This Agreement is entered into between IQ DATA SYSTEMS, a
California corporation and the entity first set forth above hereof
("Subscriber") in the City of Sacramento and County of Sacramento, State of
California. Agreed to terms and conditions are as follows:
1. SERVICE. IQ DATA SYSTEMS provides
nationwide public record information, document retrieval and related services
("Services") using its proprietary databases and information obtained from
third parties ("Third Parties"). Subscriber hereby subscribes to Services for
use as a factor in making its business decisions and agrees to pay to IQ DATA
SYSTEMS the applicable rates and charges therefore set forth in Paragraph 3
below.
2. PERFORMANCE. IQ DATA SYSTEMS will
use its best efforts to deliver Services requested by Subscriber in an
expeditious and efficient manner and to regularly access, update, augment and
maintain its compilation of information gathered from selected public records
and other sources used in the provision of Services hereunder. Subscriber
accepts all information AS IS.
3. CHARGES TO SUBSCRIBER. For each
response to a request for information, including "no record found," Subscriber
agrees to pay to IQ DATA Systems the applicable charge then prevailing for
Services rendered to Subscriber. Subscriber shall pay to IQ DATA SYSTEMS prices
as updated from time to time through on-line announcements, Subscriber
Bulletins, and published price schedules. Current and future IQ DATA SYSTEMS
pricing documents are deemed incorporated herein.
4. SUBSCRIBER USE LIMITATIONS. Subscriber
acknowledges that IQ DATA SYSTEMS and/or Third Parties retain all right, fide
and interest under applicable copyright and related laws in the databases and
materials contained therein used to provide Services hereunder, and Subscriber
shall use such materials consistent with such right, fide and interest and
notify IQ DATA SYSTEMS of any threatened or actual infringement thereof.
Subscriber further acknowledges that this Agreement grants Subscriber a limited
license in exchange for payment of the fees and charges set forth in Paragraph
3 hereof and Subscriber shall not reproduce, retransmit, publish or otherwise
transfer for commercial exploitation any information that Subscriber receives
from Services, except to employees whose duties reasonably relate to the
legitimate business purposes for which the information is requested and legally
in the ordinary course of its business. Upon approval of intended use(s) by IQ
DATA SYSTEMS, Subscriber agrees to limit use and re-dissemination of
information from Services solely to use(s) set forth under Business Use(s)
provided by Subscriber on the Application for Services. Subscriber shall at no
time represent that it is the authorized agent or representative of IQ DATA
SYSTEMS or any Third Party. Subscriber shall notify IQ DATA SYSTEMS immediately
of any changes to the information on Subscriber's Application for Services.
5. NEGATION OF LIABILITY/WARRANTY. NEITHER
IQ DATA SYSTEMS NOR THIRD PARTIES SHALL BE LIABLE TO SUBSCRIBER OR TO ANY
PERSON CLAIMING THROUGH SUBSCRIBER OR TO WHOM SUBSCRIBER MAY HAVE PROVIDED
SERVICE-RELATED DATA FOR ANY LOSS OR INJURY ARISING OUT OF OR CAUSED IN WHOLE
OR IN PART BY IQ DATA SYSTEMS'S OR THIRD PARTIES' NEGLIGENT ACTS OR OMISSIONS
IN PROCURING, COMPILING, COLLECTING, INTERPRETING, REPORTING, COMMUNICATING, OR
DELIVERING SERVICES OR IN OTHERWISE PERFORMING THIS AGREEMENT. SUBSCRIBER
ACKNOWLEDGES THAT EVERY BUSINESS DECISION INVOLVES ASSUMPTION OF A RISK, AND
THAT NEITHER IQ DATA SYSTEMS NOR ANY THIRD PARTY UNDERWRITES THAT RISK IN ANY
MANNER WHATSOEVER. IF, NOTWITHSTANDING THE FOREGOING, LIABILITY CAN BE IMPOSED
ON IQ DATA SYSTEMS OR A THIRD PARTY, THEN SUBSCRIBER AGREES THAT IQ DATA
SYSTEMS'S AND/OR THIRD PARTIES' AGGREGATE LIABILITY FOR ANY AND ALL LOSSES OR
INJURIES TO SUBSCRIBER ARISING OUT OF ANY ACT OR OMISSION OF IQ DATA SYSTEMS
AND/OR THIRD PARTIES IN CONNECTION WITH ANYTHING TO BE DONE OR FURNISHED UNDER
THIS AGREEMENT, REGARDLESS OF THE CAUSE OF THE LOSS OR INJURY (INCLUDING
NEGLIGENCE) AND REGARDLESS OF THE NATURE OF THE LEGAL OR EQUITABLE RIGHT
CLAIMED TO HAVE BEEN VIOLATED, SHALL NEVER EXCEED THE COST OF THE SERVICE OR
SERVICES TO WHICH A GIVEN CLAIM RELATES CHARGED TO SUBSCRIBER, AND SUBSCRIBER
COVENANTS AND PROMISES THAT IT WILL NOT SUE IQ DATA SYSTEMS AND/OR THIRD
PARTIES FOR AN AMOUNT GREATER THAN SUCH SUM EVEN IF IQ DATA SYSTEMS AND OR
THIRD PARTIES WERE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND THAT IT WILL
NOT SEEK PUNITIVE DAMAGES IN ANY SUIT AGAINST IQ DATA SYSTEMS AND/OR THIRD
PARTIES, ALL IN CONSIDERATION OF THE RECEIPT BY SUBSCRIBER OF SERVICES AT THE
RATES CHARGED BY IQ DATA SYSTEMS HEREUNDER, WHICH ARE FAR LOWER THAN WOULD BE
AVAILABLE TO SUBSCRIBER ABSENT THE WAIVERS AND DISCLAIMERS CONTAINED HEREIN. IQ
DATA SYSTEMS AND THIRD PARTIES DO NOT MAKE AND HEREBY DISCLAIM ANY WARRANTY,
EXPRESS OR IMPLIED. IQ DATA SYSTEMS AND/OR THIRD PARTIES DO NOT GUARANTEE OR
WARRANT THE CORRECTNESS, COMPLETENESS, CURRENTNESS, MERCHANTABILITY, OR FITNESS
FOR A PARTICULAR PURPOSE OF THE SERVICES OR THE COMPONENTS THEREOF.
6. AGREEMENT ENTIRETY. This Agreement
(including all pricing documents, Schedules, Addenda and Exhibits) sets forth
the entire understanding and Agreement between IQ DATA SYSTEMS and Subscriber
and supersedes any prior or contemporaneous oral or written agreements or
representations, except that access to and use of Third Party services may be
governed by terms and conditions different than or in addition to those herein.
By receipt of Services, Subscriber agrees to, and shall comply with, such
different and/or additional terms of Third Parties and such changes to this
Agreement as IQ DATA SYSTEMS shall make from time to time by notice to
Subscriber. This Agreement shaft be interpreted in accordance with the laws of
the State of California. Violation by Subscriber of state or federal laws, IRSG
Principles, or IQ DATA SYSTEMS'S or Third Parties' established policies and
procedures, such as abuse of Services by media subscribers, may result in
immediate termination of this Agreement in IQ DATA SYSTEMS'S sole discretion.
7. PAYMENT OF FEES. Subscriber shall
be responsible for payment for all Services obtained through Subscriber's
access identification code. Payment by Subscriber is due and payable ten (10)
days from the date of invoice. If payments are past due more than ten (10) days
from the date of invoice, IQ DATA SYSTEMS may interrupt service. If payments
are past due more than 25 days, IQ DATA SYSTEMS may terminate this Agreement.
Subscriber is responsible for payment of all collection costs and attorney fees
incurred by IQ DATA SYSTEMS through its efforts to collect on balance (s) owed
by subscriber. All remittances shall be sent to IQ DATA SYSTEMS, 1401 El Camino
Ave, 5th Floor, Sacramento, CA 95815.
8. TERM OF CONTRACT. This Agreement
may be terminated by thirty (30) days' written notice from either party to the
other.
9. SUBSCRIBER CREDIT INFORMATION. By
executing this Agreement, Subscriber acknowledges and agrees that its consumer
credit report or reports may be requested by IQ DATA SYSTEMS in accordance with
the federal Fair Credit Reporting Act from one or more consumer reporting
agencies in connection with this application. Subsequent consumer credit
reports may be required or used by IQ DATA SYSTEMS in connection with any
update, renewal or extension of credit to Subscriber. Upon request, Subscriber
will be informed whether any consumer credit report was requested and, if so,
the name and address of the consumer reporting agency that furnished the report
to IQ DATA SYSTEMS.
10. INDEMNIFICATION.
Subscriber hereby agrees to protect, indemnify, defend and hold harmless IQ
DATA SYSTEMS and all Third Parties from and against any and all costs, claims,
demands, damages, losses and liabilities (including actual attorneys' fees)
arising from or in any way related to use of information by Subscriber (or any
third party receiving such information from or through Subscriber) furnished by
or through IQ DATA SYSTEMS to the extent such costs, claims, demands, damages,
losses or liabilities (including actual attorneys' fees) do not result from the
improper acts or omissions of IQ DATA Systems or Third Parties. Provisions
hereof related to release of claims, indemnification, use of information and
data, payment for Services and disclaimer of warranties shall survive any
termination of this Agreement.