Subscription Services Agreement
SUBSCRIPTION SERVICES AGREEMENT
Standard Terms and Conditions
A. Market Metrix, a Clarabridge Company, LLC, a Delaware limited liability company having its principal place of business at 125 E Sir Francis Drake Blvd, Suite 300, Larkspur, CA 94939 (“Market Metrix”) provides web-based data and consulting services utilizing proprietary internal technologies, algorithms and systems, which services are useful for the collection and analysis of consumer sentiment and reporting and routing such information to appropriate stakeholders within an organization to enable responsive action. Market Metrix also provides market data and other proprietary data and content (collectively, “Metrix Content”).
B. Market Metrix and the entity identified on a mutually executed Order Form as “Customer” desire to establish a business relationship, whereby Market Metrix will provide services to Customer that may include access to certain of its web-based proprietary systems for the collection, analysis and reporting of various data selected by Customer pertinent to Customer’s business.
TERMS OF AGREEMENT
This document, entitled “Subscription Services Agreement – Standard Terms and Conditions” (the “Standard Terms and Conditions”) together with each mutually executed and delivered Order Form and/or Statement of Work contain certain terms and conditions of agreement (collectively, the “Agreement”) between Market Metrix and Customer. Each of Market Metrix and Customer may be referenced throughout this Agreement as a “Party.” Capitalized words and phrases used in these Standard Terms and Conditions, if not otherwise defined in context, will have the meanings set forth in the Glossary of Defined Words and Phrases set forth in Section 13 below.
This Agreement shall become effective as of the date when authorized representatives of both Parties have executed an Order Form referencing these Standard Terms and Conditions (the “Effective Date”). If those authorized representatives execute such Order Form on different dates, the Effective Date shall be the latter date, or the date as of which Market Metrix first provides services under this Agreement, whichever first occurs. These Standard Terms and Conditions shall be interpreted solely in the context of such Order Form and shall not bind either party unless and until an Order Form is executed by the parties, at which time these Standard Terms and Conditions shall be automatically incorporated by reference into, and made a part of, that Order Form. In no event, however, shall this Agreement be construed as obligating the Company or Customer to enter into any particular Order Form with the other.
1. ORDER FORMS.
Subject to the terms and conditions of this Agreement, Market Metrix agrees to sell, and Customer agrees to purchase, the Access Rights for Subscription Services that are identified in each mutually executed Order Form. Each Order Form shall be binding upon the Parties only after mutual execution, and each mutually executed Order Form shall be considered an integral part of this Agreement. In the event of any conflict between the provisions of this Agreement and the terms of any Order Form or any Statement of Work, the provisions of this Agreement shall supersede and govern, followed in precedence by the Order Form and then the Statement of Work, unless, in each case, the Order Form or Statement of Work, as the case may be, both (i) expressly states that the Parties mutually intend that the Order Form or Statement of Work should govern in that instance and (ii) expressly identifies the provision(s) of this Agreement to be superseded. No pre-printed or “boilerplate” provisions of any purchase order or other document provided by Customer with or as part of any Order Form or Statement of Work shall be binding upon Market Metrix.
2. USE OF SUBSCRIPTION SERVICES.
2.1 Right to Use Subscription Services.
(a) For so long as this Agreement remains in effect, Market Metrix agrees to provide access to Subscription Services within the scope of the Access Rights purchased by Customer pursuant to a mutually executed Order Form. Customer acknowledges that the Access Rights purchased under this Agreement may be used only by Customer’s Authorized End Users for Customer’s internal business purposes, and only during the Access Term for which the particular Access Rights have been purchased, as stated in the applicable Order Form.
(b) Customer acknowledges (i) that it is responsible for procuring and operating all computer systems, software, and telecommunications services required to meet the minimum technical specifications necessary for Customer’s Authorized End Users to access and use the Subscription Services, and Customer may be unable to access or utilize some or all aspects of the Subscription Services unless such minimum technical specifications are met, and (ii) this Agreement allows only for the purchase of certain rights of access for Customer’s Authorized End Users to the Subscription Services pursuant to an Order Form, and nothing in this Agreement may be interpreted as an implied license or to require Market Metrix to deliver a copy of any software or other product utilized by Market Metrix to provide the Subscription Services.
2.2 Authorized End Users. Customer shall be fully responsible for compliance with this Agreement by, as well as the acts and omissions of, all users who access the Subscription Services under its Authorized End User login credentials, to the full extent as if such end users are Customer’s employees or agents acting on Customer’s behalf within the scope of their duties. Customer shall not authorize access to or permit use of the Subscription Services or Documentation by persons other than Authorized End Users. Market Metrix will issue to Customer the number of unique sets of login credentials (each consisting of a user name and password) set forth on the applicable Order Form for the Subscription Services and, unless otherwise approved in writing by Market Metrix in its sole discretion, Customer will ensure that no more than one Authorized End User will have access to or will use each set of login credentials. Market Metrix may, at any time and without any liability to Customer, suspend and/or terminate any end user’s access to the Subscription Services in the event Market Metrix reasonably believes that such end user has violated any provision of this Agreement.
2.3 Documentation License. Subject to the terms and conditions of the Agreement, Market Metrix hereby grants to Customer a non-exclusive, non-transferable, non-sublicenseable right and license during the Term to reproduce copies of the Documentation solely for use by Customer in connection with the exercise of rights granted in this Agreement. Customer acknowledges that no right is granted to distribute, publish, modify, adapt, translate or create derivative works of the Documentation. Customer acknowledges that the Documentation is Market Metrix’s Confidential Information, and hereby agrees to accurately reproduce all proprietary notices, including any copyright notices, trademark notices or confidentiality notices, that are contained within the Subscription Services or any copies of the Documentation.
3. RESERVATION OF RIGHTS AND RESTRICTIONS.
3.1 Proprietary Rights; No Implied Licenses. Customer acknowledges that, as between the Parties, Market Metrix owns all Intellectual Property Rights and other proprietary interests that are embodied in, or practiced by, the Subscription Services, the Metrix Content, the Deliverables (as defined below) and the Documentation. To be clear, however, the preceding sentence does not constitute a representation or warranty regarding ownership of any intellectual property rights or other proprietary interests. Without limiting the generality of the foregoing, Market Metrix retains ownership of all algorithms and the resultant calculations utilized in analyzing Customer Data. Except to the extent that the same constitutes or embodies Customer’s Confidential Information, ownership of all work product, developments, inventions, technology or materials provided under any Statement of Work (collectively, the “Deliverables”) shall be solely owned by Market Metrix. Market Metrix hereby grants to Customer a non-exclusive, right and license during the term of this Agreement to use the Deliverables solely for its internal business purposes. There are no licenses granted by implication under this Agreement and Market Metrix reserves all rights that are not expressly granted.
3.2 Customer Content. Market Metrix acknowledges that, as between the Parties, Customer owns all Customer Content, including all reports, statistics, and other data to the extent generated solely from the Customer Content, whether such data is provided by Customer or obtained by Market Metrix from Customer’s agents or customers during the performance of the Services; provided, however, that during the Term, Customer grants to Market Metrix a world-wide, non-exclusive, royalty-free license to aggregate or compile the Customer Content with other data, including the customer data of other Subscription Services customers and data obtained from third parties, so long as such aggregation or compilation omits any data that would enable (i) the identification of Customer, Customer’s customers, any individual, any company or any organization, or (ii) the attribution of Customer or Customer’s customers as the source of such data (the “Compiled Benchmark Data”). Market Metrix shall have a worldwide, perpetual, royalty-free license to use, modify, distribute and create derivative works based on such Compiled Benchmark Data, including all reports, statistics, analyses or benchmarks created or derived therefrom.
3.3 General Restrictions on Use. Customer agrees not to act outside the scope of the rights that are expressly granted by Market Metrix in this Agreement. Customer will not (a) make the Services available to anyone other than Customer and its Authorized End Users; (b) sell, resell, license, sublicense, rent, lease or distribute any Services or Reports, or include any Services or Reports or any derivative works thereof in a service bureau or outsourcing offering; (c) copy, modify or make derivative works based upon the Subscription Services, including any products using similar ideas, features, functions or graphics of the Services; (d) “frame” or “mirror” any Reports contained in, or accessible from, the Subscription Services on any other website, server, wireless or Internet-based device; or (e) decompile, disassemble, reverse engineer the Services or otherwise attempt to obtain or perceive the source code from which any software component underlying the Subscription Services is compiled or interpreted, and Customer hereby acknowledges that nothing in this Agreement shall be construed to grant Customer any right to obtain or use such source code. Customer agrees to use the Subscription Services only for lawful purposes and in compliance with all applicable laws, rules and regulations issued by governing authorities. Customer acknowledges and agrees that compliance with this paragraph is an essential basis of this Agreement. Customer agrees to reimburse Clarabridge for attorneys’ fees and court costs incurred in connection with any lawsuit brought by Clarabridge in which a court or arbitrator finds that Customer or its Authorized End Users have breached any provisions of this paragraph.
4. TREATMENT OF CONTENT.
4.1 Rights in Customer Content.
(a) Customer hereby grants to Market Metrix (i) a non-exclusive license to use, store, process, analyze and display in Reports all Customer Content during the Contract Period for the limited purposes of performing Market Metrix’s obligations under this Agreement; and (ii) the right to use data regarding Customer’s use of the Subscription Services to provide feedback to Customer on such use and to assist Market Metrix in the further development, maintenance and provision of Market Metrix products and services. Further, without conveying any right, title or interest, the Parties agree that Market Metrix may make accurate informational references to Customer’s trade names, trademarks or service marks (collectively, the “Marks”) in connection with its performance of the Services, including, without limitation, references in promotional materials, notices, and advertisements, subject to the condition that Market Metrix shall promptly cease any use of any Mark owned by Customer in connection with its performance of the Services upon (i) termination of this Agreement; or (ii) receipt of notice from the Customer to discontinue such use. In the event that Market Metrix makes reference to any Mark that is inaccurate, or otherwise incorrect, then Customer may notify Market Metrix of the necessary correction(s), and Market Metrix shall implement such correction(s) as soon as is reasonably practicable.
(b) Customer acknowledges that: (i) Customer Content may be subject to Intellectual Property Rights or other rights that are owned or controlled by third parties or legal restrictions and regulations, such as privacy or obscenity laws; and (ii) except for such rights as are granted by Customer pursuant to Section 4.1(a), Market Metrix does not own any Intellectual Property Rights or other rights or licenses in or to the Customer Content. Prior to uploading Customer Content to the Subscription Services or using the Subscription Services to collect Customer Content, Customer shall, at its own expense, obtain all licenses, consents and/or other permissions from appropriate third parties as may be necessary for Customer’s use of the relevant Customer Content as necessary to enable Customer to grant the rights granted by this Section 4.1.
4.2. Content Disclaimers.
(a) Market Metrix shall have no obligation to preview, verify, flag, modify, filter or remove any Customer Content (although Market Metrix may do so in at its sole discretion), and Market Metrix shall not be responsible for any failure to remove, or for any delay in removing, harmful, inaccurate, unlawful or otherwise objectionable Customer Content.
(b) Market Metrix does not provide any warranty or support under this Agreement for any non-Market Metrix products or services.
4.3. Third Party Websites. Market Metrix shall have the right to include in any Market Metrix survey provided to any Customer a request seeking authorization for Market Metrix to share the information submitted by such customer with the operators of third-party websites (such as yahoo.com, expedia.com, tripadvisor.com, and kayak.com) for use by and publication of such information on such websites. It shall be solely the customer’s choice whether to allow such third-party sharing. If the survey respondent agrees to allow such sharing, Market Metrix shall not be deemed to be in violation of its obligations under Section 7 (Confidentiality) by virtue of disclosing such information to such third-party websites.
5. PROFESSIONAL SERVICES; STATEMENTS OF WORK. Subject to the terms and conditions of this Agreement, Customer may request that Market Metrix provide certain Professional Services related to Customer’s use of the Subscription Services, including, by way of example, configuration of the Subscription Services, training of Customer personnel regarding use of the Subscription Services and/or provision of technical support related to the Subscription Services. Upon Customer’s request, Market Metrix shall negotiate in good faith regarding terms and conditions according to which such services would be provided. Any Professional Services to be provided will be included in an Order Form, which shall describe the fees, costs and expenses payable by the Customer in connection with the performance of such Professional Services, and a Statement of Work, which shall describe the scope and proposed timing of such Professional Services. Each Order Form and Statement of Work shall be binding upon the Parties only after mutual execution, and Market Metrix shall be under no obligation to perform the proposed Professional Services until an Order Form and Statement of Work in relation thereto has been mutually executed. Each mutually executed Order Form and Statement of Work shall be considered an integral part of this Agreement.
6. FEES; PAYMENT.
6.1 Fees Payable. In consideration for the rights granted and the promises made by Market Metrix under this Agreement, Customer agrees to pay to Market Metrix the amounts stated in each mutually executed Order Form at such times as the applicable Order Form requires. Customer agrees to make all payments, without offsets or other deductions, no later than the date when they are due.
6.2 Additional Charges for Late Payments. If Customer fails to make any undisputed payment when due, Market Metrix will have the right, without prejudice to any other remedies it may have, to charge an additional fee equal to one-and-one-half percent (1.5%) of the overdue amount for each full or partial month that the amount remains unpaid. If Market Metrix elects to charge these additional amounts, Customer agrees to pay the charges in full within thirty (30) days after Market Metrix issues an invoice.
6.3 Suspension of Service Level Credits and Access Rights. Customer’s right to receive the Service Level credits set forth in Section 8.2 is conditioned upon Customer’s timely payment of all amounts due hereunder. In the event that Customer’s account is more than thirty (30) days overdue, Market Metrix shall have the right in its sole discretion, in addition to its remedies under this Agreement or pursuant to applicable law, to disqualify Customer from receipt of Service Level Credits as well as suspend Customer’s access to the Subscription Services, without further notice to Customer, until Customer has paid the full balance owed, plus any interest due in accordance with Section 6.2.
6.4 Tax Responsibilities. Unless otherwise stated, Market Metrix’s 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”). Customer is responsible for paying all Taxes associated with its purchases hereunder. If Market Metrix has the legal obligation to pay or collect Taxes for which Customer is responsible under this paragraph, the appropriate amount shall be invoiced to and paid by Customer, unless Customer provides Market Metrix with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, Market Metrix is solely responsible for taxes assessable against it based on its income, property and employees.
7.1 Basic duties regarding Confidential Information.
(a) With regard to information that one Party discloses to the other, the disclosing Party is the “Owner,” and with regard to information it receives from the other, the receiving party is the “Recipient.” The Recipient agrees not to disclose or permit access to the Owner’s Confidential Information, except to the Recipient’s employees and agents who are informed of the confidential nature of the Confidential Information and who have agreed in writing or who are otherwise legally bound to treat the Owner’s Confidential Information in a manner consistent with Recipient’s duties under this Agreement. The Recipient will not use the Owner’s Confidential Information except (i) as necessary to perform the Recipient’s duties under this Agreement; and (ii) in any other manner that this Agreement expressly authorizes. Even after termination or expiration of this Agreement, the Recipient will continue to treat Confidential Information received from the other Party in accordance with this Agreement, for so long as the information fits the definition of “Confidential Information,” or until use and disclosure of the information would no longer be restricted even if this Agreement remained in full force, up to a maximum a three (3) years following termination or expiration of this Agreement.
(b) The Recipient’s duties under this section will apply only to information which is marked to clearly identify it as the Owner’s Confidential Information, or, if disclosed orally, which is identified as Confidential Information both at the time of disclosure and again in a writing delivered by the Owner within a reasonable time. The Documentation and all non-public aspects of the Subscription Services shall in any event be considered Market Metrix’s Confidential Information and the Customer Content shall in any event be considered Customer’s Confidential Information.
7.2 Exceptions to confidentiality obligations. Even if some information would be considered Confidential Information according to the definition stated in this Agreement, the Recipient will have no duties regarding that information if (i) the Recipient develops the same information without any use of information obtained from the Owner; or (ii) the Recipient rightfully obtains the information from some third party, without restrictions on use and disclosure, but only if the Recipient has no knowledge that the third party’s provision of that information is wrongful; or (iii) the information is made available to the general public without any direct or indirect fault of the Recipient.
7.3 Compliance with legal duties. The Recipient will not be in breach of this Agreement by delivering some or all of the Owner’s Confidential Information to a court, to law enforcement officials, and/or to governmental agencies, but only if it limits the disclosure to the minimum amount that will comply with applicable law (such as in response to a subpoena) or that is necessary to enforce its legal rights against the Owner. Unless prevented by law, the Recipient agrees to notify the Owner as far in advance as reasonably possible before the Recipient delivers the Owner’s Confidential Information to any of those third parties. If requested by the Owner, and if permitted by law, the Recipient will cooperate with the Owner, at the Owner’s expense, in seeking to limit or eliminate legal requirements that compel disclosure, or in seeking confidential treatment by the applicable court, law enforcement officials and/or governmental agencies.
7.4 Security. Market Metrix shall make good faith commercially reasonable efforts to undertake and maintain reasonable and industry standard security measures to protect the security, confidentiality and integrity of all Customer Data and other proprietary information transmitted through or stored on Market Metrix’s server, including, without limitation: (i) maintenance of the Customer Data; and (ii) Firewall protection from network attack and other malicious harmful or disabling data, work, code or program. For purposes of this Agreement “Firewall” shall mean the protection provided through the process of blocking off external ports on servers to prevent malicious attacks.
7.5 Attorneys and accountants. The Recipient may permit its attorneys and accountants to view the Owner’s Confidential Information, provided that they are under legal and/or professional duties to maintain the information’s confidentiality, and only for purposes of advising the Recipient regarding its legal rights and duties.
8. REPRESENTATIONS AND WARRANTIES.
8.1 Mutual Representations. Each Party represents and warrants (i) that it is duly organized, validly existing and in good standing under the laws of its jurisdiction of incorporation or organization; (ii) that the execution and performance of this Agreement will not conflict with or violate any provision of any law having applicability to such Party; and (iii) that this Agreement, when executed and delivered, will constitute a valid and binding obligation of such Party and will be enforceable against such Party in accordance with its terms.
8.2 Service Warranty. During the Term, Market Metrix represents and warrants that (i) the Subscription Service offerings will be available to users for normal use 98.00% of the time each month, not including Scheduled Downtime, and shall perform materially in accordance with the Documentation, (ii) this Agreement, the Order Forms and Statements of Work issued under this Agreement and the Documentation accurately describe the applicable administrative, physical and technical safeguards for protection of the security, confidentiality and integrity of your Confidential Information and data, (iii) Market Metrix will not materially decrease the overall security of the Subscription Services during any Access Term. The respective Subscription Service’s system logs and other records shall be used for calculating any service level events. Market Metrix represents and warrants that all Professional Services shall be provided in a professional and workmanlike manner, in accordance with industry standards. For any breach of the representations or warranties in Section 8.2(i) above, Customer’s sole and exclusive remedy shall be entitlement to a credit equal to five 5% of the recurring monthly fee for the Subscription Services which were the subject of such breach for the month of the failure.
8.3 Customer Representations and Warranties. Customer represents and warrants that it will not, nor will it permit or authorize anyone else to (i) upload, post, store, view, transmit, distribute or otherwise publish any Customer Content that (a) restricts or inhibits any other person from using and enjoying the Subscription Services, (b) is unlawful, fraudulent, threatening, harassing, abusive, libelous, defamatory, obscene, vulgar, offensive, pornographic, profane, sexually explicit, invasive of another’s privacy, hateful, indecent, or otherwise tortious, (c) constitutes or encourages conduct that would constitute a criminal offense, give rise to civil liability or otherwise violate any applicable local, state, national or international law, (d) violates or infringes the rights of third parties, including, but not limited to, Intellectual Property Rights, rights of privacy or publicity or any other proprietary rights, (e) contains any viruses, Trojan horses, worms, time bombs, cancelbots, or other harmful components that are intended to damage, detrimentally interfere with, surreptitiously intercept or misappropriate any system, data or personal information, or (f) would harm minors in any way; (ii) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (iii) use the Services to transmit or store any personally-identifiable information such as: (a) Social Security number; (b) driver’s license number or state-issued identification card number; or (c) financial account number, or credit or debit card number, with or without any required security code, access code, personal identification number or password, that would permit access to a resident’s financial account; (iv) interfere with or disrupt the integrity or performance of the Services or the data contained therein; or (v) attempt to gain unauthorized access to the Services or their related systems or networks.
8.4 Disclaimers. EXCEPT AS OTHERWISE EXPRESSLY REPRESENTED OR WARRANTED IN THIS AGREEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SUBSCRIPTION SERVICES, PROFESSIONAL SERVICES, THE DOCUMENTATION, AND ANY OTHER PRODUCTS OR SERVICES PROVIDED BY MARKET METRIX ARE PROVIDED “AS IS,” AND MARKET METRIX DISCLAIMS ANY AND ALL OTHER PROMISES, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, NON-INTERFERENCE, SYSTEM INTEGRATION AND/OR DATA ACCURACY. MARKET METRIX DOES NOT WARRANT THAT THE SUBSCRIPTION SERVICES OR ANY OTHER PRODUCTS OR SERVICES PROVIDED BY MARKET METRIX WILL MEET CUSTOMER’S REQUIREMENTS OR THAT THE OPERATION OF THE SUBSCRIPTION SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ALL ERRORS WILL BE CORRECTED. NO WARRANTY IS MADE ON THE BASIS OF COURSE OF PERFORMANCE, COURSE OF DEALING, OR TRADE USAGE.
9.1 Indemnification of Customer.
(a) Market Metrix agrees to defend or settle any claim brought against Customer by any third party arising from (i) Market Metrix’s gross negligence or wilful misconduct, or (ii) allegations that Customer’s use of the Subscription Services as authorized in this Agreement infringes such third party’s U.S. patents issued as of the Effective Date, or alleging that such use infringes or misappropriates, as applicable, such third party’s copyrights or trade secret rights under applicable laws. Market Metrix shall pay all amounts that are finally awarded against Customer based on any such claims by a court of competent jurisdiction or any amounts that Market Metrix has agreed to pay in settlement of the relevant third-party claim.
(b) If a claim under Section 9.1(a)(ii) above is made or appears possible, Customer agrees to permit Market Metrix, at Market Metrix’s sole discretion, to: (i) enable Customer to continue to use the Subscription Services, as applicable; (ii) to modify or replace any such infringing material to make it non-infringing; or (iii) require Customer to cease use of, and, if applicable, return, such materials as are the subject of the infringement claim, and in the case of this clause (iii), Market Metrix shall in connection with such requirement refund the pro rata portion of any unearned fees attributable to the materials or portion of the Subscription Services with regard to which the use is discontinued.
(c) Section 9.1(a)(ii) shall not apply if the alleged infringement, violation or misappropriation arises, in whole or in part, from: (i) modification of any Market Metrix product or services; (ii) combination, operation or use of any Market Metrix products or service with other software, hardware or technology not provided by Market Metrix or explicitly authorized by the Documentation; (iii) the collection, use, storage, sharing or distribution of the Customer Content; and/or (iv) use of the Subscription Services other than in accordance with the Documentation (collectively, “Customer’s Assumed Risks”).
(d) THE PROVISIONS OF THIS SECTION 9 SET FORTH MARKET METRIX’S SOLE AND EXCLUSIVE OBLIGATIONS, AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDIES, WITH RESPECT TO INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS OF ANY KIND.
9.2 Customer’s Indemnity Obligations. Customer agrees to defend or settle any claim brought against Market Metrix by any third party arising from (i) Customer’s gross negligence or willful misconduct; (ii) allegations that the Customer Content, or Customer’s use of the Subscription Services in breach of this Agreement or pursuant to Customer’s Assumed Risks, infringes or misappropriates such third party’s Intellectual Property Rights or other proprietary rights including rights of privacy and rights of publicity, or violates applicable laws; or (iii) Customer’s Assumed Risks. Customer shall pay all amounts that are finally awarded against Market Metrix based on any such claims by a court of competent jurisdiction or any amounts that Customer has agreed to pay in settlement of the relevant third-party claim.
9.3 Indemnification Procedures. With respect to any claim, demand or action for which an indemnity is provided under this section, the party to be indemnified (the “Indemnified Party”) shall: (i) give prompt written notice to the indemnifying party (the “Indemnifying Party”) of the claim, demand or action for which an indemnity is sought (provided, however, that failure of Indemnified Party to provide such notice will not release the Indemnifying Party from any of its indemnity obligations except to the extent that the Indemnifying Party’s ability to defend such claim is prejudiced thereby), (ii) reasonably cooperate in the defense or settlement of any such claim, demand or action, at the expense of the Indemnifying Party; and (iii) give the Indemnifying Party sole control over the defense or settlement of any such claim; provided, however, the Indemnifying Party shall not enter into any settlement without the Indemnified Party’s express consent that (1) assigns, imparts or imputes fault or responsibility to the Indemnified Party or its affiliates, (2) includes a consent to an injunction or similar relief binding upon the Indemnified Party or its affiliates, (3) fails to contain reasonable confidentiality obligations protecting the confidentiality of the settlement, or (4) provides for relief other than monetary damages that the Indemnifying Party solely bears.
10. EXCLUSIONS AND LIMITATIONS OF LIABILITY.
10.1 Exclusions of Remedies; Limitation of Liability. IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, REGARDLESS OF THE NATURE OF THE CLAIM, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, COSTS OF DELAY, ANY FAILURE OF DELIVERY, BUSINESS INTERRUPTION, COSTS OF LOST OR DAMAGED DATA OR DOCUMENTATION, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS EXCLUSION OF CERTAIN DAMAGES AND CLAIMS IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE. EXCLUDING CUSTOMER’S OBLIGATION TO PAY FEES WHEN DUE UNDER ANY ORDER FORM AND EITHER PARTY’S LIABILITY FOR GROSS NEGLIGENCE OR WILFUL MISCONDUCT, THE CUMULATIVE LIABILITY OF EITHER PARTY TO THE OTHER PARTY FOR ALL CLAIMS ARISING FROM OR RELATING TO THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY CAUSE OF ACTION SOUNDING IN CONTRACT, TORT, OR STRICT LIABILITY, WILL NOT EXCEED THE TOTAL AMOUNT OF ALL FEES PAID TO MARKET METRIX BY THE CUSTOMER DURING THE TWELVE (12)-MONTH PERIOD PRIOR TO THE ACT, OMISSION OR OCCURRENCE GIVING RISE TO SUCH LIABILITY. THIS LIMITATION OF LIABILITY IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE.
10.2 Essential Basis of the Agreement. Customer acknowledges and understands that the disclaimers, exclusions and limitations of liability set forth in this Section 10 form an essential basis of the agreement between the Parties, that the Parties have relied upon such disclaimers, exclusions and limitations of liability in negotiating the terms and conditions in this Agreement, and that absent such disclaimers, exclusions and limitations of liability, the terms and conditions of this Agreement would be substantially different.
11. TERM AND TERMINATION.
11.1 Duration of Agreement. The Parties intend for this Agreement to become legally enforceable starting on the Effective Date. This Agreement will remain in effect for so long as any Access Term remains in effect and for thirty (30) days thereafter, unless it is terminated by one of the Parties in one of the situations permitting termination as set forth below in this Section 11 (the “Term”). This Agreement will expire as of the date that is thirty (30) days following the date when all Access Terms have expired.
11.2 Termination for Breach. Either Party may terminate this Agreement immediately by providing a notice to the other Party if the notified Party has failed to perform any material obligation and has not fully cured the failure within thirty (30) days after it has been given an initial notice specifying the breach.
11.3 Termination Upon Bankruptcy or Insolvency. Either Party may also have the right to terminate this Agreement in the event the other Party (i) becomes insolvent, (ii) becomes subject to a petition in bankruptcy filed by or against it that is not dismissed within thirty days of the filing of such petition, (iii) is placed under the control of a receiver, liquidator or committee of creditors, or (iv) dissolves, ceases to function as a going concern or to conduct its business in the normal course.
11.4 General consequences of termination. Effective immediately upon expiration or termination of this Agreement, (i) Customer shall cease, and shall direct its users to cease, use of the Subscription Services, (ii) all licenses granted under this Agreement will become void, and (iii) neither Party will have continuing rights to use any Confidential Information of the other Party or to exercise any Intellectual Property Rights having been licensed under this Agreement. As soon as can reasonably be accomplished after this Agreement expires or is terminated, each Party will discontinue its use and will return the Confidential Information and proprietary materials of the other Party. If a Party has payment obligations that have accrued but remain unpaid at the time of expiration or termination, the Party will make payment in full within ten (10) days after the expiration or termination. Following expiration or termination Market Metrix will have no obligation to retain Customer Content or to return any Customer Content to Customer and may, unless legally prohibited, elect at its sole option to delete all such Customer Content from its systems.
11.5 Continuing Force of Certain Provisions. Even if this Agreement expires or is terminated, the Parties agree to remain bound by the provisions of Section 3, 6, 7, 9 (with regard to claims accrued prior to expiration or termination), 10, 11.4 11.5, 12 and 13. The rights and duties created by those provisions will not expire or terminate, but will remain in effect for so long as the provisions themselves expressly state, or, if not stated, indefinitely. Each Party will retain any claims accrued prior to expiration or termination, such as accrued rights to receive payments from the other Party.
12. MISCELLANEOUS PROVISIONS.
12.1 Notices. All notices required by or relating to this Agreement will be in writing and will be sent by means of overnight express courier or by certified mail, postage prepaid, to the Parties at their respective addresses set forth on the Signature Page, or addressed to such other address as the receiving Party may have given by written notice in accordance with this provision. Notices to Market Metrix shall be addressed to the attention of: General Counsel, Clarabridge, Inc., Suite 500, 11400 Commerce Park Drive, Reston, VA 20191, and notices to Customer shall be addressed to the person identified as Customer’s primary point of contact on the Signature Page, unless in either case the receiving Party has otherwise indicated by written notice in accordance with this provision. All notices required by or relating to this Agreement may also be communicated by facsimile or electronic mail, provided that the sender receives and retains confirmation of successful transmittal to the recipient. Such notices will be effective on the date indicated in such confirmation. In the event that either Party delivers any notice by means of facsimile or email transmission in accordance with the preceding sentence, such Party will promptly thereafter send a duplicate of such notice in writing by means of certified mail, postage prepaid, to the receiving Party, addressed as set forth above or to such other address as the receiving Party may have previously substituted by written notice to the sender.
12.2 Excuse from liability for non-performance due to force majeure. Except for payments owed hereunder, if a Party is prevented from performing its duties under this Agreement as a result of an event of force majeure, its failure to perform will not be considered a breach of this Agreement, and its performance will be excused for the duration of the force majeure. For purposes of this Agreement, an event of “force majeure” refers to an act of god, war, natural disaster and other events beyond all reasonable control of the non-performing Party.
12.3 Assignment; Delegation. This Agreement shall be binding and inure to the benefit of Customer, Market Metrix and each of their respective successors and assigns. Customer shall not assign any of its rights or delegate any of its duties under this Agreement without the express, prior written consent of Market Metrix, and, absent such consent, any attempted assignment or delegation will be null, void and of no effect.
12.4 No Third Party Beneficiaries. The Parties acknowledge that the covenants set forth in this Agreement are intended solely for the benefit of the Parties, their successors and permitted assigns. Nothing herein, whether express or implied, will confer upon any person or entity, other than the Parties, their successors and permitted assigns, any legal or equitable right whatsoever to enforce any provision of this Agreement.
12.5 Governing Law; Jurisdiction. THIS AGREEMENT WILL BE GOVERNED BY AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES THEREOF OR TO THE UNITED NATIONS CONVENTION ON THE INTERNATIONAL SALE OF GOODS. FOR PURPOSES OF ALL CLAIMS BROUGHT UNDER THIS AGREEMENT, EACH OF THE PARTIES HEREBY IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF THE STATE AND FEDERAL COURTS LOCATED IN FAIRFAX COUNTY, VIRGINIA. To that end, each Party irrevocably consents to the exclusive jurisdiction of, and venue in, such court(s), and waives any, (i) objection it may have to any proceedings brought in any such court, (ii) claim that the proceedings have been brought in an inconvenient forum, and (iii) right to object (with respect to such proceedings) that such court does not have jurisdiction over such Party. To the fullest extent permitted by law, each Party hereby expressly waives (on behalf of itself and on behalf of any person or entity claiming through such Party) any right to a trial by jury in any action, suit, proceeding, or counterclaim arising out of or connected with this Agreement or the subject matter hereof.
12.6 Entire Agreement. The Parties agree that the provisions of this Agreement are the entire agreement between them regarding the matters that this Agreement addresses, including the parties respective confidentiality obligations. The Parties also agree that any prior agreements about those same matters, whether written or oral, are superseded by this Agreement, and previous oral agreements about those matters do not have any legally binding force.
12.7 Interpretations. The Parties agree that the following rules should be applied when interpreting the words of this Agreement, unless the express words of the Agreement indicate otherwise: (i) all references to one gender apply equally to both genders; (ii) definitions of nouns in the singular also apply to the plural, and vice versa; and (iii) any use of the term “including,” if followed by a list, will be interpreted to mean “including, without limitation.” If any provision in this Agreement requires a writing, the writing must be typed or hand-written on paper, and any provision requiring a signed writing will be interpreted to require an electronic signature (in accordance with applicable law) or a hand-written signature. References to “sections,” “paragraphs,” “clauses” and “provisions” are references to portions of this document only, unless the reference expressly states otherwise. Whenever this Agreement makes reference to a certain number of days, it is referring to calendar days, unless it specifically references “business days,” in which case the counting of days will exclude Saturdays, Sundays, and all holidays when the offices of U.S. federal agencies are closed.
12.8 Background Information. If any background information or “recitals” are contained on the first page(s) of this document prior to the contractual provisions, the Parties intend that such information and recitals should have no legally binding effect whatsoever, nor be interpreted as representations or warranties.
12.9 Participation in Drafting. The Parties intend that this Agreement should be interpreted in all instances as if they participated equally in the drafting of all its provisions, and that no provision in this Agreement should be interpreted in a manner unfavorable to a Party on the basis that it drafted the provision.
12.10 Enforceability. Even if the law will not enforce a provision of this Agreement in a particular instance, the Parties intend to remain bound by the other, enforceable provisions. If the unenforceable provision could be interpreted in a manner that would render it enforceable, while still reflecting the Parties’ mutual intent, they intend for that interpretation to apply. If permitted by law, the Parties also intend for the provision that cannot be enforced in that instance to remain applicable in any other instances when it can be enforced.
12.11 Agreement Amendments. The Parties acknowledge that they may desire to modify this Agreement in the future, but that no modifications will be legally binding unless the modifications are expressly set forth in a writing that is physically or digitally signed by representatives of each of them.
12.12 Waivers. Even if a Party fails to enforce its rights under this Agreement in a particular instance, the other Party must still perform its duties in that instance unless the non-enforcing Party physically signs a paper that expressly waives its rights in that instance, and any such waiver only applies to the particular instance and particular rights expressly waived.
12.13 No implications of section titles. The titles to each of the sections of this Agreement are intended only to facilitate convenient reference; the Parties agree that those titles are not part of the Agreement and should not be used to interpret any part of this Agreement.
12.14 Execution of Multiple Copies. If the Parties sign multiple copies of this Agreement, they intend that all of those copies will be considered original copies, but together all of those copies represent only one contract.
13. GLOSSARY OF DEFINED WORDS AND PHRASES.
For purposes of this Agreement, certain capitalized words and phrases will have the meanings set forth or cross-referenced below.
“Access Rights” are contractual rights to access and receive Subscription Services according to the technical procedures and protocols established according to this Agreement. The scope of any particular Access Rights may be defined by the terms the applicable Order Form pursuant to which such Access Rights are purchased, including without limitation the Access Term, the number of annual completes, the number of properties (if applicable) and the number of Authorized End Users.
“Access Term” means the period of time during which particular Access Rights remain valid, as stated in the applicable Order Form pursuant to which such Access Rights are purchased. For avoidance of doubt, particular sets of Access Rights purchased under separate Order Forms may have differing Access Terms.
“Authorized End Users” are individual persons for whom Customer has purchased Access Rights, and may include only employees or agents of Customer who are acting on Customer’s behalf in the internal operation of Customer’s business.
“Confidential Information” means all confidential data or information in any form disclosed by one Party to the other Party by any means, if and for so long as the data and information are protectable as trade secrets by the disclosing Party or are otherwise subject to legal rights that give the disclosing Party, independent of contract, a right to control use and/or disclosure of the data and information. As a non-exhaustive list of examples, Confidential Information includes data, information regarding a Party’s financial condition and financial projections, business and marketing plans, product plans, product prototypes, the results of product testing, research data, market intelligence, technical designs and specifications, secret methods, manufacturing processes, source code of proprietary software, the content of unpublished patent applications, customer lists, vendor lists, internal cost data and the terms of contracts with employees and third parties. Information may be Confidential Information regardless of the medium or manner by which it is disclosed, including disclosures orally or via printed or handwritten document, email or other electronic messaging, fax or telephone.
“Contract Period” refers to the period of time during which this Agreement remains in effect in accordance with Section 11.1. For avoidance of doubt, the term “Contract Period” is distinct from any particular Access Term, each of which applies with respect to particular Access Rights purchased hereunder.
“Customer Content” means the survey responses and other data (structured and unstructured), media, and content generated, collected or recorded by the Customer, or by any supplier or licensor to Customer, that is collected, uploaded or otherwise made available by or at the direction of the Customer to the Subscription Services.
“Documentation” means the manuals, tutorials, reference materials and similar materials, whether in print or electronic format, ordinarily provided by Market Metrix to customers that describe the functionality of the Subscription Services.
“Intellectual Property Rights” are 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.
“Order Form” means a document which expressly identifies itself as an order form that is subject to this Agreement, whereby the Customer orders one or more of the following: (i) Access Rights for the Subscription Services; (ii) Professional Services; or (iii) any other products or services offered by Market Metrix pursuant to this Agreement.
“Professional Services” means configuration services, training services, and/or technical support services to be provided by Market Metrix as specified in a mutually executed Order Form.
“Reports” means any reports, summaries, analyses, data, information or other items of output, whether in textual or graphical form, produced by or derived from the Services, including any reports on or representations of the Customer Content or other content after processing or transformation in any manner by or pursuant to the Services.
“Scheduled Downtime” shall be time during which the Subscription Services will not be available as a result of regular maintenance and upgrades, which will be communicated to Customer with at least 24 hours of notice. Any Scheduled Downtime that might require more than 2 hours will be scheduled at least 7 days in advance and Market Metrix will use commercially reasonable efforts to schedule any such downtime outside of normal business hours.
“Services” means, collectively or individually, the Subscription Services and/or the Professional Services.
“Statement of Work” means a separate, mutually signed document that unambiguously identifies this Agreement and expressly states that the Parties intend for it to be considered a Statement of Work under this Agreement, and that (i) identifies the duties that each Party agrees to perform and, if applicable, the time period during which those duties are to be performed and/or completed; (ii) identifies any deliverables to be provided by either Party; (iii) states any payments to be made by Customer and any other applicable economic terms; and (iv) includes any additional terms or conditions that the Parties desire to include related to the rights and duties of the parties under that Statement of Work.
“Subscription Services” means the particular online services identified in a mutually executed Order Form, to be performed by means of Market Metrix’s proprietary methodologies and systems, to which Access Rights are purchased by Customer, and to which access is provided by Market Metrix via its Web site accessible at the URL https://legacy.clarabridge.com/mm-msa-legal/. Customer acknowledges that the Subscription Services may include access to particular functional modules of Market Metrix’s system, but not to other modules, as may be indicated in the applicable mutually executed Order Form.
[End of Standard Terms and Conditions]