Exhibit A – Third Party Products
ANIMATED PERSONAS DATA
Animated Personas Data is consumer data relating to specific customer segments.
THIRD-PARTY PRODUCT EULA
Animated Personas Data License Agreement
This Data License Agreement (this “Agreement“), effective as of the Start Date on the Order Form (the “Effective Date“), is by and between GORMAN STRATEGY GROUP, LLC, d/b/a PERSONAPANELS, a Pennsylvania limited liability company, with offices at 2040 Roosevelt Highway, Honesdale, Pennsylvania 18431 (“Licensor“) and Customer (referred to in this Agreement as “Licensee“). Licensor and Licensee may be referred to herein collectively as the “Parties” or individually as a “Party.”
WHEREAS Licensor has compiled data into the proprietary data compilation described in Annex A, and such proprietary data compilation is referred to in this Agreement as the “Animated Personas Data“;
WHEREAS, Licensee is entering into an agreement with Relative Insight Inc. (“APD Provider”), for the provision of language analysis software (“Software”) referred to as the “SaaS Agreement”, and Licensor desires to license the Animated Personas Data to Licensee for use with the Software, and Licensee desires to license the Animated Personas Data from Licensor for use with the Software, subject to the terms and conditions of this Agreement. Licensor and Licensee specifically acknowledge and agree that the terms for payment for the license to use the Animated Personas Data from Licensee to Licensor shall be incorporated into the SaaS Agreement between Licensee and APD Provider.
NOW, THEREFORE, in consideration of the mutual covenants, terms, and conditions set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
- License Grant. Subject to the terms and conditions of this Agreement, Licensor hereby grants Licensee a non-exclusive, non-sublicensable, and non-transferable license during the Term to use the Animated Personas Data solely for the permitted use set forth in Annex A (the “Permitted Use“). Licensee’s Permitted Use of this License is expressly conditioned upon Licensee’s compliance with the terms and conditions of this Agreement and Licensee’s compliance with the SaaS Agreement with APD Provider.
- Use Restrictions. Licensee shall only use the Animated Personas Data for the Permitted Use and shall not disclose, release, distribute, or deliver the Animated Personas Data, or any portion thereof, to any third party without Licensor’s prior written consent. Any purpose or use not specifically authorized herein is prohibited unless otherwise agreed to in writing by Licensor. Without limiting the foregoing and except as otherwise expressly set forth in this Agreement, Licensee shall not at any time, directly or indirectly: (i) copy, modify, or create derivative works of the Animated Personas Data, in whole or in part; (ii) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Animated Personas Data; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to the source of the Animated Personas Data or methods used to compile the Animated Personas Data, in whole or in part; (iv) remove any proprietary notices included within the Animated Personas Data; (v) publish, enhance, or display any compilation or directory based upon information derived from the Animated Personas Data; or (vi) use the Animated Personas Data in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law.
- Reservation of Rights. Licensor reserves all rights not expressly granted to Licensee in this Agreement. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Licensee or any third party any intellectual property rights or other right, title, or interest in or to the Animated Personas Data.
- Delivery. Licensor shall procure the delivery of the Animated Personas Data electronically, on tangible media, or by other means at the necessary frequency for APD Provider to perform the Services under the SaaS agreement with the Licensee.
- Confidential Information and Animated Personas Data Security.
- Confidential Information. From time to time during the Term, either Party may disclose or make available to the other Party information about its business affairs, products, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, whether orally or in written, electronic, or other form or media/in written or electronic form or media, that is/and whether or not marked, designated, or otherwise identified as “confidential” (collectively, “Confidential Information“). Without limiting the foregoing, for purposes of this Agreement, the Animated Personas Data will be deemed Confidential Information of Licensor. Confidential Information does not include information that, at the time of disclosure is: (i) in the public domain; (ii) known to the receiving Party at the time of disclosure; (iii) rightfully obtained by the receiving Party on a non-confidential basis from a third party; or (iv) independently developed by the receiving Party. The receiving Party shall not disclose the disclosing Party’s Confidential Information to any person or entity, except to the receiving Party’s employees who have a need to know the Confidential Information for the receiving Party to exercise its rights or perform its obligations hereunder. Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required (x) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the Party making the disclosure pursuant to the order shall first have given written notice to the other Party and made a reasonable effort to obtain a protective order; or (y) to establish a Party’s rights under this Agreement, including to make required court filings. On the expiration or termination of this Agreement, the receiving Party shall promptly return to the disclosing Party all copies, whether in written, electronic, or other form or media, of the disclosing Party’s Confidential Information, or destroy all such copies and certify in writing to the disclosing Party that such Confidential Information has been destroyed. Each Party’s obligations of non-disclosure with regard to Confidential Information are effective as of the Effective Date and will expire five years from the date first disclosed to the receiving Party; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations of non-disclosure will survive the termination or expiration of this Agreement for as long as such Confidential Information remains subject to trade secret protection under applicable law.
- Animated Personas Data Security. Licensee shall use all reasonable legal, organizational, physical, administrative, and technical measures and security procedures to safeguard and ensure the security of the Animated Personas Data and to protect the Animated Personas Data from unauthorized access, disclosure, duplication, use, modification, or loss.
- Intellectual Property Ownership. Licensee acknowledges that, as between Licensee and Licensor, Licensor owns all right, title, and interest, including all intellectual property rights, in and to the Animated Personas Data. Licensee further acknowledges that: (a) the Animated Personas Data is an original compilation protected by United States copyright laws; (b) Licensor has dedicated substantial resources to collect, manage, and compile the Animated Personas Data; and (c) the Animated Personas Data constitutes trade secrets of Licensor.
- Disclaimer of Warranties. THE DATA IS PROVIDED “AS IS” AND LICENSOR HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. LICENSOR SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. LICENSOR MAKES NO WARRANTY OF ANY KIND THAT THE DATA, OR ANY PRODUCTS OR RESULTS OF ITS USE, WILL MEET LICENSEE’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE.
- Licensor Indemnification.
- Licensor shall indemnify, defend, and hold harmless Licensee from and against any and all losses, damages, liabilities, or costs (including reasonable attorneys’ fees) (“Losses“) incurred by Licensee resulting from any third-party claim, suit, action, or proceeding (“Third-Party Claim“) that Licensee’s Permitted Use of the Animated Personas Data infringes or misappropriates such third party’s intellectual property and/or data privacy rights, provided that Licensee promptly notifies Licensor in writing of the claim, cooperates with Licensor, and allows Licensor sole authority to control the defense and settlement of such claim.
- If such a claim is made or appears possible, Licensee agrees to permit Licensor, at Licensor’s sole discretion, to (A) modify or replace any such infringing part of feature of the Animated Personas Data to make it non-infringing, or (B) obtain rights to continue use. If Licensor determines that none of these alternatives are reasonably available, Licensor may terminate this Agreement, in its entirety or with respect to the affected part or feature of the Animated Personas Data, effective immediately on written notice to Licensee.
- This Section 5(a) will not apply to the extent that the alleged infringement arises from (A) use of the Animated Personas Data in combination with data, software, hardware, equipment, or technology not provided by Licensor or authorized by Licensor in writing (for the avoidance of doubt, use of the Animated Personas Data in combination with the Software shall be deemed to be authorized in writing) or (B) Licensee’s violation of Section 1(b) of this Agreement.
- Licensee Indemnification. Licensee shall indemnify, hold harmless, and, at Licensor’s option, defend Licensor from and against any Losses resulting from any Third-Party Claim based on Licensee’s: (i) negligence or willful misconduct; or (ii) use of the Animated Personas Data in a manner not authorized by this Agreement, provided that Licensee may not settle any Third-Party Claim against Licensor unless such settlement completely and forever releases Licensor from all liability with respect to such Third-Party Claim or unless Licensor consents to such settlement, and further provided that Licensor shall have the right, at its option, to defend itself against any such Third-Party Claim or to participate in the defense thereof by counsel of its own choice.
- Sole Remedy. THIS SECTION 5 SETS FORTH LICENSEE’S SOLE REMEDIES AND LICENSOR’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE DATA INFRINGES, MISAPPROPRIATES, OR OTHERWISE VIOLATES ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.
- Licensor Indemnification.
- Limitations of Liability. IN NO EVENT WILL LICENSOR BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY (a) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES, (b) INCREASED COSTS, DIMINUTION IN VALUE, OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS, (c) LOSS OF GOODWILL OR REPUTATION, (d) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY, OR RECOVERY OF ANY DATA OR BREACH OF DATA OR SYSTEM SECURITY, OR (e) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER LICENSOR WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. IN NO EVENT WILL LICENSOR’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, EXCEED $18,000. The limitation and exclusions in this Section 6 do not apply to liabilities under Sub-Section 5(a).
- Term and Termination.
- Term. The term of this Agreement begins on the Effective Date and, unless terminated earlier pursuant to any of this Agreement’s express provisions, will continue in effect for the duration of the project involving Animated Personas Data under the SaaS Agreement.
- Termination. In addition to any other express termination right set forth elsewhere in this Agreement:
- Licensor may terminate this Agreement, effective on written notice to Licensee, if Licensee breaches any of its obligations under Section 1(b) or Section 2 of this Agreement and/or upon notification from APD Provider of Licensee’s failure to comply with the terms of the SaaS Agreement;
- either Party may terminate this Agreement, effective on written notice to the other Party, if the other Party materially breaches this Agreement, and such breach: (A) is incapable of cure; or (B) being capable of cure, remains uncured 30 days after the non-breaching Party provides the breaching Party with written notice of such breach; or
- either Party may terminate this Agreement, effective immediately upon written notice to the other Party, if the other Party: (A) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (B) files, or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (C) makes or seeks to make a general assignment for the benefit of its creditors; or (D) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
- Effect of Expiration or Termination. Upon expiration or earlier termination of this Agreement, the license granted hereunder will also terminate, and, without limiting Licensee’s obligations under Section 2, Licensee shall cease using and on request delete, destroy, or return all copies of the Animated Personas Data and certify in writing to the Licensor that the Animated Personas Data has been deleted or destroyed.
- Survival. Any rights, obligations, or required performance of the parties in this Agreement which, by their express terms or nature and context are intended to survive termination or expiration of this Agreement, will survive any such termination or expiration, including the rights and obligations set forth in this Section 7(d), Section 2, Section 5, Section 6 and Section 8.
- Entire Agreement. This Agreement including the Exhibits constitutes the sole and entire agreement of the Parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, and representations and warranties, both written and oral, with respect to such subject matter. In the event of any inconsistency between the statements made in the body of this Agreement, the related Exhibits, and any other documents incorporated herein by reference, the following order of precedence governs: (i) first, this Agreement, excluding its Exhibits; (ii) second, the Exhibits to this Agreement as of the Effective Date; and (iii) third, any other documents incorporated herein by reference.
- Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice“) must be in writing and addressed to the Parties at the addresses set forth on the first page of this Agreement (or to such other address that may be designated by each Party from time to time in accordance with this Section). The Parties shall deliver Notices by personal delivery, nationally recognized overnight courier (with all fees pre-paid) or certified or registered mail (in each case, return receipt requested, postage pre-paid). Except as otherwise provided in this Agreement, a Notice is effective only: (i) upon receipt by the receiving Party, and (ii) if the Party giving the Notice has complied with the requirements of this Section.
- Force Majeure. In no event shall Licensor be liable to Licensee, or be deemed to have breached this Agreement, for any failure or delay in performing its obligations under this Agreement, if and to the extent such failure or delay is caused by any circumstances beyond Licensor’s reasonable control, including, without limitation, the following force majeure events: (i) acts of God or other natural disaster; (ii) flood, fire, earthquake or explosion; (iii) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (iv) government order, law, or actions; (v) embargoes or blockades in effect on or after the date of this Agreement; (vi) epidemics and pandemics; and (vii) national or regional emergency; (vii) strikes, labor stoppages or slowdowns, or other industrial disturbances.
- Amendment and Modification; Waiver. No amendment to or modification of this Agreement is effective unless it is in writing and signed by an authorized representative of each Party. No waiver by any Party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement, (i) no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof, and (ii) no single or partial exercise of any right, remedy, power, or privilege hereunder will preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
- Severability. If any provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the Parties shall negotiate in good faith to modify this Agreement so as to effect the original intent of the Parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
- Governing Law; Submission to Jurisdiction. This Agreement and any dispute or claim arising out it shall be governed by and construed in accordance with the law of the Commonwealth of Pennsylvania. The courts of the Commonwealth of Pennsylvania shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this Agreement or its subject matter or formation.
- Assignment. Neither Party may assign or transfer any of its rights or delegate any of its obligations hereunder, in each case whether voluntarily, involuntarily, by operation of law, or otherwise. Any purported assignment, transfer, or delegation in violation of this Section is null and void.
- Export Regulation. The Animated Personas Data may be subject to US export control laws, including the Export Control Reform Act and its associated regulations. Licensee shall not, directly or indirectly, export, re-export, or release the Animated Personas Data to, or make the Animated Personas Data accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation. Licensee shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the Animated Personas Data available outside the US.
- Equitable Relief. Each Party acknowledges and agrees that a breach or threatened breach by such Party of any of its obligations under Section 2 or, in the case of Licensee, Section 1(b) would cause the other Party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other Party will be entitled to equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.
- Counterparts. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement.
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the Effective Date.
Capitalized terms used but not defined in this Annex A have the meaning given to those terms in the Agreement.
- DESCRIPTION OF DATA: consumer data relating to specific customer segments.
- PERMITTED USE(S): Use of the Animated Personas Data in combination with the Software for the benefit of Licensee in the ordinary course of its internal business operations.
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