MORNING CONSULT INTELLIGENCE TERMS AND CONDITIONS

By accessing and browsing the Morning Consult Intelligence® platform and Site (the “Product”), You accept, without limitation or qualification, all the terms and conditions herein.

Updated May 19, 2017

TERMS AND CONDITIONS OF ACCESS

 

These following terms and conditions form the agreement between The Morning Consult, LLC (“MC”) and any person or entity, being a company, academic institution, organization, government, individual, agent, representative, any other variation accessing the Product (“You” or the “Client”):

 

1.) Definitions

“Agreement” means these Terms and Conditions.

“Authorized Users” means:

  1. any Client that is given free access to the Product, including any Beta, trial, or free access users; or
  2. any Client described in a Purchase Order.

“Client Data” is raw data owned by the Client prior to it being loaded onto the Product.

“Commencement Date” means the first day on which MC provides Client with access to the Product under this Agreement.

“Intellectual Property Rights” means all past, present, and future rights of the following types, which may exist or be created under the laws of any jurisdiction in the world: (i) rights associated with works of authorship, including exclusive exploitation rights, copyrights, moral rights, and mask works; (ii) trademark and trade name rights, rights to goodwill or to sue for passing off or unfair competition, and similar rights; (iii) trade secret rights; (iv) patents and industrial property rights; (v) other proprietary rights in materials of every kind and nature; and (vi) rights in or relating to registrations, renewals, extensions, combinations, divisions, and reissues of, and applications for, any of the rights referred to in subsections (i) through (v) of this sentence.

“Intranet” means the Client’s internal computer network.

“FTP” means a file transfer protocol whereby MC may post the Product Materials or whereby Client may receive the Product Materials.

“MC Data” means data, information, reports, or intellectual property owned by MC, or its Partners, that is made available on or through the Product including materials and derivative works created by Authorized User, not including Client’s proprietary information.

“Product Materials” means anything accessed on the Product, including MC’s copyrighted and non-copyrighted information (which, for purposes of this provision, includes its parent and affiliated companies) and MC Data, which Authorized Users are permitted to access and use in compliance with the terms of this Agreement.

“Permitted Purpose” means (i) educational purposes for ‘academic’ Clients (including, but not limited to, universities and schools), and (ii) ordinary business purposes for ‘non-academic Clients (including, but not limited to, corporations, not-for-profit organizations and governments). References within the Agreement to “ordinary business purposes” mean for the Client’s own business management and decision-making purposes only.

“Product Duration” means the duration for which Authorized Users are granted access to the Product. Beta or free access Authorized Users’ right to access the Product and use Product Materials may be revoked at any time.

“Publishers” means MC and certain of its affiliates who are the owners of the Product.

“Purchase Order” means any agreement, including subscription order form, online store order form, product purchase agreement, exhibits, and addenda, that sets out rights and duties between Client and MC and that gives permission to use the Product or Product Materials.

“Site” means, where access is provided, the Product through MC’s website www.MorningConsultIntelligence.com or by FTP, all software, websites, and computer interfaces of MC used to provide such access.

“Type of Access” means the way in which Authorized User is accessing the Product.

“Type of Authentication” means the way in which Client’s access is being authenticated as valid by MC.

“Un-Authorized Users” mean any person or entity accessing the Product who is not an Authorized User.

 

2.) Scope of License

2.1      “Agreement Term” means, unless as otherwise specified in the Purchase Order (if applicable), (i) from the Commencement Date for the Product Duration; or (ii) for Beta or free access Authorized Users, the duration to which MC provides access to the Product, as the case may be. Beta or free access Authorized Users’ right to access the Product and use Product Materials may be revoked at any time.

2.2       Your Responsibilities. You are responsible for all activity occurring under Your Authorized User accounts and shall abide by all applicable local, state, national, and foreign laws, treaties, and regulations in connection with Your use of the Product, including those related to data privacy, international communications, and the transmission of data. You are responsible for Your Authorized Users’ compliance with this Agreement and any other agreement entered into with MC.

2.3       Permitted Uses. MC grants You a nonexclusive, nontransferable, revocable (per the terms of this Agreement), and limited license to access and use the Product, MC Data, and the Product Materials as is available as a Beta or free Authorized User, or as set forth in Your Purchase Order only as expressly permitted herein. During the Agreement Term, You shall Use the Services provided solely and exclusively for Your own business purposes or educational purposes and only as expressly permitted herein and shall comply with all applicable law in connection with Your use of the Product and Product Materials.

Authorized Users are permitted to print or download reasonable portions of the Product Materials for the Permitted Purpose only. Client may use Product Materials provided that MC also retains all of its copyright, intellectual property, and proprietary rights. MC grants Client a nonexclusive, revocable, and limited license to use MC’s name, logo and any other MC trademarks (“MC Marks”) for the sole purpose of appearing on Product Materials and MC Data when MC Marks appear, through an automated process, in Product Materials and MC Data. Client is prohibited from altering MC Marks and transferring MC Marks from Product Materials and MC Data.

Where the Permitted Purpose is an “ordinary business purpose,” Authorized Users may, in the scope of their employment with the Client, provide portions of the Product Materials to non-authorized employees, clients, or agents of the Client or in memoranda, reports, and presentations. Where the Permitted Purpose is “educational purposes,” Authorized Users may, in the scope of their educational purpose with the Client, on an occasional and irregular basis, provide portions of the Product to other staff and students of the Client or in scholarly works and articles. In all cases, each such portion must include a copyright notice(s) (from MC and/or the Publishers, as applicable) and an original source attribution, in each case, as such notice and attribution is reasonably acceptable to MC. Unless otherwise noted: “Copyright © 2015 The Morning Consult, LLC. All rights reserved.” In addition, the date of the survey, margin of error, and sample size shall be reported.

2.4       Prohibited Uses. Neither the Client, nor Authorized Users are permitted, directly or indirectly, to allow any other person to use or share Authorized Users’ user names or passwords nor to allow an Un-Authorized User to have access to the Product (except as otherwise provided in this Agreement). Any breach of this restriction may result in immediate termination of the Client’s (and all Authorized Users’) access to the Product or result in liability for damages. Any use of the Product not specifically permitted by this Section 2 is expressly prohibited.

Should an Authorized User permit an Un-Authorized User to access any content or materials to which they have not been licensed, the Authorized User will be in breach of this Agreement.

The Authorized User shall use the Product for lawful purposes only.

2.5. Restrictions. Except as expressly permitted herein, Client and each Authorized User agrees not to: (i) make the Product available to any third party or otherwise permit any third party to access or use the Product, other than on behalf of Client; (ii) license, sublicense, sell, resell, rent, lease, transfer, assign, or distribute the Product; (iii) modify or make derivative works based upon the Product; (iv) introduce software or automated agents or scripts to the Product so as to produce multiple accounts, generate automated searches, requests and queries, or to strip, scrape, use spiders, or mine data from the Product; (v) utilize data for public consumption; or (v) decompile, reverse engineer or reverse assemble any portion of the Services or attempt to discover any source code or underlying ideas or algorithms of the Product or access the Product in order to (A) build a competitive product or service, (B) build a product using similar ideas, features, functions or graphics of the Product, or (C) copy any ideas, features, functions or graphics of the Product; (vi) use the Product to store or transmit material in violation of third party privacy rights; (vii) use the Product to store or transmit malicious code; (viii) interfere with or disrupt the integrity or performance of the Product or third party data contained therein; (ix) attempt to gain unauthorized access to the Product or their related systems or networks; or (x) impersonate any person or entity, or falsely state or otherwise misrepresent Your affiliation with a person or entity, including, but not limited to, by using another person’s username, password, name, or likeness. Client and each Authorized User agrees (i) not to use or distribute, or permit any third party to use or distribute Product Materials in any manner that could, in MC’s good faith judgment, cause the Product, Product Materials or reports so used to  be a substitute for, or affect MC’s ability to realize revenue in connection with the Services or Product Materials, or  compete with MC’s business; and (ii) to comply with all requirements of third-party data providers (“Partners”) with respect to MC Data sourced by all such third parties. MC reserves the right, without limiting any other right or remedy available at law, in equity, or under this Agreement, to immediately suspend Client or each Authorized Users access to and use of the Product and/or immediately terminate this Agreement and any Purchase Order then in effect if MC determines, in its sole discretion, that Client or its Authorized Users are violating (or have violated) any provision set forth in this Section 2.

2.6       Authorized Users. During the Agreement Term only, Authorized Users may access the Product and through a unique username and password (the “User ID”). The registration information provided to MC with respect to each Authorized User shall be accurate and truthful and You shall promptly update the registration information. You shall ensure that only Authorized Users access the Product and each Authorized User does not (i) share his or her User ID with any person, (ii) permit any other person to access the Services through such User’s User ID, (iii) access the Product from multiple devices simultaneously or (iv) breach these Terms of Service. You shall ensure that only persons currently employed by You or under Your control use the Product or any User ID.

2.7       FTP Access. Where the Client is accessing the Product through FTP (having been authorized as such), the Client shall, within five (5) business days after termination of this Agreement or removal of status as an Authorized User, for whatever reason, delete access from any and all systems under its control.

 

3.) Intellectual Property Protection

3.1       All rights, title and ownership interests in and to the Product (including the Site and the Product Materials) and any and all worldwide intellectual property rights embodied therein are the exclusive property of MC Group. As between the parties, and subject to the license grants under this Agreement, Client owns all right, title, and interest in and to all “Client Data” (which means the results of the analytics performed by the Product) and any and all intellectual property rights embodied therein. Client’s and each Authorized User’s rights with respect to the Services and all content and software contained therein will be only that of a licensee. MC and Client each respectively reserve all rights not expressly granted in this Agreement, and no licenses are granted by MC to Client or any Authorized User under this Agreement, whether by implication, estoppel, or otherwise, except as expressly set forth in this Agreement. The Client is not permitted to use or reproduce or allow (for any reason) anyone to use or reproduce any copyrighted news materials, trademarks, or other trade names appearing in the Product. The software, which operates the Product, is proprietary software and the Client is not permitted to use it except as expressly allowed under the terms of this Agreement. Such software may not be copied, reverse engineered, modified, or otherwise dealt with by Client. Client will be responsible for backing up and retaining its Client Data. MC may set deadlines after which MC is no longer obligated to retain certain Client Data.

3.2       The Product, including each portion thereof, was developed, compiled, prepared, revised, selected and arranged by MC and others (including certain information sources) (individually and collectively, “IP Rights Holders”) through the application of methods and standards of judgment developed and applied through the expenditure of substantial time, effort, and money, and constitute valuable intellectual property and trade secrets of the IP Rights Holders. You agree that You have no ownership rights in or to the Product, Product Materials, or MC Data and that no such rights are granted hereunder. You shall protect the proprietary rights of the IP Rights Holders during and after the Agreement Term. You shall honor and comply with all written requests made by IP Rights Holders to protect their contractual, statutory, and common law rights in the Product, MC Data, and Product Materials with the same degree of care used to protect Your own proprietary rights, which in no event shall be less than reasonable efforts. You shall notify MC in writing promptly upon becoming aware of (i) any claim that the Product, MC Data, or Product Materials infringe any patent, copyright, trademark, or other proprietary rights or (ii) any suspected infringement by a third party of any proprietary rights of MC. You shall not use any of MC’s or its affiliates’ trademarks, trade names, or service marks in any manner that creates the impression that such names or marks belong to or are identified with You or that You are associated with or licensed by MC or its affiliates to use such names or marks and You acknowledge that You have no ownership rights in or to any of these names or marks.

3.3       All charts, downloadable products, pictures, and other creatable features through the Product belong solely to MC and shall be licensed to Client while he, she, or it remains an Authorized User. Client shall, within 5 (five) business days after termination of this Agreement or removal of status as an Authorized User, for whatever reason, delete the Product from any and all systems under its control.

3.4       You are expected to download reasonable amounts of data for your educational or business purposes; excessive downloads that, in the sole judgment of MC, may compromise the integrity of the archives will be investigated and may result in termination of access.

3.5       You may not use, copy, or otherwise access any restricted-access portion of the website, the Products, the Product Materials, or any content or materials contained in any such area of the Products that have not been licensed and invoiced by MC.

3.6       If for any reason an Authorized User gains unauthorized access to MC Data, then these terms and conditions nonetheless apply. In addition to any other rights and remedies available to MC, the Authorized User shall immediately upon notification terminate the practice. In no event shall such compliance authorize such Authorized User’s access.

 

4.) License Fee and Payment

4.1       Subscription Fees. The Subscription Fee will remain fixed during the Subscription Term unless you (i) change products or base packages, or (ii) subscribe to additional features or products. Where a price change applies to you, MC will charge or invoice you under the new price structure.

4.2       Sales Tax. All fees are exclusive of taxes, which MC will charge as applicable. You agree to pay any taxes applicable to Your use of the Product. You shall have no liability for any taxes based upon MC’s gross revenues or net income.

4.3      Payment Disputes. If You believe that any specific charge under this Agreement is incorrect, in order to obtain a credit, You must contact MC in writing within thirty (30) days of invoice date setting forth the nature and amount of the requested correction. Otherwise, invoices are final, except in the case of successfully disputed billing errors.  

5.) Monitoring. MC reserves the rights to monitor and record activity on the Site, including access to the Product.

6.) Suspension and Termination

6.1       Termination for Cause. Either party may terminate this Agreement for cause: (i) upon thirty (30) days’ notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) immediately, if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, liquidation, or assignment for the benefit of creditors. This Agreement may not otherwise be terminated prior to the end of the Subscription Term. Any breach of Your payment obligations or unauthorized use of the Product, Product Materials, MC Data, or services will be a material breach of this Agreement. MC, in its sole discretion, may terminate or suspend Your password, account, or use of the Product if You breach or otherwise fail to comply with this Agreement. You agree and acknowledge that MC has no obligation to retain the Client Data and may delete such Client Data if You have materially breached this Agreement and such breach has not been cured within thirty (30) days of notice of such breach. In the event of Termination, all fees shall be collected in accordance with Section 4.

6.2       Termination and Suspension for Nonpayment. MC reserves the right to suspend or terminate this Agreement and Your use and access to the Product with immediate effect if Your account becomes delinquent. All payment obligations are non-cancelable and all amounts paid are nonrefundable, except as provided herein. You will continue to be charged for Authorized User licenses during any period of suspension. You agree that MC may bill You for such unpaid fees. Should MC assess that an event of default or materially adverse change has occurred on Your part, MC may suspend Your access to the Product. If You or MC initiates termination of this Agreement, You will be obligated to pay the balance due on Your account immediately. In the event of suspension or termination for non-payment, You agree and acknowledge that Client Data may be deleted if Your account is thirty (30) days or more past due.

 

7.) No Warranty and Disclaimer of Liability

7.1       THE PRODUCT ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE BASIS” “WITH ALL FAULTS” AND WITHOUT WARRANTY OF ANY KIND. MC MAKES NO WARRANTY, EXPRESS OR IMPLIED, CONCERNING THE PRODUCT AND THE SITE. MC EXPRESSLY DISCLAIMS, TO THE FULLEST EXTENT POSSIBLE UNDER LAW, ALL WARRANTIES, INCLUDING BUT NOT LIMITED TO WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, WARRANTIES OF MERCHANTABILITY AND TITLE. MC DOES NOT GUARANTEE THE ACCURACY, CONTENT, OR TIMELINESS OF THE PRODUCT. WITHOUT LIMITING THE FOREGOING, MC DOES NOT WARRANT OR REPRESENT THAT THE PRODUCT WILL BE CONTINUOUS, SECURE, RELIABLE, ACCESSIBLE, UNINTERRUPTED, OR ERROR-FREE.  THE PRODUCT MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. MC IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS BEYOND ITS CONTROL.

7.2       IN NO EVENT, INCLUDING–BUT NOT LIMITED TO–NEGLIGENCE, WILL MC, ITS AGENTS, LICENSORS, PARENT, OR AFFILIATES BE LIABLE FOR INDIRECT, PUNITIVE, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR OTHER PECUNIARY LOSS) ARISING DIRECTLY OR INDIRECTLY FROM THE USE OF (OR FAILURE OR INABILITY TO USE) OR RELIANCE ON THE PRODUCT OR THE SITE, MC MATERIALS, PRODUCTS, OR SERVICES, THIRD-PARTY MATERIALS, PRODUCTS OR SERVICES MADE AVAILABLE THROUGH MC, OR ANY PART OF MC’S SERVICES, EVEN IF MC HAS BEEN ADVISED OF THE POSSIBILITY THAT SUCH DAMAGES MAY ARISE. IF CLIENT IS DISSATIFIED WITH ANY MC MATERIAL, PRODUCT, OR SERVICES, OR WITH ANY OF MC’S TERMS AND CONDITIONS, THE CLIENTS’S SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USING THE PRODUCT.

7.3       IF MC IS HELD LIABLE TO THE CLIENT FOR ANY REASON, IN NO EVENT SHALL ANY LIABILITY OF MC, ITS AFFILIATES, AGENTS, AND LICENSORS, ARISING OUT OF ANY KIND OF LEGAL CLAIM OR CLAIMS (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE) IN ANY WAY CONNECTED WITH THE SITE OR THE PRODUCT EXCEED, IN AGGREGATE, THE AMOUNT THE CLIENT PAID TO MC UNDER THIS AGREEMENT IN THE TWELVE (12) MONTH PERIOD PRECEDING THE DATE SUCH CLAIM OR CLAIMS FIRST AROSE.

7.4 Customer’s Representation and Warranties. You represent and warrant that (a) You have validly entered into this Agreement and have the legal power and authority to enter into and perform this Agreement (and to bind its Authorized Users) and that any person accepting this Agreement on behalf of a Client has been properly authorized and empowered to enter into this Agreement; (b) that Client has rights to use all Client Data, and that Client Data does not infringe or misappropriate any third party’s Intellectual Property Rights; (c) You and Your employees or agents, in using the Product, do so only in strict compliance with applicable foreign and domestic laws and regulations, including, but not limited to, privacy laws and regulations and those laws and regulations governing the collection, dissemination, use of personal data or personally-identifiable information, personal financial information, personal health information, or other information protected by such laws and regulations; and (c) that You will only disclose data or information relating to the Product in material conformance with (i) MC’s Privacy Policy and (ii) applicable foreign and/or domestic laws, regulations, codes, or rules .

7.5 MC’s Obligation to Remedy. You must notify MC in writing within thirty (30) days of Your claim of any defect in the Product.  If the Product is found defective by You and MC, MC’s obligation under this warranty is to remedy such defect in a manner consistent with MC’s regular business practices. For a defect which materially adversely affects the performance of the Services (“Service Defect”), MC shall use its commercially reasonable efforts to cure such Service Defect within fifteen (15) business days after receipt of Your notice.  If MC is unable to cure a Service Defect within fifteen (15) business days of receipt of Your notice or within any additional time You shall permit, You may, as Your sole and exclusive remedy, be entitled to a Product credit applied to the prices specified in the Purchase Order(s) governing the particular Product on which the Product Defect occurred.

7.6 MC expressly disclaims any and all liability with regard to Authorized Users access to and use third-party links and websites accessible via the Product. MC has not entered into a licensing agreement or linking agreement with the owners of the third-party links and websites that are accessible via the Product.  MC makes no representation and warranty that it has the right to provide access to the third-party links or websites to Authorized Users. Authorized User’s use of the third-party links or websites (including any distribution or redistribution thereof) is solely at its own risk. Authorized User will indemnify and hold MC harmless from any loss or damage suffered by any of them as a result of a third party claim brought against MC as a result of use of the third-party links or websites by any Authorized User.

8.) Security

8.1 The Client will be solely responsible for the confidentiality of and solely liable for the use of and access to the Product and the Site by Authorized Users. The Client agrees to immediately notify MC if it becomes aware of any loss or theft of any username/password or unauthorized use or access to the Product, FTP, or the Site.

8.2 Where the Client is an FTP access subscriber and/or where the Client’s Authorized Users access the Product via the Client’s Intranet it (i) may not frame or link to the Site or Product in any way that obscures any of MC’s or the other Publishers’ copyright, trademark, and/or other proprietary rights notices, misleads as to the source of the Site or Product, or falsely implies a relationship between MC (or any other Publisher) and the Client or any other third party; (ii) is solely responsible for creating security measures adequate to protect its Intranet from unauthorized access and harm; and (iii) is solely responsible, at its own cost, for obtaining any third party rights, products, or services needed to configure and operate its electronic delivery systems and the Client’s Intranet for use in connection with the Product.

 

9.) Force Majeure. MC, its affiliates, and its information providers shall not be liable or deemed to be in default for any delay or failure in performance or interruption of the delivery of the Product resulting directly or indirectly from any cause or circumstance beyond its or their reasonable control, including but not limited to failure of any Site, FTP, any electronic or mechanical equipment, communication lines, telephone, or other interconnect problems, supplier problems, computer viruses, unauthorized access, theft, operator errors, severe weather, earthquakes, or natural disasters, strikes or other labor problems, epidemics, wars, governmental restrictions (statute, law, ordinance, or regulation, new or foreseen), or any other cause beyond its control.  MC shall not be responsible for any interruptions in the Product attributable to problems experienced with hardware or third party software used by You.

 

10.) Taxes. Other than taxes related to MC’s income, gross receipts, personnel, real or personal property or other assets, the Client shall be responsible for the proper payment of all taxes that may be levied or assessed based on the Client’s use of the Product, the Site, or on any payments by the Client to MC hereunder, including but not limited to withholding taxes. If MC has a legal obligation to pay or collect taxes for which You are responsible under this Section, MC will invoice You, and You will pay that amount unless You provide MC with a valid tax exemption certificate authorized by the appropriate taxing authority.

 

11.) Amendment. To the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any Purchase Order, the Purchase Order shall prevail.

MC may at any time revise these Terms and Conditions by updating this posting. You are bound by any such revisions that you accept and should therefore periodically visit this page to review the current Terms and Conditions to which You are bound. If You choose not to accept, Your only recourse is a prorated refund for any amount already paid. No refund will be provided if you accept the Terms and Conditions, or if you do not notify, in writing, that you do not accept the Terms and Conditions within thirty (30) days of any update to the Terms and Conditions.

 

12.) Confidentiality

12.1. Definition of Confidential Information. “Confidential Information” means all information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Your Confidential Information includes Client Data; MC’s Confidential Information includes the Product Materials, MC Data, Trade Secrets, and Purchase Order details; and Confidential Information of each party includes the terms and conditions of this Agreement and all Purchase Order (including pricing), as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information does 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.

12.2. 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 not less than reasonable care) to (i) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement and (ii) except as otherwise authorized by the Disclosing Party in writing, limit access to Confidential Information of the Disclosing Party to those of its and its affiliates’ employees and contractors who need that access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections not materially less protective of the Confidential Information than those herein. Neither party will disclose the terms of this Agreement or any Purchase Order to any third party other than its affiliates, legal counsel, and accountants without the other party’s prior written consent, provided that a party that makes any such disclosure to its affiliate, legal counsel, or accountants will remain responsible for such affiliate’s, legal counsel’s, or accountant’s compliance with this “Confidentiality” section. However, MC may disclose the terms of this Agreement and any applicable Purchase Order to a subcontractor to the extent necessary to perform MC obligations to You under this Agreement, under terms of confidentiality materially as protective as set forth herein.

12.3. Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of the 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. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to that Confidential Information.

“An individual shall not be held criminally or civilly liable under any Federal or State trade secret law for the disclosure of a trade secret that—(A) is made—(i) in confidence to a Federal, State, or local government official, either directly or indirectly, or to an attorney; and (ii) solely for the purpose of reporting or investigating a suspected violation of law; or (B) is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal.”

Accordingly, the Parties to this Agreement have the right to disclose in confidence trade secrets to Federal, State, and local government officials, or to an attorney, for the sole purpose of reporting or investigating a suspected violation of law. The Parties also have the right to disclose trade secrets in a document filed in a lawsuit or other proceeding, but only if the filing is made under seal and protected from public disclosure. Nothing in this Agreement is intended to conflict with 18 U.S.C. § 1833(b) or create liability for disclosures of trade secrets that are expressly allowed by 18 U.S.C. § 1833(b).

 

13.) Miscellaneous

13.1     Assignment of Agreement. Neither party may assign its rights or delegate its duties under this Agreement either in whole or in part without the prior written consent of the other party, which consent may be withheld in such party’s sole discretion, except to (i) an affiliate or (ii) a party that acquires all or substantially all of such party’s assets as part of a corporate merger or acquisition. Any purported assignment, delegation or transfer in violation of this Section is void. This Agreement is binding upon and inures to the benefit of the parties hereto and their respective permitted successors and assigns

13.2     Non-Waiver. The failure of MC to insist, in any one or more instances, upon the performance of any of the terms, covenants, or conditions of this Agreement, or to exercise any right hereunder, shall not be construed as a waiver or relinquishment of the future performance of any rights and obligations of the party with respect to such future performance shall continue in full force and effect.

13.3     Notices. Notices shall be given in writing by letter or, in the case of notices to the Client, by email and shall be sent to the intended recipient’s last known place of business (i) for MC, PO Box 27068, Washington, DC 20038 (for the attention of MC Contracts Department) and (ii) for the Client at the Client address or email address for the attention of the Client contact set out in the Purchase Order. Such letters shall be deemed received on the date of dispatch if sent by e-mail (or on the following business day if sent after the recipient’s normal business hours) or on the expiry of three (3) business days from the date of posting by first class mail or pre-paid post if sent by overnight post.

If Client or any Authorized User believes that material on the Site or Product infringes the copyright or other intellectual property right of Client or the Authorized User, the Client or the Authorized User may send MC a written notice (“DMCA Complaint Notice”). The DMCA Complaint Notice must contain the following details: (i) the name, mailing address, telephone number and email address of Client or the Authorized User, as applicable; (ii) sufficient detail about the allegedly infringing material, including the intellectual property right Client or the Authorized User, as applicable, alleges is being infringed; (iii) the URL or other specific location on the Site or in the product that contains the material that Client or the Authorized User, as applicable, claims is infringing; (iv) a statement by Client or the Authorized User, as applicable, that it has a good faith belief that the disputed use is not authorized by the intellectual property right owner, its agent, or the law; (v) a statement by Client or the Authorized User, as applicable, that the information contained in the DMCA Complaint Notice is accurate and that Client or the Authorized User, as applicable, attests under the penalty of perjury that it is the owner of the intellectual property right or is otherwise authorized to act on such owner’s behalf; and (vi) an electronic or physical signature of the owner of the intellectual property right or a person authorized to act on the owner’s behalf. The DMCA Complaint Notice must be sent to MC at the at the address above (A) Attn: Legal Department DMCA Complaint; (B) via email to [email protected] (include “DMCA Complaint” in the subject line). Upon receipt of proper written notice, MC will attempt to expeditiously remove or disable the allegedly infringing material, regardless of the nature of the material.

13.4     No Joint Venture. No joint venture, partnership, employment, or agency relationship exists between the Client and MC as a result of this Agreement or the Client’s use of the Product, Site or Product Materials.

13.5     Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.

13.6     Entire Agreement. This Agreement, including MC’s Privacy Policy and any duly executed Purchase Order, if any, constitutes the entire agreement between MC and the Client, and supersede all previous agreements and understanding, whether oral or written, with respect to the subject matter hereof. Features of the Product may be subject to additional guidelines, terms, or rules, which will be posted on the Site or in the Product. All additional guidelines, terms, and rules are hereby incorporated by reference into this Agreement.

13.7     Publicity. You grant MC the right to add Your name and company logo to MC’s customer list and website.

13.8   Changes to the Product. MC Reserves the right to change the content, presentation, means of delivery, and/or access to and/or availability of all or parts of the Product.

13.9     Any personal data (for example, Your name, address, telephone number, or email address) You transmit to the site by electronic mail or otherwise will be used by MC in accordance with MC’s Privacy Policy. Any other communication or material You transmit to the site, such as questions, comments, suggestions, or the like, will be treated as non-confidential and non-proprietary to You, and may be used by MC.

13.10     Some of MC’s sites contain links to other sites whose information practices may be different from MC’s. Clients should consult the other site’s privacy notices, as MC makes no warranties regarding the information that is submitted to or collected by these other sites.

 

14.) Third-Party Beneficiaries. MC’S PARENT COMPANY, MC’S AFFILIATES AND THEIR RESPECTIVE OFFICERS, EMPLOYEES, AND THIRD-PARTY AGENTS AND PARTNERS (COLLECTIVELY, THE “MC GROUP”) SHALL BE THIRD-PARTY BENEFICIARIES WITH RESPECT TO YOUR AGREEMENTS AND OBLIGATIONS HEREUNDER. There are no other third-party beneficiaries to this Agreement. You may not assign any Purchase Order, these Terms of Service, or rights hereunder without MC’s prior written consent except as otherwise provided in this Agreement. MC may delegate certain of its responsibilities, obligations and duties hereunder to a third party or affiliate for discharge of those responsibilities, obligations and duties on MC’s behalf.

 

15.) Expenses; Attorney’s Fees. Except as otherwise provided herein, or as may hereafter be established by an agreement in writing executed by the Parties hereto, all expenses incurred by each Party in performing its obligations hereunder shall be borne by the Party incurring the expense; except that in the event of a breach of this Agreement by You, MC shall be entitled to all costs of collection and enforcing its rights hereunder, including reasonable attorneys’ fees.

 

16.) Headings. The headings in this Agreement are for the purpose of reference only and shall not limit or otherwise affect any of the meanings or interpretations of this Agreement.

 

17.) Indemnification

17.1     You shall defend, indemnify, and hold MC, its licensors and each such party’s parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys, and agents harmless from and against any and all claims, costs, damages, losses, liabilities, and expenses (including reasonable attorneys’ fees and costs) arising out of or in connection with (a) a claim alleging that use of the Client Data infringes the rights of, or has caused harm to, a third party; (b) a claim which, if true, would constitute a violation by You of your representations and warranties; (c) a claim arising from the breach by You or Your Authorized Users of this Agreement; or (d) any other third party claim, suit, action, or proceeding arising, in whole or in part, from Your negligence; provided that MC (i) promptly give written notice of the claim to You; and (ii) provide to You all available information and assistance. You shall indemnify and hold harmless the MC Group against any loss, claim, demand or expense (including reasonable attorneys’ fees) arising in connection with Your breach of these Terms of Service or in connection with Your distribution of MC Data or Product Materials to third parties.  Your indemnification and hold harmless obligation shall not apply to the extent that any such third party claim arises out of, is related to, or is caused by the gross negligence or willful misconduct of MC.

17.2     MC shall defend, indemnify, and hold You and Your parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys, and agents harmless from and against any and all claims, costs, damages, losses, liabilities, and expenses (including reasonable attorneys’ fees and costs) arising out of or in connection with (a) a claim alleging that the Product directly infringes a copyright, a U.S. patent issued as of the effective date, or a trademark of a third party, except that MC will not be obligated to indemnify You to the extent that an infringement or misappropriation claim is based upon use of the Product in combination with other products not supplied or recommended by MC or specified by MC as being compatible with the Product if such infringement or misappropriation would not have occurred but for such combined use; (b) a claim, which if true, would constitute a violation by MC of its representations or warranties; (c) a claim arising from breach of this Agreement by MC; ; or (d) any other third party claim, suit, action, or proceeding arising, in whole or in part, from MC’s negligence; provided that You (i) promptly give written notice of the claim to MC; (ii) give MC sole control of the defense and settlement of the claim (provided that MC may not settle or defend any claim unless it unconditionally releases You of all liability); (iii) provide to MC all available information and assistance; and (iv) have not compromised or settled such claim. MC shall have no indemnification obligation, and You shall indemnify MC pursuant to this Agreement for claims arising from any infringement directly caused by Your combination of the Product with any of Your products, service, hardware, or business process(es). MC’s indemnification and hold harmless obligation shall not apply to the extent that any such third party claim arises out of, is related to, or is caused by Your negligence, gross negligence or willful misconduct.

 

18.) Governing Law. This Agreement shall be governed by the laws of the United States of America and the State of New York, as if the Agreement were a contract wholly entered into and wholly performed within the State of New York, without reference to the choice of law provisions thereof, and excluding the Uniform Computer Information Transactions Act (UCITA) as may be enacted, amended, or modified by the various states. The jurisdictional venue for any proceedings involving this Agreement shall be held in the State of New York, County of New York. To the maximum extent not prohibited by law, EACH PARTY KNOWINGLY, VOLUNTARILY, INTENTIONALLY, PERMANENTLY, AND IRREVOCABLY WAIVES ANY RIGHT IT MIGHT HAVE TO TRIAL BY JURY of any dispute arising out of or relating to this Agreement or any transaction or relationship arising from this Agreement.

 

19) Survival.  Sections 1 through 4, 12 through 15 and 17 through 19 hereof shall survive any termination of these Terms and Conditions shall continue in full force and effect.