TERMS AND CONDITIONS
Term. The Term of this Agreement will commence on the Effective Date and, unless earlier terminated in accordance with the terms below and will continue for a term of twelve (12) months. Thereafter, this Agreement will automatically renew for additional twelve (12) months with an increase of 5 percent annually, at the end of the initial Term or any subsequent renewal periods, unless either party provides written notice to the other party of its intent not to renew the Agreement at least ninety (90) days prior to the expiration of the then current term.
Termination for Cause. Subject to any specific terms in an applicable Exhibit, in the event of material breach of this Agreement or an Exhibit, the non-breaching Party may, at its discretion, terminate either the Exhibit(s) or SOW(s) that are the subject of the breach, or the entire Agreement by providing written notice of the nature and extent of the breach. In the event that the breaching Party does not cure the breach within ninety (90) days from the date of the written notice, the Termination Date shall be on the expiration of the cure period unless the Parties agree otherwise in writing. In the event that this Agreement is terminated due to Data Client’s uncured breach, Throtle’s obligations to provide Throtle Data shall immediately cease on the date of the notice of termination.
Termination for Convenience. Either Party may terminate an Exhibit for convenience after the expiration of the Initial Term of the applicable Exhibit by providing written notice to the other Party. In the event of termination for convenience, the Termination Date shall be sixty (60) days from the date on which a Party gives notice of its intent to terminate pursuant to this Section 6. Any Exhibits and SOWs under this Agreement that are outstanding as of the Termination Date shall be co-terminus with this Agreement. In the event of termination for convenience by either Party for any reason, the license rights set forth in Section 2 shall automatically terminate ten (10) days from the Termination Date with regard to any Throtle Data in Data Client’s possession on the Termination Date, unless otherwise set forth in the applicable Exhibit(s) or SOW(s). Data Client shall pay to Throtle all amounts due and owing under this Agreement no later than thirty (30) days following the Termination Date.
Effect of Termination/Survival. The expiration or termination of any Exhibit shall have no effect on the validity or enforceability of the Agreement or any other Exhibits and Statement of Work (SOW). As of the Termination Date, all obligations in this Agreement shall terminate, provided that Sections 4, 6.4, 7, 10, 11, 12, and 14 shall survive. Should a conflict between the parties arise between notice periods for termination, then applicable Exhibit(s) and SOW(s) will override the MSA in that period.
CONFIDENTIALITY
Defined. Each Party covenants and agrees that all information obtained from or through the other Party in connection with this Agreement, acquired through the inspection of the other Party’s property, or property to or in which the other Party has any rights, shall be deemed “Confidential Information” of the other Party. Throtle Data Confidential Information includes, without limitation, Throtle Data and Throtle Materials, as well as the terms and conditions contained in this Agreement. Except as expressly allowed by this Agreement, the receiving Party will hold in confidence and not use or disclose any Confidential Information of the disclosing Party.
Exclusions. The receiving Party shall not be obligated under this Section with respect to information if the receiving Party can document through writing or testimony that such information: (i) is or has become readily publicly available through no fault of the receiving Party or its employees or agents; (ii) is received from a third party lawfully in possession of such information and the receiving Party has no knowledge of any disclosure restrictions on such third party with respect to such information; (iii) is disclosed to a third party by the disclosing Party without restriction on disclosure; (iv) was rightfully in the possession of the receiving party without restriction prior to its disclosure by the other Party; (v) was independently developed by employees or consultants of the receiving Party without reliance on such Confidential Information; or (vi) to the extent such information may be used or disclosed by receiving Party in accordance with the terms of this Agreement.
Obligations. The receiving Party shall protect Confidential Information either (i) in the same manner in which the receiving Party protects its own Confidential Information of like importance (which, in any case, must be at least reasonable care) or (ii) in accordance with any Rules applicable to such Confidential Information, whichever provides greater protection. The parties shall disclose Confidential Information only to those employees or contractors who have a need to know such Confidential Information and who are bound by confidentiality obligations substantially similar to those provided by this Agreement. Upon disclosing Party’s request or upon termination of this Agreement, receiving Party shall return or destroy in accordance with disclosing Party’s reasonable request any Confidential Information then in receiving Party’s possession. Notwithstanding any provision to the contrary, the receiving Party may make disclosures required by law or court order provided the receiving Party notifies the disclosing Party of the issuance of such order and allows the disclosing Party to participate in the proceeding.
Breach Notification. The receiving Party shall notify the disclosing Party of any breach, misappropriation, or violation of the disclosing Party’s rights in and to the Confidential Information, including any Throtle Data and Throtle Materials, of which the receiving Party has knowledge, and cooperate with disclosing Party (at disclosing Party’s expense) in any legal action or proceeding to prevent or stop unauthorized use, exploitation, reproduction, or distribution of Throtle Data. In addition, (a) receiving Party will reasonably assist disclosing Party in any data breach notification efforts that disclosing Party may be forced to undertake as a result of receiving Party’s breach of this Agreement and (b) receiving Party will reasonably assist disclosing Party in any data breach notification efforts that disclosing Party may be forced to undertake as a result of this Agreement for any other reason.
PARTIES’ OBLIGATIONS
Throtle. Throtle shall:
(a) comply, and require compliance by its licensors (where applicable), with all Rules regarding the collection, use, handling, processing, access, security, and disclosure which are applicable to the Throtle data;
(b) provide as needed suppression lists to Data Client of any consumer requests for removal from Throtle Data as required by the Rules and industry guidelines applicable to the Throtle data;
(c) deliver Throtle data to data client in accordance with any data specifications agreed upon by the Parties in writing.
Data Client. Data Client shall:
(a) implement and maintain commercially reasonable administrative, technical, and physical safeguards, including procedures and practices, with regard to Throtle Data in Data Client’s possession and control designed to (i) ensure the security, confidentiality, and integrity of the Throtle Data, (ii) protect against any anticipated threats or hazards to the security or integrity of the Throtle Data, and (iii) protect against unauthorized access to, or unauthorized use or disclosure of, the Throtle Data;
(b) comply with all Rules regarding the collection, use, handling, processing, access, security, and disclosure of the Throtle Data by Data Client.
(c) use the Throtle Data solely in accordance with the terms and conditions in this Agreement and related Exhibits and Statement of Work (SOW).
(d) promptly, and in no case more than seven (7) days from the receipt of notice, delete, expire, purge, or otherwise cease the use of any Opt-outs or other Throtle Data for which a data subject has revoked or should reasonably be understood to have revoked their consent to provide the data subject’s data, or in the event that Throtle gives notice to Data Client that its right to provide or license the Throtle Data has terminated or expired.
REPRESENTATIONS AND WARRANTIES
Representations and Warranties. Throtle represents and warrants to Data Client that to the best of its knowledge, (i) Throtle has all rights necessary to provide the Throtle Data to Data Client; (ii) Throtle has contractually obligated its data contributors and other licensors to obtain all necessary consents from data subjects in accordance with the Rules; (iii) Throtle has no knowledge that the consumer or data subject to whom specific Throtle Data relates has effectively revoked consent to the collection, use, or disclosure of such data prior to its collection, use or disclosure (iv) Throtle has complied with all Rules applicable to the Throtle Data provided under this Agreement, or if Throtle is a licensee of the Throtle Data, Throtle has required the same of the licensor; and (v) No claim of infringement of any data, privacy, publicity or similar rights of any third party(whether or not embodied in an action, past or present) has been threatened or asserted, and no such claim is pending against Throtle or, to the best of Throtle’s knowledge, against any entity from which Throtle has obtained such rights.
Conflicting Obligations. Notwithstanding Data Client’s membership in any self-regulatory organizations relating to the collection, use, and disclosure of personally identifying information or anonymous data, Data Client acknowledges and agrees that Data Client’s compliance with any self-regulatory organization shall be in addition to its obligations under this Agreement and not in lieu of its obligations under this Agreement, unless mutually agreed to by both Parties.
DISCLAIMER. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, NEITHER PARTY MAKES ANY ADDITIONAL REPRESENTATION OR WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER WHATSOEVER. ALL OTHER EXPRESS OR IMPLIED CONDITIONS, REPRESENTATIONS AND WARRANTIES ARE HEREBY EXCLUDED TO THE EXTENT ALLOWED BY APPLICABLE LAW. EACH PARTY EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, AND TITLE. NEITHER PARTY WARRANTS THAT THE PRODUCTS OR SERVICES PROVIDED BY THAT PARTY ARE ERROR-FREE OR THAT OPERATION OF SUCH PRODUCTS OR SERVICES WILL BE SECURE OR UNINTERRUPTED.
LIMITATION OF LIABILITY
Disclaimer of Consequential Damages. IN NO EVENT SHALL THROTLE BE LIABLE TO DATA CLIENT FOR ANY SPECIAL, INDIRECT, RELIANCE, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND, LOST OR CORRUPTED DATA, LOST PROFITS OR LOST REVENUE, WHETHER ARISING IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EVEN IF THROTLE HAS BEEN NOTIFIED OF THE POSSIBILITY THEREOF. NOTHING IN THIS SECTION WILL BE CONSTRUED TO LIMIT A PARTY’S OBLIGATION TO INDEMNIFY THE OTHER PARTY PURSUANT TO SECTION 12 FOR DAMAGES AWARDED TO A THIRD PARTY, EVEN IF SUCH DAMAGES ARE CHARACTERIZED AS CONSEQUENTIAL, INCIDENTAL, SPECIAL, OR EXEMPLARY DAMAGES SUFFERED BY THAT THIRD PARTY.
General Cap on Liability. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, UNDER NO CIRCUMSTANCES WILL THROTLE ’S LIABILITY FOR ALL CLAIMS ARISING UNDER OR RELATING TO THIS AGREEMENT (INCLUDING BUT NOT LIMITED TO WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, EXCEED THE FEES PAID BY DATA CLIENT TO THROTLE UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT OR CIRCUMSTANCES GIVING RISE TO SUCH LIABILITY. THIS LIMITATION OF LIABILITY IS CUMULATIVE AND NOT PER INCIDENT.
NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, UNDER NO CIRCUMSTANCES WILL DATA CLIENT’S LIABILITY FOR ALL CLAIMS ARISING UNDER OR RELATING TO THIS AGREEMENT (INCLUDING BUT NOT LIMITED TO WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, EXCEED THE FEES PAID BY DATA CLIENT TO THROTLE UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT OR CIRCUMSTANCES GIVING RISE TO SUCH LIABILITY. THIS LIMITATION OF LIABILITY IS CUMULATIVE AND NOT PER INCIDENT.
Independent Allocations of Risk. EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS OF THIS AGREEMENT BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS AGREEMENT, AND EACH OF THESE PROVISIONS WILL APPLY EVEN IF THEY HAVE FAILED OF THEIR ESSENTIAL PURPOSE.
INDEMNIFICATION
Claims Against Throtle. Data Client agrees to indemnify and hold Throtle harmless from and against all direct costs, losses, damages, liabilities and expenses, including reasonable attorney’s fees attributable to any claim made by a third party arising out of Data Client’s breach of any representation or warranties under this Agreement, any Customer’s violation of the law or any right held by a third party, or Data Client’s failure to perform any of its obligations under this Agreement, including without limitation, misuse of Throtle Data, provided that (i) Data Client gives Throtle prompt written notice of any such claim of which Data Client has knowledge and (ii) Throtle is given full control over the defense of such claim and receives the full cooperation of Data Client in the defense thereof.
Data Client. Throtle agrees to indemnify and hold Data Client harmless from and against all direct costs, losses, damages, liabilities and expenses, including reasonable attorney’s fees attributable to any claim made by a third party arising out of Throtle’s breach of any representation or warranties under this Agreement, any Customer’s violation of the law or any right held by a third party, or Throtle’s failure to perform any of its obligations under this Agreement, including without limitation, misuse of Data Client’s data, provided that (i) Throtle gives Data Client prompt written notice of any such claim of which Throtle has knowledge and (ii) Data Client is given full control over the defense of such claim and receives the full cooperation of Throtle in the defense thereof.
Right to Audit. The Data Client agrees that at all times, it shall maintain current, accurate and complete books and records relating to its usage of the Throtle Data. The Data Client agrees that Throtle, or and designee of Throtle, shall have the right, at any time, following the effective date of this Agreement to examine, inspect, audit, review and copy or make extracts from all such books, records, and any source documents used in the preparation thereof during normal business hours upon written notice to the Data Client at least fourteen (14) days prior to the commencement of any such examination, inspection, review or audit. Such audit shall strictly be limited to those books and records that specifically relate to the information pertinent to the use of the Throtle Data. The right to audit shall not exceed two (2) audits per calendar year.
PUBLICITY
Either Party may include attribution to the other Party by displaying the other Party’s name, logo, and company description within its related marketing material, product titles and/or on their respective websites. Either Party may release one press release announcing the business partnership with the other Party, after approval from the other Party, which will not be unreasonably withheld. At either Party’s written request, that Party may further promote its partnership with the other Party via emails, webinars, additional press releases, blogs and case studies. Either Party may state that the other Party is working with that Party to reporters during interviews. Except as described in this Section, neither Party shall make any public statement about this Agreement without the other Party’s prior written agreement (email sufficing).
Notice. Any notice, report, approval or consent required or permitted hereunder shall be in writing and will be deemed to have been duly given if delivered personally, mailed by first-class, registered or certified U.S. mail, postage prepaid, return receipt requested, or via overnight delivery service to the respective addresses of the Parties as set forth above (or such other address as a Party may designate) or sent via confirmed facsimile or email, provided that in all cases of email notification, the date of the email shall control provided that a physical copy of such notice is promptly sent to recipient’s address as set forth above.
Independent Contractors. The Parties shall not be deemed to be partners, joint ventures, employers, employees or each other's agents, and no Party shall have the right to act on behalf of any other except as expressly agreed in writing.
Counterparts. This Agreement may be executed in counterparts, each of which will be deemed an original and all of which together will constitute one and the same document. This Agreement and written amendments hereto, may be executed by facsimile, electronic signature, PDF, or similar electronic means.
No Waiver. The failure of either Party to insist upon or enforce strict performance by the other Party of any provision of this Agreement or to exercise any right under this Agreement will not be construed as a waiver or relinquishment to any extent of such Party's right to assert or rely upon any such provision or right in that or any other instance; rather, the same will be and remain in full force and effect.
Amendment. Any waivers or amendments shall be effective only if made in writing and signed by a representative of the respective Parties authorized to bind the Parties.
Assignment. Neither Party may assign the Agreement or assign or delegate its rights or obligations under this Agreement without the prior written consent of the other Party, which consent shall not be unreasonably withheld, conditioned, or delayed. Any assignment or attempted assignment by either Party without the other Party’s written consent shall be null and void. Notwithstanding the foregoing, both Parties may assign this Agreement to an Affiliate or any successor to its business or assets to which this Agreement relates, whether by merger, sale of assets, sale of stock, reorganization, conversion, or otherwise.
Force Majeure. Except for any payment obligations, neither Party shall be liable hereunder by reason of any failure or delay in the performance of its obligations hereunder for any cause which is beyond the reasonable control of such Party, including but not limited to fire, flood, earthquake, equipment or telecommunications line failures, acts of war or terror, riot, governmental interference or labor disputes.
Arbitration. Except as otherwise provided in this Agreement, any controversy between the Parties arising out of this Agreement, including, but not limited to any cause of actions relating to breach of contract, tort, or indemnity of any kind, shall be submitted to the American Arbitration Association for binding arbitration in the state of Delaware. The costs of the arbitration, including any American Arbitration Association administration fee or the arbitrator’s fee(s), shall be borne equally by the parties to the arbitration. The arbitrator shall not have any power to alter, amend, modify, or change any of the terms of this Agreement nor to grant any remedy which is either prohibited by the terms of this Agreement, or not available in a court of law. The requirement of arbitration shall not apply in the event of enforcement of any equitable remedies including injunctive relief.
Equitable Remedies. Each Party agrees that (i) these provisions involve issues and rights that are unique, unusual, and extraordinary in nature such that they have peculiar value, (ii) irreparable damage would occur in the event that the provisions of this Agreement are not performed in accordance with its terms, (iii) each Party shall be entitled to seek injunctive relief, in addition to any other remedies available, without the necessity of demonstrating the inadequacy of money damages, and (iv) the Party shall be entitled to seek injunctive and other equitable relief to prevent or remedy a breach of this Agreement by any Party.
Applicable Law; Forum Selection and Venue; Prevailing Party. Any dispute between the parties shall be governed by and construed in accordance with the laws of Delaware, without regard to its choice of law rules.
Miscellaneous. This Agreement, including any attached Exhibits and SOWs which are incorporated into this Agreement, set forth the final and entire agreement and supersedes any and all prior or contemporaneous agreements of the Parties with respect to the transactions set forth herein. No amendments or additions to this Agreement, regardless of form or substance, will be valid unless set forth in a writing signed by the Parties. If any provision of this Agreement shall be found by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable. To the extent that there are any contradictions or inconsistencies between this Agreement and any Exhibit, such Exhibit controls. The paragraph headings contained in this Agreement are for reference purposes only and shall not affect the interpretation or meaning of this Agreement. This Agreement has been reviewed by both Parties and both Parties have had the opportunity for legal review and negotiation.
Subsidiaries and Affiliates; Commercial Customers. Any services or licenses provided under this Agreement may, Licensee’s option, extend to Licensee’s subsidiaries and affiliates, and commercial customers to whom Licensee provides the services and affiliates as part of the services that Licensee provides to its customers, unless specifically named on a restricted list identified in this agreement. For the avoidance of doubt, Licensee will ensure compliance with the terms of this Agreement by Licensee’s subsidiaries, affiliates, and commercial customers.