CD PROMO WorldWide Terms of Use and Licensing Agreement

These terms and conditions (“Terms”) govern your use of CD Promo. Your use of CD Promo indicates your agreement to the Terms below.

Regarding the CD Promo Database

You (the “Client”) acknowledge and agree that:

• (i) dtw’s CD Promo Database (the “Database”) is confidential and proprietary information and/or original work of authorship compiled and owned by dtw, and (ii) Client shall keep in confidence and protect dtw’s Database from disclosure to unauthorized parties and restrict its use as provided herein.


• Client agrees to use the Database and all information obtained therefrom solely for its internal professional and/or business purposes and not for any other purpose. Further, the Client shall not: (i) access/use the Database for the benefit of third parties, or (ii) provide any information from the Database to third parties, including without limitation to any third party market research companies, (iii) permit the use, duplication, reproduction, copying or disclosure of the Database and/or the information contained therein, or otherwise make the Database available for any purpose to any unauthorized party, including without limitation to any third party market research companies. For example, and not by way of limitation, Client agrees that it shall not (i) resell information from the Database; (ii) use or allow third parties to use information from the Database for the purpose of compiling, enhancing, verifying, supplementing or deleting from any compilation of information which is sold published, furnished or in any manner provided to a third party, including without limitation to any third party market research companies even if such companies are undertaking market research or other projects for client; or (iii) use the information from the Database in any service or product provided by the Client or any third party, including without limitation to any third party market research companies.


• Client further acknowledges and agrees that it has been furnished with a Password for use by it to access the Database. The Password provides vital security in preventing unauthorized access to the Database and the confidential information contained therein. Client is responsible for keeping and maintaining the security of each Password that is assigned to it and shall have sole and exclusive responsibility for any unauthorized access to the Database that results from Client’s failure to keep the assigned Password(s) secure. Client shall be primarily liable for the acts of omissions of its employees, subcontractors, other agents and/or any such person or entity to whom or to which it disclosed or revealed its Password.


• When in the course of Client’s business, Client desires to disclose a portion of information from the Database to a third party or to the public, Client shall request dtw’s prior written consent. dtw may withhold such consent if in dtw’s sole discretion such disclosure would cause or threaten harm and loss to dtw’s proprietary rights in the Database and/or other services rendered by dtw. Client acknowledges and agrees that Client may only grant access to the Database to third parties upon execution of and in compliance with a valid written Third-Party Access Agreement from dtw. This Agreement must be signed by all parties (vendor, client and dtw) prior to the release of any information.


• Client shall use its best efforts to assist dtw in identifying any violations of this non-disclosure provision. In the event that Client permits a third party to violate the terms of this non-disclosure provision or knowingly fails to identify an unauthorized user, then Client shall indemnify and hold harmless dtw from any and all damages and expenses of any kind, including reasonable attorneys’ fees, for harm incurred by dtw as a result of any breach of this license agreement, including this non-disclosure provision. Client also agrees that it will indemnify and hold harmless dtw from any and all liability, actions, claims, costs, damages and expenses of any kind, including reasonable attorneys’ fees, which may be brought by a third party for the wrongful actions of Client.


• Client also agrees and understands that neither this license agreement nor this non-disclosure provision shall be construed as granting Client any right of access for any purpose, including Client’s internal professional and/or business use, to any domestic or foreign dtw Database which is not the subject of a subscription agreement between Client and dtw.


• All Client obligations and undertakings relating to confidential information and non-disclosure of same shall survive the termination of this license agreement for whatever reason.

Regarding CD Promo Web Access Accounts

All CD Promo accounts are programmed to expire at the end of the calendar year. All fees for CD Promo are reflective of activation costs and are not discounted or pro-rated.

CD Promo uses special browser plug-in software that must be downloaded & installed from the CD Promo website in order to view the CD Promo images. If this does not comply with the subscribing company’s policies, special installation terms can be negotiated. The license that is provided with this browser plug-in software is a single workstation license. Client is solely responsible for Client’s compliance with the terms of this license agreement, and shall be liable to the owner of the special browser plug-in software for any violations of that license.

dtw is responsible for technical support with regard to only CD Promo and will provide limited support to subscribers who have downloaded the browser plug-in software from the CD Promo website; full technical support for the browser plug-in software will be provided by the software’s manufacturer.

dtw and the browser plug-in software manufacturer cannot be held responsible for policies drafted by the subscribing company that may prevent CD Promo and/or the browser plug-in software from functioning appropriately. dtw suggests that, if the subscribing company is a first time CD Promo user, the IT/MIS Department of the subscribing company beta test the browser plug-in software in order to ensure system compatibility.

Injunctive Relief. In the event of a violation or threatened violation of dtw’s intellectual property rights or proprietary rights, dtw shall have the right, in addition to such other remedies as may be available pursuant to law or this Agreement, to temporary or permanent injunctive relief enjoining such act or threatened act (without the posting of any bond). The parties acknowledge and agree that legal remedies for such violations or threatened violations are inadequate and that dtw would suffer irreparable harm.

Limitation of Warranties. CLIENT UNDERSTANDS AND AGREES THAT THE SYSTEM IS PROVIDED "AS IS.” EXCEPT AS OTHERWISE EXPRESSLY SET FORTH HEREIN dtw AND ITS THIRD PARTY PROVIDERS SPECIFICALLY DISCLAIM, WITHOUT LIMITATION, ALL WARRANTIES OF ANY KIND TO CLIENT, ITS USERS AND ANY OTHER THIRD PARTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR THOSE WARRANTIES ARISING FROM A COURSE OF PERFORMANCE, A COURSE OF DEALING OR TRADE USAGE. dtw AND ITS THIRD PARTY PROVIDERS MAKE NO REPRESENTATION OR WARRANTY THAT THE SYSTEM, OR ANY INFORMATION, REPORTS, MATERIALS OR SERVICES OBTAINED FROM OR GENERATED BY THE SYSTEM, WILL MEET CLIENT’S REQUIREMENTS OR BE UNINTERRUPTED, TIMELY, SECURE, COMPLETE, ACCURATE OR FREE FROM ERROR OR DEFECT. dtw MAKES NO REPRESENTATIONS, WARRANTIES OR GUARANTEES AS TO ANY RECOMMENDED EQUIPMENT TO BE USED WITH THE SYSTEM, INCLUDING, WITHOUT LIMITATION, THE FAULT TOLERANCE OF THE SYSTEM. CLIENT IS RESPONSIBLE FOR VERIFYING THE RESULTS OF ALL USES OF AND RESULTS AND REPORTS PROVIDED BY THE SYSTEM AND FOR TESTING THE SYSTEM BEFORE CLIENT USES THE SYSTEM IN CONNECTION WITH ITS BUSINESS. CLIENT'S SOLE AND EXCLUSIVE REMEDY FOR ANY FAILURE IN PERFORMANCE OF THE SYSTEM, IS TO TERMINATE THIS AGREEMENT.

Limitation of Liability. The parties acknowledge that the limitations set forth in this Section are integral to the amount of fees levied in connection with this Agreement, and that, were dtw to assume any further liability other than as set forth herein, such fees would of necessity be set substantially higher. IT IS UNDERSTOOD AND AGREED THAT dtw AND ITS THIRD PARTY PROVIDERS (THEIR OFFICERS, DIRECTORS, AGENTS AND ANY ENTITY CONTROLLING, CONTROLLED BY OR UNDER COMMON CONTROL) SHALL HAVE NO LIABILITY TO CLIENT OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO LOSS OF PROFIT, LOST DATA, LOSS OF USE OF THE SYSTEM, BUSINESS INTERRUPTION, LOSS OF BUSINESS REPUTATION OR GOODWILL, COSTS OF SUBSTITUTE SERVICES, OR DOWNTIME COSTS), HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE SYSTEM, EVEN IF dtw HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY. dtw AND ITS THIRD PARTY PROVIDERS (THEIR OFFICERS, DIRECTORS, AGENTS AND ANY ENTITY CONTROLLING, CONTROLLED BY OR UNDER COMMON CONTROL WITH dtw OR ITS THIRD PARTY PROVIDERS) HAVE NO LIABILITY TO CLIENT OR ANY THIRD PARTY FOR ANY (I) LOSS, CORRUPTION, ERROR, OMISSION, INACCURACY OR DELAY OF DATA OR INFORMATION RETAINED IN THE SYSTEM OR PRODUCED BY THE SYSTEM, OR (II) CIRCUMSTANCES BEYOND THE REASONABLE CONTROL OF dtw. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, THE AGGREGATE LIABILITY OF dtw AND ITS THIRD PARTY PROVIDERS (THEIR OFFICERS, DIRECTORS, AGENTS AND ANY ENTITY CONTROLLING, CONTROLLED BY OR UNDER COMMON CONTROL WITH dtw OR ITS THIRD PARTY PROVIDERS) FOR DAMAGES FOR ANY CAUSE WHATSOEVER RELATING TO OR ARISING OUT OF THIS AGREEMENT OR THE SYSTEM, AND REGARDLESS OF THE FORM OF ACTION, SHALL BE LIMITED THE TOTAL SYSTEM LICENSE FEES PAID BY CLIENT TO dtw DURING THE THREE (3) MONTHS PRIOR TO THE CLAIM(S).

 

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