This Master License and Services Agreement, together with any Statement of Work (“SOW”) or order form (“Order Form”) executed by the parties (collectively, the “Agreement”), is entered into by and between Copyright Clearance Center, Limited, and its subsidiaries and affiliates (“CCC”), as identified on such SOW or Order Form and the other party thereto (“Customer”), effective as of the date of signature of the first such SOW or Order Form (or, if different, the effective date designated thereon (the “Effective Date”).
1.1. “Acceptance” means Customer’s acceptance of Deliverables in accordance with the user acceptance criteria (“UAC”) set forth in the applicable SOW for such Deliverables, or as set forth 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 Software, subject to any restrictions set forth on the applicable Order Form.
1.4. “Confidential Information” means (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 Order Form or 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 Support Agreement” or “CSA” means a mutually executed written description, of the Support Services, if any, to be provided by CCC.
1.6. “Deliverables” means all items to be delivered by CCC to the Customer as a result of the performance of Professional Services hereunder, as further described in the applicable SOW.
1.7. “Documentation” means the electronic documentation applicable to the CCC Software which is made available by CCC to customers from time to time.
1.8. “CCC Background Technology” means any: software (excluding CCC Product Software), object code, source code, technical information, designs, and/or any other item generally recognized as technology, which CCC owns or controls but is outside the scope of CCC’s services under this Agreement, including any modifications, enhancements, and derivatives thereof, and which is embedded in or provided in connection with a Deliverable.
1.9. “CCC Product Software” means, as applicable, the CCC Publishing Platform, and/or any modules created to function with the CCC Publishing Platform which may be licensed hereunder, as identified on the relevant Order Form, including any modifications, and enhancements thereto, and derivatives thereof, as identified on the relevant Order Form.
1.10. “CCC Technology” means, as applicable, the CCC Background Technology and the CCC Product Software.
1.12. “Personal Data” has the meaning given to such term under applicable data protection law.
1.13. “Professional Services” means the professional services provided by CCC to Customer as further described in each SOW.
1.14. “Software” means the software described in an Order Form or SOW and, as applicable, minor updates to the software (for example, v1.1 – v1.2), patches, and other releases that are generally provided by CCC to CCC’s broader customer base free of charge.
1.15. “Support Services” means the support and maintenance services, if any, to be provided by CCC in relation to the CCC Technology and Deliverables pursuant to Section 4 of this Agreement and the CSA.
1.16. “Third Party License Agreement” or “TPLA” means a written license agreement mutually agreed to by Customer and CCC and/or the relevant Third Party Licensor, (whether directly or through CCC as sales agent), 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 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.
1.18. “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 a TPLA, as identified in the relevant SOW.
2. Professional Services:
2.1. Provision of Services. CCC shall provide Professional Services and Deliverables as described in one or more SOWs. Customer shall provide CCC, in a timely manner and at no cost to CCC, with reasonable assistance and all applicable software, equipment, documentation, content and other materials as reasonably necessary for the purpose of enabling CCC to perform such Professional 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. Unless otherwise stated in the relevant SOW, Deliverables shall be deemed complete upon CCC notifying Customer as such and Customer shall be deemed to have Accepted a Deliverable if it has not notified CCC of any material defect or fault in the Deliverable within seven (7) days following completion, or (if earlier) Customer puts the Deliverable into operational use.
3. License Grants and Restrictions:
3.1. Deliverables. CCC (or its licensors) shall retain all right, title and interest in and to the Deliverables and all developments, enhancements, and improvements thereto, and derivative works thereof. Subject to Sections 3.2 through 3.5 below, CCC grants Customer a limited, personal, non-exclusive, non-transferable, non-assignable, royalty free, perpetual (subject to termination as set forth herein) license throughout the world (unless a different territory is specified on the relevant Order Form) to install and use and allow Authorized Users to use such Deliverables, together with any CCC Background Technology that is embedded or provided as a part of the Deliverables, for Customer’s own internal business purposes as authorized pursuant to this Agreement, the relevant Order Form and SOW.
3.2. CCC Product Software.
3.2.1. License. If Customer has purchased CCC Product Software hereunder, then CCC 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 CCC Product Software as well as the associated Documentation during the Term (or, if different, the license term set forth in the relevant Order Form) in accordance with the terms of this Agreement, including, without limitation, the terms and limitations set forth in this Section 3.
3.2.2. Scope of Use. Subject to any limitations on the applicable Order Form, Customer may: (a) install the CCC Product Software; (b) permit Authorized Users to access and use the CCC Product Software for Customer’s own internal business purposes as authorized under this Agreement; (c) where the CCC Product Software is installed in an environment at the Customer’s premises or under its control (and provided the Customer complies with the provisions in this Section 3), make a copy of the CCC Product Software for back-up or operational security purposes which is necessary for its lawful use; and (d) use and make a reasonable number of copies of relevant Documentation in support of the use of the CCC Product Software as authorized under this Agreement.
3.2.3. Obligations. Customer shall: (a) implement and maintain reasonable and appropriate controls to keep any and all copies of the CCC Product Software secure; (b) maintain accurate and up-to-date records of the number and locations of all copies of the CCC Product Software; (c) ensure that all Authorized Users (including any third parties, as applicable) are using the CCC Product Software only for the Customer’s internal business purposes; (d) supervise and control all use of the CCC Product Software and Deliverables; (e) as applicable, include CCC’s and its licensors’ copyright notices on all entire and partial copies of the CCC Product Software in any form, and (f) promptly notify CCC in writing of any breach of any of the foregoing.
3.3. Restrictions on Use of CCC Technology. Customer shall not: (a) cause or permit any reverse engineering, decompilation, modification, translation or disassembly of the CCC Technology; (b) sell, rent, sublicense, distribute, assign or otherwise transfer any rights in the CCC Technology to any third party; (c) use the CCC Technology 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 CCC to perform its obligations hereunder); (d) provide, or otherwise make available, the CCC Technology in any form, in whole or in part, to any person other than the Authorized Users; (e) use the CCC Technology 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 CCC Technology which is not made directly accessible by CCC; or (g) violate any specific restrictions or usage requirements which are detailed in an Order Form (“Specific Restrictions”). CCC reserves all rights to the CCC Technology not expressly granted herein to Customer. In all circumstances, all CCC Technology shall remain the sole property of CCC or its licensors.
3.4. OSS. Notwithstanding anything to the contrary, any OSS provided by CCC is licensed by CCC to Customer in accordance with the applicable OSS license terms. Any restrictions on use of the 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.
3.5. Third Party Licensor Software. If any Third Party Licensor Software is purchased or licensed in connection with this Agreement, then, notwithstanding anything to the contrary, Customer acknowledges that (a) the Professional Services may involve the delivery, installation and integration of Third Party Licensor Software 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; and (c) Customer’s use of any such Third Party Licensor Software shall be subject to a separate TPLA (and is not subject to this Agreement). Accordingly, Customer shall be solely responsible to obtain (whether through CCC or the relevant Third Party Licensor, as applicable), maintain and comply with the necessary TPLA(s), as referred to in the applicable Order Form or SOW, including without limitation in respect of Customer’s use of Third Party Licensor Software.
4. Support Services:
4.1. Provided that Customer has paid all applicable Fees due under the relevant Order Form by the due date for payment and has complied with the terms and conditions of this Agreement and, where applicable the CSA, CCC agrees to provide Customer with Support Services. Such Support Services shall be in accordance with, and during the support term set forth in, the relevant Order Form and/or CSA.
4.2. As further described in the CSA, 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 CCC Product Software which CCC makes generally available to its customers from time to time. As part of such support, CCC may, in its sole discretion, release patches to update the CCC Product Software, or suggest remedial action for the Customer to improve usability and/or performance. In the event CCC releases patches, it will provide release notes which describe the reason(s) for the required update(s), steps completed to implement the update(s), and instructions for the Customer to install the patch(es). CCC may also, in its sole discretion, provide functional software updates to incorporate available patches, minor version updates, and/or provide improvements to existing functionality. Such functional software updates will also include release notes describing the update. For clarity, updates described in this Section 4.2 shall exclude new products and/or new functionality for which CCC 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 Order Form and/or CSA.
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. Exceptions. 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. 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, 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.
5.3. Data Privacy and Security.
5.3.1. CCC and its Affiliates will maintain appropriate administrative, technical and physical security measures designed to protect Customer’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 CCC or require CCC to process any Personal Data without first informing CCC and giving CCC 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 CCC 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 CCC on the terms of this Agreement and Customer shall notify CCC in writing if there are any material changes to these consents or to the Personal Data that CCCprocesses under this Agreement.
5.3.4. Where under applicable data protection or privacy laws CCC, 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 CCC has not complied with applicable laws specifically directed to data processors or to the extent it has acted contrary to lawful instructions of the Customer under any relevant Order Form, SOW or CSA), Customer shall indemnify CCC against all such costs liability, damages, claims or expenses.
5.3.5. Customer acknowledges and agrees to provide only test data for the development and testing phases of any services, and that such test data shall not contain any personally identifying information. Subject to the confidentiality obligations set forth in Sections 5.1 and 5.2 above, CCC 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 CCC the fees specified in, and in accordance with, the applicable Order Form, SOW and/or CSA (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 CCC any sales, value-added or similar taxes in connection with any licenses or purchases if and as reflected in CCC’s invoices for the same. For clarity, the fees and payment terms for any Third Party Licensor Software shall be as set forth in the relevant TPLA or Order Form.
6.2. Late Payment. If any undisputed amount is overdue, CCC 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 Software, Deliverables, Support Services, and/or Professional Services, as applicable, until such payment is made in full; (b) terminate this Agreement or the applicable SOW (in CCC’s sole discretion) upon Customer’s failure to remedy non-payment within thirty (30) business days of the payment due date, and request the return of all Software and other Deliverables; or (c) charge Customer interest on the overdue amount at the rate of 12% annually. If Customer is requested to return any Software or other Deliverables under Section 6.2(b) above, Customer will promptly cease use of the relevant Software and Deliverables and comply with such request.
6.3. Payment Disputes. If Customer disputes any amount or portion of amount due, then Customer will notify CCC 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. Support Reinstatement. If Customer elects to renew Support Services under the CSA after having previously discontinued Support Services for any reason, Customer will be charged a reinstatement fee equal to 125% of the last annual support fees paid by Customer to CCC prorated from the date of reinstatement back to the date such Support Services lapsed.
6.5. Fee Change.
6.5.1. Professional Services Fees. CCC may increase the Fees for Professional Services if (a) the parties mutually agree to any change to the nature or scope of the Professional Services under an SOW or any additional work not referred to in the SOW; or (b) any agreed time-table in which the Professional 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 CCC’s then-standard time and materials rate (which shall be increased on an annual basis by the basic average salary of IT Staff percentage increase, as stated in the XpertHR Salary Survey for Computer Staff or such other index which the parties may agree in writing). In the event CCC is requested to perform Professional Services outside of the scope of the applicable SOW, such Professional Services will be subject to a mutually agreed upon change order.
6.5.2. Software and Support Fees. Except as otherwise expressly set forth in the relevant Order Form, SOW or CSA, CCC 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 Order Form, SOW or CSA), provided that it gives the Customer at least thirty (30) days prior written notice.
6.6. Under Licensing.
6.6.1. If the Customer uses any Software in any way which exceeds the scope of the permissions granted under this Agreement, including (without limitation) by exceeding any specific restrictions detailed in the Order Form, Customer shall promptly notify CCC in writing and CCC may (in its sole discretion and without prejudice to any other rights or remedies which may be available to CCC) notify the Customer to allow the Customer to purchase additional licenses to support Customer’s use of the Software. Notwithstanding the foregoing, CCC reserves the right to charge the Customer for such additional licenses in the event that Customer fails or declines to purchase such licenses within 30 days of CCC’s notice hereunder.
6.6.2. 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 (whether through CCC, where applicable, or the relevant Third Party Licensor), 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 on the relevant Order Form 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 Support Period thereof as set forth in the relevant CSA or Order Form 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 Order Form, SOW or CSA, if the other party commits a material breach of this Agreement, the relevant Order Form, SOW or CSA 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 Order Form, SOW or the CSA for a continuous period of more than one (1) year. For clarity, neither party shall have the right to terminate this Agreement, an Order Form, SOW or CSA except as set forth in this Section 7. In the event Customer wishes to cancel work under a signed Order Form, SOW or CSA on which work has not yet commenced and Customer has not yet paid, and CCC agrees in its own discretion in writing to such cancellation, Customer shall pay CCC an amount equal to 25% of the first year fees and other amounts due thereunder.
7.3. Effect of Termination. Upon termination of an Order Form, SOW or the CSA, all services provided by CCC thereunder shall cease. Upon a termination by CCC pursuant to Section 7.2 above of this Agreement in its entirety, or of an Order Form, SOW or CSA, all rights granted to Customer by CCC hereunder or thereunder, as applicable, shall terminate and, to the extent applicable, Customer shall immediately remove from its systems and return or destroy all copies of the CCC Technology and Deliverables (or any part thereof) in its possession, power, or control which were provided by CCC hereunder or thereunder. 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. CCC Warranties.
8.1.1. General. CCC warrants that (a) it will perform the Professional Services using reasonable skill and care and in a professional, workmanlike manner; (b) it has all necessary rights to grant the licenses to the CCC Technology issued hereunder; and (c) it will test the Deliverables (with the exception of any Third Party Licensor Software or OSS included therein) using commercially reasonable methods designed to ensure that upon delivery to the Customer they will not contain any worms, Trojan horse instructions, viruses, software routines, malicious code, time bombs, or the like that will disrupt Customer’s use of the Deliverables or Customer’s systems and networks.
8.1.2. CCC Product Software. The CCC Product Software will, when properly used in accordance with the system requirements provided by CCC, perform substantially in accordance with the functions described in the relevant product specifications for a period of thirty (30) days from the date of installation of (or, as applicable, provision to Customer of access to) such CCC Product Software (the “Warranty Period”). If, within the Warranty Period, the Customer notifies CCC in writing of any defect or fault in the CCC Product Software as a result of which it fails to perform substantially in accordance with the specifications, CCC will, at its sole option, either (a) repair or replace the CCC Product Software, provided that the Customer makes available all the information necessary to help CCC to remedy the defect or fault; or (b) refund any Fees paid for the CCC 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: (x) if the defect or error results from the Customer or any third party having modified the CCC Product Software; (y) to defects or errors which result from any use of the CCC Product Software in violation of this Agreement or other than in accordance with the relevant Documentation; or (z) to defects or errors which are caused by any Customer or third party software or hardware product.
8.1.3. Disclaimer. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THIS SECTION 8.1, CCC MAKES NO OTHER WARRANTIES UNDER THIS AGREEMENT (INCLUDING, WITHOUT LIMITATION, ANY SOW OR ORDER FORM), 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. CCC DOES NOT REPRESENT THAT THE SOFTWARE WILL BE ERROR FREE OR MEET CUSTOMER’S REQUIREMENTS.
8.2. Customer Warranty. Customer is solely responsible for (a) all software, data, technology, content and other materials used or provided by or on behalf of Customer in connection with the Software, Deliverables or CCC’s services provided hereunder; and (b) any third party hardware, software or services provided by or on behalf of Customer which are integrated or otherwise used with the Software, Deliverables or CCC’s services 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, titles, and permissions to make such use of the materials described in subsections (a) and (b) above and to authorize CCC to perform its obligations under this Agreement (including the use, storage, handling, and integration thereof).
9.1. CCC Indemnity. CCC 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 CCC, CCC’s Affiliates, or their respective officers, directors, agents and employees; or (b) alleging that the CCC Technology infringes any third party registered copyright, trade secret, trade or service mark, or issued patent. CCC may, in its sole discretion and at its expense, attempt to resolve any indemnified claim under this subsection 9.1(b) by: (i) modifying the relevant CCC Technology to avoid the alleged infringement; (ii) obtaining a license to permit Customer’s use of the relevant CCC Technology 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 CCC in the implementation of any above-described resolution.
9.2. Customer Indemnity. Customer hereby indemnifies and agrees to defend and hold harmless CCC, 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 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, CCC 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 CCC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES ARISING. THE PARTIES ACKNOWLEDGE AND AGREE THAT STATUTORY DAMAGES FOR INFRINGEMENT OF CCC’s 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 CCC’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 CCC for the applicable services, Software and/or Deliverables during the twelve (12) months preceding the event giving rise to the claim.
10.2.2. Notwithstanding anything to the contrary herein, CCC 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 CCC; (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 Software or Deliverables by Customer other than as authorized herein; (d) the combination of any Software or Deliverables with other software, equipment, products, data or business processes not supplied or approved by CCC; (e) Customer’s use of a non-current release of any Software where CCC 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 CCC, including without limitation any 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 CCC utilizes any subcontractors for the provision of Professional Services hereunder, (a) CCC shall be liable for the acts or omissions of such subcontractor(s) to the same extent CCC 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 CCC under this Agreement. For clarity, in the event that the services include CCC’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. CCC may provide Customer with the option for CCC 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 CCC hereunder. In such case, the relevant Third Party Services will be identified in the relevant Order Form, SOW or CSA. 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). CCC makes no representations or warranties and accepts no liability with regard to any Third Party Service even if CCC has identified potential benefits of using such Third Party Service. Third Party Services are not Professional and/or Support Services for the purposes of this Agreement, and CCC’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 or CSA. If Customer elects to provide or procure its own hosting environment, or terminates its use of any hosting environment provided by CCC, then Customer is solely responsible for the management and maintenance of its own hosting environment, and will provide CCC with such access and usage privileges to such hosting environment as are reasonably necessary to enable CCC to perform its obligations under this Agreement.
12.1. CCC’s Right to Audit. Not more than once annually and with reasonable prior written notice, CCC may audit Customer’s use of the Software 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, CCC shall maintain insurance coverage in commercially reasonable amounts for CCC’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 Professional 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, CCC 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 Order Form, SOW or the CSA, 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 Order Form(s), SOW(s) and CSA(s), and that this Agreement and the applicable Order Form(s), SOW(s) and CSA(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 Professional Services in an SOW or the Software in an Order Form 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 Order Form, SOW or CSA, the express terms of the applicable Order Form, SOW or CSA will control. Notwithstanding anything to the contrary, Customer’s and Authorized Users’ use of any Third Party Licensor Software 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 CCC may assign this Agreement upon written notice to, but without the consent of, Customer to a CCC subsidiary or 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 Order Form, 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 or Order Form.
12.13. Equitable Relief. The parties agree that a material breach of the Agreement adversely affecting CCC’s or its licensors’ proprietary rights in the Software or other Deliverables, 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, CCC shall be entitled to equitable relief in addition to any remedies it may have hereunder or at law.
12.14. Promotion. CCC, or any of its subsidiaries or Affiliates, may use Customer’s name and logo on its website and in marketing materials to identify Customer as a customer of CCC, its subsidiaries or Affiliates, and/or of the relevant products and services provided hereunder. CCC may prepare a press release related to this Agreement which, subject to Customer approval not to be unreasonably withheld or delayed, may include an appropriate quote from Customer designated senior executive.
12.15. Governing Law.
12.15.1. If the party contracting for CCC (as set forth in the applicable Order Form) is located in the United States of America, then (a) this Agreement, its subject matter and its formation (and any disputes or claims) are governed by the laws of the Commonwealth of Massachusetts, without giving effect to its conflict of law provisions; and (b) the parties both agree to the exclusive jurisdiction of the courts of Boston, Massachusetts.
12.15.2. If the party contracting for CCC (as set forth in the applicable Order Form) is located in the United Kingdom, then (a) this Licence, its subject matter and its formation (and any disputes or claims) are governed by English law principles, and the parties both agree to the exclusive jurisdiction of the courts of England and Wales.
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.