DATA LICENCE AGREEMENT
The Supplier owns the copyright and any database rights in the Data (as defined below). The Supplier has agreed to provide the Services (as defined below) on the terms set out in this Agreement. As part of the Services, the Supplier has agreed to license to the Customer the use of all copyright and database rights in the Data (as defined below) for a specific business purpose on the terms set out in this Agreement.
1.1 The definitions and rules of interpretation in this clause apply in this Agreement and in any other agreement between the parties.
Authorised Person: means in relation to either party: (i) any director, officer, employee or professional advisor of that party to whom the disclosure of Confidential Information is necessary in order to enable that party to perform obligations or exercise rights pursuant to this Agreement; (ii) any body which regulates that party in any jurisdiction, if disclosure to that body is mandated by applicable law or relevant regulation; (iii) the insurers, brokers and auditors of that party; and (v) any service providers providing administrative and similar support services to that party in the ordinary course of business in connection with the performance of obligations under this Agreement and to whom disclosure of Confidential Information is necessary to enable that party to perform obligations or exercise rights pursuant to this Agreement.
Confidential Information:all financial, business and technical and all other information (regardless of its form or the medium in which it is stored) concerning the business and affairs of a party or of a confidential nature that the other party obtains, receives or has access to, before or after the date of this Agreement, in connection with, or in the performance of, the Agreement.
Customer System: any information technology system or systems owned or operated by the Customer to which Data is delivered or within which Data is Distributed in accordance with this Agreement.
Customer User:any employee of the Customer authorised by the Customer to access and use the Services (wholly or in part).
Customer User Restrictions: the obligations set out in Schedule 1.
Data: the data or information, in whatever form including images, still and moving, and including financial and market research information, the provision of which comprises the Services (wholly or in part).
Derived Data: any Data (wholly or in part):
Distribute: to make Data accessible (including the provision of access through a database or other application populated with the Data, transferring or disclosing the Data) by any means, including any electronic means, to any Customer User.
Effective Date: date of acceptance of the Agreement by the Customer.
Fees:the monthly subscription fees specified on the Website and in the purchase invoice.
Force Majeure Event: means an event beyond a Party's reasonable control (but in each case only to the extent actually beyond the control of the Party seeking to rely on that event as a Force Majeure Event), including: (i) extreme abnormal weather conditions; (ii) nuclear, chemical or biological contamination; (iii) war, civil commotion or terrorist attack; (iv) interruption or failure of a utility service including electric power, gas or water; (v) acts of God, floods or earthquakes; (vi) epidemic or pandemic; or (vii) the imposition of a sanction, embargo or breaking off of diplomatic relations, but excluding in each case strikes or other forms of industrial action by the employees, agents or subcontractors of that Party, or any change in applicable law or relevant regulation.
Initial Period: the period commencing on the Effective Date that is specified in the purchase invoice.
Insolvency Event: (i) any procedure commenced with a view to the winding-up or re-organisation of such party; (ii) any step taken or any procedure is commenced with a view to the appointment of an administrator, receiver, administrative receiver or trustee in bankruptcy in relation to such party or all or substantially all of its assets; (iii) the holder of any security over all or substantially all of the assets of such party takes any step to enforce that security; (iv) all or substantially all of the assets of such party is subject to attachment, sequestration, execution or any similar process; (v) such party is unable to pay its debts as they fall due; (vi) such party enters into, or any step is taken, whether by the board of directors of such party or otherwise, towards entering into a composition or arrangement with its creditors or any class of them, including a company voluntary arrangement or a deed of arrangement; or (vii) such party enters into, or any step is taken, whether by the board of directors of such party or otherwise, towards any analogous procedure under the laws of any jurisdiction to the procedures set out in (i) to (vi) above.
Intellectual Property Rights:means: (i) rights in, and in relation to, any patents, registered designs, design rights, trade marks, trade and business names (including goodwill associated with any trade marks or trade and business names), copyright and related rights, moral rights, databases, domain names, semi-conductor and other topography rights and utility models, and including registrations and applications for, and renewals or extensions of, such rights, and similar or equivalent rights or forms of protection in any part of the world; (ii) rights in the nature of unfair competition rights and to sue for passing off and for past infringement; and (iii) trade secrets, confidentiality and other proprietary rights, including rights to know how and other technical information.
Licence:the licence granted in Clause 10.
Manipulate: to combine or aggregate the Data (wholly or in part) with other data or information or to adapt the Data (wholly or in part).
Manipulated Data:any Data which has been Manipulated. Manipulated Data includes any Derived Data.
Mark:means the trade marks, trade names, product or service names, logos, slogans, typefaces, brand or other proprietary words or symbols used by the Supplier from time to time.
Materials: any documents or software supplied by the Supplier under this Agreement.
Permitted Use: internal business use (which shall not include the use of the Data or the Materials by, or for the benefit of, any person other than an employee of the Customer).
Release: generally available upgrades and enhancements to the Data.
Renewal Period:each successive period after the Initial Period for which this Agreement is renewed, as specified in the purchase invoice.
Services: the services to be supplied by the Supplier under this Agreement, including the supply of any Data, Materials, or Support.
Software: any software provided by the Supplier to enable the Services to be used including any Releases.
Support: the support to be supplied by the Supplier including reasonable efforts to assist the Customer to access the Data.
Term: the Initial Period and any Renewal Periods.
Website: means any webpage of the Supplier, including but not limited to www.kaiko.com.
1.2 The headings in this Agreement are inserted for convenience only and shall not affect its construction.
1.3 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
1.4 The schedules form part of this Agreement and shall have effect as if set out in full in the body of this Agreement. Any reference to this Agreement includes the schedules.
1.5 A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
1.6 Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.
1.7 A reference to a particular law is a reference to it as it is in force for the time being taking account of any amendment, extension, or re-enactment and includes any subordinate legislation for the time being in force made under it.
1.8 References to clauses and schedules are to the clauses and schedules of this Agreement and references to paragraphs are to paragraphs of the relevant schedule.
1.9 Any words following the termsincluding,include,in particular orfor example or any similar phrase shall be construed as illustrative and shall not limit the generality of the related general words.
1.10 If there is any uncertainty between any provision contained in the body of this Agreement and any provision contained in the Schedules or appendices, the provision in the body of this Agreement shall prevail.
During the Term the Supplier shall supply the Services to the Customer and the Customer shall pay the Fees and use the Services.
3.1 The Supplier shall use reasonable efforts to make connection to the Services available on the Effective Date.
3.2 The Customer shall ensure that it promptly complies with any minimum hardware configuration requirements specified by the Supplier to establish connectivity between the Customer System and the Services.
3.3 Each party shall bear its own costs of establishing that connectivity.
4.1 During the Term the Supplier shall supply the Services to the Customer.
4.2 The Supplier may change at any time, with as much prior notice to the Customer as is reasonably practicable:
5.1 For the performance of the Services, the Customer shall pay to the Supplier the Fees on a monthly basis. The Fees shall be due and payable in full to the Supplierin the currency set forth on the Supplier’s invoicein advance of the Supplier supplying the Services, unless otherwise agreed between the parties.
5.2 The Supplier may charge interest at an annual rate of 4% above the base rate of Banque Postale, calculated on a daily basis in respect of any sum which is due and unpaid, that interest to run from the date on which that sum is due and payable until receipt by the Supplier of the full amount, whether before or after judgment.If the Customer fails to pay the Fees following the payment due date, the Supplier may also suspend the Customer’s access to the Data or the Services.
5.3 All Fees are exclusive of VAT or any other applicable sales tax, which shall be paid by the Customer at the rate and in the manner for the time being prescribed by law.
5.4 The Supplier may change the Fees charged to the Customer upon thirty (30) days prior written notice. After the Initial Period and upon receipt of the Supplier’s notice that it intends to raise the fees, the Customer may terminate this Agreement by giving the Supplier written notice of termination within fifteen (15) days of receiving the Supplier’s fee increase notice.
The Supplier shall have the right to verify the Customer’s compliance with its obligations under this Agreement includingthe Customer User Restrictions and Clauses 14.7 and 14.8.Such audit rights shall continue for three years after termination of this Agreement. The Customer shall give all necessary assistance to the conduct of such audits during the term of this Agreement and for a period of three years after termination of this Agreement.The Customershall make all applicable books and records available for such inspectionon reasonable noticeduring normal business hours at the Customer’s principal place of business (but without notice in case of any reasonably suspected breach of this Agreement).
7.1 The parties shall each, as a receiving party: (i) keep confidential all Confidential Information disclosed by the disclosing party; (ii) use the Confidential Information disclosed by the disclosing party solely in connection with performing its obligations or exercising its rights in each case under the Agreement and not otherwise for its own benefit or the benefit of any third party; and (iii) not disclose the Confidential Information disclosed by the disclosing party to any person save to an Authorised Person.
7.2 The parties shall each, as a receiving party, ensure that each Authorised Person complies with confidentiality provisions no less onerous than those contained in this Clause 7 and will remain liable for any disclosure of Confidential Information by each Authorised Person as if it had made such disclosure.
7.3 The parties shall each, on the other party’s request destroy, erase or deliver to the other party all the requesting party’s Confidential Information, save where the retention of such Confidential Information is necessary to comply with applicable law or relevant regulation or otherwise for the other party to exercise its rights or receive benefits due under the Agreement.
7.4 The parties agree that the provisions of Clauses 7.1, 7.2, and 7.3 shall not apply to any information which the receiving party can prove: (i) is or becomes public knowledge other than by breach of this Clause; (ii) was in the possession of the receiving party without restriction in relation to disclosure before the date of receipt from the disclosing party; (iii) is received from a third party who lawfully acquired it and who was under no obligation restricting its disclosure; or (iv) was independently developed without access to any Confidential Information disclosed by the disclosing party.
7.5 The parties agree that these provisions in this Clause 7 shall not apply so as to prevent disclosure of Confidential Information by the receiving party to the extent that such disclosure is required to be made by any authority of competent jurisdiction or by any applicable law or relevant regulation or for the purposes of defending itself in relation to actual or threatened proceedings, regardless of whether brought or threatened by the other party or any other person, provided in each case that where permissible the receiving party: (i) gives the disclosing party reasonable formal written notice (provided that this is not in contravention of applicable law or relevant regulation) prior to such disclosure to allow the disclosing party a reasonable opportunity to seek a protective order; and (ii) uses reasonable endeavours to obtain prior to the disclosures written assurance from the applicable entity that it will keep the Confidential Information confidential.
7.6 Each party reserves all rights in its Confidential Information. No rights or obligations in respect of a party’s Confidential Information, other than those expressly stated in this Agreement, are granted to the other party, or are to be implied from this Agreement.
7.7 The provisions of this Clause 7 shall survive any expiry or termination of the Agreement.
No party shall make, or permit any person to make, any public announcement concerning this Agreement without the prior written consent of the other party (such consent not to be unreasonably withheld or delayed), except as required by law, any governmental or regulatory authority (including any relevant securities exchange), any court or other authority of competent jurisdiction.
The Customer shall ensure that the Data and Materials are kept secure, and shall use the best available security practices and systems applicable to the use of the Data and Materials to prevent, and take prompt and proper remedial action against, unauthorised access, copying, modification, storage, reproduction, display or distribution of the Data and the Materials.
10.1 The Supplier grants to the Customer a non-exclusive, non-transferable, revocable licence for the Permitted Use only during the Term, subject to the Customer User Restrictions, to:
10.2 Except as expressly provided in this Agreement, the Customer shall not:
10.3 The Customer shall comply with the Customer User Restrictions.
11.1 The Customer acknowledges that:
11.2 The Customer assigns to the Supplier, and shall assign to it, with full title guarantee all Intellectual Property Rights in any development of the Materials and in any Manipulated Data it may create, by way of future assignment.
11.3 The Customer shall, and shall use all reasonable endeavours to procure that any necessary third party shall, at the Supplier’s cost, promptly execute such documents and perform such acts as may reasonably be required to give full effect to this Agreement.
11.4 The Intellectual Property Rights assigned to the Supplier under Clause 11.2 shall be deemed to be included in the Licence from the date when such rights arise.
11.5 Any display of the Services by the Customer shall credit, wherever technically and commercially feasible, the Supplier, any licensor of the Supplier or any other source of the Data specified by the Supplier as the source of the Data.
11.6 The Customer acknowledges that reference in any element of the Materials to trade names or proprietary products where no specific acknowledgement of such names or products is made does not imply that such names or products may be regarded by the Customer as free for general use, outside the scope of the use of the Materials authorised by this agreement.
11.7 If any third-party claim is made, or in the Supplier’s reasonable opinion is likely to be made, in relation to the use of the Data, the Supplier may at its sole option and expense:
11.8 Clause 11.7 constitutes the Customer’s sole and exclusive remedy and the Supplier’s only liability in respect of any such third-party claims.
12.1 Except as expressly stated in this Agreement, all warranties, conditions and terms, whether express or implied by statute, common law or otherwise (including any implied warranties of satisfactory quality or fitness for a particular purpose or non-infringement) are hereby excluded to the extent permitted by law.
12.2 Without limiting the effect of Clause 12.1, the Supplier does not warrant or make any representations:
13.1 The Customer acknowledges that:
13.2 Neither party excludes or limits liability to the other party for:
13.3 Subject to Clause 13.2, the Supplier shall not in any circumstances be liable whether in contract, tort (including for negligence and breach of statutory duty howsoever arising), misrepresentation (whether innocent or negligent), restitution or otherwise, for:
13.4 Clause 13.3 shall not prevent claims, which fall within the scope of Clause 13.5 for:
13.5 Subject to Clause 13.2, the Supplier’s total aggregate liability in contract, tort (including negligence and breach of statutory duty howsoever arising), misrepresentation (whether innocent or negligent), restitution or otherwise, arising in connection with the performance or contemplated performance of this Agreement or any collateral contract shall in all circumstances be limited to the total Fees paid by the Customer to the Supplier during the 12-month period immediately before the date on which the cause of action first arose or, if the cause of actions arose during the Initial Period, in respect of the Initial Period.
13.6 The Supplier shall not be liable for any delay in delivery of the Services that is caused by an event within the scope of Clause 15 or the Customer’s failure to provide the Supplier with adequate delivery instructions or any other instructions that are relevant to the supply of the Services or the Customer’s failure to comply with Clause 3.2.
14.1 This Agreement shall commence on the Effective Date. Unless terminated earlier in accordance with this Clause 14 or Clause 11.7(d), this Agreement shall continue for the Initial Period. The parties may agree to extend the Agreement for a Renewal Period at the end of the Initial Period, and again at the end of each Renewal Period.
14.2 The Supplier may terminate this Agreement in respect of the Services (wholly or in part):
14.3 The Customer may terminate this Agreement in respect of the Services (wholly or in part) in accordance with Clause 5.4;
14.4 Without prejudice to any rights that have accrued under this Agreement or any of its rights or remedies, either party may terminate this Agreement (or any part thereof) with immediate effect by giving written notice to the other party if:
14.5 Any provision of this Agreement that expressly or by implication is intended to come into or continue in force on or after termination of this Agreement shall remain in full force and effect.
14.6 Termination or expiry of this agreement shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination or expiry.
14.7 On any termination of this Agreement for any reason or expiry of the Term, the Customer shall:
14.8 On any termination of this Agreement for any reason or expiry of the Term and subject to the proviso in Clause 14.7(b):
14.9 On termination of this Agreement for any reason (save for termination for material breach by the Customer under Clause 14.4(a) or for failure to pay amounts due under Clause 14.2(a)), the Supplier shall refund any Fees for theInitial Period or Renewal Period (as relevant) paid in advance by the Customer as at the date of termination or expiry (less a reasonable sum taking into account the remaining length of theInitial Period or Renewal Period and the Customer's use of the Data or the Materials to the date of termination). If the Supplier terminates this Agreement under Clause 14.4(a) due to the Customer’s material breach, or under Clause 14.2(a) for the Customer’s failure to pay amounts due, the Customer shall not be entitled to any refund.
14.10 The Customershall certify in writing (in the form of a letter signed by a Director of the Customer) its compliance with Clause 14.8 no later than 14 days after termination of this Agreement.
14.11 If a party is required by any law, regulation, or government or regulatory body to retain any documents or materials that it would otherwise be required to return or destroy under Clause 14.8 it shall notify the other party in writing of that retention, giving details of the documents or materials that it must retain. That party shall not be in breach of Clause 14.8 with respect to the retained documents or materials, but Clause 7 shall continue to apply to them.
Neither party shall be responsible for any failure to fulfil any obligation for so long as, and to the extent to which, the fulfilment of such obligation is impeded by a Force Majeure Event, and the affected party:
(a) has promptly notified the other party of any circumstances which may result in failure to perform its obligations;
(b) uses its best endeavours to minimise the adverse consequences that any failure in performance of its obligations might have, and to return the performance of such obligations to normal as soon as possible.
16.1 This Agreement is personal to the Customer and it shall not assign, transfer, mortgage, charge, sub-contract, or otherwise transfer any of its rights and obligations under this Agreement without the prior written consent of the Supplier (which is not to be unreasonably withheld or delayed).
16.2 The Supplier may at any time assign, transfer, mortgage, charge, sub-contract, or otherwise transfer any of its rights and obligations under this Agreement without the consent of the Customer.
No failure or delay by a party to exercise any right or remedy provided under the Agreement or by law, or a single or partial exercise of such right or remedy, shall constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict the further exercise of that or any other right or remedy.
Except as expressly provided in this Agreement, the rights and remedies provided under this Agreement are in addition to, and not exclusive of, any rights or remedies provided by law.
All notices, demands and other communications provided for or permitted under this Agreement will be made in writing to the parties at the addresses on the Cover Page and will be sent by registered or certified first-class mail, return receipt requested, email (delivery receipt requested), courier or overnight service or personal delivery and will be deemed received upon delivery, or, in the case of email, upon receipt of a delivery receipt.
20.1 This Agreement represents the entire agreement between the parties and supersedes all previous discussions, correspondence, negotiations, arrangements, understandings and agreements between them, whether written or oral, relating to its subject matter.
20.2 Each party acknowledges that in entering into this Agreement it does not rely on, and shall have no remedies in respect of, any representation or warranty (whether made innocently or negligently) that is not set out in this Agreement.
20.3 Each party agrees that it shall have no claim for innocent or negligent misrepresentation based on any statement in this agreement.
The Supplier reserves the right to change the Agreement at any time and the Customer should revisit the terms and conditions atwww.kaiko.com before it purchases a new subscription for the Services to ensure that it is fully aware of the current terms and conditions.
If any provision or part-provision of this Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted without affecting the remaining provisions.
Nothing in this agreement is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, or authorise any party to make or enter into any commitments for or on behalf of any other party.
Except as expressly provided in this Agreement, a person who is not a party to this Agreement shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 or otherwise to enforce any term of this Agreement.
This Agreement may be executed in counterparts, each of which will be deemed an original, but all the counterparts shall together constitute the one Agreement. Delivery of a counterpart of this Agreement by e-mail attachment shall be treated as original, fully binding and having full legal force and effect.
26.1 This Agreement shall be governed by and construed in accordance with the law of England and Wales, without giving effect to its conflict of laws principles. The parties irrevocably agree that any dispute or claim arising out of this Agreement (including non-contractual disputes or claims, and any question regarding its existence, validity or termination) will be subject to the exclusive jurisdiction of the English courts.
26.2 Each party has the right to file any action necessary in any court of competent jurisdiction to seek specific performance, an injunction, or other forms of emergency relief to restrain the other as a remedy for any actual or threatened breach.
SCHEDULE 1 - CUSTOMER USER RESTRICTIONS
(a) limit access to the Services to the Customer Users;
(b) only make copies of the Data and the Materials to the extent reasonably necessary for the following purposes: back-up, mirroring (and similar availability enhancement techniques), security, disaster recovery and testing;
(c) comply with all applicable law and relevant regulations, and not use the Services for any purpose contrary to any applicable law or relevant regulation, or any regulatory code, guidance or request;
(d) not extract, reutilise, use, exploit, redistribute, resell, redisseminate, copy or store the Data or the Materials for any purpose not expressly permitted by this Agreement;
(e) not copy, modify, decompile, reverse engineer or create derivative works from the Software, except to the extent permitted by any applicable law; and
(f) not do anything which may damage the reputation of the Supplier, the Data or the Services, including by way of using the Data (wholly or in part) in any manner which is pornographic, racist or that incites religious hatred or violence.