PLEASE READ CAREFULLY THE TERMS AND CONDITIONS OF THIS DATA SHARING AGREEMENT (“AGREEMENT”) BEFORE USE OF ARBITRATION FORUMS, INC.’S (“AF”) AUTOMATED REPORTING PRODUCTS OR SERVICES (COLLECTIVELY THE “PRODUCT” OR “PRODUCTS”) LICENSED HEREUNDER (NOT SOLD). BY CLICKING “I AGREE” OR BY ACCESSING ANY PRODUCT, RECEIVING REPORTS, OR RECEIVING REPORTING DATA (DEFINED BELOW) FROM AF, YOU ARE REPRESENTING THAT YOU HAVE THE AUTHORITY TO BIND YOUR COMPANY AND ARE ACCEPTING AND AGREEING TO THE TERMS AND CONDITIONS OF THIS AGREEMENT ON BEHALF OF YOUR COMPANY. IF YOUR COMPANY IS NOT WILLING TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT, THEN DO NOT USE AF’S AUTOMATED REPORTING PRODUCTS AND CLICK “BACK TO AGREEMENTS.”
DO NOT SELECT “I AGREE” OR USE ANY AF PRODUCT UNTIL YOU HAVE CAREFULLY READ, UNDERSTOOD, AND AGREED TO THE TERMS AND CONDITIONS OF THIS AGREEMENT. FURTHERMORE, YOU HEREBY WAIVE ANY RIGHTS OR REQUIREMENTS UNDER ANY LAWS OR REGULATIONS IN ANY JURISDICTION WHICH REQUIRES AN ORIGINAL (NON-ELECTRONIC) SIGNATURE OR DELIVERY OR RETENTION OF NON-ELECTRONIC RECORDS, TO THE EXTENT PERMITTED UNDER APPLICABLE LAW.
THIS IS A LEGAL AGREEMENT BETWEEN YOU, EITHER AN INDIVIDUAL OR A SINGLE ENTITY (TOGETHER WITH ITS RESPECTIVE AFFILIATES, SUBSIDIARIES, SUCCESSORS, ASSIGNS, OFFICERS, DIRECTORS, AND EMPLOYEES AND AGENTS) (“YOU”, “YOUR”, OR “RECIPIENT”) AND ARBITRATION FORUMS, INC. (“PROVIDER” OR “AF”) REGARDING AF’S AUTOMATED REPORTING PRODUCTS. YOU ASSUME ALL RESPONSIBILITY FOR THE SELECTION OF THE AF REPORTING FEATURES TO ACHIEVE YOUR INTENDED RESULTS AND FOR THE USE AND RESULTS OBTAINED FROM ANY AF REPORTING PRODUCT USED OR ACCESSED BY YOU.
WHICH ARE FULLY INCORPORATED INTO THIS AGREEMENT AS IF EACH TERM WAS SPECIFICALLY WRITTEN BELOW.
1. DEFINITION OF TERMS.
Unless otherwise specifically defined, and in addition to other specifically defined terms, the following terms will have the meanings set forth below:
1.1. “Authorized User
” means persons authorized by Recipient to use and access AF Data for the benefit of Recipient and its affiliates in accordance with the terms and conditions of this Agreement including, without limitation, Recipient, its affiliates, or their respective employees and authorized agents.
1.2. “Confidential Information
” means AF Data and any other information transmitted to Recipient pursuant to this Agreement, except for information that: (a) is or becomes public knowledge through no fault of the receiving Party; (b) was known to the receiving Party before receipt from the disclosing Party, as evidenced by contemporaneous written documentation; or (c) was lawfully obtained by it on a non-confidential basis from a third-party under no obligation of confidentiality.
” means a signatory to subrogation arbitration or subrogation agreements administered by AF.
1.4. “AF Data
” means all data output to the Recipient or Recipient’s Authorized Users.
1.5. “Applicable Law
” means all Applicable Laws (including those arising under common law), statutes, cases, ordinances, constitutions, regulations, treaties, rules, codes, and other pronouncements having the effect of law of the United States.
1.6. “Personal Information
” means any and all information that identifies, relates to, describes, is capable of being associated with, or could reasonably be linked, directly or indirectly, with a particular consumer, household, or device. Personal Information is not included in Reporting Data (defined below).
1.7. “Effective Date
” is the date that this Agreement is executed by Recipient, pursuant to Section 8.6.
2. DATA USE AND OWNERSHIP
2.1. Use of Data.
AF grants to Recipient and its Authorized Users, for the Term, a non-sublicensable, non-transferable, non-exclusive, limited license to receive, store, process, reproduce, use, transmit, display, modify, and create derivative works of AF Data, solely for internal business purposes, expressly limited to receipt of reporting related to Recipient’s and Recipient’s affiliates’ claims against Members (“Reporting Data
”). Recipient may not use AF Data for any other purpose, including, but not limited to: outsourcing for others or as a part of a service bureau business; aggregation services or otherwise for the benefit of third parties; developing, improving, or promoting competing products or services; blockchain or other system of account or ledger; or research purposes. The limited license granted hereunder does not extend to or allow Recipient’s distribution of AF Data to any other entity, including other Members, third-parties, or the public without AF’s express written permission.
2.2. No Fee.
Provider will not charge to Recipient a fee for receipt of AF Data provided under this Agreement, unless otherwise agreed to between the Parties in writing, it being understood that (a) Provider is providing AF Data in reliance upon Recipient’s agreement to adhere strictly to the restrictions on use and disclosure set forth herein; (b) Recipient is a Member; or (c) Recipient is authorized to receive Reporting Data on behalf of a Member.
2.3. No Transfer of Ownership.
Nothing contained herein shall be deemed to convey to Recipient any title or ownership interest in AF Data. Recipient acknowledges and agrees that, but for this Agreement, Recipient would have no right to receive or use AF Data in the manner provided under this Agreement. Receipt of AF Data is subject to the restrictions on use and disclosure, as well as the affirmative security obligations set forth in this Agreement.
2.4. No Infringing Activity.
Recipient shall not take any action or use AF Data in any manner that Recipient knows, or reasonably should know, adversely affects and/or infringes upon Provider’s copyright, intellectual property rights or other rights in AF Data, including, without limitation, Provider’s patent, copyright, trademark, service mark, and trade secret rights.
2.5. Restricted Use.
Recipient shall not, nor allow others to: (i) adapt, alter, modify, decompile, translate, disassemble, or reverse engineer AF Data or any component thereof, including without limitation, the source code and any other underlying ideas or algorithms contained in AF Data; (ii) disclose, divulge, or otherwise make AF Data available to any unauthorized third-party, or any component thereof; or (iii) use or copy AF Data (except as authorized by this Agreement).
3. INFORMATION SECURITY.
3.1 Recipient shall implement and maintain commercially reasonable administrative, physical, and technical measures (including disaster recovery procedures) and employ industry best practices to secure AF Data against accidental or unauthorized loss, access, use, or disclosure. Recipient shall promptly notify AF in writing (no less than within 48 hours) of any unauthorized, negligent, or inadvertent disclosure of AF Data.
3.2. Recipient agrees to defend, indemnify, and hold harmless at its own expense AF, its officers, employees, directors, agents, attorneys in fact, and authorized representatives from and against all claims, fines, expenses, losses, liabilities, costs and expenses, including third-party claims, reasonable attorneys’ fees, consultants’ fees, and court costs (collectively, “Claims
”), to the extent that such Claims arise from or may be in any way attributable to any unauthorized disclosure or use of AF Data as a result of Recipient’s breach of this Agreement.
4. TERM AND TERMINATION.
4.1. This Agreement is entered into for an initial term of one year beginning on the Effective Date (“Term
”). Thirty (30) days before the end of the first Term and each subsequent Term, the term of this Agreement will be automatically extended by one additional Term unless written notice of the intent not to extend the then existing Term is delivered by one Party to the other.
4.2. This Agreement may be terminated by either Party upon thirty (30) days written notice. AF may terminate this Agreement without notice in the event Recipient: (i) ceases to be a Member; (ii) is in violation of this Agreement; or (iii) in AF’s sole discretion, sharing of data with Recipient presents a security risk to AF (or other Members).
4.5. Upon the earlier termination or expiration of this Agreement for any reason, the rights granted to AF Data, including all licenses granted in Section 2, shall terminate.
4.6. Upon the earlier termination or expiration of this Agreement, Recipient shall promptly return to AF (or upon request, destroy) any AF Data, and any and all other data, documents and any and all materials and information in any form pertaining to AF Data in Recipient’s possession as a result of this Agreement. Notwithstanding the foregoing, either Party may retain copies as required for legal archival purposes and as stored in its automatic backup systems.
5.1. Injunctive Relief.
Recipient agrees that the provisions of this Agreement may be specifically enforced by AF, and AF is entitled to seek other appropriate equitable relief (preliminary and permanent), including an injunction, without the need to show irreparable injury or the inadequacy of legal remedies, and without bond.
5.2. Attorneys’ Fees.
In any action or proceeding to enforce rights under this Agreement, the prevailing Party will be entitled to recover costs and attorneys’ fees.
5.3. The provisions of Section 5 are in addition to any other rights and remedies provided for under the terms of this Agreement, or at law and in equity.
6. WARRANTIES & DISCLAIMER.
AF represents and warrants that it has legal title, all rights of ownership and/or license to provide AF Data to Recipient pursuant to this Agreement and that AF has full power and authority to license the limited rights granted by this Agreement. AF represents and warrants that: (i) it has the power and authority to enter into this Agreement and fulfill its commitments herein; and (ii) shall use commercially reasonable efforts to ensure the completeness and accuracy of AF Data.
6.2. Warranty Disclaimer.
EXCEPT AS EXPRESSLY SET FORTH HEREIN, AF DISCLAIMS ANY AND ALL EXPRESS OR IMPLIED REPRESENTATIONS AND WARRANTIES WITH RESPECT TO AF DATA AND REPORTING DATA, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR ARISING FROM A COURSE OF PERFORMANCE.
7. LIMITATION OF LIABILITY.
IN NO EVENT SHALL AF BE LIABLE TO RECIPIENT OR ANY OTHER PARTY FOR ANY LOST REVENUE, PROFIT, OR DATA, OR FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL, INCIDENTAL, OR PUNITIVE DAMAGES, HOWEVER CAUSED AND REGARDLESS OF THE THEORY OF LIABILITY. AF’S ENTIRE LIABILITY TO THE RECIPIENT UNDER THIS AGREEMENT, WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, OR OTHERWISE, WILL NOT EXCEED TWO HUNDRED AND FIFTY DOLLARS ($250.00).
8.1 If any provision of this Agreement shall be held illegal or unenforceable, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect.
8.2. This Agreement shall be governed by and interpreted in accordance with the laws of the State of Florida, without regard to its conflict of law provisions. With respect to any legal disputes between Recipient and Provider arising out of or related to this Agreement, Recipient and Provider irrevocably consent to the personal jurisdiction of and venue in the Federal District Court, for the Middle District of Florida or, should the dispute relate to an amount in controversy insufficient for federal court jurisdiction, then the Circuit Court of Florida, Thirteenth District located in Tampa, Florida. If the dispute reaches the trial phase, all disputes relating to the interpretation, execution, and/or non-performance of this Agreement shall be resolved by a non-jury trial under the laws of the State of Florida.
8.3. This Agreement may not be amended or modified except pursuant to a written instrument signed by each of the parties hereto.
8.4. The headings of the Sections of this Agreement are for convenience only and shall not control or affect the meaning or construction of any provision of this Agreement.
8.5. This Agreement contains the entire understanding and agreement of the parties with respect to the matters contained herein, and supersedes all prior proposals, understandings, and agreements between the parties, whether written or oral, relating to the subject matter of this Agreement.
9. EFFECTIVE DATE
The effective date of this Agreement is July 1, 2021.