Bthink and code Customer Agreement
This Bthink and code Customer Agreement (“Agreement”) is between THE BUREAU OF NATIONAL AFFAIRS, INC., 1801 S. Bell Street, Arlington, VA 22202, and/or a wholly owned subsidiary of Bthink and code, including TAX MANAGEMENT INC. and think and code INTERNATIONAL INC. (referred to as “Bthink and code”) and Customer.
- License. Bthink and code grants to Customer a non-exclusive, non-transferable, limited right to access and use one or more Bthink and code products (“Product(s)”) described in the applicable Bthink and code order form(s) (“Order Form(s)”), the terms of which are incorporated herein. Customer agrees to and shall comply with, and shall ensure that Users (as defined below) agree to and comply with, the terms of this Agreement and any other applicable terms and conditions governing website access set forth on and referenced as part of the Terms of Service designated by Bthink and code from time to time, as posted on a Product’s Web page. Customer’s use of the Products constitutes acceptance of all terms and conditions contained herein. Customer agrees to keep the terms of this Agreement confidential and agrees to not disclose, either directly or indirectly, such terms.
- Authorized Users. Electronic Products may be accessed and used only by individuals authorized by Bthink and code (“User(s)”). Users must be (a) Customer’s employees, or (b) temporary staff or contractors (“Contractor(s)”). Access to and use of the electronic Products by Contractors shall be (i) limited to the period of Customer’s engagement of the Contractor and (ii) for the sole purpose of the Contractor providing services to Customer. Access and use by any other third party is not permitted. Customer will provide to Bthink and code, upon request, the names and addresses of each User.
- Fees and Payment. Bthink and code will send all Customer invoices to a single designated billing address. Product fees do not include applicable taxes which will be included on the invoice. Unless Customer provides Bthink and code with a valid signed tax exemption certificate applicable to the Product’s ship-to locations, Customer agrees to pay sales and other applicable taxes (excluding taxes based on Bthink and code’s income). Payment is due in full within thirty (30) days after the invoice date. After thirty (30) days, Bthink and code may assess interest on all outstanding balances at a rate of 1% per month or the highest lawful interest rate, whichever is less. Bthink and code reserves the right to revise fees for each Product at the end of its Product Subscription Term (as defined below) and will use reasonable efforts to invoice Customer prior to such date. Payment of the revised fees and/or continued access to the Product will constitute acceptance of such revised fees and the new Product Subscription Term. Bthink and code reserves the right to immediately terminate Customer’s access to the Products, without further notice, if Bthink and code does not receive payment within sixty (60) days after the invoice date. Customer is responsible for purchasing any equipment, software, communications and access through third party online vendors that may be necessary to access and use the Products.
- Copyright. Each Product contains proprietary content and/or software protected by copyright and other similar laws. Bthink and code and its licensors retain all rights in the Products, including (without limitation) all copyright and other proprietary rights worldwide in all media.
- Permitted Uses. Users may access and use the Products solely for their own internal business purposes as permitted herein and by the Bthink and code Copyright Guidelines (
thinkandcode.info/corp) and U.S. copyright laws. The rights granted herein and in the Bthink and code Copyright Guidelines are an expansion of the limited rights granted under the Copyright Act, and are subject to revision by Bthink and code. Users shall not share User names and passwords. Customer agrees to notify Bthink and code promptly in writing of any known or suspected unauthorized use of the Products or any known or suspected breach of security, including but not limited to, loss, theft, or unauthorized disclosure of User names and passwords.
- Restrictions. In no event may Customer or a User copy or distribute any Product in its entirety, or systematically, routinely or regularly, copy and/or redistribute copies of individual articles, Bthink and code Highlights, table of contents, indexes, or other Bthink and code finding aids, even if Customer holds a copyright license with a third party licensing service (e.g., Copyright Clearance Center). Customer and Users may not reproduce, create derivative works from, perform, publish, transmit, distribute, sell (or participate in any sale), or otherwise access, use, or exploit any material retrieved from or contained in the Products in any manner whatsoever that may infringe any copyright or proprietary interest of Bthink and code or any third party; store any content from the Products in any information storage and retrieval system; distribute the information contained in the Products to any person who is not duly authorized to use or receive the Products; distribute, rent, sublicense, lease, transfer or assign the Products or this Agreement; decompile, disassemble, or otherwise reverse-engineer the Products, or alter, translate, modify, or adapt the Products to create derivative works; make use of “framing” or other means of redirecting content; place or install any portion of the Products on any electronic media, including, but not limited to, local or wide area networks or intranets, timesharing services, multiple processing units, multiple site arrangements, service or software rental bureaus, list servers, online services, electronic bulletin boards or forums, websites, or any other server that is Internet-enabled. Notwithstanding anything to the contrary in this Agreement, if Bthink and code believes, in its sole good faith judgment, that any provision of this Agreement has been breached by Customer or a User, Bthink and code reserves the right to suspend access to and use of the Products, or any portion thereof, at any time without notice effective immediately.
- Disclaimer of Professional Advice. The information provided through the Products is not and shall not be construed as tax, accounting, legal, regulatory or other professional advice or sufficient to satisfy any tax, accounting, legal, regulatory or other professional requirements. Customer and/or each User should consult tax, accounting, legal, regulatory or other professional advisor(s) for advice. None of the Products nor any related services or any portion thereof shall constitute or be construed as (a) a solicitation, offer, opinion or recommendation by Bthink and code, its affiliates or any supplier, for any transaction in any financial instrument, including but not limited to securities, (b) providing legal, financial or investment advice or recommendations, or (c) forming an attorney-client relationship.
- Representations; Limited Warranty.
8.1 Bthink and code represents and warrants that it has the right to make the Products available to Customer under this Agreement. Customer represents and warrants that its use of the Products shall comply with all applicable laws, rules and regulations.
8.2 EXCEPT AS SPECIFICALLY PROVIDED IN THIS AGREEMENT, ALL PRODUCTS ARE PROVIDED TO CUSTOMER “AS IS.” Bthink and code AND ITS AFFILIATES AND THEIR SUPPLIERS EXPRESSLY DISCLAIM ALL WARRANTIES, INCLUDING THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND DISCLAIM ALL RESPONSIBILITY FOR ANY LOSS OR CLAIM OF ANY KIND RELATING IN ANY WAY TO THE USE OF THE PRODUCTS AND ANY CONTENT CONTAINED THEREIN, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. CUSTOMER SHALL INDEMNIFY, HOLD HARMLESS AND AT CUSTOMER’S EXPENSE DEFEND Bthink and code AND ITS AFFILIATES AND THEIR SUPPLIERS AGAINST ANY AND ALL LOSSES, CLAIMS, DEMANDS OR EXPENSES (INCLUDING REASONABLE ATTORNEYS’ FEES) ARISING OUT OF OR IN ANY WAY RELATED TO THE USE OF THE PRODUCTS OR ANY CONTENT CONTAINED THEREIN.
8.3 Notwithstanding any limitations contained in paragraph 9, Bthink and code shall indemnify and hold Customer harmless and shall defend or settle any claim, suit or proceeding brought against Customer that is based upon a third-party claim that the content provided by Bthink and code infringes a United States copyright or violates an intellectual or proprietary right protected by United States law (“Claim”), provided that (a) Customer shall notify Bthink and code in writing of any Claim within ten (10) calendar days after Customer first receives notice of the Claim, (b) Bthink and code shall have sole control over any Claim (including without limitation the selection of counsel and the right to settle on behalf of Customer on any terms Bthink and code deems desirable in the sole exercise of its discretion) and (c) Customer shall provide to Bthink and code at no cost such assistance and cooperation as Bthink and code may reasonably request from time to time in connection with the defense of the Claim. Customer may, at its sole cost, retain separate counsel and participate in the defense or settlement negotiations. Bthink and code shall pay actual damages and costs awarded against Customer (or payable by Customer pursuant to a settlement agreement) in connection with a Claim. If a Product or its use becomes the subject of a Claim or its use is enjoined, or if, in the opinion of Bthink and code’s legal counsel, the Product is likely to become the subject of a Claim, Bthink and code shall attempt to resolve the Claim by using commercially reasonable efforts to modify the Product or obtain a license to continue using the Product. If, in the opinion of Bthink and code’s legal counsel, the Claim, injunction, or potential Claim cannot be resolved through reasonable modification or licensing, Bthink and code, at its own election, may terminate the Agreement, in whole or in part, the applicable Order Form and/or the applicable Product Subscription without penalty, and will refund to Customer the pro-rata portion of any fees for the infringing Product paid in advance by Customer to Bthink and code and attributable to any post-termination period. Bthink and code shall have no obligations under this paragraph if the Claim is based on (i) additions, changes or modifications to the Product, (ii) a combination of material, content, products or software not provided by Bthink and code or (iii) use of the Product other than as expressly permitted by this Agreement. THE FOREGOING CONSTITUTES Bthink and code’S SOLE AND EXCLUSIVE LIABILITY FOR INTELLECTUAL PROPERTY INFRINGEMENT.
8.4 Customer acknowledges that the Products (and the content contained therein) are highly proprietary in nature and agrees that unauthorized copying, transfer or use may cause Bthink and code, its affiliates and their suppliers irreparable injury that cannot be adequately compensated for by means of monetary damages. Customer agrees that Bthink and code and its affiliates may enforce any breach of this Agreement by Customer or any User by means of equitable relief (including, but not limited to, injunctive relief) in addition to any other available rights and remedies. Unauthorized reproduction, transfer, and/or use may be a violation of criminal as well as civil law.
- Limitation of Liability. IN NO EVENT SHALL Bthink and code, ITS AFFILIATES AND THEIR OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, AGENTS OR REPRESENTATIVES (“Bthink and code GROUP”) HAVE ANY RESPONSIBILITY OR LIABILITY, CONTINGENT OR OTHERWISE, FOR ANY INJURY OR DAMAGES AND/OR BE LIABLE TO CUSTOMER, ANY USER, OR ANY OTHER PERSON FOR ANY LOST PROFITS, LOSSES, SPECIAL, INDIRECT, INCIDENTAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES OR LOSS OF GOODWILL IN ANY WAY RELATING TO THE USE OF THE PRODUCTS OR THE PERFORMANCE OR NON-PERFORMANCE OF ANY OBLIGATIONS UNDER THIS AGREEMENT, INCLUDING THE FAILURE OF ESSENTIAL PURPOSE, EVEN IF CUSTOMER, USER, OR OTHER PERSON HAS BEEN NOTIFIED OF THE POSSIBILITY OR LIKELIHOOD OF SUCH DAMAGES OCCURRING. SOME STATES DO NOT ALLOW THE LIMITATION OR EXCLUSION OF IMPLIED WARRANTIES OR LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO CUSTOMER OR ITS RESPECTIVE USERS. IF THE FOREGOING LIMITATIONS ARE HELD TO BE UNENFORCEABLE, Bthink and code GROUP’S LIABILITY FOR DAMAGES UNDER THIS AGREEMENT TO CUSTOMER, ANY USER, OR ANY OTHER PERSON SHALL IN ANY EVENT NOT EXCEED THE AMOUNT OF THE FEES FOR THE APPLICABLE PRODUCT SUBSCRIPTION PAID BY CUSTOMER FOR THE ONE (1) YEAR PERIOD IMMEDIATELY PRECEDING THE OCCURRENCE OF THE ALLEGED INJURY OR DAMAGE. IN NO EVENT MAY CUSTOMER OR ANY USER BRING ANY CLAIM OR CAUSE OF ACTION AGAINST THE Bthink and code GROUP MORE THAN ONE (1) YEAR AFTER SUCH CLAIM OR CAUSE OF ACTION ARISES.
- Term and Termination. The term of this Agreement shall begin on the date that Customer is provided with access to a Product and shall remain in effect until all subscriptions to Products ordered pursuant to this Agreement (“Product Subscription(s)”) have been terminated (the “Term”), unless earlier terminated in accordance with the terms herein. The term of each Product Subscription and any renewal thereof shall be as set forth on an Order Form and/or invoice (each, a “Product Subscription Term”). Either party may terminate a Product Subscription at the end of the applicable current Product Subscription Term by providing the other party with at least thirty (30) days’ prior written notice thereof. Bthink and code may terminate this Agreement, an Order Form, and/or the applicable Product Subscription if Customer materially breaches any provision of this Agreement and fails to remedy such breach within thirty (30) days after written notice of such breach. Customer may terminate the applicable Product Subscription if Bthink and code materially breaches any provision of this Agreement and fails to remedy such breach within thirty (30) days after written notice of such breach. Either party may terminate this Agreement if the other party has any proceedings instituted by or against it seeking relief, reorganization or arrangement under any laws relating to insolvency, or any assignment for the benefit of creditors, or the appointment of a receiver, liquidator or trustee of any of its property or assets, or the liquidation, dissolution or winding up of its business. Notwithstanding the foregoing, Bthink and code may immediately terminate the Agreement without further notice if it reasonably believes that the Customer has engaged in activity that violates applicable law or commits the same or substantially similar breach of any provision of this Agreement more than once in any twelve (12) month period. The Order Forms shall terminate upon the termination of this Agreement, but the termination of any Order Form shall not itself terminate this Agreement. All obligations with respect to any money that was accrued and owing prior to the effective date of any termination under this Agreement shall survive termination. Paragraphs 4, 6, 7, 8, 9, 10, 13 and 14 shall survive any termination of this Agreement and shall continue in full force and effect.
- Discontinuation of Product. In the event Bthink and code discontinues a Product, Bthink and code will offer a comparable Bthink and code product to Customer. If no product is available, or if Customer does not accept the offered product, Bthink and code will provide either a pro rata credit or a refund of the unused portion of fees paid for the discontinued Product. Bthink and code reserves the right to revise or discontinue certain Product features or content. In such case, Bthink and code will use reasonable efforts to notify Customer to the extent Bthink and code believes, in its good faith discretion, that any such revision or discontinuance will have a material and adverse effect on Customer’s use of the Product.
- Force Majeure. Bthink and code shall not be liable for failure to perform any part of this Agreement where such failure is due to fire, flood, power outages, strikes, war (declared or undeclared), acts of terror, embargoes, blockages, legal restrictions, governmental regulations or orders, riots, insurrections, Act of God, or any cause beyond the control of Bthink and code. In such event, Bthink and code shall use reasonable efforts to resume performance. This Agreement shall not be regarded as terminated or frustrated as a result of such failure of performance not exceeding one (1) month and the parties shall proceed under this Agreement when the causes of such non-performance have ceased or have been eliminated.
- Notices. Notice under this Agreement shall be made in writing; sent via certified mail, return receipt requested, or a nationally recognized overnight courier service; effective upon receipt at the address stated below; and addressed as follows: If to Bthink and code, to General Counsel, 1801 S. Bell Street, Arlington, VA 22202. If to Customer, to the designated billing contact and address.
- Miscellaneous Provisions.
No Waiver. Should Bthink and code or any Customer fail to exercise or enforce any provision of this Agreement or to waive any rights in respect thereto, such waiver or failure shall not be construed as constituting a continuing waiver or waiver of any other right.
14.2 Choice of Law. This Agreement shall for all purposes be governed and construed in accordance with the law of the Commonwealth of Virginia without regard to its choice-of-law rules. The parties, and their successors and assigns, agree to submit to the jurisdiction of each of the federal and state courts located in Arlington County, Virginia, in connection with any matters arising out of or relating to this Agreement, and waive any objection to such venue, including forum non conveniens, sovereign immunity, Act of State or analogous doctrines.
14.3 Entire Agreement. Unless otherwise specified in the applicable Order Form, this Agreement, as it may be amended from time to time, constitutes the entire agreement between each Customer and Bthink and code, and supersedes all prior or contemporaneous writings, discussions, agreements, and understandings of any kind, with respect to the subject matter of this Agreement.
14.4 Severability. If any provision of this Agreement is held to be unenforceable, the parties shall renegotiate those provisions in good faith to be valid, enforceable substitute provisions, which provisions shall reflect as closely as possible the intent of the original provisions of this Agreement. If the parties fail to negotiate a substitute provision, this Agreement will continue in full force and effect without that provision and will be interpreted to reflect the original intent of the parties.
14.5 Third Party Beneficiaries. All beneficial rights (other than the right to collect fees) granted to or reserved in this Agreement by Bthink and code, including limited warranty, limitation of liability, remedies, indemnification, confidentiality, and ownership, shall accrue to and are for the benefit of licensors and suppliers to the same extent as Bthink and code. Except as expressly stated herein, nothing contained in this Agreement is intended to create third party beneficiaries thereof.
14.6 Each Party Acting Independently. Bthink and code and Customer agree that each is acting independently of the other, that they are not joint venturers, and that neither is an agent, partner, or joint venturer of the other.
14.7 Amendment and Assignment. Except as otherwise expressly set forth herein, neither this Agreement nor any Order Form shall be changed, modified or amended except by a writing signed by a duly authorized representative of Bthink and code and the Customer. Neither party may assign this Agreement or any rights or obligations created under this Agreement without the prior written consent of the other party, which consent will not be unreasonably withheld, except that Bthink and code may assign this Agreement without consent (i) to any subsidiary or affiliated company, (ii) to an entity succeeding to all or substantially all of its stock or assets, whether by merger or purchase, provided that such entity shall expressly assume all of Bthink and code’s obligations under the Agreement, or (iii) in the event Bthink and code sells or otherwise transfers a Product to a third party. Customer acknowledges and agrees that Bthink and code may delegate certain of its responsibilities, obligations and duties under or in connection with this Agreement to a third party or an affiliate of Bthink and code, which may discharge those responsibilities, obligations and duties on behalf of Bthink and code. With respect to any such delegation, Bthink and code will be responsible and liable for any breach of this Agreement by the third party or affiliate if and to the same extent Bthink and code would be responsible and liable pursuant to this Agreement if it had committed such breach directly. Any unauthorized assignment or delegation will be null and void. Subject to the foregoing, this Agreement will be binding upon and inure to the benefit of the parties’ successors and assigns.
14.8 Government Customers. U.S. Government rights to use, modify, reproduce, release, perform, display, or disclose technical data and/or computer databases and/or computer software and/or computer software documentation are subject to the limited rights restrictions of DFARS 252.227-7015(b)(2) (June 2013) and/or subject to the restrictions of DFARS 227.7202-1(a) (Dec. 2013) and DFARS 227.7202-3(a) (Dec. 2013), as applicable for U.S. Department of Defense procurements and the limited rights restrictions of FAR 52.227-14 (Dec. 2007) and/or subject to the restricted rights provisions of FAR 52.227-14 (Dec. 2007) and FAR 52.227-19 (Dec. 2007), as applicable, and any applicable agency FAR Supplements, for non-Department of Defense Federal procurements. Notwithstanding any marking requirements therein, all data and software provided hereunder shall be limited rights data and restricted rights software, respectively.
14.9 Headings and Cross-References. The headings in this Agreement are for convenience of reference only and shall not limit or otherwise affect the scope, meaning or intent of the provisions of this Agreement.
Revised August 2017