Table of Contents
2. Our Service and Responsibilities to You
3. Use of Services
4. Member Requirements
5. Proprietary Rights and Licenses
6. Account Information Security and Protection
7. Fees and Payment
8. Term and Termination
9. Warranties and Liability
10. Mutual Indemnification
11. General Provisions
Last Updated May 20, 2018
The Agreement is effective between You and Us as of the date You first accept this Agreement. This Agreement shall be available electronically through the Terbine Exchange. Terbine reserves the right, at its sole discretion, to, supplement, change, or otherwise modify all or portions of these terms and conditions from time to time. We will post the changes on this page and will indicate at the top of this page the date these terms were last revised. We will also notify You, either through the Terbine Exchange, in an email notification or through other reasonable means. Any such changes will be effective immediately, unless provided otherwise.
The Terbine Exchange provides access to Data from multiple sources, and facilitates Members making their Data available, to provide Members with a means to exchange data and information concerning the subject matter covered. However, We are in no case Your agent. You accept that the nature of the Data and the collection processes limit Our ability to independently verify and/or validate any of the Data. We do not warrant the comprehensiveness, completeness, accuracy or adequacy of the Data for any purpose. We, and Our directors, employees, contractors, and agents disclaim all warranties, expressed or implied, as to any matter whatsoever and shall not be
responsible for any loss or damage that may directly or indirectly arise as the result of the use of the Data.
1.1. Capitalized terms used in this Agreement but not defined in the body of this Agreement shall have the meanings set forth in this Section 1.
“Account” means the record or statement of registration for each Member who subscribes to the Terbine Exchange.
“Account Information” means information, including Personally Identifiable Information, specific to and about the Member and its Users that is transmitted to and stored by Terbine for the purpose of supporting Services and generally performing the obligations pursuant to this Agreement.
“Administrator” means the individual designated by the Member to manage the Member’s Account, including Account Information, authorization of Users and provisioning of usernames and passwords, and in general the use of the Services by Member and its authorized Users.
“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
“APIs” means a suite of code, files, scripts, agents or programs that facilitates data transfer between You and other Terbine Exchange Members and Users. Further information on the Terbine API Specifications can be accessed from
“Beta Features” means test services, features, or functionality that Terbine may make available to Members and their Users to try at their option and at no additional charge, and which may be designated as “beta,” “test,” “pilot,” “limited release,” “developer preview,” “demonstration,” “demo,” “non-production,” “evaluation,” or by a similar description.
“Confidential Information” means all information disclosed between the parties to this Agreement, whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Your Confidential Information includes Member Data, Service Data, and Account Information; Our Confidential Information includes the Services; and Confidential Information of each party includes processes, software, or business information, and other technical, business, financial, customer, and product development and/or marketing plans, proposals, forecasts, details about actual or potential customers or projects, and personal information about personnel, and any other information identified or treated as proprietary or confidential or trade secret, including all such business or technical information of a third party in the hands of the disclosing party. However, Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the disclosing party, (ii) was known to the receiving party prior to its disclosure by the disclosing party without breach of any obligation owed to the disclosing party, (iii) is received from a third party without breach of any obligation owed to the disclosing party, or (iv) was independently developed by the receiving party.
“Data” means sets or streams of raw or processed data provided by You through the Terbine Exchange, whether by uploading to, submitting to, transmitting to or through, or otherwise facilitating availability by using features of the Terbine Exchange, or availabe to You through the Terbine Exchange, including without limitation Open Data collected from the public domain. Data may include Derived IP, but excludes Accounts Information, Service Data, or Metadata. Each Member is solely responsible for its Data.
“Derived IP” means any intellectual property or c opyrightable property You create or otherwise derive from Data. D ata that is substantially the result of rearranging or taking out a portion of Licensed Data, or that otherwise publishes, displays, or reproduces the content, or substantially all of the content, of the Licensed Data in the same or a substantially identical arrangement, is not
“Licensed Data” means Data, excluding Your Data, that You accessed, retrieved, licensed or otherwise obtained from the Terbine Exchange or via the Services.
“Licensee” means a Member that receives, accesses, or sublicences data from the Terbine Exchange.
“Licensor” means a Member that submits, or otherwise makes available, and licenses data to the Terbine Exchange.
“Malicious Code” means code, files, scripts, agents or programs, including without limitation, for example, viruses, worms, time bombs and Trojan horses, designed to do harm, impair, interrupt, suspend, destroy or limit the functionality of any software, hardware or telecommunications equipment.
“Member” means You, the legal entity subscribing to the Terbine Exchange and authorizing, under the aegis of the subscription, one or more Users to access and use the Terbine Exchange. All references herein to a Member or Members is inclusive of and also references any and all Users designated by each such Member or all Members, as the case may be.
“Metadata” means textual information (including hyperlinks) that may serve to identify, describe, discover, interpret and/or manage Data.
“Metadata Specifications” means the most recent version of the Terbine Metadata Specifications available from
“Open Data” means data in the public domain or data intended to be widely shared or distributed in the public domain without charge. However, Open Data may have attribution, licensing, or other data sharing requirements to be complied with.
“Order Form” means an ordering document or online order specifying the Services to be provided hereunder that is entered into between You and Us or any of Our Affiliates, including any addenda and supplements thereto. Should Your Affiliate enter into an Order Form hereunder, said Affiliate agrees to be bound by the terms of this Agreement as if it were an original party hereto.
“Policies” means policies, restrictions or any limitation regarding the access, use, or availability of Your Data to other Members on the Terbine Exchange, as established by You via the Policy Engine.
“Policy Engine” means software component(s) within Terbine Exchange that allows You to create, monitor and enforce rules about who can see, access and license Your Data on the Terbine Exchange.
“Prohibited Data” means any information, or documents or technical data that are (i) classified, controlled by the U.S. International Traffic in Arms Regulations, subject to the Export Administration Regulations, or otherwise have been determined by the United States Government or by a foreign government to require protection against unauthorized disclosure for reasons of national security; (ii) “protected health information” including any medical, demographic, visual or descriptive information that can be used to identify a particular patient/individual and/or any other data subject to the U.S. Health Insurance Portability & Accountability Act of 1996, as supplemented and amended, and regulations promulgated under that Act; (iii) information that relates to a person that could be used either directly or indirectly to identify such person, whether a natural person or a legal entity, and as contemplated and regulated by U.S. Privacy Act and other U.S. laws and/or the European Union General Data Protection Regulations “(Personally Identifiable Information);” and (iv) any other regulated financial, payment card, health or similarly sensitive data subject to regulation or protection under specific laws such as the Gramm-Leach-Bliley Act, or that imposes specific regulatory, legal, or industry data security obligations for the processing of such data greater than those specified herein.
“Service Data” means query logs and other information about Your use of or Your correspondences with Terbine about the Services and Terbein Exchange. Service Data does not include Data or Account Information.
“Services” means the use of and access to the API, Data, Terbine Exchange, Terbine.com, any other Terbine website, or any Terbine offline or mobile components that may be ordered by You
pursuant to this Agreement and Order Form or provided to You as Beta Features.
“Terbine Exchange” means Terbine’s data exchange and marketplace provided via its hosted environment and as facilitated by its APIs, and through the interface at Terbine.io.
“User” means a single right of access designated and authorized by You to use the Terbine Exchange, for which for which You have purchased a subscription (or in the case of any Services provided by Us without charge, to which the Services have been provisioned), and for which You (or, when applicable, Terbine at Your request) has supplied a user identification and password. Users may include Your employees, contractors, subcontractors, other agents and software agents acting on Your behalf.
“You” or “Your” shall refer to the company or other legal entity that is the Member and for which You are accepting this Agreement, and any of the Member’s Users.
“Your Data” means any data and information You upload, submit, transmit, or otherwise make available to or through the Terbine Exchange to other Members (which may include Derived IP), but excluding any MetaData or Service Data. You are solely responsible for Your Data.
2. OUR SERVICE AND RESPONSIBILITIES TO YOU
2.1. Provision of Services. We will (a) make the Services available to You pursuant to this Agreement and applicable Order Forms, (b) provide reasonable support for the Services to You at no additional charge, and/or upgraded support if purchased, (and c) use commercially reasonable efforts to make the online Services available 24 hours a day, 7 days a week, except for: (i) planned downtime (of which We shall give advance electronic notice), and (ii) any unavailability caused by circumstances beyond Our reasonable control, including, for example, an act of God, act of government, flood, fire, earthquake, civil unrest, act of terror, strike or other labor problem (other than one involving Our employees), Internet or cloud service provider failure or delay, or denial of service attack. For technical inquiries and support, Member may submit inquiries and requests by submitting an email to
email@example.com or by other means as determined by Terbine. Terbine shall make commercially reasonable efforts to respond to support enquiries within one business day, and may respond by email or other means as determined by Terbine. Terbine makes no guarantee that it will solve any reported problem.
2.2. Protection of Your Data. We will maintain commercially reasonable administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Your Data and Confidential Information. Those safeguards will include, but will not be limited to, measures for preventing access, use, modification or disclosure of Your Data and Confidential Information by Our personnel except (a) to provide the Services and prevent or address service or technical problems, (b) as compelled by law in accordance with Section 6.4 below, or (c) as You expressly permit in writing. However, You understand that use of the Services and Terbine Exchange involves the transmission of Your Data and Confidential Information, such as but not limited to Account Information and Service Data, to third parties and/or over third party networks and services that are not owned, operated or controlled by Us, and We are not responsible for any of Your Data or Confidential Information lost, altered, intercepted or stored across such third party networks and services. We cannot and do not guarantee that Our security procedures will be error-free; that transmissions of Confidential Information or Your Data will always be secure and not destroyed, lost, intercepted, or altered by unauthorized persons; or that unauthorized third parties will never be able to defeat Our security measures or those of other Terbine Members or Terbine’s service providers.
2.3. Beta Features. If Member or its User(s) register for, or We otherwise offer, Beta Features, We will make the Beta Features available on a trial basis, free of charge and for use solely at the discretion of Member and/or User, until the earlier of (a) the end of the trial period for which Member or User registered to use the applicable Beta Features, or (b) the start date of any purchased subscriptions ordered by Member for such Beta Features, or (c) termination by Terbine in its sole discretion. The Beta Features are intended for evaluation purposes and not for production use, are not supported, and additional trial terms and conditions may be provided or offered as a condition of access at the time of trial registration. Any such additional terms and conditions are incorporated into
this Agreement by reference and are legally binding on Member. In addition, while Beta Features are not considered “Services” under this Agreement, all restrictions, Terbine’s reservation of rights, and Member’s requirements concerning the Services and use of any related Content shall apply equally to Member’s use of any such Beta Features. Unless otherwise stated, any trial period will expire upon the earlier of sixty (60) days from the trial start date or the date that a version of the Beta Features becomes generally available without the applicable test or trial designation. We may discontinue Beta Features at any time in its sole discretion and may never make them generally available.
2.4. NO WARRANTY FOR BETA FEATURES. THE REPRESENTATIONS, WARRANTIES, DISCLAIMERS, AND LIMITATIONS OF LIABILITY SET FORTH IN SECTION 9 OF THIS AGREEMENT APPLY WITH EQUAL FORCE AND EFFECT TO THE BETA FEATURES, WHICH ARE PROVIDED “AS-IS” WITHOUT ANY WARRANTY.
2.5. Changes and Updates. During the Services Term, Terbine may make changes to or update the Services and Terbine Exchange, and to the Terbine policies incorporated into this Agreement, to reflect changes in, among other things, laws, regulations, rules, technology, industry practices, patterns of system use and availability of third party content. Our updates to the Services or the Terbine Exchange, or to any applicable policies, shall not materially reduce the level of performance, functionality, security or availability of the Services or Terbine Exchange during the then-current Services Term.
2.6. Use of Subcontractors. Terbine may perform certain aspects of the Services, such as but not limited to Services administration from locations and/or through use of subcontractors worldwide.
3. USE OF SERVICES
3.2. Registration and Account Creation. You must create an Account to access and use the Terbine Exchange. You agree to maintain only one Member Account with the Terbine Exchange at any time. Terbine reserves the right to deny creation of an Account for You based on Terbine’s inability to verify the authenticity of Your registration information. You shall be solely responsible for maintaining the confidentiality of the Account password. Each one of Your Users given access will be designated a username. Each User will also create a password, and provide certain registration and verification information, all of which must be accurate, truthful, and current. A User’s password may not be shared with any other individual or entity, and You are responsible for maintaining the confidentiality of Your Account and Users’ passwords. You are responsible for taking reasonable measures to prevent unauthorized use of Your Account and the Terbine Exchange. You are responsible for any and all activity on your Account and by Your Users who are using usernames and passwords, including third parties authorized by You to obtain a username and password. You must have at least one User assigned to the role of Administrator, who will have access to all features provided by the Terbine Exchange to You. The role of Administrator may be reassigned to a new individual only as substitution for and if replacing the existing individual because that individual will no longer use the Services. You shall immediately notify Terbine by submitting feedback of any known or suspected unauthorized use(s) of Your Account, or any known or suspected breach of security, including loss, theft, or unauthorized disclosure of Your password or credit card information. From time to time, Terbine may also access Your Account in order to respond to Your or Your Users’ support requests. The use of Your Account by any individual under age eighteen (18) is strictly prohibited.
3.3. Connection to Services. You shall be solely responsible, at Your expense, for establishing, operating and maintaining Your and Your Users’ connection to the Services and Terbine Exchange
via the internet, including but not limited to, procuring, configuring, operating and maintaining all computer hardware and software, communications equipment, databases, electronic systems, networks, web browsers, and any access lines necessary for such connection. If the computer(s) or computer system on which You and/or Your Users accessed the Service is sold or transferred to another party, You shall delete any and all cookies, software files, Data, and Account Information on such computer system as a result of or through the use of the Services and Terbine Exchange.
3.4. Limitation of Services. Terbine’s support obligations with respect to the Services are limited to those obligations described in this Agreement unless additional services from Terbine are negotiated by You. Services do not include any implementation of configurations and integrations, interface development, custom code development, training, consulting or other professional services.
4. MEMBER REQUIREMENTS
4.3. General Usage Restrictions. You shall NOT (a) for a term of one (1) year from the date of the creation of the Data, reproduce or copy, distribute, publish publicly or privately, display, sell, or resell for any reason, including without limitation for the reasons of cost recovery, personal gain, advantage, or profit, monetary or otherwise, any Data to any other party, either in the arrangement and format made available to You and/or as procured by You through the Terbine Exchange or in any arrangement or format that allows identification of the underlying Data; (b) at any time sell, resell, license, sublicense to third parties (except You are permitted to designate Your Third Party Data Providers as Users consistent with the terms and conditions herein), distribute, display, publish, make available, rent or lease any Services, the Terbine Exchange, or intellectual property of Terbine with the intent of commercializing the same in any manner that competes with Terbine, or to recover costs or to gain an advantage or profit thereby, monetarily or otherwise (except with respect to Data expressly permitting these actions, such as Open Data); (c) use a Service or Terbine Exchange to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights or intellectual property rights; (d) use a Service or
4.4. Member Responsibility for Users. You are responsible for all of Your Users’ compliance with the requirements and restrictions here stated, and agree to promptly suspend access to the Services and Terbine Exchange for any User that (1) ceases to qualify as a User, (2) Member no longer wishes to designated as a User, or (3) Member knows or reasonably believes is causing Member to breach this Agreement. Any use of the Services or Terbine Exchange in breach of this Agreement or the Order Forms by You that in Our judgment threatens the security, integrity or availability of Our services may result in Our immediate suspension of the Services and/or Terbine Exchange, however, We will use commercially reasonable efforts under the circumstances to provide You with notice and an opportunity to remedy such violation or threat prior to such suspension.
4.5. Third Party Data Providers. To the extent that You or Your Users use the products or services of, or purchase or license the data of any vendors, contractors or any other third parties (collectively, “Third Party Data Providers” ) to provide Data to the Terbine Exchange or to create Derived IP of, combine with, analyze, process, or otherwise develop the Data, or to otherwise perform any of Your obligations hereunder, You will execute a written agreement with such Third Party Data Providers binding such Third Party Data Providers to terms and conditions no less protective of Our rights and reservations than the terms and conditions of this Agreement. Any breach by a Third Party Data Provider of the terms or conditions of this Agreement may, at Our sole discretion, be deemed a breach by You. Your and/or Your Users’ use of Third Party Data Providers will in no way derogate from or relieve You of any of Your obligations under this Agreement. You are and will remain fully responsible and liable for all acts and omissions of Third Party Data Providers which cause a breach of this Agreement as if committed by You. For the sake of clarity, Third Party Service Providers shall not include third parties with whom Terbine contracts directly to provide the Terbine Exchange and Services to You.
4.6. Data Transactions. The Services allow You to (i) share Your Data, and (ii) access, license, use and otherwise transfer Data collected from the public domain or submitted by other Terbine Members. Open Data from the Terbine Exchange may be downloaded, accessed and used without any charge.
4.6.1. Attribution for Data. You must comply with any attribution or data source definition requirements noted in the applicable MetaData of the Data.
4.6.2. Allowable Data and Submission Restrictions. Data must be machine-generated or sensor data. We do not accept and You may not submit any image, photo or vector files (whether still or moving) to the Terbine Exchange. You may not input, distribute, upload, post, email, transmit or otherwise make available any data, information or content to or through the Terbine Exchange that (i) would breach any applicable laws; (ii) is harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another’s privacy, hateful, or racially, ethnically or otherwise objectionable; (iii) You do not have the right to make available to other Members and/or Users under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information under a
nondisclosure agreement, or learned or disclosed as part of employment relationships); (iv) infringes any patent, trademark, trade secret, copyright or other proprietary rights of any party; (v) contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware, or telecommunications equipment; (vi) is harmful to minors; (vii) is false, erroneous, misleading; or (vii) constitutes the Personally Identifiable Information of any other person that such person has not authorized You to disclose.
4.6.3. Prohibited Data. You shall not upload, transmit, or submit to the Services or Terbine Exchange, or use the Terbine Exchange to otherwise facilitate or collect, any Prohibited Data, except for Personally Identifiable Information required to establish your Account and to designate Users. You shall remove or make anonymous Personally Identifiable Information from any Data prior to submitting it. You also acknowledge that Terbine is not acting as Your business associate or subcontractor (as such terms are defined and used in the U.S. Health Insurance Portability & Accountability Act (HIPAA) of 1996, as supplemented and amended) and that the Services are not HIPAA compliant. Notwithstanding any other provision in this Agreement, Terbine has no liability under this Agreement for Prohibited Data. You acknowledge that geolocation data and other sensor data may still be considered Personally Identifiable Information in certain jurisdictions.
4.6.4. Licensor Representation. You represent and warrant that: (i) You have obtained all necessary and applicable rights, releases and permissions from all relevant parties to provide all Your Data to the Terbine Exchange and to grant the rights granted to Terbine in this Agreement and (ii) Your Data and its transfer to, through, or as facilitated by the Terbine Exchange, as authorized by You under this Agreement, do not violate any applicable laws (including without limitation those relating to export control and electronic communications) or rights of any Third Party Data Provider or other third party, including without limitation any intellectual property rights, rights of privacy, or rights of publicity, and (iii) any use, collection and disclosure authorized herein is not inconsistent with the terms of any applicable proprietary rights or privacy policies or regulations applicable to the Data. Other than the security obligations expressly set forth in this Agreement, We assume no responsibility or liability for Your Data, and You shall be solely responsible to Third Party Data Providers and any third party for Your Data and the consequences, including liability to any third parties, of transmitting to, storing in, disclosing to, or otherwise using in relation to the Terbine Exchange.
4.6.5. Licensor Obligations. As a provider of Data, and to the extent You have licensed from a Third Party Data Provider the Data that Member or User submits, uploads, transmits, or otherwise makes available to the Terbine Exchange, You shall at all times (a) be responsible for all of Your compliance with Your Licensor obligations and restrictions set forth in this Agreement and all Order Forms, (b) be responsible for the accuracy, quality and legality of Your Data and the means by which You acquired Your Data, (c) maintain compliance with Your obligations pursuant to any applicable Third Party Data Provider’s license of the Data, (d) use commercially reasonable efforts to prevent use of the Terbine Exchange to gain unauthorized access to or use of the Data, and notify Us promptly of any such unauthorized access or use, and (e) upload, transmit, or submit, or otherwise make available, Data to the Terbine Exchange only in accordance with this Agreement, Order Forms and applicable local, state, federal and international laws and government regulations.
4.6.6. Metadata. As a Licensor of Data, You shall submit the required Metadata with each submission of Your Data to the Terbine Exchange in accordance with the Metadata Specifications in effect and available at
https://terbine.com/specifications on the
date of Your submission. You must make best efforts to provide correct and complete Metadata where required, including without limitation with respect to the intellectual property rights to the Data provided by You such as identifying any Data that is in the public domain as being in the public domain. Terbine may further describe, tag, or otherwise label Your Data with applicable Metadata, and owns and reserves all rights, title and interest in any Metadata created by Terbine and its Affiliates. Terbine shall provide notice to any adopted changes to Metadata Specifications by making such changes available either through the Services or Terbine Exchange, in an email notification, or through other reasonable means. Additionally, Terbine owns all rights, title and interest in any Metadata created by You and Your Users and submitted to Terbine to the extent permitted by applicable law. To the extent that, pursuant to applicable law, the Metadata created by You and Your Users cannot be deemed as owned by Terbine upon submission, Your hereby assign all rights, title, and interest in the Metadata to Terbine. To the extent that, pursuant to applicable law, the Metadata created by You and Your Users cannot be assigned to Terbine, You hereby grant Terbine an irrevocable, worldwide, nonexclusive, royalty-free, fully paid, sublicensable license to the Metadata created by You. To the extent that You have provided or will provide Us with Metadata that You have aggregated from any Third Party Data Providers, You shall ensure that these Third Party Data Providers have granted the rights to You to authorize Us in accordance with this Subsection.
4.6.7. Your Policies. Policies determine which of the Data is shown to whom. You understand and agree that You are solely responsible for the Your Policies and Your use of the Policy Engine, including any errors or omissions. You are solely responsible for inputting Your Policies into the Policy Engine and shall ensure that any and all conditions to the access of the Data on the Terbine Exchange are accurately reflected by and in Your Policies at all times. If You have any questions regarding how Policies are implemented by the Terbine Exchange, You may contact the Terbine support team for assistance.
4.6.8. Data Quality. You shall be solely responsible for the quality and completeness of the Data that You submit to the Terbine Exchange. Terbine shall have no responsibility with regard to the quality or completeness of any Data.
4.6.9. Licensee Obligations. To the extent You access Services and Data as a Licensee, You will (a) be responsible for any and all of Your compliance with the Licensee obligations and restrictions set forth in this Agreement and all Order Forms, (b) use commercially reasonable efforts to prevent unauthorized access to or use of Services and any Data, and notify Us promptly of any such unauthorized access or use, and (c) use Services and Data only in accordance with this Agreement, Order Forms, and applicable local, state, federal and international laws and government regulations. You understand and agree that You are solely responsible for Your use of Licensed Data and for any liability arising out of or in connection with Your use of the Services and Data.
4.6.10. Removal of Content and Data. You agree and acknowledge that if We are required by a Licensor to remove data, or receive information that data provided to You may violate applicable law or third-party rights, We may so notify You and in such event You will promptly remove such Licensed Data from Your systems and destroy all copies thereof. If We receive information that data submitted by You may violate this Agreement, any applicable law, or third-party rights, We may so notify You and in such event remove such data from the Terbine Exchange to resolve the potential violation until You are able to provide satisfactory evidence to the contrary.
4.7. Third-Party Links. The Services may contain links or connections to third party websites or services that are not owned or controlled by Us. When You access third party websites or use third
4.8. Use of the Internet. You acknowledge and agree that the internet, and communications over it, may not be absolutely secure and that connecting to it provides the opportunity for unauthorized access to computer systems, networks, and all data stored therein. Data, including Data, Service Data, Metadata, and Account Information transmitted through the internet, or stored on any equipment through which it is transmitted, may not remain confidential and Terbine does not make any representation or warranty regarding privacy, security, authenticity, or non-corruption or destruction of any such data. Use of the internet is at Your own risk.
4.9. Confidentiality. You shall not use, disclose or provide any documentation related to the Services (or any modifications or derivatives thereof), or any Confidential Information and/or non-public information related to Terbine’s products, disclosed to Member by Terbine, to any other party, except as expressly permitted under this Agreement.
5. PROPRIETARY RIGHTS AND LICENSES
5.1. Terbine API. Subject to Your compliance with this Agreement, Terbine grants to You a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to use Our APIs for the purpose of (i) uploading, transmitting, or submitting Data or otherwise facilitating the sharing of Data, (ii) retrieving information, Metadata, and Data, and (iii) otherwise using and accessing the Services. We refer to this license in this Agreement as the “API License”. You agree to
(1) protect any keys used to access the APIs and any data You receive via the APIs against unauthorized access, use or disclosure, and immediately report security issues to
(2) only use the most current version of the APIs as updated by Terbine from time to time;
(3) only use the APIs in accordance with any documentation or other written instructions provided by Terbine, and do not attempt to circumvent any limitations or restrictions;
(4) not introduce any harmful, infringing or unlawful data or material via the APIs, including Malicious Code or other malware; and
(5) not make unreasonable commercial uses of the APIs such as uses that substantially replicate the Services or significant aspects of the Services, including, but not limited to, for the purpose of offering the Services and Terbine Exchange as a new business service offered by Member with the intent to earn a profit.
You authorize Terbine to monitor Your use of the APIs in order to verify Your compliance with the terms of this Agreement, and to operate, improve and protect the Services and Terbine Exchange. For more documentation on using the APIs please see
https://terbine.com/specifications or to request an API key please contact Terbine support. You may terminate this API License by discontinuing use of the APIs. Terbine may terminate the APIs at any time for any reason. This API License terminates automatically if (a) You violate any terms of this Agreement, (b) Terbine provides a written notice of termination, or (c) Terbine discontinues Your access to the APIs. All sections restricting Your access to and use of any Data You receive via the APIs will survive any termination of these API License terms.
5.2. Your Reservation of Rights. Subject to the rights and licenses provided in this Agreement, You will retain all right, title and interest in and to Your Data.
5.3. License to Terbine. You grant Us, Our Affiliates and applicable contractors a non-exclusive, fully paid, royalty-free, sublicensable, worldwide right and license to host, use, copy, reproduce, transmit, distribute, sublicense, display, offer to sell and sell licenses to Your Data to other Members as reasonably necessary for Us to provide the Services and Terbine Exchange in accordance with this Agreement. Subject to the licenses granted herein for Us to provide the Services and Terbine Exchange in accordance with this Agreement, We acquire no right, title or interest in or to any Data from You or Your Third Party Data Providers under this Agreement. Subject
to Your Policies that you provide to the Policy Engine and this Agreement, You also permit Us to enable Members and Users to access Your Data from the Terbine Exchange and store, create derivative works, or otherwise use Your Data for that Member’s commercial and non-commercial use. You grant Us the right to use the name that You submit in connection with such Data.
5.4. License to You. Subject to the terms of this Agreement and any applicable Order Form, and upon Your acceptance, purchase and payment (as applicable) for Data procured through the Terbine Exchange, We grant You a nonexclusive, limited-term license to access, store, copy, use, and create derivative works out of such Data.
5.5. Our Reservation of Rights. Subject to the limited rights expressly granted hereunder, We reserve all of Our rights, title and interest in and to the Services, Terbine Exchange, Service Data, and Metadata, including all of Our related intellectual property rights. Licensors of Data provided to the Terbine Exchange reserve all of their rights, title, interest in the Data provided. No rights are granted to You hereunder other than as expressly set forth herein. Ownership of the Services and Terbine Exchange, any related documentation and copies, modifications and derivatives of the foregoing (in whole or in part), and all related trademark, copyright, patent, trade secret and other proprietary rights, are and will remain the exclusive property of Terbine and/or its licensors or third-party service providers. You acknowledge and agree that any enhancements or modifications to the Services and any related documentation, based upon or derived from Your requests, recommendations or other Feedback, are and will remain the exclusive property of Terbine and/or its licensors or third party service providers. You agree to protect the proprietary rights of Us during and after the term of this agreement, and to comply with all reasonable written requests made by Us to protect Our contractual, statutory, and common law rights in the Services. Except as specifically permitted by this Agreement, You may not copy or make any use of the Services or Terbine Exchange or any portion thereof. Except as specifically permitted herein, You shall not use the intellectual property rights or the Services or Terbine Exchange, or the names of any individual participant in, or contributor to, the Services or Terbine Exchange, or any variations or derivatives thereof, for any purpose, without Terbine’s prior written approval. No ownership interest or other rights in intellectual property is assigned or otherwise transferred under this Agreement and there are no implied rights or licenses.
5.6. License to Use Feedback. From time to time, You may choose to submit comments, information, questions, ideas, description of processes, enhancement request, recommendation, correction or other feedback in the course of receiving support and maintenance (“Feedback”). You grant to Us and Our Affiliates a worldwide, perpetual, irrevocable, royalty-free, fully-paid license to use, copy, exploit and incorporate into Our and/or Our Affiliates’ Services without restrictions any Service Data or Feedback provided by You or Users relating to Our or Our Affiliates’ Services.
5.7. License for Documentation. We provide You access to electronic copies of all existing and then-available documentation concerning the Services and Terbine Exchange in English. You may use, reproduce, and/or distribute the documentation to Users as appropriate and necessary for Your business requirements and in compliance with this Agreement, including restrictions on Confidential Information. We authorize You to translate the documentation at Your expense and authorize You to use, reproduce and distribute such translations consistent with the permissions in this Agreement for the English language version(s) provided by Terbine. You shall provide a copy of any translation(s) to Us without compensation, and such translated documentation, including the copyrights thereto, shall automatically be and remain the property of Terbine. All versions of documentation in any other language shall be for accommodation only and shall not be binding upon Us or other Members. All communications and notices to be made or given pursuant to this Agreement or documentation concerning the Services, and any dispute proceeding related to or arising hereunder, shall be in the English language. If there is a discrepancy between any translation of this Agreement and this Agreement in the English language, this Agreement in English shall prevail.
6. CONFIDENTIAL INFORMATION SECURITY , PRIVACY, AND PROTECTION
6.1. Security. We shall take commercially reasonable steps, or cause such commercially reasonable
steps to be taken, designed to prevent security breaches. Our security obligations with respect to Confidential Information are limited to those obligations described herein. We make no other warranty or representation regarding the security of Confidential Information, including Account Information and Service Data. Further, except with respect to Our express obligations set forth in this Agreement, You are solely responsible for any damage or losses caused by unauthorized destruction, loss, interception, or alteration of Account Information by unauthorized persons.
6.2. Regulatory Compliance. You remain solely responsible for Your regulatory compliance in use of the Services and the Terbine Exchange. You must make Us aware of any technical requirements that result from regulatory obligations prior to entering into this Agreement. You are solely responsible for reviewing all Account Information and shall ensure that no Account Information constitutes or contains Prohibited Data, except for Personally Identifiable Information required to establish the Member Account and authorize Users. Use of the Services to process Prohibited Data is at Your own risk and You shall be solely liable for the consequences of taking such risk.
6.3. Confidentiality and Use of Account Information. Terbine shall treat all Confidential Information as confidential and shall only use Account Information and Service Data to (i) provide the Services and Terbine Exchange (including reporting to Member on its use of the Services and Terbine Exchange), (ii) use aggregated and/or information made anonymous to improve its Services and the Terbine Exchange, develop new services, show trends about general use of Services, and for statistical analysis and business measures, (iii) monitor Members’ and Users’ use of the Services for security and technical support purposes and for validating Members’ compliance with restrictions and limitations set forth in this Agreement, and for purposes of otherwise complying with Terbine’s obligations to Members, (iv) enforce this Agreement, and (v) share with any of Terbine’s Affiliates, third-party service providers and subcontractors who need to know such information in order to provide the Services and Terbine Exchange, provided that they are bound by similar confidentiality obligations. For purposes of clarity, Our obligation to keep Your Confidential Information, including Account Information and Service Data, confidential shall not apply to information that We are required to disclose by law (but only to the extent of such required disclosure), provided that We shall provide You with prompt written notice so that You may seek a protective order or other appropriate remedy, and if such protective order or other remedy is not obtained, We shall furnish only that portion of the Confidential Information that is legally required as determined by legal counsel.
6.4. Non-Disclosure. You and Terbine will both use the same degree of care used internally to protect confidential information (but not less than reasonable care) to (i) not use any Confidential Information for any purpose outside the scope of this Agreement and (ii) except as otherwise authorized by the disclosing party in writing, limit access to Confidential Information of the disclosing party to employees and contractors who need that access for purposes consistent with this Agreement and who have signed confidentiality agreements containing protections not materially less protective of the Confidential Information than those herein. Neither party will disclose the terms of any Order Form to any third party other than its Affiliates, legal counsel and accountants without the counterparty’s prior written consent, provided that a party that makes any such disclosure to its Affiliate, legal counselor, accountants will remain responsible for such Affiliate’s, legal counsel’s or accountant’s compliance with this “Non-Disclosure” provision. Notwithstanding the foregoing, We may disclose the terms of any applicable Order Form to a subcontractor or third party service provider to the extent necessary to perform Our obligations to You under this Agreement, under terms of confidentiality materially as protective as set forth herein. The receiving party may disclose Confidential Information of the disclosing party to the extent compelled by law to do so, provided the receiving party gives the disclosing party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the disclosing party’s cost, if the disclosing party wishes to contest the disclosure.
6.5. Your Security Obligations. You are responsible for any security vulnerabilities, and the consequences of such vulnerabilities, arising from (i) Account Information, including any viruses,
Trojan Horses, worms or other harmful programming routines contained in Account Information, or from (ii) Your use of the Services and Terbine Exchange in a manner that is inconsistent with the terms of this Agreement. You are responsible for the security of Your own computer systems and the security of its access to and connection with the Services and Terbine Exchange. You shall employ all reasonable physical, administrative and technical controls, screening and security procedures and other safeguards necessary to: (1) securely administer the distribution and use of all access credentials and protect against unauthorized access to or use of the Services and Terbine Exchange; and (2) control the content and use of Account Information, including the uploading or other provision of Account Information for processing by the Services and Terbine Exchange. You are solely responsible for: (a) maintaining at least one (1) current backup of source Account Information and all Member systems on or through which the Services or Terbine Exchange are accessed and used; (b) determining the suitability of the Services and Your use of the Terbine Exchange in light of the type of Account Information stored by You on the Services and Terbine Exchange or otherwise processed by You through Your use of the Services and the Terbine Exchange; and (c) all access to and use of the Services and Terbine Exchange by any Users that You have authorized or who gain access as a result of Your failure to use reasonable security precautions.
6.6. General Data Protection Regulations. Member acknowledges that the Account Information Member submits to the Services and Terbine Exchange may be transferred from and outside the European Economic Area for the purposes of data processing by Us and/or its Affiliates. All Personally Identifiable Information of Member and/or Users received or collected, or generated as Service Data, by Us in connection with performance of the Services will be processed in accordance with all applicable laws and regulations concerning the collecting, holding, and processing of such data. You must meet all of Your responsibilities under the European Union General Data Protections Regulations (EU GDPR) as a Controller of the Personally Identifiable Information You provide to Us. Any Personally Identifiable Information of Member or its Users that is received, collected, or generated by Us in the European Union (EU) will be limited to only that needed by Us to provide the Services and Terbine Exchange and will be processed in accordance with the EU GDPR. Member hereby certifies to Us that it has obtained that information pursuant to applicable data protection laws and has obtained all necessary authorizations and consents with respect to such information.
6.7. Account Information License. You hereby irrevocably grant all such rights and permissions in or relating to Account Information (a) to Terbine, its Affiliates, third-party service providers, subcontractors and their respective personnel as are necessary or useful to perform the Services and the Terbine Exchange; and (b) to Terbine as are necessary or useful to enforce this Agreement and exercise its rights and perform its obligations hereunder.
7. FEES AND PAYMENT
7.1. Fees and Payment For Licensed Data and Licensing Data. The access and use of the Terbine Exchange is provided subject to a subscription fee, as that may be charged, however, there may at times be a license fee and service fee associated with Your procurement of Licensed Data. Any such fees willbe displayed on the Terbine Exchange for Your review prior to purchase and acceptance. Open Data will be provided to You without any license fee or service fee. Once You accept the purchase of a license and download the associated Licensed Data, no cancellations or refunds will be permitted unless such Licensed Data (1) materially deviates from the description of the Metadata associated with such Data, (2) is in breach of applicable law or third party rights, or (3) is otherwise materially deficient and You notify Us within fourteen (14) days of purchase of such Licensed Data. Amounts earned by and payable to You from the license of Your Data through the Terbine Exchange will be processed and paid in accordance with the Terbine Payment Processing Policy.
7.2. Suspension of Service and Acceleration. If any amount owing by You under this Agreement or Order Form for Services and the Terbine Exchange or for Data is thirty (30) or more days overdue (or ten (10) or more days overdue in the case of amounts You have authorized Us to charge to Your
credit card), Terbine may, without limiting Our other rights and remedies, suspend Our Services to You until such amounts, plus all other amounts accrued at that time, are paid in full. Other than for customers paying by credit card or direct debit whose payment has been declined, We will give You at least ten (10) days’ prior notice that Your account is overdue, before suspending services to You. Amounts not paid when due shall be subject to interest at one and one and one half percent (1.5%) per month or, if less, the maximum rate of interest allowed by law, calculated from the due date.
7.3. Payment Disputes. Terbine will not exercise its rights for overdue charges or the suspension of service and acceleration of amounts owing, as set forth above, if You are disputing the applicable charges reasonably and in good faith and are cooperating diligently to resolve the dispute.
7.4. Taxes. Terbine fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). You are responsible for paying all Taxes associated with Your purchases hereunder. If Terbine has the legal obligation to pay or collect Taxes for which You are responsible, Terbine will invoice You and You will pay that amount unless You provide Terbine with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, Terbine is solely responsible for taxes assessable against Terbine based on its income, property and employees.
7.5. Data Fees. Terbine will set the fees for Your Data based on the grade of such Data, market demand for such Data, and other factors deemed relevant by Terbine in its sole discretion. You shall not cause a Licensee to incur any additional fees. Except in the case of gross negligence or intentional misconduct, You agree to hold Terbine harmless and waive and release Terbine from any claims, disputes, losses, damages, or any other liability in connection with or arising from the pricing of the Your Data.
7.6. Fee Changes. Terbine may increase or decrease any fee amount upon ninety (90) days’ notice to Principal Member. Any price increases or decreases shall apply to fees that accrue after the effective date of the change as set forth in the notice.
7.7. Future Functionality. You agree that Your purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by Us regarding future functionality or features.
8. TERM AND TERMINATION
8.1. Term of Agreement. This Agreement commences on the date You first accept it and continues until all subscriptions You have purchased have expired or the use of the Services and Terbine Exchange hereunder have been terminated by Us or You as provided in this Agreement.
8.2. Term of Specific Services. The term of any subscription to specific services that Terbine may offer shall be specified in the applicable Order Form. Except as otherwise specified in an Order Form, limited-term subscriptions will automatically renew for additional periods equal to the expiring subscription term or one year (whichever is shorter), unless either party gives the other notice of non-renewal at least thirty (30) days before the end of the relevant subscription term. Except as expressly provided in the applicable Order Form, renewal of promotional or one-time priced subscriptions will be at Terbine’s applicable list price in effect at the time of the applicable renewal.
8.3. Termination by You. Upon providing written notice to Terbine that You perceive or believe We have breached the terms of this Agreement, You may terminate this Agreement if We fail remedy such breach within thirty (30) days after receiving said written notice.
8.4. Termination or Suspension by Terbine. Terbine may terminate the Services and access to and use of the Terbine Exchange without cause upon providing You thirty (30) days’ written notice of intent to terminate. Without limiting, and in addition to, any other rights or remedies in this Agreement, related and applicable Terbine policies, or under law, We may immediately issue a warning, or temporarily suspend, or terminate the Services and Terbine Exchange availability to You or Your User’s for cause based on any one or more of the following: (i) You and/or its Users breach this Agreement; (ii) Terbine reasonably believes that a User is causing You to breach this Agreement
or any applicable law, court order, rule or regulation; (iii) You do not cooperate with Terbine’s reasonable investigation of any suspected breach of the terms and conditions of this Agreement; (iv) We believe that the Terbine Exchange has been accessed or misused by a third party without Your consent or in violation of this Agreement; (v) We believe that suspension of the Services is necessary to protect Terbine’s network or its other customers; (vi) We are required by law, statute, rule, court order, or regulatory or government body to suspend the Services or Terbine Exchange; or (vii) Your actions or one or more of You Users’ actions may cause liability for Terbine, its third-party licensors or service providers, subcontractors or other subscribers to the Services and Terbine Exchange. The suspension of the Services shall not cause the Services Term to be extended, and We may at any time elect to terminate Services and the availability of Terbine Exchange to You if the reason for the suspension is not cured by You in a timely and satisfactory manner as judged by Us.
8.5. Notice of Suspension. Terbine will give Member reasonable advance notice of a suspension for cause under Subsection 8.4 and a chance to cure the grounds on which the suspension is based, unless Terbine determines in its reasonable commercial judgment that a suspension on shorter or contemporaneous notice is necessary to protect Terbine or its other customers from imminent and significant operational, legal, or security risk.
8.6. Liability Upon Termination. Terbine shall not be liable to You or any third party for the termination or suspension of the Service(s) or access to the Terbine Exchange, or any claims related to the termination or suspension of the Service(s) or access to the Terbine Exchange. Upon termination of the Agreement and Services by You or Terbine, Your account will be terminated within five (5) business days. You must discontinue Your use of the Services. You are responsible for any and all charges incurred up to the time Your Account is terminated. Terbine reserves the right to pursue any and all claims it may have against You or any User of Your Account. Any suspension under this Section 8 shall not excuse You from Your obligation to make payments under this Agreement.
8.7. Payment upon Termination. If You terminate, or We terminate without cause, You will pay any unpaid fees for the term of any of Your Order Forms then in effect that have or are accrued and owing as of the effective date of the termination. If this Agreement is terminated by Us for cause, You will pay any applicable unpaid fees covering the remainder of the term of all Order Forms. In no event will termination relieve You of Your obligation to pay any fees applicable and payable to Terbine for the period prior to the effective date of termination.
8.8. Your Data Deletion. Upon termination or expiration of this Agreement, We will have no obligation to maintain or provide to You any of Your Data, and will thereafter delete or destroy all copies of Your Data in Our systems or otherwise in Our possession or control (if any), unless legally prohibited.
8.9. Surviving Provisions. Sections of this Agreement that by their nature survive termination this Agreement, including without limitation Sections 4, 5, 6, 7, 8, 9, 10, and 11, the relevant provisions of those Sections will survive any termination or expiration of this Agreement.
9. WARRANTIES AND LIABILITY
9.1. Representations. Each party represents that it has validly entered into this Agreement and has the legal power to do so.
9.2. Our Warranties. We warrant that during an applicable term for providing Services (a) this Agreement, the Order Forms and any applicable policies will accurately describe the applicable administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Your Data, (b) Terbine will not materially decrease the overall security of the Services, and (c) the Services will perform materially in accordance with the Agreement and applicable Order Forms. For any breach of Our warranty, Your exclusive recourse and remedies are those described in Section 8.
9.3. DISCLAIMERS. THE SERVICES AND TERBINE EXCHANGE, INCLUDING WITHOUT LIMITATIONS ALL CONTENT, SOFTWARE, FUNCTIONS MADE AVAILABLE ON OR PROVIDED IN CONNECTION WITH THE SERVICES, ARE PROVIDED “AS-IS.” YOU AND YOUR USERS
USE THE SERVICES, AT YOUR OWN RISK. EXCEPT AS EXPRESSLY PROVIDED HEREIN, TERBINE MAKE(S) NO WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND TERBINE SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. TERBINE DISCLAIM(S) ALL LIABILITY AND INDEMNIFICATION OBLIGATIONS FOR ANY HARM OR DAMAGES CAUSED BY ANY THIRD-PARTY HOSTING PROVIDERS. TERBINE AND ITS AFFILIATES, AGENTS, DIRECTORS, OFFICERS, EMPLOYEES, REPRESENTATIVES, SUCCESSORS, AND ASSIGNS, DISCLAIM ANY RESPONSIBILITY AND ASSUME NO LIABILITY FOR ANY DATA, INFORMATION OR MATERIAL SUBMITTED BY YOU OR ANY OTHER MEMBER OR USER OR ANY THIRD PARTY. YOU UNDERSTAND AND AGREE THAT IF YOU DOWNLOAD OR OTHERWISE OBTAIN MATERIALS, INFORMATION, CONTENT, SOFTWARE, DATA, OR SERVICES FROM OUR SERVICES, YOU DO SO AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGES THAT MAY RESULT, INCLUDING LOSS WITHIN OR DAMAGE TO MEMBER’S OR USERS’ COMPUTER(S), COMPUTER SYSTEM(S), OR NETWORK(S).
TERBINE DISCLAIMS ANY WARRANTY WITH RESPECT TO THE SECURITY OF THE SERVICES, OR THAT THE OPERATION OR OTHER USE OF THE SERVICES OR TERBINE EXCHANGE WILL BE UNINTERRUPTED OR ERROR-FREE AND/OR WILL NOT CAUSE DAMAGE OR DISRUPTION TO MEMBER.
YOU UNDERSTAND THAT THE DATA, METADATA, AND SERVICE DATA IS PROVIDED TO YOU “AS IS” AND WITHOUT ANY WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, OF ACCURACY OR COMPLETENESS, OF THE PRESENCE OF ABSENCE OF ERRORS, OF MERCHANTABILITY, OF FITNESS FOR A PARTICULAR PURPOSE, OR OTHERWISE. YOU UNDERSTAND AND AGREE THAT THE DATA CONTAINED THEREIN IS SUBJECT TO ERROR.
YOU UNDERSTAND AND ACCEPT THAT TERBINE IS NOT LIABLE TO YOU TO ENFORCE ANY TERMS, RESTRICTIONS, OBLIGATIONS OR OTHER REQUIREMENTS SET FORTH IN THIS AGREEMENT AND ANY POLICIES INCORPORATED HEREIN AGAINST ANOTHER MEMBER, USER, OR OTHER THIRD PARTY. EXCEPT FOR PROCESSING CANCELLATIONS AND/OR REFUNDS AS SET FORTH IN SUBSECTION 7.1, TERBINE IS NOT AN AGENT FOR EITHER THE LICENSOR OR LICENSEE OF DATA, AND TERBINE WILL NOT ACT AS EITHER PARTY’S AGENT AND HAS NO RESPONSIBILITIES TO GET INVOLVED ON EITHER PARTY’S BEHALF, IN CONNECTION WITH ANY DISPUTES RELATED TO OR ARISING OUT OF ANY TRANSACTION. ADDITIONALLY, TERBINE WILL NOT ACT AS YOUR AGENT IN CONNECTION WITH RESOLVING ANY DISPUTES BETWEEN YOU AND YOUR THIRD-PARTY DATA PROVIDERS RELATED TO OR ARISING OUT OF ANY TRANSACTION WITH OR USE OF THE SERVICES.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF WARRANTIES, SO THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU.
9.4. Limitation of Liability. IN NO EVENT SHALL THE AGGREGATE LIABILITY OF TERBINE, TOGETHER WITH ALL OF ITS AFFILIATES, ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID BY YOU HEREUNDER FOR THE SERVICES GIVING RISE TO THE LIABILITY WITHIN THE TWELVE MONTHS PRECEDING THE FIRST INCIDENT OUT OF WHICH THE LIABILITY AROSE. THE FOREGOING LIMITATION WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, BUT WILL NOT LIMIT YOUR AND YOUR AFFILIATES’ PAYMENT OBLIGATIONS UNDER THE “FEES AND PAYMENT” SECTION OF THIS AGREEMENT.
9.5. Exclusion of Consequential and Related Damages. IN NO EVENT WILL EITHER PARTY OR ITS AFFILIATES HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT FOR ANY LOST PROFITS, LOST REVENUES, GOODWILL, OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER, BUSINESS INTERRUPTION OR PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE
THEORY OF LIABILITY, EVEN IF A PARTY OR ITS AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF A PARTY’S OR ITS AFFILIATES’ REMEDY OTHERWISE FAILS OF ITS ESSENTIAL PURPOSE. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.
10. MUTUAL INDEMNIFICATION
10.1. Indemnification by Us. We will indemnify, hold harmless and defend You against any claim, demand, suit, proceeding, losses, damages, including costs such as attorneys fees ( “Claim” ) made or brought against You by a third party arising out of or in connection with (a) allegations that any Service(s) or the Terbine Exchange infringes or misappropriates such third party’s intellectual property rights, (b) Our breach of this Agreement or applicable Order Form(s), or (c) Our gross negligence or intentional misconduct ( “Claim Against You”), and will indemnify, hold harmless and defend You from any damages, attorney fees and costs finally awarded against You as a result of, or for amounts paid by You under a settlement approved by Us in writing of, a Claim Against You, provided You (1) promptly give Us written notice of the Claim Against You, (2) give Us sole control of the defense and settlement of the Claim Against You (except that We may not settle any Claim Against You unless the settlement unconditionally releases You of all liability and contains no findings of fault against You), and (3) give Us all reasonable assistance, at Our expense. If We receive information about an infringement or misappropriation claim related to a Service and/or the Terbine Exchange, We may in Our discretion and at no cost to You (i) modify the Services so that they are no longer claimed to infringe or misappropriate, without breaching Our warranties as set forth above, (ii) obtain a license for Your continued use of that Service and Terbine Exchange in accordance with this Agreement, or (iii) terminate Your subscription for that Service upon 30 days’ written notice. The above defense and indemnification obligations do not apply to the extent a Claim Against You arises from or is in connection with Your use of the Services, Data, or Terbine Exchange in violation of this Agreement or applicable Order Forms.
10.2. Indemnification by You. You will indemnify, hold harmless and defend Us against any Claim, made or brought against Us by a third party in connection with or arising out of (a) allegations that Your Data infringes or misappropriates such third party’s intellectual property rights, (b) Your use of the Services, Data, or Terbine Exchange in violation of the Agreement or applicable Order Form(s), (c) allegations of and actual non-compliance with any applicable laws, (d) Your breach of this Agreement or applicable Order Form(s), (e) Your gross negligence or intentional misconduct, (f) Your taxes or (g) any Data, information or material You provided to Us (each a “Claim Against Us” ), and You will indemnify, hold harmless and defend Us from any damages, attorney fees and costs finally awarded against Us as a result of, or for any amounts paid by Us under a settlement approved by You in writing of, a Claim Against Us, provided We (i) promptly give You written notice of the Claim Against Us, (ii) give You sole control of the defense and settlement of the Claim Against Us (except that You may not settle any Claim Against Us unless the settlement unconditionally releases Us of all liability and contains not findings of fault against Us), and (iii) give You all reasonable assistance, at Your expense. If You receive information about an infringement or misappropriation claim related to Your Data, You may in Your discretion and at no cost to Terbine (i) modify the Data so that there is no longer a claim of infringement or misappropriation, without breaching Your warranties as set forth above, (ii) obtain a license from the relevant third party for Your continued provision or use of that Data in accordance with this Agreement, or (iii) remove the Data promptly from the Terbine Exchange. The above defense and indemnification obligations do not apply to the extent a Claim Against Terbine arises from or is in connection with Terbine’s provision of the Services in violation of this Agreement.
10.3. Exclusive Remedy. This Section 9 states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of claim described in this Section 10.
11. GENERAL PROVISIONS
11.1. Force Majeure. Terbine shall not be in default of its obligations to the extent its performance is
delayed or prevented by causes beyond its control, including but not limited to acts of God, acts of Member, acts of third parties not under Terbine’s control, acts of any governmental body, war, insurrection, sabotage, armed conflict, terrorism, embargo, fire, flood, strike or other labor disturbance, interruption of or delay in transportation, unavailability of or interruption or delay in telecommunications or third party services, virus attacks or hackers, failure of third-party software or cloud services or inability to obtain raw materials, supplies, or power used in or equipment needed for provision of Services and the Terbine Exchange.
11.2. Dispute Resolution. Both Terbine and You agree to seek in good faith to resolve any dispute that may arise under this Agreement or relating to performance under or allegations of breach of this Agreement. If the dispute cannot be so resolved, the parties agree to submit the matter to mediation, to be held in Clark County, Nevada. If the dispute cannot be so resolved, the parties agree to submit the matter to binding arbitration to be conducted in Clark County, Nevada and in accordance with the rules of JAMS then prevailing, using one arbitrator selected by Terbine, one arbitrator selected by You, and a third arbitrator selected by the two arbitrators so selected. Either party may commence arbitration of the dispute by sending a written request for arbitration to the other party. The request shall state the nature of the dispute and the arbitration shall commence as soon as practicable after receipt of the written request. Each party shall bear their own costs of arbitration and share equally in the joint costs of arbitration, but the prevailing party may be awarded attorneys fees, costs, and other expenses of arbitration to the extent requested of and determined by the arbitrators. All arbitration decisions shall be final, binding, and conclusive as to the matter submitted to arbitration and between the parties. Legal judgment may be entered based upon such arbitration decision. The parties hereby consent and agree to the exclusive jurisdiction of the state and federal courts of Nevada for any such legal action, and waive any right to challenge jurisdiction or venue in such courts with regard to any suit, action, or proceeding under or in connection with the Agreement.
11.3. Injunctive Remedies. Breach of obligations set forth in this Agreement may result in irreparable harm to the other party that cannot be adequately relieved by money damages alone. Accordingly, both Terbine and You hereby acknowledge that upon any breach of this Agreement, the non-breachingparty may request in addition to any and all legal remedies, any and all applicable equitable remedies, including injunctive relief, without the need for that party to post any security. In particular, the choice of dispute resolution method or jurisdiction does not prevent either party from seeking specific performance, an injunction, or other equitable relief in any appropriate jurisdiction with respect to violation of intellectual property rights or for any actual or threatened breach.
11.4. Governing Law and Jurisdiction. The Agreement shall be governed by and construed under the laws of the State of Nevada without regard for the principles of conflicts of law of that State or any other state.
11.5. Arbitration Involving Member Outside of the United States. In the event Your principal place of business is located outside of the United States, Sections 11.2 through 11.4 shall apply to resolution of any dispute, claim or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation or validity thereof, except that any mediation and arbitration, including for the determination of the scope or applicability of this agreement to arbitrate, shall be determined by mediation or arbitration conducted in English at a mutually- and promptly-agreed upon location and, in the case of arbitration, administered by JAMS in accordance with the JAMS International Arbitration Rules, and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof.
11.6. Manner of Giving Notice. Except as otherwise specified in this Agreement, all notices related to this Agreement will be in writing and will be effective upon (a) the date of personal delivery, (b) the date of delivery by registered or certified U.S. mail, postage prepaid, or by recognized courier service, or (c), except for notices of termination or an indemnifiable claim (“Legal Notices”), “which shall clearly be identified in the Subject Line as “Legal Notice,” and delivered by means specified in (a) or (b), the date of successful transmission of the writing by electronic mail. All other notices, including bill-related notices to You, will be addressed to the information provided by You in your
Member Account. All notices to Us shall be sent to:
848 N. Rainbow Blvd. Unit 3230
Las Vegas, NV 89107
Attn: Chief Legal Officer
11.7. Export Compliance. You hereby acknowledge and agree that the Services, Data, Terbine Exchange and related technology that Terbine makes available (including technical data and technical assistance/training), and derivatives thereof, may be subject to import, re-import, export and re-export laws and regulations of the United States and other jurisdictions, including but not limited to the U.S. International Traffic in Arms Regulations, U.S. Export Administration Regulations and the regulations administered by the U.S. Department of Treasury, Office of Foreign Assets Control, which may prohibit or restrict certain operations or transactions. Your represent that You are not named on any U.S. government denied-party list. You shall not permit Users or any Third Party Data Providers to (a) access, use, supply, sell, transfer, transmit, export, or re-export any Services, Data, or the Terbine Exchange in or to a country currently embargoed or sanctioned by the U.S. (and You shall consult all relevant government publications regularly to ensure current and accurate awareness of embargoed or sanctioned countries); (b) sell, supply, transfer, transmit, export or re-export the Services, Data, Terbine Exchange and related technology in violation of these regulations to any third party mentioned in any list of restricted or sanctioned parties maintained by the U.S. government; or (c) sell, supply, transfer, transmit, export or re-export the Services, Data, Terbine Exchange and related technology in violation of these regulations to any third party that may or will use the Services, Data, or Terbine Exchange and/or related technology, in their entirety or in part, in any applications related to: (i) the research, design, development, production, testing, handling, operation, maintenance, storage, detection, identification or dissemination of chemical, biological or nuclear weapons; or (ii) the research, design, development, production, testing, handling, operation, maintenance, or storage of rocket systems (including but not limited to ballistic missiles, space launch vehicles and sounding rockets) or unmanned air vehicles (including but not limited to, cruise missile systems, target drones and reconnaissance drones). Terbine may from time to time conduct reviews to ensure continuous compliance with the applicable export control regulations and You agree to cooperate and promptly provide Terbine, upon request, with complete and accurate documentation and information regarding same. You will indemnify and hold Terbine harmless from and against any damage, loss, liability or expense (including attorneys’ fees) that Terbine may incur as a result of Your failure to comply with this Subsection 11.7.
11.8. Anti-Corruption. You agree that You have not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from Us or any of Our employees or agents in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction. If You learn of any violation of the above restriction, You will use reasonable efforts to promptly notify Us at
11.9. Entire Agreement and Order of Precedence. This Agreement and incorporated policies is the entire agreement between You and Us regarding Your use of Services, Data and the Terbine Exchange, and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. In the event of any real or perceived conflict or inconsistency among agreements, representations or proposals concerning the subject matter of this Agreement, this Agreement shall govern, provided that in the event of any conflict or inconsistency among the following documents, the order of precedence shall be: (1) the applicable Order Form and (2) this Agreement.
11.10. Counterparts. The Agreement may be executed in several counterparts, each of which shall be deemed an original, but all of which shall constitute one and the same instrument.
11.11. Modifications. Except as otherwise provided herein, no modification, amendment, or waiver
of any provision of the terms and conditions stated herein will be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted.
11.12. Assignment. Neither Terbine nor You may assign any of rights or obligations hereunder, whether by operation of law or otherwise, without the other’s prior written consent (not to be unreasonably withheld) and any attempt to do so shall be void. Provided, however, either party may assign this Agreement in its entirety and without further action or consent in the case of a merger or acquisition provided that such acquirer or surviving entity agrees to be bound by the terms of this Agreement, and the merged or acquired party shall provide written notice of the assignment to the other party as soon as reasonably possible. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors, and permitted assigns.
11.13. Relationship of the Parties. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship, or any other form of legal association between the parties. Neither Terbine nor You may represent itself as an agent, partner, or joint venture of the other or otherwise incur any obligation or liability on behalf of the other party. Neither may sell, quote prices or fees, or otherwise negotiate business terms for the other’s services.
11.14. Third-Party Beneficiaries. There are no third-party beneficiaries under this Agreement.
11.15. Waiver. No failure or delay by either party in exercising any right under this Agreement will constitute a waiver of that right.
11.16. Validity and Severability. Should any provision(s) of the Agreement be invalid or unenforceable for any reason, including deemed overbroad, such provision(s) shall be severed from this Agreement and shall not affect the validity or enforceability of any other provision of the Agreement, which shall otherwise remain in full force and effect.
11.17. Headings Descriptive. The headings of the several paragraphs of this Agreement are inserted for convenience only and shall not in any way affect the meaning or construction of this Agreement.
11.18. Official Language. The language of this Agreement is English. In the case of translation of this Agreement, if a conflict exists between this Agreement as stated in English and any version of this Agreement translated into another language, the English version shall govern.