THIS LICENSE AGREEMENT (“License”) is made as of the Effective Date in Schedule 1 by and between the NATIONAL INVESTMENT CENTER FOR THE SENIORS HOUSING & CARE INDUSTRY, INC. (“NIC”), and Licensee, in consideration of the Subscription Fee in Schedule 1 and the mutual promises of the parties herein.
NIC grants to Licensee a limited, non-exclusive, non-transferable, indivisible, and non-sublicenseable license (the “License”) to access, download, copy, use, and extract the data (“Data”) and analysis (collectively, the “Licensed Materials”), however delivered or acquired, from the NIC Market Area Profiles service and website (“MAP®”) for Licensee’s internal business purposes only and subject to the terms and conditions of this License.
Licensee agrees that it shall not receive any of NIC’s right, title, or interest in NIC’s Data and or Services, or NIC’s Confidential Information. Licensee further agrees that, except as expressly set forth herein, it is claiming no right to NIC’s rights in the Licensed Materials and MAP, which shall remain the exclusive property of NIC or its affiliates. Licensee acknowledges and agrees that NIC owns all worldwide right, title, and interest in and to the Licensed Materials, and that this License shall not be construed in any way to provide to Licensee any express or implied ownership rights or license to use the Licensed Materials, other than as expressly permitted in this License, in any commercial time sharing, rental, or service bureau enterprise, or by directly or indirectly transferring, selling, assigning, sublicensing, or otherwise conveying, disclosing, divulging, or disseminating the Licensed Materials to third parties.
Notwithstanding anything contained herein, Licensee may use Insubstantial Amounts of the Licensed Materials in the normal conduct of its business for use in Authorized Publications to Licensee’s employees, and to a designated consultant, advisor or agent provided that such party agrees to maintain, and maintain the confidentiality of such Insubstantial Amounts of Licensed Materials. “Authorized Publications” means internal asset management reports, feasibility studies, appraisals, property offering memoranda, investor presentations, and broker opinions of value. “Insubstantial Amounts of the Licensed Materials” means an amount of the Licensed Materials that, in any medium, form, or media (i) has no independent commercial value; (ii) could not be used as a substitute or alternate for the License and/or MAP; and (iii) does not compete with MAP, or would not be reasonably expected to compete with MAP (collectively, the foregoing (i), (ii), and (iii) are the “Publication Limitations”). Such employees, designated consultants, advisors, and agents receiving Insubstantial Amounts of Licensed Materials are defined herein as “Authorized Persons”. For avoidance of doubt, Licensee may not use the Licensed Materials in other than Authorized Publications, such as (but not limited to) external reports, memoranda, and presentations to existing and potential customers. Licensee shall use its best efforts to prevent any form of publication, reproduction, transmission, broadcast, distribution, dissemination, or use of the Licensed Materials beyond that expressly permitted in this Section 1.
Licensee agrees to include the following text, shown in quotes below, on or in any form of use (including, without limitation, documents) of the Licensed Materials in the following instances:
A. Use of Licensed Materials in Charts and Graphs: “Source: NIC MAP® Data and Analysis Service.”
B. Use of Licensed Materials in Text: “According to the NIC MAP® Data and Analysis Service, [Quarter and/or Year (if applicable)].”
C. Use of Licensed Materials in any Document: “For more information on the NIC MAP® Data and Analysis Service, please visit www.NICMAP.org or call 410-267-0504” (in addition to instances in the foregoing A. and/or B.).
2. Term; Fee.
This License shall be in effect from the Effective Date until the term expiration date set forth on Schedule 1 (“Term”). The fee for the Term is also set forth on Schedule 1 (“Subscription Fee”). NIC may offer to extend the Term by providing an updated renewal Schedule 1. The renewal subscription fee may be higher than the Subscription Fee for the current term. NIC agrees to provide Licensee with notice of any price increase at least sixty (60) days prior to the end of the term. Licensee may accept such renewal offer by countersigning the renewal Schedule 1 prior to the expiration of the current term. If Licensee so accepts the renewal offer, NIC shall counter-sign the renewal Schedule 1 and substitute it for the then current Schedule 1; the renewal Schedule 1 shall thereafter be effective upon the expiration of the then current term.
3. Duration of License.
The License granted herein shall exist for only so long as the Term. Upon the expiration of the Term or the earlier termination of this License: (i) all rights under this License shall cease, without the requirement of NIC to perform or refrain from any action of any kind, including notice of termination; (ii) the passwords issued pursuant to this License shall no longer be in effect; (iii) Licensee shall promptly return to NIC all Licensed Materials and copies thereof and delete any Licensed Materials that Licensee has stored electronically; and (iv) a responsible officer of Licensee shall thereupon certify in writing to NIC compliance with this provision.
4. Content Delivery and Changes.
All content delivered to the Licensee pursuant to this License shall be delivered electronically. Licensee acknowledges and agrees that the timing of the delivery of all or a portion of the Licensed Materials may vary from time to time during the Term. Licensee acknowledges and agrees that NIC may make changes to the Licensed Materials from time to time. By continuing to access the Licensed Materials from MAP, Licensee agrees to be bound by such changes.
Unique user names and passwords will be issued by NIC to each of the Licensee’s employees identified on Schedule 1 as authorized to access the Licensed Materials from MAP. Passwords are non-transferable and shall expire when an employee ceases to be a MAP user or to be employed by the Licensee, whereupon the Licensee shall notify NIC and NIC shall disable such user name and password to a different employee; provided, however, that at no time shall the number of users and passwords exceed the number of employees listed in Schedule 1. Licensee shall use its best efforts to prevent the sharing of passwords with any person or entity within or outside of its company. NIC and Licensee will update Schedule 1 accordingly at the time of Term renewal (if applicable).
6. Derived Data.
“Derived Data” shall mean data created by Licensee as a result of combining, processing, changing, merging, converting, manipulating, or calculating the Data or any portion thereof with other data and which (i) is not intended and cannot be readily employed as a substitute for the underlying Data and (ii) cannot be readily reverse-engineered, disassembled, or decompiled such that a third party may access the Data via the Derived Data. NIC agrees that it shall have no right or title to any Derived Data and acknowledges that Derived Data shall be the property of Licensee, provided that its creation does not violate the terms of this License.
Any information, including, without limitation, materials, processes, statistical models, metric formulas, forecast models, programs, codes, designs, techniques, and ideas of NIC (collectively, “Confidential Information”) that is obtained or accessible by Licensee in addition to the Licensed Materials shall not be used or disclosed for any purpose by Licensee; is not part of the license granted by this License; and must be secured, protected, and kept confidential by Licensee.
Neither party shall use the other party’s name, image, or logo in connection with any press release, promotional material, advertising, or similar publication, or any report or case study or other publication, without the other party’s prior written consent, except that NIC shall have the right to use Licensee’s name and logos in NIC’s marketing and on its website for the sole purpose of identifying Licensee as a MAP subscriber.
Licensee agrees to use the Licensed Materials in compliance with the restrictions of this License and all applicable federal, state, and local laws, rules, and regulations, including, but not limited to, applicable privacy, data protection, and anti-trust laws. It is Licensee’s responsibility to authorize, monitor, and control access to and use of the Licensed Materials and Confidential Information by Authorized Persons and any other persons on Licensee’s premises or using Licensee’s information systems. Licensee is solely responsible for: (a) all use of the Licensed Materials and Confidential Information by anyone who obtains access to the Licensed Materials or Confidential Information through Licensee; (b) compliance of Licensee’s authorized users with the terms and conditions of this License; and (c) instructing Licensee’s Authorized Parties not to allow any other person to use their access privileges. Licensee shall notify NIC immediately of any use or disclosure of the Confidential Information or Licensed Materials that is not in accordance with the terms of this License or any breach of security or confidentiality.
Licensee shall not take any action or use the Licensed Materials in any manner, and shall not permit Licensee’s authorized users of the Licensed Materials to take any action or use the Licensed Materials in any manner, that adversely affects and/or infringes upon MAP and NIC’s proprietary rights in the Licensed Materials, including, without limitation, NIC’s patent, copyright, trademark, and trade secret rights, nor shall Licensee alter or amend any of the Licensed Materials.
Licensee agrees that it will not use or permit any other person to use the MAP service and the Licensed Materials for any illegal purpose or any purpose prohibited by this License, and Licensee agrees that it will not use the MAP service and the Licensed Materials in any way to compete with MAP and NIC, nor use the Licensed Materials in any way so as to assist or allow a third party to compete with MAP and NIC.
Without limiting the generality of the foregoing, Licensee agrees that it will not reverse engineer or manipulate the Licensed Materials (including, without limitation, the Data) so as to reveal or access information or any of the Data on a single property.
NIC has implemented written policies and procedures and training of its employees to ensure compliance with applicable securities laws and regulations, including but not limited to, procedures regarding insider trading and to ensure that research or other information provided to Licensee orally or in writing (including electronic communications) does not contain any material non-public information concerning any company.
9. Disclaimer and Limitation of Liability.
Licensee acknowledges and agrees to the following disclaimers and limitations of liability.
A. THE LICENSED MATERIALS AND MAP® ARE PROVIDED TO THE LICENSEE ON AN “AS IS” BASIS, WITHOUT ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED. NIC DISCLAIMS ANY WARRANTY THAT THE LICENSE MATERIALS AND MAP AND ANY RELATED SERVICES PROVIDED WILL BE ACCURATE OR ERROR-FREE, AND DISCLAIMS ANY IMPLIED WARRANTIES OF ANY KIND, INCLUDING BUT NOT LIMITED TO WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE OR MERCHANTABILITY. IN ADDITION, NIC DISCLAIMS ANY LIABILITY TO LICENSEE FOR THE INFRINGEMENT OF PROPRIETARY RIGHTS IN THE LICENSED MATERIALS OR ANY PORTION THEREOF.
B. NIC WILL USE ITS COMMERCIALLY REASONABLE EFFORTS TO SUPPLY ACCURATE, TIMELY INFORMATION TO THE LICENSEE. LICENSEE ACKNOWLEDGES AND AGREES THAT ERRORS OR MISTAKES MAY OCCUR WITH RESPECT TO THE LICENSED MATERIALS OR MAP. ACCORDINGLY, LICENSEE ACKNOWLEDGES AND AGREES THAT THE LICENSED MATERIALS SHALL NOT BE RELIED UPON IN MAKING INVESTMENT DECISIONS.
C. IN NO EVENT SHALL NIC BE LIABLE TO LICENSEE FOR ANY INDIRECT, SPECIAL, OR CONSEQUENTIAL DAMAGES OR LOST PROFITS ARISING OUT OF OR RELATED TO THIS LICENSE. THE PARTIES AGREE THAT NIC’S LIABILITY TO LICENSEE SHALL IN NO EVENT EXCEED THE TOTAL SUBSCRIPTION FEES PAID TO NIC BY THE LICENSEE DURING THE CURRENT TERM.
D. LICENSEE IS RESPONSIBLE FOR INDEPENDENTLY VERIFYING THE ACCURACY AND COMPLETENESS OF ALL LICENSED MATERIALS, AND ANY USE OF AND ANY ACTION TAKEN OR NOT TAKEN BASED UPON THE LICENSED MATERIALS SHALL BE THE SOLE RESPONSIBILITY OF LICENSEE. LICENSEE ACKNOWLEDGES THAT NIC HAS NO CONTROL OVER OR RESPONSIBILITY FOR LICENSEE’S USE OF THE LICENSED MATERIALS AND THAT NIC HAS NO KNOWLEDGE OF THE SPECIFIC OR UNIQUE CIRCUMSTANCES UNDER WHICH THE LICENSED MATERIALS MAY BE USED BY LICENSEE.
10. Events of Default; Termination.
Each party shall have the right to terminate this License following the occurrence of an Event of Default by the other party. Each of the following events shall constitute an “Event of Default” for the purposes of this License: Licensee’s failure to pay the Subscription Fee when due; either party’s breach of the terms of this License that has not been cured within thirty (30) days following the alleged breaching party’s receipt of written notice from the non-breaching party regarding the nature of the alleged breach; NIC acquiring knowledge that Licensee is using the Licensed Materials or Derived Data in violation of this License or in any manner that allegedly violates any applicable law (as to which, the thirty (30)-day cure period shall not apply); an assignment of this License by either party for the benefit of creditors; the filing of a petition in bankruptcy by either party; the appointment of a receiver, trustee, liquidator, receiver-manager, or similar custodian for either party that is not dismissed within sixty (60) days; or either party has voluntarily or involuntarily commenced proceedings for dissolution or liquidation, or has ceased to carry on its business in the ordinary course.
Licensee acknowledges that the rights granted to Licensee hereunder are conditioned upon NIC’s agreement with one or more data sources and NIC’s continued right to license any Licensed Materials received from a data source to Licensee. Licensee acknowledges and agrees that NIC may terminate this License (with a proportionate reduction in Fee), upon written notice to Licensee, in relation to all or any portion of the Licensed Materials in the event of the termination for any reason of any agreement between NIC and any data source under which NIC is authorized to enter into this License in relation to the Licensed Materials (or portion thereof).
11. NIC Remedies.
Licensee agrees that, the case of an uncured Event of Default in respect of Licensee, or an alleged breach or a threatened breach by Licensee of this License, NIC will not have an adequate remedy at law, including monetary damages, and will suffer irreparable harm, and that, therefore, NIC shall be entitled to a temporary restraining order, preliminary and permanent injunction, specific performance, or other form of equitable relief, without bond. Such relief shall be in addition to any other rights or remedies of NIC at law or under this License, including, but not limited to, rights of termination under Section 10 hereof and monetary damages. Licensee agrees to indemnify and hold NIC harmless from any cost, loss, claim, suit, or damage that NIC may incur or suffer arising out of Licensee’s breach of the terms of this License.
12. Disclaimer and Limitation of Liability.
Licensee acknowledges and agrees to the following disclaimers and limitations of liability.
A. This License contains the entire License and agreement between the parties. There are no covenants, representations, or warranties not set forth herein. This License may be changed, modified, or discharged only by a written instrument signed by both parties hereto.
B. This License shall be binding upon and inure to the benefit of the parties hereto, and to their successors, and to their assigns, but only to the extent assignment is permitted under this License.
C. This License shall be interpreted and construed in accordance with the laws of the state of Maryland where it was offered, negotiated, executed, and delivered. If the parties are unable to resolve their differences over any particular point, they shall submit their differences to binding arbitration at the American Arbitration Office in Annapolis, Maryland, in accordance with the then-current Commercial Arbitration Rules of the American Arbitration Association. If one or both parties shall claim fault on the part of the other, the prevailing party shall be reimbursed by the party found to be at fault for any costs, including reasonable legal fees and interest as set forth herein, that the prevailing party incurs in prosecuting or defending any such arbitration.
D. Nothing contained in this License shall be construed to constitute the parties hereto as a partner or agent of the other.
E. Neither the failure nor any delay on the part of either party to exercise any right, power, or privilege will operate as a waiver thereof, nor will the waiver by either party hereto of any default or breach of any term, condition, or covenant of this License be deemed to be a waiver of any other breach of the same or any other term, condition, or covenant contained herein. If any provision of this License is found to be invalid, illegal, or unenforceable under any applicable law or regulation, it is to that extent deemed to be omitted, and the remaining provisions of this License shall not be affected in any way.
F. Neither party hereto is responsible for any breach hereof arising by reason of any event, omission, accident, or other cause or matter beyond its reasonable control, wherever it occurs (and, without limiting the generality of the foregoing, NIC shall have no financial liability in the event of any delay in delivery, or failure for any reason to deliver, the MAP service and Licensed Materials or any updates or changes thereto or portions thereof, or by any reasons of any failure on its part to take any steps necessary for the purpose of this License).