These Terms of Service (these “Terms”) apply when you, the User (as defined below), uses a website, mobile application, Analytical Platform (as defined below) and/or other online service to receive certain Data Services (as defined below), that is provided directly or indirectly by ResourceWise, and/or its affiliates, which include, Forest2Market, Fisher International, Tecnon OrbiChem, Wood Resources International, PRIMA Markets, and any other subsequent affiliates (as applicable, “we”, “us”, “our” or the “Service Provider”). Unless another separate agreement is executed between the Service Provider and the User, including without limitation a specific Master Data License Agreement, these Terms shall govern the User’s access to the Data Services and the applicable Analytical Platform. Your use of the Data Service and/or Analytical Platform expressly acknowledges your agreement to be bound by these Terms in all respects. We may change these Terms or modify any features of the Data Service or Analytical Platform at any time at our sole discretion. The most current version of the Terms can be found at https://www.resourcewise.com/terms-of-service, as they may be updated from time to time. If you continue to use the Data Service and/or Analytical Platform after any change(s) to these Terms are posted, you, as the User, will have explicitly deemed to have accepted any such change(s).
1. Definitions. As used in these Terms, the capitalized terms set forth below have the following meanings:
(a) “Analytical Platform” means each existing or future online business intelligence platform developed and marketed by the Service Provider, including without limitation, SilvaStat360®, WoodMarket Prices™, Orbichem360®, and FisherSolve®.
(b)“Confidential Information” means any confidential or non-public information of the Service Provider, including without limitation, such information related to the Service Provider’s respective business activities, financial affairs, trade secrets, technology, marketing or sales plans that is disclosed to, or otherwise learned by or received by the User as a result of using the Data Services or any Analytic Platform, in any form, directly or indirectly, oral or written, whether or not marked “confidential” or “trade secret” by the Service Provider, which Confidential Information specifically includes the Service Provider’s Intellectual Property (as defined in Section 3).
(c) “Data” means all information produced by the Service Provider including but not limited to price data, charts, news, analysis, reports, and/or notes.
(d) “Data Service” means specific data services provided by the Service Provider including, without limitation, services provided via an Analytical Platform, digital information, any text, tables, spreadsheets, databases, and digital images contained in reports, including price reports.
(e) “Data Copies” means actual copies of all or any portion of the Data Service, including backups, updates, merged or partial copies permitted hereunder or subsequently provided by the Service Provider to the User from time to time.
(f) “Data Subject” means any person who provides their personal data.
(g) “Personal Data” has the meaning given to it in the General Data Protection Regulation 2016 which includes any information that allows a person to be identified or identifiable, directly or indirectly in a number of ways including but not limited to, identification by name, email address, telephone number, cultural or social identity, address and date of birth.
(h) “User Data” means the electronic data or information relating to a User’s business and submitted by such User to the Data Services or to the Service Provider.
(i) “Users” means (i) any individual or entity who accesses or uses a website, mobile application, Analytical Platform and/or other online service provided directly or indirectly by the Service Provider, which also includes the employees of such individual or entity who are authorized by such individual or entity to use the Data Services and for whom subscriptions to the Data Services have been purchased and (ii) consultants, contractors or agents of any individual or entity, for whom subscriptions to the Data Services have been purchased and for whom user identifications and passwords have been supplied to, when such Data Services require such user authentication methods.
2. Grant of Limited License and User Responsibilities; Limitations on Use.
(a) Grant of Limited License. Subject to these Terms, the applicable Service Provider hereby grants to the User a non-exclusive and non-transferable limited license to use the applicable Analytical Platform, Data Service and the Data Copies, for such length of time, as set forth in an applicable invoice or further detailed in a data service schedule, entered into between such User and the Service Provider, in each case, solely for the User’s own internal business purposes and in accordance with these Terms. Service Provider reserves the right to improve or modify the Data Services from time to time, including report formats or periods and timing of delivery of any Data Service. Data Services provided shall be subject to these Terms in all respects. To the extent any terms or conditions of a data service schedule, invoice, or other communications conflict with these Terms, these Terms shall control, except where specific mutually executed agreements by a Service Provider and a User expressly and specifically states an intent to supersede these Terms on a specific matter.
(b) User Responsibilities. Certain Analytical Platform modules provided by the Service Provider require data sharing by the User. In these cases and as an express condition of receiving Data Services, the User shall timely furnish to the Service Provider the User Data as identified for the applicable Data Service and shall comply with the data requirements set forth on a data requirements schedule, where applicable. The User acknowledges and agrees that if required, failure to deliver User Data in the manner and on the schedule set forth in the data requirement schedule shall be deemed a material breach of these Terms. Service Provider reserves the right to cancel or postpone, in its sole discretion, all or any part of the Data Service upon written notice to User if User refuses or fails to timely supply User Data, and User shall be responsible for any cancellation fees. In addition, User shall (i) be responsible for such User’s compliance with these Terms, (ii) be solely responsible for the accuracy, quality, integrity and legality of User Data and of the means by which it acquired User Data, (iii) use commercially reasonable efforts to prevent unauthorized access to or use of the Data Services via User’s points of entry, and notify Service Provider promptly of any such unauthorized access or use, (iv) use the Data Services only in accordance with these Terms, including the confidentiality obligations contained herein, and comply with all applicable laws and government regulations pertaining to the use of the Data Services, and (v) not attempt to manipulate the accurate reporting of User Data.
(c) Limitations on Use. User shall not (i) disclose or allow to be disclosed to any third party, the Data Services, Service Provider Intellectual Property or Confidential Information which User is provided access to, other than as expressly permitted hereunder, (ii) sell, resell, rent or lease the Data Services, (iii) distribute derivative works, including without limitation, translations, adaptations, arrangements or any other alteration or make copies of the Data Service, except as expressly permitted herein, (iv) use the Data Services to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (v) interfere with or disrupt the integrity or performance of the Data Services or third-party data contained therein, or (vi) alter, remove or obscure any proprietary legend, copyright or trademark notice contained in or on the Data Service, the Data Copies or any reports or data available therein. User may only disclose Service Provider Intellectual Property to third parties for User’s own internal business purposes and with Service Provider’s prior written consent, which consent shall be conditioned upon the third party’s agreement to, and execution of, Service Provider’s then-current standard third-party access agreement, accompanied by Service Provider’s standard license fees. User shall not, without Service Provider’s prior written consent, post the Data Service to ftp sites, internet web servers, multiple-office intranets or sent to other users as an e-mail attachment. User shall protect the Data Service from unauthorized use, reproduction, distribution or publication. All rights not specifically granted in these Terms are reserved by Service Provider. Notwithstanding anything in this Section 2(c) to the contrary, authorized Users may make all use of the Data Services as is consistent with the “fair use” provisions of applicable law and nothing in this Section 2(c) is intended to limit in any way whatsoever any authorized User's rights under the “fair use” provisions of applicable law to use the Data Service and Data Copies.
3. Ownership of Service Provider Intellectual Property.
(a) Except for the limited license expressly set forth in Section 2 above, nothing in these Terms or the performance thereof shall convey, license, or otherwise transfer any right, title, or interest in any intellectual property, including the Data Services, or other proprietary rights held by Service Provider, to User. Service Provider owns and retains title and all proprietary rights to all materials and services owned and/or developed by Service Provider whether created prior to, during, or after the Effective Period (as defined below), including but not limited to Data Services, Data Copies, Analytical Platforms, ideas, analytic models and techniques, operating methods, software tools, analytical tools (including such tools as are made available to User via Analytical Platforms), web-based applications, and survey techniques and questionnaires and also any derivatives, improvements, enhancements of such intellectual property conceived, reduced to practice, or developed (collectively “Service Provider Intellectual Property”).
(b) Service Provider operates online interactive business intelligence platforms through which subscribers can access data, analytical products, and various online tools. Service Provider may provide the Data Service to User by making the Data Service available to User via its applicable Analytical Platform. User’s use of Analytical Platforms is subject to these Terms. For the avoidance of doubt, when Analytical Platforms are made available to the User pursuant to these Terms, Analytical Platforms (not including any User Data uploaded or inputted by User) shall be Service Provider’s Confidential Information and Service Provider Intellectual Property. User shall maintain backup copies of all data inputted or uploaded by User to the applicable Analytical Platforms.
4. Fees; Taxes. User shall pay all fees at such times and in such currency as set forth in an applicable invoice provided by the Service Provider to the User. Fees are based on Data Services licensed and not actual usage and will be invoiced in advance of the User’s access of the Data Services. All payment obligations are non-cancellable and any and all fees paid are non-refundable. All fees are due within such time as set forth in an applicable invoice. In the event payment is not received by Service Provider on or before the time set forth in the applicable invoice, then Service Provider may, in addition to any other remedies available at equity or in law, at its option, elect to do any one or more of the following: (a) charge interest on the outstanding sum (to the maximum amount permitted by applicable laws); (b) suspend any further performance hereunder until such invoice is paid in full; and/or (c) terminate the Data Services pursuant to Section 6. User shall be responsible for, and shall promptly reimburse Service Provider with respect to all sales, use, value-added and other similar taxes and charges, however designated, properly imposed by any governmental body or agency in connection with the transaction contemplated in these Terms, but not taxes attributable to Service Provider’s income.
5. Warranty and Disclaimer of Warranty. Service Provider represents and warrants that it will perform the Data Services in a professional and workmanlike manner. Service Provider excludes warranty, representation or guarantee that the contents of the Data, any Analytical Platform, or any other Data Service(s) are accurate, complete, or void from any defects. No User (or any of its affiliates) shall hold the Service Provider liable for any damages, whether directly or indirectly, including damages for loss of business, loss of profits, punitive or consequential damages, damages arising in contract, tort, or from any action taken as a result of reliance on the information contained in the Data, the Service Provider’s Analytical Platform or any Data Service.
SERVICE PROVIDER DOES NOT WARRANT THAT THE DATA SERVICE (OR ITS ANALYTICAL PLATFORM) WILL MEET ANY REQUIREMENTS OR NEEDS USER MAY HAVE, OR THAT THE DATA SERVICE (OR ITS ANALYTICAL PLATFORM) WILL OPERATE ERROR-FREE, OR IN AN UNINTERRUPTED FASHION, OR THAT ANY DEFECTS OR ERRORS IN THE DATA SERVICE (OR ITS ANALYTICAL PLATFORM) WILL BE CORRECTED, OR THAT THE DATA SERVICE (OR ITS ANALYTICAL PLATFORM) IS COMPATIBLE WITH ANY PARTICULAR PLATFORM. THE REPRESENTATIONS AND WARRANTIES SET FORTH IN THIS SECTION 5 ARE THE SOLE AND EXCLUSIVE REPRESENTATIONS AND WARRANTIES MADE BY SERVICE PROVIDER, AND SERVICE PROVIDER MAKES NO OTHER REPRESENTATIONS, WARRANTIES OR GUARANTEES OF ANY KIND WHATSOEVER, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE. SERVICE PROVIDER DOES NOT WARRANT AS TO ANY RESULTS THAT MAY BE OBTAINED FROM USER’S USE OF THE DATA SERVICE OR SERVICE PROVIDER’S ANALYTICAL PLATFORM.
6. Effective Period; Termination.
(a) Unless earlier terminated in accordance with this Section 6, these Terms and the Data Services shall be in effect for such time period (and any extension thereof, the “Effective Period”) as indicated in an applicable invoice, data services schedule or other similar document, mutually executed by the User and the Service Provider, and unless such mutually executed agreement specifies otherwise, the parties acknowledge and agree that the Data Services will be provided for the Effective Period, and be subject to automatically renew for successive terms (having the same length of time as the initial Effective Period) unless either the Service Provider or the User notifies the other party in writing at least ninety (90) days’ prior to the end of the then Effective Period of such party’s intent to not renew. Service Provider agrees to notify User of any new fee schedule prior to the commencement (or renewal) of any new Effective Period.
(b) Either party may terminate the Data Services upon written notice to the other party if: (i) either party is adjudicated bankrupt, files a voluntary petition of bankruptcy, makes an assignment for the benefit of creditors or admits in writing that it is unable to meet its obligations in the normal course of business as they fall due; or (ii) the other party (the “Defaulting Party”) defaults in the performance of any of its obligations under these Terms or any data services schedule, if applicable, and such default continues for more than thirty (30) days after the Defaulting Party receives written notice thereof from the other party specifying the nature of the default. Upon expiration or termination of the Data Services for any reason, User shall destroy or at Service Provider’s direction, return to Service Provider all of the applicable Data Services and all Data Copies and access to Service Provider’s Analytical Platform(s) and/or product(s) and all tools and data available via such product(s) and/or Analytical Platform(s) will immediately terminate.
(c) The rights and obligations of the parties under Sections 2 through 10, and Section 13 shall survive the termination or expiration of these Terms or the Data Services for any reason.
8. Confidentiality. With respect to Confidential Information, the restrictions and obligations set forth in these Terms shall survive any expiration, termination or cancellation of the Data Services, shall continue beyond the termination of the business relationship between the parties and shall remain binding on the parties and each of their successors, employees, officers, directors, managers, representatives, heirs and assigns for the longer period of (a) three (3) years from the date of termination or expiration of the Data Services or last use of the Analytical Platform by the User, or (b) until the Confidential Information which is subject to these Terms otherwise becomes part of the public domain through lawful means. User shall not, without the prior written consent of the Service Provider, disclose or use the Confidential Information for any purpose other than the performance of its obligations under these Terms. User shall protect the Confidential Information from unauthorized disclosure to third parties, using at least the same standard of care as it uses to maintain the confidentiality of its own confidential and/or proprietary information of similar type and category. The obligations of confidentiality set forth herein shall not apply to Confidential Information which: (i) is or becomes public knowledge through no breach of these Terms by the User, (ii) is received by User from a third party not under a duty of confidentiality to the Service Provider, or (iii) can be shown by User’s contemporaneous written records was already known by the User prior to disclosure by the Service Provider. Confidential Information may be disclosed without breaching these Terms if such Confidential Information is required to be disclosed by a court or judicial or governmental authority of competent jurisdiction, or by any applicable law, rule or regulation, and in such event, only after User provides prompt written notice to Service Provider so as to enable the Service Provider to resist any such required disclosure and/or to obtain suitable protection regarding such required disclosure.
9. Indemnity. Each of the User and Service Provider (such party the “Indemnifying Party”) agrees to defend, indemnify and hold harmless the other party, its shareholders, managers, representatives, officers, board members, employees, attorneys and agents (such party, the “Indemnified Party”) from all claims or demands made against an Indemnified Party (and any related losses, expenses or costs) arising out of or relating to an Indemnifying Party’s failure to comply with applicable laws, the breach of its obligations hereunder, use of the Data Services, ownership of Service Provider Intellectual Property, or the gross negligence or willful misconduct of the Indemnifying Party in connection with these Terms. Notwithstanding the foregoing, Service Provider shall in no event be obligated to indemnify User in connection with an alleged infringement or misappropriation resulting from use of the Data Services, which is related to User’s failure to use an update provided by Service Provider. THIS SECTION 9 STATES THE ENTIRE LIABILITY OF EITHER PARTY WITH RESPECT TO THE MATTERS SPECIFIED IN THIS SECTION 9, AND IS EACH PARTY’S SOLE REMEDY, WITH RESPECT TO SUCH MATTERS.
10. LIMITATION ON LIABILITY. EXCEPT FOR DAMAGES RESULTING FROM UNAUTHORIZED USE OR DISCLOSURE OF CONFIDENTIAL INFORMATION OR DEATH OR PERSONAL INJURY ARISING FROM EITHER PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY FOR AN AMOUNT OF DAMAGES IN EXCESS OF THE PAID LICENSE FEES FOR THE DATA SERVICE DIRECTLY CAUSING THE DAMAGES, OR BE LIABLE IN ANY AMOUNT FOR SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, ANY AND ALL DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS, BUSINESS INTERRUPTION, OR LOSS OF BUSINESS INFORMATION OR DATA, EVEN IF THE DISCLAIMING PARTY IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
11. Force Majeure. Except for payment obligations, neither party shall be liable for any loss, injury, delay, damages or casualty suffered by the other party for failure to perform when prevented from doing so by causes beyond the control of the party seeking excuse hereunder, including but not limited to strikes, war or similar conflicts and unrest, governmental action including without limitation sanctions imposed by the applicable governmental authority, acts of God or public enemy, pandemics or other health crisis, including without limitation the COVID-19 crisis or similar outbreaks, or any other cause which is beyond the reasonable control of either party (“Force Majeure Event”). A party seeking excuse hereunder shall promptly notify the other party in writing of the Force Majeure Event and take commercially reasonable steps to mitigate the effect of such delay on the other party. In the event of a Force Majeure Event, the date of delivery or time for completion shall be extended by a period of time reasonably necessary to overcome the effect of such Force Majeure Event.
12. Codes of Conduct. Service Provider agrees to perform its obligations hereunder and perform its services in accordance with all legal compliance and with the highest ethical standards. Specifically, Service Provider agrees: (a) not to seek or accept any compensation in connection with providing the Data Services or maintenance of its Analytical Platform(s) which may violate any applicable laws, regulations, contracts, or conflict of interest policies; (b) not to use bribes, kickbacks, illegal gratuities, or other corrupt practices in connection with its business; and (c) not to provide User with any proprietary, source selection sensitive, or other information that is restricted from disclosure by a third party.
(a) Governing Law. These Terms and the ancillary documents hereto shall be governed and construed in accordance with the laws of the State of North Carolina (United States of America). Either party bringing a legal action or proceeding against the other party arising out of or relating to these Terms shall bring such legal action or proceeding in the state or federal courts located in Mecklenburg County, North Carolina. Each party consents to the sole and exclusive personal jurisdiction of such courts for the purpose of all legal actions and proceedings arising out of or relating to these Terms.
(b) Entire Agreement; Severability. These Terms, along with any applicable invoice, data service schedule, and/or similar documents mutually executed between the Service Provider and the User, including any attachments thereto, constitutes the entire understanding between the parties, and as it specifically relates to the matters covered in these Terms supersedes any contracts, purchase orders, agreements or understandings (oral or written) of the parties, with respect to the subject matter hereof. Any provisions found to be unenforceable in these Terms will not preclude the rest of the provisions being held valid in these Terms.
(c) Successors and Assigns; Assignment. These Terms will be binding upon and inure to the benefit of the parties, their successors and permitted assigns. Without the prior written consent of Service Provider, User shall not have the right to assign or otherwise transfer its rights or obligations under these Terms including, without limitation, by operation of law, merger, acquisition or otherwise.
(d) No Waiver. Failure by either party to insist upon strict compliance with these Terms in any one or more instances will not be deemed to be a waiver of its rights to insist upon such strict compliance with respect to any subsequent failure.
(e) Independent Contractors. The relationship between the User and Service Provider by virtue of use of the Data Services and the applicable Analytical Platform is that of independent contractors, and neither party will incur any debts or make any commitments, or be deemed to have implicit or explicit authority to act on behalf of the other party.
(f) No Third Party Beneficiaries. These Terms shall not confer any rights or remedies upon any person or entity other than the parties named herein and their respective successors and permitted assigns.