The General Terms and Conditions set forth below are part of the Master Subscription Agreement between the Parties (collectively, referred to herein as this “Agreement”).
The following terms used herein shall have the meanings set forth below.
1.1.
“Confidential Information” has the meaning set forth in Section 6.1.
1.2.
“Data Asset” means any data analytics, directory(ies), managed dimensions, reports, analysis, or data other output supplied by Kythera to Client in connection with a Product or otherwise under this Agreement, specifically including pursuant to any Order Form.
1.3.
“Effective Date” means the date the Data Assets are first accessed by the Client.
1.4.
“Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for, or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection, or other intellectual-property–rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.
1.5.
“Market” means a metropolitan statistical area as defined by the Bureau of Labor and Statistics or a contiguous population group agreed upon in writing by the Parties.
1.6.
“Platform” means a product provided by Kythera that requires Client to access a computer system controlled by Kythera. For the avoidance of doubt, “Platform” includes, but is not limited to, any software-as-a-service (SaaS), data-analysis-as-a-service (DAaaS), Wayfinder, and Data Assets.
1.7.
“Product” means Data Assets and/or Platform.
1.8.
“Proprietary Data” means data subject to Client’s or a third party’s restrictions on use.
1.9.
“Term” has the meaning set forth in Section 5.1.
1.10
“Wayfinder” means Kythera’s proprietary data science platform built on DataBricks and powered by AWS.
2.1.
Grant of License. Kythera hereby grants to Client the right to access and use the Product during the Term for Client’s benefit but solely in and for Client’s business operations, by and through authorized users, in the United States. A user is an authorized user only if, while using the Product, the user is an employee, independent contractor, or agent of Client. Notwithstanding the foregoing, no user who is or is affiliated with a competitor of Kythera who has been named in writing by Kythera (“Kythera Competitor”) to Client is an authorized user. Unless specifically provided in the Order Form, any license granted herein is non-exclusive. Client shall not sublicense or assign the license granted herein, and any attempt to sublicense or assignment shall be void and a material violation of this Agreement. Client shall not provide or disclose any Data Asset to any third party.
2.2.
Limited Warranty. Kythera warrants to Client that, subject to the limitations set forth herein, the Product, when used in accordance with all documentation, training, and instruction provided therewith and in accordance with this Agreement, does not infringe any valid and subsisting right to exclude in the United States. The foregoing limited warranty does not extend to any possible infringement by use of the Product in combination or conjunction with any software, device, apparatus, system, or method other than as provided by Kythera in conjunction with the Product, unless such use is shown to be infringing when not in combination or conjunction with the same. The Parties expressly acknowledge that Kythera has no duty to investigate or to warn Client of any such possibility of infringement by combination use.
2.3.
DISCLAIMER. THE WARRANTIES AND REPRESENTATIONS SET OUT IN THIS AGREEMENT ARE IN LIEU OF, AND KYTHERA DISCLAIMS, ANY AND ALL OTHER WARRANTIES, CONDITIONS, OR REPRESENTATIONS (EXPRESS OR IMPLIED, ORAL OR WRITTEN), WITH RESPECT TO THE PRODUCT OR ANY PART THEREOF INCLUDING, WITHOUT LIMITATION, ANY AND ALL IMPLIED WARRANTIES OR CONDITIONS OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS OR SUITABILITY FOR ANY PURPOSE (WHETHER OR NOT KYTHERA KNOWS, HAS REASON TO KNOW, HAS BEEN ADVISED OF OR IS OTHERWISE IN FACT AWARE OF ANY SUCH PURPOSE), WHETHER ALLEGED TO ARISE BY LAW, BY REASON OF CUSTOM OR USAGE IN THE TRADE, BY COURSE OF DEALING, OR OTHERWISE. IN ADDITION, KYTHERA EXPRESSLY DISCLAIMS ANY WARRANTY OR REPRESENTATION TO ANY PERSON OTHER THAN CLIENT WITH RESPECT TO THE PRODUCT OR ANY PART THEREOF.
3.1.
Title. All right, title, and interest in and to the Data Asset, the Product, and any software or documentation used in connection with the Product, including all Intellectual Property Rights, are and shall remain with Kythera and any third-party licensors. For the avoidance of doubt, Client does not hereby acquire any ownership interest in Product or any Intellectual Property Rights related thereto. Client shall promptly notify Kythera if it becomes aware of any possible infringement of Kythera’s Intellectual Property Rights and shall fully cooperate with Kythera in any legal action taken by Kythera to enforce such Intellectual Property Rights.
3.2.
Modifications; Rights in Data Assets. Client will not make any copies, reproductions, modifications, adaptions, or derivative works of any software or data owned by Kythera or one of its licensors, except as necessary to use the Product. Client may copy, reproduce, modify, and adapt any Data Asset provided to Client in connection with the Product, for Client’s internal business purposes. Kythera hereby grants Client a perpetual license to use the Data Assets for Client’s internal business operations, so long as such use does not violate the terms of the Agreement (specifically including any restrictions on use).
3.3.
Reverse Engineering. Client shall not, and shall not permit others to, reverse engineer, disassemble, decompile, or otherwise attempt to gain access to source code owned by Kythera or one of its licensors.
3.4.
Restrictions on Use. The following restrictions on use of the Product and Data Assets are material to this Agreement, and Kythera would not make such available to Client without Client agreeing to such restrictions. Client shall only use the Product and the Data Assets for the permitted use or permitted uses as expressly described in the Order Form and this Agreement. In the event the Client is unsure as to the scope of such permitted use, Client shall promptly request clarification from Kythera. In connection with such use, Client will not: (a) make the Product available to, or use the Product for the benefit of, anyone other than Client or its customers; (b) sell, resell, license, sublicense, distribute, make available, rent, or lease the Product, or include Product in a service bureau or outsourcing offering; (c) use the Product to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of any third-party rights, including privacy rights; (d) use the Product to store or transmit malicious code; (e) knowingly or intentionally interfere with or disrupt the integrity or performance of Kythera’s systems or data; (f) attempt to gain unauthorized access to Kythera’s systems or networks; (g) permit direct or indirect access to or use of the Product in a way that circumvents a contractual usage; (h) frame or mirror any part of Product other than framing on Client’s own intranets or otherwise for Client’s own internal business purposes or as permitted herein; (i) access a Product in order to build a competitive product or service or to benchmark with a Kythera product or service. Notwithstanding the foregoing, Client may make the Product available to, and shall be permitted to allow the use of the Product by, any legal entity which is under common control as the Client, provided that such entity is not a Kythera Competitor. In addition to the general restrictions on use set forth in this Section 3.4, the additional restriction on use set forth on Schedule 5.4 are hereby incorporated by reference. For purposes of evaluating restrictions on use, any restriction on the Product shall be deemed to include the same restrictions on any Data Asset, output of the Product, or derivative work thereof. If any use of the Product by Client or its users, in Kythera’s sole judgment, violates the applicable restrictions or threatens the security, integrity, or availability of Kythera’s services or data, then Kythera may immediately suspend Client’s access to the Product. Further, Client agrees that it will destroy any Data Asset or other documentation or data related to such prohibited use promptly following request for destruction by Kythera, and, if requested in writing, certify such destruction.
3.5.
Publication Permission. Client may not use Kythera’s logo or company name without Kythera’s express written consent. If Client uses Data Assets or Product in formulating or supporting digital, online, or print publications (each a “Publication”), Client must provide reasonable advance notice to Kythera of the intent to publish. Kythera has the sole option whether to permit or prohibit Kythera’s name or logo to be used in connection with the Publication, including for attribution or acknowledgment.
4.1.
Definition and Limits. “Confidential Information” means information that the disclosing Party in good faith considers to be proprietary or otherwise confidential, no matter what form the information takes, what medium is used, whether the information is transmitted orally, in writing, electronically, or some other way, or whether the information is designated as “confidential” or not. “Confidential Information” includes (but is not limited to) the disclosing Party’s technology, trade secrets, knowhow, business operations, plans, strategies, customers, and pricing, together with any information belonging to third parties that the disclosing Party is obligated (contractually or otherwise) to maintain in confidence. “Confidential Information” does not include information that (a) is public knowledge, (b) becomes public knowledge through no fault of the recipient, (c) is readily available and obtained from sources other than the disclosing Party, provided the other sources obtained the information properly, or (d) comes into possession of a Party through proper and legal means, other than disclosure under this Agreement.
4.2.
Obligations. A receiving Party shall not use or disclose Confidential Information, except as necessary to exercise its rights or perform its obligations under this Agreement. A receiving party may internally disclose or permit access to Confidential Information only to those who need to know such information so the receiving Party may exercise its rights or perform its obligations under this Agreement, provided that such persons have first been informed of the confidential nature of the information and the receiving Party’s obligations hereunder and is legally or contractually obligated to maintain the information in confidence. A receiving Party shall also take reasonable measures to maintain the confidentiality of the Confidential Information, treating it with at least as much care and security as it treats its own Confidential Information.
4.3.
Compelled Disclosures. In the event a receiving Party receives a court order, subpoena, or other legal notice requiring disclosure of the Confidential Information of the other Party, the receiving Party shall promptly notify the disclosing Party so that the disclosing Party may seek a protective order or other appropriate relief.
4.4.
Protected Health Information. This Section is not meant to establish the Parties’ obligations with respect to confidentiality of Protected Health Information as that term is defined under the Health Insurance Portability and Accountability Act of 1996 (“PHI”).
5.1.
Term. The Initial Term of this Agreement is for the duration necessary to conduct a fair and reasonable evaluation by the Client. Kythera may terminate this Agreement at any time for any reason.
5.2.
Effect of Termination or Expiration. Upon the expiration or termination of this Agreement, except as otherwise provided hereunder:
5.2.1.
All licenses, rights, permissions, and authorizations granted by Kythera under or in connection with this Agreement, including those granted by Section 2.1, immediately terminate.
5.2.2.
Within 60 days from receipt of a written request by a disclosing Party, a receiving Party shall destroy any Confidential Information specified in the written notice and, if requested, certify such destruction. Notwithstanding the foregoing, the receiving Party will not be required to return to the disclosing Party or destroy copies of disclosing Party’s Confidential Information that (i) reside on the receiving Party’s backup, disaster recovery, or business continuity systems, or (ii) that the receiving Party is obligated by applicable law or governmental regulations to retain. All copies retained under this Section will remain subject to all confidentiality obligations under Section 6. No Confidential Information retained pursuant to this Section 7.5.3 may be used for commercial purposes or for internal or business purposes.
5.2.3.
Kythera may disable Client access to a Product.
5.3.
Survival. The following provisions shall survive the termination or expiration of this Agreement, together with any rights or obligations that, by their nature, should survive termination or expiration of this Agreement: Section 2, Section 3, Section 4, Section 5, Section 6, Section 7.
5.4.
Client’s Indemnification Obligations.
5.4.1.
Client shall indemnify, defend and hold harmless Kythera, its officers, directors, employees, contractors, and agents from any losses, damages, costs, legal expenses (including, without limitation, reasonable attorney’s fees) and out-of-pocket expenses, arising from (a) allegations of fact that, if true, would constitute a breach or violation of this Agreement by Client; (b) any Client Data (including Proprietary Data) supplied by Client for the Product in accordance with and for purposes of this Agreement; or (c) any gross negligence or willful misconduct by Client in connection with this Agreement. Notwithstanding the above, Client shall not be liable for any claim to the extent arising out of (i) unauthorized modification of Client Data by Kythera, (ii) use of Client Data for anything other than the intended purpose, and (iii) combination of Client Data with any other data, information, or materials. Kythera’s right to indemnification and defense is expressly conditioned on its compliance with all obligations under this Section 8.2. This section 8.2 sets forth Kythera’s sole liability and entire obligation and Kythera’s exclusive remedy for any action brought against Kythera by a third party respecting this Agreement or the Proprietary Data.
5.4.2.
Invoking Indemnification. If Kythera receives notice or otherwise becomes aware of the commencement or threatened commencement of any action, lawsuit or similar legal proceeding for which indemnity may be sought under this Section 8.2, Kythera shall promptly provide Client with written notice of such action. On receipt of such notice, Client shall be entitled to, at its sole option, assume the control of the defense, appeal, or settlement of such action. Kythera shall fully cooperate with Client in connection therewith upon Client’s request and expense. Kythera shall be entitled at any time to employ separate counsel to represent Kythera’s interests, but if the defense, appeal, or settlement of such action has been assumed by Kythera, any separate counsel employed by Client shall be at Client’s sole expense. Kythera shall not settle any such action without Client’s prior written consent, which shall not be unreasonably withheld, conditioned, or delayed.
6.1.
Exclusion of Damages. IN NO EVENT WILL KYTHERA BE LIABLE UNDER THIS AGREEMENT TO CLIENT OR ANY THIRD PARTY FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES, INCLUDING ANY DAMAGES FOR BUSINESS INTERRUPTION, LOSS OF USE, DATA, REVENUE OR PROFIT, WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT THE LICENSOR WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
7.1.
Relationship of the Parties. Nothing contained in this Agreement shall be construed as creating any agency, partnership, or other form of joint enterprise between the Parties. The relationship between the Parties shall at all times be that of independent contractors. Neither Party shall have authority to contract for or bind the other in any manner whatsoever.
7.2.
Entire Agreement. This Agreement and any Order Forms, statements of work, exhibits, schedules, lists, and other documents and writings referred to herein or therein or delivered pursuant hereto or thereto, all of which form a part hereof and are incorporated herein in their entirety by this reference to them, contain the entire understanding of the Parties with respect to their subject matter. They merge and supersede all prior and/or contemporaneous agreements and understandings between the Parties, written or oral, with respect to its subject matter and there are no restrictions, agreements, promises, warranties, covenants, or undertakings between the Parties with respect to the subject matter hereof other than those expressly set forth herein. This Agreement may be amended only by a written instrument duly executed by all Parties or their respective heirs, successors, assigns or legal personal representatives.
7.3.
Assignment. Client shall not assign, transfer, or otherwise dispose of any of its rights, duties, or obligations hereunder without the prior written consent of all the other Parties hereto, and any attempted assignment without such prior written consent shall be void from the outset, provided, however, that upon prior written notice to Kythera, Client may assign the Agreement to an Affiliate or to a successor of all or substantially all of the assets of such party through merger, reorganization, consolidation or acquisition, provided the successor is not a Kythera Competitor. Except as limited by the foregoing, all the terms and provisions of this Agreement shall be binding upon and shall inure to the benefit of and be enforceable by the Parties hereto and their respective heirs, successors, assigns, and legal or personal representatives.
7.4.
No Waiver. The failure of either Party to insist at any time upon the strict observance or performance of any of the provisions of this Agreement or to exercise any right or remedy as provided in this Agreement shall not impair any such right or remedy or be construed as a waiver or relinquishment thereof with respect to subsequent defaults. Every right and remedy given by this Agreement to the Parties hereto may be exercised from time to time and as often as may be deemed expedient by the Parties, as the case may be.
7.5.
Severability. If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal or unenforceable, the Parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the Parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
7.6.
No Third-Party Beneficiaries. This Agreement has been made and is solely for the benefit of the Parties hereto and their respective successors and permitted assigns. Nothing in this Agreement is intended to confer any rights or remedies under or by reason of this Agreement on any persons other than the Parties to it and their respective successors and permitted assigns or to relieve or discharge the obligation or liability of any third persons to any Party to this Agreement.
7.6.
Governing Law; Venue. This Agreement, and all claims relating to or arising out of it or the alleged breach thereof, whether sounding in contract, tort or otherwise, shall be governed by and construed in accordance with the laws of the State of Tennessee, excluding any conflict-of-laws rules or principles that might refer the governance or the construction of this Agreement to the law of another jurisdiction. This Agreement and its subject matter have substantial contacts with Tennessee, and all actions, suits, or other proceedings with respect to this Agreement shall be brought only in the Circuit Court of Williamson County, Tennessee, or, if such court is not available, another court of competent jurisdiction sitting in Williamson County, Tennessee, or in the United States District Court having jurisdiction over that County. In any such action, suit, or proceeding, the Parties consent to the personal jurisdiction and venue of such court, and service of process upon them under any applicable statutes, laws, and rules shall be deemed valid and good.
7.6.
Attorneys’ Fees. In the event either Party institutes any legal suit, action or proceeding against the other Party arising out of or relating to this Agreement, the prevailing Party in the suit, action or proceeding shall be entitled to receive in addition to all other damages to which it may be entitled, the costs incurred by such Party in conducting the suit, action or proceeding, including reasonable attorneys’ fees and expenses and court costs.
