DATA LICENSE AGREEMENT
Between and Among: Summit Resources, LLC d/b/a Client Command (“Client Command”) and the Licensee as described in an executed Data License Order Form, each a “Party” and collectively, the “Parties”, each located at the address first set forth in the signature block below.
THIS DATA LICENSE AGREEMENT (this “Agreement”) is made and entered into by the Parties hereto for the purpose of granting a limited license to certain data described in the Data License Order Form (the “Order Form”) according to the terms and conditions described herein.
1. THE DATA. The License granted herein is granted for the Data described in the Order Form attached hereto, and dated concurrently with this Agreement. The Data shall be delivered to the Licensee as described in the Order Form.
- A. Grant. Subject to the terms and conditions of this Agreement, Client Command hereby grants to Licensee a limited, temporary, non-exclusive, non-transferable, non-sublicensable right and license to use the Data for the sole purpose described in the Order Form attached hereto (the “License”). Licensee accepts the terms and conditions of this Agreement and accepts full responsibility for performance by its employees, contractors and agents (collectively, “Licensee Representatives”) of obligations under this Agreement. The License shall be for the License Term listed in the Order Form, after which point Licensee shall return or destroy the Data to the extent possible and cease all usage of the Data until and unless another License to the Data is granted by Client Command.
- B. Reservation of Rights. As between the parties, Client Command owns all intellectual property rights and other proprietary interests that are embodied in, or practiced by, the Data, and no transfer of any such rights is affected by this Agreement. The Parties acknowledge that Client Command expended significant resources to create and maintain the Data, and the Data as compiled is unique and/or original to Client Command. “Intellectual Property Rights” means the exclusive rights held by the owner of a copyright, patent, trademark, or trade secret, including (i) the rights to copy, publicly perform, public display, distribute, adapt, translate, modify and create derivative works of copyrighted subject matter; (ii) the right to exclude another from using, making, having made, selling, offering to sell, and importing patented subject matter and from practicing patented methods, (iii) the rights to use and display any marks in association with businesses, products or services as an indication of ownership, origin, affiliation, endorsement, or sponsorship; and (iv) the rights to apply for any of the foregoing rights, and all rights in those applications. Intellectual Property Rights also include any and all rights associated with particular information that are granted by law and that give the owner, independent of contract, exclusive authority to control use or disclosure of the information, including enforceable privacy rights and any rights in databases recognized by applicable law.
- C. Restrictions. Licensee shall not, and shall not permit any Licensee Representative to: (i) resell, sublicense, distribute or otherwise provide access to the Data to any third party or use the Data in any manner except within the scope of the license granted herein; (ii) copy, modify, adapt, translate, prepare derivative works from, reverse engineer, disassemble, or decompile the Data except as explicitly licensed herein; (iii) use the Data to conduct or promote any illegal activities; (iv) use the Data to market to minors; (v) repackage the data for use by Licensee’s customers or affiliates; (vi) use the data to market or in conjunction with age-restricted products including, but not limited to adult materials, alcohol, and tobacco products; or (vii) use the Data in a manner that violates or subverts the terms of any agreement to which either Party is subject. Licensee agrees to use the Data only for lawful purposes and in compliance with all applicable laws, rules and regulations issued by governing authorities or industry self-regulatory groups.
- E. Data Rights. Client Command affirms that it has all requisite rights and permissions to license the Data for the purposes granted herein. In the event that Client Command’s rights or permissions to license the Data change in a manner that materially impacts the license or the purpose for which it was granted, Client Command shall promptly notify Licensee of such change. Off-license data usages constitute a breach of this Agreement and Client Command makes no assurances as to any rights with respect to off-license usages of the Data.
3. METHOD OF PURCHASE. Licensee may purchase a license to the Data from Client Command in one of three ways as described in this section. For any of the following purchase methods, the Data must be deleted and/or destroyed in all formats by Licensee at the end of the License Term, and such deletion and/or destruction shall be confirmed in writing by Licensee within fourteen (14) days of the end of the License Term. Failure to provide written certification of deletion or destruction shall result in additional fees, due immediately. Failure to delete or destroy the Data at the end of the License Term shall constitute an off-license use of the Data and a material breach of this Agreement. Client Command shall have no responsibility for maintaining the accuracy or legality of any of the Data that Licensee maintains after the end of the License Term.
- A. One Time Purchase. Licensee may purchase a license to the Data as a single, standalone purchase to delivered by the secure method described on the Order Form. This purchase will not be re-delivered except at an additional cost, and the license shall terminate immediately at the end of the License Term.
- B. Standard Subscription Purchase. Licensee may purchase the Data as a part of a standard access subscription to all of Client Command’s data that is available for sale. Licensee shall pre-purchase “Credits” on a monthly basis each of which corresponds to a single record of the Data to be downloaded and used according to the Order Form in that month. Every record downloaded shall be considered to have been used, and shall be applied to a purchased Credit. In order to download records in excess of the Licensee’s available Credits, Licensee must purchase additional Credits on a one time or recurring basis. Credits expire if unused.
- C. Enterprise Subscription Purchase. Licensee may purchase the Data as a part of an enterprise access subscription to all of Client Command’s data that is available for sale. Licensee may request and export a specific data set for use according to the terms of the Order Form and this Agreement. Each such download will be accompanied by an expiration date that corresponds to the end of the License Term for all of the Data included in the download. Licensee must then keep an accurate record of what portion of the downloaded data Licensee utilizes and report that usage to Client Command every calendar month between the 1st and 5th day of the month for the preceding thirty (30) days (the “Data Usage Report”). Client Command shall not be responsible for removing duplicate usages from the Data Usage Report received. If no Data Usage Report has been received by Client Command by the end of the business day on the 5th day of the month, the Parties agree that this shall mean Licensee utilized all records that were downloaded in the preceding thirty (30) days. Client Command shall reserve the right to audit Licensee’s use of the Data at its own cost at any time, and Licensee agrees to make internal usage information available to Client Command upon request. In the event that Licensee’s usage of the Data as self-reported is unreasonably low or verifiably inaccurate, Client Command reserves the right, upon thirty (30) days’ notice, to change Licensee’s billing to reflect a price per record downloaded in lieu of a price per record used.
4. PAYMENT AND INVOICING.:
- A. Pricing and Invoicing for One Time Purchases. Pricing for the Data for One Time Purchases is defined in the Order Form. Client Command shall invoice Licensee immediately upon delivery of the Data according to the payment terms described in the Order Form.
- B. Pricing and Invoicing for Standard Subscription Purchases. Pricing for the subscription access and Credits is defined in the Order Form. Client Command shall invoice Licensee in advance for Credits scheduled to be delivered to Licensee’s account in the following month. Payment terms are as described on the Order Form.
- C. Pricing and Invoicing for Enterprise Subscription Purchases. Pricing for the subscription access and the Data for Enterprise Subscription Purchases is defined in the Order Form. Client Command shall invoice Licensee, according to the payment terms described in the Order Form, monthly on or around the 15th of the month for the subscription access fee as well as the Data that is used or downloaded as described in Section 3.C. above.
- D. Payment Method. Client Command accepts payments via ACH or credit card. Client Command may pass credit card processing fees to Licensee, and will indicate such fees in the invoice. In the event that Licensee makes more than one recurring payment more than three (3) business days late, Client Command may require Licensee to provide a valid credit card for automatic payments.
- E. Additional Information. Invoices not paid in accordance with this section and the Order Form are subject to late fees at the rate of one and one-half percent (1.5%) per month, unless prohibited by law, in which case the late fee shall be the maximum legal rate. Licensee shall be liable for any costs or expenses related to the collection of past due amounts. No dispute under the terms of this Agreement shall interfere with Licensee’s prompt payment in full of any invoice. In the event that Licensee believes there to be an error in an invoice, Licensee must dispute the invoice within seven (7) business days of receipt of the invoice in question, and make timely payment of all undisputed amounts. Invoices resulting from a failure to provide a Data Usage Report may not be disputed on the grounds that Data invoiced was not used. If the Parties are not able in good faith to resolve the dispute within thirty (30) days of the dispute, Client Command may, in its sole discretion, terminate this Agreement effective immediately by providing Licensee with written notice of the termination and an invoice for any delivered and undisputed sums due. Such termination shall not impact in any way Client Command’s ability to seek resolution to the disputed invoice.
5. TERM AND TERMINATION.
- A. Term. Unless sooner terminated in accordance with the provisions of this Section 5 or Section 4 above, this Agreement will remain in effect for the Agreement Term described in the Order Form plus the duration of any License Term active at the end of the Agreement Term. The Agreement Term may be indicated to automatically renew for successive Agreement Terms, each of which may only be terminated by either Party providing written notice to the other not later than thirty (30) days prior to the end of the then-current Agreement Term or as described in this Section 5 or Section 4 above.
- B. Duration of Data License. For each download or delivery of the Data, Licensee shall receive the right to use the Data for the purposes outlined in the Order Form for the period of time described as the License Term. Licensee shall delete and/or destroy all Data at the end of that Data’s License Term and provide a written certification of such deletion and or destruction within fourteen (14) days of end of the License Term. The Data deleted and/or destroyed may be re-downloaded or delivered for subsequent License Terms, but for purposes of billing and invoicing shall be treated by Client Command as a new record. Any request for a License Term modification or extension must be captured in written and executed by authorized individuals on behalf of both Parties. Licensee is not obligated to download the Data at any time.
- C. Early Termination For Cause. In addition to failure on Licensee’s behalf to timely make payments, Client Command may terminate this Agreement immediately upon providing written notice to Licensee upon the occurrence of any of the following: (i) a data or security breach at the Licensee which resulted in the exposure of the Data or reasonably could have resulted in the exposure of the Data to unlicensed third parties, (ii) the failure of Licensee to establish and maintain reasonable security and protections for the Data, or (iii) the violation of any relevant data security or privacy law on the part of the Licensee.
- D. Effect of Termination. Upon termination or expiration of this Agreement for any reason (i) all rights and licenses granted to Licensee under this Agreement will immediately cease, and (ii) Licensee will make no further use of the Data and will immediately either destroy or permanently erase all copies of the Data under Licensee’s control. Any early termination of this Agreement will be without prejudice to any other right or remedy that a Party may have at law or in equity and will not relieve either Party of breaches occurring prior to the effective date of such termination. Sections 1, 4, and 6 will survive the expiration of the license granted herein or any termination of this Agreement.
6. DISCLAIMERS AND INDEMNIFICATION
- A. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE DATA ARE PROVIDED ON AN “AS IS,” “AS AVAILABLE” BASIS. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, CLIENT COMMAND MAKES NO WARRANTY OR GUARANTEE, EXPRESS OR IMPLIED, RELATING TO THE DATA OR LICENSEE’S USE OF THE DATA, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, NON-INFRINGEMENT, AND/OR FITNESS FOR A PARTICULAR PURPOSE.
- B. CLIENT COMMAND SHALL NOT BE LIABLE TO LICENSEE OR ANY THIRD-PARTY CLAIMANT FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, RELIANCE, OR SPECIAL LOSS OR DAMAGES OF ANY KIND INCLUDING BUT NOT LIMITED TO LOST REVENUES, LOST SAVINGS, LOST BUSINESS OPPORTUNITY, OR LOST PROFITS, WHETHER BASED ON A CLAIM OR ACTION OF CONTRACT, WARRANTY, NEGLIGENCE, STRICT LIABILITY, OR OTHER TORT, BREACH OF ANY STATUTORY DUTY, INDEMNITY OR CONTRIBUTION, OR OTHERWISE, EVEN IF CLIENT COMMAND AND/OR ITS SUBSIDIARIES AND AFFILIATES HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
- C. LICENSEE HEREBY INDEMNIFIES AND HOLDS HARMLESS CLIENT COMMAND, ITS EMPLOYEES, AND AGENTS AGAINST ANY AND ALL CLAIMS, ACTIONS, DAMAGES, EXPENSES (INCLUDING REASONABLE ATTORNEYS’ FEES), LOSSES OR LIABILITIES INCURRED BY OR ASSERTED AGAINST CLIENT COMMAND, ITS EMPLOYEES OR AGENTS RELATED TO OR ARISING OUT OF LICENSEE’S RECEIPT, STORAGE, USAGE, TRANSMISSION, OR DISPOSAL OF THE DATA AS DEFINED HEREIN.
- A. Independent Contractors. The Parties are independent contractors with respect to the subject matter of this Agreement, and nothing contained herein shall be construed to create a joint venture, partnership, or agency relationship between them.
- B. Force Majeure. With the exception of obligations to pay, neither Party shall be liable for any default or delay in the performance of its obligations hereunder if and to the extent that such default or delay arises out of causes beyond its reasonable control, including without limitation acts of God, acts of war, acts of terrorism, earthquakes, fires, cable cuts, power outages, catastrophic network element failures, floods, terrorism, riots, civil disorders, rebellions, strikes, lockouts and labor disputes.
- C. Waiver. No term or provision of this Agreement shall be deemed waived and no breach or default shall be deemed excused unless such waiver or consent shall be in writing and signed by the Party claimed to have waived or consented, and no acceptance of non-conforming performance shall be deemed to be a waiver.
- D. Severability. If any provision of this Agreement is held to be invalid or unenforceable, the remainder of the Agreement will remain in full force and effect, and such provision will be deemed to be amended to the minimum extent necessary to render it enforceable.
- E. Assignment. Neither Party may assign its performance under this Agreement to any third party without the express written consent of the other Party.
- F. Notices. Unless otherwise specified, any notice or other communication required or permitted to be given hereunder shall be given in writing and delivered in person, sent by certified mail with the required pre-paid postage and return receipt requested, or delivered by a recognized courier service, shipment charges pre-paid, properly addressed to the individual signing this Agreement on behalf of the applicable party at its address specified in the opening paragraph of the Agreement and shall be deemed effective upon receipt.
- G. Headings. The headings and other captions in this Agreement are for convenience and reference only and shall not affect the interpretation of this Agreement.
- H. Governing Law. This Agreement shall be governed by the laws of the State of Georgia. Each party consents to the exclusive jurisdiction of the state and federal courts sitting in the Northern District of Georgia in any action, suit or proceeding hereunder. Each party specifically waives any right to trial by jury in any court with respect to any claim against the other arising out of or connected in any way to this Agreement.
- I. Counterparts; Electronic Signature. This Agreement may be signed in any number of counterparts with the same effect as if the signature on each such counterpart were upon the same copy and each shall be deemed to be an original signature.
- J. Entire Agreement. This Agreement and the Order Form attached hereto together set forth the entire agreement of the Parties hereto with respect to the transactions contemplated herein. Any and all previous agreements and understandings between or among the parties regarding the subject matter hereof, whether written or oral, are superseded by this Agreement.