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DATA LICENSE AGREEMENT
This Data License Agreement (“Agreement”) by and between Ypulse, Inc., a Delaware corporation, with offices at 39 Broadway, Suite #2010, New York, New York 10006 (“Licensor”), and you, the licensee of Ypulse data (“Licensee”). Licensee and Licensor are each referred to as a “Party” and collectively referred to as the “Parties.”
WHEREAS, Licensor is in the business of licensing certain data to third parties; and
WHEREAS, Licensor desires to grant Licensee a license, and Licensee desires to accept such license, to the data more fully identified herein, on and in accordance with the terms and conditions hereof.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
1. Definitions. For purposes of this Agreement, the following capitalized terms shall have the meanings set forth below:
1.1 “Confidential Information” shall have the meaning set forth in Section 5.1 hereof.
1.2 “Fees” shall have the meaning set forth in Section 4.1 hereof.
1.3 “Term” shall have the meaning set forth in Section 7.1 hereof.
1.4 “Initial Term” shall have meanings as set forth in Section 7.1 hereof.
1.5 “Renewal Term” shall have the meaning set forth in Section 7.1 hereof.
1.6 “Licensed Data” means Licensor’s study of youth insights, data and tools
1.7 “Order Form” is a document defining licensed data access as well as related fees.
1.8 “Licensor Indemnitees” shall have the meaning set forth in Section 9.1 hereof.
1.9 “Licensee Indemnitees” shall have the meaning set forth in Section 9.2 hereof.
1.10 “Licensor Provided Materials” shall have the meaning set forth in Section 8.2 hereof.
1.11 “Permitted Use” means use of the Licensed Data by employees, agents, and independent contractors working for Licensee (a) in connection with internal research and analysis in the ordinary course of Licensee’s business, (b) in developing sales and marketing strategies by Licensee, including in connection with its marketing agencies and consultants, and (c) as a secondary syndicated tool to provide Licensee with insights around Millennials and their uses and attitudes toward product categories, subject to the terms set forth herein.
1.13 “Website” shall have the meaning set forth in Section 3.2 hereof.
2.1 Grant. Subject to the terms and conditions of this Agreement, Licensor hereby grants to Licensee and/or its designees a limited, non-exclusive, non-sublicensable (except as otherwise set forth herein), royalty-free, worldwide right and license to use the Licensed Data for the Permitted Use, each such Permitted Use to be subject to the confidentiality obligations set forth in Article 5. Licensor reserves all rights in and to the Licensed Data not expressly granted to Licensee herein. Notwithstanding anything to the contrary herein, in no event shall Licensee be required to request, receive and/or use the Licensed Data for any purpose, including, without limitation, the Permitted Use.
2.2 Modification. We may modify, alter or cancel any or all parts of the Licensed Data, these terms or our policies at any time without liability. Your continued use of the Licensed Data after notice of any changes represents an implicit acceptance of the changes.
2.3 Limitations. Except as otherwise set forth herein (including the Permitted Use), Licensee shall not copy, publish, reproduce, distribute, sell, transfer, sublicense, reverse engineer, disassemble or decompile the Licensed Data or any portion of them, or use the Licensed Data or any portion of them in connection with performing consulting services for third parties. Licensee’s marketing agencies and/or consultants may use the Licensed Data only to benefit Licensee as permitted hereunder.
3.1 Implementation. Licensor shall provide Licensee with reasonable assistance necessary to implement processes to receive the Licensed Data, including, without limitation, telephone, email and web-based support.
3.2 Delivery; Access. Licensor agrees to (a) make the Licensed Data available to Licensee through Licensor’s password-protected client-only website located at www.ypulse.com (the “Website”), and (b) unless as otherwise set forth herein, make the Licensed Data available to Licensee through the Website under the terms specified within an Order Form.
3.3 Support Services. Licensor shall: (a) provide to Licensee the reasonable technical support services to address and respond to any inquiries or problems associated with the availability and delivery of the Licensed Data and (b) respond to and rectify any material failure, malfunction, or defect associated with the Licensed Data or availability of the same, following telephonic, electronic or other notification by Licensee.
3.4 Service Levels. Licensor shall ensure that the Licensed Data and the Website are fully available to Licensee no less than 99% of the time each calendar month. The foregoing calculation is exclusive of the time that Licensor performs routine scheduled system maintenance. Licensor shall make every reasonable effort to ensure that routine scheduled system maintenance is performed during times that are believed to have the least impact on Licensee’s use of the Licensed Data and/or Website.
3.5 Resources. Licensor shall be solely responsible, at its own cost and expense, for procuring, configuring, operating, supporting, hosting and/or maintaining any facilities, equipment, communications, network infrastructure, devices, computer programs, operating, application and other software, documentation, information, data and materials, whether owned, licensed, or otherwise available or utilized, in order to perform the obligations of Licensor as required hereunder.
4.1 Fees. Subject to timely and proper performance of Licensor’s obligations, and notwithstanding any first-year inducements or promotional discounts as outlined within the Order Form, Licensee shall pay Licensor fees as outlined in the Order Form (the “Fees”) following the full execution of this Agreement by the Parties. Licensor shall provide Licensee with an invoice setting forth amounts due and Licensee shall make payment to Licensor within 30 days following Licensee’s receipt of such invoice.
4.2 Taxes. As between Licensee and Licensor, Licensor shall be responsible for determining, collecting and remitting all taxes that are required by law to be determined, collected and remitted in connection with the obligations performed under this Agreement.
4.3 Expenses in connection with Licensed Data. Except as otherwise agreed in writing by Licensee, the Fees set forth in the invoice shall be the total amount due to Licensor in connection therewith. In no event shall Licensee be required to reimburse Licensor for any costs and/or expenses in connection with the performance of Licensor’s obligations, the provision of the Licensed Data and/or otherwise in connection with Licensor’s compliance with the terms of this Agreement.
4.4 Reimbursable Expenses in connection with other Services. Licensee shall reimburse Licensor for all reasonable and necessary costs and expenses incurred with respect to the provision of the Services (each, a “Reimbursable Expense”). An item shall only be deemed a Reimbursable Expense if (a) Licensor has received the prior written approval from Licensee for any such cost or expense and (b) Licensor submits to Licensee all reasonably requested and required back-up receipts and substantiating documentation in connection therewith. If any travel is requested by Licensor, Licensee shall directly make such travel arrangements or shall reimburse Licensee for actual and verifiable, pre-approved costs incurred for any such travel in accordance with Licensee’s then-current travel and expense policy.
5.1 Confidential Information. For purposes of this Agreement, “Confidential Information” means any information that is not generally known to the public and that is or was used, developed or obtained by either Party in connection with its business or this Agreement; provided, however, that “Confidential Information” shall not include information that: (a) is or becomes publicly available through no fault, default or breach of or by the receiving Party, (b) was, prior to the time of disclosure to the receiving Party, rightfully acquired by the receiving Party from a third party without restriction or obligation of confidentiality or (c) was, prior to the time of disclosure to the receiving Party, independently developed by the receiving Party. For purposes hereof, (i) Licensed Data shall be considered the Confidential Information of Licensor and (iii) the terms of this Agreement shall be considered the Confidential Information of both Parties.
5.2 Non-Disclosure. During and after the Term, each Party agrees to hold the Confidential Information of the other Party in trust and confidence and shall not use and/or disclose to any third party such Confidential Information without the prior written consent of the disclosing Party. Each Party agrees to limit internal access to and disclosure of the other Party’s Confidential Information solely to its directors, officers and employees on a “need to know” basis for purposes directly related to the performance of the Party’s obligations hereunder. Each Party shall exercise the same care in preventing unauthorized disclosure and/or use of the other Party’s Confidential Information that it takes to protect its own proprietary and confidential information, but in no event less than reasonable care. Without limiting the foregoing, reasonable care shall be deemed to include: (a) informing each and every third party that is authorized to receive and/or have access to Confidential Information of the strictly confidential and sensitive nature thereof and requiring them to comply with these terms by obtaining their written acknowledgment and consent to keep such Confidential Information confidential on and subject to terms no less restrictive than the terms hereof and (b) immediately notifying the other Party of any actual, threatened or alleged violation or breach of the confidentiality of such Confidential Information and providing reasonable assistance to other Party to regain possession of the Confidential Information and to prevent further violations or breach hereof. During and after the Term, the Parties agree not to sell, rent, lease, transfer, encumber, pledge, reproduce, publish, transmit, translate, modify, reverse engineer, compile, disassemble, adapt, create derivative works from or otherwise use or allow anyone else to use, any such Confidential Information.
5.3 Limited Exception. If the receiving Party becomes legally compelled by a court of competent jurisdiction, administrative agency or by applicable law to disclose any of the disclosing Party’s Confidential Information, then the receiving Party shall: (a) immediately notify the disclosing Party of such demand, (b) provide reasonable cooperation to the disclosing Party in connection with any effort by the disclosing Party to seek a protective order or other appropriate remedy to prevent, restrict and/or otherwise limit the disclosure of such Confidential Information and (c) disclose only that portion of the Confidential Information that is legally required to be disclosed (subject to any protective order and/or other appropriate restrictions) and protect the Confidential Information from further disclosure to the extent permitted by applicable law.
5.4 Return of Confidential Information. Each Party agrees that, upon the expiration or earlier termination of this Agreement for any reason, the receiving Party shall immediately return to the disclosing Party any and all Confidential Information of such disclosing Party under such receiving Party’s control or in its possession and shall not at any time thereafter use, copy, reproduce, transmit or furnish to any third party any such Confidential Information.
5.5 Equitable Relief. In the event of a breach or threatened breach of the foregoing confidentiality obligations by a receiving Party, the Parties acknowledge that the disclosing Party may suffer immediate and irreparable harm for which money damages may be inadequate and impossible to calculate. Accordingly, in addition to any other remedy that may be available at law and/or in equity, the disclosing Party shall be entitled to seek an injunction, restraining order or other equitable relief to enforce compliance with the provisions hereof without requirement of posting bond or other security.
6.1 Term. The term of this Agreement (the “Term”) shall commence on the Effective Date and shall continue for 12 months (the “Initial Term”). Ypulse will initiate discussions to extend the Term of this Agreement 90 days prior to the end of each annual term .
6.2 Termination for Material Breach. Either Party shall have the right to terminate this Agreement if the other Party is in material breach of this Agreement and fails to cure such material breach within 30 days following written notice of such material breach.
6.3 Termination for Change of Control or Purported Assignment. Licensee shall have the right to terminate this Agreement immediately upon notice to Licensor in the event Licensor undergoes or effectuates a change in control where control is (a) acquired, directly or indirectly, in a single transaction or series of related transactions, or all or substantially all of Licensor’s assets are acquired, by any entity, or Licensor is merged with or into another entity to form a new entity or (b) the successor in interest that results from the change of control is in Licensee’s reasonable business judgment, a direct competitor of Licensee.
6.4 Termination for Insolvency. Either Party shall have the right to terminate this Agreement immediately upon written notice to the other Party in the event the other Party: (a) admits in writing its inability to pay its debts as they become due, fails to satisfy any judgment against it, or otherwise ceases operations of its business in the ordinary course, (b) is adjudicated bankrupt or becomes insolvent, (c) winds up or liquidates its business voluntarily or otherwise, (d) applies for, consents to or suffers the appointment of, or the taking of possession of by, a receiver, custodian, assignee, trustee, liquidator or similar fiduciary of itself or of all or any substantial portion of its assets, (e) makes a general assignment for the benefit of creditors, (f) commences a voluntary case under any state or federal bankruptcy laws (as now or hereafter in effect, (g) files a petition seeking to take advantage of any other law providing for the relief of debtors, (h) acquiesces to, or fails to have dismissed, within 30 days, any petition filed against it in any involuntary case pursuant to such bankruptcy laws and/or (i) takes any action for the purpose of effecting any of the foregoing.
6.5 Effect of Termination. Upon expiration or termination of this Agreement for any reason the rights and obligations of both Parties shall cease and any licenses granted by either Party to the other herein shall terminate and be of no further force or effect.
7.1 Mutual. Each Party represents, warrants and covenants to the other Party that: (a) it has the full corporate right, power and authority to enter into this Agreement and to perform the acts required of it under this Agreement, (b) the execution of this Agreement and performance of its obligations under this Agreement do not and shall not violate any other agreement to which it is a Party, (c) this Agreement constitutes the legal, valid and binding obligation of such Party when executed and delivered and (d) any and all activities it undertakes in connection with this Agreement shall be performed in compliance with all applicable laws, rules and regulations.
7.2 By Licensor. Licensor further represents, warrants and covenants to Licensee that: (a) the Licensed Data and any and all other information, content, products, services and materials provided by or through Licensor hereunder (collectively, the “Licensor Provided Materials”) shall substantially conform to and perform in accordance with the applicable specifications, requirements and criteria set forth or otherwise referred to in this Agreement, (b) the Licensor Provided Materials will be provided in a manner consistent with the highest standards in Licensor’s industry and in accordance with all applicable, laws, rules, regulations or policies (including, without limitation, all United States and European data protection laws and directives) and (c) Licensor owns, licenses and/or has all rights and interest necessary to grant Licensee the rights in and to the Licensor Provided Materials.
7.3 Disclaimer. EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES SET FORTH IN THIS AGREEMENT, ALL INFORMATION, PRODUCTS AND SERVICES PROVIDED BY ONE PARTY TO THE OTHER UNDER THIS AGREEMENT ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT REPRESENTATION OR WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
8.1 By Licensee. Licensee agrees to indemnify, defend and/or handle at its own cost and expense, and hold the Licensor Indemnitees harmless from and against any and all liabilities, losses, damages, costs and expenses (including, without limitation, reasonable attorneys’ fees) arising from any claim or action against Licensor, its officers, directors, employees, representatives, and agents (the “Licensor Indemnitees”) based upon or in connection with any action or claim by a third party arising out of any actual or alleged breach of Licensee’s representations, warranties and covenants contained in this Agreement, but specifically excluding any claim or action caused by, based on and/or arising out of the Licensor Provided Materials used in compliance with this Agreement and/or any act or omission of Licensor, its employees, contractors, representatives or agents in breach of this Agreement. Licensee shall solely conduct the defense of any such claim or action and all negotiations for its settlement or compromise; provided, however, that: (i) no settlement or compromise requiring Licensee to pay money or admit guilt shall be entered into or agreed to without Licensor’s prior approval and (ii) Licensor has the right to participate, at its own expense, in the defense and/or settlement of any such claim or action in order to protect its own interests.
8.2 By Licensor. Licensor agrees to indemnify, defend and/or handle at its own cost and expense, and hold the Licensee Indemnitees harmless from and against any and all liabilities, losses, damages, costs and expenses (including, without limitation, reasonable attorneys’ fees) arising from any claim or action against Licensee, its affiliates and their officers, directors, employees, representatives and agents (the “Licensee Indemnitees”) based upon or in connection with any action or claim by a third party arising out of: (a) the Custom Research Services, (b) any actual or alleged breach of any of Licensor’s representations, warranties and covenants contained in this Agreement and (c) Licensee’s use of the Licensor Provided Materials used in compliance with this Agreement, including, but not limited to, any claim that the Licensor Provided Materials violate a third party’s intellectual property right, but specifically excluding any such claim or action caused by or based upon any act or omission of Licensee, its employees, contractors, representatives or agents in breach of this Agreement. Licensor agrees to indemnify and hold the Licensee Indemnitees harmless from and against any and all liabilities, losses, damages, costs and expenses (including, without limitation, reasonable attorneys’ fees) associated with any such claim or action. Licensor shall solely conduct the defense of any such claim or action and all negotiations for its settlement or compromise; provided, however, that: (i) no settlement or compromise shall be entered into or agreed to without Licensee’s prior approval and (ii) Licensee has the right to participate, at its own expense, in the defense and/or settlement of any such claim or action in order to protect its own interests.
8.3 Limitation of Liability. EXCEPT FOR EACH PARTY’S INDEMNIFICATION OBLIGATIONS HEREIN, ANY DAMAGES RESULTING FROM ANY BREACH OF EITHER PARTY’S CONFIDENTIALITY OBLIGATIONS HEREIN, ANY DAMAGES RESULTING FROM A PARTY’S FRAUD, WILLFUL ACTS, INTENTIONAL MISCONDUCT OR GROSS NEGLIGENCE, AND/OR ANY DAMAGES RESULTING FROM A PARTY’S VIOLATION OF ANY DATA PROTECTION LAWS, RULES OR REGULATIONS, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES IN ANY MANNER IN CONNECTION WITH OR ARISING OUT OF THIS AGREEMENT, REGARDLESS OF THE FORM OF ACTION OR THE BASIS OF THE CLAIM OR WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
9.1 No Assignment. This Agreement shall be binding upon and shall inure to the benefit of the Parties and their permitted assigns. Neither Party shall assign and/or otherwise transfer this Agreement or its rights or obligations hereunder without the prior consent of the other Party and any purported assignment without such consent shall be void ab initio and of no force and effect; provided, however, that either Party may assign this Agreement in its entirety, without the consent of the other Party, to an entity which directly or indirectly controls, is controlled by, or is under common control with the assigning party, or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets.
9.2 Relationship; No Third Party Beneficiaries. Each Party is an independent contractor and each Party’s personnel are not employees or agents of the other Party for federal, state or other tax purposes or any other purposes whatsoever. Personnel of one Party have no authority to make representations, commitments, bind or enter into contracts on behalf of or otherwise obligate the other Party in any manner whatsoever. Nothing in this Agreement shall be construed or deemed to constitute, create, give effect to or otherwise recognize a joint venture, partnership, business entity of any kind, nor constitute one Party an agent of the other Party. There are no third party beneficiaries, actual or intended, under this Agreement. For the avoidance of doubt, nothing in this Agreement shall preclude Licensee from entering into any other arrangements with any third party for such third party to provide similar or equivalent services to Licensee, nor for Licensor to enter into any other arrangements with any third party to provide similar or equivalent services to that third party.
9.3 Notices. All notices and other communications required or permitted under this Agreement shall be in writing and delivered: (a) personally, (b) by first class mail, postage prepaid, certified and return receipt requested or (c) via a nationally recognized overnight courier, to the applicable Party at the addresses set forth below, unless, by notice, a Party changes or supplements the addressee and addresses for giving notice. All notices shall be deemed given on the date delivered personally, on the date delivered by courier (with proof of delivery) or five days after deposit in the mail as specified.
If to Licensor:
39 Broadway, Suite #2010
New York, NY 10006
9.4 Publicity; Press Releases. Neither Party shall be entitled to use the name, service or trademarks, logos or otherwise identify or refer to the other Party and/or the transactions contemplated by this Agreement in any press releases, publicity, marketing or promotional material without the prior, express approval of such other Party in each instance. Licensee shall be entitled to use the Licensed Data contemplated by this Agreement in any press releases, publicity, marketing or promotional material without the prior, express approval of the Licensor.
9.5 Governing Law. This Agreement and all disputes, claims, actions, suits or other proceedings arising hereunder shall be governed by, and construed in accordance with, the substantive law of the State of New York applicable to contracts wholly made and to be performed within the State of New York. Each Party irrevocably submits to the sole and exclusive jurisdiction of the courts of New York State and the Federal courts of the Southern District of New York, situated in the City, County and State of New York. 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 New York is an inconvenient forum.
9.6 Counterparts and Interpretation. This Agreement may be executed in any number of counterparts (including, without limitation, in facsimile, PDF or other electronic form), all of which taken together shall constitute one single agreement between the Parties. Headings are for convenience only and are not to be considered in construing or interpreting this Agreement. The terms “include,” “includes,” and “including,” whether or not capitalized, mean “include, but are not limited to,” “includes, but is not limited to,” and “including, but not limited to,” respectively and are to be construed as inclusive, not exclusive.
9.7 Consents. Except as specifically set forth in this Agreement, all consents, requests and approvals to be given by either Party under this Agreement shall (a) be in writing (and not by email unless otherwise specified in each instance) and (b) not be unreasonably withheld. Each Party shall make only reasonable requests under this Agreement.
9.9 Survival. Any provision of this Agreement which, either by its terms or to give effect to its meaning, must survive, including, without limitation, Section 2.3, Article 5, Article 6, Article 8, Article 9 and this Article 10 shall survive the cancellation, expiration or termination of this Agreement.
9.11 No Exclusive Remedies. Except as may be expressly set forth in this Agreement, any remedies set forth in this Agreement shall be in addition to, and each Party hereby cumulatively reserves, all other remedies and rights available to such Party under this Agreement and in law and in equity.
9.12 Excusable Delay. In no event shall either Party be liable, one to the other, for any delay or failure in the performance of its obligations hereunder, arising out of or caused by circumstances outside such Party’s reasonable control and without such Party’s fault.