Website Data Club Agreement

Revised December 6, 2017

1. Acceptance of Terms

We are glad you are considering becoming a participant with Openhill’s Website Data Club (collectively, the “Club”) and found online at openhill.com/website-data-club.  This Club Agreement is in addition to any other agreement to which you have agreed in connection with the Club, including any policies, procedures or rules (our “Terms”).  Any breach of the Terms will be a breach of this Agreement.  In the event of any inconsistency between this Club Agreement and any of those agreements, the Terms of this Club Agreement shall govern.  These Terms are a legal contract between you and Openhill, LLC, a limited liability company organized under the laws of the State of Indiana, U.S.A.

2. Your Provision of Data

Once you sign up to become a participant in the Club, you will be providing information about your website automatically, together with any additional information that you decide to submit to us (your “Data”).  We will use your Data to compile and distribute reports and insights to you about your business and website and, after your Data has been aggregated with the data of others, about your professional field to a wider audience.  In order to keep your individualized Data visible only to you and us, we will mask your data, and we will combine your Data with the data of others in a non-reversible manner into our own aggregate data set that can be shared with others without fear of disclosing private data.

3. Reports and Insights

We will provide you with periodic reports and insights about the condition of your website, your business, or the state of the market climate (our “Reports”) via email, through links in our website, or through queries you may run on your own in our website.

4. Grant of Authority

A. You hereby appoint us as a worldwide, non-exclusive license to your Data, which we may license or sublicense to third parties.  For your Data, you grant to us:

i. The worldwide right to market and sublicense the right to copy, use, reproduce, distribute, redistribute, sublicense, publish, republish, upload, post, transmit, broadcast, crop, modify, alter, create derivative works of, package, repackage, produce and sell prints or similar image products, or publicly perform or display Data to prospective licensees or purchasers in any and all media now in existence or that may in the future be introduced: (i) through the Club; and (ii) through other venues owned or operated by us and others from time to time, provided that we not disclose your individualized data to anyone without your express written consent; and

ii. The right to grant perpetual, worldwide, non-exclusive licenses or sublicenses that are subject to the same limitations as our own license.

B. In addition to the foregoing grant, we and our sublicensees may post, reproduce, modify, display, make derivative works or otherwise use any Data for our and their own business purposes relating to the promotion of your Data and the Club, and promote the licensing of the Data, provided that we not disclose your individualized data to anyone without your express written consent. No compensation shall be due you for use of the Data for such purposes.

C. We and you agree that all rights, including title and copyright, in and to your Data will be retained by you, and no title or copyright is transferred or granted in any way to us or any third party except as explicitly provided in this Club Agreement.

5. Intellectual Property Matters

A. You acknowledge that we prohibit any Data or any other material that infringes on any patent, trademark, copyright, trade secret, right to privacy, right to publicity, or any other applicable law or proprietary right to be uploaded to the Club.

B. By uploading Data, you are warranting that you own all proprietary rights or are the authorized representative of the applicable copyright owner(s) of such Data, including copyright, in and to the Data with full power to grant the rights contemplated in this Club Agreement. To the extent that the Data contains images of people or persons, you represent and warrant that you have obtained valid, binding and sufficient model releases and property releases from all required parties and that you will keep all such releases and provide a copy to us if requested.

C. You agree that neither we nor any of our directors, officers, employees, managers, partners, owners, affiliates or agents shall be liable for any damages, whether direct, indirect, consequential or incidental, arising out of the use of, or the inability to use any Data or any error, omission or other matter relating to a model or property release respecting your Data.

6. Passwords

You acknowledge and agree that you will be responsible for each and every access or use of the upload portions of the Club that occurs in conjunction with your member name and your passwords. We shall have no liability or responsibility to monitor the provision of Data under your member name and password.

7. Confidential Information

A. For our part, we will keep your individualized data private and protect it as confidential, and will not share it with anyone outside our company unless it is combined with the data of others and aggregated in a non-reversible manner.

B. For your part, all of our reports and insights sent to you by us are confidential and for use only within your company.  You acknowledge that any confidential or proprietary information that you obtain in connection with your use of the Club and the provision of Data constitutes valuable, confidential, proprietary information of us and our licensors, and you agree that during the term of this Club Agreement and thereafter you shall not, without our express written consent, use or disclose to any other person any such confidential information.

8. Representations and Warranties

You hereby represent and warrant as follows:

A. You have the legal capacity and authority to enter into this Club Agreement and perform your obligations hereunder and that you will comply with all applicable laws   You are the sole and exclusive owner of the Data or are the authorized representative of the applicable copyright owner(s) of the Data, have the right to grant all of the license rights contemplated to be provided under this Club Agreement, and have not granted any rights or licenses to any Data or any other intellectual property or technology that would conflict with this Club Agreement;

i. if the Data consist in whole or in part of design elements that are included in design program software, the end user license agreement, terms of service or the equivalent license held by you for such design program software allows you to incorporate such elements in Data created by the you, and to license such Data to us for the purposes set forth herein;

ii. no portion of the Data as delivered to us from time to time, contains any disabling mechanism or protection feature designed to prevent its use, copying or enjoyment in the manner contemplated in this Club Agreement, and all Data will be free of any virus, worm, lock, or other mechanism or device that may be used to modify, delete, damage or disable the Club or the Data or any other hardware or computer system, or which would otherwise render inaccessible or impair the use of the Data or the Club in any way;

iii. the Data will include all necessary information to enable its effective use by the Club, and will be complete and accurate in all material respects, and will not include false, misleading or inapplicable metadata intended to or which has the effect of keyword ‘doping’ or improperly altering search results that would otherwise be applicable to such Data;

iv. no Data infringes any copyright, trademark, right of privacy or right of publicity or other proprietary right of any third party, or defames or casts into disrepute in any manner any third party; and

v. the Data has not been obtained in any unlawful manner, whether civil or criminal, and is not subject to any applicable accreditation terms or access condition that might be breached by the Data being used by us, our customers or distributors as contemplated under this Club Agreement.

9. Indemnity

A. You agree to indemnify, defend and hold us and our affiliates, and our and their respective directors, officers, managers, employees, shareholders, owners, agents and licensees of Data (collectively, the “Other Parties”) harmless from and against any and all claims, liability, losses, costs and expenses (including reasonable legal fees on a solicitor and client basis) incurred by us or any Other Party based on a claim by a third party as a result of or in connection with: (i) any use or alleged use of the Club or provision of Data under your member name by any person, whether or not authorized by you; (ii) or resulting from any communication made or Data uploaded under your member name; (iii) any breach by you of this Club Agreement; or (iv) any claim threatened or asserted against any Other Party to the extent such claim is based upon a contention that any of the Data used within the scope of this Club Agreement infringes any copyrights, trade secrets, trademarks, right of privacy, right of publicity or other intellectual or other property rights of any third party.

B. We reserve the right, at your expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, and in such case, you agree to cooperate with our defense of such claim.

10. Term and Termination

This Club Agreement is effective until terminated. You may terminate this Club Agreement at any time by giving written notice to us using dataclub@openhill.com or such other means of written notice acceptable to us which enables confirmation of your identity and your intention to terminate. We may also terminate this Club Agreement for any reason or for no reason by e-mail at the last address contained in your membership information.

11. Effect of Termination

A. Notwithstanding any other provision in this Club Agreement, the termination or expiration of this Club Agreement shall not alter or affect the rights granted to licensees or sub-licensees by us pursuant to this Club Agreement.

B. Termination of this Club Agreement shall operate without prejudice to our rights, defenses and limitations of liability provided under this Club Agreement or any other agreement you sign in connection with this Club Agreement, which rights, defenses and limitations of liability shall survive termination of this Club Agreement. In add ition, the provisions of this Club Agreement relating to: Managing Data, Confidential Information, Representations and Warranties, Indemnity, Disclaimer of Warranties and all limitations of liability, shall survive termination of this Club Agreement and continue in full force and effect.

12. DISCLAIMER OF WARRANTIES

A. THE CLUB AND ANY REPORTS, INCLUDING ANY DATA CONTAINED THEREIN, ARE PROVIDED BY US “AS IS” WITHOUT REPRESENTATION, WARRANTY OR CONDITION OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED REPRESENTATIONS, WARRANTIES OR CONDITIONS OF MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. WE DO NOT REPRESENT OR WARRANT THAT THE CLUB OR THE CONTENT WILL BE MADE AVAILABLE FOR SALE OR LICENSE OR THAT THEIR USE WILL BE UNINTERRUPTED OR ERROR FREE.

B. WE DO NOT REPRESENT OR WARRANT THAT THE CLUB OR ANY CONTENT AVAILABLE FOR DOWNLOADING THROUGH THE CLUB WILL BE FREE OF VIRUSES OR SIMILAR CONTAMINATION OR DESTRUCTIVE FEATURES.

13. LIMITATION OF LIABILITY

A. YOU ASSUME ALL RESPONSIBILITY AND RISK FOR USE OF THE CLUB INCLUDING WITHOUT LIMITATION ANY OF THE CONTENT OR INFORMATION CONTAINED THEREIN.

B. IN NO EVENT SHALL WE OR ANY OF OUR DIRECTORS, OFFICERS, MANAGERS, EMPLOYEES, SHAREHOLDERS, PARTNERS, OWNERS, AGENTS OR LICENSEES BE LIABLE FOR ANY INCIDENTAL, INDIRECT, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING DAMAGES FOR LOSS OF PROFITS, INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR ANY OTHER PECUNIARY LOSS) IN CONNECTION WITH ANY CLAIM, LOSS, DAMAGE, ACTION, SUIT OR OTHER PROCEEDING ARISING UNDER OR OUT OF THIS CLUB AGREEMENT, INCLUDING WITHOUT LIMITATION THE USE OF, RELIANCE UPON, ACCESS TO, OR EXPLOITATION OF THE CLUB, THE CONTENT OR ANY PART THEREOF, OR ANY RIGHTS GRANTED TO YOU HEREUNDER, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER THE ACTION IS BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OR OTHERWISE.

C. IN ANY EVENT, OUR TOTAL MAXIMUM AGGREGATE LIABILITY UNDER THIS CLUB AGREEMENT OR IN RESPECT OF THE USE OR EXPLOITATION OF ANY OR ALL PART OF THE CLUB OR THE CONTENT IN ANY MANNER WHATSOEVER SHALL BE LIMITED TO THE FEES COLLECTED BY US FOR THE CONTENT THAT IS THE SUBJECT MATTER OF THE CLAIM, BUT IN ANY EVENT WILL NOT EXCEED ONE THOUSAND ($1,000.00) UNITED STATES DOLLARS.

D. SOME JURISDICTIONS DO NOT ALLOW FOR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN SUCH JURISDICTIONS, THE LIABILITY OF US OR ANY OF OUR DIRECTORS, OFFICERS, EMPLOYEES, SHAREHOLDERS, PARTNERS, AGENTS OR LICENSEES SHALL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.

14. Applicable law

A. This Club Agreement will be governed in all respects by the laws of the State of Indiana, U.S.A., without reference to its laws relating to conflicts of law.  The United Nations Convention on Contracts for the International Sale of Goods does not govern this Club Agreement. The prevailing party shall be entitled to recover its reasonable legal costs relating to that aspect of its claim or defense on which it prevails, and any opposing costs awards shall be offset.  Notwithstanding the foregoing, we shall have the right to commence and prosecute any legal or equitable action or proceeding before any court of competent jurisdiction to obtain injunctive or other relief against you in the event that, in our opinion, such action is necessary or desirable. The parties agree that, notwithstanding any otherwise applicable statute(s) of limitation, any proceeding within the scope of this paragraph shall be commenced within two years of the acts, events, or occurrences giving rise to the claim.

B. You consent to service of any required notice or process upon you by registered mail or overnight courier with proof of delivery notice, addressed to the address or contact information provided by you at the time you are first granted access to the membership portions of the Club. You agree to waive any right you may have to (i) trial by jury; and (ii) to commence or participate in any class action against us related to the Club, this Club Agreement or any agreements contemplated hereby.

C. If we are obligated to go to court or arbitration to enforce any of its rights, or to collect any fees, you agree to reimburse us for our legal fees, costs and disbursements if we are successful.

15. General

A. You specifically agree and acknowledge that you have, in addition to the terms of this Club Agreement, reviewed any other agreements to which you have agreed in connection with your use of the Club, and to the extent of their incorporation in this Club Agreement you agree to be bound by them.

B. Our failure to insist upon or enforce strict performance of any provision of this Club Agreement shall not be construed as a waiver of any provision or right.

C. This Club Agreement is personal to you and is binding upon your heirs, executors and legal representatives, as the case may be, and is not assignable by you without our prior written consent. We may assign this Club Agreement without your consent to any other party so long as such party agrees to be bound by its terms.

D. If all or part of any provision of this Club Agreement is wholly or partially unenforceable, the parties or, in the event the parties are unable to agree, a court of competent jurisdiction, shall put in place of such whole or part provision an enforceable provision or provisions, that as nearly as possible reflects the terms of the unenforceable whole or part provision.

E. This Club Agreement can be amended by the written agreement of the parties or by us posting amendments on the upload portion of the Club. Continued provision of Data or failure to terminate this Club Agreement within thirty (30) days of posting of such amendment will be deemed to be your acceptance of the amendment and it will be incorporated by reference into this Club Agreement.

16. Copyright owner

If and to the extent you are submitting Data to us as an authorized representative of the applicable copyright owner(s), you acknowledge and agree that (a) you will ensure that such copyright owner(s) comply with the terms of this Club Agreement where necessary; and (b) to the extent royalties or fees of any nature are paid to you in such capacity, you will be solely responsible for compensating the copyright owner(s) where applicable.

17. Changes to the Terms

We reserve the right, at our sole discretion, to change, modify, add, or remove portions of these Terms at any time. If we believe that the changes are material, we’ll let you know by sending you an email or message about the changes. Then, you can decide whether you want to continue as a participant in the Club. Changes will be effective upon the posting of the changes. You are responsible for reviewing and becoming familiar with any changes. Your continued use of the Club’s Website or accessing the Reports following the changes constitutes your acceptance of the updated Terms. You acknowledge and agree that if at any point you reject any provision of the then-current version of these Terms, your access to the Reports shall immediately terminate and you must immediately stop using the Club’s website and receiving its Reports. No substantive changes to these Terms shall apply to any dispute of which we had actual notice before the date of the substantive change.

18. Acknowledgement

By clicking on join on the signup page found online at http://www.openhill.com/website-data-club, you acknowledge that you have read, understood, and agree to be bound by the Terms terms of this agreement.  If you do not agree to these Terms, do not click join the Club and do not view or access our Reports.  In consideration of us agreeing to provide Reports, you agree to be bound by the Terms of this Club Agreement.  You further agree that it is the complete and exclusive statement of the agreement between you and us, which supersedes any proposal or prior agreement, oral or written, and any other communication between you and us relating to the subject of this club agreement.

19. Contact

If you have any questions or concerns regarding the Club Agreement, please contact us at:

Website Data Club
℅ Openhill
709 Plaza Dr. Ste. 2-272
Chesterton, IN 46304
dataclub@openhill.com