TERMS OF SERVICE
MASTER SUBSCRIPTION AGREEMENT AND TERMS OF SERVICE
PLEASE CAREFULLY READ THESE TERMS AND CONDITIONS (“TERMS”) BEFORE ORDERING, ACCESSING, OR USING THE SERVICES AND THE LICENSED MATERIALS. IF YOU ARE ENTERING INTO AN AGREEMENT OR ANY ORDERING DOCUMENT ON BEHALF OF A COMPANY OR ANY OTHER LEGAL ENTITY, YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THESE TERMS, IN WHICH CASE THE PHRASES "YOU" OR "YOUR" SHALL REFER TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS, YOU MUST NOT ACCEPT THIS AGREEMENT OR THE APPLICABLE ORDERING DOCUMENT AND YOU MAY NOT USE THE SERVICES. YOU AGREE TO BE BOUND BY THESE TERMS BY EXECUTING THIS AGREEMENT AND/OR ANY RELEVANT ORDERING DOCUMENT OR, AS APPLICABLE, BY SUBMITTING PAYMENT IN RESPONSE TO AN ORDERING DOCUMENT THAT REFERENCES THESE TERMS. SPATE RESERVES THE RIGHT TO AMEND, REMOVE, OR ADD TO THESE TERMS AT ANY TIME WITH OUR WITHOUT NOTICE. SUCH MODIFICATIONS SHALL BE EFFECTIVE IMMEDIATELY. IF AT ANY TIME YOU NO LONGER AGREE TO BE BOUND BY THESE TERMS, YOU MUST IMMEDIATELY STOP ACCESSING THE SERVICES, YOU MAY NO LONGER USE LICENSED MATERIALS IN YOUR POSSESSION, AND YOU MUST DELETE ANY LICENSED MATERIALS THAT ARE STORED IN YOUR POSSESSION, IN ACCORDANCE WITH THIS AGREEMENT.
This master subscription agreement, which may include any relevant ordering documents (collectively, “Agreement”), is made by and between Spate, Inc., a corporation validly existing under the laws of Delaware (“Spate” or “Licensor”) and the specific person or entity identified as the licensee or customer or party thereto in the associated agreement, ordering document, or purchase order (“Licensee” or “You”). Licensee and Licensor may be collectively referred to as the “Parties” or individually as a “Party.” The Terms set forth in this Agreement governs Your purchase and use of the Services and Licensed Materials (as defined herein, respectively) and shall be effective at the time and in the manner as described herein (“Effective Date”).
Except with Spate’s prior written consent, You may not access the Services or Licensed Materials if You directly compete with Spate’s business in any material way. You may not access the Services or Licensed Materials for purposes of monitoring the availability, performance, or functionality of the Services or Licensed Materials, or for any other benchmarking or competitive purposes as related to Spate’s business.
Table of Contents
2. Purpose, Rights and License
3. Registration and Security
4. Fees and Payment for Purchased Services
5. Proprietary Rights
7. Warranties and Disclaimers
9. Limitation of Liability
10. Term and Termination
11. Notices, Governing Law and Jurisdiction
12. General Provisions
“Confidential Information” means any information disclosed (in each case, by or on behalf of, a Party) in the course of this Agreement or applicable Order Form that is, or should be reasonably understood to be, confidential to a Party, including, without limitation, the terms of this Agreement and applicable Order Form(s), the Services and Licensed Materials (including Downloaded Content, as defined herein), as well as financial, business, and technical plans and strategies, pricing information, inventions, and new products, services, and technologies of either Party. Confidential Information does not include information that the recipient already rightfully knew, that becomes public through no fault of the recipient, that was independently developed by the recipient, or that was lawfully given to the recipient by a third party who was under no obligation of confidentiality.
“License” means a current and valid license to access or use the Services, and which may include, but is not limited to, purchased subscription to the Services for one or more Users associated with a Team License, a trial subscription to the Services granted for one or more Users associated with a Licensee, or any other valid and authorized right/license as permitted by Licensor.
“Licensee” or “You” or “Your” means the company or other legal entity which holds a License for the Services. For purposes of this agreement, Licensee also refers to and incorporates the authorized Users associated with a Team License or other such authorized License.
"Licensee Data" means all electronic data or information submitted by Licensee to the Services.
“Licensed Materials” means all the content and data and reports, including without limitation, metrics, calculations, text, research, ratings, rankings, opinions, photographs, video, audio, graphics, tools, analytics, functionality, products and information displayed and/or otherwise provided by the Services.
"Licensor" means Spate, Inc., the company described in Section 12 (Who You Are Contracting With, Notices, Governing Law and Jurisdiction).
"Order Form" means the ordering documents for purchases of the Services hereunder, including addenda thereto, that are made by and between Licensee and Licensor from time to time and which detail, among other things, the Services, Business Groups, User limits, usage limitations, and pricing during a subscription term. Order Forms shall be deemed incorporated herein by reference.
"Services" means any of the paid or trial subscriptions to various online, web-based applications, API, data feeds, software, materials, data downloads and plugins as well as certain standalone or recurring research services or reports provided by Spate directly or via certain websites owned and operated by Spate (such websites collectively referred to as the “Website”) as well as the Licensed Materials contained therein, as applicable.
“Team” or “Team License” means a group of Users that are part of a business department or functional group within an organization which has access to the Services under a valid License.
"Third-Party Applications" means optional, Web-based applications and offline software products or data that are provided by third parties and which Licensee may elect to install for use with the Services (for example Salesforce), and which are not required to use the Services, but interoperate with the Services.
“User” or "Users" means an individual or individuals who are authorized by Licensee to use the Services, for whom subscriptions to a Service have been purchased, and who have been supplied user identifications and passwords by Licensee (or by Licensor at Licensee’s request). Users are limited to Licensee’s employees, contractors and agents who have a valid business relationship and email address with Licensee’s organization.
2. PURPOSE, RIGHTS, AND LICENSE
2.1. Provision of Services and Subscriptions. Licensor shall make the Services available to Licensee pursuant to this Agreement and/or the relevant Order Form or other ordering documentation during the duration of the subscription (“Subscription Term”). To subscribe to the Services, Licensee must accept an Order Form or other such ordering documentation. The terms of this Agreement are applicable to, and form an integral part of such Order Forms, which will identify the License and Services to be provided, the Subscription Term, and applicable fees for the Subscription Term. Unless expressly stated otherwise in an Order Form signed by both Parties, in the event of a conflict between this Agreement and an Order Form, this Agreement will control. Executing the Order Form and/or submitting payment thereunder constitutes acceptance and agreement by Licensee to subscribe to the Services in accordance with the terms of this Agreement. Licensor expressly rejects any additional or different terms, including but not limited to terms added or appended to this Agreement or the Order Form by Licensee, unless agreed to in writing by both Parties. The individual executing this Agreement and/or the relevant Order Form on behalf of Licensee represents and warrants that they do so with the authority to bind Licensee by executing and submitting such documents. Once the terms of this Agreement have been applicable to an Order Form between Licensee and Spate, then Licensee is deemed to have consented in advance to the applicability of the terms of this Agreement for Order Forms to be entered into thereafter.
2.2. License Grant. Licensor grants to Licensee a nonexclusive, nontransferable, and limited license to use the Licensed Materials only as expressly permitted herein and any applicable Order Form. The Services are solely and exclusively for Licensee’s use and shall not be used for any illegal purpose or in any manner inconsistent with the provisions of the terms of this Agreement or the applicable Order Form. Except as expressly provided herein or in any applicable Order Form, Users may use the Services, including any Licensed Materials contained therein, solely in the regular and ordinary course of Licensee’s business and for internal use only. Licensee further agrees that its purchases hereunder are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by Licensor regarding future functionality or features.
2.3. Team Access and Business Groups. Unless otherwise specified in an Order Form, the number of authorized Users that shall have access to the Services pursuant to a License is limited to individuals that are part of the same business department or functional group within a Licensee’s organization (the “Business Group”). The applicable Order Form will describe the License(s) and specifically identify and list the particular Business Group and total number of authorized Users (“User Limit”). For each License, only Users who are a member of the designated Business Group may access the Services. Licensee may switch Users under a License, provided that (i) the number of Users does not exceed the User Limit, and (ii) new Users are members of the same Business Group designated as such in the applicable Order Form. Violation of the restrictions set forth herein, which shall include sharing User IDs (as defined here) with any unauthorized individuals, will be considered a material breach of this Agreement and cause for termination of this Agreement and/or the applicable Order Form or result in fees up-to-ten percent (10%) of fees paid for such License per violation (“Overage Fees”). The rights granted in a License are granted only to Licensee, and do not extend to Licensee’s shareholders, parents, subsidiaries, affiliates or other related entities or individuals not included in the definition of Licensee on the Order Form. Such related affiliates must execute a separate Order Form in order to use the Services and Licensed Materials.
2.4. Submissions. Certain portions of the Services may provide user-generated features that permit Users to upload, submit, store, send, or receive certain content in addition to the Licensed Materials (“Submissions”). As between Spate and Licensee, Licensee shall own and be responsible for all Submissions to the extent such Submissions are not Licensed Materials or other proprietary property of Spate. Subject to this Agreement and any applicable Order Form, Licensee grants Licensor a worldwide, non-exclusive, limited term license to access, use, process, and display Submissions, but only as reasonably necessary to: (i) provide and improve the Services to and for Licensee; (ii) address and resolve any security, support or technical issues; (iii) disclose certain information as required or compelled by applicable law; and (iv) act as expressly permitted in writing by Licensee. Licensee certifies and warrants that the Submissions shall further comply with the terms set forth herein and further acknowledges and agrees that any such Submissions do not create any new or alter any existing relationship between the Parties. Licensor reserves the right to remove any such Submissions which, in Licensor’s sole discretion, violate the terms of this Agreement.
2.5. Deliverables. To the extent any or a portion of the Licensed Materials, as mutually agreed upon in an applicable Order Form, are to be delivered to or requested by the Licensee at or during fixed, calendar intervals during a Subscription Term (for example, quarterly research materials), such designated Licensed Materials will only be delivered during the calendar period as defined in the applicable Order Form and may not be delivered or requested in subsequent calendar periods unless agreed in writing by both Parties or through a new Order Form. Licensee agrees and acknowledges that it waives its right to any specific, designated Licensed Materials due in a certain calendar period if such delivery is contingent on Licensee's participation or request and Licensee fails to participate or request the same in a timely or sufficient manner necessary for delivery.
2.6.1. Authorized Use. Subject to the terms set forth in this Agreement, Licensee is permitted to:
A. Download and/or print select and limited portions of Licensed Materials to a location or storage device under Licensee’s exclusive control and only for Licensee’s own use (“Downloaded Content”);
B. Extract, quote and/or distribute such Licensed Materials or Downloaded Content for aggregate-level work product (“Reports”), but only internally (i.e. within Licensee’s organization and not to any third-parties) and only for Licensee’s own use and in the regular course of work;
C. From time to time, excerpt or distribute Licensed Materials in articles, blogs or other content or materials that Licensee makes publicly available, provided that (i) Licensee shall display no more than ten (10) individual lines of Licensed Materials (for example companies or transactions) in any such content or materials; (ii) all such Licensed Materials displayed shall include a reasonably conspicuous notice as follows: “SOURCE: SPATE” or similar language reasonably acceptable to Licensor and included using a font size which is not substantially lesser than any other included font; and (iii) if the Licensed Materials are taken from a public Spate webpage and appear in any of Licensee’s content or materials online, Licensee may not modify such content without Licensor’s consent and Licensee must also use commercially reasonable efforts to provide a correct and accessible URL link to the public Spate webpage from which such Licensed Materials were taken; and
D. From time to time, excerpt and distribute in electronic form or hard copies to third parties (to support Licensee’s primary business) limited, insubstantial portions of Licensed Materials; provided, however, that in all cases Licensee preserves all copyright notices and other proprietary notices and credits Spate, as applicable. Recipients of such Licensed Materials shall be authorized to use the Licensed Materials only for their own internal use and shall be prohibited from any further distribution. Under no circumstances shall Licensee distribute Licensed Materials in any quantity or manner that would serve as a substitute for the purchase of the Services or Licensed Materials by the recipient.
2.6.2. Notwithstanding anything to the contrary in Section 2.6.1., Licensee agrees and acknowledges it will not share or promote any excerpt or distribution of the Licensed Materials with the media (in any form) without Spate’s prior written consent. Licensee further agrees and acknowledges that the access and distribution of such Licensed Materials and/or Downloaded Content shall comply, in all instances, with this Agreement, the relevant Order Form, and any applicable law.
2.7.1 Usage Restrictions. Licensee agrees and warrants that Licensee shall not:
A. Use the Services, Licensed Materials, or Downloaded Content in a manner contrary to or in violation of any applicable laws;
B. Copy, reproduce, modify, distribute, publicly display, use or disclose the Services, Licensed Materials, or Downloaded Content, except as expressly permitted in this Agreement;
C. Sell, license, or commercially distribute the Services, Licensed Materials, or Downloaded Content to third parties or use as a component of, or as a basis for, any material offered for sale, license, or commercial distribution, including using the Licensed Materials as a primary source to create and/or maintain any market index or database that Licensee publishes or distributes to third parties;
D. Distribute or commercially provide any databases, interfaces, mobile platforms, or software programs comprising the Services, Licensed Materials, or Downloaded Content;
E. Share, recompile, decompile, disassemble, reverse engineer, or make or distribute any other form of, or any derivative work from the Services, Licensed Materials, or Downloaded Content;
F. Use the Services, Licensed Materials, or Downloaded Content, directly or indirectly, in any manner that could cause the Services, Licensed Materials, or Downloaded Content so used to: (i) be a substitute for the Services by a third party, (ii) affect Spate’s ability to realize revenue in connection with the Services, or (iii) compete with Spate’s business;
G. Store or use Licensed Materials or Downloaded Content in an archival file site, database or other searchable repository except as expressly permitted by this Agreement or in an applicable Order Form;
H. Post any Submissions that are defamatory, infringing, unlawful, or otherwise comprised of information that Licensee does not have a right to transmit under any applicable law, contractual obligations, or fiduciary relationships (including but not limited to, confidential information or proprietary information learned from employment or restricted by valid, non-disclosure agreements); or
I. Upload, post, or otherwise transmit any material that contains software viruses or any other computer code, files, or programs designed to interrupt, destroy, or limit the functionality of any computer software or hardware or telecommunications equipment.
2.7.2. Notwithstanding anything to the contrary in Section 2.7.1., Spate reserves the right, in its sole discretion, to temporarily or permanently block access to the Services for violations of such usage restrictions, including the ability to download or distribute any Licensed Materials, at any time without notice and effective immediately.
2.8. Export of Licensed Materials. Subject to the terms set forth herein or in an applicable Order Form, if the Services provide a capability to export portions of Licensed Materials to a third party spreadsheet program, Licensee may use such capability to export Licensed Material to a spreadsheet file, and may use such exported Licensed Materials internally with a standard, commercially-available, third-party spreadsheet program, only if the following conditions are met: (i) any file, transmission, writing, spreadsheet, graph, report, chart or other document or material, containing such exported Licensed Materials or any part thereof, or derived from such exported Licensed Materials or any part thereof, shall be deemed Downloaded Content hereunder, and the use and distribution of such Downloaded Content shall be subject to this Agreement; and (ii) the Licensee requires use of a function of the spreadsheet program that is not available in the Services and the exported Licensed Materials are limited to the data necessary to use such function. Except as specifically provided herein or in a relevant Order Form, no one shall have any right to export any Licensed Materials from the Services. For avoidance of doubt, except for use within a standard, commercially-available, third-party spreadsheet program as outlined herein, in no event shall Licensee export Licensed Materials from the Services for use in a third-party software program, application, or database, or for use in any proprietary Licensee software, application, or database that competes with Licensor or violates any of this Section 2.
2.9. Licensee Responsibilities. Licensee shall (i) be responsible for Users' compliance with this Agreement; (ii) use commercially reasonable efforts to prevent unauthorized access to or use of the Services; (iii) notify Licensor promptly of any known or suspected unauthorized access or use, and (iv) use the Services in accordance with this Agreement, applicable laws, and government regulations. Licensee further agrees that it shall not (a) make the Services available to anyone other than authorized Users, (b) use the Services to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party intellectual property or privacy rights, (c) use the Services to store or transmit “Malicious Code” which includes, without limitation, any viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs, (d) interfere with or disrupt the integrity or performance of the Services or third-party data contained therein, or (e) attempt to gain unauthorized access to the Services or their related systems or networks.
2.10. Without Licensee's prior, written approval, Licensor shall not make any statement that could be interpreted to mean or imply that Licensee in any way endorses or is associated with Licensor. Notwithstanding the foregoing, if Licensee or authorized Users agrees to provide a case study or such written or public endorsement, Licensor is hereby granted an irrevocable, worldwide, limited license to use respective content, likeness, and/or name solely for purposes of the case study/endorsement. Under no circumstances shall either Party make any promotional announcements which disclose Confidential Information of the other Party.
2.11. Third-Party Applications and Licensee Data. Licensee acknowledges and agrees that if Licensee installs or enables optional Third-Party Applications for use with the Services (for example, Salesforce), that Licensor may provision such providers of those Third-Party Applications to access Licensee Data as required for the interoperation of such Third-Party Applications with the Services. Licensor shall not be responsible for any disclosure, modification or deletion of Licensee Data resulting from any such access by Third-Party Application providers, and any such access and use of Licensee Data shall be subject to the privacy policies of such Third-Party Application provider. Licensee acknowledges that the Service features that interoperate with optional third-party APIs or widgets (for example, Salesforce) depend on the continuing availability of these APIs or widgets and program for use with the Services. If these providers cease to make their API or widgets or program available on reasonable terms for the Services, Licensor may cease providing such service features without entitling Licensee to any refund, credit, or other compensation. For avoidance of doubt, the Licensee may electively use the Services to restrict Users from installing or enabling such Third-Party Applications for use with the Services.
3. REGISTRATION AND SECURITY
3.1. Registration and User ID Security. Some of the Services require secure login through a unique username and password (collectively, “User ID”). If Users access the Services using secure User IDs, Licensee agrees as follows (and shall compel its Users to agree) for purposes of initial registration and general User ID security: (i) as part of the registration process which may be necessary to obtain access to the Services, Licensee shall provide certain truthful registration information to Licensor (subject to all confidentiality obligations stated herein), with each registration being for a single User only; (ii) Users shall have access to the Services during the Subscription Term through the User ID, which may be used by Users to gain access to the Services only for so long as such Users are authorized to access and use the Services in accordance with the terms of this Agreement or the applicable Order Form; and (iii) Licensee agrees to treat the User ID as confidential and, as to the Users, not to disclose or share such User ID, either directly or indirectly, to any person other than as directed by Licensee or permitted by Licensor in writing. Notwithstanding anything to the contrary stated herein, Licensor shall not be liable to Licensee or any third person or entity for any loss or damage arising from Licensee’s failure to comply with these security requirements. If Licensee intends or directs User to sell or transfer a device on which the Services are accessed, Licensee agrees to remove any Licensed Materials and delete all internet files (i.e. cookies) obtained by or through use of the Services that are stored on such device.
3.2. Audit and Monitoring. Subject to any confidentiality obligations contained herein or in an applicable Order Form, Spate reserves the right to audit and monitor the use of the Services to ensure compliance with the terms of this Agreement and to maintain and improve the provision of the Services. Additionally, upon thirty (30) days written notice, Licensor may audit Licensee’s use of the Services for compliance purposes relating to Sections 2 and 3 of this Agreement, particularly regarding User ID and Business Group compliance. Licensee agrees to cooperate with Licensor’s audit and provide reasonable assistance and access to information. Licensee agrees to pay within thirty (30) days of written notification any applicable Overage Fees. Failure to pay any required Overage Fees can result in the end of technical support or termination of Licenses and/or this Agreement. Licensee agrees that Licensor shall not be responsible for any of Licensee’s costs incurred in cooperating with the audit.
4. FEES AND PAYMENT FOR PURCHASED SERVICES
4.1. Fees. Licensee shall pay all fees specified in all applicable Order Forms hereunder. Except as otherwise specified herein or in an Order Form, fees: (i) are quoted and payable in United States dollars, (ii) are based on Services purchased and not actual usage, (iii) are noncancelable and nonrefundable, and (iv) cannot be decreased during the relevant subscription term stated on the Order Form.
4.2. Invoicing and Payment. Use of the Services is subject to timely payment by Licensee for all fees required by, and in the manner described under, the applicable Order Form. Licensee agrees to provide Spate with (i) complete and accurate billing and contact information; (ii) if applicable, valid and updated credit card information; (iii) if required, a valid purchase order; or (iv) if necessary, alternative documentation reasonably acceptable to Spate. If Licensee provides credit card information to Spate, Licensee authorizes Spate to charge such credit card for the Services listed in the applicable Order Form for the Subscription Term and any renewal subscription terms. Such charges shall be made in advance, in accordance with the billing frequency stated in the applicable Order Form. If Licensee requires the generation of a valid purchase order, Licensee acknowledges and agrees to use reasonable efforts to generate the purchase order within thirty (30) days after acceptance of an applicable Order Form. If the Order Form specifies that payment will be by a method other than a credit card, Spate will invoice Licensee annually in advance and otherwise in accordance with the relevant Order Form. Unless otherwise stated in the Order Form, invoiced charges are due in full within thirty (30) days from the invoice date. Licensee is responsible for maintaining complete and accurate billing and contact information, and notifying Licensor as to any changes.
4.3. Overdue Charges. If any charges are not received from Licensee by the due date, then at Licensor’s discretion, (a) such charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid, and/or (b) Licensor may condition future subscription renewals and Order Forms on payment terms shorter than those specified in Section 4.2 (Invoicing and Payment).
4.4. Suspension of Service and Acceleration. If any amount owing by Licensee under this or any other applicable Order Form for Spate services is thirty (30) or more days overdue (or 10 or more days overdue in the case of amounts Licensee has authorized Licensor to charge to Licensee’s credit card), Licensor may, without limiting any other of Licensor’s rights and remedies, accelerate Licensee’s unpaid fee obligations so that all such obligations become immediately due and payable, and suspend provision of the Services until such amounts are paid in full.
4.5. Taxes. Unless otherwise stated, Licensor fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, sales, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, "Taxes"). Licensee is responsible for paying all Taxes associated with purchases hereunder. To the extent Licensor has any legal obligation to pay or collect Taxes for which Licensee is responsible under this paragraph, the appropriate amount shall be invoiced to and paid by Licensee, unless Licensee provides Licensor with a valid tax exemption certificate authorized by the appropriate taxing authority.
5. PROPRIETARY RIGHTS
5.1. Reservation of Rights. The Services are proprietary and are protected by copyright and other laws respecting proprietary rights and intellectual property. Spate retains all rights in the Services, including all copyright and other proprietary rights worldwide. Except as expressly provided herein or in an applicable Order Form, use of the Services shall in no way be construed as conferring on Licensee, User, or any third party, any license or right, by implication, estoppel or otherwise, under any law, rule or regulation including, without limitation those related to copyright or other intellectual property rights. Licensee acknowledges and agrees that Licensee and Users have no ownership rights in or to the Services, or the Licensed Materials contained therein, and that no such rights are granted hereunder. Except as provided in an applicable Order Form, the granting of any license herein does not affect the ownership of any Licensed Materials, whether tangible or intangible, and, unless expressly stated otherwise in an Order Form signed by both Parties, none of the Licensed Materials accessed through the Services shall be considered a “Works Made for Hire” as defined by the copyright laws of the United States.
5.2. Intellectual Property. Licensee acknowledges and agrees that the Services and Licensed Materials are and have been developed, compiled, prepared, revised, selected, and arranged by Licensor and any applicable partners or affiliates (collectively “Spate Holders”) through the application of methods and standards of judgment developed and applied through the expenditure of substantial time, effort, and money and constitutes valuable intellectual property of Spate Holders. Licensee shall comply with all reasonable requests made by Spate Holders to protect their contractual, statutory, and common law rights in the Services and Licensed Materials. All present and future rights in and title to the Services and Licensed Materials (including the right to exploit the Services and any portions of the Services over any present or future technology) are reserved to Licensor for its exclusive use.
5.3. Feedback. If Licensee provides Spate with any ideas, comments or suggestions relating to the Services or Licensed Materials (“Feedback”), Spate retains all rights in that Feedback, and anything created as a result (including new Licensed Materials or any derivative works) are owned solely by Spate. For avoidance of doubt, none of Licensee’s intellectual property or Confidential Information shall be considered Feedback.
6.1. Confidential Information. Neither Party will disclose the other Party’s Confidential Information, except to its employees, agents, or professional advisors who need to know it and who have agreed in writing to keep it confidential. The recipient will ensure that those people and entities use the Confidential Information only to exercise the rights and fulfill the obligations set forth in this Agreement or applicable Order Form and in accordance with the confidentiality obligations applicable to the recipient’s performance under this Agreement. The recipient may also disclose Confidential Information to the extent required by a valid order of a court or other governmental body that has jurisdiction over the recipient; provided that the recipient uses commercially reasonable efforts to: (i) promptly notify the disclosing Party of such legal request before making any disclosure; and (ii) comply with the disclosing Party’s reasonable requests to oppose or limit the disclosure (at no cost to the recipient). If no such protective order or other remedy is sought or obtained pursuant to this Section 6, the recipient may disclose only that portion of Confidential Information that it is legally required to disclose and will use reasonable efforts to ensure that the Confidential Information disclosed will be accorded confidential treatment.
6.2. Obligations. Licensee agrees to safeguard the Services, Licensed Materials (including Downloaded Content) and User IDs against unauthorized use or disclosure with means at least as stringent as those it uses to safeguard Licensee’s own Confidential Information, and in no event with less than reasonable means. Spate shall use commercially reasonable efforts to keep confidential the information Licensee enters into the Services, provided that this obligation shall not apply to any information that: (i) Licensee provides in connection with another service, function or product of Spate or its affiliates, or other agreement between Licensee and Spate or its affiliates; (ii) previously resided, on a non-confidential basis, in the Services directly relating to information entered by Licensee in the Services; (iii) becomes generally known or available to the public or is disclosed without restriction in published materials or is disclosed, not due to a breach of any confidentiality obligations upon Spate or its affiliated entities; (iv) is known to Spate or its affiliated entities at the time of disclosure by Licensee; (v) Spate or its affiliated entities obtains from a third party or a source other than Licensee which is not known to Spate or its affiliated entities to be subject to confidentiality; (vi) Licensee instructs Spate or its affiliated entities to disclose; or (vii) Spate or its affiliated entities are legally required to disclose.
6.3. Disposal. Notwithstanding anything to the contrary herein, upon the termination or expiration of this Agreement and/or applicable Order Form, or upon the request of Spate, Licensee will immediately and securely destroy or return all such Confidential Information of Spate in Licensee’s possession.
6.4. Injunction for Breach of Confidentiality. Licensee acknowledges and agrees that in the event of any breach of the confidentiality obligations of this Agreement by Licensee, Spate could suffer irreparable harm and injury and no remedy at law may afford it adequate protection against, or appropriate compensation for, such injury. Accordingly, Licensee agrees that in any such event, Spate will be entitled, in addition to all other potential rights and remedies available to it, to immediate injunctive relief as may be granted by a court of competent jurisdiction.
7. WARRANTIES AND DISCLAIMERS
7.1. Warranties. Each Party represents and warrants that it has the legal power to enter into this Agreement. Licensee represents and warrants that Licensee will not transmit to Licensor any Malicious Code.
7.3. No Professional Advice. NONE OF THE SERVICES OR PROVISION OF LICENSED MATERIALS CONSTITUTES ACTUAL INVESTMENT ADVICE OR OTHER PROFESSIONAL ADVICE, OPINION, OR RECOMMENDATION BY LICENSOR. LICENSOR DOES NOT CLAIM TO BE AND IS NOT A BROKER, DEALER OR INVESTMENT ADVISOR AND NOTHING HEREIN SHALL CONSTITUTE A SALE OR OFFER TO BUY, SELL, OR RECOMMEND ANY PRODUCTS OR COMPANIES. LICENSEE MAKES THEIR OWN BUSINESS DECISIONS BASED UPON THEIR PERSONAL DUE DILIGENCE, INVESTIGATION AND OTHER BUSINESS CRITERIA. LICENSEE ASSUMES ALL RESPONSIBILITIES AND OBLIGATIONS WITH RESPECT TO ANY DECISIONS, ADVICE, CONCLUSIONS, BUSINESS STRATEGIES, OR RECOMMENDATIONS MADE OR GIVEN AS A RESULT OF THE USE OF THE SERVICES OR LICENSED MATERIALS, INCLUDING WITHOUT LIMITATION ANY DECISION MADE OR ACTION TAKEN BY LICENSEE IN RELIANCE UPON THE SERVICES OR LICENSED MATERIALS. AS A CONDITION TO LICENSEE’S USE OF THE SERVICES AND LICENSED MATERIALS, LICENSEE HEREBY WAIVES AND RELEASES ANY AND ALL CLAIMS, CAUSES OF ACTION OR OTHER RIGHTS THAT LICENSEE MIGHT HAVE AGAINST LICENSOR ARISING OUT OF OR RELATING TO THE REVIEW OF ANY LICENSED MATERIALS MADE AVAILABLE THROUGH THE SERVICES.
7.4. Third-Party Communications. Licensor disclaims all liability for any third-party communication Licensee may receive or any actions Licensee may take or refrain from taking as a result of any communication directed to Licensee from any third party directly or indirectly in connection with the Services provided herein (“Third-Party Communication”). Licensee is solely responsible for assessing and verifying the identity and trustworthiness of the source and content of any Third-Party Communication. Licensor assumes no responsibility for verifying, and makes no representations or warranties regarding, the identity or trustworthiness of the source or content of any Third-Party Communication.
8.1. Indemnification. Licensee agrees to indemnify, defend, and hold the Spate Parties harmless, including costs and reasonable attorneys' fees, from any claim or demand made by any third-party due to or arising out of (i) Licensee’s access to or use of the Services or Licensed Materials, (ii) Licensee’s violation of the terms of this Agreement, or (iii) the infringement by Licensee, including any unauthorized use of Licensee’s account, of any intellectual property or other right of any person or entity. The indemnifying party reserves the right, at the indemnifying party’s expense, to assume the exclusive defense and control of any matter for which the indemnifying party is required to indemnify the indemnified party and the indemnifying party agrees to cooperate with the indemnifying party’s defense of these claims. The indemnifying party agrees not to settle any matter without the prior written consent of the indemnified party. Spate shall promptly notify Licensee of any claim for which indemnification is sought, following actual knowledge of such claim, provided however that the failure to give such notice shall not relieve Licensee of its obligations hereunder except to the extent that Licensee is materially prejudiced by such failure. In the event that any third-party claim is brought, Licensee shall have the right and option to undertake and control of the defense of such action with counsel of its choice, provided however that Spate may undertake and control of such defense in the event of the material failure of Licensee to undertake and control the same. Spate shall not consent to judgment or concede or settle or compromise any claim without the prior written approval of Licensee (which approval shall not be unreasonably withheld).
9. LIMITATION OF LIABILITY
9.1. Limitation of Liability. EXCEPT FOR LICENSOR’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, IN NO EVENT SHALL LICENSOR’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, INCLUDING THE USE OR INABILITY TO USE THE SERVICES, OR LICENSEE’S FAILURE TO PERFORM RESEARCH OR OTHER RELATED WORK PROPERLY OR COMPLETELY (EVEN IF ASSISTED BY LICENSOR), WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE TOTAL AMOUNT PAID BY LICENSEE HEREUNDER OR, WITH RESPECT TO ANY SINGLE INCIDENT THE LESSOR OF $5000 OR THE AMOUNT PAID BY LICENSEE HEREUNDER IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE INCIDENT.
9.2. Exclusion of Consequential and Related Damages. IN NO EVENT SHALL LICENSOR BE LIABLE TO LICENSEE FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY OR INCIDENTAL OR CONSEQUENTIAL DAMAGES. NOTWITHSTANDING THE FOREGOING, THIS AGREEMENT SHALL NOT LIMIT ANY LIABILITY FOR DEATH OR PERSONAL INJURY DIRECTLY RESULTING FROM NEGLIGENCE IF AND TO THE EXTENT SUCH LIMITATION WOULD VIOLATE APPLICABLE LAW. NO ACTION, REGARDLESS OF FORM, ARISING OUT OF OR PERTAINING TO THE SERVICES MAY BE BROUGHT BY LICENSEE MORE THAN ONE YEAR AFTER THE CAUSE OF ACTION HAS ACCRUED.
10. TERM AND TERMINATION
10.1. Term of Agreement. Unless terminated earlier as permitted herein, this Agreement commences on the Effective Date and continues for three (3) years or until all Order Forms subject to this Agreement have expired or terminated.
10.2. Term of Purchased Services. Subscriptions Terms shall be as specified in an applicable Order Form. Subscription Terms will automatically renew for additional subscription periods equal to the expiring Subscription Term, unless either Party provides written notice of non-renewal at least ninety (90) days prior to the end of the relevant Subscription Term. Pricing for a License during any renewal term may increase by up to seven percent (7%) above the applicable pricing in the prior Subscription Term to the current per-unit list pricing, unless Licensor provides Licensee with notice of different pricing at least thirty (30) days prior to the applicable renewal term. Except as expressly provided in an applicable Order Form, renewal of any promotional or one-time priced Licenses may be priced at the certain list price in effect at the time of the applicable renewal.
10.3. Termination for Cause. A Party may terminate this Agreement for cause: (i) upon thirty (30) days written notice to the other Party of a material breach if such breach remains uncured at the expiration of such period, or (ii) if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. Additionally, Licensor may terminate this Agreement at any time upon notice to Licensee if Licensee invests in or builds a service that is competitive to any of Licensor’s services.
10.4. Effects of Termination. Upon termination of this Agreement for any reason, Licensee shall (and shall ensure that all Users) immediately cease accessing and using the Services and Licensed Materials, and Licensee must delete and destroy all copies of Licensed Materials stored on Licensee systems or that is otherwise in Licensee’s possession or under Licensee’s control. Licensee may, however, retain Licensed Materials in aggregate form that is included in Reports that were created in accordance with the terms of this Agreement prior to the effective date of termination.
10.5. Payment upon Termination. Upon any termination for cause by Licensor, Licensee shall pay any unpaid fees covering the remainder of the term of all Order Forms after the effective date of termination. In no event shall any termination relieve Licensee of the obligation to pay any fees payable to Licensor for the period prior to the effective date of termination.
10.6. Surviving Provisions. Section 4 (Fees and Payment for Purchased Services), 5 (Proprietary Rights), 6 (Confidentiality), 7 (Warranties and Disclaimer), 8 (Indemnification), 9 (Limitation of Liability), 10.4 (Effects of Termination), 10.5 (Payment upon Termination), 11 (Notices, Governing Law and Jurisdiction), 12 (General Provisions), and this Section 10.6 shall survive any termination or expiration of this Agreement.
11. NOTICES, GOVERNING LAW AND JURISDICTION
11.1. Notices. Licensee acknowledges it is contracting with the following entity under this Agreement, and should direct notices to under this Agreement to:
372 Decatur Street
Brooklyn, NY 11233
11.2. Manner of Giving Notice. Except as otherwise specified in this Agreement or an applicable Order Form, all notices, permissions and approvals hereunder shall be in writing and shall be deemed to have been given upon: (i) personal delivery, (ii) the second business day after mailing, (iii) the second business day after sending by confirmed facsimile, (iv) the first business day after sending by email, or (v) by posting on the Website, if applicable. Notices to Licensee shall be addressed to the system administrator designated by Licensee for all relevant Services account, and in the case of billing-related notices, to the relevant billing contact designated by Licensee.
11.3. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of New York, without giving effect to its principles or rules of conflict of laws to the extent such principles or rules are not mandatorily applicable by statute and would require or permit the application of the laws of another jurisdiction, as to all matters, including but not limited to matters of validity, construction, effect, performance and remedies. Each Party consents to the exclusive jurisdiction and venue in the New York state courts located in the County of New York, in the borough of Manhattan and in the federal courts located in the Southern District of New York.
12. GENERAL PROVISIONS
12.1. Export Compliance. Each Party shall comply with the export laws and regulations of the United States and other applicable jurisdictions in providing and using the Services.
12.2. Relationship of the Parties. The Parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.
12.3. No Third-Party Beneficiaries. Except for any of Licensor’s third-party suppliers and licensors, as applicable, there are no third-party beneficiaries to this Agreement.
12.4. Waiver and Cumulative Remedies. No failure or delay by either Party in exercising any right under this Agreement shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.
12.5. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.
12.6. Assignment. Licensee may not assign any rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of Licensor.
12.7. Entire Agreement. This Agreement, including all Order Forms, constitutes the entire agreement between the Parties and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and either signed or accepted electronically by the Party against whom the modification, amendment or waiver is to be asserted. However, to the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any Order Form, the terms of this Agreement shall prevail unless expressly stated otherwise in the Order Form.
Notwithstanding any language to the contrary therein, no terms or conditions stated in Licensee’s purchase order or other order documentation shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void.