USE OF THE IMPLAN SYSTEM (AS DEFINED BELOW) IS SUBJECT TO THESE TERMS AND CONDITIONS AND ANY ADDITIONAL TERMS AND CONDITIONS SET FORTH IN THE ORDER FORM, ORDER CONFIRMATION AND/OR INVOICE (COLLECTIVELY, THE “ORDER,” AND THE ORDER TOGETHER WITH THESE TERMS AND CONDITIONS, THIS “AGREEMENT”) PROVIDED BY IMPLAN IN CONNECTION WITH THE PURCHASE OF A SUBSCRIPTION (A “SUBSCRIPTION”) TO USE THE IMPLAN SYSTEM. THIS AGREEMENT REPRESENTS THE ENTIRE AND FULLY INTEGRATED AGREEMENT BETWEEN THE PURCHASER (“CLIENT”) AND IMPLAN GROUP LLC (“IMPLAN”) CONCERNING THE USE OF THE IMPLAN SYSTEM, AND THIS AGREEMENT SUPERSEDES ALL PRIOR PROPOSALS, REPRESENTATIONS, OR UNDERSTANDINGS WITH RESPECT TO THE IMPLAN SYSTEM. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, NO OTHER COMMUNICATION WILL BE CONSTRUED AS, OR CONSTITUTE, A WAIVER OF THIS AGREEMENT, OR ACCEPTANCE OF ANY ADDITIONAL OR CONTRARY TERMS, CONDITIONS OR SPECIFICATIONS, AND IMPLAN HEREBY OBJECTS TO ANY SUCH ADDITIONAL OR CONTRARY TERMS, CONDITIONS OR SPECIFICATIONS, INCLUDING ANY ADDITIONAL OR CONTRARY TERMS CONTAINED IN A PURCHASE ORDER OR SIMILAR DOCUMENT SUBMITTED BY CLIENT. IF CLIENT ENTERS INTO THIS AGREEMENT ON HIS OR HER OWN BEHALF, THIS AGREEMENT WILL APPLY TO CLIENT PERSONALLY. IF CLIENT ENTERS INTO THIS AGREEMENT ON BEHALF OF AN ENTITY, CLIENT REPRESENTS AND WARRANTS THAT CLIENT HAS AUTHORITY TO BIND SUCH ENTITY TO THE TERMS OF THIS AGREEMENT.
- THE IMPLAN SYSTEM LICENSE.
- 1.1 The “IMPLAN System” means IMPLAN’s economic modeling platform available at https://app.implan.com (the “Site”), which includes the following features: (i) data that includes, without limitation, regional economic data, environmental data, national structural matrix data, inter-regional commuting data, and inter-regional commodity trade data (collectively, the “IMPLAN Data”), (ii) software for analyzing and otherwise working with IMPLAN Data (the “IMPLAN Software”), (iii) software for automating the use of the IMPLAN Software and IMPLAN Data (“IMPLAN API”), and (iv) IMPLAN System-generated multipliers describing rates of change across variables (“Multipliers”).
1.2 If Client has purchased a Subscription, then, subject to the terms and conditions of this Agreement, IMPLAN grants Client a limited, non-exclusive, non-sublicensable and non-transferable license to access via the Site and use, during the Term, the IMPLAN System, solely for Client’s internal, non-commercial purposes (except as set forth in Section 2) by and through Authorized Users. Without limiting the foregoing, Client acknowledges and agrees that, based on the terms of Client’s Subscription, Client’s license may not include access to or use of certain features of the IMPLAN System. “Authorized User” means (i) if Client is an individual, Client and (ii) if Client is an organization, each employee of Client that has been granted a valid username and password (“Credentials”) that is used to verify such employee’s identity and authorization to access and use the IMPLAN System. Credentials must be tied to an individual and will not be granted for role-based or consumer-based email addresses. For purposes of clarity, Authorized User credentials (username, password, API access tokens, etc.) may not be used by multiple individuals nor shared outside of the Client’s organization.
- 3.1 Client shall not, and shall not permit any Authorized User to, use the IMPLAN Materials for any purposes beyond the scope of the rights granted in this Agreement. Without limiting the foregoing, Client shall not at any time, directly or indirectly, and shall not permit any Authorized User to: (i) share any Credentials with anyone, except as authorized in this Agreement; (ii) copy, modify (other than modifications to IMPLAN Data enabled by standard IMPLAN Software functionality), adapt, clone, disassemble, decompile, decrypt, decode, or otherwise reverse engineer or create derivative works of any IMPLAN Materials (including, without limitation, any component of the IMPLAN Software) or attempt to derive or gain access to the source code of the IMPLAN Software, in whole or in part; (iii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, provide service bureau, time-sharing, or other services to third parties, or otherwise make available the IMPLAN Materials (except for Publications distributed in accordance with Section 2); (iv) input, upload, transmit or otherwise provide to or through the IMPLAN System any Client Data (as defined below) that is unlawful or injurious, or that contains, transmits or activates any viruses, worms, Trojan horses, corrupted files, hoaxes, bots, harmful code, denial-of-service attacks, backdoors, packet or IP address spoofing, forged routing, or any similar methods or technology that are of a destructive or deceptive nature; (v) damage, destroy, disrupt, disable, impair, interfere with or otherwise impede or harm in any manner the IMPLAN System or the provision of the IMPLAN System to any third party, in whole or in part; (vi) remove, delete, alter or obscure any copyright, trademark, patent or other intellectual property or proprietary rights notices from the IMPLAN Materials; (vii) use the IMPLAN Materials in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law; (viii) except as provided by the IMPLAN API, access the IMPLAN Materials by bots or otherwise automated methods; or (ix) access or use the IMPLAN Materials for the development or provision of a competing software service or product or for any other purpose that is to IMPLAN’s detriment or commercial disadvantage. Client shall promptly notify IMPLAN of any breach of any of the foregoing.
3.2 Client is responsible and liable for all uses of the IMPLAN Materials resulting from access provided by Client, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement. Without limiting the generality of the foregoing, Client is responsible for all acts and omissions of Authorized Users, and any act or omission by an Authorized User that would constitute a breach of this Agreement if taken by Client will be deemed a breach of this Agreement by Client. Client shall take reasonable efforts to make all Authorized Users aware of this Agreement’s provisions as applicable to such Authorized User’s use of the IMPLAN Materials, and shall cause Authorized Users to comply with such provisions.
4.1 All information, data and other content, in any form or medium, that is submitted, posted or otherwise transmitted by or on behalf of Client or any Authorized User through the IMPLAN System is, collectively, “Client Data”.
4.2 IMPLAN acknowledges that, as between IMPLAN and Client, Client owns all right, title, and interest, including all intellectual property rights, in and to the Client Data. Client hereby grants to IMPLAN a non-exclusive, royalty-free, worldwide license to reproduce, distribute, and otherwise use and display the Client Data and perform all acts with respect to the Client Data solely as may be necessary for IMPLAN to provide the IMPLAN System to Client.
4.3 Client represents and warrants to IMPLAN that the Client Data will not include any personally identifiable data, data subject to the EU General Data Protection Regulation (the “GDPR”), or data subject to the California Consumer Privacy Act (the “CCPA”).
5.1 Client acknowledges and agrees that the IMPLAN Materials are the property of IMPLAN and that copyright and other intellectual property rights laws protect the IMPLAN Materials. Except as expressly permitted in this Agreement, Client may not disclose the IMPLAN Materials to any third party.
5.2 Client acknowledges that, as between Client and IMPLAN, IMPLAN owns all right, title, and interest, including all intellectual property rights, in and to the IMPLAN Materials and any and all intellectual property provided to Client in connection therewith (collectively, the “IMPLAN IP”).
5.3 IMPLAN reserves all rights not expressly granted to Client in this Agreement. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants to Client or any third party, by implication, waiver, estoppel, or otherwise, any intellectual property rights or other right, title, or interest in or to the IMPLAN IP.
5.4 Client hereby assigns to IMPLAN on Client’s behalf, and on behalf of its employees, contractors and agents, all right, title, and interest in and to any ideas, know-how, concepts, techniques, or other intellectual property rights contained in Feedback (defined below), and IMPLAN is free to use (but not required to use) Feedback, without any attribution or compensation to any party, for any purpose whatsoever. “Feedback” means any communications or materials transmitted to or shared with IMPLAN by Client or any of its employees, contractors or agents by mail, email, telephone, or otherwise, suggesting or recommending changes to the IMPLAN IP, including, without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like. For the avoidance of doubt, Feedback does not include Client Data.
9.1 IMPLAN shall indemnify, defend, and hold harmless Client from and against any and all losses, damages, liabilities, costs and expenses (including reasonable attorneys’ fees) (“Losses”) incurred by Client resulting from any third-party claim, suit, action, or proceeding (“Third-Party Claim”) that the IMPLAN Software or any use of the IMPLAN Software in accordance with this Agreement, infringes or misappropriates such third party’s United States patents, copyrights, or trade secrets; provided that Client promptly notifies IMPLAN in writing of the Third-Party Claim, cooperates with IMPLAN, and allows IMPLAN sole authority to control the defense and settlement of such Third-Party Claim. If such a claim is made or appears possible, Client agrees to permit IMPLAN, at IMPLAN’s sole discretion, to (A) modify or replace the IMPLAN Software, or component or part thereof, to make it non-infringing, or (B) obtain the right for Client to continue to use the IMPLAN Software. If IMPLAN determines that neither alternative is reasonably available, IMPLAN may, subject to Section 2, terminate this Agreement, in its entirety or with respect to the affected component or part, effective immediately on written notice to Client. This Section 9.1 will not apply to the extent that the alleged infringement arises from any allegation of or relating to any: (A) use of the IMPLAN Software in combination with data, software, hardware, equipment, or technology not provided by IMPLAN or authorized by IMPLAN in writing; (B) modifications to the IMPLAN Software not made by IMPLAN; or (C) Losses for which Client is obligated to indemnify IMPLAN pursuant to Section 9.2. This Section sets forth Client’s sole remedies and IMPLAN’s sole liability and obligation for any actual, threatened or alleged claims that this Agreement or any subject matter hereof infringes, misappropriate or otherwise violates any intellectual property rights of any third party.
9.2 Client shall indemnify, hold harmless, and, at IMPLAN’s option, defend IMPLAN and its officers, managers, employees, contractors and agents from and against any Losses resulting from any Third-Party Claims that the Client Data or IMPLAN’s use of the Client Data to provide the IMPLAN System to Client infringes or misappropriates such third party’s patents, copyrights, or trade secrets or breaches any applicable privacy law, including, without limitation, the GDPR or CCPA; and from and against any Losses based on Client’s (i) negligence or willful misconduct; (ii) use of the IMPLAN Materials in a manner not authorized by this Agreement; (iii) breach of any provision of this Agreement; (iv) use of the IMPLAN Materials (other than Third-Party Claims subject to Section 1); or (v) provision of Publications pursuant to Section 2; provided that, in each case, Client may not settle any Third-Party Claim against IMPLAN unless IMPLAN consents to such settlement, and provided, further, that IMPLAN will have the right, at its option, to defend itself against any such Third-Party Claim or to participate in the defense thereof by counsel of its own choice.
13.1 This Agreement is effective as of the date that Client signs Client’s Order (the “Effective Date”) and shall continue for the Subscription term set forth in Client’s Order (the “Term”), unless otherwise terminated in accordance with the terms hereof. The expiration or termination of this Agreement shall not affect any rights or obligations that, by their nature, should survive the expiration or termination of this Agreement, including, without limitation, the limitations set forth in Section 8 and parties’ respective indemnification obligations under Section 9. For the avoidance of doubt, (i) Client’s right to generate Publications pursuant to Section 2 and (ii) Client’s license to use the IMPLAN System, including, without limitation, IMPLAN Data, or subsets thereof, each terminates as of the expiration or termination of this Agreement.
13.2 IMPLAN may terminate this Agreement at any time, with or without cause. In the event that IMPLAN terminates this Agreement without cause before the expiration of the Term, Client will be refunded a pro rata amount of prepaid Fees (as defined below) reflecting the unused portion of the Term.
13.3 Either party may provide notice of intent to terminate this Agreement if the other party materially breaches this Agreement. Termination shall become effective if such breach: (i) is incapable of cure; or (ii) being capable of cure, remains uncured thirty (30) days after the non-breaching party provides the breaching party with written notice of such breach.
13.4 Client’s IMPLAN Models will be housed and saved on IMPLAN servers with access granted solely during the Term. At the expiration of the Term or, if earlier, the date this Agreement is terminated, Client’s access to the IMPLAN System (including any Client-generated IMPLAN Models or other materials) shall automatically terminate, and IMPLAN shall have no obligation to retain or grant Client access to such materials thereafter.
13.5 Notwithstanding anything set forth in this Agreement to the contrary, following the expiration or termination of this Agreement IMPLAN may permit (in its sole discretion) Client to continue to access certain IMPLAN data or other information through the IMPLAN System. In such case, Client shall have no rights or licenses with respect to such data or information or the IMPLAN System except as explicitly granted by IMPLAN in writing, and Sections 3, 10 and 11 of this Agreement shall continue to apply to Client’s access and use of the IMPLAN System (and any data accessed via the IMPLAN System) for so long as IMPLAN permits such access and use.
- FEES AND PAYMENT. As consideration for the rights granted hereunder, Client shall pay to IMPLAN, in accordance with the payment terms set forth in Client’s Order, the fees and charges set forth in Client’s Order and any other fees or charges mutually agreed by the parties (collectively, the “Fees”). Subscription fees shall increase by seven percent per year after the initial and each subsequent Term unless otherwise set forth in the Client’s Order. Except as otherwise set forth herein, all payment obligations under this Agreement are non-cancelable and all Fees once paid are non-refundable.
- NOTICES. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice”) must be in writing and addressed to the applicable party at the following address (or to such other address as designated by such party from time to time in accordance with this Section 15): (i) if to IMPLAN, then to IMPLAN Group LLC, 16905 Northcross Drive, Suite 120, Huntersville, NC 28078; and (ii) if to Client, then to the e-mail address provided by Client in connection with Client’s Subscription purchase. All Notices delivered to IMPLAN must be delivered by nationally recognized overnight courier (with all fees pre-paid) or certified or registered mail (in each case, return receipt requested, postage pre-paid), and all Notices delivered to Client will be delivered by electronic mail. Each Notice is effective as of the date of confirmation of delivery to the receiving party.
- GOVERNING LAW. This Agreement will be interpreted and construed in accordance with the laws of the State of North Carolina. All actions arising out of, or relating to this Agreement, may be brought in courts situated in North Carolina, and Client consents to the jurisdiction of such courts. To the extent permitted by applicable law, Client waives sovereign immunity and related defenses with respect to this Agreement, including but not limited to the breach of this Agreement.
- EQUITABLE RELIEF. Each party acknowledges and agrees that a breach or threatened breach by such party of any of its obligations under Section 11 or, in the case of Client, Section 3, would cause the other party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other party will be entitled to seek equitable relief, including a restraining order, an injunction, specific performance and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity or otherwise.
- SEVERABILITY. If any of the terms and conditions of this Agreement conflict with any applicable law, rule or regulation, the affected terms and conditions will be deemed inoperative, but the remaining portions will remain in full force and effect.
- WAIVER. No failure by either party to take any action or assert any right under this Agreement will be deemed to be a waiver of that right in the event of the continuation or repetition of the circumstances giving rise to that right.
- CHANGES TO THE TERMS. Changes to these Terms and Conditions shall only be made by mutual written consent of IMPLAN and Client.
- EXPORT REGULATION. The IMPLAN Materials utilize software and technology that may be subject to US export control laws, including the U.S. Export Administration Act and its associated regulations. Client shall not, directly or indirectly, export, re-export, or release the IMPLAN Materials or the underlying software or technology to, or make the IMPLAN Materials or the underlying software or technology accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation. Client shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the IMPLAN Materials or the underlying software or technology available outside the U.S.
- FORCE MAJEURE. Neither party shall be liable for any delays or non-performance of its obligations (excluding the obligation to pay Fees due hereunder) arising out of causes not within such party’s reasonable control, including, without limitation, actions or decrees of governmental authorities, criminal acts of third parties, earthquakes, flood, other natural disasters, war, terrorism, acts of God, or fire (each, a “Force Majeure Event”).
- ASSIGNMENT. Client may not assign or otherwise transfer Client’s rights and obligations under this Agreement except with the prior written consent of IMPLAN. Any prohibited assignment will be null and void. IMPLAN may assign this Agreement without notice and without restriction in connection with any merger, consolidation or reorganization involving IMPLAN (regardless of whether IMPLAN is the surviving or disappearing entity) or a sale of all or substantially all of IMPLAN’s business or assets relating to this Agreement. This Agreement is binding upon and inures to the benefit of the parties and their respective permitted successors and assigns.