This Subscription Agreement (“Agreement”) is a binding agreement entered into between you, the Subscriber, as defined below, and HW Publishing LLC (“HousingWire” or “we” or “us”) and governs your use of the HousingWire Reports Service, as defined below, provided online via the HousingWire.com website. The HousingWire Reports Service created and provided by HousingWire provides FDIC call report data and analysis on U.S. banks and financial institutions, as well as other information and analysis. Subscriber desires to use and access this Reports Service pursuant to the following terms and conditions.
The parties agree as follows:
1. Definitions. The following definitions apply in this Agreement.
1.1 “HousingWire Reports Service” or “Reports Service” means the subscription based reports service described above and prepared and offered by and through HousingWire via the Website, as defined herein.
1.2 “Effective Date” means the date of your entering into this Agreement and HousingWire’s receipt from you of complete payment of the required subscription fee, as defined below.
1.3 “Party” may be used to refer to Subscriber (as defined below) and/or HousingWire, as applicable, and collectively, Subscriber and HousingWire may be referred to in this Agreement as the “Parties.”
1.4 “Reports” means the quarterly reports available through the HousingWire Reports Service.
1.5 “Subscriber” means you, the individual person or representative of a business entity entering into this Agreement with HousingWire that, upon payment of the required subscription fee, shall be authorized by HousingWire to access and use the Reports Service per the terms of this Agreement.
1.6 “Term” means the twelve (12) month subscription period, which begins on the Effective Date and entitles Subscriber to four (4) consecutive quarterly Reports, as well as any extensions of same.
1.7 “Website” means the HousingWire Website available at www.HousingWire.com, and any other related websites owned and operated by HousingWire.
2. Grant of Rights and Restrictions on Use of Reports Service.
2.1 License. As a Subscriber, you are granted a nonexclusive, nontransferable, limited right to access and use, solely for your primary internal business purposes, the Reports Service during the Term. The rights granted to Subscriber during the Term under this Agreement include the right to view, download, and print Reports retrieved from the Reports Service via the Website.
2.2 Except as specifically authorized by this Agreement, you may not, and agree not to, copy, reproduce, publish, distribute, perform, display, modify, adapt, prepare derivative works from, broadcast, circulate, recompile, or otherwise use the Reports, in whole or in part, in any form or by any means without the prior written permission of HousingWire. Under no circumstances may you use the Reports or any data and information from the Reports in any manner to compete or to assist others to compete with HousingWire, nor may you offer any of the Reports for commercial resale or commercial redistribution in any medium.
2.3 You agree not to engage in actions to collect the data and information available through the Reports Service, including, but not limited to, data mining, data mirroring, data scraping, or data framing or to utilize web crawlers, including, but not limited to, robots, bots, spiders, or other computer or software programs that run automated queries on the Reports or Reports Service. Your use of the Reports Service is permitted only via manually conducted, individual access and retrieval activities.
2.4 Reports Provided for Informational Purposes only; no investment recommendations. The Reports may contain analyses, projections, opinions, estimates, ratings, and/or other work product. Any analyses, projections, opinions, estimates, ratings, and/or other work product available on or through the Reports or Reports Service are provided for informational and illustrative purposes only, are not intended to provide and should not be interpreted as providing, any facts regarding or prediction or forecast of any particular event or risk. Certain assumptions may have been made in the Reports. Nothing in the Reports shall be construed as a recommendation, by HousingWire or any third party, to engage in any investment strategy or transaction. Nothing in the Reports is or shall be construed as a solicitation of an offer or an offer to buy or sell any security or to participate in any investment or trading strategy. HousingWire makes no representation that any results indicated will be achieved. Changes to the assumptions may have a material impact on any results listed in the Reports. Past performance is not necessarily indicative of future results.
3. Ownership of Reports. You acknowledge that all content comprising the Reports, including but not limited to, all data, information, analyses, graphics, or work product obtained from or through, or generated via the Reports Service, is protected by copyright and/or other intellectual property laws and are owned by HousingWire and/or its licensors or information providers with all rights reserved except for the limited authorizations granted by this Agreement. You acknowledge and agree that no proprietary rights are being transferred or granted to you as to the Reports as a result of this Agreement and all rights not expressly granted to Subscriber are reserved by HousingWire.
4. Access to Reports Service. HousingWire makes the Reports Service available to Subscriber via the Website. Subscriber agrees to provide HousingWire with accurate contact information, including legal name, company name (if applicable), street and mailing address, telephone number, and email address. Only the person in whose name a subscription account is created is eligible to access and use the Reports Service and the Reports. Subscriber agrees to use commercially reasonable efforts to safeguard access to the Reports Service and Reports and to prevent unauthorized use of the Reports Service and Reports through the account associated with Subscriber’s subscription to the Reports Service. Subscriber agrees to maintain accurate account information and to notify HousingWire of any changes to its contact information.
5. Subscription Fee. You agree to pay the required Subscription Fee. Prices are subject to change. Renewal subscriptions will be offered at then-current rates.
6. Delivery of Reports. The quarterly intervals by which HousingWire will make the Reports available to Subscriber shall be measured using the twelve-month calendar year starting with January 1st. Each quarterly report should generally be available to the Subscriber within sixty (60) days following the close of each calendar quarter. Subscriber shall be exclusively responsible for providing all materials, including, without limitation, hardware and software necessary for accessing and using the Website, Reports Service, and Reports.
7. Representations, Warranties, Disclaimers, and Limitation of Liability
7.1 Each Party represents and warrants to the other that:
(a) the entering of this Agreement has been duly authorized and no further approval, corporate or otherwise, is required in order to execute this binding Agreement;
(b) it shall comply with any applicable international, national, or local laws and regulations in its performance under this Agreement; and
(c) its rights and obligations under this Agreement do not conflict with any contractual obligation or court or administrative order by which it is bound.
7.2 Disclaimers of Warranties and Limitation of Liability.
YOU ACKNOWLEDGE AND AGREE THAT THE REPORTS SERVICE AND REPORTS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. YOU EXPRESSLY AGREE THAT YOUR USE OF THE REPORTS SERVICE AND ANY REPORTS IS AT YOUR SOLE RISK. THE INFORMATION AND MATERIALS IN AND AVAILABLE THROUGH THE REPORTS SERVICE ARE BASED ON GENERALLY AVAILABLE PUBLIC INFORMATION FROM SOURCES BELIEVED TO BE RELIABLE AND OTHER PROPRIETARY SOURCES. FDIC CALL REPORT DATA IN THE REPORTS IS AS REPORTED BY FDIC, AND YOU ACKNOWLEDGE AND AGREE THAT FDIC CALL REPORT DATA MAY THEREFORE CONTAIN ERRORS DUE TO REPORTING BANKS PROVIDING INACCURATE OR INCORRECT DATA TO FDIC.
NEITHER HOUSINGWIRE, ITS AFFILIATES OR THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, OR AGENTS, NOR ANY OF HOUSINGWIRE’ LICENSORS OR INFORMATION PROVIDERS OR THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, OR AGENTS REPRESENT, WARRANT, OR GUARANTEE THE ACCURACY, TIMELINESS, RELIABILITY, ADEQUACY, COMPLETENESS, OR USEFULNESS OF THE REPORTS SERVICE OR THE REPORTS AVAILABLE ON OR THROUGH THE REPORTS SERVICE, OR ANY PROJECTIONS OR WORK PRODUCT BASED UPON SUCH MATERIALS OR AS TO ANY RESULTS THAT MAY BE OBTAINED FROM USE OF THE REPORTS SERVICE OR THE REPORTS AVAILABLE ON OR THROUGH THE WEBSITE. HOUSINGWIRE SPECIFICALLY DISCLAIMS ANY AND ALL REPRESENTATIONS, WARRANTIES, ENDORSEMENTS, OR GUARUNTEES, WHETHER EXPRESS OR IMPLIED, REGARDING THE REPORTS SERVICE AND REPORTS, INCLUDING WITHOUT LIMITATION MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR ANY IMPLIED WARRANTIES ARISING FROM ANY COURSE OF DEALING, USAGE, OR TRADE PRACTICE. SOME STATES DO NOT ALLOW EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSIONS MAY NOT APPLY TO HOUSINGWIRE. IN SUCH STATES, THE LIABILITY OF HOUSINGWIRE SHALL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
HOUSINGWIRE DOES NOT WARRANT THAT THE REPORTS SERVICE OR REPORTS, OR SOFTWARE ON THE WEBSITE PROVIDING ACCESS TO THE REPORTS SERVICE, THE SERVERS ON WHICH THE REPORTS SERVICE OPERATES, OR ELECTRONIC MAIL OR MESSAGES SENT TO YOU FROM HOUSINGWIRE ARE FREE OF VIRUSES OR OTHER MALWARE OR HARMFUL ELEMENTS, OR SHALL OPERATE UNINTERRUPTED OR ERROR-FREE. HOUSINGWIRE DOES NOT WARRANT THAT THE QUALITY OR CONTENT OF THE REPORTS SERVICE OR ANY REPORTS AVAILABLE ON OR THROUGH THE REPORTS SERVICE WILL MEET YOUR EXPECTATIONS OR NEEDS.
IN NO EVENT SHALL HOUSINGWIRE BE LIABLE TO YOU FOR ANY DAMAGES OF ANY KIND ARISING FROM OR IN ANY WAY CONNECTED WITH YOUR USE OF THE REPORTS SERVICE OR REPORTS MADE AVAILABLE ON OR THROUGH THE WEBSITE, FOR ANY DECISION MADE OR ACTION TAKEN BY YOU IN RELIANCE ON SUCH REPORTS, FOR LOSS OF PROFITS, LOSS OF REVENUE, TRADING LOSSES, LOSS OF BUSINESS, LOSS OF USE, OR LOSS OF DATA, FOR DAMAGE TO YOUR COMPUTER OR COMPUTER SYSTEM, OR FOR ANY OTHER DIRECT, INDIRECT, CONSEQUENTIAL, INCIDENTAL, OR PUNITIVE DAMAGES. EVEN IF HOUSINGWIRE HAS BEEN ADVISED OR IS OTHERWISE AWARE OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF THE WARRANTY REMEDY FAILS OF ITS ESSENTIAL PURPOSE, SOME STATES DO NOT ALLOW EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO HOUSINGWIRE. IN SUCH STATES, THE LIABILITY OF HOUSINGWIRE SHALL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW. HOUSINGWIRE’S CUMULATIVE LIABILITY TO YOU FOR ANY LOSS OR DAMAGES RESULTING FROM ANY CLAIMS, DEMANDS, ACTIONS, OR OTHERWISE ARISING OUT OF OR RELATING TO THIS AGREEMENT SHALL NOT EXCEED THE TOTAL SUBSCRIPTION FEES PAID BY SUBSCRIBER TO HOUSINGWIRE DURING THE CONSECUTIVE TWELVE-MONTH PERIOD IMMEDIATELY PRECEDING THE OCCURRENCE OF THE FIRST SUCH EVENT GIVING RISE TO SUCH LIABILITY.
8. Indemnification by Subscriber. You agree to indemnify and hold harmless HousingWire from any claims, losses, damages, and/or liability of whatever kind or nature, as well as all costs and expenses, including reasonable attorneys’ fees and court costs, which arise or may arise at any time out of or in connection with your breach of this Agreement or any representations and warranties made by you herein, or your violation of any law or third party rights.
9. Term and Termination.
9.1 Term. The Term of this Agreement shall be twelve (12) months from the Effective Date.
9.2 Termination by HousingWire. HousingWire shall have the right to terminate this Agreement upon thirty (30) days written notice if Subscriber commits a material breach of any term of this Agreement and fails to remedy such breach within the thirty (30) day notice period.
9.3 Surviving Rights and Obligations. The expiration or termination of this Agreement does not relieve either Party of its rights and obligations that have previously accrued including, for example, obligations to respect and observe copyright rights relative to the Reports. Upon expiration or termination, all rights granted immediately revert to HousingWire. The terms of this Agreement that by their nature prescribe continuing obligations and rights shall survive the expiration or termination of this Agreement.
10. Notices. All notices, requests, demands, and other communications under this Agreement shall be in writing and duly given or made: (a) on the date delivered in person and acknowledged in writing; (b) on the date transmitted by facsimile, if confirmation is received by sender; (c) three days after deposit in the mail if sent by certified U.S. mail postage prepaid, return receipt requested; (d) one day after deposit with Federal Express or other nationally recognized overnight carrier service or overnight express U.S. mail with service charges or postage prepaid; (e) on the date first made available, if displayed on the Website in the Reports Services, or (f) by other electronic means, so long as the recipient has acknowledged receipt (noting that automatically generated receipt confirmation does not qualify as acknowledgement for this method of notice). Such notices, requests, demands, and other communications shall be sent to the Party at its address, facsimile, email address below, or as otherwise designated by the Party in accordance with this notice provision:
If to HousingWire:
HW Publishing, LLC
1320 Greenway Drive, Ste 870
Irving, TX 75038
Phone: (888) 294-0219
If to Subscriber:
The contact information provided by the Subscriber at the time of entering the Agreement and as later amended by the Subscriber.
11. Entire Agreement. This Agreement constitutes the entire agreement between the Parties with respect to the subject matter hereof and supersedes all prior communications, agreements, or understandings, written, electronic, or oral. Each Party acknowledges that, in entering into this Agreement, it did not rely on any representation, warranty, or other assurance from the other Party except as expressly provided herein. Each Party acknowledges that it was provided an opportunity to seek advice of counsel, and as such this Agreement shall not be strictly construed for or against either Party.
12. Applicable Law. This Agreement shall be construed, governed, interpreted, and applied in accordance with the laws of the state of Illinois, without regard to any choice-of-law provisions.
13. Jurisdiction of Disputes. Any dispute between the Parties arising out of or relating to this Agreement or use of the Reports Service or Reports shall be adjudicated in any state or federal court located in Dallas County, TX and you consent to exclusive jurisdiction and venue in these courts.
14. Non-waiver. The delay or failure of either Party to assert a right hereunder or to insist upon compliance with any term or condition of this Agreement shall not constitute a waiver of that right or excuse a similar subsequent failure to perform any such term or condition by the other Party. A valid waiver must be executed in writing and signed by the Party granting such waiver.
15. Severability. The provisions of this Agreement are severable, and in the event that any provision of this Agreement is determined to be invalid or unenforceable under any controlling body of law, such invalidity or non-enforceability shall not in any way affect the validity or enforceability of the remaining provisions.
16. Force Majeure. Any delay or failure of either Party to perform under this Agreement that is caused by circumstances beyond the reasonable control of the Party, including, without limitation, acts of God, fire, flood, war, civil unrest, labor unrest, government regulation, power failure, or failure of vendor to perform, shall not constitute default and said delay or failure shall be excused for the duration of such event and for such a time thereafter as is reasonable to enable the Party to resume performance hereunder.
17. Successor Obligation and Benefit. This Agreement and any amendment thereto shall be binding upon and inure to the benefit of HousingWire and its permitted successors and assigns. Where applicable, information providers of HousingWire have the right to assert and enforce the provisions of this Agreement directly on its own behalf as a third party beneficiary.
18. Independent Contractors. Nothing contained in this Agreement shall place the Parties in a partnership, joint venture, or agency relationship, and neither Party shall have the right or authority to obligate or bind the other Party in any manner.
19. Assignment. HousingWire may assign or otherwise transfer this Agreement to the assignee or transferee of its entire business or of that part of its business to which this Agreement relates. You may not assign this Agreement or your rights or obligations under this Agreement.