the ownership of Licensee at any time shall pass out of the majority control of its owners (as of the Effective Date) by sale of stock or assets, merger or otherwise, Licensee shall give Now-Cast written notice not fewer than thirty (30) days before the effective date of any such change of control. Now-Cast shall have the right to terminate any or all affected Order Forms by providing written notice to Licensee within thirty (30) days following receipt of such notice of change of control. If Now-Cast does not elect to terminate all or any Order Forms, Licensee shall cause the new owners of Licensee to assume all of Licensee’s obligations under this Agreement and shall be responsible for adhering to all of the terms of this Agreement.

8. MISCELLANEOUS. This Agreement represents the entire agreement between the parties hereto in respect of its subject matter and supersedes all previous agreements, representations, discussions, understandings and writings between the parties with regard to its subject matter. There are no oral or written collateral representations, agreements or understandings. In the event of any conflicts between the English language version of this Agreement and any translations thereof, the English language version shall prevail. The provisions and terms of any purchase order or other agreement shall be of no effect and shall not in any way extend or amend the terms and conditions set forth in this Agreement unless expressly accepted in writing and signed by an authorized representative of Now-Cast. Now-Cast shall have no responsibility or liability for any delays or interruptions in or failures of its performance under this Agreement beyond its control, including, but not limited to, acts of nature, acts of governmental authority, fire, acts of war, terrorism, flood, strikes, severe or adverse weather conditions, power failures or communications line or network failures. No amendment of this Agreement shall be binding upon the parties unless in writing and signed by authorized representatives of Now-Cast and Licensee. No waiver of any term or condition of this Agreement shall be effective unless agreed to in writing by the party making the waiver. If any term or condition hereof is found by a court or administrative agency of competent jurisdiction to be unenforceable, the remaining terms and conditions hereof shall remain in full force and effect and shall be enforceable to the maximum extent permitted by law and any such unenforceable terms and conditions shall be enforced to the maximum extent allowed by law. No action taken by either party shall constitute or be deemed to constitute that such party is the agent of the other, or imply that the parties intend to constitute a partnership, joint venture, or other form of association in which either party may be liable for the acts or omissions of the other. This Agreement and all claims arising out of or relating to this Agreement shall be interpreted, construed and enforced in accordance with the applicable federal laws of the United States and the laws of the State of New York without giving effect to the conflicts of laws provisions thereof. The parties hereto and their successors and assigns consent to the exclusive jurisdiction of any courts located in the State of New York, County of New York, for the resolution of any disputes arising from or related to this Agreement and waive any claim of inconvenient forum. Sections 1.B, 1.C, 1.D, 2.D, 2.E, 2.F, 3, 4, 5, 6, 8, 9, 10 and 11 shall survive any termination of this Agreement.

9. COMPLIANCE WITH LAW. Licensee shall comply with all federal, state and local exchange and other laws, rules, and regulations now or hereafter in effect. Licensee agrees that it will not engage in, and represents that it is not currently engaged in, the operation of any unlawful transactions or business and that it will not use or permit anyone to use the Now-Cast Information for any unlawful purpose.

10. GOVERNING LAW  This Agreement and any action related thereto will be governed, controlled, interpreted, and defined by and under the laws of the State of New York, without giving effect to any conflicts of laws principles that require the application of the law of a different state. Any disputes under this Agreement may be brought in the state courts and the Federal courts for the county in which Company’s principal place of business is located, and the parties hereby consent to the personal jurisdiction and exclusive venue of these courts.

11. NOTICES. All notices and other communications required to be given under this Agreement shall be in writing and shall be deemed to have been duly delivered if delivered by email to Now-Cast at notices@now-cast.com and to Licensee at such address as identified in the Order Form or provided to Now-Cast in relation to a Trial Period.

12. PUBLICITY. You hereby consent to Now-Cast’s use of Licensee’s name and logo in Now-Cast’s promotional materials including, but not limited to, its client lists, brochures, white papers and electronic media.  Subject to Your approval, which shall not be unreasonably withheld, Now-Cast may develop and publish testimonials and/or case studies highlighting the Services provided to You by Now-Cast.

13. COMMENCEMENT OF NOW-CAST INFORMATION. Commencement of delivery of the Now-Cast Information before Now-Cast has accepted any applicable Order Form does not constitute acceptance by Now-Cast of any changes made by Licensee to the terms and conditions of this Agreement, and no such changes are binding on Now-Cast until an authorized officer of Now-Cast has agreed to them in a signed writing.