Top Bid, a division of Randall-Reilly Publishing LLC
Subscription Terms and Conditions
This month and day, 2010
These Terms and Conditions constitute the entire agreement between the parties concerning Customerís access to and use of the Database, the Software, and the Site, and supersede and replace all other agreements or understandings between the parties and any representations made by or materials provided by Top Bid. No delay or failure by Top Bid to enforce any of its rights or Customerís responsibilities hereunder shall constitute a waiver by Top Bid. The Terms and Conditions are current as of the date set forth above and are subject to change without notice. Please print for your records. For Site access, please check these Terms and Conditions periodically for changes. Initial access to or use of the Database constitutes agreements to these Terms and Conditions, and continued use after any change constitutes agreement to such change.
1. Grant of Limited License. In exchange for the payment by Customer of all applicable fees, Top Bid hereby grants to Customer for its own internal use a single limited, non-exclusive, non-transferable, non-sublicenseable license for an individual user (ďUserĒ) to access and to use the Top Bid Database in accordance with Top Bidís procedures and these Terms and Conditions. The "Top Bid Database" is comprised of the Top Bid Online Serial Number Guide or the Top Bid Up-to-Date Auction Prices (subscriptions available separately) and may be delivered to Customer via the Software or made accessible to Customer via the Site by ongoing subscription (as described below). User may view or print the Database solely for his or her individual use in the ordinary course of Customerís business for the purpose for which it is intended; provided, that all titles, trademarks, trade names, copyright notices, and other proprietary notices of Top Bid, if any, are retained. Customer is expressly prohibited from reproducing, sublicensing, selling, renting, leasing or otherwise distributing copies of all or any part of the Top Bid Database, or permitting either direct or indirect access to or use of the Top Bid Database by or on behalf of any third party, including any employee or affiliated entity. If the Database is accessed via the Software, Customer may make one copy of the Software solely for back-up purposes. Customer agrees to designate one User for the subscription granted hereunder and to ensure Userís compliance with the terms hereof. Customer shall provide access to the Database to only the designated User for the license granted hereunder, and shall ensure that User preserves the confidentiality of Site credentials and security of access to the Database. User must be an employee of Customer. Customer and User acknowledge and agree that the subscription and license granted hereunder is for a single User. Subject to Top Bidís approval and the payment of additional fees, Customer may add subscriptions for additional Users and may substitute Users; provided, however that each User must have unique credentials for Site access. Customer shall furnish such information regarding Users as Top Bid may request from time to time.
2. Additional Terms Regarding Database and the Site. Customer shall be exclusively responsible for the supervision, management, control and use of the Database, including without limitation: (a) assuring proper machine configurations, audit controls and operating methods; (b) establishing adequate backup plans, based on alternative procedures and access to qualified programming personnel; (c) implementing sufficient recovery procedures and checkpoints to satisfy its requirements for security and accuracy of input, as well as, system restart and recovery in the event of a malfunction; (d) for Site access, Internet access through an Internet Service Provider; and (e) reasonable protection against computer intrusions and data exfiltration. Customer accepts the Database, the Software and the Site where is, as is and as available. The Site may be unavailable from time to time for routine or other maintenance, security, or other purposes in Top Bidís sole discretion. Customer agrees not to create any link to the Site without the prior express written consent of Top Bid (which may be withheld in Top Bidís sole discretion), and to maintain security of access to the Site and the Database. The Database, the Software and all Site materials and content are copyrighted materials of Top Bid, all rights reserved, or of the original creator. Trademarks, service marks, trade names and logos (ďTrademarksĒ) used or displayed in the Database or the Site are registered and unregistered Trademarks of Top Bid. Customer agrees to use the Database solely for the purposes provided herein and in accordance with all applicable laws and Top Bid procedures; provided, however, that all limits on the license of the Database shall also apply to the Site and the Software.
3. Disclaimer of Warranties. Data provided under these Terms and Conditions is obtained from public records or third party sources. Customer acknowledges that the data may not be complete or accurate. Customer further acknowledges that Top Bid does not verify the data or perform any services regarding data, other than as expressly defined herein. Accordingly, THE SERVICES, THE DATABASE, THE SOFTWARE, THE DATA, THE SITE AND OTHER DELIVERABLES FURNISHED HEREUNDER ARE PROVIDED ďAS ISĒ AND WHEN AVAILABLE, AND TOP BID HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND (WHETHER EXPRESS OR IMPLIED), INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY, OF FITNESS FOR A PARTICULAR PURPOSE OR SUITABILITY (WHETHER OR NOT TOP BID KNOWS OR HAS REASON TO KNOW OF SUCH PURPOSE), OF SATISFACTION OF CUSTOMER REQUIREMENTS, ARISING OUT OF A COURSE OF PERFORMANCE, DEALING OR TRADE USAGE, OR OF FREEDOM FROM NON-INFRINGEMENT, ERROR, INTERRUPTION, OR VIRUS OR OTHER DISABLING ROUTINE, TITLE, QUIET ENJOYMENT, DATA ACCURACY, SYSTEM ACCESS, INTEGRATION OR INFORMATIONAL CONTENT.
4. Limitation of Liability. TOP BIDíS LIABILITY HEREUNDER OR OTHERWISE IN CONNECTION WITH THE DATABASE, THE SOFTWARE, OR THE SITE WILL NOT EXCEED THE TOTAL AMOUNT OF ALL PAYMENTS RECEIVED BY TOP BID FROM CUSTOMER HEREUNDER FOR THE TERM IN WHICH ANY LIABILITY IS INCURRED BY TOP BID. IN NO EVENT SHALL TOP BID BE LIABLE UNDER THIS CONTRACT OR FOR BREACH HEREOF FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING, WITHOUT LIMITATION, LOST PROFITS OR LOSS OF BUSINESS, EVEN IF TOP BID HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY, OR FOR ANY CLAIM AGAINST CUSTOMER BY ANY OTHER PARTY. CUSTOMER ACKNOWLEDGES THAT FEES CHARGED BY TOP BID ARE BASED IN PART UPON THESE LIMITATIONS. Not in limitation of the foregoing, Top Bid shall not be liable for any loss or damage based on combined use of the Database, the Software, the Site or any other deliverable with third party services or products or related to use of the Database or the Site in violation of these Terms and Conditions or any other act or omission by Customer.
5. Term; Breach. The ďTermĒ of these Terms and Conditions will begin as of the date Site credentials are issued or the Software is delivered to Customer for access to the Database and will continue until either party has terminated upon 30 days' advance written notice to the other. Notwithstanding the foregoing, Top Bid may terminate the Terms and Conditions immediately if: (a) Customer fails to make any payment hereunder; or (b) Customer breaches Section 1, 2, or 6; or (c) (i) Customer breaches any other term hereof or of any of Top Bid's related procedures, and (ii) Customer fails to cure such breach within 14 days of Top Bid's sending notice to Customer thereof. The effect of termination shall be to discontinue Customerís receipt of the Database and access to the Site and to immediately require Customer to destroy the Software and any back-up copy thereof; the remaining provisions of the Terms and Conditions shall survive termination. Top Bid shall be entitled to injunctive relief and/or money damages for any breach hereof by Customer.
6. Ownership of Database. The Database, including any copies, translations or compilations of all or any part thereof, the Software, and the Site, and any revisions, modifications or additions made thereto, are each and shall each remain the sole exclusive property of Top Bid. Top Bid retains all intellectual property rights in or to the Database, the Software and the Site, and no title or interest to such intellectual property rights is transferred to Customer, and Customer agrees not to jeopardize, limit or interfere with any of Top Bidís rights in the Database, the Software or the Site or allow any third party to do any of the foregoing. Customer agrees to maintain the confidentiality and security of the Database and not to use or disclose all or any part thereof, except as expressly provided by the Terms and Conditions. Customer agrees that money remedies will not be sufficient in the event of any breach of this Section and that Top Bid will be entitled to injunctive relief.
7. Indemnification. Customer agrees to indemnify, defend and hold harmless Top Bid from all claims, demands, losses, expenses and costs whatsoever arising out of Customerís use of the Database, the Software, or the Site or Customerís breach of the Terms and Conditions or related Top Bid procedures.
8. Payment. For Site access, Customer agrees to pay the then-current annual subscription fee in accordance with the terms of the Terms and Conditions and any invoices sent by Top Bid from time to time. Annual fees are fully earned and non-refundable at the beginning of the Term, and payments are fully earned and non-refundable when due. For Software access, Customer agrees to pay the then-current licensing fee prior to delivery of the Software. Fees may be increased by Top Bid upon notice to Customer. All charges are exclusive of and Customer shall be solely responsible for the payment of all federal, state or local excise, sales, use, property and other taxes (other than taxes imposed solely on or for Top Bid's corporate franchise or net income) now or hereafter levied or imposed in connection with the Database, the Software, the Site, or any other service or transaction contemplated by these Terms and Conditions.
9. Assignment. Top Bid may assign to any third party all or any of its rights or responsibilities under these Terms and Conditions or otherwise with respect to the Database, the Software, or the Site.
10. Force Majeure. Top Bid shall be excused from any delay or failure caused by any event or contingency beyond its control, including, without limitation, acts of God, labor disputes or strikes, riots, war, terrorist or criminal acts, third party failure or interference, or computer virus or routine or other disabling routine or malfunction.
11. Entire Agreement; Governing Law. These Terms and Conditions may be amended and Top Bid may change the features and functionality of or access to all or any part of the Database, the Software, the Site or the related services or deliverables from time to time, with or without notice to Customer. These Terms and Conditions are governed by Alabama law.