This Master License and Services Agreement, together with any Statement of Work (“SOW”) executed by the parties hereunder (collectively, the “Agreement”), is entered into by and between Copyright Clearance Center, Inc., and/or its relevant Affiliates identified on such SOW (“Provider”), and the other party thereto (“Customer”), effective as of the date of signature of the first such SOW or, if different, the effective date designated on such SOW (the “Effective Date”).
1.1. “Acceptance” means Customer’s acceptance of Deliverables in accordance with the user acceptance criteria (“UAC”) for such Deliverables as set forth in the applicable SOW, or in Section 2.2 below.
1.2. “Affiliates” means, with respect to a party, any entity which, directly, or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with such party.
1.3. “Authorized Users” means individuals employed or contracted by Customer or otherwise under Customer’s control who are authorized to access and use the Services, the Software and other Deliverables licensed to Customer hereunder, subject to any restrictions set forth on the applicable SOW.
1.4. “Confidential Information” means, subject to Section 5.2.1, (a) any technical, business, financial or marketing information of either party which is made accessible to the other party hereunder; (b) any software code and its technical documentation made accessible to Customer hereunder; (c) the terms (including without limitation the pricing and payment terms) set forth in this Agreement or applicable SOW; and (d) any other material or information received by a party from the other party and which is designated as “Confidential” or “Proprietary”, or which, under the circumstances surrounding its disclosure, should reasonably be understood to be confidential.
1.5. “Customer-Owned Deliverables” means Deliverables as to which, as between the parties, Customer retains control or ownership, as identified in the relevant SOW.
1.6. “Deliverables” means all items to be delivered by Provider to the Customer as a result of the performance of Services hereunder, as further described in the applicable SOW.
1.7. “OSS” means open source software as defined by the Open Source Initiative (http://opensource.org) or the Free Software Foundation (http://www.fsf.org).
1.8. “Personal Data” has the meaning given to such term under applicable data protection law.
1.9. “Product Software” means deep search solutions software owned or controlled by Provider as described in the applicable SOW, together with any modules created to function with such Software which may be developed and/or licensed hereunder, as identified on the relevant SOW, including any modifications and enhancements thereto, and derivatives thereof.
1.10. “Provider Background Technology” means any: software (other than Product Software), object code, source code, technical information, designs, and/or any other item generally recognized as technology, which Provider owns or controls but is outside the scope of Provider’s services under this Agreement, including any modifications, enhancements, and derivatives thereof, and which is embedded in or provided or made available to Customer in connection with a Deliverable.
1.11. “Provider Materials” means any Provider Technology and all other materials owned or controlled and provided or made accessible by Provider under this Agreement, including all developments, enhancements, and improvements thereto, and derivative works thereof, other than Customer-Owned Deliverables.
1.12. “Provider Technology” means, as applicable, the Provider Background Technology and the Product Software.
1.13. “Services” means the professional services provided by Provider to Customer as described in each SOW.
1.14. “Software” means the software provided by Provider as described in an SOW and, as applicable, minor updates to the software (for example, v1.1 – v1.2), patches, and other releases that are generally provided by Provider to Provider’s broader customer base free of charge.
1.15. “Support Services” means the support services, if any, to be provided by Provider in relation to the Provider Technology and Deliverables pursuant to Section 4 of this Agreement and any SOW.
1.16. “Third Party License Agreement” or “TPLA” means a written license agreement mutually agreed to by Customer and Provider and/or the relevant Third Party Licensor, (whether directly or through Provider as sales representative on behalf of Third Party Licensor), including any order form, statement of work, or similar document issued thereunder, which sets forth the terms and conditions for the use of the Third Party Licensor Software and/or Third Party Licensor Materials, and describes the support services, if any, to be provided thereunder.
1.17. “Third Party Licensor” means the owner or controller of rights in the Third Party Licensor Software or Third Party Licensor Materials.
1.18. “Third Party Licensor Materials” means data, content or other materials (other than Software), the rights to which are owned or controlled by a Third Party Licensor and the use of which is subject to separate license fees and/or a TPLA, as identified in the relevant SOW.
1.19. “Third Party Licensor Software” means software, the rights to which are owned or controlled by a Third Party Licensor and the use of which is subject to separate license fees and/or a TPLA, as identified in the relevant SOW.
2. Services and Deliverables:
2.1. Provision of Services. Provider shall provide Services and Deliverables as described in one or more SOWs. Customer shall provide Provider, in a timely manner and at no cost to Provider, with reasonable assistance and all applicable software, equipment, documentation, content and other materials as reasonably necessary for the purpose of enabling Provider to perform such Services.
2.2. Acceptance of Deliverables. Acceptance of each Deliverable shall be in accordance with the relevant UAC and/or product specification set forth in the relevant SOW, if any. Unless otherwise stated in the relevant SOW, Deliverables shall be deemed complete upon Provider notifying Customer as such and Customer shall be deemed to have Accepted a Deliverable if it has not notified Provider of any material defect or fault in the Deliverable within seven (7) days following completion, or (if earlier) when Customer puts the Deliverable into operational use.
2.3.1. If and to the extent that the Services to be provided under this Agreement entail Provider or its affiliates undertaking certain activities on Customer’s behalf, as provided in the relevant SOW, including without limitation the searching, accessing, crawling, copying, downloading, hosting, indexing, provision of access to and/or delivery of documents, data or other materials, or the access to and use of Customer’s accounts and account information for websites, subscription platforms and other content and/or data sources, for purposes of providing the Services or Deliverables, then Customer hereby authorizes Provider to perform such activities under this Agreement, shall be responsible to obtain and maintain at all times during this Agreement all necessary consents, agreements, licenses and other authorizations to allow the performance of such activities, and shall ensure that Customer’s and its Authorized Users’ use of any third party data, content, information or other materials accessed through the Services does not violate any third party rights.
2.3.2. Customer shall cooperate with Provider and provide Provider with such information and access to Customer’s personnel and systems as may be reasonably necessary to the performance of the Services hereunder. In addition, to the extent the Services necessitate Provider having access to third party content, data, systems or technology on Customer’s behalf, Customer shall be responsible for obtaining the cooperation of the relevant third party provider(s), without the requirement for Provider or its affiliates to enter into any direct agreement with such provider(s).
2.3.3. Customer acknowledges and agrees that the Services are not intended to be and do not constitute legal or professional advice. Accordingly:
i) If and to the extent that the Services entail the review by Provider or its affiliates on Customer’s behalf of any agreements between Customer and a third party, Customer acknowledges that no such review, nor any analysis prepared based on such review, will involve anyone acting in any legal-advisory capacity. Customer will be responsible to review and approve, in accordance with the processes set out in the relevant SOW, any such review and the subsequent integration or configuration by Provider of the information contained therein.
ii) If and to the extent that the Services entail the generation of reports, analytics, recommendations or other results or outputs based on data or other information obtained through the Services or otherwise by Provider on Customer’s behalf, Customer acknowledges that Customer is solely responsible for assessing the accuracy, quality and usefulness of any such data or information and the outputs thereof, and for making any and all decisions based thereon (and Provider shall have no responsibility for the foregoing).
2.3.4. Customer acknowledges and agrees that third party website providers and other third party sources may, from time to time, apply terms and conditions and/or technical limiters which apply to their data, content or other materials, and such alterations may impact the access to, provision or use of such data, content or materials in connection with the Services, including without limitation restricting or blocking future access, use, retrieval and/or extraction of such data, content or materials. Provider’s compliance with such terms and conditions shall not constitute a breach of Provider’s obligations under this Agreement. Provider is not responsible for any delayed access to data, content or materials, or other issues that arise in connection with any issue between Customer, a data provider and/or any other third party, including without limitation any issue regarding the terms and conditions of access to or use of the relevant materials.
3. License Grants and Restrictions:
3.1. Provider Materials. As between the parties, and subject only to the licenses granted by Provider to Customer under this Agreement, Provider (or its licensors) shall retain all right, title and interest in and to the Provider Materials. Subject to Sections 3.3 through 3.6 below, to the extent any Provider Materials are included in the Deliverables or otherwise made available by Provider for access and use by Authorized Users under this Agreement, Provider grants Customer a limited, personal, non-exclusive, non-transferable, non-assignable, royalty free license throughout the world (unless a different territory is specified on the relevant SOW) to allow Authorized Users to use such Provider Materials for Customer’s own internal business purposes solely to the extent necessary to the use of any Software, Services or Deliverables as authorized pursuant to this Agreement and the relevant SOW.
3.2. Customer-Owned Deliverables. As between the parties, Customer shall own all right, title and interest in and to any Customer-Owned Deliverables as identified in the relevant SOW; provided, for clarity, that nothing herein shall restrict or limit Provider from accessing, obtaining, providing, or otherwise using in any way any data, information, content or other materials comprising such Customer-Owned Deliverables, whether for the benefit of Provider or its Affiliates or for another customer or other third party, to the extent that such materials are accessible to Provider through a third party which is not under a confidentiality obligation to Customer with respect to such materials and that Provider accesses or obtains such materials outside its activities under this Agreement.
3.3. Product Software.
3.3.1. License. If Customer has licensed access to the Product Software under an SOW, then Provider hereby grants to Customer a non-exclusive, non-transferable, non-assignable license throughout the world (unless a different territory is specified on the relevant Order Form) to use the Product Software for Customer’s own internal business purposes during the Term (or, if different, the license term set forth in the relevant SOW) in accordance with the terms of this Agreement, including, without limitation, the terms and limitations set forth in this Section 3 and any additional terms and limitations set forth in the relevant SOW.
3.3.2. Obligations. Customer shall: (a) implement and maintain reasonable and appropriate controls to maintain the security of access to the Product Software; (b) ensure that all Authorized Users (including any third parties, as applicable) are using the Product Software only for the Customer’s internal business purposes as authorized under this Agreement and the applicable SOW; (c) supervise and control all use of the Provider Materials and Deliverables; and (d) promptly notify Provider in writing of any breach of any of the foregoing.
3.4. Restrictions on Use of Provider Materials. Customer shall not: (a) cause or permit any reverse engineering, decompilation, modification, translation or disassembly of the Provider Materials; (b) sell, rent, sublicense, distribute, assign or otherwise transfer any rights in the Provider Materials to any third party; (c) use the Provider Materials in any manner that violates any applicable law or regulation (including but not limited to where Customer is required to obtain permissions or authorizations to permit Provider to perform its obligations hereunder); (d) provide, or otherwise make available, the Provider Materials in any form, in whole or in part, to any person other than the Authorized Users; (e) use the Provider Materials for any website, internet or online service accessible by third parties, or as part of a service bureau or otherwise on behalf of a third party; (f) access or use any unexposed application programming interface or other development tool or capability of any Provider Materials which is not made directly accessible by Provider; or (g) violate any specific restrictions or usage requirements which are detailed in an SOW (“Specific Restrictions”). Provider reserves all rights to the Provider Materials not expressly granted herein to Customer. In all circumstances, all Provider Materials shall remain the sole property of Provider or its licensors.
3.5. OSS. Notwithstanding anything to the contrary, any OSS provided by Provider is licensed by Provider to Customer in accordance with the applicable OSS license terms. Any applicable restrictions on use of OSS will be set forth in the applicable OSS license terms, and Customer shall comply with such terms to the extent applicable to Customer’s use of such OSS.
3.6. Third Party Licensor Software and Third Party Licensor Materials. If any Third Party Licensor Software or Third Party Licensor Materials are licensed in connection with this Agreement, then, notwithstanding anything to the contrary, Customer acknowledges that (a) the Professional Services may involve the delivery, installation, integration and/or other use of Third Party Licensor Software or Third Party Licensor Materials as identified in the relevant SOW; (b) the relevant Third Party Licensor(s) shall continue to hold any and all intellectual property rights in and to such Third Party Licensor Software or Third Party Licensor Materials; and (c) Customer’s use of any such Third Party Licensor Software or Third Party Licensor Materials shall be subject to a separate TPLA (and is not subject to this Agreement). Accordingly, Customer shall be solely responsible to obtain (whether through Provider or the relevant Third Party Licensor, as applicable), maintain and comply with the necessary TPLA(s), as referred to in the applicable SOW, including without limitation in respect of Customer’s use of Third Party Licensor Software.
4. Support Services:
Support Services, if applicable, shall be provided in accordance with, and during the support term set forth in, the relevant SOW. Support Services shall include technical support in relation to the Software, as well as the provision of such maintenance releases, corrections, updates, modifications, or enhancements to the Product Software which Provider makes generally available to its customers from time to time. For clarity, updates described in this Section 4 shall exclude new products and/or new functionality for which Provider generally charges a separate or additional fee. Customer acknowledges and agrees that Support Services are subject to any limitations applicable to the level of Support Services that Customer has purchased. Details of such limitations will be set out in the SOW.
5. Confidentiality and Data Privacy:
5.1. Obligations. Each party agrees that it will use Confidential Information of the other party solely for the purposes of this Agreement, and that, as the receiving party, it shall hold such Confidential Information in confidence to at least the same extent it protects its own confidential or proprietary information, but in no event using less than a reasonable standard of care. Each party agrees not to disclose, publish, release, transfer or otherwise make available the Confidential Information of the other party, whether directly or indirectly, to any third party (other than to its Affiliates and subcontractors on a need-to-know basis, and to its professional advisors, in each case which are under an obligation substantially equivalent to this Section 5.1 to maintain the confidentiality thereof) without the disclosing party’s prior written consent.
5.2.1. Confidential Information shall not include information that: (a) is or becomes publicly known (other than through unauthorized disclosure); (b) is disclosed by a third party free of any obligation of confidentiality to a party; or (c) is already known by the receiving party (free of any obligations of confidentiality owed to the disclosing party) at the time of its disclosure by the disclosing party, as shown by the receiving party’s written records; or (d) is independently developed by the receiving party without reference to the disclosing party’s Confidential Information.
5.2.2. Notwithstanding any provision herein to the contrary, Confidential Information may be disclosed by either party as required to comply with applicable laws, regulations, subpoenas or court orders. Where not prohibited by law, the recipient will provide reasonable prior written notice to the discloser to permit the discloser to seek a protective order and will cooperate in discloser’s activities under this Section 5.2.2, at discloser’s expense. Recipient agrees that it will disclose only that information that is reasonably necessary to meet the applicable legal order or requirement.
5.2.3. Customer further agrees that Provider and its affiliates may use the information that they obtain from operation of the Services for Customer for business operation and service improvements in the Services provided to Customer and may aggregate such information with similar information that they obtain from operation of the Services for other customers. Such aggregated information may be used for reporting and for other general business purposes; provided that such information shall be anonymized, and that Provider shall not share any non-anonymized Customer data collected from the Services with third parties.
5.2.4. Customer hereby consents to the inclusion of its name and trademark(s) on Provider’s website, in promotional materials, and in lists of Provider’s customers, for purposes of identifying Customer as a customer of the Services. Upon request, Provider shall provide copies of all such materials to Customer. In addition, Customer hereby acknowledges that certain providers of data, content, or materials may require disclosure of the purchaser’s identity as a condition of authorizing access to technology, data, content, or other materials and Customer hereby consents to the disclosure of Customer’s identity to the relevant provider solely for purposes of enabling Provider to complete any such requests for Customer through the Services.
5.3. Data Privacy and Security.
5.3.1. Each party will maintain appropriate administrative, technical and physical security measures designed to protect the other party’s Confidential Information against unauthorized access, disclosure and loss.
5.3.2. Each party will comply with all applicable data protection and data privacy laws and regulations in respect of its activities under this Agreement and will not take any action in connection with this Agreement to cause the other to breach any of its applicable obligations under applicable data protection laws.
5.3.3. Customer will not directly or indirectly provide any Personal Data to Provider or require Provider to process any Personal Data without first informing Provider and giving Provider sufficient opportunity to assess the technical and organizational measures required to meet relevant data safeguards with respect to such Personal Data. Further, where Personal Data is processed by Provider or its Affiliates in connection with this Agreement, Customer shall have obtained all the necessary consents from data subjects to process such Personal Data to Provider on the terms of this Agreement and Customer shall notify Provider in writing if there are any material changes to these consents or to the Personal Data that Provider processes under this Agreement. To the extent Provider agrees to process Personal Data on behalf of Customer under this Agreement, the parties shall enter into an appropriate Data Protection Addendum hereunder or a separate Data Processing Agreement (“DPA”) and such DPA shall govern the processing of such Personal Data.
5.3.4. Where under applicable data protection or privacy laws Provider, as data processor, incurs any costs, liability (including joint or contributory liability), damages, claims or expenses (other than for damage caused by processing to the extent Provider has not complied with applicable laws specifically directed to data processors or has acted contrary to lawful instructions of the Customer under this Agreement or a DPA), Customer shall indemnify Provider against all such costs liability, damages, claims or expenses.
5.3.5. As applicable, Customer acknowledges and agrees to provide only test data for any development and testing phases of any Services, and that such test data shall not contain any Personal Data. Subject to the confidentiality obligations set forth in Sections 5.1 and 5.2 above, Provider shall have no responsibility or liability for the transfer, use, loss or destruction of any data provided by Customer for development or testing purposes.
6.1. Payment. Customer shall pay to Provider the fees specified in, and in accordance with, the applicable SOW (the “Fees”). Unless otherwise stated in such a document, payment shall be due thirty days from the date of the invoice. Customer shall pay to Provider any sales, value-added or similar taxes in connection with any licenses or purchases if and as reflected in Provider’s invoices for the same. For clarity, the fees and payment terms for any Third Party Licensor Software or Third Party Licensor Materials shall be as set forth in the relevant TPLA or SOW.
6.2. Late Payment. If any undisputed amount is overdue, Provider shall be entitled, in its sole discretion, without limiting its other remedies under this Agreement or otherwise, to (a) suspend access to or provision of the Services, Software, Deliverables, and/or Support Services, as applicable, until such payment is made in full; (b) terminate this Agreement or the applicable SOW (in Provider’s sole discretion) upon Customer’s failure to remedy non-payment within thirty (30) business days of the payment due date; or (c) charge Customer interest on the overdue amount at the rate of 12% annually. Upon a termination under Section 6.2(b) above, Customer shall promptly cease use of any Provider Materials.
6.3. Payment Disputes. If Customer disputes any amount or portion of amount due, then Customer will notify Provider in writing within ten (10) business days of receipt of the applicable invoice. Such notice will include a description of the basis for Customer’s dispute. If only part of an invoice is disputed, then Customer will pay the undisputed amount in accordance with this Agreement. Without limiting any remedies under this Agreement, the parties agree to work together in good faith to resolve any such dispute promptly.
6.4. Fee Change.
6.4.1. Professional Services Fees. Provider may increase the Fees for Services if (a) the parties mutually agree to any change to the nature or scope of the Services under an SOW or any additional work not referred to in the SOW; or (b) any agreed timetable in which the Services are to be performed is amended. Unless otherwise mutually agreed to in writing, the revised Fees will be calculated on a time and materials basis at Provider’s then-standard time and materials rate. In the event Provider is requested to perform Services outside of the scope of the applicable SOW, such Services will be subject to a mutually agreed upon change order.
6.4.2. Software and Support Fees. Except as otherwise expressly set forth in the relevant SOW, Provider shall be entitled to increase the Fees due under this Agreement on an annual basis (as measured by the start of the term for the relevant licenses or services as set forth in the relevant SOW), provided that it gives the Customer at least thirty (30) days prior written notice.
6.5. Expansion of Scope. In the event a mutually agreed change in the scope of Services hereunder requires a change in the scope of any existing license grant or the purchase of additional licenses to use any Software, then Customer shall be responsible to obtain and maintain such additional licenses, and to pay any additional Fees in connection with such expanded or additional licenses.
7. Term and Termination:
7.1. Term. This Agreement shall commence as of the Effective Date and continue thereafter unless and until terminated in accordance with this Section 7 (the “Term”). Any licenses granted hereunder shall continue for the license term set forth in the relevant SOW unless and until terminated in accordance with the provisions of this Section 7 or as provided in Section 9.1(b)(iii) below. Any Support Services shall continue for the relevant support period thereof as set forth in the relevant SOW unless and until terminated in accordance with the provisions of this Section 7.
7.2. Termination. Either party may terminate this Agreement in its entirety, or the relevant licenses or Services under an SOW, if the other party materially breaches this Agreement, the relevant SOW, and fails to remedy that breach within thirty (30) days of that party being notified in writing of the breach. Either party may terminate this Agreement in its entirety if the other party files for bankruptcy, or becomes or is declared insolvent, or if an order is made or a resolution is passed for the winding up of the other party (other than voluntarily for the purpose of solvent amalgamation or reconstruction), or if an administrator, administrative receiver or receiver is appointed in respect of the whole or any part of the other party’s assets or business, or if the other party makes any composition with its creditors or takes or suffers any similar or analogous action in consequence of debt. Unless otherwise agreed in writing by the parties, this Agreement shall terminate automatically if no services or licenses are in effect under any SOW for a continuous period of more than one (1) year. For clarity, neither party shall have the right to terminate this Agreement, an SOW except as set forth in this Section 7.
7.3. Effect of Termination. Upon termination of an SOW, all services provided by Provider thereunder shall cease. Upon a termination by Provider pursuant to Section 7.2 above of this Agreement in its entirety, or of an SOW, (i) all rights and licenses granted to Customer by Provider hereunder or thereunder, as applicable, shall terminate, (ii) Provider shall be relived of any further performance obligations thereunder, and, (iii) to the extent applicable, Customer shall immediately remove from its systems and destroy all copies of Provider Materials (or any part thereof) in its possession, power, or control which were provided by Provider thereunder, and shall promptly certify such destruction in writing upon Provider’s written request. Provider shall be entitled to receive any unpaid fees earned through the effective date of termination. Termination or expiry of this Agreement, however arising, shall not affect or prejudice the accrued rights of the parties as at termination or expiry, or the continuation of any provision expressly stated to survive, or implicitly surviving termination or expiry of this Agreement.
8.1. Provider Warranties.
8.1.1. General. Provider warrants that (a) it will perform the Services using reasonable skill and care and in a professional, workmanlike manner; and (b) it has all necessary rights to grant the licenses to the Provider Materials issued hereunder
8.1.2. Product Software. If the Customer notifies Provider in writing of any defect or fault in the Product Software as a result of which it fails to perform substantially in accordance with this Agreement and the relevant SOW, Provider will, at its sole option, either (a) repair or replace the Product Software, provided that the Customer makes available all the information necessary to help Provider to remedy the defect or fault; or (b) refund any Fees paid for the Product Software and/or relevant Support Services by the Customer, in which event the relevant license and Support Services will terminate. The warranty set forth in this Section 8.1.2 only applies to defects and errors which can be demonstrated and reproduced and does not apply to defects or errors which result from any use of the Product Software in violation of this Agreement or other than in accordance with the relevant SOW, or to defects or errors which are caused by any Customer or third-party software, hardware or materials.
8.1.3. Disclaimer. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THIS SECTION 8.1, Provider MAKES NO OTHER WARRANTIES UNDER THIS AGREEMENT, AND ALL WARRANTIES AND CONDITIONS AND OTHER TERMS WHICH MAY BE IMPLIED BY STATUTE OR COMMON LAW, INCLUDING WITHOUT LIMITATION ANY WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, AND SATISFACTORY QUALITY AND FITNESS FOR A PARTICULAR PURPOSE, ARE HEREBY EXPRESSLY EXCLUDED TO THE FULLEST EXTENT PERMITTED BY LAW. WITHOUT LIMITING THE FOREGOING, Provider MAKES NO REPRESENTATION, WARRANTY OR GUARANTEE (I) WITH RESPECT TO ANY THIRD PARTY SITES, SERVICE, TECHNOLOGY, DATA, CONTENT OR OTHER MATERIALS PROVIDED, ACCESSED, MADE ACCESSIBLE, OR USED BY OR ON BEHALF OF CUSTOMER OR ITS AUTHORIZED USERS THROUGH THE SERVICES OR THE SOFTWARE, ALL OF WHICH ARE PROVIDED OR MADE ACCESSIBLE “AS IS” AND WITH ALL DEFECTS, (II) THAT PROVISION OF THE SERVICES OR DELIVERABLES WILL BE TIMELY, UNINTERRUPTED OR ERROR-FREE, (III) THAT THE SERVICES OR ANY DELIVERABLES WILL MEET CUSTOMER’S OR ANY AUTHORIZED USER’S REQUIREMENTS OR EXPECTATIONS, OR (IV) THAT THE SERVICES OR DELIVERABLES WILL BE IMPERVIOUS TO ANY DELAYS OR OTHER PROBLEMS ARISING FROM USE OF THE INTERNET.
8.2. Customer Warranty. Customer is solely responsible for (a) all Customer and third party software, data, information, technology, content and other materials accessed, used or provided by or on behalf of Customer in connection with the Services or Deliverables provided hereunder; (b) any third party hardware, software, services provided by or on behalf of Customer which are integrated or otherwise used with the Software, Deliverables or Services provided hereunder; (c) all activities that occur in connection with the Services from any Customer-designated IP address, by means of Customer’s username and password information, or through any other agreed-upon access-control mechanism for Customer or its Authorized Users; (d) any decisions or reliance of Customer on any information, data, reports, analyses or other results of any Services or Deliverables provided hereunder. Customer warrants that it has (or at the appropriate time shall be solely responsible to obtain) and shall maintain, at its own cost, during the term hereof all necessary rights, licenses, consents, and permissions to make such use of the materials described in subsections (a) and (b) above and to authorize Provider to perform its obligations under this Agreement (including without limitation the access to, copying, use, storage, hosting, handling, processing, integration and delivery of such materials).
9.1. Provider Indemnity. Provider hereby indemnifies and agrees to defend and hold harmless Customer, its Affiliates and their respective officers, directors, agents and employees against any third party claim, suit, or proceeding (a) based on or arising from the gross negligence or willful misconduct of Provider, Provider’s Affiliates, or their respective officers, directors, agents and employees; or (b) alleging that the Provider Materials (excluding for clarity, any third party technology, data, content or materials which may be made accessible to Customer through the Services or Software) infringes any third party registered copyright, trade secret, trade or service mark, or issued patent. Provider may, in its sole discretion and at its expense, attempt to resolve any indemnified claim under this subsection 9.1 by: (i) modifying the relevant Provider Materials to avoid the alleged infringement; (ii) obtaining a license to permit Customer’s use of the relevant Provider Materials as contemplated by this Agreement; or (iii) if neither remedy under (i) or (ii) is commercially feasible, terminating the rights set forth in this Agreement and giving Customer a refund for any pre-paid, unused fees for the remainder of the then-effective Term. Customer will cooperate fully with Provider in the implementation of any above-described resolution.
9.2. Customer Indemnity. Customer hereby indemnifies and agrees to defend and hold harmless Provider, its Affiliates, and their respective officers, directors, agents and employees against any third party claim, suit, or proceeding based on or arising from (a) the gross negligence or willful misconduct of Customer, Customer’s Affiliates, or their respective officers, directors, agents and employees; (b) matters which are the responsibility of Customer under Section 8.2; or (c) the acts or omissions of any user who obtains access to the Services, Software or Deliverables through Customer or Customer’s systems.
9.3. Conditions. As a condition of the obligations set forth in this Section, a party entitled to indemnification under this Agreement (the “Indemnified Party”) will: (a) provide prompt written notice of the applicable claim to the other party (the “Indemnifying Party”); (b) provide the Indemnifying Party with sole control of the applicable defense and settlement; and (c) cooperate as requested by the Indemnifying Party, at the Indemnifying Party’s expense.
9.4. Entire Liability. This Section 9, together with Section 10 below, sets forth the Indemnifying Party’s entire liability to the Indemnified Parties, and the Indemnified Parties’ sole and exclusive remedy with respect to the suits and proceedings described in this Section. Each party agrees that any and all implied indemnification obligations that may apply to this Agreement are hereby excluded.
10. Limitation of Liability:
10.1. Exclusions. TO THE MAXIMUM EXTENT PERMITTED BY LAW, Provider SHALL NOT IN ANY CIRCUMSTANCES BE LIABLE WHETHER IN TORT (INCLUDING, WITHOUT LIMITATION, FOR NEGLIGENCE OR BREACH OF STATUTORY DUTY HOWESOEVER ARISING), CONTRACT, MISREPRESENTATION (WHETHER INNOCENT OR NEGLIGENT) OR OTHERWISE FOR (a) LOSS OF PROFITS, (b) LOSS OF BUSINESS, (c) DEPLETION OF GOODWILL OR SIMILAR LOSSES, (d) LOSS OF ANTICIPATED SAVINGS, (e) LOSS OF GOODS, (f) LOSS OF CONTRACT, (g) LOSS OF USE, (h) LOSS OR CORRUPTION OF DATA OR INFORMATION, OR (i) ANY SPECIAL, INDIRECT, CONSEQUENTIAL OR PURE ECONOMIC LOSS, COSTS, DAMAGES, CHARGES OR EXPENSES, (IN EACH CASE) EVEN IF IT IS REASONABLY FORESEEABLE THAT SUCH LOSSES OR DAMAGES MAY ARISE, OR IF Provider HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES ARISING. THE PARTIES ACKNOWLEDGE AND AGREE THAT STATUTORY DAMAGES FOR INFRINGEMENT OF Provider’s OR THIRD PARTY INTELLECTUAL PROPERTY RIGHTS SHALL CONSTITUTE DIRECT DAMAGES AND SHALL NOT CONSTITUTE SPECIAL OR CONSEQUENTIAL DAMAGES FOR PURPOSES OF THIS SECTION 10.1.
10.2. Limits on Liability.
10.2.1. Except as expressly set forth herein, in no event shall Provider’s aggregate liability under any and all claims arising out of this Agreement, whether in contract, tort (including without limitation negligence or breach of statutory duty howsoever arising), misrepresentation (whether innocent or negligent), restitution or any other theory, exceed the amount of the Fees paid by Customer to Provider for the applicable Services, Software and/or Deliverables during the twelve (12) months preceding the event giving rise to the claim. THE DISCLAIMERS AND LIMITATIONS OF LIABILITY SET FORTH IN THIS AGREEMENT FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES, AND ABSENT ANY OF SUCH DISCLAIMERS, EXCLUSIONS OR LIMITATIONS OF LIABILITY, THE PROVISIONS OF THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, THE ECONOMIC TERMS, WOULD BE SUBSTANTIALLY DIFFERENT.
10.2.2. Notwithstanding anything to the contrary herein, Provider shall not be liable to Customer under this Agreement to the extent any claim results from or is related to (a) a failure by Customer to comply with the minimum system requirements of any Software or Deliverables provided by Provider; (b) modifications or alterations to any Software or Deliverables or the supporting data or systems made by Customer or a third party; (c) use of any Services, Software or Deliverables by Customer other than as authorized herein; (d) the combination of any Software or Deliverables with other software, equipment, products, data, materials or business processes not supplied or approved by Provider; (e) Customer’s use of a non-current release of any Software where Provider has made a new (non-infringing) version of the Software available to Customer at no additional cost which Customer has not accepted; (f) any products or services not provided by Provider, including without limitation any data, content or materials supplied by Customer, content owners, end users or other third parties; or (g) the gross negligence or willful misconduct of Customer, Customer’s Affiliates, or their respective officers, directors, agents and employees.
10.3. Subcontractors. In the event Provider utilizes any subcontractors for the provision of Services hereunder, (a) Provider shall be liable for the acts or omissions of such subcontractor(s) to the same extent Provider may be held liable for its own acts or omissions hereunder, and (b) such subcontractors shall have agreed to comply with all data privacy and data protection laws as applicable to its services in connection with this Agreement, and to provisions on data security and confidentiality which are no less stringent than those applicable to Provider under this Agreement. For clarity, in the event that the services include Provider’s management of a hosting environment or other Third-Party Services on Customer’s behalf (as described in Section 11 below), the Third Party Service provider(s) shall not be considered subcontractors for purposes of this Agreement.
10.4. Exceptions. Notwithstanding any provision to the contrary herein, nothing in this Agreement shall exclude or limit the liability of either party for (a) death or personal injury caused by that party’s negligence; (b) fraud or fraudulent misrepresentation; or (c) any other liability which may not be lawfully limited or excluded hereunder. Further, except as set forth in Section 10.1 above, nothing in this Agreement shall exclude or limit the liability of either party for (x) a breach of Section 3 (license grants and restrictions); or (y) a breach of Section 5.1 (confidentiality).
11. Hosting Environment; Third Party Services. Provider may provide Customer with the option for Provider to procure, manage and/or maintain a hosting environment, such as Amazon Web Services (AWS), and/or certain other third party services (“Third Party Services”) for use on Customer’s behalf in connection with the services provided by Provider hereunder. In such case, the relevant Third Party Services will be identified in the relevant SOW. If Customer elects to use them, such use will be subject in all respects to the Third Party Service provider’s terms and conditions and any applicable fees. Provider makes no representations or warranties and disclaims all liability with regard to any Third Party Service even if Provider has identified potential benefits of using such Third Party Service. Third Party Services are not “Services” for the purposes of this Agreement, and Provider’s responsibility with respect thereto is limited solely to those administrative, management or maintenance responsibilities (and any limitations thereon) which are expressly set forth in the relevant SOW.
12.1. Provider’s Right to Audit. Not more than once annually and with reasonable prior written notice, Provider may audit Customer’s use of the Services, Software and other Deliverables for compliance with the terms of this Agreement.
12.2. Export. Each party agrees to comply with all applicable regulations with respect to import and export, including without limitation, UK strategic export controls list, the Export Control Act 2002 and the Export Control Order 2008, and applicable laws and regulations of the United States Department of Commerce and with the United States Export Administration Act, as amended from time to time, and with all applicable laws and regulations of other jurisdictions with respect to the export and import of the Deliverables and Software.
12.3. Insurance. During the term of this Agreement, Provider shall maintain insurance coverage in commercially reasonable amounts for Provider’s business and the licenses and services provided under this Agreement.
12.4. Personnel. Neither party shall, without the prior written consent of the other party, at any time during the continuance of this Agreement and for a period of one (1) year following termination or expiry of this Agreement, either directly or indirectly, solicit or entice away from the other party or its Affiliates, or employ or attempt to employ, or engage as a contractor or attempt to engage as a contractor, any person who is, or has been, engaged as an officer, employee or sub-contractor of such other party or its Affiliates and who has been involved in the Services provided under this Agreement or was otherwise introduced to the other party through activities associated with this Agreement.
12.5. Independent Contractor. Nothing contained in this Agreement shall be construed as creating any agency, partnership, or other form of joint enterprise between the parties. The relationship between the parties shall be that of independent contractors. Neither party has the right to assume or create any obligation or responsibility on behalf of the other.
12.6. No Third Party Beneficiaries. This Agreement is entered into solely between, and may be enforced only by, Provider and Customer. This Agreement will not be deemed to create any rights in favor of or obligations as to any third party unless and to the extent expressly provided herein.
12.7. Force Majeure. Neither party shall in any circumstances be in breach of this Agreement nor liable for delay in performing, or failure to perform, any of its obligations under this Agreement if such delay or failure results from events, circumstances or causes beyond its reasonable control, and in such circumstances the affected party shall be entitled to a reasonable extension of time for performing such obligations, provided that either party may terminate this Agreement in its entirety or the remaining services under an SOW, as applicable, in the event such force majeure event delays or prevents performance by the other party for a period of sixty (60) days or more.
12.8. Entire Agreement. The parties hereto agree and acknowledge that no reliance is placed on any promise, representation, or warranty not expressly provided for in this Agreement and the applicable SOW(s), and that this Agreement and the applicable SOW(s) are the complete and exclusive statement of the mutual understanding of the parties and, without limiting the foregoing, supersede any other agreement or terms and conditions that may appear on any purchase order relating to the terms hereof. No offer to supply the Services, Software or Deliverables in an SOW shall be deemed to have been made on terms other than as set out herein. In the event of any conflict between this Agreement and an SOW, the express terms of the applicable SOW will control. The parties recognize that, during the Term of this Agreement, purchase orders, other order acknowledgement forms or similar routine documents (collectively “Forms”) may be used to implement or administer certain provisions of this Agreement. Provider hereby objects to any terms or conditions contained in any writing prepared by Customer, its employees, agents or affiliates that purport to govern or otherwise relate to the services or licenses described herein, and the parties agree that any inconsistent, additional or different terms contained in any such Forms, whether prepared prior to, simultaneously with, or subsequent to this Agreement, shall not apply to this Agreement or the subject matter hereof. Notwithstanding anything to the contrary, Customer’s and Authorized Users’ use of any Third Party Licensor Software or Third Party Licensor Materials is subject to the terms of the relevant TPLA, and Customer’s and Authorized Users’ use of any OSS is subject to the terms of the relevant OSS license terms.
12.9. Severability and Amendment. Except as expressly provided for herein, this Agreement may only be modified by a mutually executed amendment signed by an authorized representative of each party. If any provision of the Agreement shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that the Agreement shall otherwise remain in full force and effect and be enforceable.
12.10. Assignment. Neither party shall have the right to assign or otherwise transfer any of its rights and obligations under this Agreement except with the prior written consent of the other party, which consent shall not be unreasonably delayed, conditioned or withheld, and any such attempted assignment or transfer without consent will be void; provided, however, that Provider may assign this Agreement upon written notice to, but without the consent of, Customer to a Provider Affiliate, or to a successor in connection with a merger, consolidation, or sale of all or substantially all of its assets or business to which this Agreement relates.
12.11. Waiver. The waiver by either party of a breach of the Agreement or any right hereunder shall not constitute a waiver of any subsequent breach of the Agreement; nor shall any delay by either party to exercise any right under this Agreement operate as a waiver of any such right.
12.12. Notice. Notices of termination, cancellation or breach and any other notices under this Agreement (other than routine, in-the-course-of-business communications, which may be conducted using any appropriate and reasonable means) will be effective immediately upon delivery by hand or confirmed fax or by electronic mail, or on the fifth business day after mailing, but only if addressed to the address and contact person set forth on the applicable SOW, or, in the case of a termination of this MSA in its entirety, addressed to the address and contact person set forth on the most recent SOW.
12.13. Equitable Relief. The parties agree that a material breach of the Agreement adversely affecting Provider’s or its licensors’ proprietary rights in the Provider Materials, or either Party’s Confidential Information, may cause irreparable injury for which monetary damages would not be an adequate remedy. In the event of such breach, the other party shall be entitled to seek equitable relief in addition to any remedies it may have hereunder or at law.
12.14. Non-Solicitation. During the Term and for a period of twelve (12) months thereafter, neither party shall directly, or indirectly through a third party, solicit or hire any employee or contractor of the other party who was directly involved in providing the Services, or was introduced to the other party through activities associated with this Agreement. The foregoing shall not apply to employees or contractors that respond to general solicitations placed by or on behalf of a party in media publications or on the Internet.
12.15. Governing Law.
12.15.1. If the party contracting for Provider (as set forth in the applicable Order Form) is located in the United States of America, then this Agreement, its subject matter and its formation (and any disputes or claims) are governed by the laws of the State of New York, USA, without giving effect to its conflict of law provisions; and the parties both agree to the exclusive jurisdiction of the courts of New York County, New York.
12.15.2. If the party contracting for Provider (as set forth in the applicable Order Form) is located outside the United States, then this Agreement, its subject matter and its formation (and any disputes or claims) are governed by the laws of the Netherlands, and the parties both agree to the exclusive jurisdiction of the courts of Amsterdam, the Netherlands.
12.15.3. Notwithstanding the foregoing, either party may seek equitable, injunctive or declaratory relief to enforce any of its intellectual property rights or rights in the Confidential Information in any court of appropriate jurisdiction.
Last updated 15 September 2022