1. Definitions
(a) “Confidential Information” shall include the terms and conditions of this Agreement, (whether prior to the commencement date or after the commencement date), any non-public information of the Licensor and its affiliates relating to their respective business activities, financial affairs, technology, marketing or sales plans that is disclosed to, or otherwise learned by or received by, the Licensee whether before or during the Term (defined in Section 8(a) in any form, directly or indirectly, oral or written. Confidential Information of Licensor includes Licensor Intellectual Property (defined in Section 4).
(b) “Data” means all information produced by the Licensor including but not limited to price data, charts, news, analysis.
(c) “Data Service(s)” means the data services identified in a Data Service Schedule including, without limitation, digital information, any text, tables, spreadsheets, databases, and digital images contained in reports, including price reports.
(d) “Data Copies” means actual copies of all or any portion of the Data Service, including backups, updates, merged or partial copies permitted hereunder or subsequently provided by Licensor to Licensee from time to time.
(e)“Data Service Schedule” means a schedule substantially in the format as shown on Exhibit A and executed by both parties.
(f) “Intellectual Property Rights” means trademarks, copyright rights, trade names, domain names, trade secrets, confidential information, data base rights and all other exclusive intellectual property rights registered or unregistered.
(g) “Personal Data” has the meaning given to it in the General Data protection Regulation 2016 which includes any information that allows a person to be identified or identifiable, directly or indirectly in a number of ways including but not limited to, identification by name, email address, telephone number, cultural or social identity, address and date of birth.
(h) “Data Subject” means any person who provides their personal data.
(i) “Licensee Data” means the electronic data or information relating to Licensee’s or its affiliate’s business and submitted by Licensee to the Data Services or to Licensor.
(j) “Users” means (i) employees of Licensee who are authorized by Licensee to use the Data Services and for whom subscriptions to the Data Services have been purchased and (ii) consultants, contractors or agents of Licensee for whom subscriptions to the Data Services have been purchased and for whom user identifications and passwords have been supplied by Licensee (or by Licensor at Licensee’s request), when such Data Services require such user authentication methods.
2. Grant of License
Subject to the terms of this Agreement, Licensor hereby grants to Licensee a non- exclusive and non-transferable limited license to use the Data Service and the Data Copies provided under an applicable Data Service Schedule during the term set forth in the applicable Data Service Schedule solely for Licensee's own internal business purposes and in accordance with this Agreement and any provisions set forth in an applicable Data Service Schedule or, if accessed online, subject to the terms of use published and updated from time to time by Licensor at such URL and applicable to such online access. Licensor reserves the right to improve or modify the Data Services from time to time, including report formats or periods and timing of delivery of any Data Service. Each Data Service Schedule shall be subject to, and shall incorporate by reference, all of the terms and conditions of this Agreement. To the extent any terms or conditions of a Data Service Schedule conflict with the terms and conditions of this Agreement, the terms and conditions of this Agreement shall control, except to the extent that such Data Service Schedule expressly and specifically states an intent to supersede this Agreement on a specific matter.
3. 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 Data Services via Licensee’s points of entry, and notify Licensor promptly of any such unauthorized access or use, (iii) use the Data Services only in accordance with the terms of this Agreement, and all applicable laws and government regulations, (iv) not enter into any agreements relating to prices with competitors based on the Data Services or discuss the Data Services with its competitors.
4. Ownership of Licensor Intellectual Property
(a) Except for the limited license expressly set forth in Section 2 above, nothing in the Agreement or the performance thereof shall convey, license, or otherwise transfer any right, title, or interest in any intellectual property, including the Data Services, or other proprietary rights held by Licensor, to Licensee. Licensor owns and retains title and all proprietary rights to all materials and services owned and/or developed by Licensor whether created prior to, or during, the Term, including but not limited to Data Services, Data Copies, OrbiChem360 (defined below), ideas, analytic models and techniques, operating methods, software tools, analytical tools (including such tools as are made available to Licensee via OrbiChem360), web-based applications, and survey techniques and questionnaires and also any derivatives, improvements, enhancements of such intellectual property conceived, reduced to practice, or developed during the Term (collectively “Licensor Intellectual Property”).
(b) Licensor operates an online interactive business intelligence platform through which subscribers can access data, analytical products and various online tools. As used herein, “OrbiChem360” means such online business intelligence platforms as are operated by Licensor now or in the future. Licensor may provide the Data Service to Licensee by making the Data Service available to Licensee via OrbiChem360. Licensee’s use of OrbiChem360 is subject to the terms of this Agreement. For the avoidance of doubt, when OrbiChem360 is made available to the Licensee pursuant to this Agreement, OrbiChem360 shall be Licensor’s Confidential Information and Licensor Intellectual Property.
5. Limitations on Use
Licensee shall not (a) disclose or allow to be disclosed, the Licensor Intellectual Property or other confidential or proprietary information to which Licensee is provided access pursuant to a Data Service Schedule to any third party other than as expressly permitted hereunder or make the Data Services available to anyone other than Users, (b) sell, resell, rent or lease the Data Services, (c) distribute derivative works, including without limitation, translations, adaptations, arrangements or any other alteration or make copies of the Data Service, except as expressly permitted herein, (d) use the Data Services to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (e) interfere with or disrupt the integrity or performance of the Data Services or third- party data contained therein, or (f) alter, remove or obscure any proprietary legend, copyright or trademark notice contained in or on the Data Service, the Data Copies or any reports or data available therein. Licensee may only disclose Licensor Intellectual Property to third parties for Licensee’s own internal business purposes and with Licensor’s prior written consent, which consent shall be conditioned upon the third party’s agreement to, and execution of, Licensor’s then-current standard third-party access agreement, accompanied by Licensor’s standard license fees. Licensee shall not, without Licensor’s prior written consent, post the Data Service to ftp sites, internet web servers, multiple-office intranets or sent to other users as an e-mail attachment. Licensee shall protect the Data Service from unauthorized use, reproduction, distribution or publication. Any other use of the Data Service, the Data Copies and the Related Materials is strictly forbidden and is a violation hereof. All rights not specifically granted in this Agreement are reserved by Licensor.
6. Fees; Taxes
Licensee shall pay all fees specified in all Data Service Schedules. Unless otherwise set forth in an applicable Data Service Schedule, fees are quoted and payable in United Kingdom sterling, are based on Data Services licensed and not actual usage, and will be invoiced in advance at the start of each calendar year to Licensee for the Data Services. All payment obligations are non-cancellable and any and all fees paid are non- refundable. All fees are due within fifteen (30) days from the invoice date. Licensee shall promptly submit to Licensor any changes in billing and contact information. In the event payment is not received by Licensor on or before the 30th day after the date of the invoice, then Licensor may, in addition to any other remedies available at equity or in law, at its option, elect to do any one or more of the following: (a) charge interest on the outstanding sum from the due date (both before and after any judgment) at 2% per month until paid in full (or, if less, the maximum amount permitted by applicable laws); (b) suspend any further performance hereunder until such invoice is paid in full; and/or (c) terminate this Agreement pursuant to Section 8 and/or (d) Licensor may condition future subscription renewals and Data Service Schedules on payment terms shorter than those specified herein. Licensee shall be responsible for, and shall promptly reimburse Licensor with respect to all sales, use, value-added and other similar taxes and charges, however designated, properly imposed by any governmental body or agency in connection with the transaction contemplated in this Agreement, but not taxes attributable to Licensor’s income.
7. Warranty and Disclaimer of Warranty
Both parties agree they have the right to enter into and to perform obligations under this Agreement.
Licensor represents and warrants that it will perform the Data Services in a professional and workmanlike manner in material compliance with the specifications of an applicable Data Service Schedule.
Licensor excludes warranty, representation or guarantee that the contents of the Licensed Materials are accurate, complete, or void from any defects. The User shall not hold the Licensor liable for any damages, whether directly or indirectly, including damages for loss of business, loss of profits, punitive or consequential damages, damages arising in contract, tort, or from any action taken as a result of reliance on the information contained in the Licensed Materials.
LICENSOR DOES NOT WARRANT THAT THE DATA SERVICE (OR ORBICHEM360) WILL MEET ANY REQUIREMENTS OR NEEDS LICENSEE MAY HAVE, OR THAT THE DATA SERVICE (OR ORBICHEM360) WILL OPERATE ERROR-FREE, OR IN AN UNINTERRUPTED FASHION, OR THAT ANY DEFECTS OR ERRORS IN THE DATA SERVICE (OR ORBICHEM360) WILL BE CORRECTED, OR THAT THE DATA SERVICE (OR ORBICHEM360) IS COMPATIBLE WITH ANY PARTICULAR PLATFORM. THE REPRESENTATIONS AND WARRANTIES SET FORTH IN THIS SECTION 7 ARE THE SOLE AND EXCLUSIVE REPRESENTATIONS AND WARRANTIES MADE BY LICENSOR, AND LICENSOR MAKES NO OTHER REPRESENTATIONS, WARRANTIES OR GUARANTEES OF ANY KIND WHATSOEVER, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE. LICENSOR DOES NOT WARRANT AS TO ANY RESULTS THAT MAY BE OBTAINED FROM LICENSEE’S USE OF THE DATA SERVICE OR ORBICHEM360.
8. Term; Termination
(a) Unless earlier terminated in accordance with this Section 8, this Agreement shall commence on the Effective Date and shall continue for the length of the Subscription Period. Thereafter, this Agreement shall automatically renew for successive 1-year periods (each, a “Renewal Term”) unless either party notifies the other party in writing at least ninety (90) days’ prior to the end of the then-current term of such party’s desire not to renew; provided, however, that as long as any Data Service Schedule is in effect, the terms of this Agreement shall remain in effect in respect of such Data Service Schedule. The Initial Term and any Renewal Term shall be referred to as, the “Term”.
(b) Either party may terminate this Agreement upon written notice to the other party if: (i) the either party is adjudicated bankrupt, files a voluntary petition of bankruptcy, makes an assignment for the benefit of creditors or admits in writing that it is unable to meet its obligations in the normal course of business as they fall due; or (ii) the other party (the “Defaulting Party”) defaults in the performance of any of its obligations under this Agreement or any Data Services Schedule and such default continues for more than thirty (30) days after the Defaulting Party receives written notice thereof from the other Party specifying the nature of the default. Upon expiration or termination of this Agreement or an applicable Data Service Schedule for any reason, Licensee shall destroy or return to Licensor all of the applicable Data Services and all Data Copies and access to OrbiChem360 (and all tools and data available via OrbiChem) will immediately terminate.
(c) The rights and obligations of the parties under Sections 4, 6, 7, 8(c), 10, 11, 12, 13, 14, 15 and 16 shall survive the termination or expiration of this Agreement for any reason.
9. Data Protection
The Licensor agrees to use personal information received from registered Users only for reasons made aware to the User to fulfil business obligations under this Agreement; (ii) to protect its IPR; (iii) to offer the User services of the Licensor Group; (iv) in accordance with its Privacy Policy (available orbichem.com) and; (v) as permitted by law in certain circumstances.
The Licensee is responsible for obtaining the consent of the relevant Data Subjects when transferring Personal Data relating to such Data subjects to the Licensor and to the use of such Personal Data by the Licensor in accordance with this Agreement.
The Licensor has security measures put in place to uphold the protection of all information collected and processed.
10. Confidentiality
The restrictions and obligations set forth in this Agreement shall survive any expiration, termination or cancellation of this Agreement, shall continue beyond the termination of the business relationship between the Parties and shall remain binding on the Parties and the Parties’ successors, employees, representatives, heir and assigns for the longer period of (a) three (3) years or (b) until the Confidential Information which is subject to this Agreement otherwise becomes part of the public domain through lawful means.
Neither party shall, without the prior written consent of the other party, disclose the Confidential Information of the other party to any third party or use the Confidential Information of the other party for any purpose other than the performance of its obligations under this Agreement. Each party will protect the other party's Confidential Information from unauthorized disclosure to third parties, using at least the same standard of care as it uses to maintain the confidentiality of its own Confidential Information of similar type and category. The obligations of confidentiality set forth herein shall not apply to Confidential Information which: (i) is or becomes public knowledge through no breach of this Agreement by the receiving party, (ii) is received by recipient from a third party not under a duty of confidentiality to the disclosing party, or (iii) can be shown by receiving party's contemporaneous written records was already known by the receiving party prior to disclosure by the disclosing party. Confidential Information may be disclosed without breaching this Agreement if such Confidential Information is required to be disclosed by a court or judicial or governmental authority of competent jurisdiction, or by any applicable law, rule or regulation, and in such event, only after the party required to disclose the other party’s Confidential Information provides prompt written notice to that party so as to enable that party to resist any such required disclosure and/or to obtain suitable protection regarding such required disclosure.
11. Audit
Subject to reasonable prior notice, Licensee shall permit Licensor or its designee to conduct an on- site audit of all relevant books, records, information systems, computer networks or data files of Licensee for the purpose of verifying Licensee’s compliance with its obligations hereunder; provided, however, that any such audit shall be at Licensor’s expense. Licensee shall reasonably cooperate with Licensor and its designee, if applicable, in the conduct of such audit.
12. Indemnity
(a) Licensee shall defend, indemnify and hold harmless Licensor, its shareholders, officers, board members, employees, attorneys and agents from all claims or demands made against them (and any related losses, expenses or costs) arising out of or relating to Licensee’s failure to comply with applicable laws, its breach of its obligations hereunder, Licensee’s use of the Data Services, or Licensee’s gross negligence or willful misconduct in connection with this Agreement.
(b) Licensor shall defend Licensee against any and all claims, suits, damages, costs and/or other liabilities (including reasonable attorney’s fees) brought against Licensee by any third party alleging that Licensee’s use of the Data Services, in accordance with the terms and conditions of this Agreement, constitutes a direct infringement or misappropriation of any patent claim, copyright or trade secret right. This obligation of Licensor shall not apply if the alleged infringement or misappropriation results from use of the Data Services in conjunction with any other software, data, or failure to use an update provided by Licensor. This obligation of Licensor also shall not apply if Licensee fails to timely notify Licensor in writing of any such claim. Licensor is permitted to control fully the defense and any settlement of any such claim as long as such settlement shall not include a financial obligation on Licensee. Licensee shall cooperate fully in the defense of such claim and may appear, at its own expense, through counsel reasonably acceptable to Licensor. Licensor expressly reserves the right to cease such defense of any claim(s) in the event the Data Service is no longer alleged to infringe or misappropriate, or is held not to infringe or misappropriate, the third party’s rights. Licensee shall not undertake any action in response to any infringement or misappropriation, or alleged infringement or misappropriation of the Data Service that is prejudicial to Licensor’s rights. THIS SECTION 11 STATES THE ENTIRE LIABILITY OF LICENSOR, AND IS LICENSEE’S SOLE REMEDY, WITH RESPECT TO THE INFRINGEMENT OF MISAPPROPRIATION OF THIRD-PARTY INTELLECTUAL PROPERTY RIGHTS.
13. Limitation on Liability
EXCEPT FOR DAMAGES RESULTING FROM UNAUTHORIZED USE OR DISCLOSURE OF CONFIDENTIAL INFORMATION OR DEATH OR PERSONAL INJURY ARISING FROM EITHER PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY FOR AN AMOUNT OF DAMAGES IN EXCESS OF THE PAID LICENSE FEES FOR THE DATA SERVICE DIRECTLY CAUSING THE DAMAGES, OR BE LIABLE IN ANY AMOUNT FOR SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, ANY AND ALL DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS, BUSINESS INTERRUPTION, OR LOSS OF BUSINESS INFORMATION OR DATA, EVEN IF THE DISCLAIMING PARTY IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. The provisions of this Agreement allocate the risks between Licensor and Licensee. The license fees reflect this allocation of risk and the limitations of liability herein.
14. Force Majeure
Except for payment obligations, neither party shall be liable for any loss, injury, delay, damages or casualty suffered by the other party for failure to perform when prevented from doing so by causes beyond the control of the party seeking excuse hereunder, including but not limited to strikes, governmental action, acts of God or public enemy, or any other cause which is beyond the reasonable control of either party (“Force Majeure Event”). A party seeking excuse hereunder shall promptly notify the other party in writing of the Force Majeure Event and take commercially reasonable steps to mitigate the effect of such delay on the other party. In the event of a Force Majeure Event, the date of delivery or time for completion shall be extended by a period of time reasonably necessary to overcome the effect of such Force Majeure Event.
15. Governing Law and Venue
These terms and conditions shall be interpreted in accordance with the Laws of England and any dispute shall be subject to the exclusive jurisdiction of the English Courts.
16. Miscellaneous
(a) Entire Agreement; Amendments. This Agreement, including the Data Service Schedules and any other attachments executed hereunder and the online terms referenced in Section 4(b) above, constitutes the entire understanding between the parties, and supersedes any contracts, agreements or understandings (oral or written) of the parties, with respect to the subject matter hereof. This Agreement shall supersede the terms of any purchase order, acknowledgement or delivery document issued in respect of this Agreement. No term of this Agreement may be amended except upon written agreement of both parties. Neither the course of conduct between Parties nor trade practice shall act to modify any provision of this Agreement.
Any provisions found to be unenforceable in this Agreement will not preclude the rest of the provisions being held valid in this Agreement.
The Licensor shall not be held liable or responsible for any failure or delay in performing its obligations pursuant to this Agreement caused by bad weather, any act of God, power cut, an act or omission by any public authority or telecommunications company, war, riot or any other circumstances beyond the Licensor’s reasonable control.
(b) Successors and Assigns. The Licensee shall not have the right to assign or otherwise transfer its rights or obligations under this Agreement including, without limitation, by operation of law, merger, acquisition or otherwise.
However, on a single occasion only, in the event that the User desires to assign its rights and obligations, in their entirety, in connection with the sale of all or substantially all of its assets or a merger or acquisition of the User, then the User shall be permitted to make such assignment, upon written consent by the Licensor which shall not be unreasonably withheld.
Such assignment shall also be conditioned on a requirement that the merged entity is not a competitor of the Licensor in its business as a developer and distributor of business-to-business information. Any such prohibited assignment shall be void and of no effect.
In the event that the User sells all or substantially all of its assets to, merges with, or acquires another entity subscribing to the Licensed Materials, the Licensor, at its discretion, will merge the two Agreements and harmonise scopes into a new Agreement to the products for the surviving entity. In this case, future annual payments made for the new Agreement shall not be less than the annual sum of the previous agreements.
This Agreement will be binding upon and inure to the benefit of the parties, their successors and permitted assigns.
(c) Further Assurances. The parties agree to execute, acknowledge and deliver such further instruments and to take all such other incidental acts as may be reasonably necessary or appropriate to carry out the purpose and intent of this Agreement.
(d) No Waiver. Failure by either party to insist upon strict compliance with any term of this Agreement in any one or more instances will not be deemed to be a waiver of its rights to insist upon such strict compliance with respect to any subsequent failure.
(e) Severability. Each of the provisions of this Agreement is severable from all of the other provisions. The invalidity or unenforceability of any provision will not affect or impair the remaining provisions, which will continue in full force and effect.
(f) Independent Contractors. The relationship of the parties is that of independent contractors, and neither party will incur any debts or make any commitments for the other party except to the extent expressly provided in this Agreement. Neither party shall have any authority to assume or create obligations on the other party's behalf, and neither party shall take any action that has the effect of creating the appearance of its having such authority.
(g) No Third Party Beneficiaries. This Agreement shall not confer any rights or remedies upon any person or entity other than the parties named herein and their respective successors and permitted assigns.
(h) Counterparts. This Agreement may be executed in one or more counterparts, each of which will be deemed an original but all of which together will constitute one and the same instrument. Any photocopy, facsimile or electronic reproduction of the executed Agreement shall constitute an original.
(i) Notices. All notices permitted or required hereunder shall be in writing and shall be deemed to have been fully given and received when delivered by hand, transmitted by facsimile (with confirmation), or sent by nationally recognized overnight courier, and properly addressed to the offices of the respective parties at the addresses first set forth above.
