These terms and conditions (this “Agreement”) sets forth the terms and conditions that control the provision of Data (as defined below) by Adomik, Inc. (“Service Provider”) to the client identified in the applicable Order Form (as defied below) and accepting this Agreement (the “Client”). By clicking “I Accept” or by entering into one of more Order Forms, Client acknowledges that it has read, understands, and agrees to be legally bound by these terms and conditions.
1. Scope of the Agreement
Subject to the terms and conditions of this Agreement, the Service Provider grants Client the limited right to access and use certain of Service Provider’s proprietary data, as detailed in one or more Order Form(s) (the “Data”), as set forth in Article 4 below. For the avoidance of doubt, the “Data” will not include any personally identifiable information.
Service Provider and Client will enter into one or more order form(s) (each, an “Order Form”) which will detail the category(ies) of Data being made available to Client, and the applicable fees charged for access to the Data.
2. Term/ Termination
The term of each Order Form will be set forth in the applicable Order Form. Service Provider may immediately terminate any Order Form(s) or this Agreement in the event that Client breaches any of its material obligations hereunder and fails to correct such breach within thirty (30); provided, however, that if Client breaches Section 3 or Section 4 below, there will not be a cure period and Service Provider may terminate this Agreement and all Order Forms immediately upon notice to Client. Upon any termination of this Agreement, Client shall (i) pay Service Provider, in accordance with Article 5 hereof, any amounts owing to the Service Provider through and including the date this Agreement terminates, (ii) no longer be provided with any Data going forward, but will be able to retain and use the Data obtained during the term of this Agreement for the limited purpose set forth in this Agreement. Further, the provisions of Articles 3, 4, 5, 6, 7 and 8 shall survive any such termination. For the avoidance of doubt, for its own internal use post-termination, Client may retain copies of any Data obtained under this Agreement during the Term.
3. Intellectual Property
As between the Parties, the Data is the sole property of the Service Provider and the Service Provider retains all intellectual property rights embodied therein and in all elements, components and contents of the Data (including but not limited to data bases, look & feel, texts, concepts, methodologies, techniques, models, templates, algorithms, trade secrets, processes, information, materials, source codes and know-how contained therein) and all technology, documentation and manuals related thereto, together with all modifications, updates, improvements, enhancements and derivative works thereof (collectively “Service Provider IP”).
Nothing herein constitutes a transfer to Client of any right, title or interest in or to any Service Provider IP, other than the limited right to use the Data as expressly set forth in Section 4 below.
4. Grant of Rights
Subject to the terms and conditions of this Agreement, Service Provider hereby grants Client, and Client hereby accepts, a limited non-exclusive, revocable, non-transferable right and license to access and use the Data solely for Client’s internal business purposes. All rights not expressly granted herein are expressly reserved by the Service Provider.
Client shall not disclose the Data or any other Service Provider IP to any entity or person except for its contractors or Client Affiliates, or use the Data for any purpose other than as expressly permitted above.
5. Payment Terms
Each Order Form will specify the categories of Data that are available to Client under this Agreement, and the fees payable for access to the Data. Client will be invoiced for the applicable fees prior to accessing the Data. All fees are due upon invoice. If Client maintains a credit card on file in its account, Service Provider will charge that card for the applicable fees due prior to Client accessing the Data. Each Party shall be responsible for paying its own taxes which may be due in connection with this Agreement.
6. Disclaimers
SERVICE PROVIDER DOES NOT MAKE AND HEREBY DISCLAIMS, ANY WARRANTIES AS TO THE DATA, AND SERVICE PROVIDER DOES NOT MAKE AND HEREBY DISCLAIMS ANY WARRANTY AND DOES NOT HAVE ANY OBLIGATION OR RESPONSIBILITY AS TO THE QUALITY OR PERFORMANCE OF THE DATA. THE DATA IS PROVIDED “AS IS” WITHOUT WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE, AND ALL SUCH WARRANTIES ARE HEREBY EXCLUDED BY SERVICE PROVIDER AND WAIVED BY CLIENT.
7. Indemnification
7.1. Indemnification by the Service Provider.
Service Provider will defend, indemnify and hold harmless Client, and each of its officers, directors, managers, shareholders, members, agents and employees from any and all claims, liabilities, costs and expenses (including reasonable attorney’s fees) in connection with any third party claim that the use of the Data by Client in accordance with this Agreement infringes or misappropriates such third party’s intellectual property rights (an “Infringement Claim”); provided, however, that the foregoing obligations are contingent upon (i) Client promptly notifying Service Provider in writing of the claim, provided that failure to provide such notice will not relieve Service Provider of its indemnity obligations unless it is materially prejudiced thereby, (ii) Client fully cooperating with Service Provider in the defense of the claim, (iii) Service Provider having sole control over the defense of such claim and authority to defend, negotiate or settle such claim, provided that it will not make any admission of liability on behalf of Client without Client’s prior written consent, and provided further that Client may participate in the defense of the claim at its own expense with counsel of its choice, (iv) such third party claim leads to an enforceable judicial decision against the Client, (v) such infringement and misappropriation does not result from any negligent or wrongful act or omission by the Client. No claim for indemnification may be brought by Client more than twelve (12) months after the termination of this Agreement.
Notwithstanding the foregoing, Service Provider shall have no liability to Client if the infringement arises or results, directly or indirectly, from: (i) use the Data other than in accordance with this Agreement; (ii) modification or alteration of the Data; (iii) use of the Data in combination with any third party data, apparatus, hardware, software or services, to the extent that the infringement was caused by such third party data apparatus, hardware, software or service; (iv) any use of the Data in violation of any applicable law or regulation of any governmental authority or self-regulatory agency or authority; (v) any use of the Data for which the Data was not designed.
In the event of an Infringement Claim, the Service Provider shall, at its own option and expense, do any of the following:
– Replace the Data with data which does not infringe any such rights,
– Modify the Data in order to eliminate any infringing part,
– Terminate this Agreement, or
– Obtain for the Client the right to continue using the Data.
THE PROVISIONS OF THIS SECTION 6.2 STATE THE SOLE, EXCLUSIVE, AND ENTIRE LIABILITY OF SERVICE PROVIDER TO CLIENT, AND IS CLIENT’S SOLE REMEDY WITH RESPECT TO, ANY CLAIM OF INFRINGEMENT OR MISAPPROPRIATION OR ALLEGED INFRINGEMENT OR MISAPPROPRIATION OF ANY THIRD-PARTY INTELLECTUAL PROPERTY RIGHT.
7.2. Indemnification by Client.
Client will defend, indemnify and hold harmless Service Provider, and each of its and their respective officers, directors, managers, shareholders, members, agents and employees from any and all claims, liabilities, costs and expenses (including reasonable attorney’s fees) in connection with any third party claim arising from a breach by Client of any of its representations, warranties or other obligations under this Agreement. The foregoing indemnity obligations are contingent upon (i) Service Provider promptly notifying Client in writing of the claim, provided that failure to provide such notice will not relieve Client of its indemnity obligations unless it is materially prejudiced thereby, (ii) Service Provider fully cooperating with Client in the defense of the claim, (iii) Client having sole control over the defense of such claim and authority to defend, negotiate or settle such claim, provided that it will not make any admission of liability on behalf of Service Provider without Service Provider’s prior written consent, and provided further that Service Provider may participate in the defense of the claim at its own expense with counsel of its choice, (iv) such infringement and misappropriation does not result from any negligent or wrongful act or omission by the Service Provider.
8. Limitation of Liability
IN NO EVENT SHALL SERVICE PROVIDER BE LIABLE TO CLIENT OR ANY THIRD PARTY FOR ANY LOST PROFITS OR LOST REVENUE, OR FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT.
IN NO EVENT WILL THE LIABILITY OF SERVICE PROVIDER FOR DAMAGES OR ALLEGED DAMAGES UNDER THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR ANY OTHER LEGAL THEORY, EXCEED THE TOTAL FEES ACTUALLY PAID BY THE CLIENT TO THE SERVICE PROVIDER UNDER THE AGREEMENT IN THE IMMEDIATELY PRECEDING SIX (6) MONTHS PRIOR TO THE INITIATION OF SUCH CLAIM.
NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, IN NO EVENT WILL ANY OF THE OFFICERS, DIRECTORS, MANAGERS, SHAREHOLDERS, MEMBERS, EMPLOYEES, AGENTS OR REPRESENTATIVES OF SERVICE PROVIDER, DISCLOSED OR UNDISCLOSED, EVER BE PERSONALLY LIABLE TO THE OTHER PARTY (INCLUDING WITHOUT LIMITATION FOR DIRECT OR CONSEQUENTIAL DAMAGES), AND CLIENT HEREBY WAIVES THE RIGHT TO RECOVER DAMAGES FROM ANY SUCH PERSONS.
9. Miscellaneous
This Agreement is binding on the Parties, and their successors and permitted assigns, and, together with all Order Forms, sets forth the entire understanding between the Parties regarding its subject matter, and supersedes all prior or contemporaneous agreements, arrangements, communications and understandings, whether oral or written, with respect to the subject matter of this Agreement. There are no intended third-party beneficiaries to this Agreement, and nothing in this Agreement shall be enforceable by a third party.
This Agreement may be amended, modified, or supplemented by Service Provider from time to time.
No waiver of any provision of this Agreement will be effective unless it is in writing and signed by the Party against which it is sought to be enforced. The delay or failure by either Party to exercise or enforce any of its rights under this Agreement will not constitute or be deemed a waiver of that Party’s right to thereafter enforce those rights, nor will any single or partial exercise of any such right preclude any other or further exercise of these rights or any other right.
Any notice, communication, authorization or requests permitted or required under this Agreement must be in writing and delivered to the other Party (A) at the address set forth in the applicable Order Form (or any other address provided in writing for such purpose by one Party to the other using one of the methods described in this Article) by (i) registered or certified letter, return receipt requested, (ii) delivery by hand, (iii) by overnight courier (such as Federal Express), or (iv) or by U.S mail, in each case except as may be otherwise expressly provided in this Agreement or (B) via electronic mail (if to Service Provider to ClientNotice@adomik.com; if to Client to the email address set forth in the applicable Order Form. Any notice, communication, authorization or request to the Service Provider shall be sent to the attention of Nicolas Schueller, CEO of Adomik, Inc. Notices, communications, authorizations or requests will be deemed given and received (i) upon receipt if by registered or certified letter, return receipt requested, or by hand delivery, (ii) two (2) business days after mailing if by overnight courier, (iii) five (5) business days after mailing, if by U.S. mail, or (iv) upon receipt if via electronic mail if on a business day, and if not, then on the next business day.
This Agreement, and all matters arising directly or indirectly from this Agreement, shall be governed by and construed in accordance with the laws of the State of New York, USA without regard to its conflict of laws principles.
This Agreement does not create a partnership, joint venture or similar relationship between the Parties, and neither Party shall hold itself out as an employee, agent, officer, director, or representative of the other Party. If any term or provision of this Agreement or Schedules is determined to be invalid or unenforceable, such term or provision will be deemed modified to the extent necessary to render such provision valid and enforceable, while preserving to the fullest extent permissible the intent and agreements of the Parties as set forth in this Agreement, and such modification shall not affect any other provision of this Agreement. This Agreement may be executed by facsimile, or through other electronic means, and in any number of counterparts, each of which will be considered an original for all purposes, and all of which when taken together will constitute one agreement binding on the Parties. The captions and Article and Section headings used in this Agreement are inserted for convenience only and shall not affect the meaning or interpretation any provisions of this Agreement.
10. Data Protection
For the purposes of this Article 15, where terms and expressions used are not defined in this Agreement, they will have the meaning assigned to them by the General Data Protection Regulation (EU) 2016/679 (hereinafter referred to as the “GDPR”) and laws, regulations or statutory instruments enacted thereunder or otherwise applicable.
Neither Party will process personal data on behalf of the other Party as Data Processor for the purposes of this Agreement.
No personal data, other than Users’ professional email addresses, names, Clients postal addresses, and email addresses that Client will pass to Service Provider for enabling the Service Provider “email report” features will be processed under this Agreement. Service Provider agrees to process Users’ professional email addresses and email addresses for email reports that Client will pass to Service Provider in the context of the execution of the Agreement, only for the purpose of performing its contractual obligations and not to use the personal data for other purposes..
The Parties shall not knowingly perform their obligations under this Article 15 in such a way as to cause the other Party to breach any of its obligations under applicable data protection legislation.
