Terms & Conditions

END USER LICENSE AGREEMENT

BY ACCEPTING AN ORDER FORM OR OTHER AGREEMENT THAT INCORPORATES THIS END USER LICENSE AGREEMENT (THE “EULA”) (THE “ORDERING DOCUMENT”), LICENSEE (AS DEFINED THEREIN) AGREES TO FOLLOW AND BE BOUND BY THE TERMS AND CONDITIONS OF THIS EULA. THE ORDERING DOCUMENT AND EULA TOGETHER CONSTITUTE THE AGREEMENT OF THE PARTIES AND ARE REFERRED TO COLLECTIVELY HEREIN AS THE “AGREEMENT.” IN THE EVENT OF ANY CONFLICT BETWEEN THE EULA AND AN ORDERING DOCUMENT, THE EULA SHALL GOVERN EXCEPT TO THE EXTENT A TERM IN AN ORDERING DOCUMENT IS EXPRESSLY INTENDED TO MODIFY TERM(S) OF THE EULA.

If “Licensee” includes more than one legal person, the obligations imposed upon each shall be joint and several. The act of, notice from or to, or signature of any one or more of the persons included within “Licensee” shall be binding on all such persons with respect to all rights and obligations under this Agreement, including but not limited to any renewal, extension, termination or modification of this Agreement.
“ReachStream” means ReachStream, Inc, a Delaware limited liability company with offices at 805 Broadway St., Suite 900, Vancouver, WA 98660, or one of its direct or indirect subsidiaries or other affiliates as stated in the Ordering Document.

Licensee and ReachStream hereby agree as follows:

1. SCOPE, GRANT OF LICENSE

2. DELIVERY/ACCESS OF LICENSED MATERIALS TO LICENSEE

ReachStream will make the Licensed Materials available to the Licensee in digital form via password-protected online access accessible by Licensee with usernames and passwords provided to Licensee by ReachStream, or as otherwise mutually agreed by the parties.

3. FEES AND TAXES

4. AUTHORIZED USE OF LICENSED MATERIALS AND REACHSTREAM TECHNOLOGY

5. REACHSTREAM PERFORMANCE OBLIGATIONS

6. LICENSEE PERFORMANCE OBLIGATIONS

7. TERM AND TERMINATION

8. MARKETING

Licensee hereby authorizes ReachStream to use Licensee’s name and logo for its marketing efforts unless and until such authorization is revoked in writing.

9. CONFIDENTIALITY

10. NON-ASSIGNMENT

Either party hereto may assign this Agreement to a successor-in-interest pursuant to an acquisition of such party (whether by merger, stock sale, or asset sale) without the other party’s consent, provided however that (1) Licensee’s assignment hereof shall be effective only after fourteen (14) days’ written notice to ReachStream, and (2) Licensee may not assign this agreement to any competitor of ReachStream without ReachStream’s express written consent. No rights or obligations under this Agreement may be assigned or delegated except as provided in this Section without the prior written consent of the other party, and any assignment or delegation in violation of this section shall be void.

11. NOTICES

Licensee shall provide an email address for notices under this Agreement. All notices or other communications permitted or required to be given hereunder shall be sent by electronic mail to the email address provided by the other party for such purpose and shall be deemed given when sent. Notices to ReachStream shall be sent to legal@reachstream.com. In the event that Licensee fails to provide an email address for notices, ReachStream may provide notices hereunder by any means reasonably calculated to provide Licensee with actual notice thereof.

12. GOVERNING LAW

This Agreement shall be construed in accordance with and governed for all purposes by the laws of the State of Delaware without regard to choice of laws principles. The parties acknowledge that this Agreement evidences a transaction involving interstate commerce. Notwithstanding the foregoing, any arbitration conducted pursuant to the terms of this Agreement shall be governed by the Federal Arbitration Act (9 U.S.C. §§ 1-16).

13. ATTORNEY FEES, DISPUTE RESOLUTION, CLASS ACTION WAIVER

14. CURRENCY

All monetary amounts specified in this Agreement are in United States dollars unless otherwise expressly stated.

15. INDEMNIFICATION

16. LIMITATION ON LIABILITY

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND EXCEPT FOR INSTANCES OF GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY PUNITIVE, EXEMPLARY, MULTIPLE, INDIRECT, CONSEQUENTIAL, SPECIAL, OR LOST PROFITS DAMAGES ARISING FROM OR RELATING TO THIS AGREEMENT, WHETHER FORESEEABLE OR UNFORSEEABLE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. LICENSEE’S SOLE AND EXCLUSIVE REMEDY FOR ANY UNCURED BREACH BY REACHSTREAM OF ITS OBLIGATIONS UNDER THIS AGREEMENT IS TERMINATION BY WRITTEN NOTICE TO REACHSTREAM, AND REFUND OF A PRORATED PORTION OF THE SUBSCRIPTION FEES THAT LICENSEE HAS PAID. REACHSTREAM’S MAXIMUM LIABILITY TO LICENSEE SHALL BE THE AMOUNTS ACTUALLY PAID TO REACHSTREAM BY LICENSEE UNDER THIS AGREEMENT IN THE TWELVE (12) MONTHS PRECEDING THE EVENT GIVING RISE TO LICENSEE’S CAUSE OF ACTION. EXCEPTING LIABILITY ARISING FROM LICENSEE’S OR ITS AGENT’S GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT, LICENSEE’S MAXIMUM LIABILITY TO REACHSTREAM HEREUNDER SHALL BE TWO TIMES (2X) THE AMOUNT OF THE SUBSCRIPTION FEE.

17. DISCLAIMER

EXCEPT FOR ANY EXPRESS REPRESENTATIONS AND WARRANTIES STATED IN THIS EULA, THE LICENSED MATERIALS AND REACHSTREAM TECHNOLOGY ARE PROVIDED “AS IS” AND NEITHER PARTY MAKES ANY ADDITIONAL REPRESENTATION OR WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER WHATSOEVER AND EACH PARTY EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, TITLE, AND NON-INFRINGEMENT. NEITHER PARTY WILL HAVE THE RIGHT TO MAKE OR PASS ON ANY REPRESENTATION OR WARRANTY ON BEHALF OF THE OTHER PARTY TO ANY THIRD PARTY.

18. ENTIRE AGREEMENT

This Agreement constitutes the entire Agreement of the parties and supersedes all prior communications, understandings, and agreements relating to the subject matter hereof, whether oral or written. Any un-expired subscription set forth in any Ordering Document or agreement between the parties for access to ReachStream’s database is incorporated into this Agreement and governed by this EULA.

19. AMENDMENTS

ReachStream may propose amendments to this Agreement at any time by providing notice of such proposed amendments in a manner permitted hereunder. Such proposed amendments shall be deemed accepted and become part of this Agreement thirty (30) days after the date such notice is given unless Licensee informs ReachStream that it does not accept such amendments. In the event Licensee informs ReachStream that it does not accept the proposed amendments, the proposed amendments will not take effect and the existing terms will continue in full force and effect. No other modification or claimed waiver of any provision of this Agreement shall be valid except by written amendment signed by authorized representatives of ReachStream and Licensee.

20. REMEDIES

Licensee acknowledges that the unauthorized disclosure of ReachStream Confidential Information or Licensed Materials may cause harm to ReachStream for which there is no adequate remedy at law and that ReachStream shall be entitled to seek equitable relief to prevent further disclosure, in addition to monetary damages and such other relief as a court may determine is appropriate. Unless expressly stated herein, no remedy of ReachStream is intended to be, nor shall be construed as, an exclusive remedy and ReachStream shall retain whatever additional rights or remedies it may have at law or in equity.

21. FORCE MAJEURE.

Neither ReachStream nor any of its affiliates will be liable for any delay or failure to perform any obligation under this Agreement where the delay or failure results from any cause beyond its reasonable control, including, but not limited to, acts of God, labor disputes or other industrial disturbances, electrical or power outages, utilities or other telecommunications failures, earthquake, storms or other elements of nature, blockages, embargoes, riots, acts or orders of government, acts of terrorism, or war.

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