Eastbridge Consulting Group, Inc. (“ECG”) has developed and owns the rights to conduct and deliver on its Sales Connect Portal (the “Tool”). The Subscriber wishes to subscribe to a limited, non-exclusive, non-sublicensable, non-transferable license to receive the deliverables relating to the Tool on the terms and conditions set out below.
1. Definitions. In this Agreement the following words and phrases shall, unless the context otherwise requires, have the following meanings:
1.A “Agreement” means this Agreement providing for the Subscriber’s subscription to the Tool.
1.B “Data” means the quantitative information contained in the Tool and or which Subscriber supplies to ECG for inclusion in the deliverables related to the Tool.
1.C “Subscriber” means a subscriber who participates in the Tool.
1.D “Fees” mean the fees per Subscription Year as specified in the Subscription Order Form.
1.E “Subscription Year” means [the one-year period following Subscriber’s acceptance of this Agreement as specified in the Subscription Order Form].
a. This Agreement shall be in force for the initial term of one year as specified in the Subscription Order Form and shall thereafter automatically renew for successive one (1) year periods (each, a “Renewal Term” and collectively, together with the Initial Term, the “Term”) unless either party notifies the other in writing at least three (3) months before expiration that it will not renew.
b. Either party may terminate this Agreement by reason of material breach hereof by the other party, which breach shall not have been cured within thirty (30) days following receipt of written notice thereof by the non-breaching party.
c. Upon termination of this Agreement, all obligations of ECG to provide the rights of Subscriber to participate in the Tool shall immediately cease. Promptly upon termination, Subscriber shall pay ECG all amounts due (e.g. unpaid fees and any other costs imposed herein).
3. Fees. The Fees are as defined above and are exclusive of any expenses or applicable taxes such GST/VAT. The Subscriber will be responsible for the payment of any such taxes and will pay any expenses separately invoiced by ECG within 30 days from the date of such invoice. [The amount of Fees due following the Initial Term shall automatically increase at the commencement of each Renewal Term by a rate equal to 5 % [*] percent.]
4. Deliverables. In consideration of paying the Fees, the Subscriber shall receive the Tool.
5.Warranties. NOTWITHSTANDING ANYTHING TO THE CONTRARY OR INCONSISTENT HEREWITH, ECG PROVIDES THE TOOL “AS IS”, THERE ARE NO, AND ECG EXPRESSLY DENIES AND REJECTS, ANY WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT TO, WARRANTIES OF ACCURACY, COMPLETENESS OR TIMELINESS, OR THE IMPLIED WARRANTIES OF MERCHANTABILITY, INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE OF THE DATA OR DELIVERABLES ECG PRODUCES, AND ECG DISCLAIMS ANY AND ALL SUCH REPRESENTATIONS AND WARRANTIES. ADDITIONALLY, THERE ARE NO, AND ECG EXPRESSLY DENIES AND REJECTS ANY WARRANTIES AS TO THE CORRECTNESS, ACCURACY, PRECISION, OR COMPLETENESS OF THE DATA OR DELIVERABLES IN THE TOOL. NEITHER ECG NOR ITS LICENSORS SHALL BE LIABLE FOR ANY ERRORS, DEFECTS, PROBLEMS, OR OMISSIONS IN OR RELATING TO SUBSCRIBER’S USE OF THE TOOL. THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND EFFORT IS WITH SUBSCRIBER. SUBSCRIBER ACKNOWLEDGES THAT, BECAUSE OF THE NATURE OF SOFTWARE AND THE INTERNET, THE TOOL MAY NOT BE ACCESSIBLE WHEN NEEDED, AND THAT INFORMATION TRANSMITTED OVER THE INTERNET (INCLUDING, BUT NOT LIMITED TO, DATA UPDATES,) MAY BE SUBJECT TO THIRD PARTY INTERCEPTION AND MODIFICATION.
6. Limitation of Liability. ECG’s aggregate liability shall be limited to an amount equal to the Fees paid to ECG by the Subscriber in the Subscription Year any such liability for loss or damage arises. IN NO EVENT SHALL ECG BE LIABLE TO THE SUBSCRIBER OR ANY THIRD PARTY FOR SPECIAL, INDIRECT, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES, WHETHER IN CONTRACT OR TORT, OR FOR ANY LOSS OF PROFITS OR LOSS OF GOODWILL UNDER THIS AGREEMENT, EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHICH THE OTHER PARTY OR ANY THIRD PARTY MAY INCUR OR EXPERIENCE DUE TO RELIANCE ON OR IN CONNECTION WITH THIS AGREEMENT. HOWEVER, ANY EXCLUSION OF LIABILITY IN THIS AGREEMENT SHALL APPLY ONLY TO THE EXTENT PERMISSIBLE BY LAW.
7. The Subscriber’s Publication of Information. Use of the Tool, or any portion thereof, in any media distributed outside Subscriber’s entity (e.g., press releases, annual reports, or promotional materials), shall not be permitted, except to the extent that ECG shall have given its prior written consent following written request by Subscriber in each instance, which consent may be granted or withheld in ECG’s sole discretion. If such written consent is granted by ECG, any disclosure or publication or any kind related to the Tool must first be provided to ECG in its proposed format. ECG must provide written confirmation that the Tool or any part thereof is accurately referenced in the proposed publication before the Subscriber can publicize that data, and ECG shall have a reasonable time (of not less than five (5) business days) to do so.
8. Intellectual Property Rights. The Subscriber acknowledges and agrees that ECG duly owns or is licensed to use all intellectual property rights, including copyrights, trademarks and other intellectual property rights inherent therein or appurtenant thereto, any modifications, or copies thereof, all rights in the methodology, Data, analysis, and all materials delivered by ECG to the Subscriber under this Agreement. ECG may disclose additional information to Subscriber in the form of upgrades, documentation or other support during the Term. User agrees that such information shall also be deemed intellectual property owned by ECG.
9. License. ECG grants the Subscriber a limited, non-exclusive, non-sublicensable, non-transferable license to use all materials delivered for the Subscriber’s internal distribution. Without limitation of the foregoing, no external redistribution rights are granted by this Agreement, except to the extent permitted by ECG in its sole discretion; and Subscriber shall not, other than with the prior written consent of ECG, permit any third party to access the Tool or any part thereof. The Subscriber shall not remove or destroy any copyright, trademark or other proprietary markings or notices or other legends placed by ECG on the materials so provided, or any attribution, sourcing, limitation of liability or disclaimer notices, or any caveats, restrictions or similar language of ECG or its licensors provided with the Tool, and shall comply in all respects with such notices, disclaimers and the like. The Subscriber recognizes and agrees that nothing contained in this Agreement or in law shall be construed as granting any right, title or interest to the Data or the analysis produced by ECG under this Agreement, or rights to any other ECG intellectual property, except as expressly set forth in this Agreement. In addition, the Subscriber agrees that it will not, nor will it permit, the copying, reproduction, or modification of the Tool or any part thereof produced pursuant to this Agreement.
10. Dispute Resolution. If any dispute arises in connection with this Agreement, directors or other senior representatives of the parties with authority to settle the dispute will, within fourteen (14) days of a written request from one party to the other, meet in a good faith effort to resolve the dispute. If the parties are unable to achieve a settlement of the dispute, then either of them is entitled to institute proceedings.
11. Data Protection and Privacy. ECG agrees that it shall not directly or indirectly collect, store, process, disseminate or use any personal information other than email addresses of users of the Tool, or as expressly permitted by this Agreement, or as directed by the Subscriber in writing. ECG will comply with applicable federal and state laws and regulations related to the protection of personal information and privacy.
a. Confidential Information means all information provided by the Subscriber to ECG or vice versa, including, without limitation, this Agreement, the Tool, any documents, notes, memoranda, tape recordings, electronic or any other media exchanged by ECG and the Subscriber related to the Tool. Confidential Information does not include information already within the public domain or any information the Subscriber specifically authorizes in writing be released.
b. Non-Disclosure. ECG and the Subscriber agree that they shall not disclose the Confidential Information to any person or entity not a party to this Agreement unless required by applicable law or as otherwise agreed by both in writing; provided, however, either may disclose the Confidential Information only to officers, directors, or employees of that entity who have a specific need to know the information.
13. Indemnification. Subscriber shall indemnify, defend and hold harmless ECG and its officers, directors, agents and employees from and against any all claims of loss, liability, damages, costs and expenses (including reasonable attorneys' fees) (the “Claims”) made against or sustained by any of them based on or arising out of any breach or inaccuracy of any representation or warranty of Subscriber or any breach of any obligation of Subscriber hereunder.
14. Distribution to Affiliates Notwithstanding anything to the contrary in this Agreement, Subscriber may disclose the Data or deliverables in the Tool to its Affiliates solely for the internal use and benefit of such Affiliates and subject to the other terms and conditions of the Agreement, provided that Subscriber shall be responsible and liable for such Affiliates’ compliance with the terms and conditions of the Agreement to the same extent it is responsible and liable for its own acts or omissions under the Agreement. The term “Affiliate” means any entity that controls, is controlled by, or is under common control with Subscriber, where “control” means the ability to direct an entity’s management by ownership, contract or otherwise.
a. Assignment. This Agreement is not assignable by the Subscriber without the prior written consent of ECG. Any assignment made without such consent shall be null and void.
b. Force Majeure. Neither party will be liable to the other for breach of its obligations under the Agreement caused by circumstances beyond its reasonable control, including, without limitation, lightning, flood, exceptionally severe weather, epidemics, pandemics, fire, explosion, war, terrorism, civil disorder, industrial dispute, or any change in law promulgated by or any action or decision taken by a government or public authority (including, without limitation, failing to grant a necessary license or consent) think of (“Force Majeure”). If a party is unable to perform all of its duties for a continuous period of 30 days due to Force Majeure, the other party may terminate this Agreement by giving 30 days’ prior written notice.
c. Third Parties. The rights of third parties based on the existence of this Agreement are expressly excluded from this Agreement, except for the rights of indemnified parties specified herein.
d. Severability. If any provision of this Agreement is held to be unenforceable, that provision will be severed, and the remainder of this Agreement will continue in full force and effect.
e. Entire Agreement. This Agreement constitutes the entire understanding and agreement between ECG and the Subscriber relating to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings and agreements relating to such subject matter.
f. Jurisdiction, Choice of Law and Venue. This Agreement and all claims or causes of action (whether in contract or tort) arising out of or related to it shall be governed by and construed in accordance with the laws of the State of New York, without reference to the conflict of law principles of that state. Both parties irrevocably submit to the exclusive jurisdiction of the federal and state courts of New York.