MASTER SUBSCRIPTION AGREEMENT
Effective on the Date Executed by RelSci and Licensee
THIS MASTER SUBSCRIPTION AGREEMENT (“Agreement”) GOVERNS THE RECEIPT OF SERVICES (DEFINED BELOW) FROM RELATIONSHIP SCIENCE LLC (“RelSci”) BY __________________________ (“Licensee”). BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT (“Order Form”), LICENSEE AGREES TO THIS AGREEMENT.
1. Scope of Agreement. This Agreement governs RelSci’s provision of access to its software product(s) set forth in the Order Form (“Platform”) and certain Professional Services (defined below) (the Platform and the Professional Services collectively, the “Services”) to Licensee and its Authorized Users (defined below). The Services that RelSci is to provide to Licensee are described in one or more Order Forms. This Agreement hereby incorporates by reference any such Order Form. In order to be binding each Order Form must be signed by both parties. The parties may add Order Forms from time-to-time during the Term (defined below). In the event of any conflict or inconsistency between the terms of any Order Form and this Agreement, the Order Form will control solely to the extent of the conflict or inconsistency.
2. Proprietary Rights.
(a) Licenses.
(i) Platform. Subject to the terms and conditions of this Agreement, RelSci hereby grants to Licensee during the Term a non-exclusive, non-transferable and non-sublicensable license to allow the number of users specified on the applicable Order Form (“Authorized Users”) to access and use the Platform solely for Licensee’s internal business purposes.
(ii) RelSci Content . RelSci may make available to Licensee certain information and content on the Platform (collectively, “RelSci Content”). Subject to the terms and conditions of this Agreement, RelSci hereby grants to Licensee during the Term a non-exclusive, non-transferable and non-sublicensable license to the RelSci Content for its Internal Use only. “ Internal Use ” means (i) use on the Platform for research and analysis, preparation of research documents and reports, and other data processing uses, analyses and distribution within Licensee’s own organization; and (ii) distribution of RelSci Content included in individual reports, memoranda and/or presentations to Licensee’s employees, customers, agents and/or consultants in an amount that (in either a single download or multiple downloads) (a) has no substantial independent commercial value; (b) could not be used by Licensee as a substitute for any part of the Platform; and (c) is not separately marketed by Licensee or any of its affiliates or any third party. All RelSci Content that Licensee includes in any hardcopy or electronically accessible documentation or materials must include a clear and conspicuous statement indicating that information obtained from RelSci has been included within the applicable documentation or materials.
(b) Restrictions. Licensee and Authorized Users may not: (i) copy, modify, translate, or create derivative works of the Platform in whole or in part; (ii) reverse engineer, decompile, disassemble or otherwise attempt to reconstruct, identify or discover any source code, underlying ideas, underlying user interface techniques, algorithms or any other aspect or element of the Platform; (iii) lend, lease, offer for sale, sell or otherwise use the Platform for the benefit of any third party or provide any third party with access to the Platform; (iv) attempt to disrupt the integrity or performance of the Platform; (v) attempt to gain unauthorized access to the Platform or its related systems or networks; (vi) use the Platform (including any RelSci Content) in a manner that violates this Agreement, any third party rights or any applicable laws, rules or regulations; (vii) modify (except solely to the extent necessary for formatting purposes) or create derivative works of any RelSci Content (except as permitted under this Agreement) or remove any proprietary notices from any RelSci Content; or (viii) install, reinstall or copy any software product comprising the Platform in whole or in part except as permitted under this Agreement as necessary to obtain the Services during the Term (as defined below) of this Agreement. Licensee acknowledges and agrees that it is responsible for the use or misuse of the Platform and RelSci Content by Authorized Users, and a breach by any Authorized User of any term of this Agreement will be deemed a breach by Licensee of this Agreement.
(c) RelSci Ownership . Except for the rights granted to Licensee in Section 2(a) above, as between the parties, RelSci retains all right, title and interest, including all intellectual property rights, in and to the Platform and RelSci Content. RelSci reserves the right to make updates or changes to the RelSci Content and the Platform at any time during the Term in its sole discretion. All rights that RelSci does not expressly grant to Licensee in this Agreement are hereby reserved. RelSci does not grant any implied licenses under this Agreement.
(d) Licensee Data. As between the Parties, Licensee owns all Data (defined below). Licensee hereby grants to RelSci a non-exclusive and non-transferable (except pursuant to Section 10(b) below) license to host the data, information and other materials transmitted to or through the Platform by Licensee or Authorized Users (except for Diagnostic Data defined in Section 2(e) below) (collectively, “Data”) solely to provide the Services.
(e) Application of GDPR and EU data subjects . Where RelSci acts as a processor of personal data under EU Regulation 2016/679 (the “GDPR”) and you act as controller of that personal data under the GDPR then the terms of Annex A shall apply. Where there is any conflict between the terms of the main body of this Agreement and Annex A in relation to the processing of personal data under the GDPR, the terms of Annex A shall prevail. By signing this Agreement, Licensee acknowledges and agrees that RelSci provides the Services from the USA and may use its subsidiary in India to process personal data as part of the provision of the Services.
(f) Diagnostic Data . “Diagnostic Data” means de-identified information that RelSci’s systems or applications automatically collect regarding use of the Platform and the Platform’s performance. RelSci may collect, use and disclose Diagnostic Data to provide and improve the Services and for its business purposes.
3. Professional Services.
(a) General. Subject to the terms and conditions of this Agreement, including the payment of all Fees (defined below), RelSci will provide the professional services described in any Order Form (“Professional Services”). Except as otherwise set forth in any Order Form, Professional Services are accepted upon delivery.
(b) Work Product. Upon final payment of the applicable Fees, and except as otherwise set forth in any Order Form, Licensee will have a perpetual, nontransferable, fully paid-up right and license to use, copy, modify and prepare derivative works of any deliverable developed in the course of performance of the Professional Services and specifically identified in any Order Form. Subject to this license, RelSci owns and will retain all right, title and interest in and to such deliverables.
(c) Cooperation. Licensee will reasonably cooperate with RelSci in the provision of Professional Services. This cooperation will include, without limitation, (i) performing any tasks reasonably necessary for RelSci to provide the Professional Services; (ii) delivering any materials or fulfilling any obligations described in any Order Form in a timely manner; (iii) providing RelSci with necessary access to Licensee systems and premises; and (iv) responding to RelSci’s reasonable requests for information related to Professional Services in a timely manner.
4. Fees.
(a) Fees. Licensee will pay RelSci the fees set forth in the Order Form (“Fees”). All Fees will be due and payable within thirty (30) days from the date of the applicable invoice issued by RelSci. All Fees are non-cancellable and non-refundable. Late Fee payments will accrue interest at the rate of one and one half percent (1.5%) of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid.
(b) Increases. Unless otherwise agreed by the parties in writing, during each Renewal Term (defined below) the Fees automatically will increase by 5%, rounded to nearest whole dollar.
(c) Taxes. The Fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any applicable taxing authorities (collectively, “Taxes”). Licensee is responsible for paying all Taxes associated with access to and use of the Services by Licensee and Authorized Users. If RelSci has the legal obligation to pay or collect Taxes for which Licensee is responsible under this Section 4(c), then RelSci will invoice Licensee and Licensee will pay that amount unless Licensee provides RelSci with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, RelSci is solely responsible for Taxes assessable against RelSci based on its income, property and employees.
5. Confidential Information.
(a) Definition of Confidential Information . As used herein, “Confidential Information” means all confidential information disclosed by a party (“ Disclosing Party ”) to the other party (“Receiving Party”), that is marked in writing as “confidential” or by a similar designation. For clarity, Confidential Information also includes the Platform and any related specifications, documentation or technical information that RelSci provides to Licensee and/or Authorized Users. Confidential Information will not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (iii) is received from a third party without breach of any obligation owed to the Disclosing Party; or (iv) was independently developed by the Receiving Party.
(b) Protection of Confidential Information . The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care). The Receiving Party may only use Confidential Information of the Disclosing Party to perform its obligations or exercise its rights under this Agreement. Except as expressly authorized by the Disclosing Party in writing, the Receiving Party will limit access to Confidential Information of the Disclosing Party to those of its and its affiliates’ employees, contractors or agents who need such access to perform obligations under this Agreement and who agree to abide by the terms set forth in this Section 5. Neither party will disclose the terms of this Agreement to any third party (other than its affiliates and their legal counsel and accountants) without the other party’s prior written consent.
(c) Compelled Disclosure . The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure.
6. Term and Termination .
(b) Termination. Either party may terminate this Agreement upon thirty (30) days’ prior written notice if the other party is in material breach of this Agreement and the breaching party fails to remedy the breach within the thirty (30)-day notice period.
(c) Effect of Termination . Upon expiration or termination of this Agreement for any reason, the license granted to Licensee in Section 2(a) will automatically terminate and all Fees owed pursuant to Section 4 will become immediately due and payable. Licensee will immediately cease all use and operation of the Platform and will cause all of its Authorized Users to cease all use and operation of the Platform. To the extent Licensee and any of its Authorized Users copied or installed any software product comprising the Platform in whole or in part in any form or media, Licensee shall, and shall cause its Authorized Users to, immediately (and in no event later than 30 days from termination or expiration of this Agreement) uninstall and permanently delete and erase any and all copies of such software product. Licensee shall certify in writing to RelSci within no later than 30 days from termination or expiration of this Agreement that it has complied with the requirements of this provision Section 6(b). Licensee hereby grants to RelSci the right upon reasonable notice during regular business hours to audit Licensee’s computer systems with 5 business days’ notice to ensure that the Platform and all software product comprising the Platform has been uninstalled and permanently deleted and erased from the computer systems of Licensee and its Authorized Users.
(d) Survival. The provisions of Sections 2(b)-2(e), 3(b), 4, 5, 6(c), 6(d), 7, 8, 9, 10 and all defined terms used in those Sections will survive any expiration or termination of this Agreement.
7. Representations and Warranties.
(a) Mutual. Each party represents and warrants that: (i) it is duly organized, validly existing and in good standing under the laws and regulations of its jurisdiction of incorporation, organization or chartering; (ii) it has the right, power and authority to enter into this Agreement and to grant the rights and licenses granted hereunder and to perform all of its obligations hereunder; (iii) the execution of this Agreement by its representative whose signature is set forth at the end hereof has been duly authorized by all necessary corporate or organizational action of the party; (iv) when executed and delivered by both parties, this Agreement will constitute the legal, valid and binding obligation of such party, enforceable against such party in accordance with its terms; and (v) it will abide by all applicable federal, state and local laws and regulations when performing its obligations or exercising its rights under this Agreement.
(b) RelSci. RelSci represents and warrants that it will (i) make the Platform available and provide technical support pursuant to the RelSci Service Level Agreement (which RelSci may change from time-to-time in its sole discretion in a manner that will not materially lessen the rights provided to Licensee therein); (ii) maintain commercially reasonable administrative, technical and physical safeguards to protect the security, confidentiality and integrity of Data; and (iii) Licensee’s use of the Platform as permitted herein will not infringe, misappropriate or violate any intellectual property rights of any third party.
(c) Licensee. Licensee represents and warrants that: (i) it owns or otherwise has sufficient rights to the Data to grant the license set forth in Section 2(d); (ii) the posting and use of Data on or through the Platform does not and will not violate the privacy rights, publicity rights, copyrights, contract rights, intellectual property rights, or other rights of any person or entity; and (iii) the upload, posting or other submission of Data to the Platform does not and will not result in a breach of contract between Licensee and any third party.
(d) EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES SET FORTH UNDER THIS SECTION 7, RELSCI MAKES NO PROMISES, REPRESENTATIONS OR WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE SERVICES AND/OR RELSCI CONTENT, AND RELSCI HEREBY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE, AS WELL AS ANY LOCAL JURISDICTIONAL ANALOGUES TO THE FOREGOING. Without limiting the foregoing, RelSci makes not guarantee or promises of any kind that the Platform will include comprehensive coverage of or information about any one entity or professional.
8. Limitations on Liability .
(a) SUBJECT TO SECTION 8(b) BELOW, TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, (I) IN NO EVENT WILL EITHER PARTY’S TOTAL LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE FEES THAT LICENSEE HAS PAID TO RELSCI DURING THE TERM; AND (II) IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT (INCLUDING, WITHOUT LIMITATION, FOR LOST PROFITS, DATA OR OTHER BUSINESS OPPORTUNITIES), HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, WHETHER FOR BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE. THESE LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. THE PARTIES AGREE THAT THE FOREGOING LIMITATIONS REPRESENT A REASONABLE ALLOCATION OF RISK UNDER THIS AGREEMENT.
(b) Section 8(a) will not apply to Licensee’s or any Authorized User’s actual or alleged infringement of RelSci’s intellectual property or other proprietary rights or breach of sections 2(a) and (b) and 5 of this Agreement.
9. Indemnification.
(a) Licensee . If a third party asserts a claim (each, a “Third Party Claim”) against RelSci or any of its affiliates, officers, directors, managers, members, employees or contractors (each, an “RelSci Indemnitee”) alleging that (i) Licensee or any Authorized User has breached Section 2(b) of this Agreement; or (ii) any Data infringes any third party intellectual property or other proprietary right, then, in each case, Licensee will defend the RelSci Indemnitee from the Third Party Claim and hold such party harmless from all damages finally awarded or settlements entered into with respect to the Third Party Claim . This Section 9(a) states Licensee’s entire liability for Third Party Claims.
(b) RelSci. If a Third Party Claim is asserted against Licensee or any of its affiliates, officers, directors, managers, members, employees or contractors (each, a “ Licensee Indemnitee ”) alleging that the Platform infringes such third party’s intellectual property rights (“ Infringement Claim ”), then RelSci will defend the Licensee Indemnitee from the Infringement Claim and hold such party harmless from any damages finally awarded or settlements entered into with respect to the Infringement Claim. In the event of an Infringement Claim, RelSci, at its sole option and expense, may: (i) procure for Licensee the right to continue using the Platform or infringing part thereof; (ii) modify or amend the Platform or infringing part thereof; (iii) replace the Platform or infringing part thereof with other software having substantially the same or better capabilities; or, (iv) if the foregoing are not commercially practicable, terminate this Agreement and repay to Licensee a pro-rata portion of the Fees. Notwithstanding the forgoing sentences of this Section 9(b), RelSci will have no liability for an Infringement Claim if the actual or alleged infringement results from (a) any breach of this Agreement by Licensee or any Authorized User; (b) any modification, alteration or addition made to the Platform by Licensee or any Authorized User, including any combination of the Platform with software not provided by RelSci; (c) any failure by Licensee or any Authorized User to use any subsequent versions, updates or upgrades made available by RelSci; or (d) any settlements entered into by Licensee or costs incurred by Licensee for the Infringement Claim that are not pre-approved by RelSci in writing. This Section 9(b) states RelSci’s entire liability with respect to Infringement Claims.
(c) Procedures. The party seeking indemnity under this Section 9 (“Indemnified Party”) will use commercially reasonable efforts to provide the other party (“ Indemnifying Party ”) with prompt written notice of any claim for which the Indemnified Party seeks an indemnity. The Indemnified Party reasonably will cooperate in the defense of any such claim, at the Indemnifying Party’s sole expense. The Indemnifying Party may not settle any claim against the Indemnified Party without the Indemnified Party’s prior express written consent, which consent will not be unreasonably withheld, conditioned or delayed. The Indemnified Party may participate in the defense of a claim through counsel of its own choice at its own expense; provided, however, that if the Indemnified Party reasonably determines that the Indemnifying Party is unwilling or unable to defend the Indemnified Party’s interests, then the Indemnified Party may assume the defense against any claims at the Indemnifying Party’s sole expense.
10. Miscellaneous.
(a) Injunctive Relief . Licensee agrees that any violation or threatened violation of this Agreement may cause irreparable injury to RelSci, entitling RelSci to seek injunctive relief in addition to all legal remedies.
(b) Assignment. This Agreement binds and is for the benefit of the successors and permitted assigns of each party. Neither party may assign this Agreement or any rights under it, in whole or in part, without the other party’s prior written consent; provided that either party may assign this Agreement or any rights under it without prior written consent to a successor in connection with a merger, acquisition, reorganization, consolidation, or sale of all or substantially all of its assets or the business to which this Agreement relates. Any attempt to assign this Agreement other than as permitted above will be void.
(c) Publicity/Communications. Licensee authorizes Licensor to use its name(s), trademark(s), or trade name(s) (whether registered or not) in publicity releases concerning Licensee and Licensor’s business relationship. Licensor may include Licensee’s name and logo in its client roster for online and print marketing purposes. Licensee consents to the receipt of email and print communications regarding Licensor’s products and services.
(d) Export Regulations. Without limiting Section 2(b)(vi), Licensee agrees to comply with all applicable export and re-export control laws and regulations, including the Export Administration Regulations maintained by the U.S. Department of Commerce, trade and economic sanctions maintained by the Treasury Department’s Office of Foreign Assets Control, and the International Traffic in Arms Regulations maintained by the Department of State. Specifically, Licensee covenants that it will not directly or indirectly sell, export, re-export, transfer, divert, or otherwise dispose of any products, service, or technology (including products derived from or based on such technology) received from RelSci under this Agreement to any destination, entity, or person prohibited by the laws or regulations of the United States, without obtaining prior authorization from the competent government authorities as required by those laws and regulations.
(e) Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be unenforceable, then the remaining provisions of this Agreement will remain in full force and effect.
(f) Governing Law and Jurisdiction . This Agreement will be governed by and construed under the laws of the State of New York without reference to its conflict of laws principles. All disputes arising out of or related to this Agreement will be subject to the exclusive jurisdiction of the state and federal courts located in New York County, New York, and the Parties agree to waive all rights to challenge the foregoing.
(g) Entire Agreement; Amendments; Waivers . This Agreement, including any related Order Form(s), embodies the entire agreement between the Parties with respect to the subject matter set forth herein and supersedes any previous, contemporaneous or subsequent communications, whether oral or written, express or implied. This Agreement may be modified or amended only by a writing signed by both Parties. All waivers made under this Agreement must be made in writing by the party making the waiver.
(h) Notices. Any notice required or permitted to be given under this Agreement will be effective if it is (i) in writing and sent by certified or registered mail, or insured courier, return receipt requested, to the appropriate party at the address set forth in the Order Form and with the appropriate postage affixed; or (ii) sent via facsimile or electronic mail. Either party may change its address for receipt of notice by notice to the other party in accordance with this Section. Notices are deemed given two (2) business days following the date of mailing, one (1) business day following delivery to a courier, and/or on the same day a facsimile or electronic mail is sent to the recipient.
RELATIONSHIP SCIENCE LLC __________________ (Licensee)
By:_______________________ By:_______________________
Name: Name:
Date: Date:
ANNEX A – PERSONAL DATA
Note: This Annex A only applies where RelSci processes personal data subject to the provisions of EU Regulation 2016/679 in relation to the data of EU data subjects as part of its provision of the Services to Licensee.
Note: The definitions below concern data of EU data subjects only.
(a) Agreement: means the Master Subscription Agreement to which this Annex A applies;
(b) Data Controller: shall have the same meaning as defined in the GDPR (ie the natural or legal person, public authority, agency or other body which, alone or jointly with others, determines the purposes and means of the processing of personal data);
(c) Data Processor : shall have the same meaning as defined in the GDPR (ie a natural or legal person, public authority, agency or other body which processes personal data on behalf of the controller);
(d) Data Subject: shall have the same meaning as defined in the GDPR (ie an identified or identifiable natural person);
(e) GDPR: means EU Regulation 2016/679;
(f) Personal Data: shall have the same meaning as defined in the GDPR and as identified in Schedule 1 (below) to this Annex A (ie any information relating to an identified or identifiable natural person (‘Data Subject’) and for the prurposes of this Annex A is limited to Data Subjects of the EU; an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person);
(g) Personal Data Breach : shall have the same meaning as defined in the GDPR (ie a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, personal data transmitted, stored or otherwise processed);
(h) Processing and Processed (whether or not capitalized): shall have the same meaning as defined in the GDPR (ie any operation or set of operations which is performed on personal data or on sets of personal data, whether or not by automated means, such as collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction) and “Process” and “Processed” (whether or not capitalized) shall be construed accordingly;
(i) You/Your: means the Licensee as identified in the main body of the Master Subscription Agreement to which this Annex A applies;
(j) We/Our/Us: means RelSci as identified in the main body of the Master Subscription Agreement to which this Annex A applies.
(iv) not transfer any Personal Data outside of the European Economic Area unless with your prior written consent and the following conditions are fulfilled:
(1) we and you implement appropriate safeguards in relation to the transfer;
(2) the Data Subject has enforceable rights and effective legal remedies;
(vi) notify you without undue delay on becoming aware of any Personal Data Breach;
(viii) maintain complete and accurate records and information to demonstrate our compliance with this Annex A and Schedule 1 and allow for and contribute to audits, including inspections, by you or your designated auditor , as may be necessary to demonstrate compliance with our obligations under Article 28 of the GDPR; and
(ix) immediately inform you if, in our opinion, an instruction from you infringes the GDPR or other European Union or European Member State data protection provisions.
(f) In addition to, or instead of, our subsidiary in India, we may appoint a sub-processor of the Personal Data referred to in Schedule 1 (below) to this Annex A provided that we first notify you in writing of our intention to engage a sub-processor; provide you with details of the identity of the proposed sub-processor and the services to be provided by it; and provide you with a reasonable period within which to object to their appointment (such period to be no less than 7 days).
3. Liability
(a) Nothing in this Annex A shall affect the provisions concerning limitations on liability and indemnification set out at clauses 8 and 9 of the Agreement.
Schedule 1 to Annex A (Processing)
The Personal Data shall be processed for the duration of the provision of the Services under the Agreement and for a period afterwards. To determine the appropriate retention period for Personal Data, we consider the amount, nature, and sensitivity of the Personal Data, the potential risk of harm from unauthorized use or disclosure of the Personal Data, the purposes for which it is processed and taking into account applicable legal and regulatory requirements.