These terms and conditions (“Terms of Use”) govern one or more applicable statements of work (each an “SOW”) (the SOW(s) and Terms of Use together the “Agreement”) between you, the client referenced in the SOW (“Client” or “you”), and us, BV Insights LLC, a Florida limited liability company with offices located at 6400 Congress Avenue, Suite 2050, Boca Raton, FL 33487 (“Cassandra” or “Vendor”) (each a “Party” and collectively the “Parties”).
In consideration of Client’s receipt of access to The Cassandra Report® or any Cassandra Property, as applicable, Client agrees to strictly comply with the following license terms and conditions:
- Definitions. (i) “The Cassandra Report®” means any tabulation of consumer, business or other information or data that Cassandra provides to Client in a standardized printed or electronic file format in the form of a report and all accompanying executive summaries; (ii) “Cassandra Data” means any data or information that Cassandra provides to Client pursuant to the provision of any services or deliverables set forth in an SOW; (iii) “Cassandra Property” means The Cassandra Report®, Cassandra Data, and any other technologies, methods, processes, know-how, techniques and any other intellectual property rights used, originated or developed in connection with The Cassandra Report® or for any other purpose by Vendor, excluding Client Data provided hereunder; (iv) “Client Data” means any customer or prospect data that Client supplies to Vendor for Vendor’s performance pursuant to this Agreement; and (v) “Confidential Information” means information and materials that a Party discloses to the other Party that the disclosing Party protects as confidential or proprietary, including any financial, technical, legal, marketing, customer or vendor information, lists, reports, strategies, records or data. Client’s Confidential Information includes Client Data. Vendor’s Confidential Information includes The Cassandra Report®, Cassandra Data, Cassandra Property and the Fees (as defined below).
- SOW; Payment. These Terms of Use govern one or more SOWs that detail the delivery dates and associated fees for delivery of The Cassandra Report® or other services or deliverables involving Cassandra Property (the “Cassandra Deliverables”). Client shall pay to Vendor the fees listed in the SOW (the “Fees”), and Vendor shall use commercially reasonable efforts to deliver the Cassandra Deliverables on the delivery dates set out in the applicable SOW.
- License.
- Subject to Client’s compliance with the payment terms stated herein and in the SOW, Vendor hereby grants to Client a limited, nonexclusive and nontransferable perpetual license to use the Cassandra Deliverables solely for Client’s internal use for analysis and planning, subject to these Terms of Use. Client agrees that Cassandra Property shall remain the sole property of Vendor, and Vendor shall own and retain exclusively all right, title and interest in and to Cassandra Property.
- Notwithstanding any language in this Agreement to the contrary, the insights and data contained in The Cassandra Report® may be shared by Client in presentations or reports made to Client's employees or third parties, so long as The Cassandra Report® is directly cited as the source of the insights and/or data. This Section 3(b) does not grant permission to share copies of any part of The Cassandra Report® with any unauthorized party, and does not grant permission to share access to the Cassandra platform located at www.cassandra.co with any unauthorized party.
- Subject to Client’s compliance with the payment terms stated herein and in the SOW, Vendor hereby grants to Client a limited, nonexclusive and nontransferable perpetual license to use the Cassandra Deliverables solely for Client’s internal use for analysis and planning, subject to these Terms of Use. Client agrees that Cassandra Property shall remain the sole property of Vendor, and Vendor shall own and retain exclusively all right, title and interest in and to Cassandra Property.
- Use Restrictions: The limited license set forth in Section 3 together with the use restrictions set forth in this Section 4 constitute the terms for Client’s use of Cassandra Deliverables. Client acknowledges and agrees to the following use restrictions:
- Client shall not share or disclose The Cassandra Report® with or to any third party other than to Client’s employees who are designated by Client as authorized users pursuant to the applicable SOW (the “Authorized Users”);
- Client shall not mail, telemarket or develop or apply a model using Cassandra Property; however, Client may use Cassandra Property for marketing planning as set forth in the foregoing Section 3;
- Client shall not modify, adapt, translate, reverse engineer, decompile, disassemble or create derivative works based on Cassandra Property (except as permitted herein);
- Client shall not or merge or incorporate The Cassandra Report® with any other file;
- Client shall issue appropriate instruction to each employee given access to Cassandra Deliverables regarding the restrictions set forth in these Terms of Use, and shall provide security to Cassandra Deliverables and Cassandra Property to the same or greater degree (and in no event less than a reasonable degree) that Client uses to protect Client’s Confidential Information;
- Client is legally responsible for any failure by Client or Client’s employees to comply with these Terms of Use; and
- Client agrees that in the event of an actual or threatened breach of these Terms of Use, Vendor will suffer irreparable harm and Vendor shall be entitled to injunctive relief without posting a bond, among other remedies which it may seek.
- Client shall not share or disclose The Cassandra Report® with or to any third party other than to Client’s employees who are designated by Client as authorized users pursuant to the applicable SOW (the “Authorized Users”);
- No Warranties. Client acknowledges that Vendor makes no representation or warranty of any kind with respect to the Cassandra Deliverables or Cassandra Property and that Vendor shall have no liability to Client resulting from Client’s use of the Cassandra Deliverables or Cassandra Property. VENDOR PROVIDES THE CASSANDRA DELIVERABLES AND CASSANDRA PROPERTY “AS IS” AND EXPRESSLY DISCLAIMS ALL WARRANTIES IN CONNECTION WITH THIS AGREEMENT, THE CASSANDRA DELIVERABLES AND CASSANDRA PROPERTY, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES AS TO THE ACCURACY, COMPLETENESS OR CURRENTNESS OF INFORMATION PROVIDED, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
- Confidentiality
- Restriction. The Parties may from time to time disclose to each other Confidential Information in connection with the performance of this Agreement. A Party receiving Confidential Information pursuant to this Agreement (“Recipient”) shall treat all Confidential Information provided by the disclosing Party (“Discloser”) as proprietary and confidential to Discloser and shall not disclose or permit disclosure of such Confidential Information to any third party, provided that Recipient may disclose Confidential Information to its employees, officers, or directors or legal or financial representatives on a need-to-know basis. Recipient shall safeguard all Confidential Information of Discloser with at least the same degree of care (and in no event less than reasonable care) as Recipient uses to protect its own Confidential Information. Recipient shall use Discloser’s Confidential Information solely for the purpose of fulfilling its obligations under this Agreement and shall not use or disclose such Confidential Information for its own benefit or for the benefit of others, except as otherwise authorized by this Agreement or by Discloser in writing.
- Exclusions. The following shall not be deemed Confidential Information and Recipient shall have no obligation with respect to any such information that is: (i) in or enters the public domain by no fault or wrongful act of Recipient; (ii) known by Recipient prior to disclosure by Discloser; (iii) disclosed to Recipient by a third party who was not under a similar restriction or obligation of confidentiality to Discloser and without breach of this Agreement; (iv) independently developed by Recipient without any breach of this Agreement, as shown by documentary evidence; (v) approved for release by written authorization of Discloser; or (vi) disclosed pursuant to the lawful requirement or order of a court or governmental agency, provided that, upon Recipient’s receipt of a request for such a disclosure, Recipient gives prompt notice thereof to Discloser (unless such notice is not possible under the circumstances) so that Discloser may have the opportunity to contest such disclosure and seek a protective order or other appropriate remedy.
- Return or Destruction. Confidential Information transmitted or disclosed hereunder will be and remain the property of Discloser, and Recipient shall, at Discloser’s election, promptly destroy and certify such destruction in writing or return to Discloser any and all copies thereof upon Discloser’s written request, subject to the terms of this Agreement.
- Remedies. The Parties acknowledge and agree that, given the unique and proprietary nature of Confidential Information, monetary damages may not be calculable or a sufficient remedy for a breach of this Section by Recipient, and that Discloser may suffer irreparable injury as a consequence of such breach. Accordingly, in the event of an actual or threatened breach of this Section, Discloser shall be entitled to seek injunctive relief to remedy such breach or threatened breach. Such remedies shall not be deemed to be exclusive remedies for a breach by Recipient but shall be in addition to any other remedies available to Discloser at law or in equity.
- Restriction. The Parties may from time to time disclose to each other Confidential Information in connection with the performance of this Agreement. A Party receiving Confidential Information pursuant to this Agreement (“Recipient”) shall treat all Confidential Information provided by the disclosing Party (“Discloser”) as proprietary and confidential to Discloser and shall not disclose or permit disclosure of such Confidential Information to any third party, provided that Recipient may disclose Confidential Information to its employees, officers, or directors or legal or financial representatives on a need-to-know basis. Recipient shall safeguard all Confidential Information of Discloser with at least the same degree of care (and in no event less than reasonable care) as Recipient uses to protect its own Confidential Information. Recipient shall use Discloser’s Confidential Information solely for the purpose of fulfilling its obligations under this Agreement and shall not use or disclose such Confidential Information for its own benefit or for the benefit of others, except as otherwise authorized by this Agreement or by Discloser in writing.
- Compliance with Laws. Both Parties agree to comply with all federal, state and local laws, rules and regulations applicable to each Party’s receipt and use of data provided to the other. Vendor reserves the right to revise these Terms of Use, (including without limitation the right to withdraw or restrict affected data) to meet any requirement imposed by federal, state, or local law, rule or regulation, or to address matters concerning privacy and confidentiality. In the event that the requirements of any applicable law, rule or regulation change to such an extent that Client is no longer legally permitted to use The Cassandra Report® or other Cassandra Property, Client shall be entitled to terminate the affected SOW on ten (10) days prior written notice to Vendor, and neither Party shall be liable to the other for any damages or liabilities related to such termination, except for any obligations or liabilities already accrued prior to termination.
- Indemnification.
- Vendor. Vendor shall indemnify, defend and hold harmless Client and its officers, directors and employees from and against any and all claims to the extent arising as a result of (i) Vendor’s violation of any applicable federal, state or local law, regulation, rule or judicial or administrative order in Vendor’s performance hereunder or provision of the Cassandra Data; or (ii) Vendor’s breach of its duties regarding Client’s Confidential Information, as set forth in Section 6.
- Client. Client shall indemnify, defend and hold harmless Vendor and its officers, directors and employees from and against any and all claims to the extent arising as a result of any (i) infringement of any patent, copyright or trade secret, or any other third party rights in connection with Client’s provision or Vendor’s use of any Client Data in accordance with this Agreement; (ii) Client's violation of any applicable federal, state or local law, regulation, rule or judicial or administrative order in Client’s use of any Cassandra Deliverable, including The Cassandra Report®; or (iii) breach of its duties regarding Vendor’s Confidential Information, as set forth in Section 6.
- Procedure. A Party seeking indemnification for a claim pursuant to these Terms of Use (“Indemnified Party”) shall provide written notice detailing the circumstances of the claim to the Party responsible for indemnifying against the claim (“Indemnifying Party”) promptly following the discovery of such claim by the Indemnified Party. Failure to timely provide such notice shall not diminish Indemnifying Party’s indemnification obligation except to the extent Indemnifying Party’s ability to defend such claim is materially prejudiced by such failure or delay. Indemnified Party shall provide Indemnifying Party with such information and cooperation as Indemnifying Party may reasonably request.
- Vendor. Vendor shall indemnify, defend and hold harmless Client and its officers, directors and employees from and against any and all claims to the extent arising as a result of (i) Vendor’s violation of any applicable federal, state or local law, regulation, rule or judicial or administrative order in Vendor’s performance hereunder or provision of the Cassandra Data; or (ii) Vendor’s breach of its duties regarding Client’s Confidential Information, as set forth in Section 6.
- Limitation of Liability. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER party FOR ANY INCIDENTAL, indirect, CONSEQUENTIAL, punitive or special DAMAGES (INCLUDING BUT NOT LIMITED TO DAMAGES TO BUSINESS REPUTATION, LOST BUSINESS OR LOST PROFITS), WHETHER FORESEEABLE OR NOT AND HOWEVER CAUSED, EVEN IF SUCH PARTY IS ADVISED OF THE POSSIBILITY THAT SUCH DAMAGES MIGHT ARISE. VENDOR’S MAXIMUM LIABILITY IN CONNECTION WITH ANY PARTICULAR SOW SHALL NOT EXCEED THE AMOUNT PAID BY CLIENT TO VENDOR UNDER THAT SOW.
- Non-Solicitation. Neither Party shall actively recruit or solicit the other Party’s employees during the term of any current SOW and for a period of one (1) year thereafter without such other Party’s prior written consent. Solicitations directed to the general public are not prohibited by the foregoing.
- Survival. These Terms of Use shall govern Client’s use of Cassandra Deliverables and Cassandra Property. In the event an SOW is terminated for any reason, the provisions of these Terms of Use which by their nature should survive termination of the SOW, shall so survive such termination.
- Complete Agreement; Choice of Law and Venue. This Agreement sets forth the entire agreement between Client and Vendor with respect to the subject matter hereof and shall be governed and construed in accordance with the internal laws of the State of New York without regard to any conflicts of law rules. Each Party hereby irrevocably consents to the exclusive jurisdiction of the State and Federal courts sitting in New York County, New York for the purpose of hearing and deciding any and all disputes arising out of or relating to this Agreement. If for any reason a court of competent jurisdiction finds any provision of this Agreement, or portion thereof, to be unenforceable, that provision of the Agreement shall be enforced to the maximum extent permissible so as to affect the intent of Client and Vendor, and the remainder of this Agreement shall continue in full force and effect.
Updated October 27, 2023