CAREFULLY READ THIS AGREEMENT BEFORE USING THE "LICENSED MATERIALS" (AS DEFINED BELOW). YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT BY EXECUTING AND SUBMITTING A “PROPOSAL ACCEPTANCE” OR "ORDER FORM" (AS DEFINED BELOW) OR, AS APPLICABLE, BY SUBMITTING PAYMENT IN RESPONSE TO AN INVOICE FOR LICENSED MATERIALS FROM DATATRAC. IF AT ANY TIME YOU ARE NOT IN COMPLIANCE WITH THE TERMS OF THIS AGREEMENT, YOU MAY NO LONGER USE LICENSED MATERIALS.
This Datatrac Great Rate Award® Licensing Agreement ("Agreement") is made by and between Datatrac Corporation, a Wisconsin company ("Datatrac"), and the entity identified as the Licensee in the associated Proposal Acceptance and any renewal notice thereof ("Licensee"). This Agreement consists of this Datatrac Great Rate Award® Licensing Agreement and any of the following which may be utilized during the term of the Agreement: the Pricing & Proposal Acceptance (“Proposal Acceptance”), the Order Form ("Order Form"), the Certification Acceptance (“Certification Acceptance”), any Renewal Notice thereof ("Renewal Notice") and any other agreements that may be signed by Datatrac and Licensee from time to time.
This Agreement and the initial term shall be effective as of the date specified in the Order Form or the Proposal Acceptance ("Effective Date"). In the event of a conflict between the Order Form, Proposal Acceptance and this Agreement, the Proposal Acceptance will control. Datatrac expressly rejects any additional or different terms, including but not limited to terms added or appended to the Agreement unless agreed to in writing by Datatrac and Licensee.
In consideration of the foregoing promises and the mutual covenants set forth in this Agreement and other valuable considerations, the parties agree as follows:
(a) Datatrac hereby grants Licensee a non-exclusive license to use the Licensed Materials for the permitted uses as set forth in this Agreement only. All other rights in and to the Licensed Materials, including but not limited to all copyright and other intellectual property rights relating to the Licensed Materials are retained by Datatrac.
(a) Licensed Materials. The “Licensed Materials” covered by this agreement include the items defined below and/or in the Agreement. Unless the parties expressly agree to the contrary by written instrument signed by their duly authorized representatives, this Agreement does not govern the distribution or use of goods, services or titles distributed by Datatrac other than as described in the Agreement.
i. Datatrac Great Rate Award® which includes the Certification Mark, USPTO registration number 3495032 (“Certification Mark”). Datatrac owns the Certification Mark which it licenses to certify that a financial institution’s interest rates and or fees for a particular retail lending, savings or investment product consistently outperformed the specified market average for a designated time period as calculated by Datatrac.
ii. Datatrac Content which includes but is not limited to data, analysis, articles, statements, documentation, graphs, comparisons and reports based upon or derived from data or analysis provided by Datatrac, including any data, analysis or other components provided by third party suppliers to Datatrac (“Datatrac Content”). Datatrac Content also includes Datatrac Proof Points™ which are statements approved by Datatrac pursuant to paragraph 6 herein about the Licensee's Certified Products (e.g. ‘ABC Financial can save you $2,567 on your next home equity loan’ or ‘ABC Financial’s money markets pay you 2x the national average’ or ‘ABC Financial’s credit cards have been lower than the national average for the last eight years.’)
iii. Datatrac Software which includes but is not limited to systems, software, documentation, algorithms and other technology to identify and display Datatrac Content and Certification Marks.
(b) Provision for enhancements to Licensed Materials. Datatrac may modify, augment, reformat or otherwise alter the Licensed Materials and licensing terms at any time and in its sole discretion and without prior notice; provided, however, that (a) Licensee shall continue to receive the Licensed Materials to which it subscribed during the balance of the then-applicable subscription term and (b) this Agreement shall continue to govern Licensee’s rights to use any Licensed Materials subscribed to under this Agreement for the balance of the then-applicable initial or renewal term. Datatrac shall provide Licensee with reasonably contemporaneous notice of any material changes to the Licensed Materials.
(a) Licensee may only use Licensed Materials to promote Certified Products (as defined hereafter in this section) as follows subject to the usage guidelines defined at www.datatrac.net/guidelines which may be subject to change without notice (“Usage Guidelines”):
i. On the internet, in print, radio, television, direct mail and other traditional advertising media primarily circulated in the United States; and
ii. In Licensee's media/press releases primarily circulated in United States.
(b) Certified Products. Certified Products are specific banking products, including but not limited to auto loans, mortgages, money market accounts, certificates of deposits and other banking products which have been certified by Datatrac as having received a Datatrac Great Rate Award® in accordance with the requirements specified at www.datatrac.net/CertificationRequirements (referred herein as “Certified Products”.) Licenses are granted per Certified Product as identified by Datatrac’s issuance of a Datatrac Great Rate Award® Certification Report (referred to herein as “Certification Report"). Products not marked ‘Certified’ in a Certification Report are not Certified Products and cannot be represented by Licensee with a Certification Mark or any related advertising claims thereof. Certification Reports may be obtained by Licensees by submitting a request to Datatrac at certification@datatrac.net identifying the Licensee’s name, product, market and date for which certification is sought.
(c) Datatrac Marketing Services. Datatrac and Licensee may agree from time to time to use Datatrac Marketing Services which may include merchandise, design, creative, copy writing, production, and distribution of marketing collateral or other services as may be agreed to by the parties (“Marketing Services”). Only proposals regarding Marketing Services which have been signed by both Datatrac and Licensee shall be incorporated in as an addendum and made a part of this agreement as if set forth in full herein (“Marketing Services Addendum”). In the event of a conflict between the Marketing Services Addendum and this Agreement, the Marketing Services Addendum will control.
(d) Lead Generation Services. Datatrac and Licensee may agree from time to time to use Datatrac Lead Generation Services. Lead Generation Services may occur on Datatrac's websites, on Licensee's website at Licensee's discretion, or other locations as may be agreed by the parties. Licensee may discontinue Lead Generation Services in it's own discretion at any time by removing Datatrac software that incorporates Datatrac Lead Generation Services and/or by requesting that Datatrac remove Licensee from Datatrac websites.
(e) Datatrac Great Rate Award Merchandise. Licensee may purchase and use certain merchandise from Datatrac such as trophies, certificates, labels, ribbons and various other promotional merchandise which contains the Certification Mark (“Certified Merchandise”).
(f) Time Requirements and Storage of Licensed Materials. Licensed Materials are time sensitive and should be updated with the most current data available from Datatrac. Licensee may retain and use Licensed Materials for up to 48 hours from the time delivered from Datatrac, subject to Usage Guidelines. Licensed Materials that have been approved subject to 6(a) herein and/or Historical Certification, a form of Licensed Materials as described in the Proposal Acceptance, may be retained for an indefinite time provided that Licensee is in compliance with the terms of the Agreement.
(g) Data availability. Data may not be available for certain competitors and products and availability may change without notice, depending upon whether information is publicly available on competitors’ websites. Competitors and products may be substituted if not available.
(a) Licensee is prohibited from the use of the Licensed Materials not expressly permitted in the preceding section. Prohibited uses include but are not limited to:
i. Using Licensed Materials in a manner that is considered under applicable law to be pornographic, obscene, immoral, infringing, defamatory or libelous in nature, or that would be reasonably likely cause any person or property reflected in the Product to be seen in a false light;
ii. Removing any notice of copyright, trade-mark or other proprietary right from any place where it is on or embedded in the Licensed Materials;
iii. Sub-license, re-sell, rent, lend, assign, gift or otherwise transfer or distribute the Licensed Materials or the rights granted under this Agreement;
(b) Licensee may not retain or use Licensed Materials older than 48 hours from the time when delivered from Datatrac, unless approved by Datatrac.
(a) Datatrac permits Licensee’s representatives, affiliates and agencies to use the Licensed Materials in connection with the promotion and advertising claims for the term of this Agreement, provided that Licensees advises all parties acting on behalf of Licensee that they must be bound to the terms of this Agreement and that Licensee will be responsible for any breach hereof by such third party vendors.
(a) Licensee is encouraged to submit the use of the Licensed Materials to certification@datatrac.net for approval prior to publishing. If Licensee does not submit use of Licensed Materials prior to usage, and or usage is not used within the Usage Guidelines as determined in Datatrac's sole discretion, Datatrac may require Licensee to discontinue usage or modify its usage at Licensee's own expenses as defined by Datatrac in writing. Licensee will have ten (10) days to comply with any modifications requested under this provision 6(a). Datatrac has the right, upon reasonable notice, at its sole cost, to have an inquiry conducted by an independent party of Licensee's media schedules, tear sheets, marketing and communication collateral and other documents relating to use of the Licensed Materials.
(a) Ownership of Licensed Materials. Licensee acknowledges that Datatrac, and/or it partners, are the exclusive owner of the Licensed Materials, and agrees to do nothing inconsistent with such ownership. Licensee agrees that the license or use of the Licensed Materials shall not create any interest or right, express or implied, by Licensee except as set forth in this Agreement. Unless the parties expressly agree to the contrary by written instrument signed by their duly authorized representatives, Datatrac owns all materials developed by Datatrac or derived from Licensed Materials, including but not limited to, software, documentation, business and marketing plans, written copy, creative, data, analysis and other derivative thereof. Licensee shall not grant, assign, convey, sublicense, transfer or use any of its rights or obligations hereunder without the written consent of Datatrac except as expressly permitted by this Agreement.
(b) Authority to Grant. Datatrac owns or has the right to distribute the Licensed Materials pursuant to this Agreement. To the knowledge of Datatrac, the use by Licensee of the Licensed Materials in accordance with this Agreement will not infringe any third-party patent, copyright, trade secret or other intellectual property rights.
(c) Covenant Not to Infringe. Licensee acquires only a right to use the Licensed Materials as authorized herein. Licensee agrees not to contest or challenge Datatrac or its third party suppliers’ ownership of the Licensed Materials and associated intellectual property rights, and not to take any action that would infringe, misappropriate, constitute unfair competition with respect to, or otherwise violate Datatrac or its third party suppliers’ ownership of or rights in, the Licensed Materials. Licensee agrees that none of the Licensed Materials will be used by Licensee in a manner which would compete with the collection and distribution of current and historical data for financial institutions main and branch interest rates, specials, fees, features and other related information.
(a) Initial Fees and Usage Fees. Licensee agrees to pay Datatrac according to the terms as specified in the Proposal Acceptance, Marketing Services Addendum, or other arrangement as may be agreed between the parties.
(b) Renewal Fees. The pricing during any automatic renewal term will be the same as that during the immediately prior term unless Datatrac has provided written notice of a pricing increase at least 45 days before the end of that prior term, in which case the pricing increase will be effective upon renewal and thereafter.
(c) Payment. Payment is for the full term of service. Unless agreed otherwise, all fees shall be paid in full within 30 days of receiving the invoice.
(a) Each of parties hereby grants to the other party a non-exclusive, royalty-free, revocable license to use such party’s respective name, logo and trademark in accordance with the terms and conditions set forth in this Agreement. Both parties shall have the right to review and approve in advance all marketing or advertising material, public relations releases, promotional activities and references to its respective name, logo and trademark.
10. Term & Termination
(a) Unless specified otherwise, the grant of this license is as of the Effective Date and shall continue in effect for a period of one year. This Agreement shall be renewable automatically at the end of the current term for a successive term of one (1) year unless either party gives written notice of its intention not to renew at least thirty (30) days before the expiration of the current term.
(b) In the event that either party believes that the other materially has breached any obligations under the Agreement, or if Datatrac believes that Licensee has exceeded the scope of the license, such party shall so notify the breaching party in writing. The breaching party shall have 30 days from the receipt of notice to cure the alleged breach and to notify the non-breaching party in writing that cure has been effected. If the breach is not cured within the 30 days-day period, the non-breaching party shall have the right to terminate the Agreement without further notice.
(c) Upon termination, Licensee shall discontinue all use of all Licensed Materials, claims or any confusingly similar or conflicting names or marks after the effective date of the termination or expiration of this Agreement, and will destroy all merchandise related bearing the Licensed Materials in Licensee’s possession, custody and/or control.
(d) Unless specified in writing otherwise, no refunds will be paid in the event of an early termination, unless such termination is due to a material fault or breach by Datatrac in which case a refund will be provided on a pro-rata basis provided that Licensee submits such notice to Datatrac clearly defining the fault or breach and that Datatrac is given thirty (30) days from the date of the notice to correct any fault or breach.
(e) All provisions under Sections 7, 14, 15 and 16 shall survive termination of this agreement for two years or the maximum period provided under the law, whichever is greater.
11. Warranties
(a) Datatrac warrants that it has the right to license the rights granted under this Agreement to use the Licensed Materials, that it has obtained any and all necessary permissions from third parties to license the Licensed Materials, and that use of the Licensed Materials in accordance with the terms of this Agreement shall not infringe the copyright or other right of any third party.
(b) EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. CONTENT AND BETA SERVICES ARE PROVIDED “AS IS,” EXCLUSIVE OF ANY WARRANTY WHATSOEVER. EACH PARTY DISCLAIMS ALL LIABILITY AND INDEMNIFICATION OBLIGATIONS FOR ANY HARM OR DAMAGES CAUSED BY ANY THIRD-PARTY HOSTING PROVIDERS.
12. Compliance & Updates
(a) Datatrac makes certain resources and procedures available to Licensee to update rates, fees and disclosures in Licensed Materials. Licensee is solely responsible for using these resources and procedures to update rates, fees, disclosures and any other information required to comply with regulations governing the use and disclosure of all Licensed Materials.
13. No Endorsement
(a) Except for Certified Products which have been submitted for approval pursuant to Paragraph 6 herein, Datatrac does not endorse any of Licensee's claims that relate in any way to Licensee's use of the Licensed Materials or related advertising claims thereof or use of data obtained from any data or analysis provided by Datatrac to Licensee.
14. Indemnification
(a) Each party (“indemnitor”) shall indemnify, defend (with legal counsel reasonably acceptable to indemnitee) and hold harmless the other party (“indemnitee”) for any and all third-party claims, damages, causes of action, liabilities and expenses arising out of (i) any negligent acts, errors, or omissions, or the intentional or willful misconduct, of the indemnitor, its agents or employees, and (ii) any breach by indemnitor of the terms, conditions, or representations set forth in this Agreement.
(b) Except for a party’s gross negligence, willful misconduct or third-party indemnification obligations set forth in Section 14 above, or the breach of Section 11(a) or Section 15, each party agrees that the extent of the other party’s liability under this Agreement shall not exceed the fees paid by Licensee to Datatrac in any one annual period.
15. Confidentiality and Privacy
(a) Both parties may acquire certain information that is confidential, proprietary or trade secret information of the other party or a third party ("Confidential Information") in the analysis and delivery of Licensed Materials. Datatrac acknowledges that Licensee's Confidential Information includes Licensee's customer information, including nonpublic personal information. Datatrac warrants that it shall not republish any of Licensee's Confidential Information. Licensee acknowledges that Datatrac's Confidential Information includes data, source code, software, services and any related documentation, system design, data base design, algorithms, trade secrets, technology, pricing and licensing. Other Confidential Information of either party shall be clearly identified in writing as Confidential at the time of disclosure or promptly thereafter. The party receiving Confidential Information will: (a) use such information solely for performance under this Agreement; (b) not disclose such information to any third party (excluding agents that are not potential competitors of the disclosing party); and (c) otherwise protect such information from any unauthorized use or disclosure. The receiving party shall see that its employees, agents and affiliates having access to Confidential Information are bound by confidentiality obligations consistent with this provision.
(b) As soon as possible upon the written request of either party, the other will destroy or delete (or, at its option, return to the requestor) all tangible Information provided to that party. Such destruction or deletion (or return) will be confirmed in writing to the requestor. Any information not so destroyed or deleted (or returned) will remain subject to this Agreement.
(c) Datatrac will maintain and monitor policies and procedures relating to data security by complying with appropriate regulations and by addressing administrative, technical and physical safeguards designed to (i) ensure the security and confidentiality of nonpublic personal information relating to Licensee's customers; (ii) protect against any anticipated threats or hazards to the security or integrity of such information; and (iii) protect against unauthorized access to or use of such information that could result in substantial harm or inconvenience to Licensee's customers. Datatrac will provide prompt notice to Licensee if Datatrac becomes aware of an unauthorized disclosure involving Licensee's "sensitive customer or member information," as those terms are defined by regulatory guidance issued by the applicable federal agency that regulates Licensee. Notification may be delayed to the extent necessary to prevent interference with a criminal investigation related to the disclosure. Datatrac will permit a review to assess whether appropriate key controls are in place and/or will provide reasonable documentation to verify that Datatrac has complied with its obligations under this paragraph, if (a) required of Licensee by state or federal regulators; (b) conducted by either Licensee and/or its regulator(s) at Licensee's expense and during regular business hours; (c) limited to the scope of Datatrac's obligations with respect to the software and data and pursuant to this paragraph; and (d) Licensee provides reasonable advance notice. At Licensee's request, Datatrac may provide additional services related to its obligations under this paragraph at Datatrac's then-current fees for such services.
(d) Nevertheless, neither Datatrac nor Licensee will be obligated to keep confidential any information that is: (a) publicly available through no fault of the receiving party, (b) received by the receiving party from a third party who is not under a confidentiality obligation regarding the information, (c) independently developed by the receiving party without referring to the Confidential Information, or (d) required by applicable law to be disclosed by the receiving party, provided the receiving party shall give prompt notice to the disclosing party (unless notice is not allowed by a regulating agency seeking such information) and assist and support the disclosing party's efforts to maintain the confidentiality of the information, including, but not limited to, securing protective orders and limiting the information disclosed. Datatrac may disclose in press releases, research reports and other marketing brochures the Licensee's name, logo and identify the respective Licensee's products and rate information.
(e) Each party recognizes that the remedy at law for any breach of its obligations under the Agreement will be inadequate, and, hence, each party agrees that the other shall be entitled to seek equitable or injunctive relief in the event of breach by either party hereto, without the necessity of proving damages or posting any bond or other security.
16. General Terms
(a) Severability. If any section, clause, provision, exhibit, addendum or portion of this ordinance is judged unconstitutional or invalid by a court of competent jurisdiction, the remainder of the ordinance shall remain in forces and not be affected by such judgment.
(b) Governing Law. This Agreement shall be governed by and interpreted in accordance with the internal laws of the defending party ("Neutral State") as applied to agreements entered into and fully performed therein. Both parties submit to jurisdiction in the Neutral State and further agree that any cause of action arising under this Agreement shall be brought in the appropriate courts in the Neutral State.
(c) Arbitration. Any controversy or claim arising out of or in relation to this Agreement or the validity, construction or performance of this Agreement, or the breach thereof, shall be resolved by arbitration in accordance with the rules of the American Arbitration Association (AAA) under its jurisdiction in the Neutral State before a single arbitrator. The parties shall have the right to engage in pre-hearing discovery in connection with such arbitration proceedings. The parties agree hereto that they will abide by and perform any award rendered in any arbitration conducted pursuant hereto, that any court having jurisdiction thereof may issue a judgment based upon such award and that the prevailing party in such arbitration and/or confirmation proceeding shall be entitled to recover its reasonable attorney’s fees and expenses. The arbitration award shall be final, binding, and non-appealable. The parties agree to accept service of process in accordance with the AAA Rules.
(d) Non-waiver. No failure or neglect of either party hereto in any instance to exercise any right, power or privilege under this Agreement or under applicable law shall constitute a waiver of any other right, power or privilege in any other instance. All waivers by either party must be in wiring and signed by the party to be charged.
(e) Entire Agreement. This Agreement contains the entire agreement and understanding between the parties and supersedes any prior or contemporaneous written or oral agreements, representations and warranties between them respecting the subject matter of this Agreement. This Agreement may be amended only by a writing signed by Licensee and by a duly authorized representative of the Datatrac.
(f) Force Majeure. Neither party shall have any liability whatsoever for interruptions of service or other breach of this Agreement due to fire, explosion, lightning, power surge or failure, water or floods, acts of God, war, civil disturbance, acts or omissions of communications carriers, governmental acts, natural disasters, strikes or industrial disputes, political disturbances, epidemics and all other circumstances which, against its will, prevent or hinder such party from performing its obligations.
(g) Notices. All notices given pursuant to this Agreement shall be submitted to Datatrac at certification@datatrac.net and to Licensee at the address of file with the regulatory agency to which Licensee reports at the time of the notice.
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Datatrac Great Rate Award® is a registered certification mark of Datatrac. ©Copyright, Datatrac Corporation 2021. All rights reserved.