KNOWLEDGEHOUND MASTER SERVICES AGREEMENT
This master service agreement (the “Agreement”) between Vyzion, Inc. d/b/a KnowledgeHound (“Company”) located at 224 N. Desplaines Street, Suite 350, Chicago, IL 60661 and any client (the “Client”) using the Services (as defined herein), and states the terms under which Company will provide services to Client.
- “Authorized Users” means those users of the Services registered by the Client with Company as provided for Statement of Work.
- “Client Materials” means any Client provided materials, including but not limited to Client Studies.
- “Client Studies” means research data and studies that are by provided either by the Client or on the Client’s behalf for use in the Services.
- “PII” shall include information that, when used alone or with other relevant data, can identify an individual, PII shall also include all Personal Information as defined by the California Consumer Privacy Act and Personal Data as defined by the European Union General Data Protection Regulation.
- “Software” means the facilitation of access to and use of a web-based data retrieval, visualization and exportation software tool (commonly known as KnowledgeHound) for Client Studies provided by Client.
- “Services” means the Software, as well as applicable documentation and any applicable implementation and maintenance services. The Services shall not include Client Studies or any other data, material and/or information provided by Client.
- “Site” means the website on which the Software is provided. Site includes the website as well as any other media form, media channel, mobile website or mobile application related, linked, or otherwise connected thereto on which the Services are provided.
- “Terms” means the terms of service which are listed on the Site and updated from time to time.
- “Third Party Products” shall mean any products manufactured by or provided by a party other than the Company.
- Effective Date. The “Effective Date” of this Agreement is as stated above. This Agreement and all of its obligations will continue for so long as a statement of work (“Statement of Work”) is in effect between the parties. All terms in the Agreement that would naturally survive a termination shall continue to survive this Agreement including but not limited to Section 5 “Confidentiality.”
- Effect of Termination. Upon a material default under this Agreement, including but not limited to, failure to make required payments, or expiration of the period stated in any Statement of Work, unless the Company and Client enter into another Statement of Work (i) the Company upon written request will delete all Client Materials, (ii) Client will no longer have access to the Software or the Site and shall promptly return or certify the destruction of any materials, including Confidential Information, received from the Company and (iii) without waiving any other rights and remedies available to it, Company may retain all amounts paid by Client. Upon earlier of the termination of this Agreement or expiration of any open Statements of Work, the license granted to Client pursuant this Agreement shall terminate. Notwithstanding the above, Company may retain Client Materials to the extent such information remains in Company’s archival backups and (a) is not readily accessible and (b) remains subject to the confidentiality provisions of this Agreement.
3. SCOPE OF SERVICES
Company agrees to provide certain non-exclusive services to Client, as detailed in the Statement of Work attached as Exhibit A and any future mutually executed Statement of Work.
4. PAYMENT TERMS
Payment terms are thirty (30) days after Company’s submission of an invoice. If payment is not made within 30 days of Company’s submission of an invoice, without limiting any other remedies of Company, interest shall accrue on the balance owed at the rate of 1% of outstanding balance per month.
5. LICENSE RIGHTS AND RESTRICTION
- License. Subject to the terms and conditions of this Agreement and only during the term of this Agreement, the Company hereby grants to Client a royalty-free, restricted (as set forth herein and in any Proposal), non-exclusive, non-assignable, non-sub-licensable, non-transferable license to access and use the Services for the term of this Agreement only for the purpose stated in this Agreement and any applicable Statement of Work.
- License Restrictions. Client does not have any rights of ownership to the Services Client may not reverse engineer, decompile, disassemble, or otherwise attempt to discern the source code of the components of the Software, or create derivative works based thereon. Client is not permitted to: (a) rent, lease, assign, or transfer all or any part of the Software (or account information used to access the Software or the Site) to any person or entity without the prior written consent of the Company which may be withheld at the sole and absolute discretion of the Company; or (b) remove any proprietary notices, labels, or marks on any component of the Software (or the Site generally), whether in machine language or source code. Violation of any or all of these restrictions would constitute misuse (“Misuse”). In the event of Misuse, the Company may, in the Company’s sole and absolute discretion, immediately terminate Client’s access to the Services without prior notice.
- Ownership of Client Provided Materials. Except for rights granted herein in furtherance of Company’s provision of the Services, the Client and its suppliers retain all rights, title and interest, including all intellectual property rights, in the Client Materials. Additionally, Client grants Company a license to access and use the Client Materials to provide the Services. Client represents and warrants it is the owner of all Client Materials and has the authority to transfer such Clients Materials to Company without restriction or the need for any third-party approval. Client Materials may only reflect Client’s market research efforts and not that of an affiliate or subsidiary.
- Ownership of the Company Property. The Software, Services, documentation and all other Company provided materials (“Company Property”) constitute proprietary works of the Company and its suppliers. The Company retains all rights, title and interest, including all intellectual property rights, in the Company Property. It is expressly agreed by the parties that title to the Company Property does not pass to Client and Client’s rights with respect to such Company Property will only be that of a licensee.
- Confidential Information. By virtue of this Agreement, each party may receive information from the other party that is confidential and not generally available to the public. “Confidential Information” means (i) any non-public information disclosed by either party to the other, either directly or indirectly, in writing, orally or by inspection, whether before or after the date of this Agreement, including, without limitation and without the need for any designation, the Client Materials, the Company Property, the pricing, terms and conditions of this Agreement, information relating to the disclosing party’s “Disclosing Party” products, operations, customers, processes, plans or intentions, product information, know-how, ideas, inventions, design rights, trade secrets, market information, market opportunities, marketing plans, business affairs or any other information which (a) is designated as “confidential,” “proprietary” or some similar designation or (b) a reasonable person under the circumstances would consider to be confidential and (ii) any information otherwise obtained, directly or indirectly, by a receiving party “Receiving Party” through inspection, review or analysis of the materials described in clause (i). Confidential Information shall remain the sole property of the disclosing party or its licensors. However, Confidential Information shall not include information that (i) was publicly known and generally available in the public domain prior to the time of disclosure by the Disclosing Party to the Receiving Party, (ii) becomes publicly known and generally available in the public domain after disclosure by the Disclosing Party to the Receiving Party through no action or inaction of the Receiving Party, (iii) is in the possession of the Receiving Party, without a breach of a third party’s obligations of confidentiality, at the time of disclosure by the Disclosing Party as shown by the Receiving Party’s files and records immediately prior to the time of disclosure, (iv) was independently developed by the Receiving Party without violating the terms of this Agreement, as shown by documents and other competent evidence in the Receiving Party’s possession, or (v) was received by the Receiving Party from a third party without a breach of such third party’s obligations of confidentiality.
- Duty of Confidentiality. Each party shall use the Confidential Information of the disclosing party only for purposes of this Agreement and cause its officers, agents, servants, employees, professional advisors and contractors to treat, as strictly confidential all Confidential Information. In no event shall such efforts be less than the degree of care and discretion as the Receiving Party exercises in protecting its own valuable confidential information. A Receiving Party shall not, without the prior written consent of the Disclosing Party, disclose or otherwise make available the Disclosing Party’s Confidential Information or any part thereof to any party other than those of its directors, officers, agents, servants, employees, professional advisors or contractors (collectively the “representatives”) who need to know for the purposes set forth herein. The Receiving Party shall be liable for all disclosure made by its Representatives in violation of this Agreement.
- Mandatory Disclosure. If the Receiving Party becomes legally compelled to disclose any of Confidential Information, Receiving Party shall (i) promptly notify Disclosing Party of such requirement before any disclosure is made so that Disclosing Party may seek a protective order or other appropriate remedy limiting disclosure or use of such information; and (ii) provide reasonable assistance to Disclosing Party to seek such remedy at Disclosing Party’s expense. If such protective order or other remedy is not obtained, recipient may furnish only that portion of such Confidential Information that, in the written opinion of its legal counsel, it is legally required to disclose, and Receiving Party agrees to make commercially reasonable efforts to obtain assurance that confidential treatment will be accorded to the Confidential Information.
7. PERSONALLY IDENTIFIABLE INFORMATION
Other than for the names, e-mails addresses and IP addresses used by Authorized Users to access the Site, Client and Authorized Users shall not transfer any PII to the Company. Client represents and warrants it shall review all Client Materials prior to their transfer to Company to insure no PII is included. To the extent any PII is received by Company in violation of this Section, Company, may in its discretion, delete, return or take no action at all as to the transferred PII. No action taken by Company in related to the PII shall relieve Client of any liability for transferring the PII to Company or impose any liability on Company.
8. LIMITATIONS OF LIABILITY
EXCEPT FOR ANY EXCLUDED CLAIMS, (A) NEITHER PARTY WILL BE LIABLE FOR ANY LOSS OF USE, INTERRUPTION OF BUSINESS, LOST PROFITS, OR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND REGARDLESS OF THE FORM OF ACTION WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT PRODUCTS LIABILITY, OR OTHERWISE, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND (B) BOTH PARTIES AGGREGATE LIABILITY UNDER THIS AGREEMENT WILL NOT EXCEED THE FEES DUE TO BE PAID TO COMPANY UNDER THIS AGREEMENT and any STATEMENT OF WORK. “Excluded Claims” means claims and liabilities arising under Section 4 (License Rights and Restrictions), Section 5 (Confidential Information), Section 6 (Personally Identifiable Information) and Section 8 (Indemnification).
- Indemnification by Client. Client will fully indemnify, defend and hold the Company and its Affiliates harmless from and against any and all third-party claim, suit, proceeding losses and threatened claims, suits and proceedings arising from, in connection with or based upon (1) allegations of infringement, violation or misappropriation of a third party’s intellectual property or privacy rights with respect to the Client Materials and (2) are in any way related to the PII transferred to Company or any action or inaction of Company related to such PII.
- Indemnification by Company. (a) The Company will fully indemnify, defend and hold Client harmless from and against any and all losses and threatened losses arising from, in connection with or based upon allegations that the Software, the Site, or the Service infringes, misappropriates, or violates any third party’s intellectual property rights (except to the extent to which such infringement, misappropriation or violation is in connection with or based on the use of Client Studies).
- Indemnification Conditions. Company’s indemnity obligations are conditioned upon the following: (i) becoming aware of a claim, Client provides prompt written notice of such claim within no more than ten (10) business days; (ii) Client gives the Company sole authority and control of the defense and/or settlement of the claim; and (iii) provides all reasonable information and assistance requested by the Company to defend and/or settle the claim.
- Company Indemnity Exceptions. Company shall have no defense or indemnity obligation for any claim to the extent that such claim is based upon (i) modifications to the Service by someone other than the Company; or (ii) use or combination of the Service with any Third Party Products unless such use is authorized by the Company in writing.
- If the Software becomes the subject of a claim for indemnification under this Section 8, then Company shall, at its own expense and option where commercially reasonable, (i) procure for Client the right to continue use of the Software at no additional cost to Client for such right; (ii) replace the Service with a non-infringing product; (iii) modify the Software so that it becomes non-infringing; or, if (i), (ii) or (iii) cannot be accomplished in a commercially reasonable way, (iv) refund to Client a pro-rated portion of the unused license fees paid by Client for the Service, in which case Client will both cease all use of the Software.
- Exclusive Indemnification Right. This Section 8 sets for the entire liability and the indemnified party’s sole and exclusive remedy with respect to any infringement of any intellectual property rights of any third party.
10. EQUITABLE REMEDIES
The Parties agree that violation of this Agreement could cause irreparable injury, for which monetary damages would not provide adequate compensation, and that in addition to any other remedy, the Parties shall be entitled to injunctive relief a breach or threatened breach, without providing actual damages and without posting a bond or other security.
THE SERVICE IS FURNISHED “AS IS” AND WITH ALL FAULTS. THE COMPANY MAKES, AND CLIENT RECEIVES, NO OTHER WARRANTIES, EXPRESS, IMPLIED OR STATUTORY. THE CLIENT AND ITS CONTRIBUTORS EXPRESSLY DISCLAIM ALL OTHER WARRANTIES AND CONDITIONS, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ANY ORAL OR WRITTEN REPRESENTATIONS, PROPOSALS OR STATEMENTS MADE ON OR PRIOR TO THE EFFECTIVE DATE OF THIS AGREEMENT, AVAILABILITY, SECURITY, TITLE AND NON-INFRINGEMENT, ANY WARRANTY THAT OPERATION OF THE SOFTWARE OR SITE WILL BE UNINTERRUPTED OR ERROR FREE.
12. DATA PROCESSING
The Parties acknowledge that the Company contracts with offshore third-parties in order to process and clean the Client Materials. The Client authorizes the transfer of the Client Materials to such third parties.
13. AUTHORIZED USERS
14. GOVERNING LAW
The Parties agree that this Agreement will be governed by and construed and interpreted in accordance with the laws of the State of Illinois, without regard to the conflicts of laws principles of that state or any other state. Each Party irrevocably submits to the sole and exclusive jurisdiction of the courts of Illinois and the Federal courts of the Northern District of Illinois, situated in Chicago, Illinois. Each Party irrevocably consents to the exercise of personal jurisdiction over each of the Parties by such courts and waives any right to plead, claim or allege that Illinois is an inconvenient forum.
15. ENTIRE AGREEMENT
This Agreement may not be assigned by Client, except if agreed to in writing, any such agreement shall not be unreasonably withheld.
17. WAIVER OF BREACH
Waiver by either party of a breach of any provision of this Agreement by the other will not operate or be construed as a waiver of any subsequent breach by such other party.
This Agreement may be signed in counterparts, each of which so signed shall be deemed to a original (an each signed copy sent by electronic transmission shall be deemed to be an original) and such counterparts together shall constitute one and the same instrument.
19. NO THIRD-PARTY BENEFICIARY RIGHTS
This Agreement and any applicable SOW are for the benefit of the Parties and not for any other person or entity. Nothing in this Agreement or SOW shall create a legal, contractual or equitable relationship with, or cause of action in favor of a third party against Client or Company.
Each of the Parties and its respective attorneys have reviewed and participated in the drafting of this Agreement. Accordingly, the Parties agree that the normal rule of construction to the effect that any ambiguities in this Agreement are to be resolved against the drafting party shall not be used in the interpretation of this Agreement.