LocID™ DATA PRODUCT LICENSE AGREEMENT
THIS LOCID DATA PRODUCT LICENSE AGREEMENT (“License Agreement”) is made between Matchbook Data, LLC, a Georgia limited liability company (“Licensor”), and the customer (“Licensee”) identified in an applicable Order Form (defined below) that is attached to this License Agreement or incorporates this License Agreement by reference through a URL link. Licensor and Licensee may each be referred to as a “Party” and collectively as the “Parties.” This License Agreement includes all applicable Order Forms and all attached exhibits, addenda, and schedules. Capitalized terms that are not defined in this License Agreement will have the meanings given to those terms in the Order Form.
RECITALS
A. Licensor has developed a data intelligence solution, known as the LocID system, that employs proprietary methodologies to associate dynamic internet protocol addresses with probabilistically determined geolocations over time, using hashed identifiers in lieu of common identifiers that are traceable to precise geolocations.
B. Licensee agrees to secure from Licensor, and Licensor agrees to provide to Licensee, certain products of the LocID data intelligence solution, on the terms and conditions stated in this License Agreement.
Therefore, based on the mutual covenants and agreements in this License Agreement and other good and sufficient consideration which is hereby acknowledged, the Parties agree to the following:
TERMS AND CONDITIONS
1. Definitions. The following capitalized terms shall have the following meanings throughout the License Agreement:
1.1 “Applicable Laws” means all US and foreign legislation, regulations, and governmental rules, as amended from time to time, as well as all official guidance, opinions, and court decisions, including without limitation all data protection laws of each country or jurisdiction that are applicable to personal data or information that is processed in any manner in connection with the subject matter of this Agreement.
1.2 “Business” means the specific commercial purpose or use case for which Licensee is authorized to use the LocID Product, as described in an applicable Order Form.
1.3 “Company-Specific LocID” means one or more unique, proprietary, and confidential hashed identifiers provided by Licensor to Licensee and other customers for each to use internally and for communication with Licensor.
1.4 “Coarse Location” means a geographic area with a radius of more than 1850 feet from a precise point of interest, such as a postal code, city, metro area, region, country, or other such areas specified in applicable Order Forms.
1.5 “Confidential Information” means any confidential or proprietary information owned or disclosed by a Party and that is received or held by the other Party, including without limitation the terms of the Order Forms and information generated by the Parties in the course of performance of the Order Forms, but does not include information that (a) was in the public domain or that later comes into the public domain through no fault of either Party, (b) is already legitimately known to the receiving Party at the time of disclosure, or (c) becomes known to the receiving Party without a breach of the Agreement or the breach of a duty by any third party to keep such information confidential. Licensor’s Confidential Information includes without limitation all LocIDs and Company-Specific LocIDs.
1.6 “Customer Data” means the IP Addresses, timestamps, and other data provided by Licensee to Licensor to receive and use the LocID Product.
1.7 “Data Bidstream” means the worldwide advertising data ecosystem in which data is exchanged programmatically between data publishers, data buyers, and various intermediary entities, through use of real time bidding technologies.
1.8 “Fees” means the prices to be paid by Licensee to Licensor for the LocID Product, as further described in an Order Form and in article 6 below.
1.9 “Force Majeure Event” means any fires, floods, earthquakes or other natural disasters, labor disputes, strikes or lockouts, wars, rebellions, revolutions, riots, civil disorders, domestic or international terrorism, accidents or unavoidable casualties, outages of data or communication networks or electrical utilities, supply shortages, or other catastrophes or occurrences which are beyond a Party’s reasonable control.
1.10 “Initial Term” means a specified initial period of time during which an Order Form remains in effect, as further described in article 11 below.
1.11 “IP Address” means a dynamic internet protocol address, consisting of a series of numbers and dots in a standardized format, that an internet service provider temporarily assigns to a device connected to a computer network so as to allow the device to send and receive data.
1.12 “Licensor Property” means the LocID Product and each LocID, Company-Specific LocID, and TxID, including all related algorithms, methodologies, applications, know-how, inventions, derivatives, and data, and any and all patents, copyrights, trademarks, trade secrets and any other intellectual and proprietary rights associated with the foregoing, but expressly excluding any rights in or to Customer Data.
1.13 “LocID” means a proprietary and confidential hashed identifier, consisting of a string of numbers and text, that Licensor creates for its internal use only to designate relevant building locations in lieu of street addresses, latitude and longitude coordinates, or other identifiers that may be traceable by any other party to precise geolocations.
1.14 “LocID Analysis” means Licensor’s services to create a Company-Specific LocID for Licensee’s internal use, to determine if an IP Address initially associated with such Company-Specific LocID has subsequently changed over time as further described in section 3.2(a).
1.15 “LocID Bidstream Transaction” means Licensor’s encryption and conversion of an IP Address and associated time stamp into a Company-Specific LocID and TxID, or de-encryption of a TxID, in each case to facilitate indirect communication of an advertising placement opportunity between a supply-side customer and demand-side customer participating in the Data Bidstream, without sharing personal data or information, as further described in section 3.2(b).
1.16 “LocID Product” means the responses and services requested by Licensee in an Order Form, which may include LocID Bidstream Transactions, LocID Analysis, or LocID Translation Services, as further described in article 3 below, or any similar or related services specified in an Order Form.
1.17 “LocID Translation Services” means Licensor’s services to facilitate collaboration between Licensee and one or more third party entities designated by Licensee, who desire to combine the advertising audience attributes of their respective IP Address data sets and to avoid disclosing to each other their respective audience attributes tied to particular IP Addresses that each may hold, as further described in section 3.2(c).
1.18 “Order Form” means an order for the LocID Product, mutually agreed between the Parties and made part of the License Agreement by reference or attachment, as further described in article 2 below.
1.19 “Renewal Term” means each period of time after the Initial Term stated in an Order Form, unless terminated sooner as described in article 10 of these Terms and Conditions, during which the Order Form remains in effect.
1.20 “Term” means the period of time consisting of the Initial Term and any Renewal Terms of any then-current Order Forms, during which the License Agreement remains in effect, as further described in article 10.
1.21 “TxID” means a temporary, single-use transaction identifier consisting of a string of numbers and text, that Licensor may create to enable a customer to publish in the Data Bidstream an encrypted data unit associated with an audience segment of a Company-specific LocID, in lieu of specific device or precise geolocation information.
2. Orders. The Parties may enter into one or more Order Forms for Licensor to deliver the LocID Products under the terms of the License Agreement. Each Order shall specify at a minimum the legal name of the Licensee, the Business, the duration of the Order Form, the LocID Product(s) desired, the requirements for delivering IP Address inquiries from Licensee and the LocID Products from Licensor, the Fees for the LocID Products, and any other mutually agreed special terms and conditions. Any other terms or conditions contained or referenced in any invoice templates, order acknowledgements, click-through web-based tools, or other such writings of either Party that add to or conflict with this License Agreement or applicable Order Forms shall be of no force and effect.
3. Process and Products.
3.1 Generation of Company-Specific LocIDs. To receive the LocID Product(s) specified in an applicable Order Form, Licensee may submit batch quantities of at least one thousand (1000) IP Addresses to Licensor, along with timestamps to indicate when each was collected. For any IP Address that Licensor submits without a corresponding timestamp, Licensor may assume that the IP Address was collected at its current location. To provide each LocID Product, Licensor shall use commercially reasonable efforts to associate Licensee’s IP Addresses with location estimates designated by Licensor’s LocID. In no event shall Licensee be entitled to receive, nor shall Licensor be required to disclose, any of Licensor’s LocIDs. Licensor shall generate Company-Specific LocIDs associated with some or all such IP Addresses, as available, and shall return to Licensee the Company-Specific LocIDs estimated to be within the Coarse Locations described in the Order Form. Licensor shall provide an aggregate of at least one thousand (1000) Company-Specific LocIDs relating to Coarse Locations, without revealing the correlation between any specific IP Address and a particular Company-Specific LocID or a precise location. If fewer than one thousand (1000) Company-Specific LocIDs are found in a Coarse Location, no response shall be provided to the Licensee regarding any IP Addresses located in the Coarse Location.
3.2 Products. Licensor shall use commercially reasonable efforts to provide Company-Specific LocIDs and TxIDs for each LocID Product described below.
(a) LocID Analysis. Licensee may submit IP Addresses and related timestamps to Licensor for encryption and conversion into TxIDs and Company-Specific LocIDs associated with any Coarse Location(s). Licensee may thereafter use such information to determine whether the IP Addresses within such Coarse Location may have subsequently changed locations over time.
(b) LocID Bidstream Transactions. Licensee may request Licensor to provide LocID Bidstream Transaction services, to facilitate the communication of advertising placement opportunities between Licensor’s demand-side and supply-side data customers participating in the Data Bidstream without transferring Personally Identifiable Information or disclosing their Company-Specific LocIDs to each other or to the Data Bidstream.
(c) LocID Translation Services. Licensor may assist Licensee with setting up a secure portal into which Licensee may place only its IP Addresses that it has associated with certain audience attributes, and into which a third party under contract with Licensee may place only the IP Addresses that such third party has associated with other audience attributes. Such database will be configured so that neither party is aware of the attributes the other may have assigned to particular IP Addresses. Licensor shall use commercially reasonable efforts to correlate the Company-Specific LocIDs or TxIDs assigned to Licensee and to such third party respectively, to permit them to publish in the Data Bidstream an encrypted, joint data unit with their combined audience attributes for applicable IP Addresses, without transferring their Personally Identifiable Data or disclosing their Company-Specific LocIDs to each other or to the Data Bidstream.
3.3 No Personally Identifiable Information. Except for contact information exchanged between the Parties’ representatives, in no event shall Licensor knowingly provide in connection with the LocID product any information that identifies a particular individual, household, personal device, or a precise geolocation of the foregoing.
3.4 IP Addresses. If Licensee determines in connection with an applicable Order Form to provide specific, internet protocol addresses (also known as specific CIDR /32 version 4 IP addresses and specific CIDR /128 version 6 IP addresses, or “IP Addresses”) to Licensor, in no event shall Licensor store, transfer, share, use or otherwise process Licensee’s IP Addresses for any purpose other than to deliver the specific LocID products and services requested by Licensee. Licensor and its affiliates maintain their own datasets of IP Addresses that have been publicly assigned by organizations such as Regional Internet Registries and the Internet Assigned Numbers Authority (collectively, “the Assignment Authorities”). Licensor may observe and retain the non-specific prefixes appended to the IP Addresses presented by Licensor’s customers including Licensee, that have been applied by the Assignment Authorities to designate entire series of numerous IP Addresses and not to designate any individual IP Addresses (such series prefixes also known as CIDR /24 network prefixes of version 4 IP Addresses and CIDR /58 network prefixes of version 6 IP Addresses, or “Prefixes”), in order to verify which series of Prefixes are still viable and in use.
4. License.
4.1 Grant of Rights. Subject to the restrictions set forth herein, Licensor hereby grants Licensee a limited, non-exclusive, non-transferable, non-sublicensable, terminable, worldwide right and license to use the LocID Product solely in connection with the Business during the Term.
4.2 Ownership; Reserved Rights. As between the Parties, Licensor shall be deemed the sole owner of the Licensor Property, including without limitation all Company-Specific LocIDs and TxIDs. All LocID Products are licensed and not sold by Licensor to Licensee. Nothing in this License Agreement may be construed to confer upon Licensee any right, title, or interest in the LocID Products other than the limited license for use granted in section 4.1. Licensor reserves the right to use the Licensor Property in the course of its business as it sees fit. Nothing in this license shall in any way restrict Licensor’s use of the Licensor Property on behalf of any other customers or third parties.
4.3 Restrictions. Except as expressly permitted by the limited license in this article 4, Licensee shall have no right to use, copy, display, publicly perform, distribute, sublicense, make derivative works of, decompile, reverse engineer, disassemble, modify, reproduce, rent, sell, lease, lend, share or otherwise dispose of the Licensor Property, or any part thereof, in any form or for any purpose, including but not limited to any Company-Specific LocIDs.
5. Compliance. Each Party shall at all times comply with Applicable Laws that govern such Party, its conduct, or its products, that are in any manner connected with this License Agreement. Neither Party shall use the LocID data intelligence solution or the LocID Product in a manner that violates any Applicable Laws or legal rights of third parties.
6. Payment.
6.1 Fees. Licensee shall pay to Licensor the Fees that are set forth in an Order Form, without offset or deduction, to receive and utilize the LocID Product for the Initial Term, and thereafter for each Renewal Term, as applicable. Payments shall be made by wire transfer of immediately available funds in the currency set forth in the Order Form unless otherwise specified. Failure to make timely payment shall be considered a material breach of the License Agreement.
6.2 Payment Terms. Licensee shall pay the Fees to Licensor within thirty (30) days after receipt of a Licensor invoice that accurately states the amount due. Payments must be made by wire in the currency set forth in the Order Form or by check. Amounts not paid by Licensee within such thirty (30) day period will be subject to a delinquency charge on any outstanding balance, including accrued interest, at a rate of the lesser of (a) one and one-half percent (1.5%) per month or (b) the maximum rate permitted by applicable law.
6.3 Taxes. The Fees are exclusive of all sales, use, excise, VAT or other taxes, duties or governmental fees. Licensee shall be responsible for any such taxes, duties and fees imposed by any applicable jurisdiction on Licensee’s purchases, except that Licensor shall be responsible for any taxes on Licensor’s net income.
7. Indemnification.
7.1 Mutual. Each Party, acting as the indemnifying Party, will indemnify, defend (including payment of reasonable attorneys fees), and hold harmless the other Party including its affiliates and employees, as the indemnified Party, against any and all claims, demands, and damages of any third party, to the extent such claims, demands, and damages of a third party arise from the indemnifying Party’s violation of any Applicable Law; provided that, an indemnifying Party will have no obligation to indemnify, hold harmless, or defend an indemnified Party against, and will have no liability for, any claims, demands, or damages to the extent resulting from an indemnified Party’s violation of Applicable Law, willful misconduct, or breach of the License Agreement.
7.2 Infringement Claims. Licensor, acting as the indemnifying Party, will further indemnify defend (including payment of reasonable attorneys fees) and hold harmless Licensee including its affiliates and employees, against any and claims, demands, and damages of any third party, arising from an allegation that the LocID Product infringes on, dilutes, or misappropriates any copyright, trade secret, patent, trademark, database rights, or other intellectual property rights of such third party. I In the event of such a claim or demand, Licensor may, at its option and expense, (i) procure for Licensee the right to continue using the LocID Product ; (ii) modify the LocID Product to make it non-infringing; or if (i) and (ii) are not commercially feasible, then (iii) terminate the License Agreement or the Order Form in question, and refund to Licensee any Fees that Licensee prepaid for such infringing LocID Product and that are attributable to the portion of the Term that would have remained without such termination. Licensor obligations to indemnify, hold harmless, and defend Licensee will not apply to the extent: (a) Licensee modifies the LocID Product or combines it with any other products, data, processes, or materials after delivery of the LocID Product by Licensor, and the infringement would not have occurred but for such modification or combination; (b) the allegedly infringing activity arises from any compliance with the designs, specifications or requirements of Licensee; (c) the allegedly infringing activity continues after Licensor has informed Licensee of modifications or workarounds that would have avoided the alleged infringement; or (d) the allegedly infringing activity arises from Licensee’s use of the LocID Product in any manner not expressly permitted under the License Agreement. THIS SECTION STATES LICENSOR’S AND ITS AFFILIATES’ ENTIRE LIABILITY FOR INFRINGEMENT CLAIMS BASED UPON THE PROVISION OR USE OF THE LOCID PRODUCT.
7.3 Procedure. The indemnified Party agrees that the indemnifying Party shall have the right to assume sole and exclusive control over the defense and settlement of any claim to which the foregoing indemnity obligations apply. The indemnified Party shall promptly notify the indemnifying Party of any applicable claim of which the indemnified Party is aware; provided that, failure to give notice promptly will not relieve the indemnifying Party’s obligations under this Article 7 except to the extent the indemnifying Party can demonstrate that it has been materially and adversely affected by the failure of prompt notice. The indemnified Party shall provide reasonable cooperation in connection with the defense or settlement of any such claim. The indemnified Party shall be entitled to participate in the defense of any such claim at its sole cost and expense, but it may not agree to any settlement or consent to the entry of any judgment in connection with such claim without the prior, written consent of the indemnifying Party.
8. Warranty; Disclaimer; Limitation of Liability.
8.1 Warranty.
(a) Licensor warrants and represents that the LocID Product will materially conform to its then-current written specifications during the Term.
(b) Licensee warrants and represents that if and as required by Applicable Laws, Licensee has and will continue throughout the Term to provide lawful notices or disclosures to individual data subjects, and to obtain their affirmative consent, (i) for Licensee to share the Customer Data with Licensor, and (ii) for Licensor and its subcontractors to process such Customer Data, in connection with providing the LocID Product to Licensee.
(c) Each party warrants that it has in place and will maintain throughout the Term appropriate technical and organizational measures for the lawful processing of, and against the accidental loss or disclosure of, personal data that is in any manner related to this License Agreement.
(d) LICENSOR’S SOLE LIABILITY, AND LICENSEE’S SOLE AND EXCLUSIVE REMEDIES, FOR LICENSOR’S BREACH OF THE WARRANTY PROVIDED IN SECTION 8.1(a), SHALL BE FOR LICENSOR TO CORRECT SUCH NON-CONFORMITY WITHIN NINETY (90) DAYS OF RECEIPT OF WRITTEN NOTICE FROM LICENSEE OR, IF LICENSOR IS UNABLE TO DO SO, TO REFUND TO LICENSEE THAT PORTION OF ANY PREPAID FEES ATTRIBUTABLE TO THE PERIOD FROM THE NOTICE OF NON-CONFORMITY THROUGH THE END OF THE TERM. AFTER ANY SUCH REFUND EITHER PARTY MAY TERMINATE THE APPLICABLE ORDER FORM UPON WRITTEN NOTICE.
8.2 Disclaimer. EXCEPT AS SET FORTH IN THIS ARTICLE 8:
(a) LICENSOR MAKES AND LICENSEE RECEIVES NO WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, REGARDING THE LOCID PRODUCT. LICENSOR SPECIFICALLY DISCLAIMS ANY AND ALL OTHER WARRANTIES, REPRESENTATIONS, OR GUARANTEES OF ANY KIND, WHETHER EXPRESS, IMPLIED, ORAL, OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR ACCURACY OF DATA; AND
(b) DUE IN PART TO THE PROBABILISTIC NATURE OF THE LOCID PRODUCT, LICENSOR MAKES AND LICENSEE RECEIVES NO WARRANTY THAT THE LOCID PRODUCT OR ANY RELATED DATA WILL BE ERROR-FREE, WILL OPERATE WITHOUT INTERRUPTION, OR WILL FULFILL ANY OF LICENSEE’S PARTICULAR PURPOSES OR NEEDS. LICENSOR SHALL HAVE NO LIABILITY FOR ERRORS, OMISSIONS, DELAYS, INTERRUPTIONS, OR LOSSES, UNLESS CAUSED BY LICENSOR’S WILLFUL MISCONDUCT. THE PARTIES ACKNOWLEDGE THAT DATA ENTRY, COMMUNICATION AND STORAGE ARE SUBJECT TO A POSSIBILITY OF HUMAN AND MACHINE ERRORS, OMISSIONS, DELAYS, AND LOSSES, INCLUDING INADVERTENT INTERRUPTION OR LOSS OF DATA OR DAMAGE TO MEDIA, WHICH MAY GIVE RISE TO LOSS OR DAMAGE, AND LICENSOR WILL HAVE NO LIABILITY FOR SUCH ERRORS, OMISSIONS, INTERRUPTIONS, DELAYS, OR LOSSES.
8.3 Limitation of Liability.
(a) EXCEPT FOR LIABILITY FOR THE INDEMNIFICATION OBLIGATIONS CONTAINED IN ARTICLE 7, FOR BREACH OF THE CONFIDENTIALITY OBLIGATIONS CONTAINED IN ARTICLE 9, OR FOR BREACH OF THE LICENSE RESTRICTIONS IN SECTION 4.3, TO THE MAXIMUM EXTENT PERMITTED BY LAW, NEITHER PARTY SHALL BE LIABLE, IN CONNECTION WITH ANY CLAIM ARISING FROM OR RELATED TO THE LICENSE AGREEMENT, FOR ANY INDIRECT, INCIDENTAL, EXEMPLARY, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING LOSS OF PROFITS, REVENUE, DATA, OR DATA USE, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS WHETHER SUCH CLAIM IS BASED IN CONTRACT, TORT, STRICT LIABILITY, OR ANY OTHER LEGAL THEORY.
(b) EXCEPT FOR LIABILITY FOR THE INDEMNIFICATION OBLIGATIONS CONTAINED IN ARTICLE 7, FOR BREACH OF THE CONFIDENTIALITY OBLIGATIONS CONTAINED IN SECTION 9, FOR BREACH OF THE LICENSE RESTRICTIONS IN SECTION 4.3, OR FOR BREACH OF THE OBLIGATION TO PAY FEES OR OTHER AMOUNTS DUE LICENSOR UNDER ANY ORDER FORM, NEITHER PARTY SHALL BE LIABLE, IN CONNECTION WITH ANY CLAIM, DEMAND, ACTION OR PROCEEDING ARISING FROM OR RELATED TO THE LICENSE AGREEMENT, FOR ANY DAMAGES EXCEEDING THE AMOUNT PAID BY LICENSEE TO LICENSOR DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEEDING SUCH CLAIM. NOTWITHSTANDING THE FOREGOING, LIABILITY FOR INDEMNIFICATION OBLIGATIONS CONTAINED IN SECTION 7 OR CONFIDENTIALITY OBLIGATIONS CONTAINED IN SECTION 9 SHALL NOT EXCEED THE AMOUNT OF ONE MILLION US DOLLARS ($1,000,000) IN THE AGGREGATE, AND LIABILITY FOR FEES DUE AND UNPAID SHALL NOT EXCEED THE ACTUAL AMOUNT OF SUCH FEES PLUS LAWFUL INTEREST.
9. Confidentiality.
9.1 Each Party shall use a reasonable standard of care to protect the Confidential Information of the other and will use the other party’s Confidential Information only for purposes of the License Agreement and only to the extent necessary for such purposes. Neither Party will disclose (whether orally or in writing, or by press release or otherwise) to any third party any Confidential Information of the other Party, or any information with respect to the terms and provisions of the Agreement, except:
(a) To each Party’s respective officers, directors, employees, subcontractors, auditors and attorneys who have a need to know such Confidential Information, in their capacity as such, are informed by such party of the confidential nature of the Confidential Information, and have a duty or obligation to comply with the non-use and non-disclosure terms herein that are applicable to such party; provided, however, that such party shall be responsible for any breach of the provisions of this Section 9 committed by its officers, directors, employees, subcontractors, auditors or attorneys to the same extent as if such party committed such breach itself;
(b) To the extent strictly necessary (and then redacted to the greatest extent possible) to comply with law or with the valid order of an administrative agency or a court of competent jurisdiction, provided that the disclosing Party notifies the other Party as promptly as practicable (and, if possible, prior to making the disclosure) and the disclosing Party seeks confidential treatment of the information;
(c) To exercise or enforce its rights under the License Agreement, provided that prior to disclosure the disclosing Party will, to the greatest extent reasonably possible, seek confidential treatment of the information; or
(d) As mutually agreed by the Parties in writing.
9.2 The terms of this article 9 shall survive for a period of three (3) years after expiration or termination of the License Agreement; provided that, to the extent any portions of the Confidential Information meet the definition of a “trade secret” under applicable law, the terms and conditions of the License Agreement as to such portions of the Confidential Information will survive expiration or termination of the License Agreement for as long as provided under Applicable Laws regarding trade secrets.
10. Data Security. Each Party acknowledges and agrees that it is responsible for the security of any confidential, proprietary, or personal data it holds that belongs to the other Party. Each Party shall use industry standard efforts to safeguard and prevent unauthorized disclosure of such data. Each Party shall implement and maintain internal technical and procedural security measures designed to (a) identify reasonably foreseeable threats and hazards to the security and confidentiality of such data, and (b) protect the security and confidentiality of such data from such threats and hazards. Each Party shall maintain appropriate processes and procedures to ensure that any security breach involving such data is detected in a timely manner. In the event of a security incident involving the data of the other Party, the Party holding such data shall notify the other Party within 24 hours of becoming aware of the security incident and shall provide all reasonable support and information necessary for each Party to manage the security incident, mitigate its impact, and comply with the notification obligations set out in any relevant data protection laws.
11. Term; Renewals; Termination.
11.1 Term. The Term of the License Agreement shall begin as of the effective date of the first Order Form under this License Agreement and shall continue until all Order Forms hereunder have terminated or expired.
11.2 Renewals. Neither the Initial Term nor Licensee’s license to any LocID Product provided in an Order Form shall automatically renew.
11.3 Termination. If this License Agreement expires or is terminated, all Order Forms then in effect shall also terminate; but if only an Order Form expires or is terminated, this License Agreement and any other Order Forms then in effect shall continue in accordance with their terms. In addition, either Party may terminate this License Agreement or any Order Form if the other party commits a material breach, provided that the non-breaching Party shall first notify the other Party of the breach in writing and give such other Party at least ten (10) days to cure the breach to the non-breaching Party’s reasonable satisfaction. Either Party may also terminate this License Agreement and any Order Form, including the licenses granted thereunder, effective immediately upon written notice to the other Party, if such other Party: (a) is adjudged bankrupt; (b) becomes insolvent c) makes a general assignment for the benefit of creditors; (d) has a receiver or trustee appointed for the benefit of its creditors; (e) files a voluntary petition in bankruptcy; or (f) initiates reorganization proceedings or takes any step toward liquidation.
11.4 Effect. Upon the expiration or termination of an Order Form, all rights and license of Licensee to obtain and use the LocID Product provided under such Order Form shall cease, and such and any information derived from such shall no longer be used in any manner and shall promptly be removed from all of Licensee’s systems and returned to Licensor or destroyed. Upon Licensor’s request, Licensee shall provide Licensor with evidence and written certification that it has complied with this Section 11.4. Termination or expiration of this License Agreement or any Order Form does not relieve either party from liability arising from a breach, act or omission that occurred before the termination or expiration.
12. Order of Preference. In the event of any conflict between these Terms and Conditions and any Order Form, these Terms and Conditions shall govern, except to the extent a mutually agreed Order Form expressly states that it is intended to replace or modify a specified clause of these Terms and Conditions. In that case, such replacement or modification shall be deemed to apply only to that specified clause for purposes of that Order Form and not as to any other Order Forms or to these Terms and Conditions for general application in other contexts.
13. Force Majeure. Neither Party shall be liable or be deemed to be in default for any delay or failure in performance or interruption if the default or delay is caused, directly or indirectly, by a Force Majeure Event; provided, however, that such an event shall not excuse either Party from its obligation to pay any monies owed to the other Party (or any third party) under this License Agreement. Should a Party’s delay in performance caused by a Force Majeure event continue for more than thirty (30) days, the other Party shall be free to terminate each affected Order Form, effective immediately upon giving written notice, subject to the terms and conditions of this License Agreement.
14. OFAC Controls. In addition to compliance with other Applicable Laws, Licensee specifically agrees to comply with all applicable U.S., foreign, and international export control, import, and economic sanctions laws and regulations, including, but not limited to, the U.S. Export Administration Regulations (EAR, 15 C.F.R. Parts 730-774) and regulations administered by the U.S. Department of the Treasury’s Office of Foreign Assets Control (OFAC, 31 C.F.R. § 500, et seq.). Licensee also represents and warrants that neither Licensee nor any of its direct or indirect owners, directors, officers, employees, affiliates, agents, representatives, suppliers, or subcontractors are subject to U.S. sanctions or other export restrictions, including, but not limited to, being (a) identified on or in the U.S. Department of Commerce’s Denied Persons List, Unverified List, or Entity List; the U.S. Department of State’s AECA Debarred List or Non-Proliferation Sanctions Determinations; or OFAC’s Specially Designated Nationals List, Foreign Sanctions Evaders List, or Sectoral Sanctions Identifications List; (a) directly or indirectly 50 percent or more owned, in the aggregate, by individuals/entities sanctioned by OFAC; or (c) located, ordinarily resident, or directly or indirectly owned by a person in a country/region subject to U.S. embargo or sanctions. Licensee must immediately notify Licensor, in writing, of any change that may impact the representation and warranty above.
15. Notices. All notices or other communications required to be given hereunder shall be in writing and delivered to the applicable Party at its mailing address, e-mail address, or facsimile number specified on the Order Form (or as such Party may hereafter specify for that purpose by notice to the other Party). All notices shall be deemed delivered if delivered as indicated: (a) by personal delivery, (b) by overnight courier upon written verification of receipt, (c) by email or facsimile transmission upon confirmation of receipt, or (d) by certified or registered mail, return receipt requested, upon verification of receipt. All notices shall be effective upon delivery as provided herein.
16. Independent Contractors. Licensor and Licensee are independent contractors under the Agreement, and nothing herein shall be construed to create a partnership, joint venture, franchise or agency or fiduciary relationship between them. Neither Party has any authority to enter into agreements of any kind on behalf of the other Party, and neither Party will attempt to or will create any warranty or other obligation, express or implied, on behalf of the other Party.
17. General.
17.1 Assignment. Licensee shall not be entitled to assign or sublicense any of its rights or obligations under this License Agreement to any third party without the written approval of Licensor. This License Agreement shall be binding upon and inure to the benefit of the Parties and their respective successors and permitted assigns. In the event that Licensee acquires or merges with any new entity or business or develops a new product line (other than the LocID Product), such new entity or business or product line shall not be entitled to use LocID Product or any other provisions of the License Agreement, without appropriate Fees adjustments.
17.2 Survival. The provisions of articles 5, 6, 7, 9, 12, and 17, and sections 4.2, 4.3, 8.3, and 11.4, shall survive any expiration or termination of the License Agreement, as will any other provisions that would typically be expected to survive such expiration or termination.
17.3 Severability. If any provision of the License Agreement, or the application thereof to any person or circumstance, is determined by a court of competent jurisdiction to be invalid, such invalidity shall not affect any other provision that can be given effect without the invalid provision or application, and to this end the relevant provisions of the License Agreement shall be severable.
17.4 Modifications. The online version of these Terms and Conditions may be updated and modified by Licensor from time to time to comply with developing Applicable Laws. Unless required by Applicable Law, any such modification shall not (a) increase the proportion of liability or expenses of Licensee relative to Licensor’s proportion of liability or expenses hereunder; or (b) interfere with Licensee’s authorized use case for the LocID Product or (c) introduce commercial terms that conflict with any of the terms of an existing Order Form between Licensee and Licensor. Licensor shall provide written notice to Licensee in the event of any such modification of this Agreement. Notwithstanding any other provision of this License Agreement, if Licensee reasonably determines that any such modification would materially increase Licensee’s costs or liability or otherwise violate the limitations stated in this section, then notwithstanding anything to the contrary in the License Agreement, Licensee may within thirty (30) days after receipt of notice from Licensor respond with a written notice of Licensee’s decision to terminate this License Agreement including all applicable Order Forms. Such termination shall be without recourse or liability of either Party to the other for expenses or damages caused by such termination.
17.5 Waivers. A waiver by either Party of its rights hereunder shall not be binding unless contained in writing signed by an authorized representative of the Party waiving its rights. Further, the non-enforcement or waiver of any provision of this License Agreement on one occasion shall not constitute a waiver of such provision on any other occasion unless expressly so agreed in writing. It is agreed that no use of trade or other regular practice or method of dealing between the Parties hereto shall be used to modify, interpret, supplement, or alter in any manner the terms of this License Agreement.
17.6 No Implied Rights or Obligations. Nothing in this License Agreement is intended to create any implied right to require, or any implied duty to provide, a level of effort or results (in general or in particular) not expressly stated herein, or to refrain from engaging in any other activity, including any activity involving the same or similar products or services with the same or similar customers or providers.
17.7 Governing Law; Venue. This License Agreement will be governed by and construed in accordance with the laws of the State of Delaware, U.S.A., as it would apply to contracts made and performed in such state and, to the extent applicable, the intellectual property laws of the United States. The License Agreement shall not be governed by the United Nations Convention on Contracts for the Sale of International Goods, the application of which is expressly excluded by the Parties. In connection with any dispute, claim or controversy arising out of or relating to the License Agreement, each Party irrevocably consents to the exclusive jurisdiction and venue of the courts of Delaware (including any state or federal court within the State of Delaware). Each Party irrevocably waives any objections to such jurisdiction or venue.
17.8 Entire Agreement. This License Agreement, including the exhibits, the Order Form, and any amendments, embodies the entire understanding and agreement of the Parties with respect to the subject matter of this License Agreement and supersedes all prior and contemporaneous written or oral agreements.
17.9 Counterparts. Each Order Form and any amendment thereof may be executed in any number of counterparts, including via facsimile, PDF transmission, and/or electronic signatures, each of which, when so executed and delivered, shall be deemed to be an original and all of which taken together shall constitute one and the same instrument. In producing an Order Form, it shall not be necessary to produce or account for more than one such counterpart signed or accepted by the Party against whom enforcement is sought.
[LAST UPDATED FEBRUARY 2025]