DATA LICENSE AGREEMENT
“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with a Party, where “control” means the ownership of, or the power to vote, forty-nine percent (49%) or more of the voting stock, shares or interests of an entity. Such status as an Affiliate includes entities acquired after the effective date of this Agreement.
“Agreement” means the terms and conditions of this Data License Agreement, together with the Exhibits attached hereto or incorporated herein by reference.
“Application” means the completed application which is attached to, and made a part of, this Agreement by reference;
“Authorized Use” means Employees accessing and using the Data in accordance with this Agreement. Unless specifically agreed to in writing by IBISWorld hereunder, the Data may only be used internally, and no use of the Data outside of Client’s Employees is allowed. The data may not be reproduced, copied or resold in any format. Employees may: (a) share the Data internally among other Employees, and incorporate portions of the Data in their own internal presentations in the normal course of Client’s business, including but not limited to, reproduction and storage of the Data (in whole or in part, in any medium or format) in databases for interrogation, analysis, manipulation, recompilation, report preparation and/or use in internal applications or presentations; and (b) use limited portions of the Content externally when incorporated into Client’s own presentations, provided that such portions are (i) sufficiently limited as to having no independent commercial value and (ii) fully attributed to IBISWorld; and (c) provide and distribute (orally, in writing, electronically through the internet or otherwise) globally to Client’s clients and other third parties’ reports, presentations, analytics, formulas, communications, algorithms and other publications that incorporate, or display portions of the Content in limited amounts, provided that such portions are (i) sufficiently limited as to having no independent commercial value and (ii) fully attributed to IBISWorld. No other external use of the Data, the Content or the Reports is permitted, and any such use is an Unauthorized Use. For the avoidance of doubt, nothing in this section shall be construed as allowing Client to resell the Data, in whole or in part, to anyone.
“Client” means the Licensee which is the organization identified on the attached Application;
“Confidential Information” means all tangible or intangible information and materials, in any form or medium, whether furnished or disclosed by one Party (“Disclosing Party”) to the other (“Receiving Party”), or accessed, observed or otherwise obtained by the Receiving Party from the Disclosing Party pursuant to or in connection with this Agreement, that satisfies at least one of the following criteria: (a) information or materials related to a Party’s trade secrets, customers, business plans, strategies, operations, methods of doing business, records, finances, assets, technology, or any information or materials relating thereto; (b) information or materials designated or identified as confidential by a Party or an Affiliate, prior to or at the time such information or materials are disclosed by the Disclosing Party; (c) information or materials disclosed in any form without an appropriate proprietary stamp, legend or notice, if it would be apparent to a reasonable person that such information or materials are of a confidential or proprietary nature; or (d) any non-public information that relates to a person and that could be used, either directly or indirectly, to identify such person.
“Content” means each element of information, text, statistics, data, material, graphics and software contained in or reproducible from the Data and the IBISWorld Website;
“Damages” means and includes any and all losses, claims, liabilities, costs and expenses (including taxes, fees, fines, penalties, interest, reasonable expenses of investigation, litigation, settlement, judgment and attorneys' fees and disbursements) directly incurred by a Party.
“Data” means the information, text, statistics, material, graphics and software provided through Licensor’s application program interface which are identified on the attached Application, which are provided in XML and/or JSON formats (the “Software”). Data also includes the reports (and data contained therein) which are published by IBISWorld in Word and/or Excel formats, derived from the application program interface and identified on the attached Application (the “Reports”).
“Employee” means an employee of Client, and includes employees of both Client and its Affiliates who are working in, or in support of Client’s business as defined on the attached Application page;
“IBISWorld” means the Licensor which is IBISWorld Inc., 11755 Wilshire Boulevard, Suite 1100, Los Angeles, California 90025
“IBISWorld Invoice” means the periodic billings sent out from IBISWorld to Client in accordance with the terms hereof;
“IBISWorld Website” means the website at the URL www.ibisworld.com and includes all information, text, statistics, data, material, graphics and software contained within that website and its subfolders;
“Intellectual Property Rights” means all trade secrets, patents and patent applications, trademarks, service marks, trade names, business names, internet domain names, copyrights (including rights in computer software), moral rights, database rights, design rights, rights in confidential information, rights in inventions and all other intellectual property and proprietary rights, and any application for the foregoing), and all other equivalent or similar rights which may subsist anywhere in the world.
“License Fee” means the License Fee set out on the Application and/or any applicable IBISWorld Invoice, as may be modified annually subject to clause 3.1 below;
“License Period and Term” means the term whereby access and all related rights attach, as set forth in this Agreement, including any renewals hereof;
“Online User Registration” means the online registration at the IBISWorld Website that enables each Employee to access the Data;
“Party” means either IBISWorld or Client, individually as the context so requires; and “Parties” means IBISWorld and Client, collectively.
“Reports” means the information modules published by IBISWorld as specified on the Application;
“Unauthorized Use” means any use that is not an Authorized Use.
GRANT OF LICENSE
2.1 Scope of License. IBISWorld hereby grants to Client a limited, non-exclusive, world-wide license to access, receive and use the Data solely for the Authorized Use, subject to the terms of this Agreement and Exhibit A. IBISWorld shall make the Data available to Client via the delivery method indicated on Exhibit A.
2.3 Affiliates and Business Units. The Parties may enter into an amendment to this Agreement to expand the Authorized Use to include usage by Employees of Client Affiliates or additional Client business units not already permitted to use the Data. Such amendment may be accomplished by a modified Application, duly executed by both parties. In such event, the rights, privileges, obligations and protections set forth in this Agreement shall apply to such business units or Affiliates, as the case may be, to the same extent as they apply to Client hereunder.
TERM AND TERMINATION
3.1 Term. The term of this Agreement shall be set forth on the Application, commencing as of the Effective Date set forth on the Application, and may be renewed for additional terms by written agreement of the Parties. IBISWorld shall provide to Client no less than sixty (60) days prior to the end of the then-current term a written notice of renewal setting forth the terms applicable to the forthcoming renewal term. In the event written agreement is not reached by the end of the then-current Term, IBISWorld reserves the right, upon prior written notice to Client, to terminate Client’s access to the IBISWorld Website as of the end of the then current Term while negotiations for a renewal term proceed.
3.2 Termination. Client shall have the right to terminate this Agreement effective upon thirty days advance written notice to IBISWorld for any reason. Client acknowledges that the License Fee is fully earned the moment the License Period begins and that on termination, there are no refunds. Either Party may terminate this Agreement, in whole or in part, if the other Party is in breach of any material provision of this Agreement and such other Party has not cured such breach within thirty (30) days following receipt of written notice from the non-breaching Party. The effective date of such termination shall be set forth in the termination notice.
3.3 Cessation of Use. On termination Client must cease using the Data (and all reports, data and other information produced or generated by Client which are based on, derived from or include any of the Data) for any purpose. Notwithstanding the above, Client may retain copies of excerpts of the Content included in Client’s own work during the License Period. Client is authorized to retain and use copies (hard and electronic) of previously accessed and downloaded Reports and Content documents that are already being used by Client, including those incorporated into Client’s own works prior to the date of termination, as well as any reports, data and other information produced or generated by Client which are based on or include any of the Content (i) to support Client’s internal business purposes (ii) which Client is required to maintain pursuant to applicable law, rule or regulation, including but not limited to maintaining records for audit purposes. Upon termination, Client agrees to notify all of its then authorized Employees indicating that (i) the License has been terminated and (ii) except as provided herein, all use of the Data should cease.
3.4 No Prejudice to Other Rights. Termination of the License will not prejudice or otherwise affect any rights and obligations of the Parties expressed in this Agreement to survive termination of the License, nor will it prejudice or otherwise affect any right or remedy one party has against another party in respect of any breach of this Agreement before termination, but will terminate all other rights and obligations of the parties under this Agreement.
Client acknowledges that the License Fee is due to IBISWorld in advance from commencement of the License Period. The Parties agree that Client will make payment within sixty (60) days from receipt of the IBISWorld Invoice, and that terms for all subsequent IBISWorld Invoices will also be sixty (60) days. IBISWorld reserves the right to review and change the License Fee on an annual basis to account for increased production costs, increased Client access and/or government imposed sales taxes. IBISWorld will notify Client of any such increase sixty (60) days prior to expiration of the then current License Period. IBISWorld reserves the right to terminate Client’s access to the IBISWorld Website and/or terminate this License upon ten (10) days prior written notice if an IBISWorld Invoice remains unpaid beyond sixty (60) days.
IBISWorld may invoice Client for sales and use taxes that are legally required to be collected from Client (“Taxes”). IBISWorld shall be solely responsible for the payment of all other taxes, including personal property taxes, franchise taxes, corporate excise or corporate privilege, property or license taxes, all taxes relating to Licensor’s Personnel, and all taxes based on Licensor’s net income or revenues. Except to the extent that any Taxes are expressly stated on the Application to be added to or included in an amount payable, all amounts payable to IBISWorld under this Agreement have been calculated without regard to any Taxes which may be payable in respect of those amounts or the provision of access to or use of the Data and/or the IBISWorld Website.
REPRESENTATIONS AND WARRANTIES
6.1 Authority and Non-Infringement. IBISWorld represents and warrants that (i) the Data and any other materials furnished under this Agreement, and the Approved Use thereof by Employees in accordance with the terms and conditions of this Agreement, will not infringe, misappropriate or violate the known Intellectual Property Rights of any third party.
6.2 Due Care. IBISWorld represents and warrants that the Data will be regularly updated prepared and delivered in a timely and professional manner, by qualified and skilled individuals, and will conform to standards generally accepted in the industry information services industries.
6.3 Warranty. IBISWorld warrants that during the term of this License it will use commercially available anti-virus checking software of the highest generally accepted industry standard, at least equivalent to that used to protect its own software, to scan and check for viruses prior to making the Data available to Client. Notwithstanding the above, IBISWorld makes no representation or warranty concerning (a) the safety or efficacy of the transmission or service providers used by the Client in accessing the Data, (b) the reliability, quality or availability of the Data through the Internet, (c) the absence of viruses or other contaminating or destructive properties in the software used by the Client to access or use the Data and (d) the accuracy and safety of any reference in the Data to a website operated by a third party, including any hyperlink used to gain access to such website.
6.4 Disclaimer. Except for the representations and warranties expressly set forth in this agreement or established by applicable law as rights that cannot be waived or limited by contract, each party disclaims all representations and warranties, including any implied warranty of merchantability or fitness for a particular purpose, accuracy or completeness of the licensed product.
7.1 Duty of Care and Use Restrictions. The Receiving Party will exercise at least the same degree of care with respect to the Disclosing Party’s Confidential Information that the Receiving Party exercises to protect its own Confidential Information; and, at a minimum, the Receiving Party will adopt, maintain and follow security practices and procedures that are sufficient to safeguard the Disclosing Party’s Confidential Information from any (a) unauthorized disclosure, access, use or modification; (b) misappropriation, theft, destruction, or loss; or (c) inability to account for such Confidential Information. Without limiting the generality of the foregoing, the Receiving Party will only use or reproduce the Disclosing Party’s Confidential Information to the extent necessary to enable the Receiving Party to fulfill its obligations or exercise its rights under this Agreement. In addition, the Receiving Party will disclose the Disclosing Party’s Confidential Information only to those of the Receiving Party’s or its Affiliates’ Personnel who have a “need to know” such Confidential Information (and only to the extent necessary) in order to fulfill the purposes contemplated by the Agreement. Neither party will disclose the identity of the other party as a customer or the existence, nature or terms of this Agreement without the prior written consent of the other party. IBISWorld represents and Client acknowledges that the only information IBISWorld requires from Client that could be construed as being Confidential Information under this License is the name and email address that each of its Employees will provide in completing the Online User Registration in order to access the IBISWorld Website. Client agrees to use all commercially reasonable safeguards to ensure that none of its other Confidential Information is provided to IBISWorld pursuant to this License.
7.2 Legends. The Receiving Party will not remove any copyright nor other proprietary notice of confidentiality contained on or included in the Disclosing Party’s Confidential Information, and will reproduce any such notice on any reproduction or modification of such Confidential Information.
7.3 Notification. If the Receiving Party becomes aware of any threatened or actual violation of the provisions of this Section 7, the Receiving Party will immediately notify the Disclosing Party thereof and the Receiving Party will assist the Disclosing Party with its efforts to, cure or remedy such violation. The Receiving Party will be liable to the Disclosing Party for any non-compliance by its agents or contractors to the same extent it would be liable for non-compliance by its employees.
7.4 Exclusions. The obligations of confidentiality assumed under this Agreement shall not apply to information that (a) was rightfully in the possession of the Receiving Party, without confidentiality restrictions, prior to such Party’s receipt pursuant to this Agreement; (b) was rightfully acquired by the Receiving Party from a third party who was entitled to disclose such information, without confidentiality or proprietary restrictions; (c) was independently developed by the Receiving Party without using or referring to the Disclosing Party’s Confidential Information; or (d) is subject to a written agreement pursuant to which the Disclosing Party authorized the Receiving Party to disclose the subject information.
7.5 Legally Required Disclosures. The obligations of confidentiality assumed under this Agreement shall not apply to the extent that the Receiving Party is required to disclose the Disclosing Party’s Confidential Information under any applicable law, regulation or an order from a court, regulatory agency or other governmental authority having competent jurisdiction, provided that the Receiving Party: (a) promptly notifies the Disclosing Party of the order in order to provide the Disclosing Party an opportunity to seek a protective order; (b) provides the Disclosing Party with reasonable cooperation in its efforts to resist the disclosure, upon reasonable request by the Disclosing Party and at the Disclosing Party’s expense; and (c) discloses only the portion of the Disclosing Party’s Confidential Information that is required to be disclosed under such law, regulation or order.
7.6 Returning Confidential Information. Except as otherwise specified in this Agreement, upon the request of the Disclosing Party at any time after the termination of this Agreement, the Receiving Party will return (or, to the extent possible and commercially reasonable, purge its systems and files of) all Confidential Information supplied to, or otherwise obtained by, the Receiving Party in connection with this Agreement. The Receiving Party will certify in writing that it has fully complied with its obligations under this Section within seven (7) business days following the date it receives a request from the Disclosing Party for such a certification.
Client agrees that the Data is and will remain at all times the property of Licensor, and that Client does not have any license or right to use the Data or any trade or service mark displayed in the Data without the express written permission of Licensor. IBISWorld’s intellectual property rights in and to the Data are protected by United States and international copyright, patent and trademark laws, and Client agrees that its Employees are not authorized to reproduce, copy, republish, upload to a third party or distribute the Data, in whole or in part, except in accordance with this Agreement.
LIMITATIONS OF LIABILITY
Except for each party’s indemnification obligations set out in section 10 below, and each party’s duty of care to protect the other party’s Confidential Information set out in section 7 above, neither party shall be liable to the other party for direct damages in excess of the fees paid or otherwise payable by Client to IBISWorld during the twelve-month period immediately preceding the date on which such liability first accrued. Neither party will be liable to the other party (or to any person or entity claiming through the other party) for lost profits or for special, incidental, indirect, consequential or exemplary damages arising out of or in any manner connected with this agreement or the subject matter hereof, regardless of the form of action and whether or not such party has been informed of, or otherwise might have anticipated, the possibility of such damages.
10.1 IBISWorld agrees, at its own expense, with counsel of its own choosing, to indemnify, hold harmless and defend Client and its Affiliates and each of their respective members, partners, principals, officers, directors, employees, personnel, agents, successors, and assigns (collectively, “Client Indemnitees”), from any and all Damages which may be imposed on any of the Client Indemnitees arising from or in connection with any third party claims of infringement or misappropriation by IBISWorld of any copyright, patent, trade secret, contract or other intellectual property, proprietary, or personal rights of any third party, occurring or alleged to have occurred in connection with the Data. Licensor’s indemnity obligations set forth in this paragraph shall not include legal fees and/or costs which Client or any of the Client Indemnitees might voluntarily incur in the course of participating in the defense of any such claim, except to the extent that any such legal fees or costs are specifically requested by Licensor.
10.2 The foregoing indemnity in Section 10.1 is contingent upon the claim arising from an Authorized Use of the Data and Client (i) not being in material breach of this Agreement (provided that such material breach has been duly noticed to Client and a reasonable amount of time has elapsed without Client correcting the material breach), (ii) discontinuing use of the disputed Data upon receipt of notice from IBISWorld to do so, (iii) promptly notifying IBISWorld about the claim (provided, however, that IBISWorld shall not be relieved of its indemnification obligations hereunder as a result of Client’s failure to so notify IBISWorld, unless IBISWorld is materially prejudiced thereby) and (iv) reasonably cooperating with IBISWorld in its investigation and defense of the claim at Licensor’s expense. At all times IBISWorld will retain the exclusive authority to litigate compromise and/or settle the claim as it deems to be in its best interests, provided that any settlement or compromise contains a complete and unconditional release of Client.
10.3 Client agrees, at its own expense, with counsel of its own choosing, to indemnify, hold harmless and defend IBISWorld and its members, partners, principals, officers, directors, employees, personnel, agents, successors and assigns (collectively, “IBISWorld Indemnitees”), from any and all Damages which may be imposed on any of the IBISWorld Indemnitees arising from or in connection with any third party claims arising out of or relating to a breach of Client’s obligations to protect against Unauthorized Use of the Data. Client’s indemnity obligations set forth in this paragraph shall not include legal fees and/or costs which IBISWorld or any of the IBISWorld Indemnitees might voluntarily incur in the course of participating in the defense of any such claim, except to the extent that any such legal fees or costs are specifically requested by Client. At all times Client will retain the exclusive authority to litigate compromise and/or settle the claim as it deems to be in its best interests, provided that any settlement or compromise contains a complete and unconditional release of Licensor.
10.4 The foregoing indemnity in Section 10.3 is contingent upon IBISWorld(i) taking reasonable actions to minimize its Losses; (ii) promptly notifying Client about the claim (provided, however, that Client shall not be relieved of its indemnification obligations hereunder as a result of Licensor’s failure to so notify Client, unless Client is materially prejudiced thereby) and (iii) reasonably cooperating with Client in its investigation and defense of the claim at Client’s expense.
IBISWorld will use its best efforts to ensure that the Data is current and that the IBISWorld Website is available for access by Employees 24/7, 365 days of the year, 99.5 % of the time (the “Uptime”). Notwithstanding this warranty for Uptime, IBISWorld will not be responsible for temporary interruptions in access to the IBISWorld Website caused by matters beyond Licensor’s reasonable control such as force majeure events, or routine maintenance and upgrades to the IBISWorld Website, provided that such maintenance is noticed to Client in advance and is accomplished as expeditiously as possible.
12.1 This Agreement is governed by the laws of the State of Delaware, with venue in any state or federal court in the State of Delaware.
12.2 Neither Party may assign its rights under this Agreement without first obtaining the written consent of the other Party, which consent will not be unreasonably withheld.
12.3 If any provision of this Agreement is void, voidable, unenforceable, illegal, prohibited or otherwise invalid in a particular jurisdiction, in that jurisdiction the provision must be read down to the extent it can be to save it, but if it cannot be saved by reading down, words must be severed from the provision to the extent they can be to save it, but if that also fails to save it the whole provision must be severed. Severing of a particular provision will not invalidate the remaining provisions nor affect the validity or enforceability of that provision in any other jurisdiction where it is not invalid.
12.4 Either Party may send a notice to the other Party in connection with this Agreement by hand delivery, pre-paid post, facsimile transmission or email to the other Party at the address details set out on the Application or in such other way as the other Party may have last notified the sending Party in writing. A notice so sent is deemed to be received, if sent by pre-paid post, on the tenth business day after the date of posting or, if sent by facsimile transmission or email, on the next business day after the date the facsimile or email was sent.
12.5 Any violation by Client, its employees or agents of the covenants of this Agreement would result in damage to IBISWorld that is largely intangible but nevertheless real, and that is incapable of complete remedy by an award of damages. Accordingly, any proven violation of the terms of this Agreement shall give IBISWorld the right to seek a court ordered injunction or other appropriate order to specifically enforce the provisions of this Agreement. In addition to any other relief to which IBISWorld may be entitled, the losing Party in any such action agrees to pay the prevailing Party’s reasonable expenses, including, but not limited to attorneys’ fees and litigation costs, incurred in obtaining or defending such specific enforcement.
12.6 This License shall not confer any rights or remedies upon any person other than the parties and their respective successors and permitted assigns.
12.7 All clauses set forth in this Agreement that could reasonably be construed as surviving the termination of the License shall survive termination of the License.
12.8 Except as otherwise expressly provided in this Agreement, all remedies in this Agreement are cumulative and in addition to (not in lieu of) any other remedies available to a Party at law or in equity.
12.9 No course of dealing, failure by either Party to require the strict performance of any obligation assumed by the other hereunder, or failure by either Party to exercise any right or remedy to which it is entitled, shall constitute a waiver of the obligations or rights provided under this Agreement. No provision of this Agreement shall be deemed to have been waived by any act or knowledge of either Party, but may only be waived by a written instrument signed by a duly authorized representative of the Party to be bound thereby. Waiver by either Party of any default shall not constitute a waiver of any other or subsequent default.
12.10 A Party will be excused from a delay in performing, or a failure to perform, its obligations under this Agreement to the extent such delay or failure is caused by the occurrence of any contingency beyond the reasonable control, and without any fault, of such Party.
12.11 The provisions of this Agreement may hereafter be modified only by a written instrument that is physically executed by a duly authorized representative of each Party.
12.12 The headings used herein are for convenience only and shall not be deemed to constitute a part hereof or to limit, characterize, or in any way affect the interpretation of the provisions of this Agreement. This Agreement (together with the Exhibits incorporated by reference herein) constitutes the complete understanding of the Parties, and supersedes all prior agreements, discussions, negotiations, promises, proposals, representations, and understandings (whether written or oral) between the Parties, with regard to the subject matter hereof.
12.13 This Agreement may be executed in counterparts, each of which shall be deemed to be an original.