Product Terms & Conditions
- DEFINITIONS.
1.1 “Affiliate” means any legal entity which controls, is controlled by, or is under common control of either party (ownership of more than 50% of assets or stock with control over day-to-day operations).
1.2 “Agreement” means these Data Terms and Conditions, the incorporated Exhibit, and the applicable Order Forms.
1.3 “Client Information” means any confidential or proprietary information or data provided by Client to Licensor to enable Licensor to perform its obligations under the Agreement.
1.4 “Confidential Information” means: (a) Licensor Property; (b) Client Information; (c) the terms of the Agreement; and (d) any information that by its nature, Recipient knows or should know is confidential or proprietary, including Discloser business or technical information.
1.5 “Divisional Affiliate” means any legal entity which is: (i) directly controlled by Client or Client’s parent company (ownership of more than 50% of assets or stock with control over day-to-day operations), and (ii) together with Client operates a distinct and separate business division/unit within the Client enterprise.
1.6 “Documentation” means the material, user guides, and manuals provided by Licensor to Client for use with a Product.
1.7 “Exhibit” means the Exhibit which contains the terms or conditions specific to the Products.
1.8 “Expenses” means the reasonable and documented expenses incurred by Licensor to provide Products to Client.
1.9 “Fees” means the money owed to Licensor for Products provided in the Order Form. Fees are exclusive of Expenses and Taxes, which will be charged separately to the Client. All Taxes imposed by any Governmental Authority on any amount payable by Client under this Agreement, other than Taxes levied on the net income of Licensor, shall be borne by the Client. In the event that Licensor is required to pay or collect any such Taxes, or Client is required to withhold such Taxes, then the amount payable by Client hereunder shall be increased by the amount of such Taxes and paid by Client in addition to the Fees.
1.10 “Governmental Authority” means the government of any nation or any political subdivision thereof, whether at the national, state, municipal, or any other level, and any agency, authority, instrumentality, regulatory body, court, central bank, or other entity exercising executive, legislative, judicial, taxing, regulatory, or administrative powers or functions of, or pertaining to, government.
1.11 “Licensor Property” means: (a) the business process, management and analytics technologies of Licensor, including without limitation; any algorithms, analyses, data, databases, Documentation, formats, forecasts, formulas, inventions, know-how, methodologies, processes, tools, trade secrets, and Products, and (b) any and all derivative works, enhancements, or other modifications to any of the above.
1.12 “Order Form” means the document executed by both Parties describing the Product(s) being licensed, the license term, Fees, Expenses, and any special terms or conditions.
1.13 “Product(s)” means all information provided by Licensor and/or its third party providers to Client under an Order Form which may be accessed electronically or delivered/received in physical format. Products may include any web tools, search engines, or software provided by Licensor that can be used by Client when accessing Products which Client agrees to use only for purpose of accessing the Products and subject to the restrictions as set forth herein. Licensor reserves the right to replace or make any change to the Product(s) by providing at least 45 days prior written notice to the Client.
1.14 “Taxes” means any tax or assessment of any kind, including but not limited to sales, use, services, license, income, franchise, business, occupation, property, excise, gross receipts, turnover, value added tax, goods and services tax, stamp, withholding tax, consumption taxes, service tax, equalization levy and customs duties or fees and any fines, penalties, surcharges, interest or additions-to-tax attaching thereto. Client must submit applicable documentation to receive tax exempt status. - FEES, PAYMENT, DELIVERY AND TAXES.
2.1 Licensor will invoice Client for all Fees and Expenses due under any Order Form. Client will pay Licensor the Fees and Expenses in advance, within 30 days from date of invoice issued by Licensor and in the currency specified in the Order Form. Fees for Products are nonrefundable. Licensor may: (a) accrue interest at the lesser of 1% per month or the highest rate permitted in law, and/or (b) suspend or discontinue the provision of Products if payment is not received when due. Client has no right of set-off.
2.2 Unless otherwise agreed in the Order Form, Licensor reserves the right to modify the Fees after the initial 12 month subscription period by providing at least 45 days prior written notice to the Client; provided such change will occur no more than once in any 12 month period.
2.3 Delivery of Products is deemed to occur and risk of loss passes upon delivery or when Licensor provides access codes to Client that allow Client to access or to take immediate possession of Product. - OWNERSHIP OF INTELLECTUAL PROPERTY.
3.1 Licensor or its third party providers owns all Licensor Property, and Client owns all Client Information. Client may provide suggestions/feedback which Licensor may use without any obligation to Client so long as such suggestions/feedback do not include Client Information.
3.2 Neither Party will remove any copyright, trademark, or other proprietary notices of the other Party or any third party on any materials received from the other Party and each Party will reproduce all such notices on all copies of such materials. - CONFIDENTIAL INFORMATION.
Where either party (“Discloser”) provides the other (“Recipient”) with Confidential Information, it shall be held in strict confidence and shall not be disclosed or used for any purpose other than as specifically authorized/provided in the Agreement without the prior written consent of the other. Confidential Information shall not include information:(i) which is or becomes public knowledge other than by a breach of this clause, (ii) that is required to be disclosed by any applicable law or by any recognized stock exchange, (iii) that is obtained from a third party without breach of an obligation of confidentiality and (iv) information which can be shown to have been independently developed by the parties by means other than through its access to the Confidential Information. Upon any expiration or termination of this Agreement or Order Form, Recipient promptly will return to Discloser or destroy all Discloser Confidential Information that it has in its possession or control related to the Agreement or Order Form as applicable. - INDEMNIFICATION.
5.1 By Licensor.
5.1.1 Except as otherwise specifically set forth in an Order Form, Licensor will indemnify, defend, and hold harmless Client for any damages (and related attorney’s fees) awarded by a court in favor of any third party alleging that Products infringe or misappropriate any third party intellectual property rights, including any patent, copyright, trademark, or trade secret, in the country(s) of Client’s locations as licensed under an Order Form (“Infringement Claim”).
5.1.2 Licensor will have no liability under this Section 5.1 for any Infringement Claim arising from: (a) failure to use Products s in accordance with the Agreement, (b) the modification of a Product not specifically authorized in writing by Licensor; (c) the combination of a Product with any third party software, equipment, or information not specified in the Documentation; (d) the use of a version of a Product other than the then-current version, if the infringement would have been avoided by use of the then-current version; or (e) compliance with designs, plans, or specifications furnished by or on behalf of the Client.
5.1.3 If Products are held or are believed by Licensor to infringe, Licensor may choose, at its sole expense, (a) to modify the Products so that they are non-infringing; (b) to replace the Products with non-infringing Products that are functionally equivalent; (c) to obtain a license for Client to continue to use the Products; or if none of (a), (b), or (c) is commercially reasonable, then (d) to terminate the Order Form for the infringing Products and refund Fees paid for such infringing Product(s); in case of provision of subscription Products, prorated from the date of the Infringement Claim. This Section 5.1.3 states the entire liability of Licensor and Client’s sole and exclusive remedy for any infringement of third party proprietary rights of any kind.5.2 By Client. Client will indemnify, defend and hold harmless Licensor for any damages (and related attorney’s fees) awarded by a court in favor of any third party alleging that Client Information used by Licensor in accordance with the terms and conditions of the Agreement infringes or misappropriates any third party intellectual property rights including any patent, copyright, trademark, or trade secret. If Client Information is held or is reasonably believed by Licensor to infringe, Licensor will cease using such Client Information and will not be liable to Client for any breach or failure to perform under the Agreement for which the Client Information was provided.
5.3 Mutual Indemnification: Each Party will indemnify, defend, and hold the other Party harmless from any claim, demands, liabilities, suits, or expenses of any kind for personal injury or damage to tangible property to the extent arising from its negligence or willful misconduct on either party’s premises.