Pursuant to this Agreement, AICPA has agreed to provide, and you ("Licensee") have agreed to subscribe to certain online content, information, and research tools (the "Library") solely as provided for herein. The Agreement allows Licensee access to the library for itself and (in the case of multiple user licenses) a designated subset of sub-licensees ("end users"). This Sublicense defines the terms and conditions of access to the Library by Licensee and/or any additional end users. Licensee understands that AICPA is providing the Library to Licensee as well as to other customers, and that access to the Library is non-exclusive and (except in the case of sub-licensure as provided for under the Agreement) non-transferable.
Throughout the term of this Agreement, Licensee and Licensee's end users shall have access to the Library. AICPA may, without advance notice or liability, add, discontinue, or revise any aspect of the Library, including without limitation such aspects as scope, time and availability of information. The Library may only be used for lawful purposes. Providing of content and use of any information obtained through the Library is at Licensee and any end user's own risk and AICPA specifically disclaims any liability, warranty or responsibility for the accuracy, correctness, timeliness or quality of the information and content provided or obtained through such use of the Library and for Licensee or any end user's reliance upon the Library.
End User shall pay AICPA for the Services by credit card, direct debit or other such method as the parties may agree, and End User authorizes AICPA automatically to charge End User by such method for each initial and renewable term of this Agreement, if the Service provided to the End User is one which allows for such renewal.. Fees for the Services shall be charged according to AICPA’s current prices and price schedules for such Services. Fees and payment schedules for the Services may be changed by AICPA upon thirty (30) days written (including email) notice to End User.
Certain portions of the Library may consist of data, services, and other materials proprietary to third parties which have licensed to AICPA the right to redistribute or sublicense such materials. Such third party licensors shall be third party beneficiaries of this Agreement to the fullest extent allowed by law. As between AICPA and Licensee, AICPA shall have and retain all title and ownership of, and intellectual property and other rights in and to, the Library and all included materials, together with all copies, Updates, Upgrades, new versions, and any other manifestations thereof. AICPA reserves all rights not expressly granted to Licensee under this Agreement. No intellectual property right (including, without limitation, all copyrights, program, or database structure and organization, specific sets of information extracted therefrom, non-public data, and specifics about the means and standards of compilation) shall vest in or be transferred to Licensee.
If Licensee subscribes to a Library with the designation "Plus FASB Accounting Standards Codification TM" in the Library name, then Licensee specifically acknowledges that the Library includes the FASB Accounting Standards CodificationTM (FASB ASCTM) in its entirety and that with respect to the FASB ASCTM content, all of the rights, benefits, warranties, indemnifications and limitations on liability granted to AICPA by Licensee enure to the full benefit of the Financial Accounting Foundation (FAF) and may be enforced by AICPA on behalf of FAF to the fullest extent that would be allowed under the Agreement or this Sublicense for content owned by and copyrighted to AICPA. AICPA represents and warrants that has the right, pursuant to its Agreement with FAF, to extend access to FASB ASC within the Library pursuant to this Sublicense. The FASB ASC is a "commercial item" as that term is defined in 48 CFR 12.101 (Oct. 1995), consisting of "commercial computer software" and "commercial computer software documentation" as such terms are used in 48 CFR 12.212 (Sept. 1995). Consistent with 48 CFR 12.212 and 48 CFR 227.7202-1 through 227.7202-4 (June 1995), all U.S. Government end users acquire the Licensed Materials with only those rights explicitly set forth herein.
Licensee and its end users shall not: (i) permit other Persons to use, access, distribute, or display the content accessed via the Library except under the terms set forth herein; (ii) modify, translate, reverse engineer, decompile, disassemble, or create derivative works based on the content contained within the Library or any portion thereof; (iii) copy content contained within the Library (except as expressly set forth herein); or (iv) remove any proprietary notices or labels included within or imprinted as a part of the content contained within the Library.
Notwithstanding anything to the contrary contained herein, Licensee shall not have the right to (i) resell the content contained within the Library or grant any licenses to the Library (except for sublicenses in compliance with the Agreement); (ii) use the Library in any service bureau or time sharing arrangement; (iii) make the Library or the content contained within the Library available as an application service provider, (iv) use the content contained within the Library other than as a reference source; or (v) re-engineer, repurpose, reconfigure or modify the content contained within the Library in such a manner as to alter its substance, meaning or intent.
Subscription to or purchase of access to, the Library grants permission ONLY to view the material and save the material ONLY for the Licensee or any end user's personal reading, but NOT to further copy, modify, use or distribute in any way or create any derivative works except as specifically authorized below. Neither Licensee nor any end user may remove any copyright or trademark notices, such as the ©, ™ or ® symbols, from the content of the Library or any web page or interface through which the Library is accessed.
Licensee acknowledges that the information provided in connection with the Library contains copyrighted and other proprietary and confidential information and material, and will respect all such proprietary rights and take such reasonable precautions to protect such information and material from unauthorized use or disclosure. Licensee further agrees it shall not violate any laws, regulations or standards established by an entity of competent jurisdiction relating to the promotion or providing of the Library. Licensee undertakes full responsibility for communicating the requirements of this Sublicense Agreement to its end users and enforcing the compliance of end users with all terms of this Sublicense Agreement. Licensee will require each end user to accept and acknowledge a use agreement designed to enforce full compliance by the end user with the terms and conditions of this Sublicense.
This Sublicense shall have a term of one (1) year, or, if the Licensee renews its Agreement with AICPA this Sublicense shall have a longer term equal to the Agreement renewal period. The Sublicense shall immediately terminate at any time upon notice from AICPA if Licensee or any end user fails to comply with these terms and conditions. Licensee acknowledges and agrees that termination of this Sublicense for any reason during the initial term of a subscription will, at AICPA's discretion, result in pro rata charges according to the number of months remaining in the initial term of the Agreement to which this Sublicense pertains. Termination for any reason will not relieve Licensee from its obligation to pay AICPA all sums owed through the effective date of termination.
Upon any termination or expiration of this Agreement, Licensee agrees to (i) discontinue use and to destroy all copies and delete all instances of the Library Content, specifically including the FASB Accounting Standards Codification TM(existing in whole and in part) from the networks, servers of Licensee; and (ii) notify all end users; provided, that, in the case of a termination other than for breach of the terms of the Agreement and this Sublicense, end users who are in full compliance with the Sublicense terms may continue to use the Library until the earlier of (a) the termination of the then-current term of such end user's agreement with Licensee regarding the Library, or (b) the first anniversary of the Effective Termination Date or expiration of the Agreement.
AICPA MAKES NO WARRANTIES OF ANY KIND WITH RESPECT TO THE RELIABILITY OF THE LIBRARY UNDER THE TERMS OF THIS AGREEMENT OR THE FITNESS OF SUCH LIBRARY FOR A PARTICULAR PURPOSE AND DISCLAIMS ALL EXPRESS AND IMPLIED WARRANTIES, INCLUDING MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY IMPLIED WARRANTY OF NON-INFRINGEMENT. IN NO EVENT WILL AICPA BE LIABLE FOR ANY LOSS OF PROFITS, BUSINESS, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND, WHETHER BASED IN CONTRACT, NEGLIGENCE OR OTHER TORT. USE OF THE LIBRARY IS AT LICENSEE AND END USER'S SOLE RISK. THE LIBRARY IS PROVIDED "AS IS."
Licensee shall defend and indemnify AICPA from all claims, suits, damages and costs (including attorneys' and experts' fees) arising out of Licensee and any End User's use of the Library or Licensee or any End User's breach of this Agreement.
Under no circumstances shall either party's liability to the other for the failure or asserted failure of such party to perform its obligations hereunder include, nor shall such party be liable for, special, incidental, consequential, or tort damages, including, without limitation, punitive damages and damages resulting from delay or from loss of profits, business or goodwill, whether or not such party has been advised or is aware of the possibility of such damages.
Under no circumstances shall AICPA's aggregate liability to Licensee arising out of or related to this Agreement exceed the lesser of (i) the aggregate fees paid to AICPA by Licensee hereunder during the preceding twelve (12) month period or (ii) the actual damages sustained by Licensee, regardless of whether any action or claim is based on warranty, contract, tort or otherwise. Licensee hereby releases Licensor from all obligations, liability, claims or demand in excess of this limitation.
Other than as may be required by any applicable law, government order or regulation, or by order or decree of any court of competent jurisdiction, the parties shall not publicly divulge or announce, or in any manner disclose to any third party, any confidential information revealed to the parties pursuant hereto, or any of the specific terms and conditions of this Agreement.
Licensee acknowledges that AICPA treats: (i) the terms of the transaction contemplated herein, the delivery, methodology, platforms, pricing, and (ii) all other information and components of the delivery of the Library and the terms of this Agreement (and the obligations hereunder), not generally available to the public, in each case, as AICPA's confidential information, whether or not particular portions or aspects thereof may also be available from other sources. Licensee will likewise take reasonable measures to protect the secrecy of and avoid disclosure and unauthorized use of AICPA's confidential information. Such measures will be no less stringent than the measures that Licensee takes to protect its own most highly confidential business information. Licensee acknowledges that unauthorized disclosure or use of confidential information could cause irreparable harm to AICPA for which monetary damages alone would not be a sufficient remedy. AICPA will have the right, in addition to its other rights and remedies, to seek injunctive relief for or to prevent any unauthorized disclosure or use, and to limit or recover any improper benefits derived therefrom.
This Agreement shall be governed by, and construed and interpreted in accordance with, the laws of the United States of America and the State of New York, without reference to the principles of conflicts of laws.
Any controversies or disputes arising out of or relating to this Agreement shall be resolved by binding arbitration in accordance with the then current "Commercial Arbitration Rules" of the "American Arbitration Association." The parties shall endeavor to select a mutually acceptable arbitrator knowledgeable about issues relating to the subject matter of this Agreement. In the event the parties are unable to agree to such a selection, each party will select an arbitrator and the arbitrators in turn shall select a third arbitrator. The arbitration shall take place in New York.
All documents, materials, and information in the possession of each party that are in any way relevant to the claim(s) or dispute(s) shall be made available to the other party for review and copying no later than ten days after the notice of arbitration is served.
The arbitrator(s) shall not have the authority, power, or right to alter, change, amend, modify, add, or subtract from any provision of this Agreement or to award special, incidental, consequential, or tort damages, including, without limitation, punitive damages and damages resulting from delay or from loss of profits, business or goodwill, whether or not such party has been advised or is aware of the possibility of such damages. The arbitrator shall have the power to issue mandatory orders and restraining orders in connection with the arbitration. The award rendered by the arbitrator shall be final and binding on the parties, and judgment may be entered thereon in any court having jurisdiction. The agreement to arbitration shall be specifically enforceable under prevailing arbitration law. During the continuance of any arbitration proceeding, except as otherwise set forth herein, the parties shall, without delay, continue to perform their respective obligations under this Agreement which are not affected by the dispute. The foregoing shall not be deemed to limit all remedies and rights available to either party as otherwise provided herein.
Except with respect to the conveyance of access to the Library for an End User by Licensee under the express terms of the Agreement and this Sub-License, neither Licensee nor any End User shall transfer or assign this Agreement or any rights or obligations hereunder without the prior, written approval of AICPA, which may be withheld at the sole discretion of AICPA and any assignment in violation of this prohibition shall be void. Subject to the foregoing, this Agreement shall be binding upon and inure to the benefit of the parties hereto, their successors and assigns
The waiver by either party of a breach of any provision of this Agreement shall not operate or be construed as a continuing waiver of or consent to any subsequent breach.
To the extent AICPA makes the Library accessible via the Internet, AICPA anticipates that such access would be available to Licensee and End Users on a 24-hour, 7-day-per-week basis. Notwithstanding the foregoing, AICPA does not, and cannot, guarantee that the Library will be available for access on a 24-hour, 7-day-per-week basis and Licensee acknowledges and agrees to the same. In addition to downtime caused by reasons beyond AICPA's control, Licensee understands that AICPA may interrupt access for normal and customary maintenance, to correct errors or remedy problems, to implement Updates, if any, and at other times as deemed necessary or desirable by AICPA. Licensee acknowledges that its inability to access the Library from time to time during the Term is to be expected, and shall not constitute a breach of this Agreement by AICPA. In addition, Licensee agrees that AICPA shall have no liability to Licensee or any other Person (including Sublicensees) for any damages or harm such Person may suffer as a result of the inability to access the Licensed Materials. Moreover, Licensee hereby releases AICPA from any and all claims Licensee may have against AICPA or its agents or 3rd party beneficiaries as a result of the inability to access the Licensed Materials. Licensee shall indemnify and hold harmless the AICPA from and against any and all claims or damages that AICPA may incur as a result of any claims brought by Licensee or any sublicensee.
During the Term and for an additional two (2) years thereafter, AICPA shall have the right to inspect, or have a reputable third party inspect, Licensee's data processing systems and records for the sole purpose of verifying that Licensee's use is consistent with the terms of this Agreement. Such inspections will be made not more than once annually and on not less than ten (10) Business Days written notice, during regular business hours. If the inspection reveals an underpayment to AICPA, the Licensee shall promptly (and, in any event, within ten (10) Business Days of such determination) pay to AICPA the deficit plus commercially reasonable interest. AICPA shall bear the expense of such inspection unless the inspection reveals the underpayment of license fees that vary more than five percent (5%) from the license fees received by AICPA from Licensee, in which case the Licensee shall bear the costs associated with the inspection. If the inspection reveals an overpayment to AICPA, then AICPA shall promptly (and, in any event, within ten (10) Business Days of such determination) pay to Licensee the overpayment amount. Audit personnel, when on Licensee's premises or accessing Licensee's networks or performing audit services hereunder, will be instructed to comply with all of Licensee's security, supervision, and other standard procedures applicable to such representatives so long as Licensee shall have made such applicable procedures available to such representatives at least three (3) Business Days prior to any inspection or notice.
The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provisions of this Agreement, which shall remain in full force and effect.